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541 U.S. 994
RATZKEv.ILLINOIS.
No. 03-8880.
Supreme Court of United States.
April 19, 2004.
1
App. Ct. Ill., 2d Dist. Certiorari denied.
|
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00116-CV
Sailaja Hathaway, Appellant
v.
Michael William Hathaway, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. FM004821, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
Appellant Sailaja Hathaway's brief was due to be filed in this Court on April 8, 2002.
On April 17, 2002, appellant's counsel was advised in writing that the brief was overdue and that
the appeal would be dismissed if appellant did not reasonably explain the failure through an
appropriate motion to this Court on or before April 29, 2002. See Tex. R. App. P. 38.8(a)(1).
Appellant has filed neither a motion nor a brief or otherwise responded to the Court's notices.
Accordingly, this appeal is hereby dismissed for want of prosecution pursuant to
Texas Rules of Appellate Procedure 38.8(a)(1), 42.3(b) and (c).
__________________________________________
Jan P. Patterson, Justice
Before Justices Kidd, Patterson and Puryear
Dismissed for Want of Prosecution
Filed: June 6, 2002
Do Not Publish
|
486 F.2d 1399
U. S.v.Goolsby
73-1237
UNITED STATES COURT OF APPEALS Fourth Circuit
11/8/73
1
D.S.C.
AFFIRMED
|
Jose Luis Granados v. State
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-082-CR
JOSE LUIS GRANADOS APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
------------
MEMORANDUM OPINION
(footnote: 1)
------------
I. Introduction
Appellant Jose Luis Granados appeals his conviction for burglary of a habitation with intent to commit sexual assault. A jury found Granados guilty and assessed his punishment at thirty years’ confinement. In two points, Granados contends that the trial court erred by accepting a vague and uncertain jury verdict and that the evidence is factually insufficient to support his conviction. We will affirm.
II. Background Facts
On the night of the burglary, Veronica Arelleno put her daughter to bed around midnight, studied for a college admission exam, and eventually went to bed at around 2 a.m. Arelleno awoke because someone lifted and moved her arm. She first thought it was her husband from whom she was separated, but she looked up and saw a thin person wearing a light-colored mask. Arelleno heard the sound of an aerosol spray can being dispensed close to her. She thought that the intruder was trying to spray something in her eyes, but the liquid did not touch her. She jumped up and, in English and in Spanish, asked whether the intruder wanted money or sex, but the intruder did not respond and continued to spray. She tried not to scream because her daughter was in a bed in the same bedroom. Her daughter woke up nonetheless and told the intruder to leave her mom alone.
At that point, Arelleno feigned unconsciousness. She let her entire body become limp. She thought that if the intruder wanted to rob her, he would notice that she was unconscious and take whatever he wanted. Instead, he took the covers off Arelleno. Her shorts were pulled off with the covers. The intruder grabbed Arelleno underneath her arms and dragged her face down into the living room. As she lay face down on the living room floor, the intruder touched her with his tongue or his lips “in the part between [her] buttocks and [her] legs” and touched her with his hand between her legs. Arelleno heard a zipper open, and then her daughter entered the living room, started to cry, and ran back to the bedroom. Arelleno heard the intruder go to shut the bedroom door, so she got up.
Arelleno charged the intruder, who was no longer wearing the mask, and tried to hit him in the groin area. When Arelleno saw the man’s face, she immediately recognized him as someone she had seen around the apartment complex. She identified Granados as the intruder. Arelleno hit the man in his privates approximately three times. The intruder hit Arelleno in the shoulder and near her ear. During the scuffle, Arelleno ran to the phone to call the police but then noticed that the phone had been disconnected. The intruder fled, and Arelleno locked her front door and called the police from her other phone. As she waited for the police, Arelleno noticed that her television and VCR were also disconnected.
The police arrived and took Arelleno to the police station to make a report. She told the police that she had seen the intruder around the apartment complex and that he drove a small blue truck. She described the intruder as a skinny forty to fifty year-old male and selected Granados from a photo line-up. She said that Granados did not have permission to enter her apartment or to touch her body. Before she left the police station, the police took photographs of the bruise on her shoulder and the scratches on her legs made when Granados dragged her to the living room.
Police obtained a warrant for Granados’s arrest and found him hiding in a closet in his apartment. Granados came out of the closet wearing only white boxer shorts and motioned for his pants. One of the officers searched Granados’s pants before giving them to Granados and found an offwhite ski mask in the left front pocket of the pants.
At trial, Granados testified that he spent the night in question at Artelio Lechuga’s apartment in Carrollton. He explained that the mask belonged to him and that he used it for painting. He admitted that he knew where Arelleno lived. On cross-examination, Granados answered “yes” to a question about whether he had ever entered Arelleno’s apartment; however, on redirect examination, he said that he had never been in her apartment.
In spite of Granados’s alibi, the jury found him guilty and assessed his punishment at thirty years’ confinement. This appeal followed.
III. Verdict Not Vague or Conflicting
In his first point, Granados contends that the trial court committed error by receiving a vague and uncertain jury verdict that conflicted with the indictment. The indictment charged that:
on or about the 19
th
day of August 2002, [Granados] did intentionally or knowingly, without the effective consent of Veronica Arelleno, the owner thereof, enter a habitation with intent to commit sexual assault,
PARAGRAPH TWO: And it is further presented in and to said court that [Granados] . . . on or about the 19
th
day of August, 2002, did intentionally or knowingly, without the effective consent of Veronica Arelleno, the owner thereof, enter a habitation and did attempt to commit or commit sexual assault.
The court’s charge instructed the jury on both of the above indictment paragraphs. However, the verdict form provided only one conviction option, stating, “We, the jury, find the Defendant, JOSE LUIS GRANADOS, guilty of the offense of Burglary of a Habitation with Intent to Commit a Felony, to-wit: Sexual Assault, as charged in the Indictment.” Thus, Granados complains that because the term “felony,” appears in the verdict form but not in the indictment, and because the term “felony” was not defined in the court’s charge to the jury, the jury’s verdict conflicts with the indictment, rendering it uncertain. Granados also complains that the court’s charge failed to properly instruct the jury because it instructed the jury on two theories of commission of the offense but provided for conviction on only one theory.
The State points out that the court’s charge did provide, “You are instructed that Sexual Assault is a felony.” The State contends that this instruction in the court’s charge eliminated the ambiguity Granados claims exists. The State also argues that any limitation that the general verdict form placed on the jury’s determination of Granados’s guilt was a windfall to Granados.
Significantly, the record shows that out of the presence of the jury, Granados requested the very instruction and language in the verdict form that he now complains about:
THE COURT: All right. And the changes that we have incorporated from discussions off the record are that the Court has entitled the offense in the first paragraph, as well as in the verdict form, burglary of a habitation with intent to commit a felony, to-wit: sexual assault,
at the request of the defense
.
And are there any further objections or specially requested charges from the State?
[PROSECUTOR]: No, Your Honor.
THE COURT: From the defense?
[DEFENSE COUNSEL]: No, Your Honor. [Emphasis added.]
Because Granados requested the inclusion of the very language he now complains about any error is not preserved for our review.
See Cadd v. State
, 587 S.W.2d 736, 741 (Tex. Crim. App. 1979) (op. on reh’g);
Willeford v. State
, 72 S.W.3d 820, 823 (Tex. App.—Fort Worth 2002, pet. ref’d). We overrule Granados’s first point.
IV. Factually Sufficient Evidence
In his second point, Granados argues that the evidence is factually insufficient to support his conviction. Specifically, Granados contends that the evidence is factually insufficient to establish that he had the intent to commit sexual assault when he entered Arelleno’s apartment. The State responds that there is ample evidence to support the jury’s verdict.
In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party.
Johnson v. State
, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000);
Clewis v. State
, 922 S.W.2d 126, 129, 134 (Tex. Crim. App. 1996). Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence.
Johnson
, 23 S.W.3d at 11. Therefore, we must determine whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the
verdict
, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.
Id.
In performing this review, we are to give due deference to the fact finder’s determinations.
Id.
at 8-9;
Clewis
, 922 S.W.2d at 136. We may not substitute our judgment for that of the fact finder’s.
Johnson
, 23 S.W.3d at 12. Consequently, we may find the evidence factually insufficient only where necessary to prevent manifest injustice.
Johnson
, 23 S.W.3d at 9, 12;
Cain v. State
, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).
To make a determination of factual insufficiency, a complete and detailed examination of all the relevant evidence is required.
Johnson
, 23 S.W.3d at 12. A proper factual sufficiency review must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal.
Sims v. State
, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
A person commits burglary of a habitation if, without the effective consent of the owner, he enters a habitation with intent to commit a felony.
Tex. Penal Code Ann.
§ 30.02(a)(1) (Vernon 2003). The indictment alleged that Granados entered Arelleno’s apartment with the intent to commit sexual assault.
Id.
§ 22.011(a) (Vernon Supp. 2004). A person commits sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means without that person’s consent or causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor.
Id.
§ 22.011(a)(1)(A), (C).
The jury is exclusively empowered to determine the issue of intent, and the events of a burglary may imply the intent with which the defendant entered.
Moreno v. State
, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986);
Moore v. State
, 54 S.W.3d 529, 539 (Tex. App.—Fort Worth 2001, pet. ref’d). Thus, intent may be inferred from the defendant's conduct and surrounding circumstances.
Id.
Further, where the charge is burglary with an intent to commit a felony, the offense is complete whether the intended felony is committed, as long as the burglarious entry is made with the intent to commit the felony alleged.
Id.
Here, the record demonstrates that Granados observed Arelleno in the apartment complex parking lot and knew where she lived. He broke into her apartment wearing a ski mask and attempted to spray some substance on Arelleno. After Arelleno feigned unconsciousness, Granados dragged her into the living room and touched with his tongue or lips and his hand in her buttock area between her legs.
Granados had disconnected Arelleno’s phone, television, and VCR.
At trial, Granados attacked Arelleno’s report to the police because it contained fewer details than she gave in court. Granados testified at trial that he was not even in the area on the night in question and that he used the ski mask police found in his pant’s pocket in his work as a painter. He admitted at trial that he entered Arelleno’s apartment. According to Granados, the disconnected appliances show an intent to commit theft, not to sexually assault Arelleno upon entering her apartment.
Viewing all of the evidence in a neutral light, the proof that Granados intended to commit sexual assault when he entered the apartment is not so obviously weak as to undermine confidence in the
verdict
or outweighed by contrary proof.
See Sendejo v. State
, 26 S.W.3d 676, 677-78 (Tex. App.—Corpus Christi 2000, pet. ref’d) (holding uncontroverted testimony that appellant entered home and touched child on leg near genital area was legally and factually sufficient to support intent element of defendant’s conviction for burglary of a habitation with the intent to commit indecency with a child);
Sharpe v. State
, 881 S.W.2d 487, 490 (Tex. App.—El Paso 1994, no pet.) (holding victim’s testimony that defendant unplugged her phone, got on top of her, and she thought he was going to rape her, supported defendant’s conviction for burglary of a habitation with the intent to commit sexual assault);
Moone v. State
, 802 S.W.2d 101, 104 (Tex. App.—Austin 1990, pet. ref’d) (holding evidence sufficient to support defendant’s conviction for burglary of a habitation with intent to commit sexual assault when defendant entered thirteen-year-old girl’s room in dead of night, was intoxicated, used knife to cut her underwear, concealed his identity when she awoke, and used mild force to prevent her from arousing others in house);
Ramer v. State
, 714 S.W.2d 44, 47 (Tex. App.—Dallas 1986, pet. ref’d) (holding evidence sufficient to support defendant’s conviction for burglary of a habitation with intent to commit sexual assault when defendant broke into apartment, jumped on top of complainant in bed with his zipper open, and threatened to kill her if she did not stop screaming). Additionally, courts have rejected arguments like the one Granados raises that the sexual assault was an afterthought that developed during the burglary.
See Moore
, 54 S.W.3d at 539 (stating events of burglary may imply intent with which defendant entered);
Coleman v. State
, 832 S.W.2d 409, 413-15 (Tex. App.—Houston [1
st
Dist.] 1992, pet. ref’d) (same). Moreover, the fact that Granados may also have intended to steal does not negate his intent to sexually assault Arelleno.
See Ramirez v. State
, 815 S.W.2d 636, 642-43 (Tex. Crim. App. 1991) (holding that confession presented evidence appellant intended to commit theft, but that evidence did not prevent State from presenting other relevant evidence on appellant’s felonious intent to commit sexual assault).
Viewing the evidence in a neutral light, we cannot conclude that the evidence supporting Granados’s guilt of the offense of burglary of a habitation with the intent to commit sexual assault is so weak as to render the jury’s verdict clearly wrong and unjust or that the verdict is against the great weight and preponderance of the evidence at trial.
See Moore
, 54 S.W.3d at 540;
see also Thomas v. State
, 126 S.W.3d 138, 147 (Tex. App.—Houston [1
st
Dist.] 2003, pet. ref’d). Assuming the jury chose to believe Arelleno’s version of events, the jury could have reasonably inferred from Granados’s actions that he entered the apartment with the intent to sexually assault Arelleno.
See Moore
, 54 S.W.3d at 540. Thus, we hold that the evidence is factually sufficient to support Granados’s conviction. We overrule Granados’s second point.
V. Conclusion
Having overruled Granados’s two points, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL B: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P.
47.2(b)
DELIVERED: April 8, 2004
FOOTNOTES
1:See
Tex. R. App. P
. 47.4.
|
156 Ariz. 464 (1988)
753 P.2d 154
STATE of Arizona, Appellee,
v.
William Edward JOHNSON, Appellant.
No. CR-87-0117-PR.
Supreme Court of Arizona, En Banc.
April 19, 1988.
*465 Robert K. Corbin, Atty. Gen. by William J. Schafer III, Janet Keating and Bruce M. Ferg, Asst. Attys. Gen., Phoenix, for appellee.
Cole & O'Neil by Mark A. Higgins, Casa Grande, for appellant.
MOELLER, Justice.
JURISDICTION
Appellant William Edward Johnson was charged with murder, found not guilty by reason of insanity, and committed to the Arizona State Hospital. About sixteen months after his commitment, the trial court held a hearing on his status pursuant to A.R.S. § 13-3994. As a result of that hearing, the trial court ordered Johnson's release from the hospital on a conditional basis. The state had difficulty finding a facility which would accept Johnson under the terms of the conditional release order. On appeal, the court of appeals ordered Johnson released unconditionally unless, within thirty days, the state was successful in placing him with a facility pursuant to the terms of the trial court's conditional release order, 156 Ariz. 463, 753 P.2d 153. We granted review and have jurisdiction under Ariz. Const. art. 6, § 5(3).
FACTS AND CASE HISTORY
William Edward Johnson is a long-time victim of severe mental illness and has repeatedly been diagnosed as schizophrenic. Since the onset of his disease in approximately 1974, he has led a nomadic life, wandering from place to place, frequently being hospitalized after episodes of bizarre behavior. Prior to his arrival in Arizona, he had been hospitalized at least five times in Canada, Michigan, Washington, and Utah. After being medicated and stabilized in the structured setting of a hospital, Johnson has suffered relapses upon his release. As he testified, "I get to feeling better and almost on top of the world so to speak, and I don't feel that I need any help, so I quit taking my medicine."
After arriving in Arizona, Johnson was twice hospitalized at the Arizona State Hospital. He was released from his second hospitalization there on April 18, 1984, and moved to Casa Grande, Arizona. He again failed to follow through on his out-patient treatment or to take his medication, this time with tragic consequences.
On June 16, 1984, less than two months after his release, Johnson beat his arthritic, wheelchair-bound neighbor to death with a tire iron. According to doctors who examined Johnson after the attack, Johnson was psychotic and delusional at the time of the attack and believed "that the Mafia was after him and that if he did not put a hit on the victim in this incident, he himself would be killed. He also felt that various people, specifically a group of Indians, were influencing his mind and thoughts, as well as his behavior."
Johnson was charged with first degree murder. The parties waived jury trial and submitted the case to the trial court on a stipulated record, which included many medical and psychiatric reports. The trial court found Johnson not guilty by reason of insanity. Pursuant to A.R.S. § 13-502(D), the trial court further found that Johnson would have been guilty of second degree murder but for his insanity. Based upon those findings and A.R.S. § 13-3994, the trial court committed Johnson to the Arizona State Hospital on January 4, 1985.[1]
Johnson's commitment was reviewed by the trial court in September 1985. He remained *466 hospitalized because the trial court concluded that he had not shown that he was not a danger to others under A.R.S. § 13-3994(C). The trial court reviewed Johnson's commitment a second time in May 1986, and the resulting judgment is the subject of this appeal. At the hearing, uncontradicted evidence showed that Johnson still suffered from schizophrenia which was in remission as a result of treatment and medication. All of the doctors who submitted reports to the court or who testified in person agreed that if the medication were discontinued, the schizoid personality likely would reappear. The evidence also showed that Johnson had a history of discontinuing his medication when unsupervised, although some witnesses opined that the likelihood of his taking his medication if released now was greater than on his prior releases. The basis of this opinion was stated to be the belief that Johnson's killing of his neighbor had had a greater impact on Johnson than had the events which led to his earlier hospitalizations.
In spite of the uncontroverted evidence that Johnson had schizophrenia, albeit in remission, the trial court made a finding that Johnson no longer suffered from "mental disease or defect." The trial court ordered that Johnson be conditionally released pursuant to A.R.S. §§ 13-3994(C) and 36-540.01. Johnson moved for reconsideration contending that the trial court's finding that he no longer suffered from a mental disease or defect entitled him to an unconditional, rather than a conditional, release. This request was denied by the trial court.
Johnson appealed, contending that the inconsistency between the trial court's finding of no mental disease or defect and its order for a conditional release required a modification of the judgment from a conditional to an unconditional release. The state, on the other hand, contended that the inconsistency between the finding and the order required a remand to the trial court for further proceedings. The court of appeals recognized the inconsistency and acknowledged that a finding that a defendant was no longer mentally ill would ordinarily mandate an order of unconditional release under A.R.S. § 13-3994(C). The court of appeals also acknowledged, however, that the trial court's order could only be read as authorizing a conditional, rather than an unconditional, release. The solution fashioned by the court of appeals was to order Johnson's unconditional release on the theory that the evidence, in its view, showed that Johnson did not belong at the state hospital, that no beneficial treatment existed for him there, and that it would be unconstitutional to keep him there. The court alternatively provided that the trial court's judgment for conditional release could stand if the state were successful in implementing it within thirty days.
We granted review to consider the propriety of the trial court's order and the court of appeals' opinion conditionally modifying it. During the pendency of the appeal, the record, with the permission of the court, has been supplemented a number of times. These supplements have outlined the difficulties the state has encountered in trying to place Johnson in an appropriate conditional release program as authorized by the trial court. The most recent supplement shows that Johnson has now been released from the hospital on a conditional outpatient treatment plan. This does not, of course, moot Johnson's claim that he is entitled to an unconditional release, nor does it moot the state's claim that further proceedings in the trial court are necessary.
ANALYSIS
The record reflects a trial court finding that Johnson was no longer suffering from a mental disease or defect. If this record accurately reflects the trial court's intent, the trial court either made a finding having no factual support in the record or misapplied A.R.S. § 13-3994(C). The statute provides, in pertinent part:
If a person seeking release from confinement ... proves by clear and convincing evidence that he is ... no longer suffering from the mental disease or defect established pursuant to § 13-502 ... the person shall be released.
*467 The evidence at the hearing was uncontradicted that Johnson still had schizophrenia, although it was in remission by reason of treatment. We hold that a person who has a mental disease or defect is still "suffering" from it within the meaning of A.R.S. § 13-3994(C), even though the disease or defect is in remission due to treatment. Under this interpretation of the statute, there is no support in the record for the trial court's finding that Johnson no longer "suffers" from a mental disease or defect. There is also nothing in the record to show what sort of an order the trial court might have entered but for its erroneous finding.
We agree with the court of appeals that the trial court's finding in this case is inconsistent with its order for conditional release. We disagree with the court of appeals' conclusion that the solution is to convert the order into one for unconditional release. Neither the record in this case nor the case of State ex rel. Collins v. Superior Court, 150 Ariz. 295, 723 P.2d 644 (1986), relied upon by the court of appeals, compels Johnson's unconditional release on constitutional grounds. We do not wish to speculate as to what order the trial court might have fashioned based upon proper findings of facts and a proper application of the statute.
Under our statutory scheme, a defendant committed pursuant to A.R.S. § 13-3994 is entitled to an unconditional release if he convinces the court, by clear and convincing evidence, either that he no longer suffers from mental disease or defect or that he is no longer a danger to himself or others.[2] A.R.S. § 13-3994(C). Certainly, if he remains ill and dangerous, his continued hospitalization is justified. In State ex rel. Collins this court recognized that "[t]he state may legitimately confine individuals who are dangerous to themselves or to others and who are also in need of treatment." 150 Ariz. at 297, 723 P.2d at 646, citing Jones v. United States, 463 U.S. 354, 361-62, 103 S.Ct. 3043, 3048, 77 L.Ed.2d 694, 703 (1983).
If a defendant cannot establish his right to an unconditional release under the applicable statutes, he may establish his eligibility for a discretionary conditional release by showing that the four factors specified in A.R.S. § 36-540.01(A) are satisfied. Those factors are:
1. The patient no longer requires continuous inpatient hospitalization;
2. The patient will be more appropriately treated in an outpatient treatment program;
3. The patient will follow a prescribed outpatient treatment plan;
4. The patient will not likely become dangerous or suffer more serious physical harm or serious illness if he follows a prescribed outpatient treatment plan.
The prescribed outpatient treatment plans and programs referred to in the statute may, and frequently will, include a regimen of medication. Under the statute, failure to demonstrate that a patient will follow a reasonable and properly prescribed outpatient program renders that patient ineligible for conditional release. This statutory provision is entirely appropriate as failure or refusal to follow the prescribed outpatient plan, including medication, may bear directly upon the patient's potential dangerousness. See Zenoff, Controlling the Dangers of Dangerousness: The ABA Standards and Beyond, 53 Geo. Wash.L.Rev. 562, 587 (1985). See also Matter of Johnston, 118 Ill. App.3d 214, 218-19, 73 Ill.Dec. 743, 746, 747, 454 N.E.2d 840, 843-44 (1983); In re Bobo, 376 N.W.2d 429, 432 (Minn.App. 1985).
DISPOSITION
The judgment of the trial court is reversed. The opinion of the court of appeals is vacated. This matter is remanded to the trial court for further proceedings consistent with this opinion and with defendant's present condition.
*468 GORDON, C.J., FELDMAN, V.C.J., and CAMERON and HOLOHAN, JJ., concur.
NOTES
[1] Shortly after his arrest, Johnson had been admitted to the Arizona State Hospital as gravely disabled under A.R.S. § 36-540.
[2] The United States Supreme Court has impliedly approved placing the burden of proof on the patient where, as in Arizona, the criminal defendant has the burden of proving his insanity. Jones v. United States, 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983).
|
510 U.S. 898
Hillv.Arizona.
No. 93-5543.
Supreme Court of United States.
October 4, 1993.
1
Appeal from the Sup. Ct. Ariz.
2
Certiorari denied. Reported below: 174 Ariz. 313, 848 P. 2d 1375.
|
255 F.Supp.2d 1304 (2002)
Sherry MORELAND, Plaintiff,
v.
MIAMI-DADE COUNTY, Defendant.
No. 02-20082-CIV.
United States District Court, S.D. Florida.
November 13, 2002.
*1307 Donna Marie Ballman, Davie, FL, for Sherry Moreland, plaintiff.
William X. Candela, FTS, Dade County Attorney's Office, Miami, FL, for Miami-Dade County, defendant.
ORDER GRANTING FINAL SUMMARY JUDGMENT
HUCK, District Judge.
THIS MATTER is before the Court upon the Defendant's Motion for Summary Judgment [DE# 23] and Plaintiffs Motion for Partial Summary Judgment [DE#20]. The parties' motions, memoranda of law in response and reply, supplemental authority *1308 submitted by both parties, and oral argument have been considered. The Court concludes that Defendant is entitled to summary judgment on the federal and state racial discrimination claims brought under Title VII of the Civil Rights Act of 1964 (Count VI), the Florida Civil Rights Act (Count III), and 42 U.S.C. § 1983 (Count IV). Defendant is also entitled to summary judgment on the procedural due process claim brought under 42 U.S.C. § 1983 (Count IV). Supplemental jurisdiction over the remaining state law claims is declined.
I. BACKGROUND
The Plaintiff, Sherry Moreland, is an African American woman. She was employed as a Correctional Officer I with the Miami-Dade County Corrections Department ("MDCC") when she began dating Lynn Strickland, a former inmate at a MDCC jail. Strickland moved into Moreland's apartment in July 1992 while on parole for numerous felonies. After living together about four months, Moreland discovered that Strickland was engaged in criminal activity. She promptly reported this to Strickland's probation officer, who put her in contact with a detective. Moreland went undercover and, as a result of her efforts, Strickland was sentenced to another twenty two years in jail. Thereafter, on July 5, 1993, MDCC promoted Moreland to a position as a sworn Corporal Officer of the Corrections Department.
At some point during 1992 or 1993, the Internal Affairs Department of MDCC initiated an investigation into allegations that Moreland had violated departmental rules by becoming romantically involved with Strickland. The investigation culminated in April 1996 with the issuance of a Disciplinary Action Report ("DAR") charging Moreland with violating three rules: Rule 2.200.29 (Cooperation with Other Agencies), Rule 2.300.01 (Revealing Official Departmental Documents), and Rule 2-34 (Employee Association with Inmates, Exinmates, or a Criminal Element). All of the allegations related to these violations were based on events that occurred when Moreland was an unsworn Corrections Officer I, before she was promoted to the position of a sworn Corporal. Moreland had a spotless employment record until the DAR in 1996.
One year later, in April of 1997, Supervisor Donald Manning fired Moreland because of the violations outlined in the DAR. Moreland appealed the termination pursuant to § 2-47 of the Miami-Dade County Civil Service Code. An independent hearing examiner was appointed and received evidence. On the appeal, MDCC argued that Moreland had violated Rule 2.200.29 by either making inconsistent statements or giving perjured testimony during the proceedings against Strickland, and that she had "sandbagged" the government's case by testifying contrary to pre-trial statements she made to an Assistant United States Attorney during the investigation. The import of Rule 2.200.29, in MDCC's view, meant fully cooperating with law enforcement agencies and giving truthful testimony. On the issue of whether Moreland had violated Rule 2.20029, the hearing examiner stated that "[t]he weight of the evidence suggests that Moreland's testimony in the Strickland case was inconsistent with her testimony in this [civil service appeal] proceeding and contrary to what she initially told [the Assistant United States Attorney in the Strickland case]." MDCC, however, had never formally charged Moreland with, and did not fire her for lying, misrepresentation, falsification or perjury, even though *1309 MDCC had evidence from which to draw such a conclusion long before terminating her.
The hearing examiner thus found no violation of Rule 2.200.29 when he issued his findings and recommendation on August 25, 1999. He did, however, conclude that Moreland had violated Rule 2-34 by failing to promptly notify her supervisor and/or the Internal Affairs Department about Strickland's criminal activity.[1] For violating Rule 2-34, the examiner recommended that Moreland be suspended without pay for twenty eight months, from May 3, 1997 to August 30, 1999. At that time Moreland had been fired from her job for over two years. Hence, the examiner found termination was an inappropriate sanction and recommended disciplinary action tantamount to "time served" with Moreland to be immediately reinstated to her sworn position as a Corporal.
The foregoing facts merely set the table for Moreland's case. She does not complain of the termination or appeal, the decisions of the Internal Affairs Department and Supervisor Manning, or the findings and recommendation of the hearing examiner. Her complaint arises from the County Manager's decision to demote her instead of accepting the hearing examiner's recommendation of a two year suspension without pay and reinstatement to her former position as a Corrections Corporal.
II. UNDISPUTED FACTS[2]
The transcript and exhibits from Moreland's appeal hearing, along with the examiner's report were submitted to the County Manager, Merrett Stierheim, for review. Under § 2-47 of the Civil Service Code, Stierheim could "sustain, reverse or modify" the recommendation of the hearing *1310 examiner. (Pltf Facts at 113; Defs Ex 9 at p. 1.) Stierheim accepted the examiner's suggestion of a two year suspension without pay, but rejected the recommendation that Moreland be reinstated to the position of Corporal. Stierheim's decision was stated in a letter dated November 23, 1999:
I accept the Hearing Examiner's factual findings, but do not accept his recommendation as to the appropriate level of discipline. Your failure to notify the department promptly of Mr. Strickland's criminal activities is an extremely serious offense. As a Correctional Officer, you are held to a higher standard than civilians and expected to help enforce the law, not to protect known criminals.
I am troubled by your apparent lack of candor in the hearing. While the Department failed to charge you with misrepresentation or perjury, the Hearing Examiner found that your testimony was inconsistent at best. Your lack of complete candor calls your integrity as a Correctional Officer into question.
...
In light of the seriousness of your offense, and the ethical breaches as a sworn Correctional Officer, I have decided that you should not be reinstated to the County service as a Correctional Corporal.
(Def Ex 9 at p. 2.) In recognition of Moreland's otherwise satisfactory employment record and the different ethical standard required of a non-sworn employee, Stierheim set aside the termination and offered Moreland a demotion to a non-sworn position with a salary range comparable to that of a Correctional Officer. (Def Ex 9 at p. 2.) If she accepted this offer, the time period from termination until reinstatement to a non-sworn position would serve as a disciplinary suspension without pay. (Def Ex 9 at p. 2.) If Moreland accepted the offer, Stierheim indicated the Employee Relations Department would identify a position for which she qualified. (Def Ex 9 at p. 2.)
On December 23, 1999 Moreland filed a grievance, pursuant to Article 9 of the Collective Bargaining Agreement between MDCC and the Police Benevolent Association, alleging that Stierheim had engaged in ex-parte communication with the County Attorney's office before making his own final decision on the hearing examiner's findings. (Def Ex 11 and 2 at p. 19.) She did not, however, pursue this grievance to arbitration. (Pltf Facts at ¶ 10.)
Neither party succinctly articulates, nor does the record clearly reveal what happened over the next several months. Moreland did file a discrimination charge with the EEOC in July 2000. (Def Ex 14.) Apparently, MDCC did not reinstate Moreland to a position of comparable salary prior to the EEOC charge being filed, but kept her on a paid suspension with a reduced salary, and repeatedly said there were no positions available for her. (Pltf Add'l Facts at H 7.) Finally, some time after Moreland filed the EEOC charge, MDCC placed her in a position with a salary lower than that of a Corporal. (Pltf Add'l Facts at 117.) The EEOC found reasonable cause to believe that a violation of Title VII had occurred and issued a determination letter to this effect in April 2001. (Def Ex 15.) Approximately four months later, the EEOC issued a right to sue letter. (Def Ex 16.)
Between the date of the EEOC's determination letter and right to sue letter, Moreland met with Stierheim's successor, Steve Shiver, to discuss her employment *1311 status. (Pltf Facts at 1111.) On August 21, 2001 Shiver offered to reinstate Moreland as a Correctional Officer provided she satisfied all qualifications for the position. Although this would have still been a demotion from Moreland's former Corporal position, at that point MDCC had already advised Moreland that she would not pass the background check for a sworn position. (Def Ex 13; Moreland Deposition at p. 18.)
Moreland rejected Shiver's offer and then filed a ten count complaint in state court against Miami-Dade County ("County"), which was removed to federal court. (Moreland Deposition at pp. 84-85.) Counts I and II are claims for violations of the Officer's Bill of Rights, codified at Florida Statutes Chapter 112.532. Counts III and VI are employment discrimination claims, pursuant to the Florida Civil Rights Act and Title VII, alleging that the County is liable for Stierheim's racial discrimination. Count IV is a claim under 42 U.S.C. § 1983 for violation of the right to equal protection and procedural due process guaranteed by the Fourteenth Amendment. Count VII is a claim for violation of the Florida constitutional guarantee of procedural due process. Counts VIII and IX are state common law claims for negligent race discrimination and negligent supervision of employees. Count X is a claim alleging that the County violated Florida Statutes Chapter 92.57 by retaliating against Moreland for giving testimony in the Strickland proceedings in response to a subpoena.
II. ANALYSIS
A. Summary Judgment Standard
A summary judgment is proper only if the record before the court shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The purpose of summary judgment is "to pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)(quoting Fed.R.Civ.P. 56 advisory committee's note). In Celotex Corp. v. Catrett, All U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Court held that summary judgment should be entered only against
a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Id. at 322-23, 106 S.Ct. 2548.
To prevail, the moving party must do one of two things: (1) show that the nonmoving party has no evidence to support its case, or (2) present "affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir.1991) (en banc); Young v. City of Augusta, Go., 59 F.3d 1160, 1170 (11th Cir.1995). In making this determination, all evidence and reasonable inferences *1312 from the evidence are considered in the light most favorable to the nonmoving party. Dibrell Bros. International, S.A v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir.1994).
B. Employment Discrimination Claims[3]
Moreland, an African American, has sued the County under Title VII claiming disparate disciplinary treatment by County Manager Stierheim. Disparate treatment claims require proof of discriminatory intent by the defendant, which may be accomplished through either direct or circumstantial evidence. Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1083 (11th Cir.1996) (citations omitted). Moreland does not have direct evidence of discrimination and therefore must establish an initial presumption of intentional discrimination through the familiar McDonnell Douglas burden-shifting test. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
1. Plaintiffs prima facie case
To establish a prima facie case of disparate treatment under McDonnell Douglas, a plaintiff must show that she was: (1) a member of a protected class; (2) qualified for the position or entitled to the benefit sought; (3) subjected to adverse employment action; and (4) that the employer treated similarly situated employees outside the class more favorably. Id. at 804, 93 S.Ct. 1817; Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). The elements for a prima facie case will necessarily vary depending on the factual situation and the type of employment action at issue. See Jones v. Firestone Tire & Rubber Co., 977 F.2d 527, 537 (11th Cir.1992). "Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination." Holifield, 115 F.3d at 1562. Employees are similarly situated when they are involved in or accused of similar misconduct yet disciplined in different ways, id., but the burden is on the plaintiff to show the similarity between his or her conduct and that of other employees who were treated differently, and not on the defendant to disprove their similarity. Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir.1989). The only issue in this case is whether Moreland has established the fourth prong of her case.
To establish similarly situated employees who received more favorable disciplinary treatment, Moreland must show that her misconduct, found by the hearing examiner to be a violation of Rule 2-34, was similar to that of non-African American employees who violated Rule 2-34 or a similar rule, and that Stierheim imposed more severe discipline on Moreland than that imposed on the non-African employees for similar violations. Moreland relies on a summary of eleven employees, identified as Plaintiffs Exhibit C,[4] whom she claims are similarly situated. The Court *1313 presumes these employees all violated Rule 2-34 or a similar rule for purposes of this motion.
Moreland argues that here, as in Anderson v. WBMG-42, 253 F.3d 561 (11th Cir.2001), the Exhibit C employees are similarly situated because they were in the identical or a substantially similar chain of command because at least one of Moreland's decision makers was also involved with disciplining the comparators. Plaintiffs argument is well taken to the extent that a plaintiffs prima facie case does not fail just because the plaintiff and the comparators reported to different supervisors. Id. at 566 (explaining that Jones v. Gerwens stands for the proposition that different supervisors "may not be comparable" and does not stand for the proposition that different supervisors between plaintiff and comparators means plaintiffs case fails as a matter of law). The facts of this case, however, are more analogous to Jones, 874 F.2d at 1541-42 (11th Cir.1989) (holding that, to establish a prima facie case of discriminatory motive in a disparate disciplinary plaintiff must show that middle and upper managers were aware of, and consciously overlooked, similar violations by other employees when plaintiff was disciplined).
Moreland has failed to adduce evidence showing that Stierheim consciously overlooked violations by the employees in Exhibit C when he disciplined Moreland more severely. Pursuant to Dade County Code § 2-47, the County Manager conducts an administrative review only after the hearing examiner renders an opinion on whether a rule has been violated. Only Vicky Cooper, discussed below, appealed her discipline. Since none of the other employees in Exhibit C appealed, an independent hearing examiner never found that any of the comparators violated a rule. Based on the civil appeal process, the Court finds Stierheim did not review the comparators' cases and thus had no reason to know about the misconduct of any employee listed in Exhibit C. Moreland speculates, but has not pointed to evidence that Stierheim actually knew these other employees had violated similar rules, and ignored the fact that the supervisors had disciplined these other employees more leniently than he disciplined Moreland.[5] In fact, Moreland admits that "it is impossible to determine what level of involvement" Stierheim played in the other employee's discipline because MDCC did not produce detailed information regarding at least eight of these individuals. (Pltf memo at 28.) Although Stierheim, as the higher level manager, could have discussed these other disciplinary cases with the supervisors even though no appeals were taken, there is no evidence to support this argument. The record evidence thus does not establish that Stierheim knew about the misconduct of any employee in Exhibit C except for Vicky Cooper.
Moreland lists Vicky Cooper, a white employee, as a comparator because she was charged with violating the same offense as Moreland but was only suspended *1314 for twenty days. Cooper, unlike the other employees in Exhibit C, pursued an appeal through the civil service process. The examiner's report was sent to Stierheim. Because Stierheim reviewed Cooper's case, she may be a closer comparator than any other employee Moreland has identified. Nevertheless, Cooper is not similarly situated because, unlike Moreland, the hearing examiner found Cooper did not violate any rule and Stierheim, therefore, did not discipline Cooper.
Moreland's reliance on Anderson is misplaced. Every comparator in Anderson reported to the same middle and upper manager. Anderson, 253 F.3d at 566. Here the purported comparators did not all report to Manning. Four reported to an "unknown" supervisor and one reported to Spears. It is unclear whether two employees reported to Manning or Spears. Similarly, Exhibit C is ambiguous with respect to one other employee, who reported either to Manning, Spears, or Lawrence. Moreover, Stierheim was not the County Manager when six of these employees were disciplined. Thus, Exhibit C proves that all of the purported comparators were not supervised by the same middle manager (Manning) or upper manager (Stierheim) as Moreland. In fact only four employees were supervised by both Manning and Stierheim,[6] but even these four do not rise to the level of comparators because Moreland has limited her complaint to Stierheim's decision.
Although the motivations of both upper and middle management are pertinent to disparate treatment analysis because none of the participants in the decision making process should be influenced by racial bias, id., the principle has no application here because Moreland does not take issue with Manning's decision to terminate her employment. Instead, Moreland complains only of Stierheim's decision to demote her. At oral argument Moreland disavowed any claim that Manning made a racially biased decision to fire her. So whether Manning disciplined four other employees more leniently for similar rule violations is irrelevant to Moreland's sole claim that Stierheim was racially biased in disciplining her.[7]
In summary, taking all the evidence and reasonable inferences in the light most favorable to Moreland, it is impossible to identify any non-African American employee in Exhibit C that Stierheim disciplined more favorably for violating a MDCC rule. Moreland's evidence fails to show that Stierheim knew that these purported comparators committed misconduct similar to Moreland's violation of Rule 2-34. Furthermore, even if Stierheim knew about the other violations, the evidence does not show that Stierheim consciously overlooked those violations when he disciplined Moreland more severely. See Jones, 874 F.2d at 1541-42. Exhibit C simply does not set forth any valid comparators.
In addition, Stierheim only reviewed the hearing examiner's recommendation, the transcript of the hearing and the exhibits introduced there, before concluding that demotion to a non-sworn position was the *1315 appropriate level of discipline in Moreland's situation. (Def Ex 9, Def Facts at 1 7, Stierheim Deposition at pp. 6, 10, 14, 26.) Nothing in the transcript or the records admitted at the civil appeal hearing indicated that Moreland was African American. Race could not and did not factor into Stierheim's decision because he did not know Moreland's race when he demoted her. (Stierheim Deposition at pp. 25-27.) Stierheim's testimony on this issue stands unrefuted in the record. Moreland's prima facie case thus fails because there is no evidence from which a fact finder could conclude that Stierheim decided to impose harsher discipline on Moreland because of her race. See Lubetsky v. Applied Card Systems, Inc., 296 F.3d 1301, 1306 (11th Cir.2002) (evaluating a disparate treatment claim of religious discrimination by focusing on the "actual knowledge and actions of the decisionmaker"); Silvern v. Orange County School Bd., 244 F.3d 1253, 1259 (11th Cir.2001) ("[discrimination is about actual knowledge, and real intent, not constructive knowledge and assumed intent").
For all of the foregoing reasons, Moreland has failed to raise the inference that Stierheim acted with a discriminatory motive by failing to establish the fourth prong of her prima facie case.
2. Defendant's legitimate, non-discriminatory reason
Even if Moreland had established a prima facie case, MDCC has demonstrated a legitimate, non-discriminatory reason for demoting Moreland. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citations omitted) (explaining the burden at this stage is one of production, not persuasion, and employer need only point to admissible evidence from which a fact-finder could reasonably conclude that the challenged action was taken for legitimate, non-discriminatory reasons); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (holding defendant's evidence of non-discriminatory reason for employment action "can involve no credibility assessment"). The hearing examiner unequivocally found that Moreland had violated a MDCC rule, a finding that Moreland has not contested in this litigation. Section 2-47 of the County's Civil Service Code gave Stierheim the unfettered discretion to reverse Manning's original decision to terminate Moreland and to modify discipline recommended by a hearing examiner. The examiner's finding that Moreland violated Rule 2-34, even if wrong, is a legitimate, non-discriminatory explanation for Stierheim's decision to demote Moreland. See Chapman v. Al Transport, 229 F.3d 1012, 1030-31 (11th Cir.2000) (holding defendant may terminate an employee for good or bad reason without violating federal law); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984) (holding an employee may be fired "for good reason, bad reason, reason based on erroneous facts, or no reason at all, so long as its action is not for a discriminatory reason").
3. Plaintiffs evidence of pretext
Once the employer has met the burden to produce evidence from which the fact finder could conclude that the contested action (Moreland's demotion) was taken for a non-discriminatory reason, the McDonnell Douglas presumption of discrimination created by the plaintiffs prima facie showing "drops" from the case. See St. Mary's, 509 U.S. at 510-11, 113 S.Ct. 2742; Texas Dept. of Community *1316 Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The burden then shifts back to the plaintiff to show that the proffered reason was in fact a pretext for intentional discrimination. Burdine, 450 U.S. at 256, 101 S.Ct. 1089. A plaintiff may show pretext and survive summary judgment by demonstrating that a genuine issue of material fact exists with respect to the truth or falsity of the employer's proffered reasons for the action taken. See St. Mary's, 509 U.S. at 511, 113 S.Ct. 2742; Combs v. Plantation Patterns, 106 F.3d 1519, 1534 (11th Cir.1997). The plaintiff need not necessarily put forth additional affirmative evidence at this stage; the prima facie case, combined with sufficient evidence to find the employer's justification is false, may permit the fact-finder to conclude that discrimination was the real reason for the action. See St. Mary's, 509 U.S. at 511, 113 S.Ct. 2742. Proof that the defendant's explanation is "unworthy of credence" is a form of circumstantial evidence that may be probative of intentional discrimination. Combs, 106 F.3d at 1529-30.
Moreland argues that the comparators in Exhibit C are sufficient evidence to establish pretext. However, as discussed above, Exhibit C is not a summary of employees who are valid comparators.
Moreland next argues that pretext can be inferred from MDCC's "failfure] to follow the policies in the CBA [collective bargaining agreement] and the Police Officer's Bill of Rights, both of which are its own policies and procedures," relying on cases from the Seventh and Ninth Circuits. Setting aside whether the principle is or should be followed in the Eleventh Circuit, Moreland did not identify, with respect to this argument, the specific policies or the relevant part of the Officer's Bill of Rights upon which she relies. Moreland also did not articulate how the failure to follow certain policies shows that Stierheim's reason for demoting Moreland is false or unworthy of credence. Accordingly, even if Moreland had stated a prima facie case, she has not rebutted the County's nondiscriminatory reason for the demotion.
C. Section 1983 Claims
Moreland has sued MDCC, pursuant to 42 U.S.C. § 1983, for violating the Fourteenth Amendment right to procedural due process by failing to inform her and thereby preventing her from defending the charges against her. She also claims Stierheim engaged in ex parte communications with the County Attorney and others before he decided to demote her. The § 1983 claim for a procedural due process violation fails under both theories.
In McKinney v. Pate, the Eleventh Circuit reiterated that "a procedural due process violation is not complete `unless and until the [s]tate fails to provide due process.' " McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir.1994) (quoting Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)). "[O]nly when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise." Id. A procedural due process violation can be remedied in a post-termination review by a state court. Id. at 1563.
The Eleventh Circuit has consistently held that a § 1983 due process claim will not lie unless state procedures are inadequate. For example, in Horton v. Board of County Commissioners of Flagler County, the court explained that "the McKinney rule looks to the existence of an *1317 opportunity-to whether the state courts, if asked, generally would provide an adequate remedy for the procedural deprivation... If state courts would, then there is no federal procedural due process violation regardless of whether the plaintiff has taken advantage of the state remedy or attempted to do so." Horton v. Board of County Com'rs of Flagler County, 202 F.3d 1297, 1300 (11th Cir.2000). Moreover, "[i]f adequate state remedies were available but the plaintiff failed to take advantage of them, the plaintiff cannot rely on that failure to claim that the state deprived him of procedural due process." Cotton v. Jackson, 216 F.3d 1328, 1331 (11th Cir. 2000).
Dade County Code, § 2.47.1, expressly provides that "[t]he County Manager's decision shall be subject to review in accordance with Florida Appellate Rules." This ordinance provided Moreland with a state remedy for any deprivation of due process she suffered.[8] She could have appealed Stierheim's decision to the state circuit court, but failed to do so. Moreland's argument that she was told by a County employee that the County Manager's decision was final and she could not challenge it is unavailing. The only relevant inquiry is whether an adequate state remedy was available to redress her claim. Because the state court system provided Moreland with an avenue to rectify the alleged deprivation, her § 1983 claim based on a federal due process violation fails as a matter of law.
Moreland alternatively claims the County engaged in a pattern, policy or practice of race discrimination by disciplining her more severely than non-African American employees, in violation of the Equal Protection Clause. This claim also fails. A § 1983 action may be brought against a municipality only where the alleged constitutional injury was caused by a policy, practice or custom maintained by the municipality. Monell v. Dept. of Social Services, 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A "policy, practice, or custom" is not limited to "official" pronouncements such as formal or written laws, but may also include an "unofficial" policy, practice, or custom that is so predominant that it can be considered to have the "force of law." Id.
Here, there is no evidence that the County allows discrimination based on race. In fact, the only record evidence is the County's charter, which states that it is the policy of the County to make employment decisions without regard to "race... national origin ... ancestry ... and/or place of birth." (Def Ex 21.) Moreland asserts that the County maintains several discriminatory policies and customs, but has not produced any evidence of such policies and customs. Accordingly, the Court concludes that Moreland has not established an element essential to her § 1983 claim for racial discrimination.
III. CONCLUSION
For the foregoing reasons, Defendant Miami-Dade County motion is GRANTED with respect to the claims for violation of Title VII (Count VI), the Florida Civil Rights Act (Count III), and 42 U.S.C. *1318 § 1983 (Count IV). Plaintiffs Motion for Partial Summary Judgment is DENIED with respect to the federal due process claim (Count IV) for the reasons stated in Section C. There being no federal claims remaining, the Court declines to exercise supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(c)(3), over Counts I, II, VII, VIII, IX, and X. In addition, the state law claims in Counts I, II, VII, VIII, and X will not be heard as they present novel causes of action that are more appropriately adjudicated by a state court. See 28 U.S.C. § 1367(c)(1).
The Clerk of the Court is directed to DENY all other pending motions as moot and mark this case CLOSED.
Summary of comparator Evidence
Comparator Race Violation charged Offense# Discipline Director manage
sherry Moreland B Assoc W/inmates 260 Term/demotion+ Manning/ Stierheim
Laura Costanzo H Assoc W/inmates 260 None Manning/ Stierheim susp/ 2 years Spears
Spears
Mercedes Ruiz H Assoc.W/inmates 260 Susp/10 days Manning Stierheim
Yvonne Guerra H Assoc.W/inmates 260 Susp/10 days Manning Stierheim
Donna Careaga H Assoc.W/criminals 210 Susp/10 days Unk Unk
Diane DiMaio W Hadrelationship W/ not charged None Unk Unk
inmate, was given
permission to marry him
inside prison
Vicky Cooper W Assoc.W/inmates 260 Susp/20 days Lawrence/ Unk
Manning/
Spears
Kimberly Siplin B Assoc.W/inmates 260 Term. Manning Stierheim
Nilo Sierra H Assoc.W/inmates 260 None Manning Stierheim
Jose Hernadez H Assoc.W/inmates 260/unk. Letter of underst. Spears Manning
Roberto Garcia H Fraud/forgery/ 550 Allowed to resing Manning/ Stierheim
falsiflcation Spears
Curtis Davis W Had relationship W/ NOtcharged None Unk. Unk.
Nelson Delgado H Death threat/use of Not charged None Unk. Unk.
EXHIBIT C
NOTES
[1] Rule 2-34 provides, in pertinent part, as follows:
Employee Association with Inmates, Ex-Inmates, or Criminal Element, Etc.
Employees will not, in the discharge of their duties and responsibilities, solicit, promise, accept, or grant, directly or indirectly, any improper favor or service that may influence the discharge of their duties or responsibilities.
No employees on-duty or off-duty, except in the discharge of duty, may knowingly associate with any person(s) engaged in, or allegedly in, unlawful activities.
A. Inmates:
Employees shall maintain only professional relationships with inmates.
...
2. Additionally, employees shall not develop close, personal, intimate, or sexual relationships with inmates that the employees become acquainted with while the inmates are in the Department's custody.
B. Ex-Inmates:
Association with ex-inmates (regardless of whether or not they are found guilty, sentenced, and served time) does not automatically constitute a conflict which would require an end to the contact ... However, the professional relationship standards applicable to current inmates applies to known or alleged ex-inmates, especially if they are, or appear to be, involved in criminal activity on a full time, part time, or on an occasional basis.
C. Criminal Element:
Knowledge by an employee of criminal activity may implicate, in fact or appearance, the employee in that person's criminal activity if the employee does nothing, or if the employee does not take sufficient action to separate himself from that person and/or the activity. An employee risks becoming a suspect himself. This relationship may also jeopardize the employee's employment with the county.
[2] The facts are taken from Defendant's Amended Statement of Material Facts with attached exhibits ("Defs Facts at ¶" and "Defs Ex _") and Plaintiff's Response to Statement of Material Facts with attached exhibits ("Pltf Facts at ¶" and "Pltf Ex ___").
[3] The reasoning behind the decision on the Title VII is equally applicable to the Florida Civil Rights claim.
[4] The parties agree that the factual information in Exhibit C, a copy of which is attached, is accurate. One employee on the list, Kimberly Siplin, is an African American. Because she is a member of the same protected class as Moreland, she is not a valid comparator for purposes of the fourth prong of a disparate disciplinary treatment case.
[5] In paragraph 21 of Moreland's Statement of Additional Undisputed Facts, Moreland repeatedly states that Stierheim was the County Manager when the comparators were disciplined. The fact that Stierheim held this position, however, is not evidence that he personally knew of each comparators' misconduct or the discipline each supervisor imposed. The record evidence, and the only reasonable inference from the evidence, is that Stierheim knew about disciplinary situations only after an employee appealed a disciplinary decision to a hearing examiner.
[6] Mercedes Ruiz, Yvonne Guerra, Nilo Sierra, and Roberto Garcia.
[7] Even if the other employees in Exhibit C are considered (Costanzo, Careaga, DiMaio, Hernandez, Garcia, Davis, and Delgado), the fact that Lawrence, Spears, or some unknown supervisor disciplined other employees more leniently would be irrelevant to the discipline Stierheim imposed on Moreland, given that there is no evidence Stierheim knew about the other employees' violations.
[8] Moreland knew of her appeal right. The Collective Bargaining Agreement Between Metropolitan Dade County and the Dade County Police Benevolent Association states, in relevant part: "The parties agree that Section 2-47 of the Code of Metropolitan Dade County will be the exclusive method of disciplinary appeal for all Dade County employees exclusive of appeals to the judicial system." (Def Ex 12 at p. 23, emphasis added.)
|
643 N.E.2d 825 (1994)
163 Ill.2d 130
205 Ill.Dec. 534
FEDERAL DEPOSIT INSURANCE CORPORATION, Appellee and Cross-Appellant,
v.
Michael J. O'MALLEY, Appellant and Cross-Appellee.
No. 76106.
Supreme Court of Illinois.
October 27, 1994.
Rehearing Denied December 5, 1994.
*826 Callahan, Fitzpatrick, LaKoma & McGlynn, Oak Lawn (David A. Novoselsky, Chicago, of counsel) for appellant.
Marc J. Chalfen, De Haan & Richter, P.C., Chicago (Richard J. Osterman, Jr., and J. Scott Watson, Washington DC, of counsel), for appellee and cross-appellant.
Justice NICKELS delivered the opinion of the court:
This case involves an action by plaintiff, the Federal Deposit Insurance Corporation (FDIC), to enforce a guarantee signed by defendant, Michael J. O'Malley, in connection with a bank loan. The bank that made the loan subsequently failed. The FDIC then took control of the bank's assets and found the guarantee in the bank's files. At trial, O'Malley argued that the guarantee was invalid from the outset or, in the alternative, had been extinguished by the bank before the FDIC acquired the bank's assets. The circuit court found, as a matter of law, that these defenses were barred by 12 U.S.C. § 1823(e) (1988). The circuit court therefore ruled in favor of the FDIC, and the appellate court affirmed. (249 Ill.App.3d 340, 188 Ill. Dec. 248, 618 N.E.2d 818.) For the following reasons, we affirm the judgment of the appellate court.
I. Facts
The parties presented the following evidence at trial. In 1975, Michael J. O'Malley and Wayne J. Bekta were directors and shareholders of the First National Bank of Oak Lawn (the Bank). They had also worked together as business partners in past real estate transactions. In 1975, O'Malley and Bekta became interested in purchasing and developing a tract of real estate located in Country Club Hills, Illinois. At this time, O'Malley and Bekta were acquainted with Dennis Dine, whom they knew as a customer of the Bank and an experienced real estate developer. They therefore approached him and asked him if he would participate in the purchase of the Country Club Hills property. Dine agreed. The three of them subsequently determined that Dine would apply for a loan from the Bank and purchase the property. Later, if the property showed a profit from development or sale, the three would split this profit.
When Dine applied for the loan, he submitted the property as collateral. Bekta and O'Malley decided that, if the Bank did not approve the loan, they would offer their personal *827 guarantees as security. O'Malley and Bekta therefore signed a guarantee in the amount of $225,000, the purchase price of the Country Club Hills property. They did not wait to see if the Bank would approve the loan without this additional security.
At trial, O'Malley acknowledged signing the guarantee and conceded that he was generally aware of the legal effect of a guarantee. O'Malley stated that he left the signed guarantee with Bekta but that he was uncertain of what happened to the guarantee after that point. The guarantee and two promissory notes signed by Dine were later found in the Bank's files. At trial, O'Malley claimed that the guarantee was not intended to be used unless additional security was needed. Dine also testified with respect to O'Malley's guarantee and supported O'Malley's testimony. He stated that he was unaware that Bekta or O'Malley had guaranteed the loan. The first time he became aware of any such guarantee was during his deposition.
John Geary was the loan officer who handled and approved the loan to Dine in 1975. Geary was also president of the Bank. At trial, Geary testified that the only collateral required for the loan was the Country Club Hills property. The purchased property was appraised at $420,000 and would therefore adequately serve as collateral for a loan of $225,000. Geary testified that he first saw the guarantee during a deposition before trial.
O'Malley offered bank records into evidence. No reference to a guarantee was found in the loan proposal, the collateral checklist, or a collateral audit report. Other bank records also did not refer to the guarantee. In addition, Paul Adamonis, an employee of the FDIC, testified that he found no mention of the guarantee in the bank records, aside from the guarantee itself.
The Bank later sold the Dine notes to LaSalle National Bank (LaSalle). LaSalle's records did not refer to a guarantee signed by O'Malley and Bekta. LaSalle later sold the notes back to the Bank.
In 1979, four years after the Bank made the loan to Dine, O'Malley decided to end his relationship with the Bank. He therefore sold his stock and resigned as director. According to O'Malley, as part of the termination, the Bank and O'Malley exchanged mutual releases. At trial, O'Malley introduced a letter from the Bank, dated October 1, 1979, which purported to release O'Malley from any obligations he owed to the Bank, including guarantees. This letter did not refer to the Dine notes. The letter was signed by Bank president Geary and notarized by vice-president Adams. At the time, Geary had the requisite authority to release guarantees in the amount of $225,000, the amount of the guarantee. Neither Geary nor Adams was aware of the guarantee signed by O'Malley.
O'Malley also introduced a letter dated October 4, 1979, that he purportedly wrote to the Bank. In the letter, O'Malley released the Bank from any obligations it owed to him. Geary testified that he placed both letters in the bank files.
Adamonis, the FDIC examiner, testified that he did not find any releases in his examination of bank records. Adamonis searched Dine's loan file, the board of director minutes, the loan committee minutes, internal audit reports, and other bank records. Adamonis did not find any personal loan file of O'Malley among bank records. He also stated that the FDIC possessed 400 or 500 boxes of bank documents and that he had not personally inspected all of the documents. Adamonis had not personally inspected Bekta's personal loan file or the bank corporate files.
On April 29, 1983, about 3½ years after the purported releases were exchanged, the Bank was declared insolvent. The FDIC took control of the Bank and acquired its assets. James Murphy, an FDIC employee, testified with respect to the closing procedures used by the FDIC. Murphy testified that he closed the Bank pursuant to standard FDIC procedures.
During the closing, Murphy found the guarantee signed by Bekta and O'Malley among the Bank's collateral files. The guarantee, on its face, provided that it was absolute, continuing, and applied unconditionally to all of Dine's obligations at the Bank, as *828 they existed or would exist in the future. The guarantee also authorized the Bank to extend and renew Dine's obligations, authorized release of the guarantors, and authorized the Bank to waive notice and demand. Under the terms of the guarantee, no action by the Bank would impair the Bank's rights against either guarantor. The guarantee was specifically limited to $225,000, plus interest due on the note and legal expenses.
During the closing, Murphy also found two outstanding and unpaid notes signed by Dine. The note relating to the Country Club Hills real estate had been renewed by Dine, and the principal under the renewal note was $279,456.49. Murphy also found another note for $643,852.50 signed by Dine. Dine did not pay any principal or interest on these notes. The FDIC subsequently sought repayment from Dine but Dine filed for bankruptcy. On September 15, 1983, the FDIC demanded payment from O'Malley under the terms of the guarantee. O'Malley refused and the FDIC brought this action. Further facts will be provided as needed for discussion.
II. Lower Court Proceedings
After a bench trial, the circuit court found that Dine was indebted to the Bank in excess of $225,000, that O'Malley had executed a guarantee for $225,000, and that the FDIC located the guarantee in the collateral files of the Bank. It then found that O'Malley was barred under 12 U.S.C. § 1823(e) (1988) from arguing that the guarantee was legally insufficient or had been extinguished. Accordingly, the circuit court entered judgment in favor of the FDIC for $464,490.89, representing $225,000 in principal and $239,490.89 in interest.
On January 16, 1990, O'Malley filed a post-trial motion in which he asserted that he was entitled to a new trial because, inter alia, the circuit court judge should have disqualified himself pursuant to Supreme Court Rule 63(C)(1)(c) based on his prior representation of the FDIC. O'Malley also contested, inter alia, the amount of interest awarded by the circuit court. After a hearing, the circuit court denied the motion for a new trial but reduced the amount of interest awarded from $239,490.89 to $81,666.14. The appellate court affirmed the judgment but modified the award of interest from $81,666.14 to $83,446.71.
On appeal to this court, O'Malley raises, inter alia, the following issues: (1) whether the circuit court judge violated Supreme Court Rule 63(C)(1)(c) by failing to disqualify himself; (2) whether 12 U.S.C. § 1823(e) (1988) bars O'Malley from asserting that the guarantee was not an asset of the Bank; and (3) whether section 1823(e) is constitutional. The FDIC has cross-appealed, claiming that the award of interest by the lower courts was incorrect. Other issues raised by O'Malley are discussed below.
III. Disqualification of the Circuit Court Judge
O'Malley first argues that the circuit court violated Supreme Court Rule 63(C)(1)(c). At the time of trial, this Rule provided:
"C. Disqualification.
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where
* * * * * *
(c) he was, within the preceding three years, associated in the private practice of law with any law firm or lawyer currently representing any party in the controversy * * * or, for a period of seven years following the last date on which he represented such a party, he represented any party to the controversy while he was an attorney engaged in the private practice of law." (113 Ill.2d R. 63(C)(1)(c).)
If a judge is disqualified under Rule 63(C)(1)(c), the judge may still participate in the proceedings. At the time of trial, Supreme Court Rule 63(D) provided:
"D. Remittal of Disqualification.
A judge disqualified by the terms of Canon 3(C)(1)(c) * * * may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If, based on such disclosure, the parties and lawyers, independently of the judge's participation, all agree in writing that the judge's relationship or interest is immaterial, the judge is no longer disqualified *829 and may participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding." 113 Ill.2d R. 63(D).
O'Malley contends that the circuit court judge represented the FDIC within seven years of the commencement of trial. O'Malley argues that the judge participated in the case even though the parties did not complete a written remittal of disqualification. O'Malley argues that disqualification can only be waived by a written remittal. Thus, according to O'Malley, there was no effective waiver of disqualification and a new trial is required. We disagree.
The record reveals the following pertinent facts. On March 13, 1989, before trial, the circuit court judge disclosed his previous representation of the FDIC and his involvement in the liquidation of Gateway National Bank. The judge did not disclose how recent his representation of the FDIC was. Both sides indicated orally that they had no objection to the judge continuing in the case.
The case then went to trial. O'Malley did not raise the issue of disqualification during trial, and the judge entered judgment in favor of the FDIC. On January 16, 1990, ten months after the judge disclosed his representation of the FDIC, O'Malley filed a post-trial motion, asking the judge to grant a new trial because the judge had failed to disqualify himself and obtain a written remittal. After the post-trial motion was filed, the judge investigated further and discovered that he had worked on three FDIC cases as an attorney about six years before trial. These cases all involved the liquidation of Gateway National Bank. The judge stated that he had been unaware his representation of the FDIC occurred within seven years of trial.
The judge then disclosed the following additional information to the attorneys:
THE COURT: "Yes, I personally represented the FDIC in all three of those cases.
I can also indicate to you that there was no personal representation by me within the seven-year period, although I must indicateand I am doing this from handwriting on the orders of the proceedings that are within these filesI should also indicate to you that I was a named partner of that firm and everything that had to do with that firm's representation of the FDIC at all times was under my direct supervision. There was no other partner of that law firm that was charged with the responsibility of supervising the FDIC case assigned to that firm at any time.
MR. CHALFEN [counsel for FDIC]: You did not personally appear in court?
THE COURT: Within the seven-year period, to the best of my knowledge, no, but I want to make it clear. Every lawyer who did appear in that court for that law firm within that seven-period would have done so under my direct supervision.
MR. CHALFEN: May I also clarify what your Honor indicated, I believe at the commencement of the trial that you never personally represented the FDIC in its corporate capacity?
THE COURT: No. I represented it only in its capacity as liquidator or receiver of the Gateway National Bank of Chicago * * *."
After a hearing on the post-trial motion, the circuit court held that Rule 63(C)(1)(c) was not violated. The judge concluded that the FDIC in its corporate capacity is a different "party," within the meaning of Rule 63(C)(1)(c), than the FDIC acting in its receivership capacity. Because the judge had not represented the FDIC in its corporate capacity, Rule 63(C)(1)(c) was not violated.
On appeal, the appellate court questioned the circuit court's reasoning. A majority of the appellate court, however, affirmed the circuit court on a different ground. Because the circuit court judge had only exercised a limited supervisory role in the three previous FDIC cases, the majority concluded that the judge had not "represented" the FDIC within the meaning of Rule 63(C)(1)(c).
We do not reach the issues decided by the lower courts. We can affirm the decision below on any ground supported by the record. Under the facts of this case, we find that the circuit court judge disclosed the basis for disqualification before trial and that *830 O'Malley had an opportunity to inquire further. By failing to do so, O'Malley has forfeited his right to raise the issue at this time.
In this case, the circuit court judge disclosed his representation of the FDIC at an early stage. He also stated that his representation of the FDIC was in connection with the liquidation of Gateway National Bank. O'Malley, however, did not pursue the matter further until an unfavorable judgment was entered against him.
In this appeal, O'Malley argues that disqualification can only be waived by written remittal. We disagree. The purpose of Rule 63(C)(1)(c) is to disqualify a judge from further proceedings where that judge may be biased because of his earlier representation of a party. The rule contemplates that the basis for disqualification will be disclosed at an early stage. It is then possible to obtain a substitute judge. Alternatively, the parties and attorneys may sign a remittal, free from the judge's coercion, and agree to let the judge proceed.
In this case, O'Malley seeks to use the rule differently. O'Malley does not seek prospective recusal of the judge; he seeks nullification of the trial. Before O'Malley can seek a new trial, he must show that he did not know the reason for disqualification or have a reason to know. Other courts have adopted similar reasoning. (See, e.g., United States v. Murphy (7th Cir.1985), 768 F.2d 1518; Sacramento & San Joaquin Drainage District v. Jarvis (1959), 51 Cal.2d 799, 336 P.2d 530; Haire v. Cook (1976), 237 Ga. 639, 229 S.E.2d 436; Renforth v. Fayette Memorial Hospital Association, Inc. (1979), 178 Ind.App. 475, 383 N.E.2d 368; Citizens First National Bank v. Hoyt (Iowa 1980), 297 N.W.2d 329.) To hold otherwise would permit a party to await the outcome of a trial and object only when the outcome is unfavorable.
O'Malley suggests that Woods v. Durkin (1989), 183 Ill.App.3d 870, 132 Ill.Dec. 357, 539 N.E.2d 920, requires a different result. In Woods, before trial, the circuit court judge told the parties that his daughter-in-law was an associate in the law firm representing the defendant. The judge told the attorneys that, under the rules, the parties and attorneys would have to execute a signed waiver before he could proceed. The judge, however, obtained an oral waiver of disqualification from the attorneys and then entered an order relating to discovery. The plaintiffs brought a motion to vacate the order because the parties and attorneys had not completed a written remittal. The judge vacated the discovery order and said that he would hear no more motions until a written remittal was completed. On appeal, the appellate court held that the circuit court judge had no discretion to obtain an oral waiver rather than a written remittal. Thus, the attorneys' oral waiver of the disqualification was not sufficient and the discovery order was invalid.
We find no conflict between our reasoning in this case and the appellate court's reasoning in Woods. In Woods, the plaintiffs knew the reason for disqualification and promptly raised the issue of a written remittal before trial. Here, before trial, O'Malley knew the judge had represented the FDIC previously although O'Malley did not know how recent the representation was. O'Malley waited until after trial before determining when the representation occurred. He then argued that the judge should have obtained a written remittal.
We emphasize that judges may not ignore the written remittal requirement and obtain an oral waiver instead of a written one. Where a judge has disclosed his disqualification, he must obtain a written remittal before continuing. Parties, however, must exercise due diligence before they can use the written remittal requirement as the basis for a new trial.
We note that the result could be different in this case if actual prejudice were shown. O'Malley, however, has not shown actual prejudice from the judge's prior involvement with the FDIC, and we find no indication of prejudice from the record. Prejudice is not shown from the mere fact that O'Malley lost at trial. Thus, we will not excuse O'Malley's failure to raise the written remittal requirement earlier.
*831 IV. Section 1823(e)
O'Malley next argues that the lower courts misapplied section 1823(e). In the circuit and appellate courts, the FDIC successfully invoked section 1823(e) to prevent O'Malley from arguing that the guarantee was legally insufficient or had been extinguished. Whether section 1823(e) applies in this case is a question of law, which we review de novo. Federal Deposit Insurance Corp. v. Wright (7th Cir.1991), 942 F.2d 1089, 1097.
Section 1823(e) is based on the doctrine first announced in D'Oench, Duhme & Co. v. Federal Deposit Insurance Corp. (1942), 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956. In D'Oench, the FDIC sued to enforce promissory notes signed by the defendant and found among bank files. The defendant had an agreement with the bank that he would not receive any proceeds from the notes. In return, the bank agreed not to enforce the notes against the defendant. The purpose of this arrangement was to inflate the apparent value of the bank's assets, thus deceiving bank regulators.
The Supreme Court held that the defendant was barred from asserting this arrangement with the bank. The Court discussed the circumstances under which such arrangements would be barred:
"The test is whether the note was designed to deceive the creditors or the public authority, or would tend to have that effect. It would be sufficient in this type of case that the maker lent himself to a scheme or arrangement whereby the banking authority on which respondent relied in insuring the bank was or was likely to be misled." (Emphasis added.) (D'Oench, 315 U.S. at 460, 86 L.Ed. at 963-64, 62 S.Ct. at 681.)
Thus, the Court held that such arrangements would be invalid against the FDIC even if a defendant did not intend to deceive the FDIC.
In 1950, Congress enacted 12 U.S.C. § 1823(e). This Federal statute provides:
"No agreement which tends to diminish or defeat the right, title or interest of the Corporation in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and any person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) shall have been, continuously, from the time of its execution, an official record of the bank." (12 U.S.C. § 1823(e) (1988).)
An agreement that fails to meet all four requirements is barred. (Federal Deposit Insurance Corp. v. Manatt (8th Cir.1991), 922 F.2d 486, 488; Wright, 942 F.2d at 1101.) Agreements that would ordinarily be valid under State law are invalid against the FDIC unless they meet the statutory requirements. Federal Deposit Insurance Corp. v. Powers (N.D.Ill.1983), 576 F.Supp. 1167, 1169, aff'd (7th Cir.1984), 753 F.2d 1076.
The Supreme Court has construed section 1823(e) narrowly. (Langley v. Federal Deposit Insurance Corp. (1987), 484 U.S. 86, 108 S.Ct. 396, 98 L.Ed.2d 340.) In Langley, the FDIC sued to enforce notes signed by the defendants. The Court held that section 1823(e) precluded the defendants from arguing that a bank's fraudulent misrepresentations induced them to sign the notes. The Court adopted a strict construction of the statute and discussed the reasons for the statutory requirements:
"One purpose of § 1823(e) is to allow federal and state bank examiners to rely on a bank's records in evaluating the worth of the bank's assets. Such evaluations are necessary when a bank is examined for fiscal soundness by state or federal authorities [citation], and when the FDIC is deciding whether to liquidate a failed bank [citation], or to provide financing for purchase of its assets (and assumption of its liabilities) by another bank [citation]. The last kind of evaluation, in particular, must be made with great speed, usually overnight, in order to preserve the going concern value of the failed bank and avoid an interruption in banking services.' [Citation.] *832 Neither the FDIC nor state banking authorities would be able to make reliable evaluations if bank records contained seemingly unqualified notes that are in fact subject to undisclosed conditions.
A second purpose of § 1823(e) is implicit in its requirement that the `agreement' not merely be on file in the bank's records at the time of an examination, but also have been executed and become a bank record `contemporaneously' with the making of the note and have been approved by officially recorded action of the bank's board or loan committee. These latter requirements ensure mature consideration of unusual loan transactions by senior bank officials, and prevent fraudulent insertion of new terms, with the collusion of bank employees, when a bank appears headed for failure.
* * * * * *
* * * Petitioners are really urging us to engraft an equitable exception upon the plain terms of the statute. Even if we had the power to do so, the equities petitioners invoke are not the equities the statute regards as predominant. While the borrower who has relied upon an erroneous or even fraudulent unrecorded representation has some claim to consideration, so do those who are harmed by his failure to protect himself by assuring that his agreement is approved and recorded in accordance with the statute. * * *
The short of the matter is that Congress opted for the certainty of the requirements set forth in § 1823(e)." Langley, 484 U.S. at 91-95, 98 L.Ed.2d at 347-49, 108 S.Ct. at 401-03.
V. Application of Section 1823(e)
In this case, O'Malley seeks to avoid application of section 1823(e) entirely. He examines the language of section 1823(e) and argues that the FDIC must first acquire an asset before the statute applies. According to O'Malley, the FDIC has the burden of establishing the existence of an asset before it can invoke the statute. O'Malley presents three separate "no-asset" arguments.
A. Legal Sufficiency of the Guarantee
O'Malley first argues that the guarantee never formed part of the Dine loan transaction. He argues that he left the guarantee with Bekta, to be used only if Dine could not get the loan otherwise. In support of his argument, O'Malley relies on bank records that do not refer to a guarantee. O'Malley contends that it was insufficient for the FDIC to merely show that a document called a "guarantee" existed in the bank files.
As the appellate court noted, O'Malley's argument is very similar to an argument rejected in Powers, 576 F.Supp. 1167. In Powers, the FDIC sued to enforce a guarantee. Although Powers acknowledged signing the guarantee, he argued that he had never agreed to let the bank use the guarantee. When Powers signed the document, he left the remainder of the document blank, to be completed later. The FDIC later found the guarantee among the bank's files. Powers introduced affidavits to prove that the guarantee was not executed in connection with the underlying loan. The court, however, barred Powers' defenses under section 1823(e), finding that Powers relied on an unwritten understanding to undermine a facially sufficient guarantee.
Other courts have barred unwritten understandings arising under similar circumstances. See, e.g., Wright, 942 F.2d 1089 (note maker was barred from asserting that notes found in bank files were not intended to be used until bank approved a line of credit); Federal Deposit Insurance Corp. v. McClanahan (5th Cir.1986), 795 F.2d 512 (the defendant "recklessly" signed a document in blank and thereby lent himself to a scheme that permitted the misrepresentation of assets); Adams v. Madison Realty & Development, Inc. (3d Cir.1991), 937 F.2d 845 (investors who signed unconditional promissory notes could not raise fraud in the inducement as a defense); Federal Deposit Insurance Corp. v. Gardner (S.D.Miss.1985), 606 F.Supp. 1484 (note maker could not assert agreement between bank president and note maker that bank would look solely to a third party for payment of the note).
Ultimately, O'Malley's argument is based on an understanding between O'Malley and *833 Bekta that the guarantee would only be used if Dine could not get the loan on his own. O'Malley signed the guarantee, he left it with a bank director, the FDIC found the guarantee in the files, and O'Malley now argues that the guarantee would not be used unless certain circumstances arose. O'Malley's argument is based on the existence of an unwritten understanding that does not meet the statutory requirements. Once the FDIC found the guarantee in the bank records, it did not have to disregard the facially sufficient guarantee simply because other bank records did not refer to it. See Bowen v. Federal Deposit Insurance Corp. (5th Cir. 1990), 915 F.2d 1013, 1016 (the FDIC "has no duty to compile oral histories of the bank's customers and loan officers" and need not "retain linguists and cryptologists to tease out the meaning of facially-unencumbered notes"); Armstrong v. Resolution Trust Corp. (1993), 157 Ill.2d 49, 191 Ill.Dec. 46, 623 N.E.2d 291 (the borrowers could not avoid section 1823(e) by inferences drawn from bank records); see also Federal Deposit Insurance Corp. v. O'Neil (7th Cir.1987), 809 F.2d 350, 353-54; Federal Deposit Insurance Corp. v. Zook Brothers Construction Co. (9th Cir. 1992), 973 F.2d 1448, 1453; Beighley v. Federal Deposit Insurance Corp. (5th Cir. 1989), 868 F.2d 776, 783-84.
B. Release
O'Malley next argues that he had a release agreement with the Bank that extinguished the guarantee. According to O'Malley, O'Malley and the Bank agreed to end their working relationship in 1979 and exchanged mutual letters of release. The circuit court found that this release agreement did not meet the requirements of section 1823(e). Specifically, the purported release agreement was not approved by the board of directors or loan committee of the Bank. O'Malley argues that the statutory requirements do not apply to the release agreement. According to O'Malley, section 1823(e) does not bar agreements showing that the FDIC never acquired an asset.
Federal courts have rejected O'Malley's argument. (Federal Deposit Insurance Corp. v. P.L.M. International, Inc. (1st Cir. 1987), 834 F.2d 248, 252; Wright, 942 F.2d at 1100-01; Federal Deposit Insurance Corp. v. Merchants National Bank (11th Cir.1984), 725 F.2d 634, 639; Zook, 973 F.2d at 1452-53; Federal Deposit Insurance Corp. v. Waldron (D.S.C.1979), 472 F.Supp. 21, 25) (this "no-asset" argument is "circular" because it requires a defendant to rely on an agreement, barred by the statute, to show that no asset exists); (Federal Deposit Insurance Corp. v. Cover (D.Kan.1988), 714 F.Supp. 455 (an asset shown in the records of the bank remains an asset for purposes of section 1823(e) until the defendants show payment or introduce an agreement meeting the requirements of section 1823(e)).) Section 1823(e) allows the FDIC to rely on facially unqualified instruments contained in bank records. Agreements that defeat these facially unqualified instruments must meet the statutory requirements. To allow O'Malley's defense would render the protection of the statute meaningless. Merchants, 725 F.2d at 639.
O'Malley relies on Commerce Federal Savings Bank v. Federal Deposit Insurance Corp. (6th Cir.1989), 872 F.2d 1240, and Federal Deposit Insurance Corp. v. Prann (D.P.R.1988), 694 F.Supp. 1027, aff'd sub nom. Federal Deposit Insurance Corp. v. Bracero & Rivera (1st Cir.1990), 895 F.2d 824, to support his "no-asset" argument. In those cases, however, the courts found that the underlying debts had been paid. Section 1823(e) does not apply where "the parties contend that no asset exists * * * and that such invalidity is caused by acts independent of any understanding or side agreement." (Emphasis in original.) (Merchants, 725 F.2d at 639.) A party asserting payment as a defense is not relying on a separate agreement to prove the asset invalid. (Federal Deposit Insurance Corp. v. Bracero & Rivera (1st Cir.1990), 895 F.2d 824, 830.) In contrast, O'Malley's release defense is based on an agreement between O'Malley and the Bank.
Federal courts have applied section 1823(e) to bar individuals from asserting release agreements. In P.L.M., 834 F.2d at 252, the court rejected an argument based on similar facts. In that case, the defendants signed a continuing guarantee in favor of the bank. The defendants later obtained a release from *834 the bank, but the guarantee remained in an active collateral file with no notation of cancellation. The FDIC sued to enforce the guarantee, and the defendants offered the release agreement to show that the guarantee had been extinguished before the FDIC took control. The court barred the use of this release agreement because it failed to meet the requirements of section 1823(e). See also Federal Deposit Insurance Corp. v. Rivera-Arroyo (1st Cir.1990), 907 F.2d 1233 (written release agreements did not meet requirements of section 1823(e) and were therefore barred); Manatt, 922 F.2d 486 (the defendant, who had been a stockholder and lawyer for a bank, was barred from asserting an agreement where the notes were in the bank's files and bore no notation of cancellation); Resolution Trust Corp. v. McCrory (5th Cir.1992), 951 F.2d 68 (the defendants could not assert a letter agreement of release even though bank officers testified that they had executed the agreement, two documents in the bank's official files referred to the agreement, and the agreement was kept in the files of the bank's outside attorney); Federal Deposit Insurance Corp. v. Krause (8th Cir.1990), 904 F.2d 463 (the defendants could not assert a settlement agreement with the bank president because the notes were located in the bank's active files, bore no "paid" notation, and the bank's minutes did not reflect approval of this agreement); see also Federal Deposit Insurance Corp. v. Allen (6th Cir.1986), 801 F.2d 863 (written agreement located in the bank's loan file was barred because it did not satisfy all of the statutory requirements).
O'Malley also relies on Federal Deposit Insurance Corp. v. Nemecek (D.Kan.1986), 641 F.Supp. 740, to support his "no-asset" argument. In Nemecek, the court allowed the defendants to introduce an oral accord and satisfaction against the FDIC. In that case, the court held that an oral accord and satisfaction extinguished a note before the FDIC took control of a bank, so section 1823(e) did not apply. O'Malley argues that the same reasoning should apply to his release agreement.
We note that the reasoning in Nemecek has been criticized by other courts. (Federal Deposit Insurance Corp. v. National Consumer Alliance, Inc. (D.Kan.1994), 1994 WL 326064 (noting that Nemecek was decided before the Supreme Court's narrow construction of section 1823(e) in Langley); Cimarron Federal Savings & Loan Association v. McKnight (Okla.App.1992), 840 P.2d 648; Cover, 714 F.Supp. 455.) In Cover, the court stated that to adopt the logic of Nemecek "would destroy the effect and protection of § 1823(e) and hamper the FDIC's ability to follow the purchase and assumption alternative by injecting uncertainty into the valuation of assets." (Cover, 714 F.Supp. at 458.) In addition, the Nemecek reasoning is inconsistent with the reasoning of other courts that have addressed O'Malley's "no-asset" argument. We therefore decline to follow Nemecek.
C. Cancellation
O'Malley next argues that his release defense arises from the instrument the FDIC seeks to enforce. The guarantee explicitly gave the Bank the right to release O'Malley from his obligation. In some instances, Federal courts have held that section 1823(e) does not apply where a defense arises from the instrument the FDIC seeks to enforce.
O'Malley relies on Howell v. Continental Credit Corp. (7th Cir.1981), 655 F.2d 743, and Riverside Park Realty Co. v. Federal Deposit Insurance Corp. (M.D.Tenn.1978), 465 F.Supp. 305, in support of his position. In Howell, Continental Credit Corporation (Continental) and Howell entered into several lease agreements, which imposed obligations on both parties. Continental subsequently breached the agreements. The FDIC later took control of Continental and sought to enforce the leases against Howell. The Seventh Circuit held that the FDIC could not ignore the terms contained on the face of the leases. The court distinguished earlier cases involving "a facially valid note or guarantee imposing a unilateral obligation" to pay. Howell, 655 F.2d at 746.
In Riverside, the FDIC sought to foreclose a deed of trust that specifically incorporated the terms of a loan agreement by reference. Again, the court did not invoke section 1823(e) because the terms of the loan agreement appeared on the deed of trust that the *835 FDIC was trying to enforce. Riverside was therefore allowed to raise breach of the loan agreement as a defense. The court found that section 1823(e) did not apply because "the asset upon which the FDIC is attempting to recover is the very same agreement that the makers allege has been breached." (Emphasis in original.) Riverside, 465 F.Supp. at 313.
In both cases, the court held that the FDIC could not selectively seek to enforce an agreement. The FDIC could not enforce some terms and ignore others that appeared in the same agreement. Here, in contrast, the guarantee did not contain terms that imposed responsibilities on the Bank. The guarantee provided only for the bare possibility that the Bank might issue a release at some point in the future. Thus, the FDIC would not know from a review of the guarantee that such a release existed. (See Federal Deposit Insurance Corp. v. Venture Contractors, Inc. (7th Cir.1987), 825 F.2d 143, 149-50 (refusing to apply Howell to a continuing guarantee that imposed a unilateral obligation to pay); O'Neil, 809 F.2d at 354 (refusing to apply Howell because the note merely referred to a side agreement and did not contain the terms of the side agreement).) In this case, O'Malley relies on a separate release agreement to extinguish the guarantee.
In a related argument, O'Malley contends that the guarantee provides him with the unilateral right to cancel by giving written notice to the Bank. He again argues that this defense arises from the language of the guarantee and is therefore not barred by section 1823(e). O'Malley relies on Federal Deposit Insurance Corp. v. Panelfab Puerto Rico, Inc. (1st Cir.1984), 739 F.2d 26. In Panelfab, the court allowed the defendants to introduce a letter of cancellation because the letter was not part of a separate agreement between the bank and the defendants. But see O'Neil, 809 F.2d 350; P.L.M., 834 F.2d 248; Federal Deposit Insurance Corp. v. Virginia Crossings Partnership (8th Cir.1990), 909 F.2d 306 (cancellation letter barred by section 1823(e)).
Even assuming that section 1823(e) does not apply to this written notice of cancellation, we find that O'Malley never executed a written notice satisfying the terms of the guarantee. The guarantee specifically requires written notice by O'Malley for cancellation. The circuit court found that no evidence had been introduced to show that O'Malley had invoked his right to cancel by written notice. The only written document to the Bank offered by O'Malley was a copy of a letter he purportedly sent to the Bank. The letter purported to release the Bank from its obligations; it did not refer to any obligations O'Malley owed to the Bank. Thus, even if section 1823(e) allows evidence of cancellation by written notice, O'Malley has not shown that he gave written notice.
VI. Constitutionality of Section 1823(e)
O'Malley argues that the lower courts erred in requiring strict compliance with section 1823(e). He contends that those courts should have required only substantial compliance. We find this argument contrary to established law.
O'Malley argues that the release substantially complied with section 1823(e). In this case, the circuit court found that the purported release was not approved by the Bank's board of directors or loan committee and was not reflected in the minutes. O'Malley argues that it should be enough that Geary's authority to issue the release is part of the board minutes. This specific argument has been rejected., Gardner, 606 F.Supp. 1484 (agreement between bank president and note makers was not valid because the agreement was not specifically approved by the board of directors or the loan committee even though the president had the authority to make such an agreement).
In addition, the Supreme Court has emphasized that courts must strictly construe the statute. (Langley, 484 U.S. at 95, 108 S.Ct. at 403, 98 L.Ed.2d at 349.) The equities favor the FDIC and depositors, and Congress has erred on the side of certainty. (Langley, 484 U.S. at 94-95, 108 S.Ct. at 403, 98 L.Ed.2d at 349; see also Wright, 942 F.2d at 1101; Federal Deposit Insurance Corp. v. Caporale (1st Cir.1991), 931 F.2d 1, 2 ("As among borrowers, thrift regulators, depositors, and creditors, the borrower is in the *836 best position to protect himself and must therefore suffer the risk of loss if he fails to ensure that his agreement is properly recorded").) As the appellate court noted, we are not at liberty to rewrite the plain terms of the statute.
O'Malley next contends that section 1823(e), if literally applied, is unconstitutional. O'Malley argues that the statute violates due process, equal protection, and impairs contractual rights. O'Malley, however, provides little support for these arguments and little authority for his reasoning. Courts have consistently rejected similar arguments. Chatham Ventures, Inc. v. Federal Deposit Insurance Corp. (5th Cir.1981), 651 F.2d 355, 362-63; Beighley v. Federal Deposit Insurance Corp. (N.D.Tex.1987), 676 F.Supp. 130, 132-33; Resolution Trust Corp. v. Daddona (3d Cir.1993), 9 F.3d 312, 320-21; Campbell Leasing, Inc. v. Federal Deposit Insurance Corp. (5th Cir.1990), 901 F.2d 1244, 1248; see generally S. Lake, Banking Law: The D'Oench Doctrine and 12 U.S.C. § 1823(e): Overextended, but Not Unconstitutional, 43 Okla.L.Rev. 315 (1990) (discussing constitutional challenges based on taking of property without just compensation, procedural and substantive due process, and right to trial by jury).
VII. Other Issues
In addition to the three issues discussed above, O'Malley has raised the following issues: (4) whether the sale of the Dine notes to LaSalle discharged O'Malley; (5) whether the Bank's continued extensions of credit to Dine discharged O'Malley; (6) whether an alleged settlement between Bekta and the FDIC entitled O'Malley to a setoff; (7) whether the FDIC's alleged release of Bekta operated to partially release O'Malley; and (8) whether the appellate court awarded the appropriate amount of interest to the FDIC. The FDIC argues that these issues have been waived because they were not raised in the petition for leave to appeal. Under Rule 315(b)(3), a petition for leave to appeal shall state "the points relied on for reversal of the judgment of the Appellate Court." (134 Ill.2d R. 315(b)(3).) A party's failure to raise an argument in the petition for leave to appeal may be deemed a waiver of that argument. (Dineen v. City of Chicago (1988), 125 Ill.2d 248, 265-66, 126 Ill.Dec. 52, 531 N.E.2d 347.) Accordingly, we find these additional issues waived and decline to address them.
Finally, we note that the FDIC has cross-appealed the appellate court's award of interest. An examination of the guarantee shows that it fails to specify an interest rate. The circuit court concluded that O'Malley and the Bank intended for the rate in the underlying note to apply to the guarantee. At trial, the FDIC produced testimony concerning the interest rate used in the note. This interest rate was related to Continental Bank's prime rate. The circuit court found that the FDIC testimony failed to disclose the actual rates used or the source of these rates. The circuit court, however, found that interest could be supported by other evidence produced at trial. The trial balance of the Bank on April 28, 1983, which showed the total interest due on Dine's notes, had been introduced as a business record. The circuit court therefore based its interest calculation on this balance. It did not award any interest after April 28 because the FDIC failed to prove the interest due under the guarantee. The appellate court agreed with the procedure used but found that the calculation was incorrect. It therefore modified the amount of interest awarded. After reviewing the record, we find no error in the appellate court's award of interest.
For the foregoing reasons, the judgment of the appellate court is affirmed.
Affirmed.
Chief Justice BILANDIC, dissenting:
The majority opinion is fatally flawed by its erroneous application of section 1823(e) to the facts of this case. O'Malley's guarantee was discharged by mutual releases exchanged between O'Malley and the Bank. The FDIC has no authority to enforce a nonexistent guarantee. For this reason, I respectfully dissent.
Section 1823(e) provides that the rights and interests of the FDIC in assets acquired from a bank pursuant to its statutory duties cannot be diminished or defeated by agreements *837 that do not meet certain requirements. (12 U.S.C. § 1823(e) (1988).) This section was enacted to protect the FDIC from secret agreements, and deceptive schemes or arrangements, between a bank and an obligor, which tend to misrepresent a bank's assets and ultimately mislead the FDIC. See Langley v. Federal Deposit Insurance Corp. (1987), 484 U.S. 86, 92-93, 108 S.Ct. 396, 401-02, 98 L.Ed.2d 340, 347-48; Commerce Federal Savings Bank v. Federal Deposit Insurance Corp. (6th Cir.1989), 872 F.2d 1240, 1245; Armstrong v. Resolution Trust Corp. (1993), 157 Ill.2d 49, 61-62, 191 Ill.Dec. 46, 623 N.E.2d 291.
Section 1823(e), by its own terms, is not applicable under the facts of this case. Section 1823(e) applies only to assets acquired by the FDIC in a takeover. It does not apply to situations where no asset exists because it has been extinguished prior to the FDIC's takeover of the bank. See Commerce Federal Savings Bank v. Federal Deposit Insurance Corp. (6th Cir.1989), 872 F.2d 1240; Federal Deposit Insurance Corp. v. Prann (D.P.R.1988), 694 F.Supp. 1027, aff'd (1st Cir.1990), 895 F.2d 824.
In this case, the guarantee that O'Malley executed in 1975 did not exist and thus was not an asset of the Bank at the time the FDIC acquired the Bank's assets. Approximately four years before the FDIC took over the Bank, O'Malley received a written release from the Bank, signed by its president, which released O'Malley from all obligations owed to the Bank. In consideration for this release, O'Malley released the Bank from any obligations it owed to him. Section 1823(e) does not apply to the facts here because O'Malley's release was not a secret agreement designed to deprive the FDIC of an otherwise valid asset. Rather, the release demonstrates that the guarantee was not an asset of the Bank at the time the FDIC took over the Bank. Thus, the majority incorrectly applies section 1823(e) in this case to prevent an innocent party from asserting a valid release.
Several courts have recognized that section 1823(e) does not apply under circumstances such as those at issue here.
In Commerce, a deed of trust was executed as security for a loan. The deed of trust contained a clause covering future debts. The balance of the loan was subsequently paid, and the bank orally agreed to release the deed of trust. Meanwhile the bank failed and the FDIC was appointed as receiver of its assets. The FDIC acquired various assets of the failed bank, including the deed of trust and a second promissory note. The FDIC refused to release the deed of trust, contending that the second promissory note was secured by the deed of trust. The FDIC argued that the oral agreement to release the deed was barred by section 1823(e). The Sixth Circuit rejected the FDIC's position and held that the deed of trust was not an asset acquired by the FDIC. (Commerce, 872 F.2d at 1246.) The court concluded that the original loan had been satisfied before the FDIC's involvement and that the oral agreement to release the trust deed was enforceable and not barred by section 1823(e). Commerce, 872 F.2d at 1246.
Similarly, in Prann, the FDIC sought to recover on a promissory note. The court held that section 1823(e) was not applicable because the debt underlying the note was satisfied before the FDIC acquired the bank's assets. (Prann, 694 F.Supp. at 1037.) Consequently, the note was not an asset protected by section 1823(e).
The majority opinion attempts to distinguish Commerce and Prann by pointing out that the underlying debts had been paid, whereas in the instant case O'Malley relies on a release. The majority fails to comprehend that an obligation can be discharged in a number of ways, including obtaining a valid release. Consequently, the fact that the methods of discharge differed in those cases and the instant case is insignificant. Nonetheless, it is significant that full payment in Commerce and Prann and full release of O'Malley in the instant case both occurred prior to the FDIC's acquisition of any assets. By discharging the release prior to the FDIC's takeover of the Bank, the guarantee did not exist as an asset.
For the reasons stated, the FDIC had no authority to consider the guarantee as an asset of the Bank. Since it was not an asset *838 of the Bank, it could not be enforced against O'Malley. Accordingly, I dissent from the majority's decision.
Justice HARRISON, also dissenting:
The circuit judge admitted that he represented the FDIC within seven years of the commencement of trial. Under the clear and unambiguous language of Rule 63(C)(1)(c) (113 Ill.2d R. 63(C)(1)(c)), the judge could not sit on the case and was required to disqualify himself. (See Woods v. Durkin (1989), 183 Ill.App.3d 870, 874, 132 Ill.Dec. 357, 539 N.E.2d 920.) Although Rule 63(D) (113 Ill.2d R. 63(D)) has a provision for remittal of disqualification, there is no dispute that the requirements of that provision were not satisfied here. O'Malley is therefore entitled to a new trial.
The majority denies this relief on the theory that O'Malley failed to exercise due diligence. Such a position is untenable as a matter of law. Under the system we have fashioned, the burden of insuring compliance with the rules governing disqualification lies with the judge, not the litigants. If a judge is disqualified under Rule 63(C)(1)(c), he must remove himself from the case. The matter is not discretionary, and does not depend on action by the parties. Judges are expected to recognize on their own when they should refrain from hearing a case. It could not be otherwise, for often the judge will be the only one in the courtroom who knows of the facts that disqualify him.
The terms of our disqualification rules are clear and absolute. Once disqualified, a judge remains disqualified unless the requirements of the remittal provision are satisfied. (See Woods, 183 Ill.App.3d at 874, 132 Ill.Dec. 357, 539 N.E.2d 920.) There are no exceptions, and the rule is not subject to waiver by oral agreement of counsel. (See Woods, 183 Ill.App.3d at 875, 132 Ill.Dec. 357, 539 N.E.2d 920.) If the judge wants to hear the case, it is up to him to obtain the necessary written agreement. (113 Ill.2d R. 63(D).) The rule provides that he may ask the parties and their attorneys to consider waiver of disqualification. It does not obligate the parties or their attorneys to ask that he ask or to otherwise police his judicial responsibilities.
The majority's position must also fail on the facts. O'Malley could not have pursued the matter of disqualification sooner because he did not know about it. As the appellate court noted, O'Malley was not in court when the judge disclosed his representation of the FDIC, and O'Malley's attorney never discussed waiver of any conflict of interest with him. (249 Ill.App.3d at 361, 188 Ill.Dec. 248, 618 N.E.2d 818.) That O'Malley's attorney knew of the judge's connection to the opposing party is of no consequence. Under the express terms of Rule 63(D), agreement of counsel is insufficient. The parties themselves must agree to remittal of the disqualification in order for it to be effective. O'Malley did not so agree. The circuit judge was therefore prohibited from hearing the case. Accordingly, I dissent.
|
720 N.W.2d 904 (2006)
14 Neb. App. 956
Timothy WESTON, appellant,
v.
CONTINENTAL WESTERN INSURANCE COMPANY, appellee.
No. A-04-1185.
Court of Appeals of Nebraska.
August 29, 2006.
*905 David J. Cullan, Omaha, for appellant.
Stephanie Frazier Stacy, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellee.
IRWIN, MOORE, and CASSEL, Judges.
IRWIN, Judge.
I. INTRODUCTION
Timothy Weston appeals an order of the district court for Box Butte County, Nebraska, which granted summary judgment in favor of Continental Western Insurance Company (Continental) on Weston's complaint to recover uninsured motorist benefits. On appeal, Weston challenges the district court's holding that Weston is statutorily prohibited from "stacking" multiple uninsured motorist coverages. We find no error in the district court's legal conclusions, and we affirm the court's grant of summary judgment in favor of Continental.
II. BACKGROUND
1. FACTUAL AND PROCEDURAL BACKGROUND
On June 1, 2002, Weston was a passenger in a vehicle owned and operated by an uninsured motorist. On that date, the uninsured motorist "lost control of his vehicle [and] proceeded ... into the ... ditch and rolled. All passengers, including [Weston], were ejected." Weston alleged *906 that he suffered personal injuries as a result of the accident.
The record indicates that on the date of the accident, Weston had two separate potentially applicable insurance policies, each from a different insurance company. First, Weston was insured by a personal automobile policy with Farmers Insurance Group (Farmers), which policy included uninsured motorist coverage with a policy limit of $100,000. Second, Weston was insured by a "contractors policy" with Continental, which policy also included uninsured motorist coverage with a policy limit of $100,000.
Following the accident, Weston made a claim for uninsured motorist benefits with Farmers and reached a settlement which included payment of $100,000 in uninsured motorist benefits. On December 9, 2003, Weston filed a complaint against Continental seeking additional uninsured motorist benefits pursuant to Weston's policy with Continental. On March 12, 2004, Continental filed an answer in which, inter alia, Continental alleged that Weston had already received the maximum uninsured motorist benefit to which he was legally entitled and that the uninsured motorist coverage in the Continental policy did not cover the accident.
On May 6, 2004, Continental filed a motion for summary judgment. In support of the motion, Continental offered, and the court received, a copy of the complaint, a copy of the answer, and a copy of Weston's answers to requests for admissions. Weston offered no evidence in opposition to the motion, although he did file a written response to the motion on May 13. Additionally, Weston raised various constitutional issues, including unlawful taking and alleged unconstitutionality of various statutes. None of the constitutional issues has been raised on appeal.
On October 13, 2004, the district court filed a journal entry sustaining Continental's motion for summary judgment. The court held that Weston was prohibited from "stacking" his uninsured motorist coverages from Farmers and Continental. The court specifically held that the maximum uninsured motorist benefit to which Weston was entitled was $100,000 because that sum was the highest limit of either individual potentially applicable policy, that Weston had already received $100,000 from Farmers, and that Continental was entitled to summary judgment because Weston had already received the maximum uninsured motorist benefit to which he was entitled. This appeal followed.
2. WESTON'S RECORD ON APPEAL
As noted above, the only evidence presented to the district court for resolution of the summary judgment motion was the three exhibits offered by Continental: the complaint, the answer, and Weston's answers to requests for admissions. Weston offered no evidence in opposition to the motion for summary judgment, and neither party offered a copy of the Continental policy at issue.
Nonetheless, Weston attached to his appellate brief an "appendix" consisting of four pages which appear to be an excerpt from the Continental policy. Weston also filed, on February 14, 2005, a praecipe for a supplemental transcript, in which he requested a supplemental transcript to include "the following additional pleading with attached Exhibits A and B: 7. Plaintiff's Request for Admission (with Exhibit A and Exhibit B attached thereto)." (Emphasis omitted.) The supplemental transcript prepared in response to this praecipe includes requests for admissions served by Weston on Continental, seeking Continental's admissions to various matters, and also includes what appears to be a copy of the Continental policy. The *907 portion of the supplemental transcript which appears to be a copy of the Continental policy totals more than 130 pages. All contents of the supplemental transcript bear file stamps indicating that the documents were filed with the district court on February 14, approximately 4 months after the district court rendered its judgment.
Weston's counsel conceded during oral argument that the materials in the supplemental transcript are not properly considered part of the record on appeal. As the parties recognized during oral argument, the Nebraska Supreme Court has held that evidence to be considered on appeal from a summary judgment must be properly marked, offered, and accepted by the trial court as evidence and made a part of the bill of exceptions to be properly considered part of the record on appeal. See, Zannini v. Ameritrade Holding Corp., 266 Neb. 492, 667 N.W.2d 222 (2003); Rath v. Selection Research, Inc., 246 Neb. 340, 519 N.W.2d 503 (1994). Simply filing documents after a hearing on summary judgment does not make the documents a proper part of the record on appeal and does not provide a basis for the appellate court to consider materials that were never offered to the trial court. See Rath v. Selection Research, Inc., supra. "[E]xhibits which were not `offered, marked, or received by the trial judge at the summary judgment hearing ... may not be considered on appeal.'" Zannini v. Ameritrade Holding Corp., 266 Neb. at 498, 667 N.W.2d at 229, quoting Rodriguez v. Nielsen, 259 Neb. 264, 609 N.W.2d 368 (2000).
III. ASSIGNMENT OF ERROR
Weston's sole assignment of error on appeal is that the district court erred in granting Continental's motion for summary judgment.
IV. ANALYSIS
1. STANDARD OF REVIEW
Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Id.
2. HISTORICAL DEVELOPMENT OF NEBRASKA LAW CONCERNING "STACKING"
The issue raised by Weston in this appeal is whether the trial court correctly interpreted Nebraska statutory law as prohibiting the "stacking" of uninsured motorist coverages from two separate insurance policies. Resolution of that issue would benefit from a brief review of the historical development of Nebraska law concerning uninsured motorist coverage and "stacking."
The meaning of the term "stacking" was set forth in a clear and concise fashion in the dissenting opinion in Charley v. Farmers Mut. Ins. Co., 219 Neb. 765, 366 N.W.2d 417 (1985). The dissent noted:
The term "stacking" refers to an insured's attempt to recover damages under more than one policy, endorsement, or coverage "`by placing one policy, endorsement, or coverage, etc. upon another and recovering from each in succession until either all of his damages are *908 satisfied or until the total limits of all policies, endorsements, coverages, etc. are exhausted, even though the insured has not been fully indemnified.'"
Id. at 772, 366 N.W.2d at 422 (White, J., dissenting), quoting Lopez v. Foundation Reserve Ins. Co., Inc., 98 N.M. 166, 646 P.2d 1230 (1982).
Prior to 1986, Nebraska law required insurers to offer uninsured motorist coverage to insureds, but did not include any specific statutory provision addressing the issue of stacking such coverage. See, Neb. Rev.Stat. § 60-509.01 (Reissue 1978); Charley v. Farmers Mut. Ins. Co., supra. The Nebraska Supreme Court recognized as much in Charley. In Charley, the issue was whether a deceased's estate could stack two uninsured motorist provisions contained within a single policy but covering two vehicles and for which the insureds had paid separate premiums. The court held, "Section 60-509.01 neither require[d] nor prohibit[ed] the aggregation of multiple uninsured motorist coverages." Charley v. Farmers Mut. Ins. Co., 219 Neb. at 769, 366 N.W.2d at 421. "There [was] no language which require[d] that multiple uninsured motorist coverages, once provided, be aggregated no matter what the policy says with respect to the matter. Neither [was] there language which prohibit[ed] the aggregation of the uninsured motorist coverages provided." Id. at 770, 366 N.W.2d at 421.
In Kracl v. Aetna Cas. & Surety Co., 220 Neb. 869, 374 N.W.2d 40 (1985), the Nebraska Supreme Court again concluded that the statutes then in effect did not specifically address stacking. The court noted that its decision in Charley shifted the focus from looking "to the spirit of the law in interpreting various uninsured motorist provisions" to instead "interpreting insurance contracts under the letter of the law." Kracl v. Aetna Cas. & Surety Co., 220 Neb. at 874, 374 N.W.2d at 44. Prior to Charley and Kracl, the court had viewed § 60-509.01 "as remedial in nature" and had construed the statute broadly "to benefit the innocent victim of the financially irresponsible uninsured motorist." Kracl v. Aetna Cas. & Surety Co., 220 Neb. at 874, 374 N.W.2d at 44. As such, in prior cases, the court had viewed stacking as a reasonable expectation of coverage and had allowed stacking "in an attempt to more fully compensate the victim for his injuries at the hands of an uninsured motorist." Id.
In 1986, the Nebraska Legislature passed 1986 Neb. Laws, L.B. 573. L.B. 573 created Nebraska's version of the Underinsured Motorist Insurance Coverage Act and included specific statutory provisions addressing stacking of underinsured motorist coverages. See Neb.Rev.Stat. §§ 60-579 and 60-580 (Reissue 1988). Section 60-579 specifically provided that "the limits of liability for underinsured motorist coverage for two or more motor vehicles insured under the same policy or separate policies shall not be added together, combined, or stacked to determine the limit of insurance coverage available to an injured person for any one accident." Section 60-580(1) specifically provided that "[i]n the event an insured [was] entitled to underinsured motorist coverage under more than one policy ... the maximum amount an insured may recover shall not exceed the highest limit of any one such policy."
In 1994, the Nebraska Legislature passed 1994 Neb. Laws, L.B. 1074. See Neb.Rev.Stat. §§ 44-6401 through 44-6414 (Reissue 2004). L.B. 1074 created Nebraska's version of the Uninsured and Underinsured Motorist Insurance Coverage Act and made various statutory provisions previously applicable to just the uninsured or the underinsured applicable to both. *909 Relevant to the present case, § 44-6410 specifically provides:
Regardless of the number of vehicles involved, persons covered, claims made, vehicles or premiums shown on the policy, or premiums paid, the limits of liability for uninsured or underinsured motorist coverage for two or more motor vehicles insured under the same policy or separate policies shall not be added together, combined, or stacked to determine the limit of insurance coverage available to an injured person for any one accident except as provided in section 44-6411.
Section 44-6411(1) specifically provides. "In the event an insured is entitled to uninsured or underinsured motorist coverage under more than one policy of motor vehicle liability insurance, the maximum amount an insured may recover shall not exceed the highest limit of any one such policy."
In Nicholson v. General Cas. Co. of Wis., 255 Neb. 937, 587 N.W.2d 867 (1999), the Nebraska Supreme Court recognized that the plain language of § 60-580(1) (Reissue 1993) concerning underinsured motorist coverage, which language had not changed since its 1986 inception as set forth above and is now codified at § 44-6411(1) concerning both uninsured and underinsured motorist coverage, limited an insured's recovery to the highest limit of any applicable policies. The court noted that
even if payment of the full amount of [the highest limit set forth in one of the applicable policies] did not result in full compensation, [the insured] would have no right to recover under [another policy] because he would have already received the maximum underinsured motorist recovery permitted ... i.e., the highest limit of the two applicable policies.
Nicholson v. General Cas. Co. of Wis., 255 Neb. at 941, 587 N.W.2d at 870.
3. APPLICATION AND RESOLUTION
In the present case, Weston alleges that the trial court erred in relying on §§ 44-6410 and 44-6411 to find that stacking of Weston's uninsured motorist coverages was prohibited, because Weston's insurance policy with Continental did not contain any specific restrictions to prevent stacking and did not specifically reference §§ 44-6410 and 44-6411. Weston argues that the language of the Continental policy clearly and unambiguously provides that Continental will pay damages to which Weston is legally entitled. As such, Weston argues that the trial court erred in granting summary judgment in favor of Continental. We disagree.
Initially, as noted above, the actual policy at issue in this case is not properly in the record presented by Weston on appeal. Neither party offered the Continental policy as evidence at trial, and the policy was not before the trial court when that court ruled on Continental's motion for summary judgment. The pleadings establish that the policy included a provision for uninsured motorist coverage, with a limit of $100,000. Weston admitted that he had uninsured motorist coverage, with a limit of $100,000, under a separate policy with Farmers and that he had previously negotiated a settlement with Farmers and received a $100,000 payment under that policy, reaching its limit.
For purposes of our discussion, we cannot conclude that the Continental policy contains no restrictions against stacking, and we cannot simply accept the various quotations, allegedly from the policy language, interspersed throughout Weston's appellate brief as being accurate reflections of the actual language of the policy. Weston failed to introduce the policy into *910 evidence and thereby failed to make a proper record for our consideration of the actual policy language on appeal. Even assuming, however, that the policy simply provides uninsured motorist coverage with a limit of $100,000 and makes no specific representations either allowing or prohibiting stacking of the coverage with any other policy or uninsured motorist coverage, we conclude that the trial court correctly concluded that stacking is prohibited by §§ 44-6410 and 44-6411.
As set forth above, there was a time when the Nebraska Supreme Court specifically recognized the lack of any statutory directive concerning stacking of uninsured motorist coverages. See, Kracl v. Aetna Cas. & Surety Co., 220 Neb. 869, 374 N.W.2d 40 (1985); Charley v. Farmers Mut. Ins. Co., 219 Neb. 765, 366 N.W.2d 417 (1985). Subsequent to that recognition, however, the Nebraska Legislature enacted specific prohibitions against stacking of underinsured motorist coverages, and those specific prohibitions now apply to both uninsured and underinsured motorist coverages. See, § 44-6410; Nicholson v. General Cas. Co. of Wis., 255 Neb. 937, 587 N.W.2d 867 (1999). The plain language of §§ 44-6410 and 44-6411 indicates that stacking of uninsured motorist coverages is prohibited and that an insured's maximum recovery of uninsured motorist benefits is the highest limit of any one applicable policy.
Applying past cases and the plain language of §§ 44-6410 and 44-6411 to the facts of Weston's case leads us to conclude the trial court correctly concluded that Weston was not entitled to stack his uninsured motorist coverages, that Weston had already received his maximum recovery for uninsured motorist benefits, and that Continental was entitled to summary judgment. Again, §§ 44-6410 and 44-6411 clearly indicate that an insured may not stack multiple uninsured motorist coverages and that an insured's maximum recovery for uninsured motorist benefits is the highest limit of any one applicable policy. The evidence offered by Continental indicates Weston has admitted that both policies had identical limits of $100,000 for uninsured motorist benefits and that he had previously negotiated a settlement and received benefits of $100,000 under the uninsured motorist coverage of the Farmers insurance policy. As such, Weston would not be entitled to any uninsured motorist benefits from Continental. See Nicholson v. General Cas. Co. of Wis., supra.
Finally, we note Weston devotes a significant portion of his brief on appeal to arguing the longstanding propositions in Nebraska that an insurance carrier and its insured are free to contract for more favorable coverage than the minimum required by law, that policies must be interpreted according to their plain language absent ambiguities, and that public policy should favor promoting trust and goodwill by not imposing restrictions on insurance policies that are not clearly set forth in the policies' language. We agree with all of these propositions, but find none of them to have an impact on the resolution of this case.
As Weston notes, § 44-6413(4) specifically authorizes insurers and insureds to negotiate "coverage under terms and conditions more favorable to [the] insured or in limits higher than are required by the act." This court has recognized that "[t]his provision necessarily suggests, and common sense dictates, that insurers may not issue policies which carry terms and conditions less favorable to the insured than those provided in the act." American States Ins. v. Farm Bureau Ins., 7 Neb.App. 507, 517, 583 N.W.2d 358, 365 (1998). However, as already established, *911 §§ 44-6410 and 44-6411 specifically provide that stacking of uninsured motorist coverages is prohibited. Although § 44-6413(4) would certainly allow an insurer and its insured to negotiate more favorable coverage and would arguably allow for such stacking to be negotiated, there is nothing in the record presented on appeal to suggest that any such negotiation occurred in this case. See Nicholson v. General Cas. Co., supra (noting that statutes did not prohibit coverage more favorable than terms required by statutes, but recognizing that policy contained no indication that such coverage was intended). There is nothing in the record presented by Weston on appeal to indicate that any plain language in the Continental policy would suggest that the parties negotiated to allow stacking.
Further, the Nebraska Supreme Court has previously held that there is no public policy requiring stacking. See Kracl v. Aetna Cas. & Surety Co., 220 Neb. 869, 374 N.W.2d 40 (1985). As the Nebraska Supreme Court has recognized, because the law allows insurers and insureds to negotiate more favorable coverage than the minimums required by law, if the effect of denying stacking results in an insured's receiving less than complete recovery for his injuries, public policy is not violated. See id. It is merely a fact that the insured purchased coverage which was less than adequate to cover the loss. See id.
V. CONCLUSION
Nebraska's Uninsured and Underinsured Motorist Insurance Coverage Act prohibits stacking of uninsured motorist coverages and provides that the maximum recovery to which an insured is entitled is the highest limit of any one applicable policy. In this case, the trial court did not err in concluding that Weston had already received the maximum recovery to which he was entitled and in granting summary judgment in favor of Continental. The trial court's judgment is affirmed.
AFFIRMED.
|
381 U.S. 275 (1965)
HOWELL
v.
OHIO.
No. 789.
Supreme Court of United States.
Decided May 17, 1965.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO.
Bernard A. Berkman for petitioner.
Thomas H. Sutherland for respondent.
PER CURIAM.
The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the Supreme Court of Ohio for further consideration in light of Griffin v. California, 380 U. S. 609.
THE CHIEF JUSTICE took no part in the consideration or decision of this case.
|
19 B.R. 671 (1982)
In re Richard Russell SYLVESTER and Irene Lehman Sylvester, Debtors.
Richard Russell SYLVESTER and Irene Lehman Sylvester, Appellants,
v.
DOW JONES AND COMPANY, INC., Financial Collection Agencies Ltd. of California, and Tait Appraisal Company, Appellees.
BAP No. CC-81-1058HKV.
United States Bankruptcy Appellate Panels of the Ninth Circuit.
Argued October 22, 1981.
Decided February 9, 1982.
*672 Richard R. Sylvester, Culver City, Cal., for appellants.
Marshall Goldberg, Tilles, Greenberg & Webb, Los Angeles, Cal., for Tait Appraisal.
Rex S. Heinke, Gibson, Dunn & Crutcher, Los Angeles, Cal., for Dow Jones and Co., Inc.
Before HUGHES, KATZ and VOLINN, Bankruptcy Judges.
OPINION
HUGHES, Bankruptcy Judge:
Richard Sylvester appeals from two orders, one determining the amount of a claim and other finding him ineligible for relief under Chapter 13 of the Bankruptcy Code. He does not challenge the fact his case was converted to Chapter 7 rather than dismissed. We affirm both orders.
I
In seeking relief under Chapter 13, Mr. Sylvester conceded he had non-contingent and liquidated unsecured debt of $93,311 in addition to "unliquidated and disputed" debt of $307,057. He also conceded that he would be ineligible for Chapter 13 relief if his non-contingent, liquidated unsecured debt exceeded $100,000 as of the commencement of his case. 11 U.S.C. § 109(e).
After considering a series of defenses, counter-claims and cross claims, the bankruptcy court fixed the claim held by the assignee of Dow Jones and Company, Inc., publisher of the Wall Street Journal, in the amount of $105,688. By a separate order, the court found Sylvester ineligible for Chapter 13. Sylvester appeals both orders.
As to the second order, he argues: 1. The Dow Jones claim was unliquidated on the date of filing of the petition because it was disputed and because it was subject to offsets and counterclaims. 2. The order establishing the amount of Dow Jones' claim liquidated the debt as of the date of the order, not the date of filing. We turn first to the appeal of this order.
II
The controlling statutory provision is 11 U.S.C. § 109(e): "Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $100,000 . . . may be a debtor under chapter 13 of this title."
A.
Although the Code does not define either contingent or liquidated, it does define claim in 11 U.S.C. § 101(4)(A) as a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured . . ." A debt is the liability on a claim. 11 U.S.C. § 101(11).
It is thus apparent that, under the Bankruptcy Code and for purposes of Chapter 13 eligibility, (1) the words disputed, *673 contingent and unliquidated have different meanings, and (2) that disputed unsecured debt is not excluded when determining whether the $100,000 limitation is exceeded. Put differently, the quoted sections evidence Congressional intent to make individuals who owe, at the commencement of the case, unsecured debt in excess of $100,000 ineligible for Chapter 13 even though the debtor disputes all or part of that indebtedness. Only contingent or unliquidated debt is excluded from the computation.
It is also apparent that the court must determine the liquidated amount of any disputed claim prior to making the computation required by section 109(e). Otherwise, the federal court jurisdiction would depend on the accuracy and good faith of both creditors and debtors. Experience teaches that accuracy, at least, is elusive.
This, of course, is what the trial court did and, in our view, the only thing it could do.
B.
Sylvester argues, however, that the fact the judge had to take evidence demonstrates that, until then, the claim was unliquidated. This argument has superficial appeal because it is customary to speak of a trial as liquidating a claim. However, there are different uses of the term by the courts, particularly in the field of bankruptcy. A meaning that is consistent with the Code is found in a Bankruptcy Act case, In re Bay Point Corp., 1 B.C.D. 1635 (D.N.J.1975):
The concept of liquidation has been variously expressed. The common thread . . . has been ready determination and precision in computation of the amount due. . . . Some cases have stated the test as whether the amount due is capable of ascertainment by reference to an agreement or by simple computation.
Under this approach, contract debts (even though disputed) are considered liquidated and tort claims are not. "[T]he theory on which claims have been held insufficient is that they were open, unliquidated claims (e.g., tort or quantum meruit claims requiring proof as to liability, reasonable value, damages, etc.) which by their very nature are not fixed until juridical award to fix liability and amount." Denham v. Shellman Grain Elevator, Inc., 444 F.2d 1376, 1380 (5th Cir. 1971).
Dow Jones' claim was readily ascertainable in at least three ways: first, from the underlying contract coupled with knowledge of the orders placed; second, from the invoices; and third from the cumulative monthly billings, which the court found to be an account stated. We conclude that the claim was liquidated on the date of bankruptcy even though disputed.
C.
Sylvester also urges that this counter claim against the assignee for abuse of process and against Dow Jones for violation of antitrust laws rendered the claim unliquidated until after trial. We disagree. As was held in Thomas v. Youngstown Sheet and Tube Co., 211 F.Supp. 187, 192 (10th Cir. 1962), aff'd 327 F.2d 667 (10th Cir. 1964), the "fact that the respondent may have defenses or counterclaims against the claimant would not affect the note's character as liquidated . . ." The court observed that defenses or counterclaims would affect allowance of the claim on its merits and concluded: "The present determination is threshold in nature. It is not essential to pass on its merits."
Accordingly, even if Sylvester had a valid counterclaim for more than the amount of Dow Jones' claim, he could not qualify for Chapter 13 because the liquidated claim (although subject to offsets) was in excess of $100,000.
In summary, the Dow Jones claim was liquidated on the date of filing because it was based on contract and the amount of the claim was readily ascertainable; the fact the claim was disputed was not relevant for purposes of section 109(e), and the fact it was subject to defenses and counterclaims was likewise not relevant. The fact that, after trial, the claim was allowed in the amount prayed did no morefor purposes of section 109(e)than confirm the amount of the claim.
The bankruptcy court in In re King, 9 B.R. 376, 7 B.C.D. 395, 396 (Bkrtcy.D.Or. *674 1981) held that "a debt is not liquidated if there is a substantial dispute regarding liability or amount." We believe this definition has the effect of excluding disputed claims from section 109(e) computation, contrary to the express language of the section.
III
The major assertions of error as to the order allowing the Dow Jones claim are two: the court's findings of fact and its refusal to qualify Sylvester as an expert witness during the antitrust case. Appellant has failed to demonstrate that the court's findings are clearly erroneous. Bankruptcy Rule 810. Nor are we able to find that the court abused its discretion in ruling that appellant was not an expert on antitrust matters. United States v. Hearst, 412 F.Supp. 893 (N.D.Cal.1976). We are not persuaded by appellant's other citations of error.
Affirmed.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-6758
ANTHONY GRANDISON; STEVEN H. OKEN; JOHN BOOTH-
EL; WESLEY EUGENE BAKER, et al., Plaintiffs,
Prisoners of the Maryland Correctional Adjust-
ment Center, under a sentence of death, on
behalf of themselves and all others similarly
situated,
Plaintiffs - Appellants,
versus
UNITED STATES OF AMERICA; WILLIAM J. CLINTON,
President, United States of America; JANET
RENO, Attorney General of the United States of
America; LYNNE ANN BATTAGLIA, United States
Attorney for Maryland; EUGENE M. NUTH, Warden,
Maryland Correctional Adjustment Center, et
al., Defendants, sued in their official
capacities,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-
97-1396-S)
Submitted: June 30, 1998 Decided: August 7, 1998
Before MURNAGHAN, WILKINS, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Anthony Grandison, Steven H. Oken, John Booth-El, Wesley Eugene
Baker, Appellants Pro Se. Lynne Ann Battaglia, United States
Attorney, Andrea L. Smith, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Appellants, Maryland inmates under death sentences, appeal the
district court’s order dismissing this action seeking a declaratory
judgment and injunctive relief and challenging the constitutional-
ity of Chapter 154 of the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. Each Appellant
has, or will have, pending in the district court a 28 U.S.C.A.
§ 2254 (West 1994 & Supp. 1998) petition. Their respective en-
titlement to habeas corpus relief is the underlying case or contro-
versy. A judgment in the subject action “would not resolve the
entire case or controversy as to any one of them, but would merely
determine a collateral legal issue governing certain aspects of
their pending or future suits.” Calderon v. Ashmus, 118 S.Ct. 1694,
1699 (1998). The Supreme Court in Calderon ruled that such an
action is not a justiciable case under U.S. Const. art III. See id.
at 1698-99.
We accordingly grant in forma pauperis status and affirm. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
3
|
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
.
AUSTIN
-c.-
--.-
~o;crable' Robert F. P&en, Jr.
county Attoriloy
~ata~:orda County
COYCity, Texas
:ear sir:
authority to ron-
11 be seeen t&it,. in the case Y:Q
the Sm*iay upon v;hich the pro-
tad w;:as in the very
Sunday i3zgediutely follo~?:ing or sucoccdi>g tho
0xpiratIon of the roguli-r tom,
w>ioithr:l* or the st:i,tuteo above quoted - and
via baliova t'hey cre all the lnvr enuctcd in this
..
,orable Robert F. Pedon, Jr., PaSo 2
state bearing directly upon the oubject - tend
to throw sny light upon the quastlon before
We turn, therefore, to the oommon law,
%ause our statute further provides that
Menover it is found that this Co:e fail:
to provldo a rule of procedure in any psrtiou-
lar atate of case whioh may arise, and is,
therefore, defeative, ths rules or the com-
mon lax shall be applied and govern.’ Past.
Dig. 8 Art, 2493,
‘“The subJect is thoroughly and ably dis-
cussed in Baxter v. The People, 3 Ill. (Gilm.)
384, 385, -3’e take the liberty of quot-
i’ng’fully from the opinion of Caton, J., de-
livered in that case, He says: *Had tho
court the rim to receive the vcrdiot and
pivnounoo judgment .on Sunday? That courts
ha-fe no right to pronounce a judgment, or do ~.
any~other- aot strictly judicial, on Sunday,
unless expressly authorized by statute,
aeems to be too well settled to admit of
doubt. bv the decisions in En&and and in
. this country. The leading oaee on this sub-
ject is that of Sv.xnn v. ilroxn, 3 Burr,. 1595,
where it was helwthe court of Kina’s
Benoh that the court o ouldnot sit on Sunday
and give a valid: ju-?gment, it not being a
judicial day. It appears that anoiently,
among Christians, courts did sit on Sunday,
but by a canon of the church made in the year
517 this was prohibited, and that rule seems
to have been adopted into the common law, and
may be considered well settled. Put this
prohibition seems to be confined to the enter-
ing of judgments of record, and other like
judloinl acts, for vie learn from the opinion
of lord Uansfiold in the same case that it
wss assigxd for error in th’e cxohoqitier that
the information (for engro-sing butter and
cheese contrary to the stztutc) wcs orhibitcd
to the court on the 13th day of October,
Rcsorable Robert 1. Peden, Jr., Page 3
which in the year (20 Jac. 1) was on Su$y,
and; therefore, not *dins .iuridicus.”
question seems to have bean frequently before
the English courts and the courts of zest of
the statpa of the Union, and the doclsions
are very uniform that. a judgment cannot be
entered of record on Sunday. 3 Thomas’ Coke.
354; 2 21. COQ. 277; t~acke~.da~~is *, 5 Coke,
66; Pearce v. Xtvmod, 13 [<ass. 324; Chapmn Y.
Tne %tat3, 5 Bm (Ind.) 111; N-lbors v.
The :X&o, 6 Ala. 290; 4 N, 11. 15S;*Authut v.
?o;b;,;~2Rbb;.;89; Stor:r v. Fllott, 8 Lo\..
To thzse authorities we say
a2d Col?nan v, l?!cnCerscri, Litt, (Xy. ) &l., Gas.
171;mrxcrker v. The People, 5 i;‘end. 530; -
Rarpor. v, T’?e htz=t9, ?.+3Texas, 431.
Vh3se cases all s-how that a ju:&zatit~
entered of rcocrd on Sunday is .not only erro-
neous, but is absoiutely void.
*But although the law am=19 to be nell
settled th?it a judgmnt caimot be entered Of
record on Sundey, yet I think It equally well
nettled thzt a verdict of a jury aay be enter-
ed of record on Suadu~. See i’ollfYiIin~ authori-
ties: Heidkcppw v. Cotton, 3 Xass. 55; mhtaling
v. Csbom, 15 Johns. 118. ILtll::>r v. ?nPlisn,
i6;s (5. c.) 586; & v. Phlnl~Xs.
.
Via verdict of’ the jury nay be returned
and r.ecoived on Sunday. cOy;l: v. Silcox_, 5 Ind.
370; ?,o:: :er y. XCCOll~, 9 h3, 587; ::ccork&
y. The Etste, 14 In&. 39; & Y. The i;ta.te,
14 In;\. 135; Zebbor v. &mill, 34 N. ri. 202;
Robsrts V. G-3, 5 xun?FEX. ), 558.
“;‘ie fully OGilCUr in t.he’conclusion BY-
rived at by the lccrnefi judee in Baxter v.
Th Pro::le, cxplocsed in thcso xo:ordr;- “;le
think t&c authGriti*-n clearly establish th::t,
~AXUIa cause is fxtriitted to the jury before
twelve of clock 5aiurday nQht, the vcrdiat of
L. , . J .
.
I
1 ‘. .A*/:
Honorable Robert F, Poden, Jr., Page 4
.I . tho jury may be received 03 Sunday; but that
it 10 not a judicial day for tha purpose of
rendorinf! any judgment, and if it attempt
to render a judment, still in law it would
be no judgment, but absolutely void, and
will he so declared, and my be revsrsed by
this oourt. Not that euch reversal will take
tram it any force or vitality, for ltmvar
had any, not having been rendered by a court
having authority to render any udment
whatever at this ti.me.1 ,.Ib. 38 i! ."
The .Shearman case, supra, has been followed by the
Texas Cotit of Criminal Ap eals in tha reoent casea .of Bless
V, State, (19344) 75 S..W. T21%) 694 and Guerra v. State,
(1939) 136 Texas Crlrnlnal Reports 412. i’lo quote from the .. .
court’s opinion in tho Guerra case a8 follbwsr
“It appe&s t rom bill of oxcopt ion No.
1; that the court char&i the jury on Sun-
.day, &roh .6, 1938, at lr53 P,hL Cho.r&ing
theJury is strictly a judicikl act. Xoss
'9, State, 173 S. Yf. 859. Courts havo no
right to profiounce a judgment; or do any
other act striotly judlaial., on Sunday, In.
the absence of a pemisoive otutute. Blono
V, State, 75 S. W. (Zd) 694; Shearman v.
St&e, 1 Tex. App. 215, Xe have in this
state no statute pemltting the jury to be
charged on Suncay. In Moos0 v, Stato, su;rra,
the oourt said: ‘Char&n% the jury is Q
high judicial function, cm1 it cannot be
lawfully exercisea on Sundtiyrt Ye are con-
strafnod to hold that reversible error 1s
presontca.*F
You arc respeotfully a&vi~;cd that it is the opin-
ion of this deprultmsnt that pleas of E;uilty aoceptad ana
jU3gien~ts rendered on Sundays .fn misdomanor cases are In-
valid.
!
|
119 P.3d 1268 (2005)
2005 OK CR 14
Glen Dale GORE, Appellant
v.
STATE of Oklahoma, Appellee.
No. D-2003-776.
Court of Criminal Appeals of Oklahoma.
August 29, 2005.
As Corrected August 30, 2005.
David Smith, Ken Adair, Norman, OK, counsel for appellant at trial.
William Peterson, District Attorney, Richard Wintory, Lynn Loftis, Assistant District Attorneys, Oklahoma City, OK, Chris Ross, Assistant District Attorney, Ada, Oklahoma, counsel for the State at trial.
Gloyd L. McCoy, Oklahoma City, OK, counsel for appellant on appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, counsel for the State on appeal.
*1270 OPINION
LUMPKIN, Vice-Presiding Judge.
¶ 1 Appellant Glenn Dale Gore was tried by jury and convicted of First Degree Murder (21 O.S.1981, § 701.7), Case No. CF-2001-126, in the District Court of Pontotoc County. The jury found the existence of three aggravating circumstances and recommended the punishment of death. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal.[1]
¶ 2 Appellant was convicted of the 1982 murder of twenty-one year old Debra Sue Carter in Ada, Oklahoma. During the fall of that year, Carter moved into a garage apartment and worked three jobs to support herself. One of her jobs was as a bartender/waitress at the Coach Light Club in Ada.
¶ 3 Appellant was a regular patron at the Coach Light Club and was there the night of December 7, 1982. Business was slow that night so the club closed early. Carter was last seen in her car in the parking lot talking to Appellant who stood outside her car. Some of the people leaving the club saw nothing out of the ordinary in Carter and Appellant talking. Others saw Carter push Appellant away in order to close her car door and drive off. Carter left the club alone and drove home. Appellant went back inside the club and subsequently left with Ron West, who had earlier given Appellant a ride to the club. Appellant and West went to the Waffler restaurant where they ate breakfast. Once they were finished, Appellant asked West to drive him to his mother's home. Following Appellant's directions, West drove toward the west part of town. Appellant told West he did not need to take him all the way to his mother's home and he asked to be let out at a nearby church. West complied, and watched Appellant walk around his car and head in a westerly direction.
¶ 4 In the meantime, several of those leaving the Coach Light Club went home with Gina Vietta to continue their party. Vietta, Carter's friend, asked Carter to join them but she declined. Between approximately 2:30 a.m. and 3:00 a.m., Vietta received a *1271 phone call from Carter asking her to come and pick her up at her apartment because someone was there who made her uncomfortable. Vietta asked who was there with her, but Carter did not immediately respond, telling Vietta to "hold on". Vietta then heard muffled noises over the phone and told Carter she was on her way. However, before Vietta could leave, Carter phoned again and said she had decided to stay home. When Vietta again asked who was there with her, Carter changed the subject and told Vietta to phone her in the morning so she would not be late for work.
¶ 5 At approximately 11:20 a.m., December 8, 1982, Donna Johnson went to visit Carter, her long-time friend. Johnson stepped in glass as she walked up the stairs to Carter's apartment. She noticed the front screen door to the apartment was open and the window in the wooden front door had been broken out. Johnson heard the radio playing and found the front door unlocked. When Carter did not answer, Johnson looked inside and saw the apartment in disarray. Sofa cushions and clothes were strewn on the floor. Written on a wall was "Jim Smith next will die". Written on the kitchen table was "don't look fore us or ealse" (sic). The victim's jeans and a blouse were found on the kitchen floor.
¶ 6 The victim's bedroom showed signs of a struggle. Her bed was out of place, pushed up toward the door to the bedroom almost to the point of blocking entry to the room. The comforter and sheets from the bed were on the floor. The victim's bra and panties were also found on the floor. The panties had one leg torn completely through. A bloody palm print was discovered on the wall approximately eighteen (18) inches from the floor. Carter was found on the floor on the far side of the bedroom, lying on her stomach, nude except for one sock covered foot. On her back was written "Duke Graham" in ketchup. Shampoo residue appeared to be on her buttocks. On her chest was written "DIE" in fingernail polish. A blood-soaked washcloth was stuffed into her mouth and down her throat. A belt and an electrical cord from an electric blanket were found underneath the body. Next to the body was a crumpled bed sheet. Wrapped inside the sheet was a ketchup bottle with the lid missing. Also found on the floor near the body was a shampoo bottle with the lid missing. A bracelet was found on the victim's wrist and money was found on the floor of the bedroom.
¶ 7 During the subsequent autopsy, numerous fresh bruises and scrapes were found on the victim's face on her forehead, above her right eye, along her right cheek, along the left side of her mouth, under her chin, and on the back of her neck. Bruises and bite marks were found inside her mouth and on her tongue. A narrow ligature mark was found around her neck. Fresh bruises were also found on her chest, arms, hips, knees, and on the inside and outside of her thighs. Fresh bruises were found around her vaginal area. Intact sperm were found in her vagina and rectum. Also, the lid to a ketchup bottle was found in her anal canal. The washcloth in her mouth was found to have been pushed down her throat blocking her airway. The medical examiner testified that all of the victim's injuries were inflicted prior to her death. He determined the cause of her death was asphyxiation from the ligature strangulation.
¶ 8 Testimony from an expert on crime scene reconstruction showed a substantial amount of time had been taken by the perpetrator to "stage" the crime scene to make it look as though two (2) people were involved in the crime. Evidence offered to support this testimony included glass broken both on the inside and outside of the window in the apartment front door, and the writing on the victim, on the wall and on the kitchen table.
¶ 9 In 1988 Ronald Williamson and Dennis Fritz were convicted of the murder of Debra Carter. Consistent with police interviews immediately after the crime, Appellant testified at the preliminary hearing for Williamson and Fritz that on the night of the murder Carter had asked him to dance with her because Williamson was bothering her. Appellant *1272 was the only witness to place Williamson and Carter together the night of the homicide. By the time of Williamson's trial, Appellant was incarcerated on an unrelated offense and therefore unavailable to testify. His preliminary hearing testimony was read to the jury. Upon being convicted, Williamson was sentenced to the death penalty and Fritz was sentenced to life imprisonment.[2] In 1997, Williamson's conviction was reversed by the Tenth Circuit Court of Appeals and the State was ordered to retry him or permanently release him from custody. See Williamson v. Ward, 110 F.3d 1508 (10th Cir.1997).
¶ 10 In preparation for a possible new trial, samples of hair and bodily fluids taken from Williamson and Fritz were submitted for the newly available DNA analysis. Williamson's defense counsel, Mark Barrett, also sought to interview Appellant and obtain samples for DNA testing. Barrett interviewed Appellant at the Lexington Correctional Center where Appellant was incarcerated. Barrett informed Appellant that DNA evidence was being developed to exonerate Williamson. Appellant refused Barrett's request to provide samples of his hair and bodily fluids for DNA testing. Barrett also asked Appellant about his earlier claims against Williamson. During several conversations with Barrett, Appellant repudiated his earlier testimony with statements ranging from he didn't know if Williamson was at the Coach Light the night of December 7, to Williamson was not at the club that night, to he didn't know if Williamson was there or not.
¶ 11 The results of the DNA testing excluded Williamson and Fritz as the donors of the sperm found in the victim and the case against them was ultimately dismissed. On the same day the DNA results were made public, Appellant walked away from his work release detail in Purcell, Oklahoma. Approximately one week later, Appellant contacted an attorney and turned himself in to authorities. Subsequent DNA testing of samples taken from Appellant showed he was the donor of the sperm found inside the victim. Appellant was subsequently charged with, and convicted, of Carter's rape and murder.
¶ 12 Having thoroughly reviewed Appellant's allegations of error and the entire record in this case, we find relief is warranted based upon the first assignment of error. Appellant contends the trial court erred in sustaining the State's Motion in Limine prohibiting the defense from presenting any evidence tending to show that Williamson and Fritz or Ricky Simmons committed the crime. Prior to trial, Appellant filed an offer of proof listing 19 witnesses.[3] This proffered evidence consisted of Williamson's confession to the murder, and testimony from witnesses who overheard Williamson admit to the killing; police reports concerning the proximity of the victim's apartment to that of another woman whom Williamson had beaten and sexually assaulted; testimony from witnesses that the victim believed Williamson was going to kill her; and Williamson's conviction and death sentence for the victim's murder. Appellant asserts the exclusion of this evidence denied him due process and the right to put on a defense.
¶ 13 As early as 1915, this Court held that a defendant may show, by any legal *1273 evidence, that some other person committed the crime with which he is charged, and that he is innocent of any participation in it. Irvin v. State, 11 Okla.Crim. 301, 146 P. 453 (1915).[4] However, that evidence must tend to connect such other person with the commission of the crime charged. Id. Evidence, which can have no further effect than to cast a bare suspicion upon another is incompetent and inadmissible. Id. In support of this principle, this Court relied in part on Horn v. State, 12 Wyo. 80, 73 P. 705 (1903). Quoting extensively from Horn, this Court stated in part:
It is urged that the court erred in these various rulings, and to support the contention the rule is invoked that, where the state depends on circumstantial evidence to convict a defendant, any testimony tending to show that some other person committed the crime is admissible. Counsel state the rule broader than that, and insist that testimony may be introduced tending to show that another person may have committed the crime; and the rule is so stated by some courts. But we think it is not generally or usually held that facts are competent which have no further effect than to cast a bare suspicion upon another. It is generally conceded that a defendant in a criminal case may, for the purpose of establishing his own innocence, prove such facts as tend to show that another is the guilty party, where the identity of the one committing the crime is a material point in issue.... One of the prominent rules of evidence is that it must tend to prove the issue. It is not necessary that every fact should bear directly upon the issue, but it becomes admissible if it tends to prove the issue, or constitutes a link in the chain of proof. The rule excludes all evidence of collateral facts which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, and the tendency of which is to divert the mind from the point in issue, and to excite prejudice and mislead or confuse the jury. 1 Greenleaf on Ev. §§ 51, 52;
146 P. at 465.
¶ 14 The Horn Court compared case law from other jurisdictions and noted that evidence of mere threats against the life of the deceased, without more, was not generally held to be competent, for the reason that it has no legal tendency to establish the innocence of the defendant on trial. Id. Further, the Horn Court noted the existence of ill feeling as a motive for the commission of crime will not alone justify admission of the evidence. Id. Ill feelings become material only when offered in connection with other evidence proper to be submitted, showing that the person charged with such ill feeling was in fact implicated in the commission of the crime. Id. Additionally, admissions or confessions of a third party, not under oath, would not be admissible as such statements would only be hearsay. The Court noted that such "proof must connect such third person with the fact; that is, with the perpetration of some deed entering into the crime itself. There must be proof of such a train of facts and circumstances as tend clearly to point to him, rather than the prisoner, as the guilty party." Id. The Horn Court concluded, "it is evident that no precise rule can be laid down to govern the admission of such evidence in all cases. Much must depend upon the circumstances of the case, as well as the character of the evidence offered." Id.
¶ 15 Despite the passage of over nine decades, the law in this respect has changed little if any. The issue was recently addressed in Dodd v. State, 2004 OK CR 31, 100 P.3d 1017, wherein this Court said:
*1274 Regarding evidence of alternative suspects, we have held: [E]vidence offered to show that some other person committed the crime charged must connect such other person with the fact; that is some overt act on the part of another towards the commission of the crime itself. There must be evidence of acts or circumstances that tend clearly to point to another, rather than the accused.... [It is] not enough to show a possible motive on the part of another; the evidence must show an overt act by the third person toward the commission of a crime. Woodruff v. State, 1993 OK CR 7, ¶ 47, 846 P.2d 1124, 1137, cert. denied, 510 U.S. 934, 114 S.Ct. 349, 126 L.Ed.2d 313 (1993).
2004 OK CR 31, ¶ 42, 100 P.3d at 1032-33.
¶ 16 In Dodd, the defendant proffered evidence concerning one of the victim's drug purchases, gambling activities, and financial worries in the months preceding his death. This, along with various other pieces of evidence, was offered in the guilt stage to show the possibility that someone else may have killed the victims. This Court upheld the trial court's refusal to admit such evidence as it did not establish an overt act by a third party, and it failed to establish an identifiable third party with a motive to harm either victim. The Court found that several pieces of evidence proffered by the defense were inconsistent with other pieces of evidence. The Court concluded, "[b]ecause the evidence did not point in any particular direction or to any particular person, it amounted only to evidence of the victim's bad character, and as such, was inadmissible". 2004 OK CR 31, ¶ 43, 100 P.3d at 1033.
¶ 17 In Woodruff and his companion case Romano v. State, 1993 OK CR 8, 847 P.2d 368, cert. granted in part and affirmed, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994), the defense sought to admit evidence of three other possible perpetrators of the murder. In Romano, we stated:
In Quinn v. State, 55 Okl.Cr. 116, 25 P.2d 711 (1933) this Court held that evidence offered to show that some other person committed the crime charged must connect such other person with the fact; that is some overt act on the part of another towards the commission of the crime itself. There must be evidence of acts or circumstances that tend clearly to point to another, rather than the accused. See also Case v. State, 555 P.2d 619, 623 (Okl.Cr.1976). We addressed this issue again in Tahdooahnippah v. State, 610 P.2d 808, 810 (Okla.Cr.1980), and stated that it was not enough to show a possible motive on the part of another; the evidence must show an overt act by the third person toward the commission of a crime.
1993 OK CR 8, ¶ 45, 847 P.2d at 381.
¶ 18 The three alleged alternative perpetrators in Romano and Woodruff were Babbit, Ford, and Ballard. Babbitt could only be connected with the victim as an acquaintance from a local club, and police were never able to verify any actual person known to be (Kathy) Ford. Ballard was shown to have frequented the same pool hall as the victim and was seen with cash and jewelry after the murder, although he was known to be destitute. This Court found none of the evidence showed an overt act by Ballard in the commission of the murder.
¶ 19 In another of the more recent cases, Dennis v. State, 1994 OK CR 34, 879 P.2d 1227, the defendant was convicted of killing his wife. Bone fragments identified as belonging to the victim were found in piles of burned cedar trees on the defendant's ranch. In his defense, the defendant sought to admit evidence that the victim's boyfriend, Umbenhower, had a motive to kill her and burn her body. This Court upheld the trial court's rejection of such evidence stating:
. . . "evidence offered to show that some other person committed the crime charged must connect such other person with the fact; that is some overt act on the part of another towards the commission of the crime itself. There must be evidence of acts or circumstances that tend clearly to point to another, rather than the accused." Woodruff v. State, 846 P.2d 1124, 1137 *1275 (Okl.Cr.1993). Further, it is not enough to show a possible motive on the part of another, "the evidence must show an overt act by the third person toward the commission of a crime." Id.
1994 OK CR 34, ¶ 15, 879 P.2d at 1232.
¶ 20 This Court found that despite evidence of a sexual relationship between the victim and Umbenhower, a videotape found in the victim's vanity which allegedly depicted a woman who was shackled, bound, strangled and burned did not tend to clearly point to Umbenhower as the possible killer rather than Appellant. The Court stated:
The premise that the video tape presented a possible motive on the part of Umbenhower is tenuous at best. However, there is no evidence of any overt act by Umbenhower toward the commission of the murder. Under these circumstances, the videotape cannot be found to have made the possibility that Umbenhower killed Janet Dennis more or less probable than it would have been without it. Accordingly, it was not an abuse of discretion for the trial court to refuse to admit the videotape into evidence.
1994 OK CR 34, ¶ 16, 879 P.2d at 1232.
¶ 21 This Court's jurisprudence in the area of law referred to as "third party perpetrator" or "alternative suspects" is consistent with constitutional principles. The Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986). Few constitutional rights are more fundamental than that of an accused to present witnesses in his own defense. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Id.
¶ 22 Appellant asserts his proffered evidence met the overt act requirement. However, he also argues the requirement is too strict and unconstitutional. The State disagrees with Appellant and asserts that as the case against Williamson was circumstantial, there is no evidence of an overt act on Williamson's part. The State argues Appellant's proffered evidence raises only a possibility that Williamson and Fritz committed the murder. Further, the State argues the overt act requirement is constitutional and does not deny a defendant the right to present all competent relevant evidence in support of his defense.
¶ 23 These arguments show that both the defense and the State have read our case law too narrowly. While recent cases have tended to emphasize the existence or nonexistence of an overt act in furtherance of the crime, the test to determine the admissibility of alternative suspect evidence is much broader. As stated above, before evidence tending to show that another party might have committed the crime would be admissible, "the evidence offered must connect such other person with the fact; that is, some overt act on the part of another towards the commission of the crime itself. There must be evidence of acts or circumstances that tend clearly to point to another, rather than to the defendant, as the guilty party"[5], "there must be such proof of connection with it, such a train of facts or circumstances, as tend clearly to point out some one besides the prisoner as the guilty party. Remote acts, disconnected, and outside of the crime itself, cannot be separately proved for such a purpose"[6], and "there must be evidence of acts or circumstances that tend clearly to point to another, rather than the accused."[7] Accordingly, proof of an overt act in the *1276 commission of the crime is required, but it is as a threshold showing, and not as the sole determining factor. It is only one of the factors to consider in determining if the evidence sufficiently connects the third party to the crime.
¶ 24 As our test for determining the admissibility of third party perpetrator evidence is based upon more than the single finding of an overt act in the commission of the crime, the standard is not too strict and is consistent with constitutional principles. It does not prevent the defendant from presenting a defense or presenting evidence that another person may have committed the crime as long as there is some quantum of evidence, which is more than mere suspicion and innuendo, that connects the third party to the commission of the crime. It does not directly control the scope of defense counsel's argument to the jury and counsel is allowed to argue any inference that can be fairly drawn from the evidence. Accordingly, we reject Appellant's suggestion we abandon our test.
¶ 25 Convictions obtained in a court of law and based upon a trier of facts' findings of guilt beyond a reasonable doubt raise much more than a "possibility" that the convicted defendant committed the charged crime. A conviction is much more than suspicion, speculation, and innuendo that the convicted defendant committed the crime. In the absence of newly discovered evidence exculpating the convicted defendant, or a ruling by a higher court reversing the conviction, a conviction stands as proof the convicted defendant committed the charged crime.
¶ 26 Accordingly, evidence that Williamson was convicted of the crime for which Appellant now stands convicted is relevant as it has a tendency to establish the guilt or innocence of Appellant. See 12 O.S.2001, § 2401 (relevant evidence is that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence). Further, the conviction connects Williamson with the murder and is not too remote or disconnected to the commission of the crime. While there may not be a single identifiable overt act toward the commission of the crime, the evidence comprising the case against Williamson was evidence of acts or circumstances that tend clearly to point to Williamson, rather than Appellant, as the killer. This evidence included Williamson's statement to the authorities that he had a dream wherein he killed the victim, statements by law enforcement authorities and inmates who overheard other admissions to the crime made by Williamson, and statements by individuals that the victim had indicated Williamson had asked her for a date but she did not want to go out with him. Therefore, under the facts of this particular case, Williamson's prior conviction for the victim's murder meets the requirement of an overt act in the commission of the crime. Further, this threshold showing combined with the offer of proof presented to the trial court is sufficient to raise the defense that an alternative suspect committed the murder.
¶ 27 In its response, the State acknowledges that it had promoted the case against Williamson for almost twenty years. However, the State argues "the evidentiary landscape" has dramatically changed since Williamson's trial and the validity of that conviction has been put into question.
¶ 28 Williamson's conviction was overturned because the Tenth Circuit Court of Appeals determined he had received ineffective assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 110 F.3d at 1523. Subsequent DNA analysis showed that the sperm found in the victim did not belong to Williamson. Without question, the validity of Williamson's conviction has been put into doubt. However, under the facts of this case, that conclusion does not strip away all relevance of the conviction to Appellant's case. The State correctly argues that "advancements in technology has allowed forensic *1277 science greater powers of discrimination, resulting on the one hand with stronger evidence of guilt and on the other, surer proof to exonerate." As the application of DNA analysis in the criminal justice system has progressed, we have seen that technology can tell us who was in intimate contact with the victim, and the approximate time of that contact. However, in cases like the one before us where the identity of the actual killer is an issue, DNA analysis has not yet evolved to the point where it can identify who committed the actual life ending acts upon the victim. Williamson's conviction was based upon several pieces of evidence. While pieces of that evidence have been discredited, others have not. Therefore, not only is the conviction relevant, but the reversal and reasons for the reversal are also relevant.
¶ 29 Therefore, as evidence of Williamson's conviction for Debra Carter's murder pointed in a particular direction and to a particular person as an alternate suspect in the murder, it was relevant to Appellant's guilt or innocence. The trial court abused its discretion in denying admission of the evidence.
¶ 30 Although the error in this case affected a constitutional right, it is subject to a harmless error analysis. See Bartell v. State, 1994 OK CR 59, ¶ 15, 881 P.2d 92, 97 (right to present a defense and cross-examine witnesses not one of three constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error). Before a federal constitutional error can be held harmless, this Court must be able to declare a belief that it was harmless beyond a reasonable doubt. Id., 1994 OK CR 59, ¶ 13, 881 P.2d at 97, citing Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967). The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Id. 1994 OK CR 59, ¶ 13, 881 P.2d at 96.
¶ 31 Despite the trial court's rulings on the State's Motion in Limine and the defense's Offer of Proof, Williamson's and Fritz's names came up frequently at trial.[8] That they were originally convicted of the murder was brought out by the State during voir dire. The State even introduced evidence that Williamson had been excluded by DNA analysis as the donor of the sperm found in the victim. Several of the State's witnesses had testified at Williamson's trial and defense counsel cross-examined them on any inconsistencies in their testimony. To prevent Appellant from introducing evidence of Williamson's conviction denied Appellant the right to fully present his defense that despite the results of the DNA analysis Williamson was the actual perpetrator. Further, Appellant was hampered in his effort to rebut the State's evidence that Williamson and Fritz did not commit the crime. Under the unique facts of this case, where the circumstances surrounding Williamson's prosecution for the murder and Appellant's prosecution for the murder are so intertwined, the trial court's exclusion of the evidence of Williamson's conviction failed to present the entire story surrounding the crime to the jury. In order to ensure a fair trial, Appellant is entitled to present the evidence of Williamson's conviction as evidence that someone other than himself committed the crime, and under proper instruction from the bench, let the jury determine the weight and credibility of that evidence.[9]
¶ 32 The State presented a strong case against Appellant. However, as much of their evidence was circumstantial, we find there is a reasonable possibility that exclusion of the evidence of Williamson's conviction might have contributed to the conviction. *1278 Appellant was denied a fair trial in accordance with traditional and fundamental principles of due process. Therefore, we find the exclusion of the evidence was not harmless beyond a reasonable doubt. Accordingly, the Judgment and Sentence is REVERSED and this case is REMANDED to the District Court for a NEW TRIAL.
S. TAYLOR, Assigned Justice: concurs.
C. JOHNSON, J.: specially concurs.
CHAPEL, P.J., and A. JOHNSON, J.: concur in results.
CHAPEL, Presiding Judge, concur in results.
¶ 1 I concur in reversing the conviction in this case and in remanding for a new trial. I would, however, explicitly abandon the "requirement" of proof of an overt act in admissibility determinations concerning third party perpetrator evidence. Certainly, there should be "some quantum of evidence, which is more than mere suspicion and innuendo, that connects the third party to the commission of the crime."[1] However, as this case shows, that is all that ought to be required.
¶ 2 If the State is allowed, as it should be allowed, to convict someone upon circumstantial evidence without the requirement that it prove an overt act, I see no reason to deny a person, in defense, the right to present circumstantial evidence without proof of an overt act, that a third party committed the crime. In determining the admissibility of such evidence, I would apply the test set forth above.
¶ 3 I am authorized to state that Judge Arlene Johnson joins in this concur in result opinion.
C. JOHNSON, J., specially concurs.
¶ 1 This is clearly a case where excluded evidence certainly could have helped the Appellant. A previously convicted party knew too many things that were not common knowledge. He may well have been involved in some fashion in the crime. Therefore, the exclusion of the evidence was prejudicial to Appellant and was clear error.
¶ 2 Oklahoma's overt act rule, addressed in the separate writings, can be addressed another day.
A. JOHNSON, Judge, concur in results.
¶ 1 The majority opinion states that this court has been consistent for nine decades in holding that a defendant cannot put on evidence that someone else committed the crime without first showing that the other person took some overt act toward the commission of that crime. Nine decades of jurisprudence, however, contains little if any analysis of the reason behind Oklahoma's narrow rule.
¶ 2 The majority traces the overt act rule to Irvin v. State, 11 Okla.Crim. 301, 146 P. 453 (1915). Irvin was convicted of murder arising out of a conspiracy and Irvin sought to introduce evidence that someone else had a motive to commit the crime. Irvin was cited early on as holding a defendant may not present evidence incriminating someone else absent a showing of an overt act by that person. This interpretation is a far too narrow reading of the Irvin opinion which states:
While it is competent for the defendant to show, by any legal evidence, that some other person committed the crime with which he is charged, and that he is innocent of any participation in it, such evidence must tend to connect such other person with the commission of the crime charged. An examination of the authorities will show that it is generally held that evidence which could have no further effect than to cast a bare suspicion upon another is incompetent and inadmissible.
Irvin, 146 P. at 464.
¶ 3 While an overt act by another toward the commission of the crime charged is one *1279 example of evidence which may be competent and admissible on behalf of the defendant, it is not the only example of such evidence. Irvin did not endorse a rule requiring proof of an overt act, but used proof of an overt act as an example of a circumstance tending to make the evidence of a third party perpetrator substantial enough for admission at trial. See Irvin at 465-66. The Irvin court quoted at length from Horn v. State, 12 Wyo. 80, 73 P. 705 (1903), strongly approving the reasoning of the Wyoming court on the admissibility of alternate suspect evidence, and that court did not adopt the overt act rule.
¶ 4 The overt act rule may appear to give the overworked trial judge a concrete guideline by which to measure the admissibility of alternate suspect evidence. Yet there has been little discussion in our cases of what constitutes an overt act in this sense or of whether such act must be proved by direct evidence. Without such development, clarity may well be an illusion, leaving the trial court to the same arduous weighing process required by jurisdictions without the overt act rule.
¶ 5 The purported ease of application, however, is outweighed by the fact that the rule as constituted has the potential, as in this case, to prevent a defendant from presenting evidence critical to his defense. The defendant's right to present evidence is not absolute and the State may place reasonable limitations on the admission of evidence in criminal proceedings. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). Nonetheless, the right to present witnesses to establish a defense is a fundamental element of due process and state evidence rules must yield to this fundamental right when they plainly interfere with a defendant's right to defend against the State's charges. Id.
¶ 6 This case demonstrates the dilemma created by our evidentiary rule on this issue. Evidence of another's culpability may be relevant to the defendant's innocence, competent and admissible, even substantial, but still be excluded because the trial court can find no direct evidence of an overt act. Thus, I concur that this case must be reversed and remanded for new trial, but I would abrogate the requirement that a defendant provide evidence of an overt act before alternate suspect evidence may be admitted.
¶ 7 The judgment and Sentence having been REVERSED AND REMANDED TO THE DISTRICT COURT FOR A NEW TRIAL, now pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.
¶ 8 I am authorized to state Judge CHARLES S. CHAPEL joins in this opinion and concurs in result.
NOTES
[1] Appellant's Petition in Error was filed in this Court on December 18, 2003. Appellant's brief was filed August 10, 2004. The State's brief was filed December 20, 2004. The case was submitted to the Court December 23, 2004. Oral argument was held April 19, 2005.
[2] The convictions were affirmed by this Court in Williamson v. State, 1991 OK CR 63, 812 P.2d 384 and Fritz v. State, 1991 OK CR 62, 811 P.2d 1353.
[3] In his proposition of error, Appellant includes Ricky Simmons as an alternative suspect. However, the Offer of Proof filed by the defense listed only witnesses who would testify regarding Williamson and Fritz as alternative suspects. While the State's response includes a response to an offer of proof concerning Ricky Simmons, Appellant's offer of proof regarding Simmons is not in the record. In a transcript of a pre-trial conference addressing evidence of alternative suspects, defense counsel states that Simmons confessed to the crime and that he cannot be excluded as the donor of one of the hairs at the crime scene. At trial, a verbal offer of proof was made by defense counsel that a partial DNA profile of Simmons was consistent with two out of three "genetic loci" of one hair found at the crime scene. (Tr. Vol.VI, pg.112). Based upon this record, the evidence as to Ricky Simmons as an alternative suspect does not sufficiently connect him to the commission of the crime and affords no reasonable presumption or inference as to Appellant's guilt or innocence. Therefore, the trial court did not abuse its discretion in excluding any evidence as to Ricky Simmons as an alternative suspect.
[4] In Irvin, two children died when an explosion occurred underneath their house and the house burned to the ground. At trial, Irvin attempted to show the children's stepfather, Zeb Mackey, committed the crime. The only evidence offered in support of this theory was that Mackey intended to leave his wife and children and promised to get some money and leave the country with another woman whose child he had fathered. This Court held such evidence was inadmissible, as it "affords no reasonable presumption or inference as to the guilt or innocence of the defendant". 146 P. at 466.
[5] Quinn v. State, 55 Okla.Crim. 116, 25 P.2d 711, 714 (1933).
[6] Irvin v. State, 11 Okla.Crim. 301, 146 P. 453 (1915) citing In the case of Greenfield v. People, 85 N.Y. 75, 39 Am. Rep. 636 (1881).
[7] Case v. State, 1976 OK CR 250, ¶ 14, 555 P.2d 619, 623.
[8] The trial court granted the State's Motion in Limine during pre-trial proceedings but did not enforce its ruling as to the State during trial. Trial courts should be consistent in administering their rulings equally as to all parties during the course of the trial.
[9] This does not mean a complete retrial of Williamson's case. Only those matters relevant to Appellant's defense, and within the bounds of the rules of evidence, are to be presented. Further, "alternate suspect" evidence is subject to rebuttal by the prosecution regarding its weight and credibility.
[1] Majority opinion, pg. 1276.
|
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 08 2018, 9:20 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy R. Uliana Curtis T. Hill, Jr.
Bargersville, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ryan Vandeventer, August 8, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-445
v. Appeal from the
Greene Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Dena A. Martin, Judge.
Trial Court Cause No.
28D01-1706-F1-1
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-445 | August 8, 2018 Page 1 of 10
[1] Ryan Vandeventer (“Vandeventer”) pleaded guilty to aggravated battery1 as a
Level 3 felony and was sentenced to fourteen years in the Indiana Department
of Correction (“DOC”) with three years suspended to probation. He now
appeals his sentence contending that it is inappropriate given the circumstances
of his character and the nature of the offense.
[2] We affirm.
Facts and Procedural History
[3] Vandeventer married Amber (“Amber”) in December 2016. Soon thereafter,
their marriage began to deteriorate. Appellant’s App. Vol. 2 at 48. By May 2017,
Amber had become pregnant with the couple’s first child, but the relationship
was physically and emotionally abusive. Tr. Vol. 2 at 28-29, 44-45.
[4] On May 4, 2017, the State filed domestic battery charges against Vandeventer
under cause number 28D01-1705-F5-25 (“F5-25”) after Amber alleged that
Vandeventer struck her during a heated argument. Appellant’s App. Vol. 2 at 46.
At the time of that incident, Vandeventer also exchanged cross words with
Amber’s mother, Vanessa Pursell (“Vanessa”), and stepfather, Glen Pursell
(“Glen”). Tr. Vol. 2 at 20. During this altercation, Glen ordered Vandeventer
to leave the home. Id. at 10. The trial court issued a no-contact order between
1
See Ind. Code § 35-42-2-1.5.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-445 | August 8, 2018 Page 2 of 10
Amber and Vandeventer, and Amber moved in with Vanessa and Glen.
Appellant’s App. Vol. 2 at 46; Tr. Vol. 2 at 9.
[5] After Vandeventer’s son (“the Child”), was born, Amber agreed to allow
Vandeventer to see him on two separate occasions. Tr. Vol. 2 at 11. Amber told
Vandeventer that Vanessa and Glen hated him and did not want him to see the
Child. Id. at 29, 45. She also claimed that the Pursells sought a no-contact
order against Vandeventer, even though the couple had not done so. Id. at 46.
The visitations with the Child were conducted in secret and lasted for fifteen
minutes at a time, usually late at night. Id. at 11.
[6] On June 19, 2017, Vandeventer’s charges in cause F5-25 were still pending, and
Vandeventer had been released from jail after posting bond. Tr. Vol. 2 at 50, 57;
Appellant’s App. Vol. 2 at 46. Amber called Vandeventer and stated that she
would allow him to see the Child at the Pursells’ house. Id. at 10. Amber
arranged to meet Vandeventer outside in the driveway, and Vandeventer
insisted that Vanessa and Glen remain in the house while he was there. Id. at
10-11. Vandeventer drove his truck to the Pursells’ house at around 9:00 p.m.
Id. at 13. As he neared the residence, Vandeventer saw Amber standing with
the Child in the front yard, and he also saw Glen standing in the road. Id.
Glen had gone to retrieve the mail from the family’s mailbox, but Vandeventer
interpreted Glen’s presence as an attempt to stop him from seeing the Child. Id.
at 13, 21. Vandeventer became angry and drove his truck at a high speed into
Glen’s yard to try to push him out of the way. Id. Glen attempted to move to
the side but was unable to avoid being struck by the vehicle. Id. at 21. As the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-445 | August 8, 2018 Page 3 of 10
force of the collision knocked Glen to the ground, Vandeventer drove over
Glen’s legs with the front wheel of his truck. Id. at 14. After initially making
contact with Glen, Vandeventer put the truck in reverse and drove over Glen’s
legs again. Id. Glen became entangled with the truck and was dragged a short
distance before coming to rest in a ditch alongside the road. Id. at
22.Vandeventer’s attack left Glen’s legs “basically crushed.” Id. at 14. Glen
suffered from 31 fractures in both legs, and his left leg was irreparably injured
and will never fully heal. Id. at 22. After four surgeries, he continues to walk
with a limp. Id. at 22-23. Additionally, Glen was terminated from his position
of employment due to his extended absence following Vandeventer’s assault.
Id. at 23.
[7] The State charged Vandeventer with attempted murder as a Level 1 felony,
aggravated battery as a Level 3 felony, and invasion of privacy as a Class A
misdemeanor. Appellant’s App. Vol. 2 at 11-14. Vandeventer pleaded guilty to
aggravated battery as a Level 3 felony. Id. at 36. The plea agreement provided
that the trial court would exercise its discretion in sentencing. Id. At his
sentencing hearing, evidence was presented that Vandeventer was diagnosed a
teenager with bipolar disorder and attention deficit/ hyperactivity disorder
(“ADHD”) and that he had attempted suicide. Appellant’s App. Vol. 2 at 42-43;
Tr. Vol. 2 at 41-42. At the age of thirteen, Vandeventer was placed in an in-
patient treatment facility where he was prescribed psychotropic medications to
control the symptoms of his mental illness. Appellant’s App. Vol. 2 at 49. After
his release, Vandeventer quit taking these medications and began using
Court of Appeals of Indiana | Memorandum Decision 18A-CR-445 | August 8, 2018 Page 4 of 10
marijuana and synthetic drugs to cope with the symptoms of his mental illness.
Between November 2014 and April 2016, Vandeventer had five misdemeanor
convictions. Id. at 45-46, 49. Thereafter, Vandeventer sought no further
medical care for his mental illness and, at the time of the present offense, was
not taking any psychotropic medications to treat his condition. Id. at 49.
[8] The trial court found the following mitigators: (1) Vandeventer accepted
responsibility for his actions by pleading guilty; (2) Vandeventer expressed
remorse for his actions; (3) Vandeventer possessed a documented history of
mental illness; and (4) Vandeventer appeared to have been influenced by
misrepresentations made by Amber. Tr. Vol. 2 at 57-58. The trial court also
identified the following aggravating circumstances: (1) Vandeventer possessed
a criminal history, including five misdemeanor convictions; (2) in committing
the instant offense, Vandeventer violated the terms of a protective order and the
terms of his probation; and (3) Vandeventer had been released on bond in cause
F5-25 at the time he attacked Glen. Id.
[9] The trial court concluded that the aggravating circumstances outweighed the
identified mitigators and imposed a fourteen-year sentence against
Vandeventer. Id. The trial court suspended three years of the sentence to
probation and ordered the remaining eleven years to be executed in the DOC.
Id. at 57. The trial court also recommended Vandeventer to participate in the
Purposeful Incarceration program while in the DOC. Id. at 57-58. Upon
Vandeventer’s successful completion of the program, the trial court indicated
Court of Appeals of Indiana | Memorandum Decision 18A-CR-445 | August 8, 2018 Page 5 of 10
that it would consider the possibility of sentence modification. Id. at 58.
Vandeventer now appeals.
Discussion and Decision
[10] For his Level 3 felony aggravated battery conviction, the trial court sentenced
Vandeventer to fourteen years with three years suspended to probation.
Vandeventer now argues that his sentence is inappropriate based on his
remorseful character and his lifetime of struggles with mental health and
intellectual disabilities.
[11] Pursuant to Indiana Appellate Rule 7(B), this Court “may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” Our Supreme Court has explained that the
principal role of appellate review should be to attempt to leaven the outliers,
“not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). We independently examine the nature of the
offense and the defendant’s character under Appellate Rule 7(B) with
substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d
344, 355 (Ind. 2015). In conducting our review, the test is whether the sentence
is inappropriate, and we do not look to see whether another sentence might be
more appropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013),
trans. denied. The appellant bears the burden of persuading us that his sentence
is inappropriate. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-445 | August 8, 2018 Page 6 of 10
[12] “As to the nature of the offense, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). The nature of the
offense is found in the details and circumstances of the commission of the
offense and the defendant’s participation. Croy v. State, 953 N.E.2d 660, 664
(Ind. Ct. App. 2011). The advisory sentence for a Level 3 felony conviction is
nine years, with a range of between three and sixteen years. Ind. Code § 35-50-
2-5.
[13] Vandeventer highlights that, since the age of three and at the time of his offense,
he has struggled with mental health issues and deficiencies, including bipolar
disorder and ADHD. Tr. Vol. 2 at 51, 55. He contends that the evidence
overwhelmingly shows that the aggravated battery crime is a reflection of his
long-standing mental illness and intellectual disability.
[14] Our review of the record reveals that on May 4, 2017 there was a “falling out”
between Vandeventer and Glen, and that neither of them had any further
contact with one another until June 19, 2017, when Glen went to check his mail
and saw Vandeventer’s truck approaching him “briskly, faster than normal.”
Id. at 20-21. Upon realizing that Vandeventer was not going to stop, Glen put
his hands up, pushed himself to the side, and was knocked down to the ground
after the front half of Vandeventer’s truck ran him over. Id. at 22. Vandeventer
then stopped, backed up his truck, and ran over Glen again. Id. Glen suffered
a total of thirty-one fractures in both of his legs. Id. He has had four separate
surgeries, and each time, has had to get bigger plates and more screws put in his
Court of Appeals of Indiana | Memorandum Decision 18A-CR-445 | August 8, 2018 Page 7 of 10
legs to attempt to heal his injuries. Id. Because of this incident, Glen is unable
to maintain employment. Id. at 23.
[15] Vandeventer was charged with one count of Level 1 felony attempted murder,
one count of Level 3 felony aggravated battery, and one count of Class A
misdemeanor invasion of privacy. Appellant’s App. Vol. 2 at 11-14. He pleaded
guilty to Level 3 felony aggravated battery, and the attempted murder and
invasion of privacy charges were dismissed. Id. at 5, 49. Vandeventer accepted
the plea agreement at a substantial benefit to himself. Had he elected not to
plead guilty, he would have faced a trial for Level 1 felony attempted murder,
which carried a minimum sentence of twenty years if convicted.2 Nothing
about the nature of the offense warrants a reduction in the imposed sentence.
[16] “The character of the offender is found in what we learn of the offender’s life
and conduct.” Croy, 953 N.E.2d at 664. Vandeventer says that his sentence is
inappropriate due to his remorseful character, his lifetime of struggles with
mental health, and his intellectual disabilities. To support his argument,
Vandeventer states that his case is similar to Biehl v. State, 738 N.E.2d 337 (Ind.
Ct. App. 2000). In Biehl, four teenage boys threatened and threw boards and
bricks at Biehl who was living in an abandoned barn. Id. at 338. Biehl asked
the boys to leave, but they refused. Id. Biehl left, returned with a gun, and shot
at the boys, injuring one and killing another. Id. Biehl was charged with
2
See Ind. Code § 35-50-2-4(b)
Court of Appeals of Indiana | Memorandum Decision 18A-CR-445 | August 8, 2018 Page 8 of 10
murder and attempted murder but was initially found to be incompetent to
stand trial due to years of suffering from paranoid schizophrenia. Id. Biehl was
later found competent to stand trial where he presented an insanity defense. Id.
Medical professionals testified on Biehl’s behalf that he was “insane at the time
of the crimes” and “delusional at a profound level.” Id. Biehl was found guilty
but mentally ill of lesser offenses, voluntary manslaughter and criminal
recklessness, and was sentenced to a total of thirty-four years. Id. at 339. This
court found that in light of Biehl’s severe, longstanding mental illness, lack of
criminal history, and the absence of any aggravating circumstances, his
sentence was unreasonable, and we remanded with instructions to impose the
minimum sentence of twenty years. Id. at 338.
[17] Vandeventer’s case differs from Biehl. At no point was Vandeventer deemed
incompetent to stand trial because of his bipolar disorder and ADHD
diagnoses. He did not raise an insanity defense, and no medical professionals
testified that his actions were a result of his mental illness. Furthermore, unlike
Biehl who shot the victims after they threatened and threw bricks and boards at
him, Vandeventer targeted Glen as he was walking to the mailbox. There is no
evidence that Glen physically harmed or made threats to Vandeventer. Finally,
unlike Biehl, Vandeventer’s case had multiple aggravating factors, including his
past delinquent and criminal history, violation of a protective order and
probation, and being out on bond at the time of the commission of the offense.
Tr. at 56-57. The trial court concluded that the aggravating factors outweighed
the mitigating factors. Id. at 57.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-445 | August 8, 2018 Page 9 of 10
[18] At the time of this offense, Vandeventer was out on bond for a pending
domestic battery case, F5-25, in which he allegedly battered his pregnant wife.
While a record of arrest may not be considered part of a defendant’s criminal
history, it is probative of poor character insofar as it demonstrates that the
offender has been undeterred by past interactions with law enforcement. Cotto
v. State, 829 N.E.2d 520, 526 (Ind. 2005). Vandeventer was convicted of five
drug-related misdemeanors in the span of just two years. Appellant’s App. Vol. 2
at 45-46. At the time of the instant offense, he was still on probation in one of
those cases. Id. Vandeventer was also in violation of a protective order by
contacting his wife via telephone and going to the Glen residence where she
was currently residing. Id. at 46. The trial court stated that Vandeventer
needed to learn how to function in society without hurting people. Id. at 56-57.
Finally, the trial court showed Vandeventer mercy by ordering him into the
Purposeful Incarceration Program at the DOC. Upon successful completion of
this program, the trial court agreed to step Vandeventer down from DOC to
work release and eventually to place him on home detention so that he could be
with his children.
[19] Vandeventer has failed to establish that his sentence is inappropriate in light of
the nature of the offense and his character.
[20] Affirmed.
[21] Vaidik, C.J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-445 | August 8, 2018 Page 10 of 10
|
164 B.R. 735 (1994)
Roger Dale WILLIAMS and Cynthia Williams, Plaintiffs,
v.
James CHISM, M.D., Women's Clinic of New Albany, and Baptist Memorial Hospital-Union County, Defendants.
No. 3:93CV78-S-D.
United States District Court N.D. Mississippi, W.D.
March 10, 1994.
*736 John H. Cocke and Cynthia I. Mitchell, Merkel & Cocke, Clarksdale, MS, for plaintiffs.
Robert D. Upchurch, Holland, Ray & Upchurch, Tupelo, MS, for defendants Women's Clinic of New Albany and James Chism, M.D.
Thomas T. Dunbar, Holcomb, Dunbar, Connell, Chaffin & Willard, Oxford, MS, for defendant Baptist Hosp.-Union County.
OPINION
SENTER, Chief Judge.
This medical malpractice action was filed in May, 1993, approximately ninety days after plaintiff Roger Dale Williams[1] filed for Chapter 7 protection in the United States Bankruptcy Court for the Northern District of Mississippi. Jurisdiction is predicated solely on 28 U.S.C. § 1334(b), which provides that the "district courts shall have original, but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11." Presently at issue are whether this court has jurisdiction over this case and if so, whether that jurisdiction should be exercised. These matters are raised via the motions of defendant Baptist Memorial for abstention and of defendants Chism and Women's Clinic for dismissal or, in the alternative, abstention. Defendants have also requested oral argument, which the court believes is unnecessary for a resolution of these motions.
DISCUSSION
The request for dismissal based on lack of subject matter jurisdiction is easily disposed of. As noted previously, 28 U.S.C. § 1334(b) grants this court concurrent jurisdiction with state courts over any proceeding related to a bankruptcy. In re Wood, 825 F.2d 90, 93 (5th Cir.1987). In determining its authority to hear this cause, the court looks to whether the outcome of this cause could conceivably have any effect on the bankruptcy estate. Wood, 825 F.2d at 93. Despite the vehement protestations of Chism and Women's Clinic to the contrary, it is clear from a perusal of the amended bankruptcy schedules that a recovery in this action could greatly enrich the bankruptcy estate.[2] As this action could conceivably have an impact on the bankruptcy proceeding, it is properly before the court. The question thus becomes whether this court should exercise that jurisdiction, or whether under 28 U.S.C. § 1334(c)(1), it should abstain from hearing this cause "in the interest of justice, or in the interest of comity with State courts or respect for State law. . . ."
The United States Court of Appeals for the Fifth Circuit has recognized that the "abstention provisions of [section 1334(c)(1)] demonstrate the intent of Congress that concerns of comity and judicial convenience should be met, not by rigid limitations on the jurisdiction of federal courts, but by the discretionary exercise of abstention when appropriate in a particular context." Wood, 825 F.2d at 93. Although the Fifth Circuit has not specifically addressed the factors which this court should consider in determining the appropriateness of abstention in this context, it has noted that § 1334(c)(1) "`summarizes and incorporates federal non-bankruptcy abstention doctrines.'" Baumgart v. Fairchild Aircraft Corp., 981 F.2d 824, 833 (5th Cir.) (citation omitted), cert. denied, ___ U.S. ___, 113 S.Ct. 2963, 125 L.Ed.2d 663 (1993). Toward that end, numerous courts have adopted a twelve-factor test:
(1) the effect or lack thereof on the efficient administration of the estate if the court recommends abstention;
(2) the extent to which state law issues predominate over bankruptcy issues;
*737 (3) the difficulty or unsettled nature of the applicable law;
(4) the presence of a related proceeding commenced in a state court or other nonbankruptcy court;
(5) the jurisdictional basis, if any, other than 28 U.S.C. § 1334;
(6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case;
(7) the substance rather than form of an asserted "core" proceeding;
(8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court;
(9) the burden of the district court's docket;
(10) the likelihood that the commencement of the proceeding in the district court involves forum shopping by one of the parties;
(11) the existence of a right to a jury trial; and
(12) the presence in the proceeding of nondebtor parties.
In re Chicago, Milwaukee, St. Paul & Pacific R. Co., 6 F.3d 1184, 1189 (7th Cir.1993). See In re Eastport Associates, 935 F.2d 1071, 1075-76 (9th Cir.1991); In re Richmond Tank Car Co., 119 B.R. 124, 126 (S.D.Tex. 1989); Borne v. New Orleans Health Care, Inc., 116 B.R. 487, 494 (E.D.La.1990). See also Searcy v. Knostman, 155 B.R. 699, 710 (S.D.Miss.1993) (including two additional factors comity and possibility of prejudice to other parties in action). "Courts should apply these factors flexibly, for their relevance and importance will vary with the particular circumstances of each case, and no one factor is necessarily determinative." In re Chicago, 6 F.3d at 1189.
Applying these factors to the case at hand, the court is of the opinion that abstention is appropriate. First, although resolution of this case would significantly affect the value of the bankruptcy estate, it would not affect the administration of that estate. In fact, the trustee is aware of the malpractice claims and specifically offers no opposition to these matters being heard in state court. Second, the only issues presented in this action involve questions of Mississippi state law. Third, without the bankruptcy proceeding, jurisdiction would not otherwise exist in this court, as the parties are not diverse and no federal question is involved. Fourth, the noncore status of this proceeding weighs in favor of abstention, for this matter can certainly exist outside the context of the bankruptcy case, and there is no close nexus between the bankruptcy proceedings and the malpractice claims. Cf. In re Howe, 913 F.2d 1138, 1143 (5th Cir.1990) (lender liability action against chief creditors had close nexus with bankruptcy proceedings). Fifth, the court suspects that plaintiffs have engaged in forum shopping. This suspicion is based in part on the timing of the two filings, for, as noted previously, without the bankruptcy case,[3] this court would be without jurisdiction to entertain the instant claims. And finally, only one of the instant defendants is listed as a creditor in the bankruptcy proceeding.
In conclusion, the court notes that nothing in the record suggests that this action cannot be timely litigated in the Mississippi courts. Discovery is almost complete, and that process will go far toward advancing a final decision in the state tribunal and will certainly not be wasted. Therefore, in the language of § 1334(c)(1), permissive abstention is warranted "in the interest of justice, or in the interest of comity with [the Mississippi] courts or respect for [Mississippi] law. . . ."
An appropriate order shall issue.
ORDER RELATED TO MOTIONS FOR ABSTENTION
Pursuant to an opinion filed contemporaneously herewith, it is ORDERED:
That the motion of defendant Baptist Memorial Hospital-Union County for oral argument, which was joined by defendants James *738 Chism, M.D., and Women's Clinic of New Albany, is denied;
That the motion of Baptist Memorial for abstention is granted;
That the motion of Chism, joined by Women's Clinic, for dismissal or, in the alternative, for abstention is denied in part and granted in part;
That the court abstains from entertaining the present case, and the complaint is therefore dismissed without prejudice.
SO ORDERED.
NOTES
[1] Roger Dale Williams and Cynthia Williams were divorced in January, 1993, before the bankruptcy petition was filed.
[2] By separate order entered this date, the court has affirmed the bankruptcy court's order overruling Chism's objection to Mr. Williams's amendment of schedules.
[3] In the schedules attached to the original petition, Mr. Williams noted that he would soon be filing a malpractice suit against Chism.
|
405 So.2d 1080 (1981)
STATE of Louisiana
v.
Marvin D. PARISH.
No. 80-KA-1769.
Supreme Court of Louisiana.
January 26, 1981.
Dissenting Opinion September 3, 1981.
Opinion on Rehearing October 16, 1981.
Rehearing Denied November 27, 1981.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Carmouche, *1081 Dist. Atty., Robert W. Gillespie, Jr., Asst. Dist. Atty., for plaintiff-appellee.
Jeanette G. Garrett, Indigent Defender Program, Wellborn Jack, Jr., Jack, Jack, Cary & Cary, Shreveport, for defendant-appellant.
CUTRER, Justice Ad Hoc.[*]
By bill of information filed July 16, 1979, defendant, Marvin Parish, was charged with attempted aggravated rape, a violation of La.R.S. 14:42 and 14:27. A twelve-person jury found the defendant guilty as charged. The trial court sentenced him to twenty (20) years at hard labor. On appeal the defendant urges ten[1] assignments of error as grounds for reversal of his conviction and sentence.
ASSIGNMENTS OF ERROR NUMBERS 8 AND 9
The defendant, through these two assignments, contends that the conviction must be reversed because a rational trier of fact could not have found that the essential elements of the offense of attempted aggravated rape were proven beyond a reasonable doubt.
In resolving this issue, we must determine:
"... whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of facts could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The issue, therefore, is whether any rational jury could have found beyond a reasonable doubt from the evidence in this case that Williams obtained credit for the purchase or acquisition of money, goods or services." State v. Williams, 389 So.2d 384, 385 (La.1980).
The defendant was charged with attempted aggravated rape.
Aggravated rape is set forth in LSA-R.S. 14:42. The pertinent part of this statute reads as follows:
"Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; ..."
The pertinent part of the attempt statute, as set out in LSA-R.S. 14:27, reads as follows:
"A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
"B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; ...."
According to these statutes the state must prove that the defendant had the specific intent to commit aggravated rape upon Lynda Herzog and that the defendant performed an act for the purpose of and tending directly toward the accomplishing of his object.
*1082 The evidence most favorable to the state reveals the following:
On March 10, 1979, Lynda Herzog was alone in her apartment watching television and heard a knock on the door at approximately 11:00 P.M. When she answered the door defendant, Marvin Parish, stated that his name was Steve and that he was a neighbor and needed change for the laundromat. Ms. Herzog turned and walked away from the door to get some quarters. She testified that when she turned around the defendant had closed and locked the door and was standing immediately behind her. She bumped into him as she turned around. The defendant apologized and said he didn't mean to scare her. She gave him change for a dollar and began slowly urging him toward the door, but the defendant did not leave. At that point she was frightened and attempted slowly to open a drawer behind her and get a butcher knife out but changed her mind when she thought he may try to take it from her. She stated that the defendant grabbed her by putting one hand over her mouth and one hand around her throat. He then told her he wanted to make love to her. She stated that during the episode he used the word "rape" in expressing his intentions. He told her not to scream or he would kill her. He grabbed and held her so tightly that she was unable to breathe. She began getting weak due to the pressure exerted upon her. In the struggle Ms. Herzog lost her contact lens and her blouse was torn and she received a small cut near her eye. After she promised not to scream by nodding her head, he released his hold on her. Ms. Herzog stated she was terrified and told him she would do anything he wanted so long as he didn't hurt her.
Ms. Herzog then began talking to stall for time. She told him her son was due to come home at any time and that he had a gun. As instructed by defendant, she closed the drapes in the living room. She stated that the defendant grabbed her by the shoulder, neck and hair and began dragging her down the hall toward the bedroom. At that point he tripped over some clothing stacked in the hallway. More conversation ensued. He told her to undress or he would undress her. She kept talking to him and stalling for time.
Finally, the defendant, for reasons best known to himself, decided to discontinue his actions, at which time he apologized to Ms. Herzog and left. Ms. Herzog stated that during the course of events the defendant never took off any of his clothing, nor did he remove any of hers. She stated that the defendant's zipper was partially unzipped and she noticed that he had an erection.
Ms. Herzog stated that she was approximately 5 feet 3 inches tall and weighed 120 pounds. She stated that the offender was approximately 6 feet tall and weighed 250 pounds.
After the defendant left, Ms. Herzog called a friend in Atlanta, Georgia, who told her to call the police. An officer arrived and took her complaint. A print was lifted from a beer bottle that the defendant left behind. Some months later defendant was arrested and fingerprinted on a Peeping Tom charge. In June his prints were matched with the print lifted from Ms. Herzog's apartment and he was arrested and charged with attempted aggravated rape.
These facts show that the defendant had the specific intent to commit the offense of aggravated rape upon Ms. Herzog. He lied to Ms. Herzog to gain entrance to her apartment; he unequivocally made known to her by his words and appearance that he intended to have sexual intercourse with her; defendant used physical force upon Ms. Herzog as he made his intention known; Ms. Herzog resisted his actions to the best of her ability, considering the comparative sizes of the defendant and Ms. Herzog; the defendant threatened her with death if she resisted; defendant dragged her down a hallway to a bedroom for the purpose of fulfilling his intended desires when he fell over the clothing. After the fall and more talking, stalling and pleading by Ms. Herzog, defendant abandoned his plan of action.
The words and actions of defendant fulfill the requirements of LSA-R.S. 14:27, in *1083 that, by using physical force upon her after making known to her that he intended to commit rape and especially by forcing her toward the bedroom for the purpose of committing the rape, he committed "an act for the purpose of and tending directly toward the accomplishing of his object" (aggravated rape). The record presents ample evidence for the jury's verdict.
Assignments of error Numbers 8 and 9 are without merit.
ASSIGNMENT OF ERROR NUMBER 10
This assignment presents the issue of whether the sentence of twenty years at hard labor is excessive. The maximum sentence for attempted aggravated rape is fifty years at hard labor. The trial court did not conduct a sentence hearing, but did conduct a hearing on a motion by defendant to be released on bond. At this hearing considerable testimony was given by defendant's parents, his wife and employer about defendant's past emotional problems, his employment record and somewhat stormy marital situation.
The record reveals that the trial judge followed the sentencing guidelines prescribed by La.C.Cr.P. art. 894.1. In imposing the sentence he weighed the facts of the instant case. He pointed out that defendant threatened Ms. Herzog's life; he used a ruse to gain entrance to Ms. Herzog's apartment and there attempted to accomplish his objective with Ms. Herzog. No provocation emanated from Ms. Herzog. He pointed out that defendant had no prior delinquencies or criminal activity but also noted:
"... Counsel has acknowledged, as well as Mr. Parish, in prior conversation to the Court that Mr. Parish was in need of some type of psychiatric care and attention,...."
He stated that this type of conduct was known to defendant and members of his family for a time before this incident. No such treatment had been sought or provided, however.
The court also had information before it that defendant had been charged with being a "Peeping Tom," which charge arose after the incident in question. The court, after considering these factors, concluded that defendant would not respond affirmatively to probation. The court felt that defendant would again commit such a crime.
Having so concluded, and after further deciding that a lesser sentence would depreciate the seriousness of the crime committed, the trial judge imposed the sentence of twenty years at hard labor, less than one-half of the maximum of fifty years.
As we consider the favorable parole and good time laws applicable to incarcerated persons in this state, we conclude that, under the circumstances presented, the sentence does not constitute cruel or unusual punishment.
For the reasons set forth herein, the conviction and sentence are affirmed.
AFFIRMED.
DIXON, C. J., concurs.
DENNIS, J., dissents with reasons.
DENNIS, Justice, dissenting.
I respectfully dissent.
The majority opinion does not recite additional undisputed facts favorable to the defendant which bear heavily on the issue of whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of attempted aggravated rape: The victim could not recall who first brought up the word "rape" in the course of the defendant's visit. The defendant did not attempt to take off his pants, unzip his zipper, or get on top of the victim. He never touched her breasts or her genital area.
In interpreting the articles of the criminal code all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. La.R.S. 14:3. Accordingly, the closely related offense of forcible rape, La.R.S. 14:42.1, must be considered in determining *1084 the meaning of aggravated rape under La. R.S. 14:42(2) and in considering whether the evidence is sufficient to support the conviction.
In order to attempt to commit a crime an offender must actively desire to cause the specific results required by a particular criminal statute and do or omit an act for the purpose of and tending directly toward the accomplishing of his object. La.R.S. 14:10, 27.
Accordingly, in order to commit attempted aggravated rape, an offender must actively desire to commit rape by (1) overcoming the victim's utmost resistance by force; (2) preventing the victim from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution; or (3) having anal or vaginal sexual intercourse with a victim under the age of twelve years.[1] La.R.S. 14:42.
It is clear that the evidence in this case was sufficient to warrant a finding that the defendant actively desired to engage in sexual intercourse and that he did an act for the purpose of and tending directly toward the accomplishing of his object. It is equally clear, however, that the evidence in this case would not support a rational finding that defendant specifically intended to rape a victim under the age of twelve years or to overcome the victim's utmost resistance by force. The victim in this case, a mature woman, was well over the age of twelve. The evidence shows without dispute that the unarmed defendant never exerted great force and abandoned his attempt before encountering strenuous resistance for no reason other than a change of heart.[2] The evidence, thus, does not support a finding beyond a reasonable doubt that the defendant had an active desire to overcome the victim's utmost resistance by force. Consequently, the only form of aggravated rape which the defendant could have actively desired was that "[w]here the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution." La. R.S. 14:42(2).
The legal definition of this form of aggravated rape is virtually identical to that of forcible rape. There is no essential difference between the specific results required by each crime definition. Both require that the victim be prevented from resisting by threat of great harm under circumstances where the victim reasonably believes that resistance would be futile. Compare La.R.S. 14:42(2) with 14:42.1. This court has held that forcible rape is merely a lesser degree of the crime of aggravated rape, permitting a responsive verdict, La.C.Cr.P. art. 814, subd. A(8) (as amended in 1975), to the charge of aggravated rape. State v. Drew, 360 So.2d 500 (La. 1978); State v. Fletcher, 341 So.2d 340 (La. 1976). The only distinction between aggravated and forcible rape is the degree of force employed and the extent to which the victim resists. State v. Turnbull, 377 So.2d 72 (La. 1979). Nevertheless, the jury is authorized to subject a guilty defendant to more severe punishment by convicting him of aggravated rape rather than forcible rape. The penalty for aggravated rape is life imprisonment with hard labor without parole, probation or suspension, and the *1085 maximum sentence which may be imposed for forcible rape is forty years at hard labor.
Evidently, it was the legislative aim to divide the continuum of acts of coerced sexual intercourse into two categories, aggravated rape and forcible rape, thereby assigning to the jury the function of fixing the range of permissible punishment for convicted offenders by returning a verdict which appropriately fits the crime and the degree of force employed. Accordingly, the question presented by the present case is whether any reasonable jury, viewing all of the evidence, in the light most favorable to the prosecution, could find beyond a reasonable doubt that the defendant actively desired to cause the specific results required by both the aggravated and forcible rape statutes and that the degree of force employed warranted punishment in the greater, rather than lesser, degree. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The evidence in this case is sufficient to warrant a jury's finding that defendant actively desired to commit an act of sexual intercourse without the victim's consent by preventing her resistance with a threat of great harm under circumstances where the victim reasonably believed resistance would have been futile. The victim testified that the defendant obtained entry to her apartment under false pretenses, seized her by the throat, clasped her mouth, said he wanted to make love, warned that he would kill her if she screamed, and dragged her toward a bedroom. She stated that he outweighed her about 130 pounds and was almost a foot taller.
The evidence does not constitutionally justify, however, the jury's election to return a verdict of aggravated rape rather than forcible rape.[3] Within the range of attempted coercive sexual acts, the offense in this case clearly falls among those involving a minimal use of force. Although the victim was frightened and perhaps disturbed psychologically, she was released substantially unharmed. The defendant abandoned his attempt for no reason other than a change of mind. He did not fondle the victim or subject her to any sexual indignity. The evidence viewed from the perspective most favorable to the prosecution does not support a finding beyond a reasonable doubt that the degree of force employed warrants punishment in the greater degree as attempted aggravated rape, rather than in the lesser degree as attempted forcible rape.
For the foregoing reasons, the defendant's conviction and sentence for attempted aggravated rape should be reversed. However, defendant is not entitled to be discharged or receive a new trial. Attempted forcible rape, a lesser included offense was necessarily found in this case by the jury. See State v. Byrd, 385 So.2d 248 (La. 1980). Accordingly, the case should be remanded with instructions to enter a judgment of conviction of attempted forcible rape and to impose a sentence for that crime. Upon resentencing the trial court should consider, among other pertinent factors, the less serious nature of the crime of attempted forcible rape and the extensive mitigating circumstances of the case, not the least of which was defendant's voluntary withdrawal from the attempt which in some jurisdictions constitutes a defense.
ON REHEARING
DENNIS, Justice.
We granted this rehearing to reconsider whether a rational trier of fact could have found the defendant guilty beyond a reasonable *1086 doubt of attempted aggravated rape.[1]
In interpreting the articles of the criminal code all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. La.R.S. 14:3. Accordingly, we must consider the closely related offense of forcible rape, La.R.S. 14:42.1, in determining the meaning of aggravated rape under La.R.S. 14:42(2) and in considering whether the evidence is sufficient to support the conviction.
In order to attempt to commit a crime an offender must actively desire to cause the specific results required by a particular criminal statute and do or omit an act for the purpose of and tending directly toward the accomplishing of his object. La.R.S. 14:10, 27.
Accordingly, in order to commit attempted aggravated rape, an offender must actively desire to commit rape by (1) overcoming the victim's utmost resistance by force; (2) preventing the victim from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution; or (3) having anal or vaginal sexual intercourse with a victim under the age of twelve years.[2] La.R.S. 14:42.
It is clear that the evidence in this case was sufficient to warrant a finding that the defendant actively desired to engage in sexual intercourse and that he did an act for the purpose of and tending directly toward the accomplishing of his object. We think that it is equally clear, however, that the evidence in this case would not support a rational finding that defendant specifically intended to rape a victim under the age of twelve years or to overcome the victim's utmost resistance by force. The victim in this case, a mature woman, was well over the age of twelve. The evidence shows without dispute that the unarmed defendant never exerted great force and abandoned his attempt before encountering strenuous resistance for no reason other than a change of heart.[3] The evidence, thus, does not support a finding beyond a reasonable doubt that the defendant had an active desire to overcome the victim's utmost resistance by force. Consequently, the only form of aggravated rape which the defendant could have actively desired was that "[w]here the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution." La.R.S. 14:42(2).
The legal definition of this form of aggravated rape is virtually identical to that of forcible rape. There is no essential difference between the specific results required by each crime definition. Both require *1087 that the victim be prevented from resisting by threat of great harm under circumstances where the victim reasonably believes that resistance would be futile. Compare La.R.S. 14:42(2) with 14:42.1. This court has held that forcible rape is merely a lesser degree of the crime of aggravated rape, permitting a responsive verdict, La.C.Cr.P. art. 814, subd. A(8) (as amended in 1975), to the charge of aggravated rape. State v. Drew, 360 So.2d 500 (La. 1978); State v. Fletcher, 341 So.2d 340 (La. 1976). The only distinction between aggravated and forcible rape is the degree of force employed and the extent to which the victim resists. State v. Turnbull, 377 So.2d 72 (La. 1979). Nevertheless, the jury is authorized to subject a guilty defendant to more severe punishment by convicting him of aggravated rape rather than forcible rape. The penalty for aggravated rape is life imprisonment with hard labor without parole, probation or suspension, and the maximum sentence which may be imposed for forcible rape is forty years at hard labor.
We conclude, therefore, that it was the legislative aim to divide the continuum of acts of coerced sexual intercourse into two categories, aggravated rape and forcible rape, thereby assigning to the jury the function of fixing the range of permissible punishment for convicted offenders by returning a verdict which appropriately fits the crime and the degree of force employed. Accordingly, the question we are called upon to decide is whether any reasonable jury, viewing all of the evidence, in the light most favorable to the prosecution, could find beyond a reasonable doubt that the defendant actively desired to cause the specific results required by both the aggravated and forcible rape statutes and that the degree of force employed warranted punishment in the greater, rather than lesser, degree. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The evidence in this case is sufficient to warrant a jury's finding that defendant actively desired to commit an act of sexual intercourse without the victim's consent by preventing her resistance with a threat of great harm under circumstances where the victim reasonably believed resistance would have been futile. The victim testified that the defendant obtained entry to her apartment under false pretenses, seized her by the throat, clasped her mouth, said he wanted to make love, warned that he would kill her if she screamed, and dragged her toward a bedroom. She stated that he outweighed her about 130 pounds and was almost a foot taller.
The evidence does not constitutionally justify, however, the jury's election to return a verdict of aggravated rape rather than forcible rape.[4] Within the range of attempted coercive sexual acts, the offense in this case clearly falls among those involving a minimal use of force. Although the victim was frightened and perhaps disturbed psychologically, she was released substantially unharmed. The defendant abandoned his attempt for no reason other than a change of mind. He did not fondle the victim or subject her to any sexual indignity. The evidence viewed from the perspective most favorable to the prosecution does not support a finding beyond a reasonable doubt that the degree of force employed warrants punishment in the greater degree as attempted aggravated rape, rather than in the lesser degree as attempted forcible rape.
For the foregoing reasons, we reverse and set aside the defendant's conviction. However, defendant is not entitled to be discharged or receive a new trial. Forcible rape, a lesser included offense was necessarily found in this case by the jury. See State v. Byrd, 385 So.2d 248 (La. 1980). *1088 The conviction and sentence are reversed, the case is remanded with instructions to enter a judgment of conviction of attempted forcible rape and to impose a sentence for that crime. Upon resentencing, the trial judge is directed to duly consider, among other pertinent factors, the less serious nature of the crime of which defendant now stands convicted and the extensive mitigating circumstances of the case, not the least of which was defendant's voluntary withdrawal from the attempt which in some jurisdictions constitutes a defense.
CONVICTION OF ATTEMPTED AGGRAVATED RAPE SET ASIDE; SUBSTITUTION OF ATTEMPTED FORCIBLE RAPE CONVICTION ORDERED; REMANDED.
LEMMON, J., concurs in the result only and assigns reasons.
BLANCHE, and WATSON, JJ., dissent and assign reasons.
MARCUS, J., dissents for reasons assigned by BLANCHE, J.
LEMMON, Justice, concurring.
I concur in the decree, because the result of the vote by the members of this court dictates that defendant should be remanded for entry of a judgment of attempted forcible rape rather than discharged.
I initially voted with Justices Marcus and Blanche to affirm the conviction of attempted aggravated rape.[1] Justices Dixon, Calogero and Dennis viewed the evidence as insufficient, in terms of degree of force, to support a conviction of attempted aggravated rape, and they voted to set aside that judgment and remand for entry of a judgment of attempted forcible rape under State v. Byrd, 385 So.2d 248 (La.1980). Justice Watson also viewed the evidence as insufficient to support a conviction of attempted aggravated rape. However, since he does not subscribe to the Byrd rationale and since he viewed the evidence as sufficient only to establish a simple battery, he voted to discharge the defendant.
Thus, there was a clear concurrence of a majority of the court in the view that the evidence was at least sufficient to support a conviction of attempted forcible rape.[2] Nevertheless, there were initially not four votes either to affirm or to remand for entry of a judgment of attempted forcible rape. In order to attain a majority position and to prevent the possibility of defendant's being discharged, I changed my vote to concur in the decree (which in effect orders a reduction to attempted forcible rape), despite my continued view that the evidence supports the jury's verdict. I did so because (1) defendant is, in fact, guilty at least of attempted forcible rapethe jury implicitly so found, and the evidence supports that finding in the view of six members of this court, and (2) it would be a travesty of justice to discharge this convicted criminal when the evidence clearly supports his conviction on the lesser included offense.[3]
APPENDIX
We granted a rehearing primarily to consider whether the evidence was sufficient to support the conviction of attempted aggravated rape or was only sufficient to support a responsive verdict of guilty of attempted forcible rape.
On the evidence in this record, considered in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that defendant made threats of great and immediate bodily harm, with the specific intent to prevent the victim from resisting the intended act of non-consensual sexual intercourse, when he had the apparent power to *1089 execute the threats.[1] Therefore, the evidence supports a conviction of attempted aggravated rape.
The jury was instructed as to the elements of and penalties for both attempted aggravated and attempted forcible rape, and both offenses were listed as possible verdicts. Although the evidence would also support a conviction of attempted forcible rape, that choice of verdicts was for the jury to make. An appellate court should not "second guess" that choice.
This case is difficult because defendant withdrew before completing the rape, perhaps indicating that he never intended to carry out the threats that he had made (although he terrorized the victim by making her believe he would carry out the threats). Nevertheless, even if he voluntarily withdrew, he did so at a point in time after culpability for an attempt had already attached.[2] The offense of attempted aggravated rape had been completed when defendant made the threats, under circumstances indicative of apparent power of execution, with intent to prevent resistance.
The considerations relative to defendant's withdrawal were argued to the jury prior to the verdict (and to the judge prior to the sentence)[3]. It was the jury's function to choose which of the two verdicts to return, when both were supported by the evidence. It is the function of this court to determine whether the verdict chosen by the jury was supported by the evidence and not to substitute our choice of verdicts for the choice of a unanimous jury.
BLANCHE, Justice (dissenting).
I respectfully dissent. It is the jury's function to review the testimony and evidence and to render a just verdict. Our role is to determine if that verdict is supported by the evidence. This writer would affirm the defendant's conviction and quotes from the original opinion as follows:
"The words and actions of defendant fulfill the requirements of LSA-R.S. 14:27, in that, by using physical force upon her after making known to her that he intended to commit rape and especially by forcing her toward the bedroom for the purpose of committing the rape he committed "an act for the purpose of and tending directly toward the accomplishing of his object" (aggravated rape). The record presents ample evidence for the jury's verdict."
WATSON, Justice, dissenting.
Defendant used the pretext of needing change to gain entrance to the apartment of the complaining witness. Parish told her he wanted to make love to her. When she appeared frightened, he placed his hand over her mouth to quiet her. Parish threatened to kill her if she screamed when he removed his hand. After she nodded to show acquiescence, he removed his hand, and she verbally consented to sexual intercourse. The witness did not recall who first brought up the word rape, but said it was discussed. After considerable conversation, during which he urged her to undress and she stalled, defendant attempted to drag her into the bedroom. After tripping over some clothing stacked in the hallway, he apologized and voluntarily left the apartment. There is no question that the witness was terrified and slightly battered.
There was no sexual intercourse here. An attempt to commit a crime is defined in pertinent part in LSA-R.S. 14:27 as follows:
"A. Any person who, having a specific intent to commit a crime, does or omits *1090 an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
"B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended."
Defendant obviously wished to have sexual intercourse with the witness. However, the purported victim could not testify that Parish was the one who introduced the idea of rape. An attempted crime requires the specific intent to commit that crime, defined as follows:
"Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." LSA-R.S. 14:10(1).
Specific intent is a state of mind which may be inferred from the circumstances. State v. Williams, 383 So.2d 369 (La., 1980). The evidence here establishes a specific intent to have sexual intercourse but not the intent to have intercourse without the victim's consent. Although she believed he intended to rape her, defendant's apologetic withdrawal negates any specific intention on his part to do that. Compare People v. Frysig, 628 P.2d 1004 (Colo., 1981).
Even if defendant had intended rape, he freely and voluntarily abandoned that purpose. See Bucklew v. State, 206 So.2d 200 (Miss., 1968). When he withdrew from the apartment, a specific criminal intent no longer existed if in fact it ever had. The law favors the voluntary retreat from criminal conduct. Wharton's Criminal Law, Vol. 1, Sec. 226 (12th Ed. 1932). See People v. Kimball, 109 Mich.App. 273, 311 N.W.2d 343 (1981). One can assault a woman with the intention of persuading her to sexual intercourse without a specific intent to rape unless the woman is under the age of consent. Perkins On Criminal Law at page 764 (2d Ed. 1969). "[T]he conduct of the defendant was indecent and insulting, and subjected him to a conviction for an assault and battery; but it falls short of showing a felonious intent." Jones v. State, 90 Ala. 628, at 631, 8 So. 383, at 384 (1890).
Defendant's conduct was deplorable and inexcusable but falls short of showing a specific criminal intent. The evidence is insufficient to convince a rational trier of fact that defendant beyond a reasonable doubt had specific intent to rape. The defendant committed simple battery but this is not a responsive verdict to the crime of attempted aggravated rape. Therefore, the conviction and sentence should be reversed.
I respectfully dissent.
NOTES
[*] Judges Cecil C. Cutrer, Jimmy M. Stoker and Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack C. Watson.
[1] Assignment of error Number 2 was not briefed or argued by the defendant; thus, it is considered abandoned on appeal. State v. Kenner, 384 So.2d 413 (La.1980).
Assignments of error Numbers 1, 3, 4, 5, 6 and 7 present no reversible error, nor do they involve legal issues not governed by clearly applicable legal principles. Their disposition is noted in an appendix attached to this opinion, which remains a part of the record of this case, but will not be published with this opinion.
[1] La.R.S. 14:42 provides:
Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
(3) Where the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense.
Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
[2] Abandonment of an attempt to commit a crime where there is no outside cause is a defense in some jurisdictions. Minn.Stat.Ann. § 609.17(3) (1963); Fla.Stat.Ann. § 777.04(5)(a) (1974); Sparkman v. State, 84 Fla. 151, 92 So. 812 (1922). See also Wis.Stat.Ann. § 939.32 (1955); Model Penal Code § 5.01(4).
[3] The trial judge correctly instructed the jury as to the essential elements and penalties of each offense. Where discretion is afforded a jury in such a manner that it actually participates in the sentencing function it must be instructed as to the penalties. Cf. State v. Williams, 392 So.2d 619 (La. 1980); State v. Washington, 367 So.2d 4 (La. 1978); State v. Milby, 345 So.2d 18 (La. 1977); State v. Prater, 337 So.2d 1107, 1109, 1110 (La. 1976) (Tate, J., concurring) (Calogero, J., dissenting).
[1] In his application for rehearing, the defendant calls to our attention additional facts favorable to his case which were not recited in the original majority opinion: The victim could not recall who first brought up the word "rape" in the course of the defendant's visit. The defendant did not attempt to take off his pants, unzip his zipper, or get on top of the victim. He never touched her breasts or her genital area. Unquestionably, the evidence does establish these facts.
[2] La.R.S. 14:42 provides:
Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
(3) Where the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense.
Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
[3] Abandonment of an attempt to commit a crime where there is no outside cause is a defense in some jurisdictions. Minn.Stat.Ann. § 609.17(3) (1963); Fla.Stat.Ann. § 777.04(5)(a) (1974); Sparkman v. State, 84 Fla. 151, 92 So. 812 (1922). See also Wis.Stat.Ann. § 939.32 (1955); Model Penal Code § 5.01(4).
[4] The trial judge correctly instructed the jury as to the essential elements and penalties of each offense. Where discretion is afforded a jury in such a manner that it actually participates in the sentencing function it must be instructed as to the penalties. Cf. State v. Williams, 392 So.2d 619 (La. 1980); State v. Washington, 367 So.2d 4 (La. 1978); State v. Milby, 345 So.2d 18 (La. 1977); State v. Prater, 337 So.2d 1107, 1109, 1110 (La. 1976) (Tate, J., concurring) (Calogero, J., dissenting).
[1] My reasons for voting to affirm the conviction are stated in an appendix attached to this concurring opinion.
[2] Six members of the court (including the three who voted to affirm) believed the evidence at least supported a conviction of attempted forcible rape, which is a responsive verdict to attempted aggravated rape.
[3] This is the very reason the Byrd procedure was judicially adopted.
[1] With his hands on the victim's throat defendant threatened to kill her. Because of the disparity in size he had the apparent power to do so. It can hardly be suggested that the threat was not made with the intent to prevent resistance.
[2] Whether defendant voluntarily withdrew or was merely frustrated in his attempt, although not clear, is not dispositive of the question of culpability. See State v. Porter, 249 La. 784, 191 So.2d 498 (1966); People v. Staples, 6 Cal. App.3d 61, 85 Cal.Rptr. 589 (1970).
[3] Arguably, these considerations are more properly directed, on appeal, to a review of the excessiveness of the sentence. Indeed, the 20-year sentence imposed in this case is the maximum sentence for attempted forcible rape.
|
891 N.E.2d 48 (2008)
NEWCOMB
v.
NEWCOMB.
Supreme Court of Indiana.
May 15, 2008.
Transfer denied. All Justices concur.
|
679 N.W.2d 88 (2004)
260 Mich. App. 460
Alberta STUDIER, Patricia M. Sanocki, Mary A. Nichols, Laviva M. Cabay, Mary L. Woodring, and Mildred E. Wedell, Plaintiffs-Appellants,
v.
MICHIGAN PUBLIC SCHOOL EMPLOYEES' RETIREMENT BOARD, Michigan Public School Employees' Retirement System, Department of Management and Budget, and Treasurer of Michigan, Defendants-Appellees.
Docket No. 243796.
Court of Appeals of Michigan.
Submitted January 20, 2004, at Lansing.
Decided February 3, 2004, at 9:10 a.m.
Released for Publication May 4, 2004.
*90 White, Schneider, Young & Chiodini, P.C. (by Karen Bush Schneider, James A. White, and J. Matthew Serra), Okemos, for the plaintiffs.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Larry F. Brya, Tonatzin M. Alfaro Maiz, and Marie Shamraj, Assistant Attorneys General, for the defendants.
Before: FITZGERALD, P.J., and NEFF and WHITE, JJ.
*89 FITZGERALD, P.J.
Plaintiffs appeal as of right an order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendants. We affirm.
I
A. Facts and Procedural History
In October 2000, plaintiffs, who are six public school employee retirees, filed an amended three-count "Complaint for Declaratory Judgment, Injunctive and Other Relief" against the Michigan Public School Employees' Retirement Board (the board), the Michigan Public School Employees' Retirement System (MPSERS), the Michigan Department of Management and Budget (DMB), and the Treasurer of the state of Michigan (collectively referred to as defendants). Count I of the amended complaint alleged that defendants violated Const. 1963, art. 9, § 24 by increasing plaintiffs' prescription drug copayments and the deductibles under the Master Health Care Plan. Count II of the amended complaint alleged that the board and the DMB violated Const 1963, art. 1, § 10 and U.S. Const, art. I, § 10 by increasing plaintiffs' prescription drug copayments and the deductibles under the Master Health Care Plan. Count III of the amended complaint alleged that all named defendants violated their trust and fiduciary duties owed to plaintiffs by virtue of implementing a plan to increase prescription drug copayments and the deductible under the Master Health Care Plan.
With respect to plaintiffs' claim that plaintiffs' health care benefits are "accrued financial benefits" as that phrase is defined in Const 1963, art 9,§ 24, the trial court held:
Since both the Michigan Court of Appeals and Michigan Supreme Court have been squarely faced with the opportunity to rule on this question and have declined to do so, this Court cannot rule that health benefits constitute "accrued financial benefits" under Article IX, section 24.
With respect to plaintiffs' claims that defendants' actions impaired a valid contract for health benefits and diminished those benefits, the trial court concluded that
the MPSERS retirees are still receiving the essentials of their bargain. Their portion of total costs of the plan is essentially *91 unchanged, though the plan's total dollar costs (and therefore the retirees' total dollar costs) have increased. Their benefits are well within the range of benefits enjoyed by retirees in other State-wide plans of comparable states.
On August 29, 2003, the trial court issued its final opinion and order granting defendants' motion for summary disposition and dismissing plaintiffs' action.
B. Legislative History of the MPSERS Health Plan
Under the Public School Employees' Retirement Act, MCL 38.201 et seq.,[1] the MPSERS first began paying a portion of the premium for health care benefits for its members pursuant to 1974 PA 244:
On or after January 1, 1995, hospitalization and medical coverage insurance premium payable by any retirant or his beneficiary and his dependents, not to exceed $25.00 per month, under any group health plan authorized by the retirement commission created under this chapter and the department of management and budget shall be paid by the retirement commission from appropriations for this purpose made to the pension accumulation fund created under section 42(1). The payment shall not be made unless the retirant or beneficiary elects coverage under a group plan authorized under this section. [MCL 38.325b(1).]
The amount of the premium paid by the MPSERS gradually increased.[2] The Public School Employees' Retirement Act, 1945 PA 136, was repealed by 1980 PA 300 and replaced with the Public School Employees Retirement Act of 1979, MCL 38.1301 et seq. (the act). The amount of the premium paid by the MPSERS pursuant to MCL 38.1391(1) continued to increase.[3] 1983 PA 143 significantly modified the language in subsection 91(1):
The retirement system shall pay the entire monthly premium, in the amount authorized by the legislature, for hospital, medical-surgical, and sick care benefits for the benefit of a retirant or retirement allowance beneficiary who elects coverage in the group health insurance or prepaid service plan authorized by the retirement board and the department; and may pay up to the maximum of that amount toward the monthly premium for hospital, medicalsurgical, and sick care benefits for the benefit of a retirant or retirement allowance beneficiary enrolled in another group health insurance or prepaid service plan, if enrolled prior to June 1, 1975 and for whom the retirement system on the effective date of this 1983 amendatory act was making a payment towards his or her monthly premium. A retirant or retirement allowance beneficiary until eligible for medicare shall have an amount equal to the cost chargeable to a medicare recipient for part B of medicare deducted from his or her retirement allowance. [Emphasis added.][4]*92 1985 PA 91 amended MCL 38.1391(1) again:
The retirement system shall pay the entire monthly premium or membership or subscription fee for hospital, medicalsurgical, and sick care benefits for the benefit of a retirant or retirement allowance beneficiary who elects coverage in a group health benefits plan authorized by the retirement board and the department. The retirement board and the department shall authorize membership in a health maintenance organization licensed under article 17 of the public health code, Act No. 368 of the Public Acts of 1978, being sections 333.20101 to 333.22181 of the Michigan Compiled Laws. [Emphasis added.]
1989 PA 193 also amended MCL 38.1391(1) to read as follows:
The retirement system shall pay the entire monthly premium or membership or subscription fee for hospital, medicalsurgical, and sick care benefits for the benefit of a retirant or retirement allowance beneficiary who elects coverage in the plan authorized by the retirement board and the department.
Section 91 was amended again by 1996 PA 488 and 1997 PA 143. Section 91 now provides that the MPSERS shall pay the entire monthly premium of a retiree but a retiree must pay a portion of the premium if he or she is a deferred member, does not qualify for Medicare, or has a dependent for which coverage is provided.
C. The MPSERS Health Care Plan from 1975-1999
The MPSERS provides a health care plan for retirees. Cost-sharing features have been a part of the health plan since its inception in 1975. The individual and family deductible component of the health care plan has gradually increased from 1982 to 1999, beginning with a deductible of $50 for each person and $100 for each family in 1982, and gradually rising to a deductible of $145 for each person and $290 for each family in 1999. Cost sharing for the prescription drug program also had gradual increases, ranging from a copay of ten percent in 1975 to a copay of $4 for generic drugs and $8 for brand name drugs in 1997 through March 31, 2000. There is no dispute that the MPSERS health care plan also gradually increased the benefits available under the plan.
D. The changes pertinent to the present lawsuit
On January 21, 2000, the board amended the MPSERS health care plan. The amendments modified the plan's prescription drug copayment structure and out-ofpocket maximum for prescription drugs effective April 1, 2000, and also implemented a formulary effective January 1, 2001. A formulary is a preferred list of drugs approved by the federal Food and Drug Administration that is designed to give preference to those competing drugs that offer the greatest therapeutic benefit at the most favorable cost. Existing maintenance prescriptions outside the formulary were grandfathered in and subject only to the standard copayment of twenty percent of the drug's cost, with a $4 minimum and a $20 maximum.
The prescription drug copayment was changed to a twenty percent copay, with a $4 minimum and $20 maximum for up to a one-month supply. The copay maximum for mail-order prescription copayment was set at $50 for a three-month supply. A $750 maximum out-of-pocket copay for each calendar year was also established.[5] Under the formulary, eligible persons pay *93 an additional twenty percent of a new nonformulary drug's approved cost only when use of the nonformulary drug is not preapproved by the drug plan administrator.
The board also adopted a resolution to increase health insurance deductibles from $145 for an individual to $165, and from $290 to $330 for a family, effective January 1, 2000. The deductibles do not apply to prescription drugs. Plaintiffs are challenging the deductible increase of $20 for each individual and $40 for each family.
II
Plaintiffs first argue that the trial court erroneously concluded that health benefits do not constitute "accrued financial benefits" as that phrase is used in Const 1963, art 9, § 24. Constitutional issues and construction are questions of law and are reviewed de novo on appeal. Mahaffey v. Attorney General, 222 Mich.App. 325, 334, 564 N.W.2d 104 (1997); Wilkins v. Gagliardi, 219 Mich.App. 260, 266, 556 N.W.2d 171 (1996).
Const. 1963, art. 9, § 24 provides:
The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.
Financial benefits arising on account of service rendered in each fiscal year shall be funded during that year and such funding shall not be used for financing unfunded accrued liabilities.
The issue whether health benefits are "accrued financial benefits" for purposes of art. 9, § 24 has been addressed by Michigan courts but has not been definitively resolved. Musselman v. Governor, 448 Mich. 503, 533 N.W.2d 237 (1995) (Musselman I), and Musselman v. Governor (On Rehearing), 450 Mich. 574, 545 N.W.2d 346 (1996) (Musselman II), involved a constitutional challenge to the funding scheme for identified health benefits of § 91 of the act. The challenge came after an executive order was issued that changed the manner in which the health care plan was funded. While the plaintiffs in Musselman I and II ultimately lost,[6] the issue whether the health care benefits described in § 91 were accrued financial benefits was not definitively resolved. In Musselman I, four justices (Boyle, Brickley, Cavanagh, and Mallett) concluded in the Opinion of the Court that health care benefits had to be prefunded under Const 1963, art 9, § 24:
Whether the restriction to "financial" benefits excludes health care benefits from the scope of the provision depends to some extent on one's point of view. From the perspective of the employee, it is not completely clear that health insurance is a "financial benefit." Although health insurance is not cash that retirants may spend as they wish, employees receive health insurance in lieu of additional compensation, and they would have to purchase insurance if it were not provided to them. This analysis tends to show that retirement health care benefits are financial benefits, but the fact that it does not yield a conclusive answer indicates that this point of view is likely the wrong one.
Instead, the proper perspective from which to interpret the term "financial benefits" seems to be that of the government. The purpose of the provision is, after all, to check legislative bodies, requiring them to fund pension obligations annually, and thereby preventing back door spending. Article 9, § 24 arose out *94 of concern about legislative bodies failing to fund pension obligations at the time they were earned, so that the liabilities of several public pension funds greatly exceeded their assets. At the time of the Constitutional Convention, the Committee on Finance and Taxation estimated that it would require nearly $600 million to make the two public school employees retirement systems actuarially sound. See 1 Official Record, Constitutional Convention 1961, p.771. Thus, "many pensioners had accumulated years of service for which insufficient money had been set aside in the pension reserve funds to pay the benefits to which their years of service entitled them." Kosa v. State Treasurer, 408 Mich. 356, 365, 292 N.W.2d 452 (1980).
Failing to fund pension benefits at the time they are earned amounts to borrowing against future budgets, or "back door" spending. Cf. 1 Official Record, Constitutional Convention 1961, pp. 772-773. "Back door" spending was the term used by the delegates to refer to the process of establishing pensions without paying the costs at the same time. The delegates intended to prevent this....
For the purpose of securing pension benefits and preventing "back door spending," failing to prefund retirement health care benefits is no different from failing to prefund monthly retirement allowancesa practice that defendants concede is prohibited. In both cases, the cost of the benefit either must be paid as the benefits are earned by the taxpayers who are receiving the direct benefits from the services, or it must be paid as the benefits come due by taxpayers who have received no direct benefit from the services. The constitution requires that benefits be funded as they are earned. Therefore, because the purpose of the provision is to prevent governmental units from amassing bills for pension payments that they do not have money to pay, we hold that the term "financial benefits" must include retirement health care benefits. [Musselman I, supra at 511-513, 533 N.W.2d 237.]
Two justices (Riley and Levin) concluded in an opinion concurring in part and dissenting in part that health care benefits could not constitute accrued financial benefits based on the common use of the word "financial," which they opined connoted money and some form of hard currency that can be spent:
The majority's ultimate conclusion, however, misses the mark because when interpreting the language of the constitution, unambiguous terms are given their plain meaning.... The normal usage of the word "financial" connotes money and "money" connotes some form of hard currency that can be "spent."
The financial world shares a similar interpretation of this term. In an article appearing in the National Mortgage News on January 14, 1991, a definition of a financial instrument appeared that is directly relevant. In this article, a proposal by the Financial Accounting Standards Board, which creates guidelines for general accounting principles, was discussed. Specifically, the proposal required "financial institutions to report the current value of all `financial instruments' in their portfolios." "FASB Opts for Current Value Reports," National Mortgage News, January 14, 1991, p. 8. Moreover, it is interesting to note that "[t]he FASB proposal excludes pension benefits, leases, insurance policies and similar items from its definition of financial instruments." Id. at 9, 533 N.W.2d 237 (emphasis added). Hence, if the FASB does not consider pension benefits and insurance policies to fall under the definition of a financial *95 instrument, it is not a large leap to conclude that health insurance benefits included in a pension plan are not financial instruments and hence are not financial benefits.
This conclusion by the FASB, although not controlling, sheds a great deal of light on the proper interpretation of the term "financial benefit." However, even more illuminating is the case of Port Huron Area School Dist. v. Port Huron Ed. Ass'n, 120 Mich.App. 112, 116, 327 N.W.2d 413 (1982). In that case, the Court of Appeals interpreted the term "financial resource" as including funds, assets, and expected revenues. "We hold that the term `financial resources' means the funds-assets, expected revenues, etc.available for expenditure by the [district] in a given year." The reference in this definition to funds, assets, and expected revenues once again demonstrates that the term "financial" is understood to involve actual money. Consequently, it is difficult to find that a health benefit is a financial benefit.
This conclusion finds further support in the fact that even money does not always equal a financial benefit. In Jurva v. Attorney General, 419 Mich. 209, 224, 351 N.W.2d 813 (1984), this Court found that cash payments as an incentive for early retirement did not constitute financial benefits. "We find, therefore, that early retirement incentives are not `financial benefits arising on account of service rendered' and that Const 1963, art 9, § 24 is inapplicable."
While the majority does attempt to substantiate its conclusion that health benefits are equal to financial benefits by looking to the intent of the framers of the provision, such an examination is improper because, as stated by Justice Cooley in Blodgett [People ex rel. Twitchell v. Blodgett, 13 Mich. 127 (1865)] "the light to be derived from an examination of the proceedings of constitutional conventions, on questions of constitutional construction, is commonly vague and inconclusive, and not to be allowed, in any case, to control the meaning of unambiguous terms." Id. at 166....
Because the term "financial" has a commonly understood meaning, there is no need to look to the framers' intent behind the provision. Thus, I believe that the majority's analysis regarding the purpose behind the provision is improper.
Furthermore, it is questionable whether the framers even intended that financial benefits equal health benefits. The legislative history indicates that the term originally recommended for this provision by the advisory committee was "benefit," which has a broad connotation.
"The committee recommends that the following be included in the constitution:
"Sec. a. The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof, which shall not be diminished or impaired thereby.
"All such benefits arising on account of service rendered in each fiscal year shall be funded during that year and such funding shall not be usable for financing unfunded accrued liabilities." [1 Official Record, Constitutional Convention 1961, p. 770. Emphasis added.]
However, in the final draft, the framers limited the term "benefit" by adding the word "financial."
"Financial benefits arising on account of service rendered in each fiscal year shall be funded during that year and such funding shall not be used for financing unfunded accrued liabilities."
*96 [Const. 1963, art. 9, § 24. Emphasis added.]
Hence, the problem with the majority's conclusion is that the framers' creation specifically classifies the type of benefit protected as financial. The framers had every opportunity to use the broader solitary term "benefit" when it was recommended in that form, but chose not to do so. This fact leads to the inevitable conclusion that the framers actually intended to limit the definitional umbrella of "benefit" by narrowing it with the use of the term "financial." In fact, when the vote was taken on April 19, 1962, the proposal that included the term "financial benefit" was overwhelmingly approved with 117 yeas and only 1 nay. 2 Official Record, Constitutional Convention 1961, p 2659. Consequently, even if we look at the legislative history behind the provision, we come to the realization that the framers wanted a narrower meaning for the term "benefit."
* * *
... The specific word chosen, "financial," identifies the class restricting the meaning of the general word "benefit" to that class, "financial benefits." If the framers had wanted the term "benefit" to be used in a broad sense, they would not have used the term "financial" to limit it. Here the framers had a chance to limit the term to only "benefit," and actually made that recommendation, but, in the end, the limiting term "financial" appeared. Consequently, because a court "should not, without clear and cogent reason to the contrary, give a statute a construction the legislature itself plainly refused to give," People v. Adamowski, 340 Mich. 422, 429, 65 N.W.2d 753 (1954), it only makes sense that we should not extend to the term "benefit" a broader meaning that the framers clearly rejected. [Musselman I, supra at 526-532, 533 N.W.2d 237.]
Justice Weaver did not participate in the decision in Musselman I.
When the case was before the Supreme Court on rehearing in Musselman II, three justices[7] opined that the health benefits contained in § 91 were not accrued financial benefits for which there is constitutional protection under art 9, § 24. Justice Weaver reasoned in a separate opinion:
The pension and retirement systems in place at the time of the 1961 Constitutional Convention consisted solely of monies paid in the form of a monthly stipend to a retired employee based on years of service. To the electorate, the juxtaposition could not have been more clear: financial benefits of each pension plan and retirement system would be prefunded. However, it would not have been anticipated that these systems included health benefits because health benefits simply did not exist, nor were they expressly included within the scope of accrued financial benefits. [Musselman II, supra at 579, 545 N.W.2d 346.]
Justice Brickley, in a separate opinion in Musselman II, changed his position from the one he had taken in Musselman I, opining that resolution of the case did not require addressing the issue whether health benefits are accrued financial benefits.
We agree with the reasoning of Justices Riley, Levin, and Weaver, and conclude that health benefits are not "accrued financial benefits" as that term is used in Const 1963, art 9, § 24. Thus, the trial court properly granted summary disposition *97 with regard to count I of plaintiffs' complaint.
III
Plaintiffs contend that the trial court erroneously granted summary disposition of count II of their complaint because there is a genuine issue of material fact with regard to whether the modifications to the health care plan constituted a substantial impairment of contract.
Both the federal and state constitutions prohibit the enactment of state law that impairs existing contractual obligations. U.S. Const. art. I, § 10; Const. 1963, art. 1, § 10. The language contained in our state constitution, virtually identical to that used in the federal constitution, provides: "No bill of attainder, ex post facto law or law impairing the obligation of contract shall be enacted." The purpose of the Contract Clause is to protect bargains reached by parties by prohibiting states from enacting laws that interfere with preexisting contractual arrangements. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 242, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978).
While the Contract Clause prohibits any state law from impairing the obligations of contract, this prohibition must be "accommodated to the inherent police power of the State `to safeguard the vital interests of its people.'" Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 410, 103 S.Ct. 697, 74 L.Ed.2d 569 (1983), quoting Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 434, 54 S.Ct. 231, 78 L.Ed. 413 (1934). The prohibition, therefore, is not absolute. To test for the valid accommodation of the Contract Clause and the state's police power, the United States Supreme Court has established a three-pronged test. The first prong is to determine "whether the state law has, in fact, operated as a substantial impairment of a contractual relationship." Allied, supra at 244, 98 S.Ct. 2716. The second prong requires that the legislative disruption of contract expectancies be necessary to the public good, and the third prong requires that the means chosen by the Legislature to address the public need be reasonable. Id. at 247, 98 S.Ct. 2716; Romein v. Gen. Motors Corp., 436 Mich. 515, 535-536, 462 N.W.2d 555 (1990).
Plaintiffs claim that defendants' actions in increasing the Master Health Care Plan deductibles and prescription drug copayments impair the contract they had by operation of MCL 38.1391(1). Thus, this Court must first address the first prong of the test for impairment of contract and determine what contractual rights, if any, the legislation established. MCL 38.1391(1) provides:
The retirement system shall pay the entire monthly premium or membership or subscription fee for hospital, medicalsurgical, and sick care benefits for the benefit of a retirant or retirement allowance beneficiary who elects coverage in the plan authorized by the retirement board and the department.
A state contractual obligation arises from legislation only if the Legislature has unambiguously expressed an intention to create the obligation. See, e.g., United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 17 n. 14, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977). In order to prove that a statutory provision has formed the basis of a contract, the language employed in the statute must be "plain and susceptible of no other reasonable construction" than that the Legislature intended to be bound by a contract. Stanislaus Co. v. San Joaquin & King's River Canal & Irrigation Co., 192 U.S. 201, 208, 24 S.Ct. 241, 48 L.Ed. 406 (1904).
*98 A statute can create a contract if the language and circumstances demonstrate a clear expression of legislative intent to create private rights of a contractual nature enforceable against the state. United States Trust, supra at 17 n. 14, 97 S.Ct. 1505; Blue Cross & Blue Shield of Michigan v. Governor, 422 Mich. 1, 367 N.W.2d 1 (1985).
In Musselman I, supra at 505 n. 1, 533 N.W.2d 237, the Supreme Court stated that "the defendants conceded that these statutes [including § 91(1)] create a right to receive health benefits that may not be impaired," and that "defendants[8] concede that retirement health care benefits are contractual benefits subject to Const 1963, art 1, § 10." Musselman I, supra at 519 n. 19, 533 N.W.2d 237. While these concessions are not binding in this litigation, the language of MCL 38.1391(1) demonstrates a clear expression of legislative intent to create contractual rights for public school employees.[9] Health insurance is part of an employee's benefit package and the whole package is an element of consideration that the state contracts to tender in exchange for services rendered by the employee.
The second inquiry of prong one is whether the changes in the deductibles for the Master Health Care Plan and in the copayments for prescription drugs operate as a "substantial impairment" of a contractual relationship. Deductibles and copayments have historically been a component of the MPSERS health care plan. The challenged action of defendants does not directly affect the terms of the contract. The board continues to pay the entire monthly premium for health benefits for retirees as provided in subsection 91(1), and the payment of a particular premium, i.e., the "full cost" of the premium, is what is provided by statute. The alleged impairment does not alter this basic benefit to the retiree and is therefore not substantial.[10]
Affirmed.
NOTES
[1] The Public School Employees' Retirement Act, 1945 PA 136, was repealed by 1980 PA 300.
[2] 1978 PA 470 increased the amount to $31 a month. 1979 PA 60 increased the amount to $40 a month.
[3] 1981 PA 133 increased the amount to $52 a month effective October 7, 1981. 1981 PA 258 increased the amount to $66 a month effective September 30, 1982.
[4] The legislative analysis for HB 4611 stated as the "argument for" the amendment that "[t]he bill would end the necessity of annually amending the PSERS act to reflect the increases in BC/BS rates." House Legislative Analysis, HB 4611, June 16, 1983.
[5] The prior prescription drug component of the MPSERS health care plan did not have an annual out-of-pocket maximum for each person.
[6] The Court concluded that mandamus relief was not available because the Supreme Court does not have authority to order the Governor or the Legislature to appropriate funds.
[7] Justices Riley, Levin, and Weaver.
[8] The defendants in Musselman I included the board and the Treasurer of the state of Michigan.
[9] Because all the plaintiffs in this case have retired and, therefore, have vested health benefits, a discussion about when health care benefits become vested benefits is not necessary in this case.
[10] Further, subsection 91(1) makes the payment of premiums subject to a retirant or retirant allowance beneficiary electing "coverage in the plan authorized by the retirement board and the department." The statute does not provide, however, for a particular health care plan, and, in fact, does not provide for prescription drug coverage. To the contrary, the language of the statute contemplates that the board may change the health care plan. The board has not lessened the coverage available under the health care plan but, rather, has added coverage for new procedures, new services, and new prescription drugs.
|
Order Entered October 21, 2016
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01212-CV
No. 05-16–01213-CV
IN RE NATHAN BURT, Relator
Original Proceeding from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F15-25052 and F15-25053
ORDER
Before Justices Francis, Fillmore, and Stoddart
Based on the Court’s opinion of this date, we DISMISS this original proceeding for want
of jurisdiction.
/s/ ROBERT M. FILLMORE
JUSTICE
1
|
342 S.W.2d 445 (1961)
Joseph Robert SMITH, Appellant,
v.
STATE of Texas, Appellee.
No. 32166.
Court of Criminal Appeals of Texas.
February 1, 1961.
Charles W. Tessmer, Robert C. Benavides, Dallas, for appellant.
Henry Wade, Criminal Dist. Atty., Thomas B. Thorpe, William F. Tucker, Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
Appellant was convicted of the offense of sodomy and his punishment assessed at confinement in the penitentiary for 15 years.
After trial, sentence, and notice of appeal to this Court, appellant was adjudged insane and committed to a State Hospital. Upon motion of appellant's counsel, all further proceedings in this Court were suspended and the cause was ordered retired from the docket until it should be properly shown that appellant had been restored to sanity. Smith v. State, Tex.Cr.App., 336 S.W.2d 169.
It is now shown by judgment duly entered in the Criminal District Court of Dallas County that appellant has been restored to *446 sanity and, upon motion of the State, the cause is ordered re-instated upon the docket for further proceedings.
The prosecuting witness, a young boy 15 years of age at the time of trial, testified that he was a "Little Brother" in the Big Brothers Association of the community where he lived in Dallas County; that he first met the appellant "around Christmas 1957" at an association banquet; that some two weeks later appellant started coming to his home and they would go to the drug store to get a drink; that in the month of February he and his brother, Bill, went with appellant on a trip to East Texas where they spent the night at a motel in Lufkin; that the three all slept in one double bed and during the night appellant fondled the witness' private parts; that later appellant became the witness' "Big Brother" and started taking him to appellant's farm at Seagoville; and that, beginning in March 1958, they started spending week ends together at the farm. The witness stated that, after they started going to the farm and spending the night, appellant, after they would go to bed, began fondling his private parts which culminated in appellant committing an act of oral sodomy upon him in the month of March 1958.
Appellant's written confession was introduced in evidence by the State in which he stated that he first met the prosecuting witness in December 1957 and that, in February or March 1958, he began having him come to his farm in Seagoville for week end visits. Appellant admitted in the confession that upon the occasion of several of the visits he fondled the private parts of the prosecuting witness and on one occasion committed an act of sodomy upon him.
Appellant did not testify but called his brother as a witness who testified that appellant had been under the treatment of a psychiatrist.
Appellant insists that the court erred in permitting the State to introduce, as original evidence, proof that he had committed the extraneous offense of fondling upon the prosecuting witness in Lufkin prior to March 1958, when the alleged act of sodomy occurred.
In Johns v. State, 155 Tex.Cr.R. 503, 236 S.W.2d 820, this Court held that, in cases involving incest and rape under the age of consent, acts other than the one charged in the indictment were admissible as evidencing the probability of the charged act and the unnaturalness of the accused's attitude toward the victim of his lust. The Johns case was followed in Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612; Head v. State, 160 Tex.Cr.R. 42, 267 S.W. 2d 419; Earwood v. State, 161 Tex.Cr.R. 171, 275 S.W.2d 652; and other cases.
In Lozano v. State, 159 Tex.Cr.R. 613, 266 S.W.2d 147, we applied the rule announced in the Johns case to a case of fondling.
No reason exists why the rule should not apply to a sodomy case such as the one before us where the victim of the lust is a young boy, 13 years of age, when the acts are committed.
The case of Young v. State, 159 Tex.Cr. R. 164, 261 S.W.2d 836, relied upon by appellant is not here controlling because in that case the prior acts of sodomy were upon two boys who were not present when the offense of indecent exposure to another boy for which the accused was being tried was committed.
The contention is overruled.
Appellant next insists that the court's charge was fundamentally erroneous because the abstract definition of the offense given by the court informed the jury that certain acts, not charged in the indictment, would constitute the offense. No objections were made by appellant to the charge nor were any requested charges presented to the court. The indictment charged that appellant committed oral *447 sodomy upon the prosecuting witness. While the court defined the offense under that portion of Art. 524, V.A.P.C., which provides that "Whoever has carnal copulation * * * in an opening of the body, except sexual parts, with another human being, * * * shall be guilty of sodomy * * *", the court did make a direct and pertinent application of the law to the case as alleged in the indictment and made by the facts. Under the court's instruction, the jury was required, before convicting the appellant, to find from the evidence beyond a reasonable doubt that he did have carnal copulation with the prosecuting witness by using his mouth on his sexual parts. Such instruction required a finding by the jury of the constituent elements of the offense of oral sodomy as charged in the indictment and the charge does not present fundamental error. Davis v. State, 10 Tex. App. 31; Lights v. State, 21 Tex.App. 308, 17 S.W. 428; and Martinez v. State, 157 Tex.Cr.R. 603, 252 S.W.2d 186.
We overrule appellant's remaining contention that the evidence is insufficient to show that the offense was committed within the period of limitation. The limitation period for the offense of sodomy is three years. Art. 180, V.A.C.C.P. The indictment was presented against the appellant on April 20, 1959. The testimony of the injured party that he first met the appellant "around Christmas 1957"; that he and appellant made the trip to East Texas in February 1958; and that after the trip they started going to appellant's farm when in "March of 1958" he committed the act of sodomy, clearly shows that the offense was committed within the period of limitation. The appellant's written confession also shows that the offense was committed within such period.
Finding the evidence sufficient to sustain the conviction and no reversible error appearing; the judgment is affirmed.
Opinion approved by the Court.
|
NO. 07-01-0358-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 11, 2002
______________________________
JACKIE R. THOMAS A/K/A JACKIE PERRY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2001-436100; HONORABLE CECIL G. PURYEAR, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Appellant Jackie R. Thomas a/k/a Jackie Perry filed a Motion to Dismiss Appeal on
December 28, 2001, averring that she no longer wishes to prosecute her appeal. The
Motion to Dismiss is signed by both appellant and her attorney.
Without passing on the merits of the case, appellant’s motion for voluntary dismissal
is granted and the appeal is hereby dismissed. Tex. R. App. P. 42.2. Having dismissed
the appeal at appellant’s personal request, no motion for rehearing will be entertained and
our mandate will issue forthwith.
Phil Johnson
Justice
Do not publish.
2
|
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0765-14T2
IN THE MATTER OF BOARD OF FIRE
COMMISSIONERS, FIRE DISTRICT NO. APPROVED FOR PUBLICATION
1, MONROE TOWNSHIP and MONROE December 8, 2015
TOWNSHIP PROFESSIONAL FIREFIGHTERS
ASSOCIATION, INTERNATIONAL APPELLATE DIVISION
ASSOCIATION OF FIREFIGHTERS,
LOCAL 3170.
_________________________________________
Argued October 26, 2015 – Decided December 8, 2015
Before Judges Lihotz, Fasciale and Nugent.
On appeal from the Public Employment
Relations Commission.
Jonathan F. Cohen argued the cause for
appellant Board of Fire Commissioners, Fire
District No. 1, Monroe Township (Apruzzese,
McDermott, Mastro & Murphy, P.C., attorneys;
James L. Plosia, Jr., of counsel and on the
brief; Mr. Cohen, on the brief).
Daniel J. Zirrith argued the cause for
respondent Monroe Township Professional
Firefighters Association, International
Association of Firefighters, Local 3170 (Law
Offices of Daniel J. Zirrith, L.L.C.,
attorneys; Mr. Zirrith, of counsel and on
the brief).
Frank C. Kanther, Deputy General Counsel,
argued the cause for respondent New Jersey
Public Employment Relations Commission (Don
Horowitz, Acting General Counsel, attorney;
Mr. Horowitz, on the statement in lieu of
brief).
The opinion of the court was delivered by
FASCIALE, J.A.D.
Monroe Township (the Township) Board of Fire Commissioners,
District No. 1 (the Board), appeals from a September 18, 2014
final agency decision by the Public Employment Relations
Commission (PERC) sustaining unfair practice charges filed by
the Monroe Township Professional Firefighters Association,
International Association of Firefighters, Local 3170 (Local
3170), alleging that the Board violated the New Jersey Employer-
Employee Relations Act (the Act), N.J.S.A. 34:13A-1 to -43.
Local 3170 argued the Board retaliated by firing full-time
firefighters in District No. 1, after it lodged the unfair labor
practice charges. The Board maintained the discontinuation of
full-time firefighters in favor of using volunteers was designed
to save taxpayer money for the Township. Applying the dual
motivation test set forth by our Supreme Court in In re Township
of Bridgewater, 95 N.J. 235 (1984), PERC upheld the findings of
a hearing examiner, who determined that anti-union animus was a
substantial or motivating factor for the termination. PERC
rejected as pretextual the Board's assertion that it fired the
firefighters as a cost saving measure.
On appeal, the Board again asserts its managerial action
fell within its right to assure fiscal responsibility.
2 A-0765-14T2
Accordingly, the Board contends PERC had no authority to review
the matter, and even if it did, it overstepped its remedial
authority.
We affirm PERC's determination and conclude PERC did not
overstep its remedial authority by requiring the Board to offer
to reinstate the terminated employees with substantially the
same work hours, responsibilities, and benefits. We hold,
however, that a public employer retains its rights under the Act
after it reinstates an aggrieved employee "to discharge a worker
for a legitimate business reason, unrelated to the employee's
union activities." Twp. of Bridgewater, supra, 95 N.J. at 237.
The reinstatement of an aggrieved employee, therefore, does not
forever preclude the public employer from making legitimate and
non-retaliatory employment decisions.
I.
The Act authorizes municipalities to create fire
districts, each to be run by a five-member board of fire
commissioners. There are three fire districts in the Township.
The Board is the public employer for Fire District No. 1. Local
3170 represents all Township paid firefighters and is an
employee labor organization within the meaning of the Act.
By 1999, the Board had hired three full-time firefighters
in District No. 1: Michael Mangeri, David Shapter, and Joseph
3 A-0765-14T2
Calella. In 2007, the Board added a per diem firefighter to
comply with a regulation requiring that four firefighters battle
certain fires. Calella later resigned due to a disability, and
the Board replaced him with a per diem firefighter rather than a
full-time, permanent career firefighter. Thereafter, the paid
firefighting force in District No. 1 consisted of four
firefighters: two full-time and two per diem. The per diem
firefighters were not members of Local 3170.
In March 2008, James Grande, the president of Local 3170,
attended a Board meeting and requested that the Board fill
Calella's vacant full-time firefighter paid position. Although
Commissioner Joseph Leatherwood stated the Board was not
interested in filling the vacancy with a third full-time
firefighter, President Grande pursued the request by engaging in
informal discussions with various Board members on the subject.
In June 2008, Board Chairman Charles DiPierro and Volunteer
Chief Lonnie Pipero met with Grande, Mangeri, and Shapter and
informed them that the Board had deliberated on the matter and
had decided that it would not fill the vacant position.
Local 3170 retained counsel, who wrote a letter to the
Board advising it to cease from violating the Act and the Open
Public Meetings Act, N.J.S.A. 10:4-6 to -21. Counsel requested
4 A-0765-14T2
that the Board deal exclusively with Local 3170 as to filling
the full-time paid vacancy. Chairman DiPierro responded:
The Board did not appreciate receiving [the]
letter [from Local 3170's attorney] and that
it was looking into the possibility of
eliminating the career [firefighting] staff.
He also said that any future actions taken by the union's
attorney would not help getting the third firefighter position
filled.
In July 2008, Local 3170's counsel wrote to the Board
expressing a desire to negotiate rather than litigate, but
cautioned that Local 3170 might be left with no alternative
other than filing unfair practice charges under the Act. The
Board did not respond.
On October 13, 2008, Local 3170's counsel sent another
letter reiterating its position. The Board, through counsel,
arranged a meeting with Local 3170 members. The Board's counsel
and Commissioners DiPierro and Perry attended on behalf of the
Board and agreed to hire a third firefighter. The Board also
invited Local 3170 members to attend the next Board meeting on
November 19, 2008. The Board's counsel and DiPierro did not
attend that meeting, at which Commissioner Robert LeBrun stated
that the Board "had no intention of hiring a third permanent
firefighter[,]" and that Local 3170 could "[g]o ahead and sue
us, do what you have to do."
5 A-0765-14T2
On November 20, 2008, Shapter talked to DiPierro, who
advised that "the [Board] w[as] considering getting rid of all
of the paid career staff so that they were not going to add a
third career firefighter." On December 5, 2008, DiPierro also
stated if the union president and attorney "[k]eep pushing
issues with the hiring of the third man, the Board is thinking
of pushing the union out of the station up to the other end of
town." On December 28, 2008, without any explanation by the
Board, Mangeri learned that another individual would be assuming
his payroll functions.
On January 13, 2009, counsel for Local 3170 informed the
Board that unless the parties resolved their dispute, it would
file "an unfair practice charge and grievance alleging that the
Board has violated the Act and the parties' agreement by filling
bargaining unit positions with part[-]time[,] non-unit members
and threatening unit members for their exercise of rights
guaranteed under the Act . . . ."
On February 19, 2009, the Board continued threatening the
future of the paid firefighting staff. For example, while
Shapter, DiPierro, and a per diem firefighter were at the
firehouse, another volunteer firefighter commented that the
television set was taken away and that "they got rid of the mail
. . . ." DiPierro stated "there[ are] going to be a lot more
6 A-0765-14T2
changes and this is the beginning of the end." The comment was
corroborated by the per diem firefighter.
On March 23, 2009, Local 3170 charged the Board with
violating sections 5.4(a)(1), (3), and (5) of the Act, which
provide in pertinent part:
a. Public employers, their
representatives or agents are prohibited
from:
(1) Interfering with, restraining or
coercing employees in the exercise of the
rights guaranteed to them by this act.
. . . .
(3) Discriminating in regard to hire or
tenure of employment or any term or
condition of employment to encourage or
discourage employees in the exercise of the
rights guaranteed to them by this act.
. . . .
(5) Refusing to negotiate in good faith
with a majority representative of employees
in an appropriate unit concerning terms and
conditions of employment of employees in
that unit, or refusing to process grievances
presented by the majority representative.
Local 3170 specifically alleged that the Board violated the Act
"by unilaterally assigning bargaining unit work to non-
bargaining employees and retaliating against Local 3170 through
threats and intimidation." Local 3170 further asserted that the
Board "took retaliatory action toward[s] Local 3170 and
7 A-0765-14T2
threatened to dissolve the paid career staff if Local 3170
continued to assert its rights under the Act."
On May 8, 2009, for the first time since full-time
firefighters were hired, the weekday paid-firefighter shift was
covered by volunteer firefighters. On May 22, 2009, DiPierro
stated to Shapter that "your union and career [staff] are
putting up a wall between the [Board]." DiPierro continued,
stating "[t]his is not good for your future here . . . you know
that your contract is up December 31, [2009] and that might be
it." A per diem firefighter corroborated that DiPierro made
these statements "in a threatening and demeaning tone."
At this time, Mangeri was working light duty because of an
injury. On May 29, 2009, the day after the Board and Local 3170
members attended an exploratory conference held by PERC, the
Board eliminated Mangeri's light-duty eligibility status,
indicating that he could return to work after he was cleared by
the Board's health care provider. On June 17, 2009, the Board
passed a resolution repealing the Township's light-duty policy.
On December 16, 2009, before a regularly scheduled Board
meeting, Volunteer Deputy Fire Chief Scott Kivet overheard
Commissioner Vincent Dilieto and Chief Pipero discussing the
termination of the paid firefighting staff. Commissioner
Dilieto suggested "it might be done tonight" and Chief Pipero
8 A-0765-14T2
told Kivet "nothing [would] stop it." Dissolution of the paid
firefighting staff, however, was not discussed at the Board
meeting.
On December 29, 2009, the parties met to negotiate a new
firefighting services contract. Local 3170 made its proposals,
which DiPierro and Commissioner Michael Costello advised would
be presented to the Board. On January 14, 2010, DiPierro
requested that Mangeri bring the 2009 firehouse logbook to the
Board meeting scheduled for January 20, 2010. Three days later,
he also directed Mangeri to "forward all programs and passwords
on all [firehouse] computers to the Board."
On January 20, 2010, the Board approved District No. 1's
2010 budget. The Board stated during the meeting that "no
reduction in force [was] reflected in the budget and . . . money
to compensate the career firefighters and per diem firefighters
was included in the 2010 budget." DiPierro reassured those in
attendance that "money for paid staff was in the budget" and it
was "the Board's intention . . . to provide fire protection with
career staff, volunteers[,] and mutual aid." Commissioner
LeBrun also spoke, noting there was nothing "on the agenda to
dissolve the career staff."
The next day, DiPierro contacted Mangeri and Shapter and
instructed them to keep a more detailed logbook. On February 1,
9 A-0765-14T2
2010, Mangeri contacted DiPierro and Costello to schedule a
second contract negotiation session. The parties never met
again to discuss a successor agreement.
The Board held its next scheduled meeting on February 17,
2010. Two days prior, it posted a notice informing the public
the Board would "consider personnel matters" at the meeting and
that "[o]fficial action may be taken . . . ." At the meeting,
the Board passed a resolution (4-0) dissolving the full-time
paid firefighting staff in District No. 1.1 The resolution
stated, in pertinent part:
WHEREAS; the Board has determined . . .
the costs of maintaining full-time paid
firefighters to supplement the fire
protection services provided by [District
No. 1's] highly[-]skilled and dedicated
volunteer firefighters exceed the benefits
derived and is economically burdensome and
unwarranted in these times of severe
economic hardship and distress; and
WHEREAS; Termination of the full[-]time
paid staff will result in substantial cost
savings to [District No. 1] and will enable
[District No. 1] to reduce its budget and
thereby result in a lower fire district tax
rate.
On March 16, 2010, Local 3170 amended its unfair practice
charge, providing "specific examples of retaliatory acts by the
Board and alleging . . . the retaliation intensified since the
1
Commissioner Perry abstained from voting.
10 A-0765-14T2
filing of the [original] charge, culminating in the termination
of the full[-]time firefighting career staff."
The Board denied the charges, maintaining that it acted
within its discretion to dissolve the paid fire department. The
Board contended that it did so as a cost saving measure, rather
than in retaliation for Local 3170's undisputed protected
activity.
The hearing examiner, who conducted hearings on seventeen
days over twenty-three months, issued a comprehensive seventy-
nine page opinion, and concluded that the Board violated the
Act.
Regarding violations of N.J.S.A. 34:13A-5.4(a)(1) and (5),
the hearing examiner concluded that the Board failed to
negotiate in good faith to fill the third, full-time, paid
firefighting position. The hearing examiner found the
firefighters' interests "in preserving the weekday, daytime
firefighting duties for themselves," outweighed the Board's
motive "to operate the paid shift at a reduced cost," without
reorganizing or changing the way it delivered fire services to
District No. 1 during the day. Citing City of Jersey City v.
Jersey City Police Officers Benevolent Association, 154 N.J.
555, 580-81 (1998), the hearing examiner concluded this activity
was "mandatorily negotiable" and could not be performed without
11 A-0765-14T2
affording "the union . . . an opportunity to negotiate an
acceptable alternative, one that would not result in job loss
and [a] reduction in union membership."
Regarding violations of N.J.S.A. 34:13A-5.4(a)(3) and (4),
the hearing examiner concluded Local 3170 proved "by a
preponderance of the evidence [i]n the record that protected
conduct was a substantial or motivating factor in the Board's
decision to dissolve the paid fire department." The hearing
examiner found Mangeri and Shapter, individually and through
Local 3170 president Grande, requested, on multiple occasions,
that the Board fill the third firefighter position with a full-
time career firefighter instead of using per diem firefighters.
These requests began in 2008 and continued until 2010.
The hearing examiner found that the Board acted with
hostility. We quote at length from pertinent parts of the
hearing examiner's findings setting forth the substantial
credible evidence of retaliation and anti-union animus:
It was undisputed by the parties that
prior to 2008 there was labor peace in Fire
District [No.] 1. During that time, the
parties had a friendly working relationship
and cooperatively worked together to resolve
issues as they arose. Their relationship
began to deteriorate when Local 3170's
attorney began writing to the Board and
pressing the issue of filling the third
firefighter position with a full-time
employee who would be a member of the
bargaining unit. As early as July 16, 2008,
12 A-0765-14T2
. . . the Board read to the public a letter
it had received the previous day from
counsel to Local 3170 regarding the filling
of the vacant position. After the meeting,
Chairman DiPierro warned President Grande
that more letters from the Local's attorney
would only aggravate the situation and could
lead to the elimination of the paid staff.
The day after Shapter attended the
November 19, 2008 Board executive session
where Commissioner LeBrun remarked, "go
ahead and sue us, do what you have to do,"
[Chairman] DiPierro advised Shapter that the
Board was considering getting rid of all of
the paid firefighters. About two weeks
later on December 5th, DiPierro further
cautioned Shapter that if the union kept
pushing the issue of hiring a third full-
time firefighter, the Board will push "the
union out of the station up to the other end
of town."
On January 1, 2009, payroll duty was
taken away from Mangeri without explanation.
He was informed of the change via email
instead of personally by a Board liaison as
had been done in the past.
On January 13, 2009, Local 3170's
attorney apprised the Board that it would be
filing an unfair practice charge if it did
not cease using non-bargaining unit
employees to perform bargaining unit work.
A month later, on February 19[, 2009],
Chairman DiPierro warned . . . Shapter that
"this is the beginning of the end."
The Board's hostility and acts of
retaliation intensified and escalated after
Local 3170 filed its unfair practice charge
. . . . Setting a tone, [Chairman] DiPierro
stopped visiting the firehouse as often and
ceased eating lunch with the paid
firefighters.
13 A-0765-14T2
On May 8, 2009, while Mangeri was on
light[-]duty assignment and Shapter was off
from work, the Board operated the day shift
exclusively with volunteer firefighters. It
was the first time since the establishment
of the paid force that the weekday, day
shift was covered by volunteers. Also, in
May 2009, the Board became less responsive
and more exacting in approving requested
time-off by the firefighters. Sometime
before May 20, 2009, the Board took away
scheduling duties from Mangeri and Shapter.
They were not given an explanation as to why
the duties were assigned to a secretary and
no one from the Board informed them of the
change. The secretary told them.
President Grande and . . . Shapter
attended the May 20[, 2009] meeting of the
Board. During the public portion of the
meeting, Grande asked the Board why no paid
staff was used on May 8[] and why the
scheduling duties were taken away from
Mangeri and Shapter. Two days later, on May
22[, 2009 Chairman] DiPierro told Shapter
. . . "[y]our union and career [staff] are
putting a wall between the [Board]" and
warned him that[] "[t]his is not good for
your future here . . . you know that your
contract is up [o]n December 31, [2009] and
that might be it." [Chairman] DiPierro
exhibited further hostility toward Local
3170 by rhetorically asking Shapter, "[w]ho
is he to question the Board," referring to
union President Grande.
On May 28, 2009, the Board expended
resources in defending itself against Local
3170's unfair practice charge by attending
an exploratory conference at the
[Commission] office in Trenton. The next
day, Mangeri was informed that he could no
longer work light[-]duty assignments
effective June 1[, 2009] and . . . if he had
any questions he should call the Board
attorney. Mangeri was given no explanation
14 A-0765-14T2
for that decision and was abruptly pulled
from projects he was working on while on
light duty. Two weeks later, on June 17[,
2009], the Board rescinded the light[-]duty
policy which was enacted only the year
prior. Though Local 3170 was included in
the process of developing the policy, it
received no notice from the Board that it
was going to be rescinded.
Sometime in late June, the secretary to
the Board informed Mangeri and Shapter that
effective July 1, 2009, the Board will
eliminate the fourth firefighter on the day
shift. No explanation was provided. The
reasons that gave rise to the Board adding
the fourth firefighter had not changed or
diminished.
At the one and only negotiations
session for a new contract[,] held on
December 29, 2009, as a precondition to
negotiating, Commissioner Costello demanded
that the union justify why the Board should
continue employing paid firefighters. Even
Chairman DiPierro (who was there) testified
that Costello's comment made everyone
uncomfortable. At that session, the Board
did not make any proposals nor did it
respond to the proposals presented by Local
3170.
The Board did not pay the firefighters
their longevity or inspector's stipend in
January 2010[,] as required under the
contract and past practice. The Board
ignored numerous requests for payment made
by Mangeri and Grande, and did not pay the
firefighters until three months after they
had been terminated in June 2010. Also, in
January 2010, the Board added thirteen new
requirements to keeping the logbooks
following a particularly well-attended Board
meeting in which the public demanded that
the paid firefighters be retained.
15 A-0765-14T2
. . . .
The last and ultimate act of
retaliation by the Board was terminating the
paid firefighters eleven months after their
union had filed an unfair practice charge
with [the Commission]. [Chairman]
DiPierro's comments on [E]lection [D]ay
regarding the firefighters' wage proposal in
negotiations (citing it as the reason for
their termination) are revealing. Though
they were made after the decision to
eliminate the firefighters, the remarks
demonstrate a disposition hostile to
participating with unions in the give[-
]and[-]take process required by collective
negotiations.
The hearing examiner also rejected as pretextual the Board's
justification for dissolving the paid full-time fire department
because of "hard economic times" and a "desire[] to pass along
the cost savings to the taxpayers . . . in the form of tax
relief."
The Board provided insufficient
evidence [that] . . . the taxpayers of Fire
District [No.] 1 were losing their
properties and/or jobs in unprecedented,
record numbers. The Board itself
consistently carried a budget surplus of
over $1,000,000 per year, which trended
upwards in the years relevant to this case
(2008-2010). The Board's accountant
admitted . . . the Board was never in
financial distress. There were no "times of
severe economic hardship and distress"
established on the record.
The taxpaying[-]public's sentiment to
keep a daytime paid force was clear to the
Board. Those taxpayers who spoke at the
January 20, 2010 Board meeting made it
16 A-0765-14T2
clear. If the Board had any doubt about
what the taxpayers of District [No.] 1
desired after the meeting because those who
spoke were not representative of the
taxpayers at large, that doubt was removed
when the 2010 budget was approved by the
voters on February 17, 2010. The 2010
budget included money to pay the full-time
and per diem firefighters for another year.
It is specious for the Board to claim that
economic hardship drove its decision.
If economics were of such a concern,
one must wonder why the Board decided to
terminate the firefighters only a few days
before it would know whether or not the
budget passed and therefore know whether or
not it had the money to continue to retain
them. In a similar vein, once the Board
knew the budget passed, there was no doubt
what the citizenry desired or what District
[No. 1] could afford, yet the Board did not
rescind the resolution terminating the
firefighters.
The Board's proffered motive of
reducing taxes is equally unbelievable.
Firstly, the Board knew there would be no
tax relief in 2010 because the tax rate for
that year was already set based upon a
budget that included compensation for the
paid firefighters. Secondly, it offered to
pay Fire District [No.] 3 substantially the
same amount of money for fire protection in
2010 as the cost of retaining its own paid
force. Thirdly, the Board in fact spent
most of the savings derived from terminating
the paid firefighters on a new vehicle for
the Fire Chief and radios. The Board did
not act as though it was trying to pass the
savings onto the taxpayers of the fire
district. Its behavior does not support a
finding that reducing taxes was a genuine
motive behind eliminating the paid fire
force.
17 A-0765-14T2
I also find the Board's reasons to be
pretextual because it never once mentioned
the possibility of dissolving the paid
department because of financial concerns to
Grande, Mangeri[,] or Shapter. The parties
communicated on a number of issues
throughout 2009. The subject did not even
come up as late as December 29, 2009[,] when
the parties had a contract negotiations
session which lasted about an hour and a
half.
Neither Local 3170, Mangeri[,] nor
Shapter were given any notice of the Board's
decision to terminate them. The first that
they learned that they would be no longer
employed because of financial reasons was
the public reading of the resolution
terminating them. The abruptness and lack
of transparency surrounding their
termination erodes the credibility of the
Board's proffered reasons.
Even the Board's treatment of Mangeri
and Shapter after it terminated them
illustrates that the decision was predicated
upon hostility and ill-will rather than
unbiased business considerations. During
the two weeks Mangeri and Shapter were still
working at the firehouse before their
termination became effective, only
Commissioner Perry spoke to them. Mangeri
and Shapter were not treated by the Board as
employees customarily . . . who are severed
due to economic reasons as opposed to
performance issues. They were not given an
exit interview or advised of their post-
employment [Consolidated Omnibus Budget
Reconciliation Act] rights, nor were they
informed on where to return keys,
uniforms[,] and equipment.
18 A-0765-14T2
As a result of the overwhelming evidence establishing the
Board's violation of the Act, the hearing examiner ordered the
Board to post a notice, which provided in pertinent part:
WE WILL offer to reinstate Firefighters
Michael Mangeri and David Shapter who were
terminated effective March 5, 2010, with
substantially the same hours of work and
employment responsibilities as they had
immediately prior to their termination.
WE WILL make the terminated employees
who accept offers of reinstatement whole for
all salary and benefits due from March 5,
2010 to the present, less mitigation, with
interest at the rate set by Court rules.
WE WILL in the event the Board
determines to use at least three (3)
firefighters on the weekday, day shift,
negotiate in good faith with Local 3170 over
the filling of the third paid firefighter
position.
The Board appealed to PERC contending the hearing examiner
erred by (1) determining that it terminated paid firefighters in
retaliation for charges brought by Local 3170, and (2)
concluding that its proffered reason, i.e., to cut costs, was
pretextual.
On September 18, 2014, PERC adopted the hearing examiner's
findings of fact concluding that the Board violated N.J.S.A.
34:13A-5.4(a)(1), (3), (4), and (5). PERC rejected the Board's
argument that the hearing examiner's finding of anti-union
animus was unsupported by the facts, noting the hearing
19 A-0765-14T2
examiner's conclusion was largely "based upon credibility
determinations of the witnesses, [which] include[d] both direct
and circumstantial evidence of hostility to protected activity."
PERC also rejected the Board's financial-hardship defense,
agreeing with the hearing examiner's conclusion that it was
pretextual "as the Fire District, based on the Board's own
witness and accountant, had never been in financial distress."
In addition to the mandated posting, PERC required the
Board to take the following remedial steps: "[o]ffer to
reinstate" Mangeri and Shapter "with substantially the same
hours of work and employment responsibilities as they had
immediately prior to their termination"; make Mangeri and
Shapter whole, if they accept the offers, "for all salary and
benefits due from March 5, 2010 to the present, less mitigation,
with interest at the rate set by Court rules"; and negotiate
with Local 3170 in good faith for the placement of a third paid
firefighter if "the Board determines to use at least three . . .
firefighters on the weekday, day shift[.]"
On appeal, the Board argues (1) PERC and the hearing
examiner erred by rejecting as pretextual its cost savings
defense and concluding that the Local 3170 charges were a
substantial or motivating factor in terminating the paid
firefighters; (2) PERC erroneously substituted its judgment for
20 A-0765-14T2
that of the Board; and (3) PERC overstepped its remedial
authority, implying at oral argument before us that the Board
should not be required to indefinitely employ the reinstated
employees.
II.
The scope of our review of PERC's interpretation of the
Act, the statute it is charged with enforcing, is limited. "In
the absence of constitutional concerns or countervailing
expressions of legislative intent, we apply a deferential
standard of review to determinations made by PERC." Jersey City
Police Officers Benevolent Ass'n, supra, 154 N.J. at 567.
PERC's determination must be upheld unless the party appealing
it shows that it is clearly arbitrary and capricious. Id. at
568. As to PERC's findings of fact, our review is similarly
circumscribed; so long as there is sufficient credible evidence
to support its conclusions, we must uphold PERC's findings.
Twp. of Bridgewater, supra, 95 N.J. at 245-46. Here, the Board
has not shown that PERC's decision is arbitrary and capricious.
We begin by addressing the Board's contention that PERC and
the hearing examiner erred by rejecting as pretextual its cost
savings defense and concluding that the Local 3170 charges were
a substantial or motivating factor in terminating the paid
firefighters. The Board primarily argues that Chairman
21 A-0765-14T2
DiPierro's anti-union animus was not shared by the rest of the
Board members, and that DiPierro acted on his own behalf, rather
than on behalf of the Board.
Pursuant to the Act, it is "unlawful [to] discharge or
otherwise [take an] adverse public employer action against a
worker because of his or her union activity." Twp. of
Bridgewater, supra, 95 N.J. at 237 (citing N.J.S.A. 34:13A-
5.4(a)(1) and (3)). "Public employers still retain the right,
however, to discharge a worker for a legitimate business reason,
unrelated to the employee's union activities." Ibid.
Our Supreme Court has explained that under the Act, there
are two types of cases. First, there are "pretext" cases in
which "an employer fires an employee for having engaged in union
activities, with no other basis for the discharge[.]" Id. at
241. In such cases, it is clear from the evidence "that the
asserted justification is a sham, or was not in fact relied
upon[,]" and therefore, "[s]ince no legitimate business reason
exists, there is in fact no dual motive." Ibid. In pretext
cases, the employer's affirmative defense of legitimate business
justification is deemed to be "wholly without merit." Id. at
244 (citation and internal quotation marks omitted).
The second kind of case is dual motive. In Township of
Bridgewater, the Court set forth the framework for analyzing
22 A-0765-14T2
dual motive retaliation cases. The Court explained that when
dual motives are alleged,
the employee must make a prima facie showing
sufficient to support the inference that the
protected union conduct was a motivating
factor or a substantial factor in the
employer's decision. Mere presence of anti-
union animus is not enough. The employee
must establish that the anti-union animus
was a motivating force or a substantial
reason for the employer's action. Once that
prima facie case is established, however,
the burden shifts to the employer to
demonstrate by a preponderance of evidence
that the same action would have taken place
even in the absence of the protected
activity. This shifting of proof does not
relieve the charging party of proving the
elements of the violation but merely
requires the employer to prove an
affirmative defense.
[Id. at 242 (citations omitted).]
While often a fine line, the distinction between pretext
cases and dual motive "cases rests upon the differing weight
that is attributed to the employer's explanation when examining
the motivations behind a discharge." Id. at 244 (citation and
internal quotation marks omitted). Where an "affirmative
defense has at least some merit, a dual motive may exist and the
issue becomes one of the sufficiency of proof necessary for the
23 A-0765-14T2
employer's affirmative defense to be sustained."2 Ibid.
(citation and internal quotation marks omitted).
Here, the hearing examiner determined that this was a dual
motive case that warranted application of the Township of
Bridgewater framework. The Board concedes that the Township of
Bridgewater framework applies, but argues that PERC erred in
applying the test to the facts of this case. We see no merit to
that contention and conclude that there was no error in the
hearing examiner's findings of fact and conclusions of law.
A substantial inference of anti-union animus pervaded Board
activity during the relevant timeframes. DiPierro's disparaging
comments were made in his capacity as Chairman of the Board. He
told Grande, that "the Board . . . was looking into the
possibility of eliminating the career staff." DiPierro
reiterated a similar threat to Shapter, telling him "if the
union kept pushing the issue of hiring a third full-time
firefighter, the Board w[ould] push 'the union out of the
2
We note that this matter could have been analyzed as a
pretext case, given the Board's baseless cost savings defense
and strong anti-union animus. However, because the parties have
agreed that the dual motive framework, set forth in Township of
Bridgewater, applies, and because we reach the same result under
either approach, we analyze the issues under the dual motive
rubric, as did the hearing examiner and PERC. Our opinion,
however, should not be construed as agreeing or disagreeing with
the threshold determination that this is a dual motive case.
24 A-0765-14T2
station up to the other end of town.'" The Board acted without
notice or input from Local 3170, repealed the light[-]duty
policy, and stripped Mangeri from the administrative duties he
had performed since 2004. The approval of requested time-off
and longevity payouts were also delayed with little to no
explanation by the Board.
Moreover, the Board has not met its "burden to demonstrate
that the same action would have taken place even in the absence
of the protected conduct." Comite Organizador de Trabajadores
Agricolas (COTA) v. Molinelli, 114 N.J. 87, 101 (1989) (citation
and internal quotation marks omitted). The Board suggests,
DiPierro's comments aside, three Board members sought to pursue
tax savings by using volunteer firefighters in District No. 1.
We reject the Board's contention that the other voting
commissioners did not share DiPierro's anti-union animus when
they terminated Mangeri and Shapter.3 There is substantial
credible evidence in the record supporting the conclusion that
the Board's proffered business reason for terminating the full-
3
In the discrimination context, applying a similar burden-
shifting framework, we have held that "discriminatory comments
made by one with input into the decision-making process are not
stray remarks." Grasso v. W. N.Y. Bd. of Educ., 364 N.J. Super.
109, 118 (App. Div. 2003) (citing Abramson v. William Paterson
Coll. of N.J., 260 F.3d 265, 286 (3d Cir. 2001)).
25 A-0765-14T2
time paid firefighters was pretextual. The hearing examiner
stated in pertinent part that
[a]ccording to the Board's own witness and
accountant, . . . Fire District [No.] 1 has
never been in financial distress. The
surplus for budget year 2008 was $1,070,960.
The surplus as of December 31, 2009 was
$1,405,781, up almost $335,000. The total
assessed property valuation in District
[No.] 1 went up about $18,000,000 from 2008
to 2009 and increased another $3,000,000
from 2009 to 2010. The proposed fire tax
rate in District [No.] 1 for 2010 was $.139,
down from $.16 from the preceding year
(2009). Among the three Fire Districts in
Monroe Township, District [No.] 1
consistently had the lowest fire tax rate
before the creation of, during[,] and after
the elimination of the part[-]paid fire
department.
The 2010 budget approved by the voters
included $210,000 for salary and wages for
the two career firefighters and two per
diems. When factoring in the money also
budgeted for benefits and considering that
some of the money was spent for a small
portion of the year, there was still over
$200,000 in savings that could be used to
reduce taxes in future budget years.
The following budget year, 2011, the
Board purchased a new vehicle for the Fire
Chief costing $70,000 and new radios for
$90,000. It also purchased a new brush
truck for $140,000 with voter approval.
Even with those purchases, the Board was
able to reduce the tax rate by $.03 for 2011
by using its reserves which had been
increased by the money saved from
eliminating the paid firefighters. If the
Board had[ not] made the purchases, it could
have passed on even greater tax savings to
26 A-0765-14T2
its residents by using that money to further
reduce the tax rate.
Here, the record does not support the Board's argument that
serious economic considerations existed at the time the Board
dissolved its full-time paid firefighting staff. Our Supreme
Court has explained that "once a discharged employee makes out a
prima facie case of anti-union animus, the employer has the
burden of linking the timing of the discharges closely with
economic decline." Id. at 102. District No. 1 operated under a
large surplus during the years leading up to 2010, and earmarked
money in its 2010 budget specifically for Mangeri's and
Shapter's salaries. Once the career firefighters were
terminated, the Board exhibited no commitment to fiscal
responsibility, purchasing expensive radios and a new $70,000
vehicle for the Fire Chief. Further, the Board did not replace
its career firefighters with volunteers for 2010, its main
contention for saving taxpayer money. Rather, it contracted
with District No. 3 to provide its weekday, day fire services
for an equivalent amount earmarked in the 2010 budget to
compensate the full-time paid staff.
Finally, the Board's reliance on Borough of Keyport v.
International Union of Operating Engineers, Local 68, 222 N.J.
314 (2015) is misplaced. In Borough of Keyport, the
municipalities provided detailed financial information evincing
27 A-0765-14T2
a financial crisis. Id. at 320-26. For instance, in one
municipality there existed a surplus of only $6,000 and the
municipality "faced increased healthcare, pension, and labor
costs without an increase in tax revenues." Id. at 321.
District No. 1, however, maintained a surplus of well over
$1,000,000 in 2008, which increased by approximately $350,000
the following year. Property values in the Township also rose
during the same timeframe. Further, each of the municipalities
in Borough of Keyport submitted layoff plans to PERC for its
approval. Id. at 321, 324, 326. Here, the Board did not.
There was no credible evidence of anti-union animus in
Borough of Keyport. The issue, as addressed by the Supreme
Court, focused on whether the parties were obligated to
negotiate the tangible employment decisions made prior to their
implementation. Here, the Board does not challenge that portion
of PERC's decision. As the Supreme Court pointed out, "an
artificial 'fiscal crisis' cannot outweigh important employee
work and welfare interests." Id. at 346.
III.
Next, the Board maintains that it alone has the authority
to establish and regulate fire districts, including whether
services are provided by paid, part-paid, or volunteer
firefighters. Contrary to its contention, PERC did not usurp or
28 A-0765-14T2
otherwise supplant the Board's statutorily prescribed authority
to regulate District No. 1's fire department.
As PERC properly noted, many of the "cases cited by the
Board . . . pre-date the Act and do not involve improper or
illegal motives for personnel actions." The Board misconstrues
two fundamentally different issues. The Board is correct that
under N.J.S.A. 40A:14-81.1(a),
[t]he commissioners of any fire district
may, by resolution, establish paid positions
within the fire department, or for the fire
district, as such position shall be
determined by the commissioners to be
required for the purposes of the fire
district. The commissioners shall, by
resolution, appoint persons to, determine
the terms of, fix the compensation for, and
prescribe the powers, functions and duties
of all paid positions so established.
Moreover, under N.J.S.A. 40A:14-70.1(b), "[t]he board of fire
commissioners of a fire district not having a paid or part-paid
fire department and force may contract with a volunteer fire
company or companies for the purpose of extinguishing fires,
upon those terms and conditions as shall be deemed proper."
However, recognizing that the fire commissioners have such
power, it does not follow that they are thereby granted the
ability to engage in unlawful retaliation to protected union
activity.
29 A-0765-14T2
Empowered by the Legislature, PERC is explicitly authorized
to regulate the tangible employment decisions made by a public
employer. See N.J.S.A. 34:13A-5.2 (granting PERC remedial
authority to "make policy and establish rules and regulations
concerning employer-employee relations in public employment
relating to dispute settlement, grievance procedures and
administration including enforcement of statutory provisions").
Nothing in PERC's findings or conclusions prevented the Board
from lawfully regulating District No. 1's fire department,
including how it chooses to provide fire services and whether or
not its firefighters should be compensated. Simply put, the
Board's ability to govern the structure of the fire district and
make personnel decisions does not, in and of itself, insulate
the Board from liability or allow it to act in a retaliatory and
unlawful manner. PERC acting under its statutory authority to
enforce the Act is not a usurpation of the Board's authority.
IV.
We reject the Board's final challenge that PERC abused its
discretion by ordering the Board to take affirmative steps to
offer Mangeri and Shapter reinstatement as firefighters with
back pay and benefits and, in the event the Board determines to
use at least three firefighters, to negotiate in good faith with
Local 3170.
30 A-0765-14T2
Contrary to the Board's contention, the remedy of
reinstating employees wrongfully discharged under the Act has
been upheld under PERC's broad remedial authority. See Galloway
Twp. Bd. of Educ. v. Galloway Twp. Ass'n of Ed. Sec'ys, 78 N.J.
1 (1978). In Galloway Township, the Supreme Court held that the
authority to order reinstatement and back pay to an aggrieved
claimant "is necessarily subsumed within the broad remedial
authority the Legislature has entrusted to PERC." Id. at 9-10;
see also Maywood Bd. of Ed. v. Maywood Ed. Ass'n, 168 N.J.
Super. 45, 63 (App. Div.), certif. denied, 81 N.J. 292 (1979).
The Legislature has empowered PERC with "broad authority
and wide discretion" based on the agency's expertise and
knowledge in this "highly specialized area of public life." In
re Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. 322, 328
(1989). We conclude there was no abuse of that authority as to
the remedial remedy imposed by PERC. Certainly, its decision
does not preclude the Board from taking any future action,
including termination, for legitimate, non-retaliatory reasons.
Affirmed.
31 A-0765-14T2
|
NUMBER 13-98-663-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
_______________________________________________________________________
MARK BUNYARD, Appellant,
v.
RICHARD GARZA, LA BARRETA
COMPANY, KENEDY MEMORIAL
FOUNDATION AND/OR KENEDY
RANCH, AND STUART SASSER, Appellees
_______________________________________________________________________
On appeal from the 28th District Court
of Nueces County, Texas.
_______________________________________________________________________
O P I N I O N
Before Chief Justice Seerden and Justices Dorsey and Rodriguez
Opinion by Chief Justice Seerden
This is an appeal from a take-nothing judgment rendered in favor
of Richard Garza and La Barreta Company,(1) appellees.
Mark Bunyard, appellant, arranged a hunting excursion on the
Kenedy Ranch for some of his associates, Dominic Valente and Ronald
LaPointe, for the weekend of February 17-19, 1995. Bunyard arranged
the excursion through La Barreta Company. During their time on the
Ranch, the hunters were led by Richard Garza, a La Barreta employee.
In the scope of his employment, Garza would drive hunters around the
Ranch in a Suburban owned by La Barreta. During the weekend, Garza
drove the Suburban on a hunt, with Bunyard as a passenger. Bunyard
claimed that Garza operated the vehicle at excessive speeds, given the
terrain over which they were traveling. He testified that he and the
other passengers, Valente and LaPointe, were "thrown around," hitting
their heads and bodies against the vehicle's interior. He claimed the
impact caused him spinal injuries. Bunyard filed suit against La Barreta.
The trial court entered judgment on the jury's verdict finding that
no negligent action by La Barreta was the proximate cause of Bunyard's
injuries.
By his first issue, Bunyard contends that the judgment of the trial
court was erroneous because the jury's findings were against the great
weight and preponderance of the evidence. In conducting a review of
the factual sufficiency of the evidence, we examine all of the presented
evidence, regardless of its effect on the reviewed finding. Lofton v.
Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986); Pittsburgh
Corning Corp. v. Walters, 1 S.W.3d 759, 778 (Tex. App.--Corpus Christi
1999, no pet.). We may reverse the challenged findings only if they are
"so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986); Pittsburgh Corning Corp., 1 S.W.3d at 778.
The jury was asked to determine if the negligence, if any, of La
Barreta (through its agent, Garza) proximately caused injury to Mark
Bunyard. Proximate cause is "that cause, unbroken by any new and
independent cause, which produces injury and without which the injury
would not have occurred." Portlock v. Perry, 852 S.W.2d 578, 583
(Tex. App.--Dallas 1993, writ denied). It consists of two elements:
cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d
94, 98 (Tex. 1992). "Cause in fact" means that the act or omission was
a substantial factor in bringing about the injury, and without it harm
would not have occurred. Id. "Foreseeability" means that the actor, as
a person of ordinary intelligence, should have anticipated the dangers
that his act created for others. Id. The evidence must show a clear
connection between the defendant's acts and the plaintiff's damages.
The record reflects that all four participants in the hunting
excursion testified. Garza testified that he has led hundreds of similar
excursions over the same terrain while employed by La Barreta. He
testified that while traveling on the caliche roads on the Ranch, it is his
practice to maintain the speed limit of twenty-five to thirty miles per
hour. On all other roads and off-road, he said, the speed limit is
dictated by an assessment of what is a safe traveling speed, but
acknowledged that it would be dangerous to drive any faster than ten
or fifteen miles per hour on that land. Garza testified that it is his
practice to drive more slowly as the terrain becomes more treacherous;
that it would be unimaginable to drive as fast as twenty or thirty miles
per hour in the areas where he hunted; and that he had never reached
such speeds in those areas. Garza acknowledged that he did not recall
the Bunyard hunt specifically, but did recognize Bunyard by sight.
Valente testified that he had been on numerous "driving hunts,"
or hunts where vehicles were used to pursue the prey. He agreed that
while the guide is the driver, the hunters retain a certain amount of
responsibility to tell the guide if he is driving unsafely. When asked
what speeds the Suburban reached during the hunt, Valente admitted
that it would be hard to provide an exact figure, but estimated the
speeds to be "30, 40 miles an hour, maybe more." Valente also
admitted, however, that he did not look at the speedometer and that all
of his opinions about the speed of the vehicle were estimates. Valente
recalled that neither the hunters in the group nor Bunyard ever told
Garza that he was driving too fast or unsafely. Valente testified that he
did not believe that Garza did anything out of the ordinary.
La Pointe testified that he believed the vehicle was exceeding
thirty miles per hour while in pursuit off-road, but admitted that, like
Valente, he never saw the speedometer. He recalled that the hunters
would have been "tossed around pretty well" even if they had been
traveling at five or ten miles per hour. He agreed that common sense
would have told anyone to tell the driver to stop and slow down if there
was a chance of serious injury, but recalled that none of the passengers
ever made such a request. He remembered that Bunyard reported some
back problems immediately after the hunt concluded. LaPointe
concluded that Garza was "excellent" with the truck.
Finally, Bunyard testified on his own behalf. He said that the only
cautionary instruction Garza provided was a warning that the hunters
not chamber a round in their rifles while in the truck. More particularly,
Bunyard stated that Garza never told him or anyone else to put on a
seatbelt. Bunyard also admitted that no one stopped him from wearing
a seatbelt and that he made a conscious decision to not restrain
himself.
Bunyard stated that when Garza took the Suburban off-road, he
was "bounced around," and said that he hit his head on the roof of the
vehicle several times. He testified that where Garza took the Suburban
off-road, the grass was very high and that he could not see the terrain.
Bunyard estimated that in these conditions, Garza was driving the
vehicle at approximately thirty miles per hour or faster. He testified that
Garza gave no warning that he was going off-road and that Garza drove
"a little rough" while in the off-road pursuit. Bunyard admitted that he
never asked Garza to alter his driving manner.
Bunyard furthermore testified that he had never had back
problems prior to this hunting trip, but said that within ten days after
the hunt, he began to have chest pains. He stated that he informally
visited a friend who is a doctor on at least three occasions within the
next fourteen months to describe his pain, but stated that he did not
see a doctor in an office until approximately fourteen months after the
hunting trip. Nevertheless, Bunyard testified that he had suffered
trauma to his cervical, thoracic, and lumbar vertebrae. His doctor
corroborated this testimony. Bunyard testified that the pain was often
debilitating and had caused him to substantially reduce his workload
and cease his hunting guide business altogether.
It is the jury's province to evaluate the testimony presented, judge
the relative credibility of that evidence, and determine the weight to be
given to that evidence. See Duron v. Merritt, 846 S.W.2d 23, 26 (Tex.
App.--Corpus Christi 1992, no writ). When provided with conflicting
evidence, the jury may disbelieve any part or all of the testimony of one
witness in favor of part or all of the testimony of others. Mashcon
Wholesale Distrib., Inc. v. A. Benjamini & Co., Inc., 982 S.W.2d 119,
125 (Tex. App.--Houston [1st Dist.] 1998, pet. denied).
Here, the evidence is clearly conflicting. However, the jury was
free to assess the testimony and determine the weight to give to each
side. The jury's verdict indicates that it chose to give more weight to
the testimony which suggested that Garza had operated the vehicle in
a safe manner and that Bunyard's injuries were not proximately caused
by Garza's actions. The record supports those conclusions.
Accordingly, we hold that the evidence was sufficient to support the
judgment. Bunyard's first issue is overruled.
Bunyard argues in his third issue that the trial court erred by
allowing lay opinion testimony on Garza's fault or negligence. Bunyard
complains specifically that certain parts of Valente's testimony
contained legal conclusions which he was not competent to present.
However, the record reflects that Valente's testimony was presented on
September 22, 1998. Bunyard presented his first and only objection to
Valente's competence the following morning. To preserve a complaint
for review, the record must show that the party complaining made a
timely objection. Tex. R. App. P. 33.1(a)(1). An objection made one full
day after the admission of testimony is not timely and results in waiver.
Bunyard's third issue is overruled.
By his second issue, Bunyard argues that the trial court erred by
allowing the admission of evidence of his use or non-use of seatbelts at
the time of this incident. Bunyard contends that the admission of this
testimony unfairly prejudiced his case. At the time of this incident, the
law of this State was that the "use or nonuse of a safety belt is not
admissible evidence in a civil trial." See Act of June 15, 1985, 69th
Leg., R.S., ch. 804, §1, 1985 Tex. Gen. Laws 2847, repealed by Act of
May 23, 1995, 74th Leg., R.S., ch. 165, §24(a), 1995 Tex. Gen. Laws
1871. However, the express language of the governing statute
provided that the provisions of the statute "relating to the operation of
vehicles refer exclusively to the operation of vehicles upon highways.
. . ." See former Tex. Rev. Civ. Stat. Ann. art. 6701d §21 (Vernon 1994).
The statute further provided that a "highway" is the "entire width
between the boundary lines of every way publicly maintained when any
part thereof is open to the use of hte public for purposes of vehicular
travel." See former Tex. Rev. Civ. Stat. Ann. art. 6701d §13(a) (Vernon
1994). The record shows that the caliche roads on the Ranch were
neither publicly maintained nor open to the use of the public for
vehicular travel. Accordingly, the limitation is inapplicable here.
Bunyard's second issue is overruled.
In his fourth issue, Bunyard argues that the "trial court erred by
failing to instruct the jury as to the duty of the driver of an automobile
in the claims of negligence against LaBarreta." Specifically, Bunyard
argues that he was entitled to have the jury instructed that he
has made claims against Richard Garza for his negligence
related to his erratic driving in an unsafe manner, and failing
to advise or warn his passengers of the danger of the rough
terrain, failing to exercise caution and care to protect his
passengers, failing to identify and avoid dangers in the
terrain, failing to operate the vehicle at a safe speed given
the terrain, [and] failing to keep a proper lookout.
The record indicates that the jury was properly instructed with regard
to the meaning of "negligence," "ordinary care," and "proximate cause."
The court should submit "such instructions and definitions as
shall be proper to enable the jury to render a verdict." Tex. R. Civ. P.
277. The trial court is given broad latitude in determining the propriety
of the questions, instructions, and definitions submitted to the jury.
H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex. 1998). Absent
an abuse of that discretion, we will not reverse the trial court's
judgment. Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995).
When the trial court refuses to submit a requested instruction or
definition, our review is focused upon whether the request was
reasonably necessary to enable the jury to render a proper verdict. Tex.
R. Civ. P. 277; Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 921
(Tex. App.--Beaumont 1999, no pet.). A trial court's charge "need not
and should not burden the jury with surplus instructions." Id.
The proposed instruction sought by Bunyard reiterates the specific
claims made in his petition. This proposed instruction constitutes a
surplusage which the trial court was not required to incorporate in the
charge. In a similar case, the court concluded that instructions similar
to those sought here by Bunyard "were not necessary for the jury to
render a proper verdict." Brookshire Bros., 997 S.W.2d at 921. We find
no error in the court's refusal to submit the requested instruction.
Bunyard's fourth issue is overruled.
The judgment of the trial court is AFFIRMED.
ROBERT J. SEERDEN, Chief Justice
Do not publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed
this 20th day of July, 2000.
1. The judgment was also rendered in favor of Stuart Sasser, owner
of La Barreta Company, and Kenedy Memorial Foundation and/or
Kenedy Ranch.
|
993 F.2d 773
In the Matter of the SEARCH OF 1638 E. 2ND STREET, TULSA, OKLAHOMA.John LAWMASTER, Appellant,v.UNITED STATES of America, Appellee.
No. 92-5092.
United States Court of Appeals,Tenth Circuit.
May 20, 1993.
Steven L. Sessinghaus, Tulsa, OK, for appellant.
Allen J. Litchfield, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the brief), Tulsa, OK, for appellee.
Before LOGAN, MOORE, and ANDERSON, Circuit Judges.
LOGAN, Circuit Judge.
1
Appellant John Lawmaster appeals the district court's denial of his motion to unseal an affidavit supporting a search warrant that was executed on his residence. The search proved fruitless, and appellant now seeks to discover the identity of the informant who provided the information used to obtain the search warrant.
2
* Agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) obtained and executed a search warrant for appellant's home, based on allegations from an informant that appellant was in possession of an illegal firearm. After searching appellant's house, the agents found no such weapon although they apparently found numerous legal firearms. See Appellant's App. at 20. The agents left the house without removing any of appellant's property. The government moved to seal the affidavit, claiming that the sealing was necessary to protect the ongoing investigation and because the informant feared reprisal from appellant. The magistrate judge granted the government's motion.
3
Appellant then petitioned the district court to overrule the magistrate judge's order and to release the affidavit. Following some confusion over the basis upon which the government sought to keep the affidavit sealed,1 the district court ultimately affirmed the magistrate judge's ruling, from which appellant took the instant appeal. We review the district court's decision for an abuse of discretion. In re the Application and Affidavit for a Search Warrant, 923 F.2d 324, 326 (4th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2243, 114 L.Ed.2d 484 (1991); United States v. Mann, 829 F.2d 849, 853 (9th Cir.1987).
II
4
The government cites the informer's privilege as the basis for keeping the affidavit under seal and the informer's identity secret. Under that privilege, "the state is normally entitled to refuse to disclose the identity of a person who has furnished information relating to an investigation of a possible violation of law." Hoffman v. Reali, 973 F.2d 980, 987 (1st Cir.1992). "The underlying concern of the doctrine is the common-sense notion that individuals who offer their assistance to a government investigation may later be targeted for reprisal from those upset by the investigation." Dole v. Local 1942, IBEW, 870 F.2d 368, 372 (7th Cir.1989). The government is entitled to assert the privilege without showing that reprisal or retaliation is likely. Id.
5
The informer's privilege is not absolute, however. If the party seeking disclosure makes a proper showing of need, the privilege will give way. It will yield "when the identification of the informant or of a communication is essential to a balanced measure of the issues and the fair administration of justice. The party opposing the privilege may overcome it upon showing his need for the information outweighs the government's entitlement to the privilege." Id. at 372-73 (citations omitted).
6
In most circumstances, the party seeking disclosure is the defendant in a criminal case, who wants the informant's identity to assist in his or her defense. In such cases, if "the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, ... the privilege must give way." Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 627-28, 1 L.Ed.2d 639 (1957). However, the privilege is applicable in civil cases as well. United States v. One 1986 Chevrolet Van, 927 F.2d 39, 43 (1st Cir.1991). Here, appellant has not been indicted, nor is he threatened with later prosecution. His motion is therefore civil in nature, although no civil suit has been filed.2 In such cases, the informer's privilege is arguably stronger, because the constitutional guarantees assured to criminal defendants are inapplicable. Dole, 870 F.2d at 372.
7
Appellant argues that he is entitled to the affidavit under the common law right of access to the courts. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1311, 55 L.Ed.2d 570 (1978). We agree that "the press and the public have a common law qualified right of access to judicial records," Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir.1989), and that "affidavits for search warrants are judicial records," id. at 64. However, although "the common law right of access creates a strong presumption in favor of public access to materials submitted as evidence in open court, this presumption should not apply to materials properly submitted under seal." United States v. Corbitt, 879 F.2d 224, 228 (7th Cir.1989) (internal quotation and citation omitted); see also Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir.1989) ("[T]here is no right of access to documents which have traditionally been kept secret for important policy reasons."). Thus, when the government properly invokes the informer's privilege, it trumps the common law right of access to judicial records as to the identity of the informant.
8
Appellant further argues that he was entitled to a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). This argument fails for a number of reasons. First, Franks is premised upon a potential showing of a Fourth Amendment violation in a criminal case, in which case the defendant would be entitled to the suppression of illegally obtained evidence. Here, appellant is merely an interested party, not a criminal defendant, and so is not subject to criminal sanctions based on the search of his home. Second, to qualify for a Franks hearing, appellant must have made a substantial showing that the affiant knew of, or recklessly disregarded, the falsity of the informant's information. United States v. Bloomgren, 814 F.2d 580, 584 (10th Cir.1987). Appellant does not challenge the actions of the police; he merely seeks the identity of the informant. Appellant alleges no impropriety on the part of the affiant, ATF Agent P. Blair Ward. Third, Franks itself states that "[t]he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant." 438 U.S. at 171, 98 S.Ct. at 2684. Thus, appellant's allegations of false statements made to the affiant by the informant do not entitle him to a hearing.3
9
Finally, we note that shortly before oral argument, the government provided appellant with a redacted version of the affidavit. This version states that the informant knew that appellant had purchased an illegal weapon, that the informant had observed appellant firing it in automatic mode, that appellant had carried the weapon in several different vehicles, and that the gun could be found in a green military gun case. Whatever need appellant has demonstrated for the affidavit, and it is slight, is satisfied by production of the redacted version. In situations such as this, a redacted version should be made available if doing so would not reveal the informant's identity or prejudice an ongoing investigation. See Coughlin v. Lee, 946 F.2d 1152, 1159-60 (5th Cir.1991). The government has produced a redacted version of the affidavit, and is required to do no more under these circumstances.
10
Appellant states that he "needs" the unredacted affidavit because he might pursue legal action against the informant. Appellant confuses "need" with "want." Although we do not here attempt to define the contours of the showing required to overcome the informer's privilege, appellant's contemplation of a suit against the person who caused law enforcement agents to search his home will not cause the privilege to yield. The government has rightfully asserted the privilege, and appellant has not made the required showing of need for the unredacted affidavit.
11
AFFIRMED.
1
Initially, the government asserted that the seal was required to protect an ongoing investigation. Following the district court's decision, however, the government notified the court that the investigation had terminated, and that the only reason to maintain the seal was to protect the informant from reprisal
2
Appellant apparently contemplates some form of legal action against the informant once his or her identity is made known. Notwithstanding the lack of an ongoing proceeding, appellant has standing to seek the affidavit as the aggrieved subject of a fruitless search under the Fourth Amendment standing doctrine of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and its progeny
3
The district court declined to hold an in camera hearing on appellant's motion. We agree with the Fifth Circuit that "[a]n in camera hearing may be helpful in balancing these interests, but we refuse to adopt a rule requiring a district court to hold an in camera hearing whenever the identity of an informant is requested." United States v. Alexander, 559 F.2d 1339, 1344 (5th Cir.1977) (citation omitted), cert. denied, 434 U.S. 1078, 98 S.Ct. 1271, 55 L.Ed.2d 785 (1978). If the district court holds such a hearing, it may, if necessary, file its findings and reasoning under seal to preserve the confidentiality of the informant's identity yet still provide for meaningful appellate review. See In re Search Warrant for Secretarial Area Outside Office of Thomas Gunn, 855 F.2d 569, 574 (8th Cir.1988)
|
FIFTH DIVISION
DILLARD, C. J.,
ELLINGTON, P. J., and MCFADDEN, P. J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
December 1, 2017
In the Court of Appeals of Georgia
A15A0857. STEAGALD et al. v. EASON et al.
MCFADDEN, Presiding Judge.
In Steagald v. Eason, 300 Ga. 717 (797 SE2d 838) (2017), the Supreme Court
of Georgia reversed our decision in Steagald v. Eason, 334 Ga. App. 113 (778 SE2d
366) (2015), affirming the trial court’s grant of summary judgment to the defendants
in this dog-bite case. Accordingly, we vacate our opinion and adopt the opinion of the
Supreme Court as our own.
Judgment reversed. Dillard, C.J., and Ellington, P.J., concur.
|
FILED
NOT FOR PUBLICATION OCT 27 2011
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. 10-10438
Plaintiff - Appellee, D.C. No. 2:09-cr-00469-GMS
v.
MEMORANDUM *
ENRIQUE LOPEZ-RUELAS, a.k.a.
Francisco R. Cuevas, a.k.a. Enrique Ruelas
Lopez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted October 25, 2011 **
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
Enrique Lopez-Ruelas appeals from his guilty-plea conviction and 63-month
sentence for reentry of a removed alien, in violation of 8 U.S.C. § 1326. Pursuant
to Anders v. California, 386 U.S. 738 (1967), Lopez-Ruelas’s counsel has filed a
*
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).
brief stating that there are no grounds for relief, along with a motion to withdraw
as counsel of record. We have provided Lopez-Ruelas with the opportunity to file
a pro se supplemental brief. He did not file a supplemental brief, but he did file a
motion for appointment of new counsel.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal. We
dismiss in light of the valid appeal waiver. See United States v. Nguyen, 235 F.3d
1179, 1182 (9th Cir. 2000).
Counsel’s motion to withdraw is GRANTED, and Lopez-Ruelas’s motion
for appointment of new counsel is DENIED.
DISMISSED.
2 10-10438
|
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00201-CV
ALGERNON E. PAIGE APPELLANT
V.
WELLS FARGO BANK, N.A. APPELLEE
------------
FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 2014-002569-1
------------
MEMORANDUM OPINION1 AND JUDGMENT
------------
On August 19, 2014, we notified appellant that the trial court clerk
responsible for preparing the record in this appeal had informed the court that
payment arrangements had not been made to pay for the clerk’s record as
required by Texas Rule of Appellate Procedure 35.3(a)(2). See Tex. R. App. P.
35.3(a)(2). We stated that we would dismiss the appeal for want of prosecution
1
See Tex. R. App. P. 47.4.
unless appellant, within ten days, made arrangements to pay for the clerk’s
record and provided this court with proof of payment.
Appellant has not made payment arrangements for the clerk’s record.
Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P.
37.3(b), 42.3(b).
Appellant shall pay all costs of the appeal, for which let execution issue.
PER CURIAM
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DELIVERED: September 18, 2014
2
|
738 F.2d 446
Dunnv.White
83-2118
United States Court of Appeals,Ninth Circuit.
6/12/84
1
D.Ariz.
AFFIRMED
|
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237 S.W.3d 27 (2006)
Charles W. UTLEY, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 05-1400.
Supreme Court of Arkansas.
June 1, 2006.
*28 Bearden Law Firm, by: Mike Bearden, Blytheville, AR, for appellant.
Mike Beebe, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., Little Rock, AR, for appellee.
JIM GUNTER, Justice.
Appellant Charles Utley, an employee of Knight's Disposal, was convicted by a jury of negligent homicide and sentenced to one year in the county jail and a fine of $1,000. He appeals, claiming that the evidence was insufficient to support his conviction. We affirm.
On January 17, 2003, Mr. Utley was driving a loaded garbage truck in the southbound lane of Highway 61 near Blytheville. Brent Young was traveling in the northbound lane of Highway 61, and W.R. Perdue was in a separate car behind Mr. Young. Mr. Young testified that, as he crossed a bridge, he saw Mr. Utley's truck coming toward him cross the center line. Mr. Young swerved to get out of the truck's way, and the truck nicked Mr. Young's car, shattering his window, and hit the bed of his truck. Mr. Utley's truck then collided with Mr. Perdue's pickup truck on the bridge. Mr. Perdue's truck exploded, and he was killed.
James Henderson was working at a cemetery near the bridge at the time of the accident. He testified that he had his back to the bridge when he heard something "go boom." He turned around and saw a big blaze of fire on the bridge and Mr. Utley's truck sliding past the bridge and into the ditch. He also testified that he did not hear anything before the "boom."
Officer James Creecy arrived at the scene at 1:15 p.m. He testified that he saw some skid marks, gouges, and yaws, or marks a vehicle makes when it is turning and bearing down instead of braking, between Mr. Utley's truck and Mr. Young's vehicle. All of these marks were in the northbound lane, indicating, first, that Mr. Utley was in the northbound lane and, second, that Mr. Utley did not swerve or apply his brakes before hitting Mr. Young. Officer Creecy testified that he saw no impact conditions on the southbound side of the highway.
Officer Darrell McClung assisted at the scene of the accident. It was his responsibility to draw a diagram of the accident scene. He testified that the area of impact of the collision with Mr. Young's vehicle was one hundred and eleven feet from the beginning of the bridge and that the impact of the collision with Mr. Perdue's vehicle was on the bridge, seven feet left of the center line in the northbound lane. He also stated that he saw no skid marks, yaws, grooves, or any other marks to suggest that there had been any changes in either of the vehicles from the first area of impact to the second area of impact. Officer McClung stated that it appeared that Mr. Utley's truck was going in a forward direction, not sideways, in the northbound lane for about one hundred and thirty to one hundred and fifty feet before it hit Mr. *29 Perdue's vehicle. He testified that there was no evidence of any attempt by Mr. Utley to stop.
The jury found Mr. Utley guilty of negligent homicide and sentenced him to one year in the Mississippi County Detention Center and a fine of $1,000. Mr. Utley appealed, and the court of appeals reversed his judgment of conviction. See Utley v. State, 93 Ark.App. 381, 219 S.W.3d 709 (2005). We granted the State's petition for review, pursuant to Ark. Sup.Ct. R. 2-4 (2005). When we grant review following a decision by the court of appeals, we review the case as though it originally had been filed in this court. Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004).
Mr. Utley's sole point on appeal is that the circuit court erred in denying his motion for directed verdict because the evidence was insufficient to support the jury's finding that he was guilty of negligent homicide. We have repeatedly held that, in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.
Mr. Utley was charged with negligent homicide. Arkansas Code Annotated § 5-10-105(b)(1) (Repl.2006) provides that "[a] person commits negligent homicide if he or she negligently causes the death of another person." The criminal code defines "negligently" as follows:
(A) A person acts negligently with respect to attendant circumstances or a result of his or her conduct when the person should be aware of a substantial and justifiable risk that the attendant circumstances exist or the result will occur.
(B) The risk must be of such a nature and degree that the actor's failure to perceive the risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation considering the nature and purpose of the actor's conduct and the circumstances known to the actor.
Ark.Code Ann. § 5-2-202(4) (Repl.2006).
The issue before us is whether, viewing the evidence in the light most favorable to the State, the evidence was sufficient to support Mr. Utley's conviction. In this case, the evidence demonstrated that Mr. Utley was driving a large commercial vehicle: a garbage truck. The only testimony from an eyewitness to the accident, Mr. Young, indicated that at the time Mr. Utley hit him, the garbage truck was over the center line in Mr. Young's lane of traffic. Mr. Young testified that he swerved to avoid the garbage truck. There was no evidence that Mr. Utley braked or swerved to avoid Mr. Young. After this collision, the evidence indicates that Mr. Utley remained in the wrong lane of traffic for between one hundred and thirty and one hundred and fifty feet before hitting Mr. Perdue on the bridge. At the time of impact with Mr. Perdue's truck, Mr. Utley was seven feet to the left of the center line. The lane was only eight feet wide. Once again, the investigating officers testified that there was no evidence that Mr. Utley braked, swerved, or did anything to avoid the second collision.
Mr. Utley contends that the State did not prove that he acted negligently. He argues in his brief that there are other *30 possible explanations why his truck crossed the center line, such as a blowout. He claims that
[w]here circumstantial evidence is relied upon in a criminal prosecution, proof of a few facts or a multitude of facts all consistent with the supposition of guilt is not sufficient to warrant a verdict of guilty. In order to convict a person upon circumstantial evidence, it is necessary not only that the circumstances all concur to show that the prisoner committed the crime and be consistent with the hypotheses of guilt, since that is to be compared with all the facts proved, but that they be inconsistent with any other rational conclusion and exclude every other reasonable theory or hypothesis except for that of guilt.
Ayers v. State, 247 Ark. 174, 177-78, 444 S.W.2d 695, 696 (1969).
In Ayers, both the appellant and the victim were intoxicated. We reversed the conviction of negligent homicide because there was no conclusive evidence regarding which direction each of the vehicles was traveling or which driver crossed the center line. We did state, however, that "[t]he criminal negligence in this case falls most heavily on the driver who crossed the center line of the highway[.]" Id. at 187, 444 S.W.2d at 700. In Mercer v. State, 256 Ark. 814, 510 S.W.2d 539 (1974), we reversed a conviction for involuntary manslaughter, requiring reckless, willful, or wanton disregard of the safety of others, where there was no evidence in the record to support the State's contention that appellant crossed the center line. In Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000), we held that the evidence was sufficient to convict the appellant of negligent homicide where the fifteen-year-old appellant crossed a double-yellow line to pass a logging truck going uphill in the rain when the collision occurred.
Viewing the evidence in the light most favorable to the State and considering only the evidence that supports the verdict, we hold that substantial evidence exists to support Utley's conviction of negligent homicide. The circumstantial evidence in this case is consistent with the hypothesis of guilt, and no reasonable hypothesis to the contrary was either offered by Utley or supported by the evidence. A person driving a garbage truck around a curve and on a bridge should be aware that driving on the wrong side of the road presents a substantial and unjustifiable risk that he might hit a car traveling in the opposite direction and kill someone in that car. We hold it was not error for the jury to conclude that Mr. Utley's failure to perceive that risk under the facts of this case constituted "a gross deviation from the standard of care that a reasonable person would observe in [Mr. Utley's] situation[.]" Ark.Code Ann. § 5-2-202(4) (Rep.2006).
Affirmed.
HANNAH, C.J., dissents.
JIM HANNAH, Chief Justice, dissenting.
I must respectfully dissent. The court of appeals correctly decided this case, and I agree with the reasoning set out in its opinion. I write to state my additional concerns. Under the broad language used in Ark.Code Ann. § 5-10-105(b)(1) (Supp. 2003), one might argue that Charles W. Utley may be held criminally liable; however, criminal liability has not been imposed in the past where the mental state of the criminal defendant is unproven. I do not believe that the General Assembly intended that persons be prosecuted criminally based on conclusions of mere inattention as is the apparent basis of the decision in this case. Further, even if there were *31 criminal liability under the statute, the State has not met its burden of proof; therefore, the motion for a directed verdict should have been granted.
Historically, liability for deaths in automobile accidents caused by common negligence have been resolved through civil litigation. Where the death has resulted from mere negligence in driving, criminal liability has not been imposed. Where there was more than mere negligence, such as in the case of intoxication, high-speed flight from police, or negligence that arises from a gross deviation from how a reasonably prudent person would act, criminal liability has been imposed over the course of many years.[1] While wandering over the centerline is certainly very dangerous, it is an occurrence that, unfortunately, is commonly witnessed in everyday driving. Many dangerous actions that inattentive drivers engage in do not give rise to criminal liability.
It appears that this change results from a change in analysis. Where before the focus was on the culpable mental state of the driver, the focus now is upon the severity of the injury that results. This is at odds with accepted law on criminal liability.
Even though Utley has been convicted of negligent homicide, why he drove over the centerline remains entirely unknown. If under the circumstances, Utley should have been aware of the risk, and his failure to perceive it was a gross deviation from the care a reasonably prudent person would exercise under those circumstances, criminal liability might arise. See, e.g., Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000). However, we don't know the answer to this question because proof was lacking. We don't know what Utley perceived. No proof was offered. The State's argument is simply that there could be no reasonable excuse. The majority agrees. The State argues that "[d]riving requires constant attention, appropriate responsiveness, and reasonable capability." The facts of Hunter showed that Hunter knew what the road conditions were and still engaged in the affirmative act of pulling out into an oncoming lane to pass a log truck, on a hill, in the rain, despite double yellow lines statutorily prohibiting passing, and despite the fact that the road spray produced by the log truck was so great he could not see. In Hunter, the proof showed that Hunter perceived and disregarded quite a number of dangerous conditions. All we know in the present case is that Utley pulled at least seven feet into the other lane, and we don't even know if it was an affirmative act. Even assuming it was inattention, mere inattention in driving has never been the basis of criminal liability until now.
The question that the majority opinion prompts is, are there any circumstances under which criminal liability would not arise if a person dies in an accident caused by a person who crosses the centerline? The answer is now "no." A person who causes the death of another person when he or she crosses the centerline is now strictly liable under the criminal law if the prosecuting attorney chooses to bring a criminal action. While there is ostensibly *32 qualifying language in the majority opinion, that the truck in this case was a garbage truck, characterized as a "large commercial vehicle," the majority's analysis will certainly be applied to all vehicles in the near future. This is because the reasoning underlying this opinion is not that the death was caused because a large commercial vehicle was involved but because, as the majority states, "driving on the wrong side of the road presents a substantial and unjustifiable risk that [a person] might hit a car traveling in the opposite direction and kill someone." Again, I must note, that criminal liability under the negligent homicide statute arises when under the circumstances the person should have been aware of the risk and his or her failure to perceive it was a gross deviation from the care a reasonable, prudent person would exercise under the circumstances. Hunter, supra. There is no such proof in this case.
There is no question that the death of W.R. Purdue is a terrible tragedy, but the death of any person in a motor vehicle accident is a tragedy. The majority concludes that, "[a] person driving a garbage truck around a curve and on a bridge should be aware that driving on the wrong side of the road presents a substantial unjustifiable risk that he might hit a car traveling in the opposite direction and kill someone in that car." While Utley's alleged inattention may give rise to liability under the civil law, does it give rise to liability under the criminal law?
What happened to Utley? Did he doze off? Was he changing a CD or the radio? Did his mind wander? All of these acts are certainly acts of negligence, but are they acts of criminal negligence? Are they "a gross deviation from the standard of care that a reasonable person would observe in the actor's situation," as required by Ark.Code Ann. § 2-2-202(4) (Repl. 1997)? It would appear not.
Further, in light of a lack of proof of the cause of Utley's movement into the other lane, there are other possible reasonable hypotheses of the cause of this accident other than a gross deviation from the standard of care by Utley. Was there excessive wear in the front end of the truck that he was unaware of and caused his swerve? Did he hit a pothole that threw him to his left? Was there an object he hit that forced him left?
Defaulting to an alleged failure by Utley to offer a reasonable hypothesis that does not lead to guilt is not proof beyond a reasonable doubt. That turns criminal law on its head, essentially placing Utley in the position of being guilty until he proves himself innocent.
I do not agree with the majority's conclusion that "[t]he circumstantial evidence in this case is consistent with the hypothesis of guilt, and no reasonable hypothesis to the contrary was either offered by Utley or supported by the evidence." There is a lack of substantial evidence to support the verdict. I would reverse and dismiss this case. The court of appeals should be affirmed.
NOTES
[1] See, e.g. McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993); Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978); Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975); Rochester v. State, 250 Ark. 758, 467 S.W.2d 182 (1971); Ragsdale v. State, 245 Ark. 296, 432 S.W.2d 11 (1968); Weist v. State, 240 Ark. 680, 401 S.W.2d 565 (1966); Baker v. State, 237 Ark. 862, 376 S.W.2d 673 (1964); Simmerson v. State, 71 Ark.App. 16, 25 S.W.3d 439 (2000); Hatley v. State, 68 Ark.App. 209, 5 S.W.3d 86 (1999); Kenyon v. State, 58 Ark. App. 24, 946 S.W.2d 705 (1997); Tallant v. State, 42 Ark.App. 150, 856 S.W.2d 24 (1993); Courtney v. State, 14 Ark.App. 76, 684 S.W.2d 835 (1985); Phillips v. State, 6 Ark.App. 380, 644 S.W.2d 288 (1982).
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988 F.2d 120
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Chester LACAYO, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 91-70476.
Ninth Circuit.
Submitted Feb. 3, 1993.*Decided Feb. 22, 1993.
Petition to Review a Decision of the Immigration and Naturalization Service, INS No. Avv-ehf-tdg.
BIA
AFFIRMED.
Before HUG, SKOPIL and O'SCANNLAIN, Circuit Judges.
1
MEMORANDUM**
2
After a hearing before an immigration judge ("IJ") on September 5, 1989, Chester Lacayo's applications for asylum, withholding of deportation, and voluntary departure were denied. Lacayo, a native and citizen of Nicaragua, claimed that as an active member of an opposition party he would be subject to persecution from the Sandinistas if he returned to Nicaragua.
3
Lacayo appealed the IJ's order to the Board of Immigration Appeals ("BIA"). On September 26, 1990, the BIA dismissed Lacayo's appeal. The BIA took administrative notice of the change of government in Nicaragua in 1990. Although the BIA noted in a footnote that the IJ had doubted Lacayo's credibility, the noticed facts formed the sole basis for the BIA's finding that Lacayo did not demonstrate a well-founded fear of persecution.
4
On April 15, 1991, Lacayo filed a motion to reopen. With his motion, he submitted affidavits to support his assertion that he had been an active member of the Conservative Party, that he had been threatened and beaten before he left Nicaragua, and that he had joined an anti-Sandinista organization after he entered the United States. In addition, Lacayo presented to the BIA several newspaper articles to demonstrate that the Sandinistas still hold positions of power in the Nicaraguan government and that ex-Contras have been killed since the change in government.
5
In a decision dated July 18, 1991, the BIA denied Lacayo's motion to reopen, concluding that he failed to demonstrate a well-founded fear of persecution.
6
Lacayo filed a timely petition for review of the BIA's denial of his motion to reopen. We have jurisdiction to review that denial pursuant to 8 U.S.C. § 1105(a). We affirm.
7
* Lacayo argues that the BIA improperly took administrative notice of the change of government in its decision dismissing his appeal. In Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir.1992), decided after both the BIA's dismissal of Lacayo's appeal and its denial of his motion to reopen, we held that it was error to take administrative notice without providing the petitioner the opportunity to rebut the noticed facts.
8
The decision issued by the BIA on September 26, 1990 is of the same form as that at issue in Castillo-Villagra. That is, it shares the identical language used in a large number of other cases decided after Violeta Chamorro won the Nicaraguan presidential election and gives no reasons for its decision except for the change in government. See id. at 1023. Accordingly, if Lacayo had petitioned for review of the BIA's September 26, 1990 decision we would have been compelled to grant his petition and to remand.
9
Lacayo did not file a petition for review of the BIA's September 26, 1990 decision. Nor did Lacayo file a motion to reopen within six months of the BIA's decision. Because Lacayo did not file a petition for review within six months of the BIA's dismissal of his appeal, we have no jurisdiction to review the BIA's September 26, 1990 decision. See Chudshevid v. INS, 641 F.2d 780, 784 (9th Cir.1981). Our jurisdiction in this case is limited to reviewing the BIA's July 18, 1991 denial of the motion to reopen. See id.
II
10
When denial of a motion to reopen is based upon the petitioner's failure to establish a prima facie case for the relief sought, as is the case here, abuse of discretion is the proper standard of review. INS v. Doherty, 112 S.Ct. 719, 725 (1992). The petition must be reviewed solely upon the administrative record and the BIA's determination that the petitioner was not eligible for asylum must be upheld "if supported by reasonable, substantial and probative evidence on the record considered as a whole." See INS v. Elias Zacarias, 112 S.Ct. 812, 815 (1992); 8 U.S.C. § 1105a(a)(4). Thus, the BIA's determination can be reversed only if the evidence presented by Lacayo was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. See id.
11
Here, the BIA reviewed in detail the evidence adduced by Lacayo concerning the current conditions in Nicaragua and determined that he had failed to establish a prima facie case that he had a well-founded fear of persecution. The BIA concluded:
12
There is nothing in the record to suggest that he is an ex-Contra, or that the Sandinistas ever thought he was a Contra. There is no evidence, only speculation, as to who [was responsible for the recent murders of several] ex-Contras, and no evidence that other ex-Contras have been killed or threatened. There is no evidence that the Sandinistas have, since the elections, tried to assassinate or persecute Nicaraguan citizens who were opposed to them but were not in the Contras or other armed group. The respondent has not been in Nicaragua since he left there on August 18, 1984. Under the circumstances, he has not shown that there is a reasonable possibility of his actually suffering persecution by the Sandinistas if he returns to Nicaragua.
13
Lacayo does not challenge the BIA's conclusion in his brief to this court; he only challenges the BIA's use of administrative notice in its September 26, 1990 decision. Thus, he does not suggest that the BIA's July 18, 1991 denial of his motion to reopen was not supported by "reasonable, substantial or probative evidence" or that the BIA improperly relied on noticed facts in its decision to deny his motion to reopen.1
14
After reviewing the administrative record, we cannot conclude that "the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." See Elias Zacarias, 112 S.Ct. at 817. Accordingly, the BIA did not abuse its discretion by denying his motion to reopen.
15
AFFIRMED.
*
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3
1
We note in passing that even though Lacayo's failure to file a petition for review or a motion to reopen within six months of the BIA's dismissal of his appeal prevents us from remanding for reconsideration in light of Castillo-Villagra, he was able to present to the BIA evidence to rebut the noticed facts. In his motion to reopen Lacayo presented evidence to show that he had reason to fear persecution despite the change of government. The BIA did not rely on its earlier use of administrative notice but rather fully considered the evidence before determining that he failed to meet his burden
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291 F.2d 856
Thomas Joseph Francis REED, Appellant,v.UNITED STATES of America, Appellee.
No. 8274.
United States Court of Appeals Fourth Circuit.
Argued April 18, 1961.Decided June 12, 1961.
Alexander Wellford (court-assigned counsel), Richmond, Va., for appellant.
Frank M. McCann, Asst. U.S. Atty., Roanoke, Va. (John Strickler, U.S. Atty., and H. Clyde Pearson, Asst. U.S. Atty., Roanoke, Va., on brief), for appellee.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit judges.
SOBELOFF, Chief Judge.
1
After a plea of guilty, Thomas Joseph Francis Reed was convicted by the United States District Court for the Western District of Virginia on November 10, 1959, of transporting a stolen motor vehicle in interstate commerce in violation of the Dyer Act, 18 U.S.C.A. 2312. Reed, a twenty year old youth with a seventh grade education, was then committed to the custody of the Attorney General for treatment under the Federal Youth Corrections Act, 18 U.S.C.A. 5005 et seq. and is now confined in the United States Penitentiary a Lewisburg, Pennsylvania.
2
On August 27, 1960, Reed filed a petition under 28 U.S.C.A. 2255 to vacate his conviction and sentence. The petition was dismissed by the District Court without holding a hearing, and this appeal is from that dismissal.
3
The allegations in Reed's petition are not made with all the clarity and coherence that might be desired, but this is, of course, normally true of petitions prepared by inmates of a penitentiary. Still, such petitions must be examined and the essential factual allegations distilled from them in order to discover if a case is stated involved denial of substantial rights, thereby calling for a hearing on the facts. It cannot be stressed too much that the language of section 2255 itself requires a hearing. with findings of fact and conclusions of law, 'unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * * *.' See also Aiken v. United States, 4 Cir., 1960, 282 F.2d 215.
4
The petitioner's allegations here are as follows: He was stopped by a Virginia State Trooper at about 2:30 p.m. on October 8, 1959, while he was walking along a state highway. After being questioned, he was taken to a police station, without any arrest warrant being shown to him, and there interrogated for about two hours. Then he was told, 'A few nights in jail will loosen your tongue.' Reed continues:
5
'The petitioner would like at this time to say that after being in this jail only one hour, he knew what the officer meant when he made the last statement. The petitioner was held over here for (3) three nights during which time he had no access to water either for the purpose of drinking. He was not able to wash his hands nor to shower, or shave for fear of his health. And would have answered Yes to any charge that the officer suggested.
6
'The petitioner would like at this time to state that at no time during his incarceration did he have benefit of counsel nor was he allowed to make any phone call to retain counsel.'
7
On the day after his arrest, while still in the custody of state officials, an F.B.I. agent, Icealius Hall, took a statement from Reed in which he confessed to stealing a car in Baltimore, Maryland, and transporting it to Covington, Virginia.
8
On October 10, 1959, Hall, the federal agent, signed a complaint against Reed for violating the Dyer Act, and a warrant of arrest was issued on the same day. Reed was not taken to a Commissioner for hearing until October 12, 1959. It is alleged that immediately after asking Reed's name, the Commissioner directed him to plead. After the plea, the Commissioner set bail. Reed insists that the Commissioner did not offer to appoint him counsel, nor did he even inform him of his right to retain counsel, as required by Rule 5(b), Federal Rules of Criminal Procedure, 18 U.S.C.A.
9
Reed remained in custody until his trial on November 10, 1959. He was then brought into court, and the transcript of the proceedings reveals that the District Judge at that time asked him if he wanted counsel. The Judge appointed him a lawyer, who then spoke with Reed and the F.B.I. agent, Hall. After this discussion in a conference room, the lawyer returned to the courtroom with Reed and entered a plea of guilty for him. The attorney then informed the court briefly about the defendant's record and commented that Reed needed 'guidance and help.' The District Judge thereupon pronounced sentence. The entire trial transcript from the time Reed entered the courtroom until the rendering of the court's judgment is set out below.1
10
We think that enough was alleged to require a hearing in the District Court, with findings of fact and conclusions of law. Although we do not rule on the sufficiency of any particular allegation to state a denial of constitutional rights, it cannot be said that the petition and record 'conclusively show that the prisoner is entitled to no relief.' The delay in taking Reed to a Commissioner, and the confession during the interval, in the circumstances here, might raise an issue under the Supreme Court's decision in Anderson v. United States, 1943, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829. Moreover, the voluntariness of the confession apart from the delay is an issue presented by the petitioner's allegations.
11
We are cognizant that it has been held that where a voluntary plea of guilty has been entered, the fact of an unnecessary delay in taking a prisoner before a committing official, or an involuntary confession, constitutes no ground for setting aside the sentence. See, e.g., Barnhart v. United States, 10 Cir., 1959, 270 F.2d 866.
12
On the other hand, the petitioner here attacks the voluntariness of the guilty plea itself. All of the circumstances, including what preceded and what took place at the trial, are pertinent considerations in determining the voluntariness of the plea. Perhaps if Rule 11 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., had been complied with, this issued would have been obviated. The record reveals, however, that the rule requiring a judge not to accept a guilty plea 'without first determining that the plea is made voluntarily with understanding of the nature of the charge,' was totally disregarded. In Gundlach v. United States, 4 Cir., 1958, 262 F.2d 72, 76, certiorari denied 360 U.S. 904, 79 S.Ct. 1283, 3 L.Ed.2d 1255, we said, in a case involving a similar issue but where the trial judge did grant a hearing:
13
'* * * In the instant case, the District Judge held a thorough hearing in which it was abundantly proved that the defendant's plea was made with knowledge and volition. This hearing supplied the certainty which Rule 11 is intended to assure, and no lingering suspicion of unfairness or denial of due process remains. We have discovered no case in which judgment and sentence were voided after such a hearing and findings as we have here.
14
'This is not to say, however, that we approve anything less than full compliance with Rules 10 and 11. These rules are designed not only to safeguard important rights of defendants, but their observance serves also to protect proper administration of the criminal law. When the trial judge fully complies with these rules and is careful to have the record plainly show that this has been done, it may go ar to foreclose irresponsible challenges in the future and the necessity for a hearing under Section 2255 at a time when the facts surrounding the arraignment, plea and sentence may not be as fresh and readily available as they were in this instance. * * *'
15
Because Rule 11 was not complied with here, and because of the facts allegedly surrounding the detention and confession, a hearing is required in this case. The voluntariness of a guilty plea is an issue raising constitutional questions that can be considered in a collateral proceeding. Walker v. Johnston, 1941, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Waley v. Johnston, 1942, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Behrens v. Hironimus, 4 Cir., 1948, 166 F.2d 245; Aiken v. United States, 4 Cir., 1960, 282 F.2d 215.
16
Additionally, Reed's petition raises a serious question concerning the right to counsel under the Sixth Amendment. Although Rule 5(b) of the Federal Rules of Criminal Procedure requires a Commissioner to advise a prisoner of his right to counsel, it is asserted that this was not done. As the trial transcript shows, the petitioner had no lawyer until the trial began. Moreover, the casual manner of the lawyer's appointment 'to go out and talk with the boy,' followed by a short conference allegedly attended by the F.B.I. agent, and then the return to the courtroom where the attorney entered the guilty plea, cannot meet with our approval. The Sixth Amendment requires adequate representation by counsel. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Holly v. Smyth, 4 Cir., 1960, 280 F.2d 536. While we do not intend to decide now that enough has been shown to constitute a denial of this right, we do think that this matter warrants inquiry.
17
The petitioner's allegations plus the trial record are sufficient to raise substantial questions concerning the overall fairness of the proceedings. A hearing, at which time all of these matters can be inquired into, is necessary.
18
Reversed and remanded.
1
'Mr. McCann: Mr. Reed is in custody. (Whereupon Mr. Reed was brought into the courtroom.)
'Q. You are Thomas Joseph Francis Reed? A. Yes, sir.
'Q. You have a lawyer? A. No, sir.
'Q. Do you want a lawyer? A. I would like to if I could.
'Mr. McCann: He is requesting that he have an attorney, your Honor.
'The Court: Are you able to employ one?
'A. No, sir.
'Mr. McCann: He has been in custody since he was arrested. He's from Maryland.
'The Court: I will appoint Mr. Andrew Davis to go out and talk with the boy and represent him. (Mr. Davis and defendant retire to a conference room, and after a time returned to the courtroom.)
'Mr. McCann: Mr. Reed, you are charged with the violation of the Dyer Act. (Indictment is read to defendant by Mr. McCann)
'Mr. Davis: The plea is guilty.
'Mr. Hall, Rrobation Officer, read his report on Thomas Joseph Francis Reed.
'Mr. Davis: Your Honor asked me to talk to this defendant and advise him, and we have; and Officer Hall has been very cooperative in giving us such facts as he could.
'I talked with the defendant. He, of course, is guilty. He has a record of other offenses of automobiles. He was 20 years old when he was discharged after a service of 10 months because of automobile theft.
'While Mr. Hall didn't tell me so, I got the impression that he needs some guidance and help.
'The Court: What do you think about sending him to this school?
'Mr. Davis: I think that is what he needs.
'The Court: It is the judgment of this Court that you be placed in custody of the Attorney General of the United States, who, I think, will send you to this place where they can rehabilitate you and select some work that will help your attitude and train you, and I think that they will do you good; and I think that's the best solution of this case.'
|
754 So.2d 561 (2000)
Addie Leigh FORTENBERRY, Appellant,
v.
Amos P. PARKER, Sr. and Wife, Colleen Parker, Appellees.
No. 1998-CA-01003-COA.
Court of Appeals of Mississippi.
January 11, 2000.
Certiorari Denied March 23, 2000.
J. Anthony Williams, Natchez, Attorney for Appellant.
Robert W. Byrd, McComb, Attorney for Appellees.
EN BANC.
ON MOTION FOR REHEARING
THOMAS, J., for the Court:
¶ 1. The motion for rehearing filed by Fortenberry in this matter is granted. The original opinion issued in this case is *562 withdrawn, and the following opinion is substituted as the opinion of the Court. The chancellor's decision below is affirmed.
PROCEDURAL HISTORY
¶ 2. This case is on appeal challenging the judgment of the Pike County Chancery Court enforcing a settlement agreement regarding homestead boundaries and uses of parts of the properties. Feeling aggrieved because she allegedly did not authorize her attorney to settle, the appellant perfected this appeal, raising the following two issues for our review: 1) whether an attorney has authority to settle a case when he omits a key part of his client's claim, and 2) whether the client can revoke her acceptance of the entire settlement when the attorney omits a key part of his client's claim from the settlement.
¶ 3. Upon review of the record in this case, we find that Attorney Boerner abided by Fortenberry's wishes in entering the settlement compromise with the Parkers. Therefore, we affirm the chancellor's decision.
STANDARD OF REVIEW
¶ 4. We begin by stating our well-settled standard for reviewing decisions rendered by our chancery courts: "Chancellors are vested with broad discretion, and this Court will not disturb the chancellor's findings unless the court's actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard." Andrews v. Williams, 723 So.2d 1175, 1177 (Miss.Ct. App.1998) (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997); Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994); Crow v. Crow, 622 So.2d 1226, 1228 (Miss. 1993); Gregg v. Montgomery, 587 So.2d 928, 931 (Miss.1991)).
FACTS
¶ 5. On August 22, 1996, the Parkers filed a complaint in the Pike County Chancery Court alleging that Fortenberry had refused to recognize the proper boundaries of the properties in dispute. Further, the complaint alleged that Fortenberry had removed a properly placed fence and replaced it with one that encroached on the Parkers' property. Fortenberry filed her answer and counter complaint, raising an alleged statutory bar to the Parkers' claim.[1] In addition, Fortenberry maintained that the property boundaries she respected had been the same for four generations and were correct. Further, Fortenberry sought, inter alia, damages of $3,500 for expenses incurred in relocating the fence along the disputed boundary, and she sought punitive damages for the Parkers allegedly causing water to collect on her property in an intentional and wilful manner as well as for her incurred attorney's fees.
¶ 6. The pivotal day in this litigation is January 19, 1998. Late on this day, a compromise settlement was reached between the parties that included: 1) the Parkers' acknowledging Fortenberry's adverse possession of a portion of the property on the north-south boundary and allowing the fence previously erected by Fortenberry to remain; 2) Fortenberry's removal of the fence due west on the east-west boundary to a point on a survey obtained by the Parkers; 3) Fortenberry's and the Parkers' agreeing to keep clear their respective ends of a drainage culvert that ran along the east-west boundary of the property; and 4) Fortenberry's withdrawal of her counterclaim for fees, expenses, and other alleged damages.
¶ 7. Fortenberry maintains that she was coerced by her attorney and pressured to settle this matter without having a flooding problem allegedly caused by the Parkers' dam redressed. However, Boerner testified that he and Mrs. Fortenberry discussed the flooding issue. According to Boerner, the fact that there was no proof that the Parkers' action in allegedly raising *563 the dam on their property had contributed to the flooding of her property led him to counsel Fortenberry that the lack of proof rendered her allegation moot. Also, one element of the settlement agreement did provide for the Parkers to keep their end of a drainage culvert clear which would have hopefully alleviated the flooding of Fortenberry's property.
¶ 8. Fortenberry contends that she terminated the attorney-client relationship with Boerner on January 19, 1998, paid her legal fees, and took her file with her. Fortenberry claims that after she left Boerner's office, Boerner contacted the counsel for the Parkers and the chancellor and informed them of the settlement, knowing that Fortenberry had terminated her relationship with him minutes before the communication of the settlement.
¶ 9. The counsel for the Parkers maintained that a settlement was entered into on January 19, and Fortenberry was bound by the terms of that settlement. At the time the agreement was made, the Parkers maintain that Attorney Boerner was still Fortenberry's counsel and that he remained her counsel until discharged by the chancellor on the morning of January 20. The chancellor agreed to grant a continuance so that Fortenberry could either proceed pro se or secure other counsel and to allow Boerner to withdraw as counsel of record for Fortenberry based on Fortenberry's objection to the terms the settlement agreement.
DISCUSSION
¶ 10. On January 20, 1998, the morning of trial, Fortenberry, accompanied by her daughter Jane, appeared in the chancery court and indicated to court staff that there was no settlement in the matter and sought a continuance. After both counsel were summoned, Attorney Boerner indicated that Fortenberry had contacted him that morning indicating her desire to rescind the settlement agreement and seek a continuance of the matter. The chancellor took great pains to explain to Fortenberry that even though a continuance would be granted, that in no way meant that she would be able to escape what her attorney had represented to the trial court as a previous settlement agreement. The chancellor quizzed Fortenberry regarding her acceptance of the agreement
The Court: And, at the end of that time did you not agree to the terms of the settlement as he just stated?
Mrs. Fortenberry: Your honor, three hours we talked with him. She [Jane] said she wanted to keep on with the lawsuit. He [Attorney Boerner] said, "There's no need to keep on with the lawsuit."
The Court: Ma`am, did you agree to the terms of the settlement?
Mrs. Fortenberry: I did, but when I got home
R-16 (emphasis added).
¶ 11. After a time of discussion between the chancellor, the attorneys, and the Fortenberrys, including an expression of concern about additional fees and expenses to be incurred by the Parkers, Fortenberry and her daughter declared that they did not intend to go to court that morning. Mrs. Fortenberry said, "I don't know how to word it or what to say. You know, you win," followed by Jane Fortenberry's assertion that they would sign whatever papers were necessary to comply with the previously announced settlement compromise.
¶ 12. On February 23, 1998, Chancellor McGehee convened another hearing in this matter. At this hearing, Fortenberry asked to proceed pro se. The chancellor allowed Fortenberry to proceed pro se and allowed Fortenberry to consult with Jane, her daughter, whenever she desired. The chancellor found that there was a factual dispute as to whether Fortenberry was represented by Attorney Boerner at the time the settlement offer was communicated and ultimately consummated for Fortenberry by Attorney Boerner. On March 24, 1998, a final hearing was held in this *564 matter to resolve the factual dispute identified by the chancellor at the February 23, 1998 proceeding. At this dispositive hearing,[2] the chancellor heard conflicting, sworn testimony from Attorney Boerner, Jane Fortenberry, and Addie Fortenberry.
THE CHANCELLOR'S DECISION
¶ 13. Mississippi law encourages compromise and settlement of litigation in order to, inter alia, expeditiously resolve conflicts between parties. McBride v. Chevron U.S.A., 673 So.2d 372, 379 (Miss. 1996). Our reading of the record in the case sub judice leads us to conclude, as did the chancellor, that Attorney Boerner abided by Fortenberry's wishes in entering the compromise settlement. While Fortenberry may not have been fully satisfied with the terms of the settlement, it is evident that she acquiesced to Attorney Boerner's entering the agreement.
¶ 14. It is well-settled that "[w]here conflicting testimony is presented, expert and otherwise, the chancellor is required to make a judgment on the credibility of the witnesses in order to resolve the questions before the court." Turnley v. Turnley, 726 So.2d 1258, 1264 (Miss.Ct.App. 1998) (citing Broadhead v. Bonita Lakes Mall, Ltd. Partnership, 702 So.2d 92, 101 (Miss.1997)). Thus, Chancellor McGehee was required to assess the credibility of the Fortenberrys and Attorney Boerner and determine whose testimony was most accurate.
¶ 15. After hearing all the testimony, the chancellor determined that Fortenberry had indeed authorized Attorney Boerner to enter into the settlement compromise in question. The chancellor found that on January 19, 1998, both Fortenberrys understood that there was a settlement. If Attorney Boerner abided by Fortenberry's wishes, then the chancellor's inquiry stops and the settlement is enforced. This is the situation in the case sub judice as outlined by Chancellor McGehee
I believe that while Mrs. Fortenberry and I find, as a matter of fact and law, that while Mrs. Fortenberry may not have been totally pleased with what was done, she did in fact authorize Mr. Attorney Boerner to settle the case and that settlement was consummated by an agreement withnot consummated but was confirmed by an agreement with counsel for the other party after give and take on the afternoon of the 19th and then was conveyed to the court. The actions of the parties which Mrs. Fortenberry would state shows that there wasn't a settlement shows to me in fact that there was one....
Having found that Fortenberry granted Attorney Boerner actual authority to settle this matter as set forth above, the chancellor need not have referred to the law of apparent authority regarding an attorney's ability to settle a lawsuit. Accordingly, as we find the chancellor properly found that Fortenberry granted Boerner actual authority to settle the pending litigation, our inquiry stops as well, and we do not reach the issues urged upon us by Fortenberry.
¶ 16. THE JUDGMENT OF PIKE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED AGAINST THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, DIAZ, IRVING, LEE, MOORE, AND PAYNE, JJ., CONCUR.
NOTES
[1] Miss.Code Ann. § 11-17-35 (1972).
[2] At this final hearing, Fortenberry was represented by an attorney, Robert O. Waller.
|
168 F.Supp.2d 640 (2001)
SOUTHWESTERN BELL TELEPHONE COMPANY, Plaintiff,
v.
CITY OF EL PASO and El Paso County Water Improvement District No. 1, Defendant.
No. 98-CA114EP.
United States District Court, W.D. Texas, El Paso Division.
August 23, 2001.
*641 *642 Jeffrey S. Alley, Scott & Hulse, El Paso, TX, Barbara Russell Hunt, Dallas, TX, Robert Edwin Davis, Hughes & Luce, Dallas, TX, Weston C. Loegering, Hughes & Luce, L.L.P., Dallas, TX, David Randall Johnson, San Antonio, TX, for plaintiff.
Larry R. Veselka, Smyser Kaplan & Veselka, Houston, TX, Benjamin L. Hall, III, Houston, TX, Laura Gordon, El Paso, TX, Myles Sean Hall, El Paso, TX, for defendant.
ORDER
PRADO, District Judge.
On this date the Court considered Defendant El Paso County Water Improvement District No. 1's Motion for Summary Judgment, Plaintiff Southwestern Bell Telephone Company's Motion to Dismiss Counterclaim and Motion for Summary Judgment.
Background and Procedural History
Southwestern Bell Telephone Company ("SWBT"), a provider of telecommunications services holding a certificate of convenience and necessity issued by the Public Utility Commission of Texas ("PUC"), brought this suit for declaratory and injunctive relief against the City of El Paso ("City"). In its original petition, SWBT sought declarations that (1) a proposed city ordinance that would require SWBT to pay the City 5% of all gross revenues from services to customers within El Paso violated the Federal Telecommunications Act of 1996, 47 U.S.C. § 151 et seq., ("FTA"); (2) certain buyout provisions of a then-current ordinance as well as the proposed ordinance also violated the FTA; (3) the proposed ordinance violated the Texas Public Utilities Regulation Act, Title II of the Texas Utilities Code, ("PURA"); (4) the buy-out provisions violated Article 1416 of the Texas Revised Civil Statutes; (5) no SWBT property would be subject to the buyout provisions; and (6.) the buyout provision is unenforceable.
El Paso County Water Improvement District No. 1 ("EPCWID") was added as a Defendant in SWBT's First Amended Complaint. The District is a water improvement district operating under Article XVI, Section 59 of the Texas Constitution. At the center of the controversy between SWBT and the District is a series of irrigation ditches deeded from the United States Bureau of Reclamation to EPCWID in January 1996. Development in the area of the ditches has resulted in a number of roads being built crossing ditches and has also resulted in an increase in demand for telephone service.
EPCWID has established certain application procedures for entities wanting to cross its canals, laterals and ditches. *643 These procedures require an entity, such as SWBT, to complete an application, pay an application fee of $500 and obtain a survey. Before the survey is ordered, EPCWID's Board of Directors must preliminarily approve the application. After the survey is completed, the Board assesses a charge, which can be determined on an ad hoc basis, based on the length of the crossing.
In its claims against EPCWID, SWBT seeks declaratory relief, arguing that (1) EPCWID's application procedures and fees violate both FTA and PURA; (2) roads and highways crossing EPCWID's ditches, laterals and canals are public roadways; (3) EPCWID has no right to charge for telephone lines crossing its canals, laterals and ditches when those lines are within the rights-of-way of city or county roads; (4) the water flowing through EPCWID's canals and ditches is public; and (5) EPCWID has no right to charge for telephone lines crossing public waters. EPCWID filed a counterclaim, alleging that SWBT has trespassed on its property, or alternatively, that SWBT has taken its property for public use without compensating EPCWID.
SWBT and the City have settled their claims, leaving EPCWID as the only defendant remaining in the case. EPCWID and SWBT have each filed motions for summary judgment.[1] SWBT has also filed a motion to dismiss EPCWID's counterclaims. Although filed separately, the motions and responses essentially concern the same issues. Therefore, the Court will address several general issues before addressing specific issues raised by the motions.
Summary Judgment Standard
In the usual case, the party who seeks summary judgment must show by affidavit or other evidentiary materials that there is no genuine dispute as to any fact material to resolution of the motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. See Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548; Lavespere, 910 F.2d at 178.
Once the moving party has carried that burden, the burden shifts to the nonmoving party to show that summary judgment is not appropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir.1991). The nonmoving party cannot discharge this burden by referring to the mere allegations or denials of the nonmoving party's pleadings; rather, that party must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Fields, 922 F.2d at 1187. In order for a court to find there *644 are no genuine material factual issues, the court must be satisfied that no reasonable trier of fact could have found for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505; FED.R.CIV.P. 56(e).
Where the party opposing the motion for summary judgment will have the burden of proof on an essential element of his case at trial and does not, after adequate time for discovery, make a showing sufficient to establish the existence of that element, summary judgment may be entered against him. Celotex, 477 U.S. at 322-24, 106 S.Ct. 2548; Fontenot, 780 F.2d at 1194-95.
Section 181.082 of the Texas Utilities Code
At the heart of much of this dispute lies Section 181.082 of the Texas Utilities Code, which provides:
A telephone or telegraph corporation may install a facility of the corporation along, on, or across a public road, a public street, or public water in a manner that does not inconvenience the public in the use of the road, street, or water.
SWBT argues that this section authorizes it to install the telephone cables at issue.[2] According to SWBT, its cables are installed along public roads or public waters and are, therefore, permitted. In general, Texas courts have long held that the right of a telephone company to install wires on rights-of-way or public streets is a powerful one that overrides private interests, and one with which a city cannot interfere. Roaring Springs Town-Site Co. v. Paducah Tel. Co., 109 Tex. 452, 454, 212 S.W. 147 (Tex.1919); City of Brownwood v. Brown Tel. & Tel. Co., 106 Tex. 114, 157 S.W. 1163 (Tex.1913).
EPCWID counters by arguing that the highways that cross its lands are not public roads and that the waters it controls are not public waters. In its motion for summary judgment, EPCWID also argues that this section is unconstitutionally vague, or is vague as applied to it; that this provision is preempted by the Telecommunications Act of 1996; and that it violates the Texas Constitution.
Preemption
EPCWID argues that § 181.082 is preempted by 47 U.S.C. § 253(c), which states:
Nothing in this section affects the authority of a State or local government to manage the public[3] rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for the use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.
EPCWID is somewhat vague about the basis for its preemption argument. It cites a case for the proposition that "Texas state law regulating telecommunication carriers' rights over railroad rights-of-way[] is preempted by federal law to the extent of any conflict." It also states that "Congress has assumed the field and has said in no uncertain terms that competition must be fostered, local governments must retain the right to control their property, and taxpayers should not have to subsidize *645 the business of telecommunications any longer." Nevertheless, EPCWID has failed to point to any actual conflict requiring preemption. By its own terms, § 253(c) does not affect the state and local government's authority to charge money for use of public rights-of-way. Contrary to EPCWID's contentions, however, Section 253(c) certainly does not indicate an intention to "assume the field" and require state and local governments to charge for use of public rights-of-way. This is particularly true in light of the stated purpose of Section 253, namely, removal of barriers to entry. While there certainly are preemptive sections of the Telecommunications Act, 47 U.S.C. § 253(c) is not one of them.
Validity under the Texas Constitution
In its motion for summary judgment, EPCWID argues that SWBT's interpretation of Section 181.082 would be in violation of Article III, § 52 of the Texas Constitution because it would require EPCWID to grant free use of its property to a private corporation. Article III, § 52 prohibits the Texas Legislature from:
authoriz[ing] any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever.
This provision is inapplicable to grants of public money or things of value to serve a public interest. Graves v. Morales, 923 S.W.2d 754, 757 (Tex.App. Austin 1996, writ denied). The provision of telephone service has been determined to be of public value and in the public interest. See Roaring Springs Town-Site Co. v. Paducah Tel. Co., 109 Tex. 452, 454, 212 S.W. 147 (Tex.1919). Therefore, a law permitting a telephone company to use public streets for its lines does not violate the Texas Constitution.
Void for Vagueness
EPCWID argues that the word "public" in Section 181.082 makes the statute unconstitutionally vague. While the parties argue over the interpretation of the word "public" in the statute, this disagreement does not render it void for vagueness.
Although a civil statute may violate the Due Process Clause by being vague, to be unconstitutionally vague, a statute must be so vague or unclear such that it entirely failed to create any rule or standard. Jones v. City of Lubbock, 727 F.2d 364, 373 (5th Cir.1984). Section 181.082 does not leave parties to guess at the legality of their conduct and is not unconstitutionally vague.
Public Roads
With the challenges to § 181.082 resolved, it is undisputed that SWBT is entitled to place its lines along, on, or across public roads. Despite the significance of the determination that a road is a public road, both sides deal with the issue of public roads in very general terms. SWBT asserts that all the roads in question are public; EPCWID asserts that none of them are. The only specific road mentioned in the pleadings or the motion is Texas Highway 20; installation of cables along Highway 20 triggered this suit. Nevertheless, the two parties appear to be in agreement that the cables were installed along roadways and that the roads were either constructed or maintained by the City of El Paso, the Texas Department of Transportation, other cities or El Paso County. The public is permitted to use *646 these roads.[4]
EPCWID defines "public road" as a road dedicated to the public, and its motion and responses focus on the specifics of a dedication of private land for a public road.[5] It states that "the City of El Paso entered into a 50-year License Agreement with the United States that gave the City permission to construct roads and bridges across the laterals, canals, drains, waste-ways and other irrigation facilities of the United States." (Def.'s Mot. at 5). EPCWID indicates that it became the successor in interest of the license agreement and that "the evidence inescapably shows that the City of El Paso has but a license to cross the property owned by EPCWID." Therefore, according to EPCWID, because there has been no dedication, but only a license, there can be no public road. Additionally, according to EPCWID, "`public' can mean only dedicated to the public because the License Agreement between EPWCID and the City of El Paso makes it undeniable that EPCWID has the right to have the roads removed upon breach or expiration of the Agreement." (Def.Mot. at 6).
Even assuming that these roads only exist by virtue of the agreement, they would still be "public roads." They are open to the public and are certainly not private roads. If EPCWID contests the validity of the roads, the Court agrees with SWBT that the City of El Paso, and not SWBT, would be the appropriate party to those disputes.
Furthermore, it is undisputed that some of the roads in question are state highways, EPCWID does not claim that State Highway 20, for example, is entirely dependent upon an agreement between the federal government and the City of El Paso.
Additionally, EPCWID has not pointed to any cases, nor has the Court found any, indicating the method by which one governmental entity within the state obtains a right-of-way for a road from another governmental entity in the state.
SWBT, therefore is entitled to summary judgment on its claims that it is permitted to set cables along streets controlled and maintained by the City of El Paso, El Paso County and/or the State of Texas.
Public Waters
Alternatively, SWBT argues that it is entitled to install cables and wires along the canals, laterals and ditches because EPCWID's waters are "public waters" under Texas Utilities Code § 181.082.
EPCWID argues that its waters are not public, and therefore are not affected by Section 181.082. Specifically, EPCWID argues that its waters are excluded from the definition of "state water" in Texas Water Code § 11.021. Under the Water Code, "[t]he water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake ... and the storm water, floodwater, and rainwater of every river, natural stream ... in the state is the property of the state." TEX. WATER CODE § 11.021. According to EPCWID, the diversion of water and its permit from the Texas Natural Resource Conservation Commission, removes its water from the definition of public water. Additionally, EPCWID argues that the addition of sewage *647 effluent and some groundwater makes its water not public.
Neither side has pointed to any caselaw defining "public water." The Court does agree with SWBT that it is somewhat problematic for a governmental entity, particularly a water conservation district organized under the Texas Constitution, to argue that the waters it controls are not public. Cf. Clark v. Briscoe Irrigation Co., 200 S.W.2d 674, 682 (Tex.Civ. App. Austin 1947, writ dism'd) ("clear and explicit purpose" of Article 16, Section 59 of the Texas Constitution is to "conserve the public waters of the State and to develop their use in the public interest"). Also cf. TEX. WATER CODE § 49.217 (prohibiting the operation of motor vehicles "on or near public facilities," (emphasis added) i.e., "a drainage ditch, or on land adjacent to a levee, canal, ditch, exposed conduit, pipeline, pumping plant, storm water facility, or other facility for the transmission, storage, treatment, or distribution of water, sewage, or storm water owned or controlled by a district").
Additionally, the Court notes that EPCWID's argument is based on the definition of "state waters," whereas Section 181.082 refers to "public waters." The Texas Attorney General has distinguished the definition of "state waters" from the definition of "public waters" for the purposes of another Texas statute. Tex.Atty-Gen.Op. JM-572 (October 29, 1986). The Court believes that here, too, the definitions are not necessarily co-extensive and that these waters are public waters.
EPCWID argues that, although the lines do not inconvenience the public in terms of use of the water, the lines encumber its property and could potentially interfere with its activities. Section 181.082 merely requires that the installation occur in a manner that does not interfere with the public's use of the water. However, encumbrances on property and potential difficulties in EPCWID's potential expansion of canals do not constitute interference with the public's use of the water.
As an alternative basis for granting summary judgment, then, it appears that EPCWID's waters are, indeed, public waters and that SWBT would be entitled to install cables along the waters, so long as the cables do not interfere with the public's use of the water.
Federal Telecommunications Act
SWBT argues that EPCWID's application process constitutes a barrier to entry prohibited by the FTA. The FTA forbids state or local requirements that would have the effect of prohibiting any entity's ability to provide telecommunications service. 47 U.S.C. § 253(a). EPCWID's application requirements would, indeed, have this effect. In response, EPCWID does not argue that its requirements do not constitute a prohibited barrier to entry;[6] rather EPCWID argues that it is entitled to charge reasonable fees for use of its public rights-of-way under 47 U.S.C. § 253(c). As mentioned before, nothing in Section 253(c) preempts Section 181.082. Additionally, in order to claim the protection of Section 253(c), instead of general preemption, EPCWID would have to concede that its rights-of-way were, in fact, public. It does not appear willing to do this.
EPCWID's power under state law
SWBT argues that EPCWID, as a creature of state law, only has the powers granted to it by the law, and that these powers do not include monitoring and *648 charging fees for telecommunications providers to use its rights-of-way. In response, EPCWID points to broad language concerning its ability to charge for use of its facilities, to enter into leases, and to acquire property.
In a related argument, SWBT argues that PURA prohibits EPCWID from charging a fee. Under PURA, municipalities are not limited in terms of their ability to "control and receive reasonable compensation for access to the municipality's public streets, alleys, or rights-of-way or to other public property." TEX.UTIL.CODE § 54.205. Nothing in this statute permits water improvement districts, or any local governmental entities other than municipalities, to receive compensation for the use of their rights-of-way by telecommunications providers. Although EPCWID generally discusses its rights and powers, nowhere in its response does it address its relationship to PURA.
EPCWID's Objections to Summary Judgment Evidence
EPCWID objects to several exhibits attached to SWBT's motion for summary judgment. The Court will not address the objections to exhibits 1, 2, 30, 33 and 38 because those exhibits played no part in the Court's decision. Exhibits 3-5 are admissible insofar as they are public land records and reports of public agencies. FED.R.EVID. 803(8), (14). To the extent that these exhibits do not fit in these exceptions to the hearsay rule, the Court will not consider them. The Court cannot determine the basis of EPCWID's objections to exhibits 6-18 and will, therefore, overrule these objections.[7] EPCWID's objection to exhibit 32, which is that it is a copy of exhibit 31, will be overruled.
Motion to Dismiss Trespass Counterclaim
In a separate motion, SWBT argues that the Court should decline to exercise its supplemental jurisdiction over EPCWID's counterclaim for trespass. Despite SWBT's argument, the Court will not dismiss the counterclaim on this basis.
A court may decline to exercise supplemental jurisdiction over a claim for four reasons: 1) it "raises a novel or complex issue of State law;" 2) it substantially predominates over claims within the court's original jurisdiction; 3) all claims over which the court had original jurisdiction have been dismissed; and 4) if there are "exceptional circumstances" and "compelling reasons for declining jurisdiction." 28 U.S.C. § 1367(c). The first three bases for declining to exercise jurisdiction do not exist here. Therefore, the Court must determine whether this case presents any exceptional circumstances or compelling reasons to decline jurisdiction. The Court must conclude that it does not.
Although this claim is potentially unwieldy, a party's inability to clarify a claim does not present an exceptional circumstance or a compelling reason to decline jurisdiction. SWBT's argument is, in essence, an argument that EPCWID cannot possibly establish its trespass claim. This is not a basis for a court to abstain from hearing a case. SWBT's motion will be denied.
EPCWID's Motion
EPCWID moves for summary judgment on its counterclaims on five main grounds. The first three grounds have been addressed above. In addition, EPCWID argues that SWBT has breached a contract *649 SWBT originally entered into with the United States. Finally, EPCWID argues that it is entitled to summary judgment on its trespass claim.
Breach of Contract
EPCWID's motion to amend its answer and add a breach of contract counterclaim was denied as untimely. Therefore, its motion for summary judgment on this counterclaim will be denied.[8]
Trespass
EPCWID argues that it is entitled to summary judgment on its trespass counterclaim. A trespass claim is one of unauthorized and intentional entry upon land. Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562, 575 (Tex.App. Texarkana 2000, pet. denied). The Court has determined that SWBT's entry was authorized. Therefore, EPCWID's trespass claim will be dismissed.
Conclusion
ACCORDINGLY, it is ORDERED that Plaintiff's Motion for Summary Judgment (Doc. No. 80) is GRANTED, that Defendant's Motion for Summary Judgment (Doc. No. 73) is DENIED, that Plaintiff Southwestern Bell Telephone Company's Motion to Dismiss Counterclaim (Doc. No. 75) is DENIED.
NOTES
[1] EPCWID also filed a motion to dismiss, alleging that it was an arm of the state of Texas and was, therefore, entitled to immunity under the Eleventh Amendment. The Court denied this motion.
[2] A "facility" is defined as a "pole, pier, abutment, wire, or other fixture related to a telephone ... line." TEX.UTIL.CODE § 181.081.
[3] Interestingly, EPCWID's quotation of this section in its motion for summary judgment omitted the word "public."
[4] EPCWID's response to Request for Admission No. 2, attached as exhibit 15 to Plaintiff's Motion for Summary Judgment.
[5] Some of EPCWID's citations in this regard are inapplicable. For example, EPCWID cites Texas Transportation Code §§ 281.002, 281.003, which concern the methods by which a county with a population of 50,000 or fewer people may acquire a public interest in a private road.
[6] EPCWID does argue that SWBT has not demonstrated that EPCWID's property is the only location for telecommunications facilities in El Paso.
[7] EPCWID's objections to exhibits 6-18 read, in their entirety, "for the reasons stated above."
[8] The motion to amend and the motion for summary judgment were filed on the same day.
|
931 A.2d 460 (2007)
Arba L. HENRY, Individually and Arba L. Henry, as Executor of the Estate of Paige M. Henry, deceased, Plaintiffs,
v.
NANTICOKE SURGICAL ASSOCIATES, P.A., a Delaware corp., and Roy T. Smoot, Jr., M.D., Defendants.
C.A. No. 05C-02-031 WLW.
Superior Court of Delaware, Kent County.
Submitted: February 26, 2007.
Decided: May 24, 2007.
William D. Fletcher, Jr., Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorneys for the Plaintiffs.
Dennis D. Ferri, Esquire of Morris James LLP, Wilmington, Delaware; attorneys for the Defendants.
OPINION
WITHAM, R.J.
Defendant, Roy T. Smoot, Jr. ("Dr. Smoot"), filed a Motion for Summary Judgment against Plaintiffs, Arba L. Henry individually and as executor of the estate of Paige M. Henry, on the ground that there is no genuine issue as to any material fact as it pertains to Dr. Smoot and he is entitled to judgment as a matter of law. Plaintiffs argue that Dr. Smoot offered the Decedent negligent medical advice in a phone conversation during Paige Henry's *461 aftercare.[1] Defendant Smoot contends that the testimony explaining the advice he allegedly provided to Paige Henry ("Mr. Henry or the Decedent") is inadmissible hearsay, and he is therefore entitled to summary judgment in his favor.
Generally, the facts are as follows: Plaintiffs brought a survival action and a wrongful death case against Defendants[2] due to the death of Paige Henry. Mr. Henry died soon after he was released from Nanticoke Memorial Hospital following gastric bypass surgery performed by Dr. Smoot. Plaintiffs allege that the Defendants failed to respond properly to a medical complaint made by Mr. Henry to the on-call physician for Nanticoke Surgical on March 8, 2003, in which the Deceased complained of "major gas problems."[3] After receiving the message, no one from Nanticoke Surgical allegedly instructed Mr. Henry to report to either the hospital emergency room department or to his physician's office. Mr. Henry died three days after discharge from the hospital. Plaintiffs contend that the Defendants provided negligent aftercare to Mr Henry, resulting in his death.
Defendant Smoot argues that the evidence shows that it was not Dr. Smoot, but rather his colleague, Dr. Miller, who would have been on-call when Mr. Henry made his alleged phone call complaining of after-surgery pain. The record reflects that Dr. Miller was the on-call Doctor at the time of the alleged phone call, and the record tends to further show that any messages and/or phone calls to and/or from Mr. Henry went to Dr. Miller's assigned number.[4] It appears that the only thing that links Dr. Smoot, specifically, to the alleged negligent aftercare of Mr. Henry is the testimony of Katie Merrick, a friend of Mr. Henry. Ms. Merrick testified that Mr. Henry told her that he had spoken to Dr. Smoot via telephone, after the surgery, about "bad gas pains" and that Dr. Smoot had advised the Decedent "that he do some walking and/or receive an enema."[5] Plaintiffs alternatively argue that Ms. Merrick's statement "referencing Dr. Smoot could have meant the doctor himself or could have been shorthand for one of the other medical providers at Nanticoke Surgical Associates who treated him."[6]
Standard of Review
Summary Judgment should be rendered if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.[7] The facts must be viewed in the light most favorable to the nonmoving *462 party.[8] Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances.[9] However, when the facts permit a reasonable person to draw but one inference, the question becomes one for a decision as a matter of law.[10] When a moving party through affidavits or other admissible evidence shows that there is no genuine issue as to any material fact, the burden shifts to the non-moving party to demonstrate that there are material issues of fact.[11]
Discussion
Plaintiffs contend that the alleged advice offered by Dr. Smoot, in response to Mr. Henry's complaint of bad gas problems, to do some walking and/or receive an enema was in breach of the applicable standard of care. Plaintiffs seek to offer Dr. Smoot's alleged statements concerning the medical advice he gave to Mr. Henry through the testimony of Ms. Merrick. Ms. Merrick testified to what Mr. Henry told her concerning his alleged conversation with Dr. Smoot. Therefore, the Court has to examine the admissibility of Ms. Merrick's testimony, which explains an out-of-court statement made by an unavailable witness, Mr. Henry.
One issue regarding Ms. Merrick's testimony deals with the alleged conversation between Dr. Smoot and Mr. Henry. The conversation contains statements made by the Decedent to the Doctor concerning "bad gas pains" and statements made by Dr. Smoot concerning the medical advice he gave to Mr. Henry. Dr. Smoot does not recall the alleged conversation. The second issue regarding Ms. Merrick's testimony arises because Ms. Merrick's testimony articulates an out-of-court statement made to her by the Decedent.[12]
The Court should not consider inadmissible hearsay when deciding a Motion for Summary Judgment.[13] Therefore, the Court must address whether or not the testimony of Ms. Merrick, regarding the alleged conversation between the Decedent and Dr. Smoot, is admissible. If the Court concludes that Ms. Merrick's statement is admissible, then there would be a material fact in dispute concerning the aftercare provided by Dr. Smoot, individually, and it would therefore be inappropriate to grant Summary Judgment in favor of Dr. Smoot. However, if Ms. Merrick's statement is deemed inadmissible, then there would be no facts remaining in the record to link Dr. Smoot, specifically, to any alleged negligent aftercare, and Dr. Smoot would be entitled to judgment as a matter of law.[14]
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to *463 prove the truth of the matter asserted.[15] Hearsay is not admissible except as provided by law or by the Delaware Uniform Rules of Evidence.[16] The statement that the Decedent made to Ms. Merrick regarding what Dr. Smoot allegedly advised him is an out-of-court statement which was not made by a declarant while testifying at trial or a hearing.[17] Further, Mr. Henry's statement to Ms. Merrick is being offered to prove the truth of the matter asserted: That Dr. Smoot gave Mr. Henry the medical advice to walk around and/or receive an enema. Therefore, the statement of the Decedent is hearsay, and the statement is not admissible, unless the statement meets an applicable exception to the hearsay rule.
Plaintiffs argue that Mr. Henry's statement to Ms. Merrick falls within the State of Mind Exception, D.R.E. 803(3). D.R.E. 803(3) provides a hearsay exception for: "A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification or terms of the defendant's will."
Admission of statements that are simply perceptions or beliefs a victim has of events is not justified under the rationale for the state of mind exception.[18] In Capano, the Delaware Supreme Court explained that with respect to a statement that "I am afraid of D because he is a maniac" or "I am afraid of D because he threatened me" or "I am afraid of D because he is going to kill me," the statement of the declarant's then existing state of mind would not include anything but the assertion that "I am afraid."[19] The reasons why she was afraid cannot be characterized as assertions (i.e."statements") of her state of mind.[20] The Supreme Court concluded that the decedent's description of specific events involving the defendant and her opinion of the defendant reflect not on the decedent's "state of mind," but on her beliefs and memories of facts as she expressed them to her friends.[21] In Capano, the decedent's friend was going to testify that the decedent told her about an incident involving the decedent and the defendant.[22] The Supreme Court determined that the narrative of the incident is not a *464 state of mind it is a memory of an event and does not fall under Rule 803(3).[23]
Mr. Henry's statement to Ms. Merrick explaining that he informed Dr. Smoot that he was having bad gas pains and that Dr. Smoot suggested walking and/or an enema to relieve the pressure[24] is not admissible as an exception to the hearsay rule under Rule 803(3). Mr. Henry's statement to Ms. Merrick was a statement of Mr. Henry's perception of his conversation with Dr. Smoot (the event or incident), and the statement was not a statement of Mr. Henry's then existing state of mind. The Decedent's statement did not assert a state of his mind while making the statement to Ms. Merrick (for example, "I am in pain"). The statement merely explained a past incident where Mr. Henry allegedly spoke to Dr. Smoot. Mr. Henry's statement may tend to show the reasons why he did certain things (i.e. receive an enema or walk around), but the statement cannot be characterized as an assertion of Mr. Henry's state of mind. Even if Mr. Henry's statement to Ms. Merrick included an assertion of his then existing state of mind, the reasons why the declarant (Mr. Henry) had the particular state of mind are inadmissible under Rule 803(3).[25] Therefore, Mr. Henry's statement to Ms. Merrick is not admissible as an exception to hearsay under the State of Mind Exception (Rule 803(3)).
The Court will address the application of the Residual exception to Mr. Henry's statement, even though the argument was not raised. Rule 807 provides an exception to the hearsay rule where a statement has sufficient "circumstantial guarantees of trustworthiness" [equivalent to the exceptions in Rules 803 and 804], if the court determines (1) "the statement is offered as evidence of a material fact," (2) "the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts," and (3) "the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence."[26]
The requirements in Rule 807 are construed narrowly so the exception does not swallow the hearsay rule.[27] The Rule was developed to "provide for treating new and presently unanticipated situations which demonstrate trustworthiness within the spirit of the specifically stated exceptions."[28] It provides for growth and development of the law of evidence in the hearsay area.[29] The Rule is to be used in exceptional and extraordinary circumstances.[30]
The Court finds that Mr. Henry's statement is not admissible under the narrowly construed Rule 807. If the Court were to allow such a statement to come in under the Residual Exception, the exception would tend to swallow the hearsay rule, *465 because Mr. Henry's statement is not an unanticipated situation. In examining Mr. Henry's statement specifically, the circumstances surrounding Mr. Henry's statement does not rise to the level of trustworthiness required to invoke Rule 807. The statement was made to Ms. Merrick after Mr. Henry had gastric bypass surgery. The Decedent was suffering from pain and was taking pain medication at the time the statement was made. Also, the statement, as it pertains to Dr. Smoot, is not supported by corroborating testimony. In fact, the record tends to show that any aftercare communications that Mr. Henry may have had with a Doctor would have been with Dr. Miller, the physician who was on-call at the time. Therefore, Mr. Henry's statement to Ms. Merrick is not admissible as an exception to the hearsay rule under the Residual exception (Rule 807).
The Court finds that Mr. Henry's statement to Ms. Merrick is inadmissible hearsay. Therefore, the record is void of any facts linking Dr. Smoot to any negligent aftercare of Mr. Henry. Summary Judgment in favor of Dr. Smoot is appropriate.
Based on the foregoing, Defendant Dr. Smoot's Motion for Summary Judgment is granted. IT IS SO ORDERED.
NOTES
[1] Plaintiffs filed a single Response Motion that addresses both Defendant Smoot and Defendant Nanticoke Surgical Associates, P.A.'s Motion for Summary Judgment. The Defendants and Plaintiffs also filed supplemental memorandum on the issue, at the Court's request, following additional discovery.
[2] There were four Defendants in this case: Dr. Smoot, Nanticoke Surgical Associates, P.A., Nanticoke Memorial Hospital, Inc. and Nanticoke Health Services, Inc. Defendants Nanticoke Memorial Hospital, Inc. and Nanticoke Health Services, Inc. are no longer parties in this action.
[3] It is important to note that Plaintiffs' allegations are based on the aftercare provided to Mr. Henry and not on the initial surgery.
[4] Dr. Miller confirmed that post-operative care was provided by himself and Dr. Rodriguez, at his deposition in December of 2005.
[5] Dr. Smoot does not recall the alleged conversation.
[6] Plaintiffs' Supplemental Response in Opposition to Defendants' Motion for Summary Judgment, FN 1 (Page 11).
[7] Superior Court Civil Rule 56(c).
[8] Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del.Super.1995).
[9] Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del.1962).
[10] Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
[11] Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
[12] The Court will assume, without deciding, that Dr. Smoot's alleged statements to Mr. Henry and Mr. Henry's alleged statements to Dr. Smoot are admissible for purposes of this decision.
[13] Continental Cas. Co. v. Ocean Acc. & Guarantee Corp., 209 A.2d 743, 747 (Del.Super.1965).
[14] Plaintiffs' alternate theory that Ms. Merrick's statement referencing Dr. Smoot or another doctor referred to above would have no legal effect if the statement is deemed inadmissible.
[15] D.R.E. 801(c).
[16] D.R.E. 802.
[17] Mr. Henry can obviously not testify at a trial or hearing, because Mr. Henry is deceased.
[18] Capano v. State, 781 A.2d 556, 609 (Del. Supr.2001).
[19] Id. at 609-610. The Capano case is not exactly on point factually with the case sub judice concerning the statement in question, but the Supreme Court's analysis of Rule 803(3) in Capano is relevant to show how limited the exception is.
[20] Id. at 610.
[21] Id. at 611 citing State v. Fulminante, 193 Ariz. 485, 975 P.2d 75 (1999) ("The statement must be limited to a declaration showing the state of mind and not include a description of the factual occurrence that engendered that state of mind.").
[22] Id. (The Supreme Court continued in FN 140: To be admissible under Rule 803(3), the statement must reflect the declarant's state of mind at the time the statement is made. Thus, a statement reflecting the declarant's memory of a past state of mind cannot meet this contemporaneity requirement. For example, the decedent's statement to her friend that she was frightened during the garage incident is not admissible as a then existing state of mind, whereas the decedent's statements that she was upset with or afraid of the defendant at the time of the statement is admissible under the exception.).
[23] Id. at 611-612.
[24] See Ms. Merrick's September 10, 2003 letter, which she reiterated in her August 4, 2005 deposition.
[25] Capano, 781 A.2d at 610.
[26] D.R.E. 807.
[27] Cabrera v. State, 840 A.2d 1256, 1268 (Del. Supr.2004).
[28] State v. Walker, 2005 WL 1654338, *2 (Del.Super.) citing Weinstein's Federal Evidence, § 807 App.01[5] (2d ed., 2005).
[29] Id.
[30] Id. at *2. citing United States v. Trujillo, 136 F.3d 1388, 1395 (10 Cir.1998).
|
901 A.2d 538 (2006)
In re Estate of Henry K. SAGEL, Deceased, Anita Giarrusso, Executrix, Kathleen Arnold, Guardian of Estate.
Appeal of Estate of Henry K. Sagel.
Superior Court of Pennsylvania.
Submitted January 9, 2006.
Filed June 6, 2006.
Andrew F. Kagen, York, for appellant.
Robert L. Buzzendore, York, for appellee.
BEFORE: FORD ELLIOTT, P.J., LALLY-GREEN, and GANTMAN, JJ.
OPINION BY LALLY-GREEN, J.:
¶ 1 Appellant, Estate of Henry K. Sagel, appeals nunc pro tunc from the trial court's December 7, 2004 order. We affirm.
¶ 2 The trial court found the following facts:
Currently at issue is whether Gregory K. Sagel, the son of Henry K. Sagel (hereinafter referred to as "the Decedent"), as a beneficiary of a specific bequest of "tangible personal property" is entitled to the insurance proceeds of tangible personal property damaged or destroyed at the time of Decedent's death. Specifically, this Court has been asked to address whether or not the Piper Aerostar 600, the aircraft that the Decedent had owned and that which had been destroyed in the accident that caused the Decedent's death, and the Rolex watch that the Decedent was wearing in said accident, were tangible personal property, such that the insurance proceeds of which should go through the Decedent's specific bequest in his will to his son. This Court was asked to decide whether or not the specific bequests of those two items had adeemed. This Court hereby concludes that the plane and watch were tangible personal property that were specifically bequeathed to the Decedent's son, Gregory K. Sagel, and that they did not adeem because the Decedent still owned [them], and the items were still in existence, at the time of the Decedent's *539 death. Thus, this Court holds that the insurance proceeds of the tangible personal property should go through the specific bequest to the Decedent's son, Gregory K. Sagel.
Decedent, Doctor Henry K. Sagel, died testate on September 20, 1998, as a result of injuries he had sustained in an aircraft crash that occurred in Myrtle Beach, South Carolina. Decedent had owned the plane involved in the crash, and was the sole pilot of the plane at the time of the crash. There were three other passengers in the plane, all of whom also died as a result of said crash. A pedestrian had been struck by the plane, as it crashed, and died as a result of the injuries he sustained.
Representatives of the estates of the four other individuals killed in the crash asserted claims against the Estate of the Decedent, and on August 26, 2003, this Court approved of the Settlement Agreement for those claims and two medical malpractice claims that had been filed against the Estate of the Decedent. Despite the extraordinary claims that could have foreseeably eliminated all Estate assets, the Estate was successful in its efforts to resolve those claims with some Estate assets available for distribution to the designees of the Estate.
* * *
The Decedent's Last Will and Testament, Article 1.3, reads, "I give all tangible personal property that I own at my death, including but not limited to, all household furniture and furnishings, automobiles, books, pictures, jewelry, art objects, hobby equipment and collections, wearing apparel and other articles of household or personal use or ornament, to my son, GREGORY SAGEL. . . ." While the parties agreed that the aircraft and the watch, both of which had been destroyed in the crash, were part of this specific bequest, they were in disagreement whether those specific bequests had adeemed. If ademption had not occurred, the son of the Decedent would be entitled to the insurance proceeds from the specific bequests. Otherwise, if ademption had occurred, those specific bequests would extinguish, and the insurance proceeds would pass through the residuary of the Estate.
Trial Court Opinion, 11/19/03, at 1-2, 4.
¶ 3 The trial court found that the watch and the airplane existed at the time of the decedent's death. The trial court concluded, therefore, that the property did not adeem and that the decedent's son was entitled to the insurance proceeds from the watch and airplane. The trial court entered an order to that effect on December 7, 2004. This timely appeal followed.[1]
¶ 4 Appellant raises the following issues for our review:
A. Did the lower court err in determining that the Doctrine of Ademption did not apply to this specific bequest of personal property and the resulting insurance proceeds from the aircraft that the Decedent was piloting, which was destroyed in the crash, resulting in his death, as well as the destruction of his wristwatch, when the insurance proceeds should have been treated as funds available for distribution pursuant to the residuary clause of the Decedent's will?
B. Did the lower court err in its adjudication of the Second Amended Final Account directing that there were no *540 residuary payments to the residuary beneficiaries under the will of the Decedent, but rather that any remaining funds should be paid to Joseph A. Hardy, a minor, per the terms of a Settlement Agreement between Hardy and the Estate?
Appellant's Brief at 4.[2]
¶ 5 We conduct our review according to the following standard:
The findings of a judge of the orphans' court division, sitting without a jury, must be accorded the same weight and effect as the verdict of a jury, and will not be reversed by an appellate court in the absence of an abuse of discretion or a lack of evidentiary support. This rule is particularly applicable to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony. In reviewing the Orphans' Court's findings, our task is to ensure that the record is free from legal error and to determine if the Orphans' Court's findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and credible evidence. However, we are not limited when we review the legal conclusions that Orphans' Court has derived from those facts.
In re Estate of Inter, 444 Pa.Super. 417, 664 A.2d 142, 144-145 (1995) (internal citations and quotation marks omitted).
¶ 6 Appellant first argues that the doctrine of ademption extinguished decedent's bequest to his son of his airplane and watch, as those items did not exist at the time of decedent's death. The trial court found that the watch and airplane existed at the time of decedent's death. Therefore, the trial court found that ademption did not apply.
¶ 7 Our courts have described the doctrine of ademption as follows:
It has long since been decided in this jurisdiction that a specific legacy or devise is extinguished if the property is not in existence or does not belong to the testator at the time of his death. Testator's intent is not relevant where the property devised or bequeathed in his will is not part of his estate at death. Where the legacy has been determined to be specific the legatee is entitled to the very thing bequeathed if it be possible for the executor to give it to him; but if not, he cannot have money in place of it. This results from an inflexible rule of law applied to the mere fact that the thing bequeathed does not exist, and it is not founded on any presumed intention of the testator. This rule is equally applicable where the specifically devised or bequeathed property is removed from testator during his lifetime by an involuntary act or by operation of law. Thus, where it is established that the bequest or devise was specific and the [item was nonexistent] in the testator's estate at the time of death, an ademption results.
In re Estate of Balter, 703 A.2d 1038, 1041 (Pa.Super.1997), quoting In re Estate of Fox, 494 Pa. 584, 431 A.2d 1008, 1010 (1981) (internal citations and quotation marks omitted). This language espouses the "identity" theory of ademption. That theory is that, if the testator does not have the item at the time of his death, or if the item no longer exists, it is adeemed. *541 There is no inquiry into the testator's intent.
¶ 8 In addition to Balter, we must consider 20 Pa.C.S.A. § 2514, which governs interpretation of wills:
(18) Nonademption; balance. A devisee or legatee of property specifically devised or bequeathed has the right to any of that property which the testator still owned at his death and:
(iii) any proceeds unpaid at the testator's death on fire or casualty insurance on the property. . . .
20 Pa.C.S.A. § 2514(18)(iii).[3]
¶ 9 The parties do not dispute that the decedent made a specific bequest of his personal property, including the airplane and watch, to his son. The decedent's will did not contain an anti-ademption clause. The sole issue before us is whether, for purposes of § 2514(18) and the ademption doctrine, the decedent owned the airplane and watch at the time of his death. Our research uncovered no binding precedent governing the instant facts.
¶ 10 Appellant argues that the decedent owned the airplane and watch immediately before his death, but at the time of his death those two items no longer existed.[4] The record does not support Appellant's contention. It is clear that the airplane and watch still existed, albeit in a severely damaged state. Moreover, the plain language of § 2514(18) makes such a determination unnecessary, inasmuch as the relevant inquiry is whether the decedent owned the property at the time of his death. We find no authority for the proposition that accidental damage or destruction of property contemporaneous with decedent's death divests the decedent of ownership in that property, nor does Appellant attempt to argue that such is the case. We therefore conclude, pursuant to § 2514(18), that the decedent's son is entitled to the insurance proceeds from the decedent's airplane and watch.
¶ 11 Appellant's second argument addresses payment from the Estate pursuant to a settlement agreement. Appellant cites no law in support of this argument. Failure to cite pertinent authority in support of an argument results in waiver. Pa.R.A.P. 2119(b); Harris v. Toys "R" Us-Penn, Inc., 880 A.2d 1270, 1279 (Pa.Super.2005). We conclude that Appellant has waived its second argument.
¶ 12 In summary, we have concluded that Appellant's first argument lacks merit and that the second is waived. Accordingly, we affirm the trial court's order.
¶ 13 Order affirmed.
NOTES
[1] In a related case at 1236 MDA 2005, we concluded that the trial court properly permitted this nunc pro tunc appeal.
[2] Appellant included these issues in a timely concise statement of matters complained of on appeal. Pa.R.A.P.1925(b).
[3] Appellee Kathleen E. Arnold, Guardian of the Estate, argues at length in her brief that § 2514, which is derived from the Uniform Probate Code, represents the legislature's disapproval of the identity theory of ademption. See 20 Pa.C.S.A. § 2514, Jt. St. Comm. Comment -1976. Appellant argues that § 2514 espouses the "intent" theory of ademption, pursuant to which an inquiry into the testator's intent becomes necessary. In light of our analysis in the main text, we need not resolve this issue.
[4] Appellant's argument regarding the "existence" of the property is based on Balter. Appellant essentially argues that, since the property in question was damaged or destroyed simultaneously with the decedent's catastrophic death, the property no longer existed for purposes of ademption. Appellant does not address § 2514(18) in its brief.
|
577 F.2d 720
Oscar Diaz de Villegas, Inc.v.Aguilar S. A. de Ediciones
No. 77-1533
United States Court of Appeals, First Circuit
4/5/78
1
D.P.R.
AFFIRMED
|
360 F.Supp. 554 (1973)
George WILLIAMS
v.
Rafael HALPERIN et al.
No. 73 Civ. 53.
United States District Court, S. D. New York.
June 12, 1973.
*555 Paul J. Curran, U. S. Atty., S. D. N. Y. by Christopher Roosevelt, Asst. U. S. Atty., for defendants Halperin, Cushing, Bartley and Luttinger.
Easton & Echtman, New York City, for defendants Fisher and Krieger by Henry J. Easton, New York City.
George Williams, pro se.
MEMORANDUM
POLLACK, District Judge.
Defendants herein move to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted,[1] Fed.R.Civ.P. 12(b)(1), (6) and 56.
Plaintiff Williams, a federal prisoner presently serving an eight year term *556 upon a narcotics felony conviction, brings this civil rights suit against past and present agents of the Bureau of Narcotics and Dangerous Drugs (Halperin, Cushing, Bartley); a former Assistant United States Attorney (Luttinger); and his former lawyers (Krieger and Fisher). Plaintiff alleges that defendants conspired to deny him his constitutional rights in connection with his prosecution and the subsequent appeal therefrom. He grounds this action upon 18 U.S.C. § 242 and 42 U.S.C. §§ 1985 and 1986; jurisdiction is based upon 28 U.S.C. §§ 1331(a) and 1343.
By two motions to amend the complaint, granted heretofore, Fed.R.Civ.P. 15(a); cf., Blair v. Rockefeller, 469 F. 2d 641 (2d Cir. 1972), plaintiff has altered the character of his suit against Krieger, asserting claims in tort and contract arising from alleged improper representation of his interest in substitution for the purported civil rights claim previously asserted by the plaintiff against Krieger.
In considering the dismissal of a pro se complaint, the thrust of Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), must be considered. In Haines, the Supreme Court mandated a liberal standard for pro se pleadings and stated:
We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 . . .
See also Blair v. Rockefeller, 469 F.2d 641 (2d Cir. 1972).
But this liberality is not without limits. See Prezzi v. Schelter, 469 F.2d 691 (2d Cir. 1972); Jeffery v. Malcolm, 353 F.Supp. 395 (S.D.N.Y.1973); cf., Rosenberg v. Martin, 478 F.2d 520 (2d Cir. 1973). For the reasons stated hereinafter, the Court finds certain claims asserted in the complaint to be insufficient even when measured against the liberal standard of Haines and, accordingly, the complaint is dismissed to the degree indicated hereafter.
I. Motion of the BNDD agents.
Plaintiff relies upon certain civil rights statutes in asserting a claim against the BNDD agents. However, the reliance is misplaced. Section 242 of Title 18 does not create a private right of action; this is a criminal provision for deprivation of civil rights under color of law. Brown v. Duggan, 329 F. Supp. 207 (W.D.Pa.1971); Sinchak v. Parente, 262 F.Supp. 79 (W.D.Pa.1966). Sections 1985 and 1986 of Title 42, while providing for private suits for damages, do not allow relief against the actions of federal officers acting under color of federal law. See Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L. Ed. 1363 (1950); accord, Bethea v. Reid, 445 F.2d 1163, 1164 (3rd Cir.), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (1971).
The principle of Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as further defined by the Second Circuit at 456 F. 2d 1339 (1972) has been urged by plaintiff to sustain his claim against the BNDD agents. Bivens created a federal claim under the Fourth Amendment for a violation of constitutional rights through an illegal search and seizure. Even if the complaint could be deemed to be broad enough to encompass a Bivens type claim, the plaintiff herein previously and unsuccessfully litigated the precise issue of the alleged unconstitutional search and seizure. At the criminal trial, on appeal from the conviction, and in several motions for post-conviction relief, 28 U.S.C. § 2255, adverse rulings were entered against this plaintiff on the search and seizure contention. See United States v. Williams, 69 Cr. 266 (Murphy, J.), aff'd without opinion, (2d Cir. Dec. 10, 1970), cert. denied, 402 U.S. 987, 91 S.Ct. 1677, 29 L.Ed.2d 152 (1971); Williams v. United States, 334 *557 F.Supp. 669 (S.D.N.Y.1971) (Weinfeld, J.), aff'd, 463 F.2d 1183 (2d Cir. 1972) (per curiam); 72 Civ. 5118 (S.D.N.Y. March 7, 1973) (Gagliardi, J.). Such rulings preclude plaintiff from relitigating the asserted unconstitutional action. See Rosenberg v. Martin, 478 F.2d 520 (2d Cir. 1973).
Accordingly, no construction of the averments in the complaint entitles even a pro se plaintiff to relief against the government agents, and the complaint, as to them, must be dismissed. Cf., Jeffery v. Malcolm, 353 F.Supp. 395 (S.D. N.Y.1973).
II. Motion of Luttinger.
The law in this Circuit has long shielded federal prosecutors with an absolute immunity from any damage actions based on their conduct while acting in their official capacities. Yaselli v. Goff, 12 F.2d 396, 404 (2d Cir. 1926), aff'd per curiam 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927); accord, Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966), cert. denied 386 U.S. 1021, 87 S. Ct. 1367, 18 L.Ed.2d 457 (1967). This immunity was not withdrawn by Bivens. Bethea v. Reid, 445 F.2d 1163, 1165 (3rd Cir.), cert. denied, 404 U.S. 1061, 92 S. Ct. 747, 30 L.Ed.2d 749 (1971). Such immunity is required to assure effective operation of the prosecutor's office, essential to the public interest. The presence of this immunity precludes plaintiff from asserting a claim against Luttinger; this part of the complaint therefore also fails.
III. The Motion of the Attorneys.
Plaintiff originally based his claims against Fisher and Krieger on the civil rights statutes, alleging an effort to deny him his constitutional rights. This basis fails to assert a claim for relief. Previous rulings, cited above, have determined that plaintiff suffered no constitutional deprivation, and the statutes cited by plaintiff are inapplicable herein.
Plaintiff however, amended his complaint as against Krieger, to assert ordinary negligence and breach of contract claims. Specifically, plaintiff now contends that Krieger contracted to represent plaintiff with the highest degree of care and that Krieger breached this obligation; moreover, plaintiff charges as malpractice alleged trial errors and omissions by Krieger. The basis of jurisdiction for these claims under state law is diversity and requisite amount; Krieger is a citizen of Florida, and plaintiff's preincarceration domicile was New York.
Although the evidence required to establish such claims may be dubious, it cannot fairly be said at this stage that beyond doubt plaintiff "can prove no set of facts in support of his claim which could entitle him to relief." Haines v. Kerner, supra.
Accordingly, the motions to dismiss by Luttinger, Halperin, Cushing, Bartley and Fisher are granted. The motion to dismiss by Krieger is granted to the extent that the claims asserted in the original complaint are dismissed and the motion to amend the claim as set forth in the second amended complaint is granted and the motion to dismiss the same is denied.
So ordered.
NOTES
[1] Defendants Bartley and Cushing additionally assert lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2). The motion by Halperin requires consideration of the other grounds asserted for dismissal, and, accordingly, the Court does not rely on the issue of personal jurisdiction.
|
334 S.W.3d 177 (2011)
STATE of Missouri, Appellant,
v.
Johnnie Jewell WILLIAMS, Respondent.
No. WD 72530.
Missouri Court of Appeals, Western District.
March 15, 2011.
*178 Brent M. Nelson, Columbia, MO, for appellant.
Craig A. Johnston, Columbia, MO, for respondent.
Before: MARK D. PFEIFFER, P.J., and THOMAS H. NEWTON and ALOK AHUJA, JJ.
ALOK AHUJA, Judge.
This is a prosecution for driving while intoxicated. The State filed this interlocutory appeal pursuant to § 547.200.1[1] to challenge the Boone County Circuit Court's order sustaining defendant Johnnie Williams' motion to suppress evidence. The trial court granted Williams' motion based on its determination that the State did not have reasonable suspicion to stop Williams' vehicle for an alleged traffic offense. We affirm.
Factual Background
This case arose out of a traffic stop at 4:20 a.m. on May 30, 2009. Columbia Police Officer Dallas Dollens testified that he observed that the passenger side headlight of Williams' pickup truck was not illuminated when he passed Williams' truck, traveling in the opposite direction, on Business *179 Loop 70 in Columbia. Officer Dollens made a U-turn, activated his emergency lights to stop Williams' vehicle, and then approached the vehicle and identified himself as a police officer.[2] Officer Dollens immediately detected a strong odor of intoxicants on Williams' breath. Williams' speech was slightly slurred, and his eyes were glassy and bloodshot.
Williams told Officer Dollens that he had consumed alcohol before operating his vehicle. Officer Dollens then asked Williams to perform certain standard field sobriety tests, but Williams was unable to accurately follow instructions. Officer Dollens then arrested Williams for driving while intoxicated, and transported him to the Columbia Police Department. After arriving at the station, Williams submitted to a breath test, which indicated that his blood alcohol content was above the legal limit. Williams also made incriminating statements in response to questions from the Department of Revenue's Alcohol Influence Report form.[3]
Williams sought to suppress all of the evidence collected after the stop on the basis that Officer Dollens' in-dash video showed that Williams' passenger side headlight was functioning properly, and therefore Officer Dollens lacked reasonable suspicion to initiate the stop. In the alternative, Williams sought to suppress all of the statements he made to Officer Dollens after arriving at the police station, because he did not knowingly and voluntarily waive his Miranda[4] rights. The circuit court held a hearing on the motions, and concluded that there was no basis for the stop. It also stated that it was unnecessary for it to rule on the Miranda issue, because if the stop was unconstitutional, "everything thereafter falls." The State nevertheless requested a ruling on the Miranda issue to facilitate an appeal. The circuit court then sustained, in the alternative, Williams' motion to suppress based on his contention that he did not effectively waive his Miranda rights.
This appeal follows.
Standard of Review
"At a motion to suppress hearing, the State bears the burden of proving that the seizure was constitutionally proper." State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005).
A trial court's ruling on a motion to suppress will be reversed on appeal only if it is clearly erroneous. This Court defers to the trial court's factual findings and credibility determinations, and considers all evidence and reasonable inferences in the light most favorable to the trial court's ruling. Whether conduct violates the Fourth Amendment is an issue of law that this Court reviews de novo.
State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007) (citations omitted); accord, State v. Oliver, 293 S.W.3d 437, 442 (Mo. banc 2009).
Analysis
The State claims in its first Point Relied On that Officer Dollens possessed reasonable suspicion to stop Williams' vehicle *180 because its passenger side headlight was not functioning. Even if the headlight was functioning properly, the State contends that Officer Dollens' sincere, but mistaken, belief that the light was off provided sufficient justification for the stop. We disagree.
"A routine traffic stop based upon an officer's observation of a violation of state traffic laws is a reasonable seizure under the Fourth Amendment." Sund, 215 S.W.3d at 723.
Officer Dollens testified at the evidentiary hearing that the sole reason he stopped Williams' vehicle was because the passenger side headlight was not functioning.[5] The State acknowledged at the suppression hearing that the recording from Officer Dollens' dashboard video camera appeared to show that Williams' passenger side headlight was illuminated before Officer Dollens initiated the stop. Officer Dollens attempted to explain this discrepancy away:
Thisit's an issue I've noticed before with the videos in our patrol cars. After reviewing the video, you can tell there is a distinction between the two lights, and ourthe low quality of these cameras, there is a glare, especially at nighttime with lights, and thatI believe that's what thethat's what you see in the video is the parking light on that side. You can see light coming from that side of the vehicle, and that's what you're seeing.
The circuit court found that Officer Dollens lacked a reasonable suspicion to justify stopping Williams' pickup truck. It explained the basis for its ruling at a hearing on the State's motion to reconsider:
I understand the testimony of the officer with regard to it, but the video so clashes with that testimony. . . . I understand how cameras work. I also understand that that camera that probably sits in that car is probably some type of a wide-angle lens to pick up more, and I understand distortion. But when you look at the video, and I looked at it . . . forwards and stopping it and looking at it, . . . there is another light on there and it certainly appears that that other light is the headlight.
. . . .
. . . [W]hen you look at the video, and you've seen it also, you just see the light on.[[6]]
The State has suggested we should not defer to the circuit court's factual findings because the dashboard video on which the trial court's ruling depends is equally available to us. We disagree.[7] In White *181 v. Director of Revenue, 321 S.W.3d 298 (Mo. banc 2010), the Missouri Supreme Court made clear that the circuit court's findings of historical fact in connection with probable cause determinations are reviewed only for clear error. The court looked to United States Supreme Court precedent and cautioned that "`a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'" Id. at 310 (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).
White noted that "[t]he United States Supreme Court has interpreted the [clearly erroneous] standard to mean `[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.'" 321 S.W.3d at 310 n. 13 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). "Missouri applies the same `clearly erroneous' standard to review of a trial court's probable cause determination for abuse of discretion." Id.[8]
Under the "clearly erroneous" standard of review, the trial court's findings of fact are entitled to deference even where they are based on physical or documentary evidence which is equally available to an appellate court. Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504 (deferential review applies "even when the district court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts"); see also State v. Abeln, 136 S.W.3d 803, 808 (Mo.App. W.D. 2004) (reviewing trial court's determination that officer lacked reasonable suspicion for traffic stop; "Even where the trial court's decision was based solely `on the records,' we defer to the trial court as the finder of fact in determining whether there is substantial evidence to support the judgment and whether the judgment is against the weight of the evidence." (citation omitted)).[9]
Anderson explained that the justification for affording deference to the trial court's factual determinations was "not limited to the superiority of the trial judge's position to make determinations of credibility," but was also rooted in the trial court's relative expertise, and considerations of judicial efficiency. Anderson, 470 U.S. at 574, 105 S.Ct. 1504.
The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication *182 of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. . . . [T]he trial on the merits should be the "main event . . . rather than a tryout on the road."
Id. at 574-75, 105 S.Ct. 1504 (citation omitted).
Here, the circuit court did not clearly err in finding that Williams' passenger side headlight was illuminated at the time of the stop. Based on our review of the dashboard video, the trial court's conclusion that it showed both headlights illuminated is certainly a reasonable one. The video plainly shows light emanating from the area where the passenger side headlight is located. While that light is noticeably dimmer than the light originating from the driver's side headlight, the light on the passenger side appears to be at the same height as the light on the driver's side, suggesting that the light source on the passenger side is the headlight, not the parking light located below the headlight (as Officer Dollens suggested).[10] Moreover, the light appears to be white, and does not appear to be colored by the yellow lens over the parking light. Finally, the video appears to be of sufficient clarity, and Williams' vehicle passed closely enough to Officer Dollens' patrol car, to permit a factfinder to draw the conclusion that it accurately depicts both headlights illuminated.[11]
Consistent with the Fourth Amendment to the United States Constitution, "police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be afoot." State v. Peery, 303 S.W.3d 150, 154 (Mo.App. W.D.2010) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).[12] While "[n]o exact formula exists to define what constitutes reasonable suspicion," State v. Schmutz, 100 S.W.3d 876, 880 (Mo.App. S.D.2003), the Fourth Amendment requires "some minimal level of objective justification" for a Terry stop. Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). Here, the sole justification offered for the stop by Officer Dollens was that the passenger side headlight of Williams' vehicle was not illuminated. While such a traffic infraction would justify a brief traffic stop, the trial court found that no such infraction had in fact occurred. Given the trial court's factual findings, its conclusion that the stop was unlawful is not clearly erroneous, and we will not reverse it.
Citing such cases as United States v. Smart, 393 F.3d 767, 770 (8th Cir.2005), *183 the State argues that, even if both of Williams' headlights were functioning properly, Officer Dollens' sincerebut mistakenbelief that the light was off could justify the stop. The State did not raise this argument below, however. In the trial court, the State agreed that it was "asking [the trial court] to make a fact finding," and that the issue was, "was the light out." The prosecutor argued that "it is an issue for the Court to consider whether . . . that equipment violation actually existed." When the court asked for confirmation that "the first sole issue is whether or not there was a headlight on or not a headlight on," defense counsel agreed, and the prosecution offered no clarification or disagreement. From our review of the transcript of the suppression hearing and the hearing on the State's motion to reconsider, as well as that motion itself, the State made no argument that the stop could be justified because Officer Dollens held the objectively reasonable, but mistaken, belief that one of Williams' headlights was out. The State cannot now argue for reversal based on an argument it never presented to the trial court.
Even if this issue were preserved, however, it would not justify reversal. Here, Officer Dollens was travelling at medium speed, at night when headlights are most clearly visible, and on a road with no other oncoming traffic besides Williams' vehicle. The record does not reflect any environmental factors that could have contributed to Officer Dollens' mistaken belief, such as precipitation or the interference of other area lighting. Williams' vehicle passed relatively closely to Officer Dollens' patrol car, and from the dashboard video Officer Dollens had a clear and unobstructed view of both headlights of Williams' truck. In these circumstances, we would be hard pressed to conclude that Officer Dollens' mistaken belief as to whether Williams' passenger side headlight was operational was objectively reasonable.
The State's first Point Relied On is denied. The State's second Point argues that the trial court erred in concluding, in the alternative, that Williams' statements at the police station should be suppressed based on his failure to effectively waive his Miranda rights. At oral argument the State acknowledged, however, that we need not reach the Miranda issue if we affirm the trial court's Fourth Amendment ruling, because the State acknowledges that Williams' statements at the station constitute "fruit of the poisonous tree" flowing from the traffic stop. We accordingly do not further address the State's second Point Relied On.
Conclusion
The circuit court's order granting Williams' motion to suppress evidence is affirmed.
All concur.
NOTES
[1] Statutory references are to the RSMo 2000, as updated through the 2010 Cumulative Supplement, unless otherwise indicated.
[2] Notably, Office Dollens testified that he had spent approximately forty minutes with Williams about four hours earlier, in connection with the investigation of a domestic disturbance.
[3] The State failed to provide the Alcohol Influence Report to this Court, and as a result, it is unclear exactly what Williams said. The specific content of Williams' statements is not relevant to our analysis.
[4] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[5] Section 307.045 requires that "every motor vehicle . . . shall be equipped with at least two approved headlamps mounted at the same level with at least one on each side of the front of the vehicle," while § 307.060 mandates that each light be of "sufficient intensity to reveal persons and vehicles at a distance of at least one hundred feet ahead."
[6] During the hearing on the State's motion to reconsider, the circuit court made additional statements suggesting that it was not itself resolving the factual issue of whether the headlight was on, but was instead merely holding that no jury could find beyond a reasonable doubt that the headlight was out. On appeal, the State does not argue that the circuit court did not itself resolve the factual issue. Moreover, we note that the court's written order granting the motion to suppress states unambiguously that the "Court finds no basis for the stop of Def[endan]t."
[7] It is at least arguable that the trial court's findings were not based solely on the dashboard video: the trial court also heard Officer Dollens' testimony as to what he observed, and his effort to explain the seeming inconsistency between his observations and the dashboard video. To the extent that the trial court's factual findings were based on live testimony, this would further justify deferential review. See State v. Hughes, 272 S.W.3d 246, 254 (Mo.App. W.D.2008).
[8] Although White referred only to appellate review of a trial court's probable cause determinations, the Ornelas decision on which it relied involved appellate review of both probable cause and reasonable suspicion determinations. See 517 U.S. at 691, 116 S.Ct. 1657. Ornelas applied the clearly erroneous standard of review to both determinations. Further, while White was a civil drivers license suspension case, in its discussion of the standard of review White followed State v. Milliorn, 794 S.W.2d 181, 183-84 (Mo. banc 1990). See White, 321 S.W.3d at 310-11. Milliorn waslike this casean interlocutory appeal of a trial court ruling granting a motion to suppress evidence in a criminal case.
[9] The Missouri Supreme Court has applied this same principlethat deference is owed to a trial court's factual findings even where they are not based on credibility determinations in other contexts. See, e.g., MSEJ, LLC v. Transit Cas. Co., 280 S.W.3d 621, 623 (Mo. banc 2009) (deferential standard of review applied where, in making findings of fact, trial court "did not observe witness testimony but instead reviewed depositions and documentary evidence"; "even though this Court has the same opportunity to review the evidence as does the circuit court, the law allocates the function of fact-finder to the circuit court").
[10] While the passenger side headlight may be dimmer than the driver's side headlight, Officer Dollens testified that he stopped Williams' truck because the passenger side headlight was out. He did not claim, and the State has not argued, that Williams' passenger side headlight was so dim that it failed to provide the level of illumination required by § 307.060.
[11] Indeed, we would likely draw the same conclusion as the trial court, even if we reviewed the dashboard video de novo.
[12] The United States Supreme Court extended Terry's "stop and frisk" principles to motor vehicle stops in Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).
|
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COUNTY OF SAN MATEO, No. 18-15499
individually and on behalf of the
People of the State of California, D.C. No.
Plaintiff-Appellee, 3:17-cv-04929-VC
v.
CHEVRON CORPORATION;
CHEVRON U.S.A. INC.;
EXXONMOBIL CORPORATION; BP
PLC; BP AMERICA, INC.; ROYAL
DUTCH SHELL PLC; SHELL OIL
PRODUCTS COMPANY LLC;
CITGO PETROLEUM
CORPORATION; CONOCOPHILLIPS;
CONOCOPHILLIPS COMPANY;
PHILLIPS 66 COMPANY; PEABODY
ENERGY CORPORATION; TOTAL
E&P USA, INC.; TOTAL
SPECIALTIES USA, INC.; ARCH
COAL INC.; ENI OIL & GAS, INC.;
RIO TINTO ENERGY AMERICA,
INC.; RIO TINTO MINERALS, INC.;
RIO TINTO SERVICES, INC.;
ANADARKO PETROLEUM
CORPORATION; OCCIDENTAL
PETROLEUM CORPORATION;
OCCIDENTAL CHEMICAL
CORPORATION; REPSOL ENERGY
2 COUNTY OF SAN MATEO V. CHEVRON CORP.
NORTH AMERICA CORP.; REPSOL
TRADING USA CORP.;
MARATHON OIL COMPANY;
MARATHON OIL CORPORATION;
MARATHON PETROLEUM CORP.;
HESS CORP.; DEVON ENERGY
CORP.; DEVON ENERGY
PRODUCTION COMPANY, LP;
ENCANA CORPORATION; APACHE
CORP.,
Defendants-Appellants.
CITY OF IMPERIAL BEACH, No. 18-15502
individually and on behalf of the
People of the State of California, D.C. No.
Plaintiff-Appellee, 3:17-cv-04934-VC
v.
CHEVRON CORPORATION;
CHEVRON U.S.A. INC.;
EXXONMOBIL CORPORATION; BP
PLC; BP AMERICA, INC.; ROYAL
DUTCH SHELL PLC; SHELL OIL
PRODUCTS COMPANY LLC;
CITGO PETROLEUM
CORPORATION; CONOCOPHILLIPS;
CONOCOPHILLIPS COMPANY;
PHILLIPS 66 COMPANY; PEABODY
ENERGY CORPORATION; TOTAL
E&P USA, INC.; TOTAL
SPECIALTIES USA, INC.; ARCH
COUNTY OF SAN MATEO V. CHEVRON CORP. 3
COAL INC.; ENI OIL & GAS, INC.;
RIO TINTO ENERGY AMERICA,
INC.; RIO TINTO MINERALS, INC.;
RIO TINTO SERVICES, INC.;
ANADARKO PETROLEUM
CORPORATION; OCCIDENTAL
PETROLEUM CORPORATION;
OCCIDENTAL CHEMICAL
CORPORATION; REPSOL ENERGY
NORTH AMERICA CORP.; REPSOL
TRADING USA CORP.;
MARATHON OIL COMPANY;
MARATHON OIL CORPORATION;
MARATHON PETROLEUM CORP.;
HESS CORP.; DEVON ENERGY
CORP.; DEVON ENERGY
PRODUCTION COMPANY, LP;
ENCANA CORPORATION; APACHE
CORP.,
Defendants-Appellants.
COUNTY OF MARIN, individually No. 18-15503
and on behalf of the People of the
State of California, D.C. No.
Plaintiff-Appellee, 3:17-cv-04935-VC
v.
CHEVRON CORPORATION;
CHEVRON U.S.A. INC.;
EXXONMOBIL CORPORATION; BP
4 COUNTY OF SAN MATEO V. CHEVRON CORP.
PLC; BP AMERICA, INC.; ROYAL
DUTCH SHELL PLC; SHELL OIL
PRODUCTS COMPANY LLC;
CITGO PETROLEUM
CORPORATION; CONOCOPHILLIPS;
CONOCOPHILLIPS COMPANY;
PHILLIPS 66 COMPANY; PEABODY
ENERGY CORPORATION; TOTAL
E&P USA, INC.; TOTAL
SPECIALTIES USA, INC.; ARCH
COAL INC.; ENI OIL & GAS, INC.;
RIO TINTO ENERGY AMERICA,
INC.; RIO TINTO MINERALS, INC.;
RIO TINTO SERVICES, INC.;
ANADARKO PETROLEUM
CORPORATION; OCCIDENTAL
PETROLEUM CORPORATION;
OCCIDENTAL CHEMICAL
CORPORATION; REPSOL ENERGY
NORTH AMERICA CORP.; REPSOL
TRADING USA CORP.;
MARATHON OIL COMPANY;
MARATHON OIL CORPORATION;
MARATHON PETROLEUM CORP.;
HESS CORP.; DEVON ENERGY
CORP.; DEVON ENERGY
PRODUCTION COMPANY, LP;
ENCANA CORPORATION; APACHE
CORP.,
Defendants-Appellants.
COUNTY OF SAN MATEO V. CHEVRON CORP. 5
COUNTY OF SANTA CRUZ, No. 18-16376
individually and on behalf of The
People of the State of California; D.C. Nos.
CITY OF SANTA CRUZ, a 3:18-cv-00450-VC
municipal corporation, 3:18-cv-00458-VC
individually and on behalf of The 3:18-cv-00732-VC
People of the State of California;
CITY OF RICHMOND, individually
and on behalf of The People of OPINION
the State of California,
Plaintiffs-Appellees,
v.
CHEVRON CORPORATION;
CHEVRON USA INC.; ROYAL
DUTCH SHELL PLC; BP PLC;
SHELL OIL PRODUCTS COMPANY
LLC; BP AMERICA, INC.; EXXON
MOBIL CORPORATION;
CONOCOPHILLIPS;
CONOCOPHILLIPS COMPANY;
ANADARKO PETROLEUM
CORPORATION; APACHE
CORPORATION; DEVON ENERGY
CORPORATION; DEVON ENERGY
PRODUCTION COMPANY, LP;
TOTAL E&P USA, INC.; TOTAL
SPECIALTIES USA, INC.; ENCANA
CORPORATION; CITGO
PETROLEUM CORPORATION; HESS
CORPORATION; MARATHON OIL
COMPANY; MARATHON OIL
6 COUNTY OF SAN MATEO V. CHEVRON CORP.
CORPORATION; REPSOL ENERGY
NORTH AMERICA CORPORATION;
REPSOL TRADING USA
CORPORATION; PHILLIPS 66
COMPANY; OCCIDENTAL
PETROLEUM CORPORATION;
OCCIDENTAL CHEMICAL
CORPORATION; ENI OIL & GAS,
INC.; MARATHON PETROLEUM
CORPORATION,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Vince Chhabria, District Judge, Presiding
Argued and Submitted February 5, 2020
Pasadena, California
Filed May 26, 2020
Before: Sandra S. Ikuta, Morgan Christen, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge Ikuta
COUNTY OF SAN MATEO V. CHEVRON CORP. 7
SUMMARY*
Removal/Subject-Matter Jurisdiction/Appellate
Jurisdiction
On appeal from the district court’s order remanding
complaints to the state court from which they had been
removed, the panel dismissed the appeal in part for lack of
jurisdiction and affirmed in part, holding that defendants did
not carry their burden of establishing the criteria for federal-
officer removal under 28 U.S.C. § 1442(a)(1).
The County of San Mateo and other cities and counties
filed six complaints in California state court against more
than thirty energy companies, alleging nuisance and other
causes of action arising from the role of fossil fuel products
in global warming. The energy companies removed the cases
to federal court. The district court granted plaintiffs’ motions
to remand, rejecting all eight of the grounds on which the
energy companies relied for subject-matter jurisdiction.
Dismissing in part, the panel held that under 28 U.S.C.
§ 1447(d), it had jurisdiction to review the removal order
only to the extent the order addressed whether removal was
proper under § 1442(a)(1). The panel concluded that the non-
reviewability clause of § 1447(d) applied because the district
court remanded based on a lack of subject-matter jurisdiction.
Declining to follow the Seventh Circuit, the panel held that
under the “exception clause” of § 1447(d), authorizing review
of removal pursuant to 28 U.S.C. §§ 1442 and 1443, it had
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
8 COUNTY OF SAN MATEO V. CHEVRON CORP.
jurisdiction to review whether removal was proper under
§ 1442(a)(1), but the exception clause did not subject the
district court’s entire remand order to plenary review. The
panel followed Patel v. Del Taco, Inc., 446 F.3d 996 (9th Cir.
2006), concluding that Patel was not abrogated either by
intervening judicial authority or by Congress’s 2011
amendment of § 1447(d) to insert § 1442.
Affirming in part, the panel held that the district court did
not err in holding that there was no subject-matter jurisdiction
under the federal-officer removal statute. The panel
concluded that the energy companies failed to establish that
they were “acting under” a federal officer’s directions based
on three agreements with the government: CITGO’s fuel
supply agreements with the Navy Exchange Service
Command, a unit agreement for the petroleum reserves at Elk
Hills between Standard Oil Company of California and the
U.S. Navy, and the energy companies’ Oil and Gas Leases of
Submerged Lands Under the Outer Continental Shelf Lands
Act.
COUNSEL
Theodore J. Boutrous, Jr. (argued), Andrea E. Neuman,
William E. Thomson, and Joshua S. Lipshutz, Gibson Dunn
& Crutcher LLP, Los Angeles, California; Herbert J. Stern
and Joel M. Silverstein, Stern & Kilcullen LLC, Florham
Park, New Jersey; Neal S. Manne, Johnny W. Carter, Erica
Harris, and Steven Shepard, Susman Godfrey LLP, Houston,
Texas; for Defendants-Appellants Chevron Corporation and
Chevron U.S.A. Inc.
COUNTY OF SAN MATEO V. CHEVRON CORP. 9
Jonathan W. Hughes, Arnold & Porter Kaye Scholer LLP,
San Francisco, California; Matthew T. Heartney and John D.
Lombardo, Arnold & Porter Kaye Scholer LLP, Los Angeles,
California; Philip H. Curtis and Nancy Milburn, Arnold &
Porter Kaye Scholer LLP, New York, New York; for
Defendants-Appellants BP PLC and BP America, Inc.
Sean C. Grimsley and Jameson R. Jones, Bartlit Beck LLP,
Denver, Colorado; Megan R. Nishikawa and Nicholas A.
Miller-Stratton, King & Spalding LLP, San Francisco,
California; Tracie J. Renfroe and Carol M. Wood, King &
Spalding LLP, Houston, Texas; for Defendants-Appellants
ConocoPhillips and ConocoPhillips Company.
M. Randall Oppenheimer and Dawn Sestito, O’Melveny &
Myers LLP, Los Angeles, California; Theodore V. Wells, Jr.,
Daniel J. Toal, and Jaren E. Janghorbani, Paul Weiss Rifkind
Wharton & Garrison LLP, New York, New York; for
Defendant-Appellant Exxon Mobil Corporation.
Daniel B. Levin, Munger Tolles & Olson LLP, Los Angeles,
California; Jerome C. Roth and Elizabeth A. Kim, Munger
Tolles & Olson LLP, San Francisco, California; David C.
Frederick and Brendan J. Crimmins, Kellogg Hansen Todd
Figel & Frederick P.L.L.C., Washington, D.C.; for
Defendants-Appellants Royal Dutch Shell PLC and Shell Oil
Products Company LLC.
Bryan M. Killian, Morgan Lewis & Bockius LLP,
Washington, D.C.; James J. Dragna and Yardena R. Zwang-
Weissman, Morgan Lewis & Bockius LLP, Los Angeles,
California; for Defendant-Appellant Anadarko Petroleum
Corporation.
10 COUNTY OF SAN MATEO V. CHEVRON CORP.
Thomas F. Koegel, Crowell & Moring LLP, San Francisco,
California; Kathleen Taylor Sooy and Tracy A. Roman,
Crowell & Moring LLP, Washington, D.C.; for Defendant-
Appellant Arch Coal Inc.
Mortimer Hartwell, Vinson & Elkins LLP, San Francisco,
California; Patrick W. Mizell and Deborah C. Milner, Vinson
& Elkins LLP, Houston, Texas; for Defendant-Appellant
Apache Corp.
William M. Sloan and Jessica L. Grant, Venable LLP, San
Francisco, California; for Defendant-Appellant Peabody
Energy Corporation.
Mark McKane P.C., Kirkland & Ellis LLP, San Francisco,
California; Andrew A. Kassof, P.C., and Brenton Rogers,
Kirkland & Ellis LLP, Chicago, Illinois; for Defendants-
Appellants Rio Tinto Energy America, Inc.; Rio Tinto
Minerals, Inc.; and Rio Tinto Services, Inc.
Gregory Evans, McGuireWoods LLP, Los Angeles,
California; Steven R. Williams, Joy C. Fuhr, and Brian D.
Schmalzbach, McGuireWoods LLP, Richmond, Virginia; for
Defendants-Appellants Devon Energy Corp. and Devon
Energy Production Company, LP.
Christopher W. Keegan, Kirkland & Ellis LLP, San
Francisco, California; Andrew R. McGaan, P.C., Kirkland &
Ellis LLP, Chicago, Illinois; Anna G. Rotman, P.C., Kirkland
& Ellis LLP, Houston, Texas; Bryan D. Rohm, Total E&P
USA, Inc., Houston, Texas; for Defendants-Appellants Total
E&P USA, Inc.; and Total Specialties USA, Inc.
COUNTY OF SAN MATEO V. CHEVRON CORP. 11
Michael F. Healy, Shook Hardy & Bacon LLP, San
Francisco, California; Michael L. Fox, Duane Morris LLP,
San Francisco, California; for Defendant-Appellant Encana
Corporation.
Craig A. Moyer and Peter Duchesneau, Manatt Phelps &
Phillips LLP, Los Angeles, California; Stephanie A. Roeser,
Manatt Phelps & Phillips LLP, San Francisco, California;
Nathan P. Eimer, Lisa S. Meyer, Pamela R. Hanebutt, and
Raphael Janove, Eimer Stahl LLP, Chicago, Illinois; for
Defendant-Appellant CITGO Petroleum Corporation.
Christopher J. Carr and Jonathan A. Shapiro, Baker Botts
L.L.P., San Francisco, California; Scott Janoe, Baker Botts
L.L.P., Houston, Texas; Evan Young, Baker Botts L.L.P.,
Austin, Texas; Megan Berge, Baker Botts L.L.P.,
Washington, D.C.; for Defendants-Appellants Hess Corp.,
Marathon Oil Company, Marathon Oil Corporation, Repsol
Energy North America Corp., and Repsol Trading USA Corp.
Steven M. Bauer and Margaret A. Tough, Latham & Watkins
LLP, San Francisco, California; for Defendant-Appellant
Phillips 66 Company.
David E. Cranston, Greenberg Glusker Fields Claman &
Machtinger LLP, Los Angeles, California; for Defendant-
Appellant Eni Oil & Gas, Inc.
Marc A. Fuller and Matthew R. Stammel, Vinson & Elkins
L.L.P., Dallas, Texas; Stephen C. Lewis and R. Morgan
Gilhuly, Barg Coffin Lewis & Trapp LLP, San Francisco,
California; for Defendants-Appellants Occidental Petroleum
Corporation and Occidental Chemical Corporation.
12 COUNTY OF SAN MATEO V. CHEVRON CORP.
Shannon S. Broome and Ann Marie Mortimer, Hunton
Andrews Kurth LLP, San Francisco, California; Shawn
Patrick Regan, Hunton Andrews Kurth LLP, New York, New
York; for Defendant-Appellant Marathon Petroleum Corp.
Victor M. Sher (argued), Matthew K. Edling, Katie H. Jones,
and Martin D. Quiñones, Sher Edling LLP, San Francisco,
California; Kevin K. Russell, Sarah E. Harrington, and
Charles H. Davis, Goldstein & Russell P.C., Bethesda,
Maryland; for Plaintiffs-Appellees.
John C. Beiers, Paul A. Okada, David A. Silberman, Margaret
V. Tides, and Matthew J. Sanders, Office of the County
Counsel, Redwood City, California; for Plaintiff-Appellee
County of San Mateo.
Brian E. Washington, Brian C. Case, and Brandon Halter,
Office of the County Counsel, San Rafael, California, for
Plaintiff-Appellee County of Marin.
Jennifer Lyon and Steven E. Boehmer, McDougal Love
Boehmer Foley Lyon & Canlas, Office of the City Attorney,
La Mesa, California, for Plaintiff-Appellee City of Imperial
Beach.
Dana McRae and Jordan Sheinbaum, Office of the County
Counsel, Santa Cruz, California, for Plaintiff-Appellee
County of Santa Cruz.
Anthony P. Condotti, City Attorney, Santa Cruz, California,
for Plaintiff-Appellee City of Santa Cruz.
COUNTY OF SAN MATEO V. CHEVRON CORP. 13
Bruce Reed Goodmiller and Rachel H. Sommovilla, City
Attorney’s Office, Richmond, California, for Plaintiff-
Appellee City of Richmond.
Steven P. Lehotsky, Michael B. Schon, and Jonathan D.
Urick, U.S. Chamber Litigation Center, Washington, D.C.;
Peter D. Keisler, C. Frederick Beckner III, Ryan C. Morris,
and Tobias S. Loss-Eaton, Sidley Austin LLP, Washington,
D.C.; for Amicus Curiae Chamber of Commerce of the
United States of America.
Gerson H. Smoger, Smoger & Associates P.C., Dallas, Texas;
Robert S. Peck, Center for Constitutional Litigation P.C.,
Washington, D.C.; for Amicus Curiae Senator Sheldon
Whitehouse.
Scott L. Nelson and Allison M. Zieve, Public Citizen
Litigation Group, Washington, D.C., for Amicus Curiae
Public Citizen, Inc.
James R. Williams, County Counsel; Greta S. Hansen, Chief
Assistant County Counsel; Laura S. Trice, Lead Deputy
County Counsel; Tony LoPresti, Deputy County Counsel;
Office of the County Counsel, County of Santa Clara, San
José, California; for Amicus Curiae California State
Association of Counties.
Ian Fein, Natural Resources Defense Council, San Francisco,
California; Peter Huffman, Natural Resources Defense
Council, Washington, D.C.; for Amicus Curiae Natural
Resources Defense Council.
14 COUNTY OF SAN MATEO V. CHEVRON CORP.
OPINION
IKUTA, Circuit Judge:
In this appeal, we consider a district court’s order
remanding complaints to state court after the defendants had
removed the complaints to federal court on eight separate
grounds. Under 28 U.S.C. § 1447(d), we have jurisdiction to
review the remand order only to the extent it addresses
whether removal was proper under § 1442(a)(1), see Patel v.
Del Taco, Inc., 446 F.3d 996, 998 (9th Cir. 2006), which
authorizes removal by “any person acting under” a federal
officer, 28 U.S.C. § 1442(a)(1). We conclude that the
defendants did not carry their burden of establishing this
criteria for removal. Because we lack jurisdiction to review
other aspects of the remand order, we dismiss the remainder
of the appeal.
I
The County of San Mateo, the County of Marin, and the
City of Imperial Beach filed three materially similar
complaints in California state court against more than
30 energy companies in July 2017.1 The complaints allege
that the Energy Companies’ “extraction, refining, and/or
formulation of fossil fuel products; their introduction of fossil
fuel products into the stream of commerce; their wrongful
promotion of their fossil fuel products and concealment of
known hazards associated with use of those products; and
their failure to pursue less hazardous alternatives available to
them; is a substantial factor in causing the increase in global
1
We refer to the plaintiffs collectively as the “Counties” and to the
defendants collectively as the “Energy Companies.”
COUNTY OF SAN MATEO V. CHEVRON CORP. 15
mean temperature and consequent increase in global mean sea
surface height.” Based on these allegations, the complaints
assert causes of action for public and private nuisance, strict
liability for failure to warn, strict liability for design defect,
negligence, negligent failure to warn, and trespass.
The Energy Companies removed the three complaints to
federal court, asserting seven bases for subject-matter
jurisdiction, including jurisdiction under the federal-officer
removal statute, 28 U.S.C. § 1442(a)(1). The three cases
were assigned to Judge Vince G. Chhabria.
Shortly thereafter, the County of Santa Cruz, the City of
Santa Cruz, and the City of Richmond filed materially similar
complaints in California state court. The Energy Companies
removed these cases to federal court as well, asserting the
same seven bases for subject-matter jurisdiction,2 and they
were also assigned to Judge Chhabria.3
The Counties, in all six cases, moved to remand to state
court based on a lack of subject-matter jurisdiction. In a
reasoned opinion, the district court rejected all eight of the
2
Marathon Petroleum Corporation raised an eighth ground for
removal: that the complaints raised issues concerning maritime activities,
giving rise to admiralty jurisdiction. See 28 U.S.C. § 1333.
3
The city attorneys of Oakland and San Francisco filed similar
actions in California state court. Those cases were removed and assigned
to Judge William H. Alsup, who subsequently dismissed the action for
failure to state a claim and for lack of personal jurisdiction. See City of
Oakland v. BP p.l.c., 325 F. Supp. 3d 1017 (N.D. Cal. 2018); City of
Oakland v. BP p.l.c., 2018 WL 3609055 (N.D. Cal. July 27, 2018). In a
concurrently filed opinion, we resolve the appeal from those cases. See
City of Oakland v. BP p.l.c., — F.3d — (9th Cir. 2020).
16 COUNTY OF SAN MATEO V. CHEVRON CORP.
grounds on which the Energy Companies relied for subject-
matter jurisdiction, but the district court stayed its remand
orders to give the Energy Companies an opportunity to
appeal. “[W]e have jurisdiction to determine whether we
have jurisdiction to hear [a] case.” Atl. Nat’l Tr. LLC v. Mt.
Hawley Ins. Co., 621 F.3d 931, 933 (9th Cir. 2010) (citation
omitted).
II
Our authority to review an order remanding a case to state
court is limited. Under 28 U.S.C. § 1447(d), “[1] [a]n order
remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise, [2] except
that an order remanding a case to the State court from which
it was removed pursuant to section 1442 or 1443 of this title
shall be reviewable by appeal or otherwise.” We consider the
Energy Companies’ arguments that we may conduct a plenary
review of the district court’s remand order under both of these
clauses.
A
Although the first clause in § 1447(d) (the “non-
reviewability clause”) broadly prohibits review of “[a]n order
remanding a case to the State court from which it was
removed,” the Supreme Court has interpreted this language
narrowly as prohibiting review only if a remand order was
issued based on a ground enumerated in § 1447(c).4 Atl. Nat’l
4
Section 1447(c) states, in pertinent part:
A motion to remand the case on the basis of any defect
other than lack of subject matter jurisdiction must be
COUNTY OF SAN MATEO V. CHEVRON CORP. 17
Tr., 621 F.3d at 934 (citing Thermtron Prods., Inc. v.
Hermansdorfer, 423 U.S. 336, 343 (1976)). When a district
court bases its remand order on one of the grounds in
§ 1447(c)—i.e., the district court “remands based on subject
matter jurisdiction [or] nonjurisdictional defects”—as
opposed to, for example, based on a merits determination or
concerns about a heavy docket, id. at 934–35, “review is
unavailable no matter how plain the legal error in ordering the
remand,” Briscoe v. Bell, 432 U.S. 404, 413 n.13 (1977).
“[R]eview of the District Court’s characterization of its
remand as resting upon lack of subject-matter jurisdiction, to
the extent it is permissible at all, should be limited to
confirming that that characterization was colorable.”
Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224,
234 (2007).
The Energy Companies argue that the district court’s
order remanded the complaints on a ground that cannot be
“colorably characterized as subject-matter jurisdiction.” Id.
Specifically, the Energy Companies contend that the district
court remanded the complaints based on a merits
determination when it held that “federal common law d[id]
not govern the [Counties’] claims” and therefore “d[id] not
preclude [the Counties] from asserting . . . state law claims.”
We reject this argument. The district court ordered
remand based on its view that the cases were “improperly
made within 30 days after the filing of the notice of
removal under section 1446(a). If at any time before
final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.
28 U.S.C. § 1447(c).
18 COUNTY OF SAN MATEO V. CHEVRON CORP.
removed to federal court” because the Energy Companies
failed to show that “the case[s] . . . fit[] within one of a small
handful of small boxes” providing for subject-matter
jurisdiction. Put simply, the district court concluded that it
“lack[ed] subject matter jurisdiction.” 28 U.S.C. § 1447(c).
Even if the district court erred in reaching this conclusion,
“review is unavailable no matter how plain the legal error in
ordering the remand.” Kircher v. Putnam Funds Tr.,
547 U.S. 633, 642 (2006) (citing Briscoe, 432 U.S. at 413
n.13). To the extent Powerex requires that we determine
whether the district court’s conclusion that “federal common
law [d]id not govern the [Counties’] claims” was “at least
arguable,” Townsquare Media, Inc. v. Brill, 652 F.3d 767,
775 (7th Cir. 2011) (citing Atl. Nat’l Tr., 621 F.3d at 937–38,
940), we hold that it was, see City of Oakland v. BP p.l.c.,
— F.3d — (9th Cir. 2020) (holding that the district court
erred in concluding that there was subject-matter jurisdiction
on the ground that the plaintiffs’ state-law nuisance claims
were “necessarily governed by federal common law”).
B
We next consider the Energy Companies’ argument that
the second clause of § 1447(d) (the “exception clause”)
requires us to conduct plenary review of the district court’s
remand order. We have interpreted the exception clause as
giving us the authority to review the district court’s remand
order only to the extent that the order addresses the statutory
sections listed in the clause. See Patel v. Del Taco, Inc.,
446 F.3d 996, 998 (9th Cir. 2006). In Patel, the defendants
removed a state-court complaint to federal court under
§ 1443(1), which provides for removal of civil-rights cases.
Id. The district court granted the plaintiff’s motion for
remand on the ground that removal was not proper under
COUNTY OF SAN MATEO V. CHEVRON CORP. 19
either § 1441 or § 1443(1). Id. We held that, under
§ 1447(d), we lacked jurisdiction “to review the remand order
based on § 1441” and thus dismissed the defendants’ appeal
to the extent it was based on that section. Id.5 At the same
time, we held that we had jurisdiction “to review the remand
order based on . . . § 1443(1).” Id. The reasoning in Patel
applies directly to our case. Under § 1447(d), as interpreted
in Patel, we have jurisdiction to review the Energy
Companies’ appeal to the extent the remand order addresses
§ 1442(a)(1), but we lack jurisdiction to review their appeal
from the portions of the remand order considering the seven
other bases for subject-matter jurisdiction.
Arguing against this conclusion, the Energy Companies
contend that when a suit is “removed pursuant to section
1442,” 28 U.S.C. § 1447(d), the district court’s entire remand
order is subject to plenary review. The Energy Companies
base this argument on a Seventh Circuit case, Lu Junhong v.
Boeing Co., which concluded that because § 1447(d)
authorizes appellate review of “an order,” it authorizes review
of “the order itself,” not just “particular reasons for an order.”
792 F.3d 805, 812 (7th Cir. 2015). In reaching this
conclusion, the Seventh Circuit relied on Yamaha Motor
Corp., U.S.A. v. Calhoun, which construed a statute
(28 U.S.C. § 1292(b)) giving appellate courts jurisdiction to
review interlocutory orders that a district court certifies for
5
Patel considered an earlier version of § 1447(d), which did not
include § 1442 in the exception clause. See Removal Clarification Act of
2011, Pub. L. No. 112-51, § 2, 125 Stat. 545, 546 (2011).
20 COUNTY OF SAN MATEO V. CHEVRON CORP.
immediate appeal. 516 U.S. 199 (1996).6 Yamaha concluded
that § 1292(b) gives an appellate court jurisdiction over “any
issue fairly included within the certified order because ‘it is
the order that is appealable, and not the controlling question
identified by the district court.’” Id. at 205 (citation omitted).
The Energy Companies urge us to follow Lu Junhong
notwithstanding our decision in Patel for two reasons. First,
they argue that Patel has been abrogated by an act of
Congress. After Patel was decided, Congress enacted the
Removal Clarification Act of 2011, which amended
§ 1447(d) to allow for review of remand orders in cases
removed pursuant to § 1442. See Removal Clarification Act
of 2011, Pub. L. No. 112-51, § 2, 125 Stat. 545, 546 (2011).
According to the Energy Companies, Congress’s failure to
amend the reference in § 1447(d) to orders “reviewable by
appeal,” means that Congress intended to adopt Yamaha’s
interpretive approach and therefore authorized plenary review
of remand orders for cases removed pursuant to § 1442.7
Second, the Energy Companies argue that we are not bound
by Patel because it was not well reasoned: it did not provide
6
Section 1292(b) provides that “[w]hen a district judge, in making . . .
an order not otherwise appealable” determines that the order meets certain
criteria and that “an immediate appeal from the order may materially
advance the ultimate termination of the litigation, he shall so state in
writing in such order,” and “[t]he Court of Appeals . . . may thereupon, in
its discretion, permit an appeal to be taken from such order.” 28 U.S.C.
§ 1292(b).
7
The Energy Companies do not argue that Yamaha abrogated Patel,
nor could they, given that Yamaha was decided in 1996—a decade before
Patel—and thus is not “intervening higher authority.” Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc).
COUNTY OF SAN MATEO V. CHEVRON CORP. 21
any grounds for its conclusion that we lacked jurisdiction to
conduct a plenary review of the remand order.
Both of these arguments implicate our doctrine of stare
decisis. We have long held that “one three-judge panel . . .
cannot reconsider or overrule the decision of a prior panel,”
United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992),
unless “our prior circuit authority is clearly irreconcilable
with the reasoning or theory of intervening higher authority,”
Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en
banc).
There is no intervening judicial authority that would
abrogate Patel. Neither the Supreme Court nor an en banc
panel of this court has issued a decision after Patel was
decided in 2006 that is clearly irreconcilable with Patel’s
conclusion that § 1447(d) limits our review to the grounds for
removal covered by the exception clause. Therefore, we
consider only the effect of Congress’s amendment of
§ 1447(d) in 2011.
Before Congress’s amendment of § 1447(d), every circuit
court that had addressed this issue agreed with our reading of
§ 1447(d).8 Although Yamaha was decided in 1996 (ten years
before we decided Patel), no circuit court had applied
Yamaha to § 1447(d) or discussed its applicability in that
context. Therefore, when Congress amended § 1447(d) to
8
See Alabama v. Conley, 245 F.3d 1292, 1293 n.1 (11th Cir. 2001);
Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997); Thornton v.
Holloway, 70 F.3d 522, 524 (8th Cir. 1995); State Farm Mut. Auto. Ins.
Co. v. Baasch, 644 F.2d 94, 97 (2d Cir. 1981); Detroit Police Lieutenants
& Sergeants Ass’n v. City of Detroit, 597 F.2d 566, 567 (6th Cir. 1979);
Robertson v. Ball, 534 F.2d 63, 66 & n.5 (5th Cir. 1976); Noel v. McCain,
538 F.2d 633, 635 (4th Cir. 1976).
22 COUNTY OF SAN MATEO V. CHEVRON CORP.
insert “1442 or” before “1443,” Removal Clarification Act of
2011 § 2, it was against a backdrop of unanimous judicial
interpretation of § 1447(d) as permitting review of only the
grounds for removal identified in the exception clause.
Congress did not give any indication that it intended to
overrule the then-unanimous interpretation of § 1447(d) as
limiting judicial review of a remand order to the grounds
listed in the exception clause. We “presume that Congress
acts ‘with awareness of relevant judicial decisions.’” United
States v. Alvarez-Hernandez, 478 F.3d 1060, 1065 (9th Cir.
2007) (quoting United States v. Male Juvenile, 280 F.3d
1008, 1016 (9th Cir. 2002)). And “when ‘judicial
interpretations have settled the meaning of an existing
statutory provision, repetition of the same language in a new
statute indicates, as a general matter, the intent to incorporate
[the statute’s] . . . judicial interpretations as well.” Id.
(quoting Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit,
547 U.S. 71, 85 (2006)). Accordingly, we conclude that
Congress did not abrogate Patel sub silentio but rather
“inten[ded] to incorporate” Patel’s (and six other circuits’)
interpretation of § 1447(d). Id. (citation omitted). The
Fourth Circuit has reached the same conclusion. See Mayor
& City Council of Baltimore v. BP P.L.C., 952 F.3d 452, 461
(4th Cir. 2020) (“[T]he fact that Congress later added § 1442
as an exception to § 1447(d)’s no-appeal rule for remand
orders does not undermine our holding . . . that appellate
courts only have jurisdiction to review those grounds for
removal that are specifically enumerated in § 1447(d).”). We
therefore conclude that Congress’s amendment of § 1447(d)
did not abrogate our interpretation in Patel.
The Energy Companies also argue that we are not bound
by Patel because it was not well reasoned and failed to
analyze Yamaha or the statutory interpretation arguments
COUNTY OF SAN MATEO V. CHEVRON CORP. 23
discussed in Lu Junhong. Were we writing on a clean slate,
we might conclude that Lu Junhong provides a more
persuasive interpretation of § 1447(d) than Patel. But see
Baltimore, 952 F.3d at 459–60. Precedents, however, do not
cease to be authoritative merely because counsel in a later
case advances new arguments. See United States v. Ramos-
Medina, 706 F.3d 932, 939 (9th Cir. 2013) (“This panel is not
free to disregard the decision of another panel of our court
simply because we think the arguments have been
characterized differently or more persuasively.”). Therefore,
we remain bound by Patel until abrogated by an intervening
higher authority.
Applying Patel’s reading of § 1447(d), we may review
the district court’s remand order only to the extent it
addresses § 1442(a)(1). 446 F.3d at 998; accord Baltimore,
952 F.3d at 461. Accordingly, we dismiss the Energy
Companies’ appeals for lack of jurisdiction to the extent the
Energy Companies seek review of the district court’s ruling
as to other bases for subject-matter jurisdiction. See Patel,
446 F.3d at 1000.
III
We now turn to the single ground of removal that we have
jurisdiction to review: the question whether the district court
erred in holding that there was no subject-matter jurisdiction
under the federal-officer removal statute, 28 U.S.C.
§ 1442(a)(1). We review questions of statutory construction
and subject-matter jurisdiction de novo. Ritchey v. Upjohn
Drug Co., 139 F.3d 1313, 1315 (9th Cir. 1998). The
defendant has the burden of proving by a preponderance of
the evidence that the requirements for removal jurisdiction
24 COUNTY OF SAN MATEO V. CHEVRON CORP.
have been met. Leite v. Crane Co., 749 F.3d 1117, 1122 (9th
Cir. 2014).
As currently drafted, § 1442(a)(1) provides for removal
of:
A civil action . . . that is against or directed to
. . . [t]he United States or any agency thereof
or any officer (or any person acting under
that officer) of the United States or of any
agency thereof, in an official or individual
capacity, for or relating to any act under color
of such office or on account of any right, title
or authority claimed under any Act of
Congress for the apprehension or punishment
of criminals or the collection of the revenue.
28 U.S.C. § 1442(a)(1) (emphasis added).
In order to invoke § 1442(a)(1), a private person must
establish: “(a) it is a person within the meaning of the statute;
(b) there is a causal nexus between its actions, taken pursuant
to a federal officer’s directions, and [the] plaintiff’s claims;
and (c) it can assert a colorable federal defense.” Riggs v.
Airbus Helicopters, Inc., 939 F.3d 981, 986–87 (9th Cir.
2019) (quoting Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095,
1099 (9th Cir. 2018)). To demonstrate a causal nexus, the
private person must show: (1) that the person was “acting
under” a federal officer in performing some “act under color
of federal office,” and (2) that such action is causally
connected with the plaintiffs’ claims. See Goncalves ex rel.
Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d
1237, 1244 (9th Cir. 2017).
COUNTY OF SAN MATEO V. CHEVRON CORP. 25
The parties focus on the first prong: whether the Energy
Companies were “acting under” a federal officer’s directions.
We begin by providing some background. The federal officer
removal statute has existed in some version since 1815.
Willingham v. Morgan, 395 U.S. 402, 405 (1969). Although
Congress has amended the statute on a number of occasions,
see Watson v. Philip Morris Cos., 551 U.S. 142, 147–49
(2007), most recently in 2011, see Removal Clarification Act
of 2011 § 2, the purpose of the statute has remained
essentially the same: “The statute’s history and th[e] Court’s
cases demonstrate that its basic purpose is to protect the
Federal Government from the interference with its operations
that would ensue were a State able, for example, to arrest and
bring to trial in a State court for an alleged offense against the
law of the State, officers and agents of the Government acting
. . . within the scope of their authority.” Watson, 551 U.S.
at 150 (cleaned up) (quoting Willingham, 395 U.S. at 406).
Congress thought that allowing a federal officer to remove a
state action was necessary because “[s]tate-court proceedings
may reflect ‘local prejudice’ against unpopular federal laws
or federal officials” and “deprive federal officials of a federal
forum in which to assert federal immunity defenses.” Id.
(citation omitted). Moreover, state-court proceedings may
have the effect of impeding or delaying the enforcement of
federal law. Id. The federal officer removal statute should be
“liberally construed” to fulfill its purpose of allowing federal
officials and agents who are being prosecuted in state court
for acts taken in their federal authority to remove the case to
federal court. Id. at 147 (citation omitted).
When Congress first enacted § 1442(a)(1), the phrase
“officer of the United States” was generally understood as a
term of art that referred to federal officers who “exercis[ed]
significant authority.” Int’l Primate Prot. League v. Adm’rs
26 COUNTY OF SAN MATEO V. CHEVRON CORP.
of Tulane Educ. Fund, 500 U.S. 72, 81 (1991) (quoting
Buckley v. Valeo, 424 U.S. 1, 126 (1976)). In 1948, Congress
amended the statute to include the language “person[s] acting
under” any officer of the United States. Act of June 25, 1948,
ch. 646, § 1442, 62 Stat. 869, 938 (codified at 28 U.S.C.
§ 1442). At the time, this change was understood as
extending the section to apply to employees, as well as
officers. Int’l Primate Prot. League, 500 U.S. at 84 (quoting
H.R. Rep. No. 80-308, at A134 (1947)).
The Supreme Court subsequently interpreted the term
“person acting under that officer” as extending to a “private
person” who has certain types of close relationships with the
federal government. See Watson, 551 U.S. at 152–53. The
Supreme Court has identified a number of factors courts
should consider in determining whether a private person is
“acting under” a federal officer for purposes of § 1442(a)(1).
Among other things, the Court considers whether the person
is acting on behalf of the officer in a manner akin to an
agency relationship. See id. at 151 (private person must be
authorized to act “with or for federal officers”); see also
Goncalves, 865 F.3d at 1246 (holding that a private person
qualified as “acting under” a federal officer when it was
“serving as the government’s agent”); Cabalce v. Thomas E.
Blanchard & Assocs., Inc., 797 F.3d 720, 729 (9th Cir. 2015)
(noting that a company’s independent-contractor status
supported the conclusion that it was not acting under a federal
officer). The Court also considers whether the person is
subject to the officer’s close direction, such as acting under
the “subjection, guidance, or control” of the officer, or in a
relationship which “is an unusually close one involving
detailed regulation, monitoring, or supervision.” Watson,
551 U.S. at 151, 153 (citation omitted); see also Leite,
749 F.3d at 1120, 1124 (holding that a defense contractor
COUNTY OF SAN MATEO V. CHEVRON CORP. 27
properly removed a case under § 1442(a)(1) based, in part, on
“the Navy’s detailed specifications regulating the warnings
that equipment manufacturers were required to provide”).
Third, the Court considers whether the private person is
assisting the federal officer in fulfilling “basic governmental
tasks” that “the Government itself would have had to
perform” if it had not contracted with a private firm. Watson,
551 U.S. at 153–54; see also Goncalves, 865 F.3d at 1246–47
(holding that private person fulfilled a basic governmental
task by pursuing subrogation claims on behalf of a
government agency). Finally, taking into account the purpose
of § 1442(a)(1), the Court has considered whether the private
person’s activity is so closely related to the government’s
implementation of its federal duties that the private person
faces “a significant risk of state-court ‘prejudice,’” just as a
government employee would in similar circumstances, and
may have difficulty in raising an immunity defense in state
court. Watson, 551 U.S. at 152 (citation omitted).
As the Supreme Court has indicated, and circuit courts
have held, a government contractor may meet the criteria for
“acting under” an officer under certain circumstances. See id.
at 153–54. Watson cited with approval a Fifth Circuit case,
Winters v. Diamond Shamrock Chemical Co., which held that
a government contractor could remove a state action under
§ 1442(a) because the contractor was acting on behalf of the
government to produce Agent Orange, a carcinogenic
herbicide used as part of the war strategy in Vietnam, and was
acting under the close direction of the federal government
which had provided “detailed specifications concerning the
make-up, packaging, and delivery of Agent Orange,” as well
as “on-going supervision . . . over the formulation, packaging,
and delivery of Agent Orange.” 149 F.3d 387, 399–400 (5th
Cir. 1998). Further, the contractor provided a product that
28 COUNTY OF SAN MATEO V. CHEVRON CORP.
was “used to help conduct a war” and at least arguably
“performed a job that, in the absence of a contract with a
private firm, the Government itself would have had to
perform.” Watson, 551 U.S. at 153–54; see also Goncalves,
865 F.3d at 1246–47 (holding that a private contractor was
“acting under” a federal officer when it was serving as an
agent for the government and assisting the government in
fulfilling basic duties).
By contrast, a person is not “acting under” a federal
officer when the person enters into an arm’s-length business
arrangement with the federal government or supplies it with
widely available commercial products or services. See
Cabalce, 797 F.3d at 727–29; Baltimore, 952 F.3d at 463–64;
cf. Goncalves, 865 F.3d at 1244–47; Winters, 149 F.3d
at 398–400. Nor does a person’s “compliance with the law
(or acquiescence to an order)” amount to “‘acting under,’ a
federal officer who is giving an order or enforcing the law.”
Watson, 551 U.S. at 152. This is true “even if the regulation
is highly detailed and even if the private firm’s activities are
highly supervised and monitored.” Id. at 153. We may not
interpret § 1442(a) so as to “expand the scope of the statute
considerably, potentially bringing within its scope state-court
actions filed against private firms in many highly regulated
industries.” Id.
The Energy Companies argue that they meet the criteria
under § 1442(a) to remove the Counties’ complaints because
they were “persons acting under” a federal officer based on
three agreements with the government.9 They also argue that
9
We have held that corporations are “person[s]” under § 1442(a)(1),
Goncalves, 865 F.3d at 1244, so there is no dispute that the Energy
Companies meet this requirement.
COUNTY OF SAN MATEO V. CHEVRON CORP. 29
there is a causal nexus between their actions under those
agreements and the Counties’ claims. We consider each of
these agreements in turn.
We first consider CITGO’s fuel supply agreements with
the Navy Exchange Service Command (NEXCOM). Under
these contracts, CITGO agreed to supply gasoline and diesel
fuel to NEXCOM for service stations on approximately forty
U.S. Navy installations. The government resold the CITGO
fuel at NEXCOM facilities to individual service members.
The Energy Companies point to three sets of contractual
requirements in the fuel supply agreements which they claim
establish the “subjection, guidance or control” necessary to
invoke federal jurisdiction, namely: (1) “fuel specifications”
that required compliance with specified American Society for
Testing and Material Standards and required that NEXCOM
have a qualified independent source analyze the products for
compliance with those specifications; (2) provisions that give
the Navy the right to inspect delivery, site, and operations;
and (3) branding and advertising requirements.10
10
The Energy Companies cite the following sections in the fuel
supply agreements. First, the fuel specification provisions require CITGO
to “provide high quality gasoline product identical to or the same product
as supplied [by] the contractor[’]s commercially operated gasoline service
station [e.g., regular leaded, regular unleaded, and premium unleaded].”
The “[m]otor fuel products supplied” by CITGO were required to comply
with the generic standards promulgated by the American Society for
Testing and Materials, and the Navy agreed to “have a qualified
independent source analyze the products provided [by CITGO],” including
any product that was “suspected of being faulty/inferior.” Second, the
inspection provisions gave the Navy the right to “visually check truck
compartment(s) before and after deliveries” of fuel and to conduct
“general operational reviews,” which “might also include inspections of
. . . vehicles.” Third, the branding provisions require CITGO to “supply
all necessary equipment, including signage, for each facility,” to
30 COUNTY OF SAN MATEO V. CHEVRON CORP.
This argument fails. The provisions on which the Energy
Companies rely “seem typical of any commercial contract”
and are “incidental to sale and sound in quality assurance.”
Baltimore, 952 F.3d at 464. The contracts evince an arm’s-
length business relationship to supply NEXCOM with
generally available commercial products. See id. Supplying
gasoline to the Navy for resale to its employees is not an
activity so closely related to the government’s
implementation of federal law that the person faces “a
significant risk of state-court prejudice.” Watson, 551 U.S.
at 152. Accordingly, we hold that CITGO was not “acting
under” a federal officer by supplying gasoline and diesel fuel
to NEXCOM pursuant to fuel supply contracts.
Second, the Energy Companies point to the 1944 unit
agreement11 for the petroleum reserves at Elk Hills between
Standard Oil Company of California (Chevron Corporation’s
predecessor in interest) and the U.S. Navy. We have detailed
the history of this unit agreement at length in our prior
decisions. See United States v. Standard Oil Co. of Cal.,
545 F.2d 624, 626–28 (9th Cir. 1976). In brief, Standard
owned one-fifth and the Navy owned four-fifths of the
“incorporate the Government logo on at least three . . . provided signage
fixtures,” and to supply “[a] standard service station rotating-fixed neon
or incandescent street corner station identification sign . . . for each
Government fueling station.” And CITGO could submit “proposals on
[CITGO] branded products,” but the government was not obligated to
market “said product under [CITGO’s] brand or trade name.”
11
“A unit agreement was at that time and still is a common
arrangement in the petroleum industry where two or more owners have
interests in a common pool. Under such an arrangement, the pool is
operated as a unit and the parties share production and costs in agreed-
upon proportions.” United States v. Standard Oil Co. of California,
545 F.2d 624, 627 (9th Cir. 1976).
COUNTY OF SAN MATEO V. CHEVRON CORP. 31
approximately 46,000 acres comprising the Elk Hills
reserves. As is common in the oil exploration and production
industry, the two landowners entered into a unit agreement to
coordinate operations in the oil field and production of the
oil. Because the Navy sought to limit oil production in order
to ensure the availability of oil reserves in the event of a
national emergency, the unit agreement required that both
Standard and the Navy curtail their production and gave the
Navy “exclusive control over the exploration, prospecting,
development, and operation of the Reserve.” To compensate
Standard for reducing production, the unit agreement gave
Standard the right to produce a specified amount of oil per
day (an average of 15,000 barrels per day). Both parties
could dispose of the oil they extracted as they saw fit, and
neither had a “preferential right to purchase any portion of the
other’s share of [the] production.”
Standard’s activities under the unit agreement did not give
rise to a relationship where Standard was “acting under” a
federal officer for purposes of § 1442. Standard was not
acting on behalf of the federal government in order to assist
the government perform a basic government function.
Rather, Standard and the government reached an agreement
that allowed them to coordinate their use of the oil reserve in
a way that would benefit both parties: the government
maintained oil reserves for emergencies, and Standard
ensured its ability to produce oil for sale. When Standard
extracted oil from the reserve, Standard was acting
independently, see Cabalce, 797 F.3d at 728–29, not as the
Navy’s “agent,” Goncalves, 865 F.3d at 1246; see also H.R.
Rep. No. 112-17, pt. 1, at 3 (2011) (“Removal is allowed only
when the acts of Federal defendants are essentially ordered or
demanded by Federal authority . . . .”). And Standard’s
arm’s-length business arrangement with the Navy does not
32 COUNTY OF SAN MATEO V. CHEVRON CORP.
involve conduct so closely related to the government’s
implementation of federal law that the Energy Companies
would face “a significant risk of state-court ‘prejudice.’”
Watson, 551 U.S. at 152.12
Finally, we consider the Energy Companies’ lease
agreements, entitled “Oil and Gas Leases of Submerged
Lands Under the Outer Continental Shelf Lands Act.” Under
these standard-form leases, the government grants the lessee
the right to explore and produce oil and gas resources in the
submerged lands of the outer Continental Shelf, and in
exchange the lessee agrees to pay the government rents and
royalties. The Energy Companies argue that the lessee
Energy Companies were “acting under” a federal officer
because the leases require that the lessees drill for oil and gas
pursuant to government-approved exploration plans and that
the lessees sell some of their production to certain buyers;
specifically, lessees must offer twenty percent of their
production to “small or independent refiners” and must give
12
At oral argument, the Energy Companies argued for the first time
that Standard was “acting under” a federal officer pursuant to the Naval
Petroleum Reserves Production Act of 1976, Pub. L. 94-258, § 201,
90 Stat. 303 (1976), which directed the Secretary of the Navy to “produce
such reserves [including the Elk Hill reserve] at the maximum efficient
rate consistent with sound engineering practices for a period not to exceed
six years” and to “sell or otherwise dispose of the United States share of
such petroleum produced from such reserves.” § 201, 90 Stat. at 308.
Nothing in the record indicates that the Secretary of the Navy “ordered or
demanded,” H.R. Rep. No. 112-17, pt. 1, at 3 (2011), reprinted in 2011
U.S.C.C.A.N. 420, 422, that Standard produce oil on behalf of the Navy,
see also Baltimore, 952 F.3d at 471 (“[W]e are left wanting for pertinent
details about Standard’s role in operating the Elk Hills Reserve and
producing oil therefrom on behalf of the Navy.”). Therefore, the Energy
Companies’ reliance on this Act is misplaced.
COUNTY OF SAN MATEO V. CHEVRON CORP. 33
the United States the right of first refusal in time of war or
“when the President of the United States shall so prescribe.”
This argument also fails. The leases do not require that
lessees act on behalf of the federal government, under its
close direction, or to fulfill basic governmental duties. Nor
are lessees engaged in an activity so closely related to the
government’s function that the lessee faces “a significant risk
of state-court ‘prejudice.’” Id. In fact, the lease requirements
largely track legal requirements, for instance, that the lessee
offer 20 percent of the “crude oil, condensate, and natural gas
liquids produced on [the] lease . . . to small or independent
refiners,” 43 U.S.C. § 1337(b)(7), and that “[i]n time of war,
or when the President shall so prescribe, the United States
shall have the right of first refusal to purchase at the market
price all or any portion of any mineral produced from the
outer Continental Shelf,” 43 U.S.C. § 1341(b). Mere
“compl[iance] with the law, even if the laws are ‘highly
detailed, and thus leave [an] entity ‘highly regulated,’” does
not show that the entity is “acting under” a federal officer.
Goncalves, 865 F.3d at 1245 (quoting Watson, 551 U.S.
at 151–53). We agree with the Fourth Circuit that “the
willingness to lease federal property or mineral rights to a
private entity for the entity’s own commercial purposes,
without more” cannot be “characterized as the type of
assistance that is required” to show that the private entity is
“acting under” a federal officer. Baltimore, 952 F.3d at 465.
Accordingly, the leases on which the defendants rely do not
give rise to the “unusually close” relationship where the
lessee was “acting under” a federal officer. Watson, 551 U.S.
at 153.
Because we conclude that the Energy Companies have not
carried their burden of proving by a preponderance of the
34 COUNTY OF SAN MATEO V. CHEVRON CORP.
evidence that they were “acting under” a federal officer, we
do not reach the question whether actions pursuant to the fuel
supply agreement, unit agreement, or lease agreement had a
causal nexus with the Counties’ complaints, or whether the
Energy Companies can assert a colorable federal defense.
See Fidelitad, 904 F.3d at 1099.
***
We affirm the district court to the extent it held there was
no subject-matter jurisdiction under 28 U.S.C. § 1442(a)(1),
and we dismiss the remainder of the appeals for lack of
jurisdiction under § 1447(d).
AFFIRMED IN PART; DISMISSED IN PART.13
13
The Counties’ Motion for Partial Dismissal (ECF No. 41) is
GRANTED. See Patel, 446 F.3d at 1000. Costs shall be taxed against
the Energy Companies.
|
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10971
Summary Calendar
_____________________
DEANA ROMERO, Individually and as
Legal Representative of the Estate
of Conrad James Romero,
Plaintiff-Appellee,
versus
DONLEY COUNTY, TEXAS; TONI LYNN BOHLAR,
Deputy, Individually and in her
official capacity,
Defendants,
and
WILLIAM J. THOMPSON, Individually and
in his official capacity as the Donley
County Sheriff; CHARLES EDWARD BLACKBURN,
Deputy, Individually and in his official
capacity,
Defendants-Appellants.
_______________________________________________________
Appeal from the United States District Court for
the Northern District of Texas
(2:94-CV-22)
_______________________________________________________
May 14, 1996
Before REAVLEY, DUHÉ and WIENER, Circuit Judges.
PER CURIAM:*
*
Pursuant to Local Rule 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 Local Rule
47.5.4.
William Thompson and Charles Blackburn, claiming qualified
immunity from suit, bring this interlocutory appeal of a district
court order denying their motion for summary judgment. We
dismiss the appeal as to Thompson and Blackburn in their official
capacities, and reverse the summary judgment as to Thompson and
Blackburn individually.
BACKGROUND
Defendant Thompson is the Sheriff of Donley County, Texas.
He arrested Conrad Romero on burglary charges on February 13,
1992, and transported Romero to the Donley County jail, arriving
at the jail at about 1:00 a.m. on February 14, 1992. Defendant
Blackburn, a deputy sheriff, was at the jail at the time of
Romero’s arrival. Blackburn filled out certain jail intake
forms, including one where he indicated that the inmate did not
exhibit behavior suggesting the risk of suicide. Thompson
directed Blackburn to place Romero in the jail’s day room.
The day room contained a 40-foot long orange extension cord
attached to a television set. The toilet area of the day room
was screened, and over the toilet was a metal bar or pipe.
Deputy sheriff Toni Bohlar was the only jailer on duty at the
time of Romero’s suicide.1 Pursuant to Sheriff Thompson’s policy
the day room was off-limits to female officers. The evidence is
disputed as to whether Bohlar made inmate checks every thirty
minutes, as she claimed. She admitted that she could not see
1
Bohlar was also sued in this case, but the district court
granted summary judgment in her favor.
2
Romero when she made her checks. An inmate trustee found Romero
hanging from the bar over the toilet at 5:55 a.m. Romero had
used the extension cord to hang himself.
Fifteen months earlier, another pretrial detainee, Juan
Silva, had committed suicide by hanging himself in one of the
cells at the jail.2 Plaintiff in our case claims that even after
this suicide the training of jail personnel in suicide detection
and prevention was woefully inadequate, as was the level of
staffing.
Romero’s widow brought this suit individually and on behalf
of the estate of Romero, asserting violation of Romero’s civil
rights under 42 U.S.C. § 1983 and state law claims. Defendants
Thompson and Blackburn appeal the district court’s order denying
their motion for summary judgment.
DISCUSSION
An interlocutory order denying a motion for summary judgment
by defendants claiming qualified immunity is immediately
appealable, unless the order resolved a fact-related dispute
about “whether or not the evidence in the pretrial record was
2
Silva’s suicide also led to a civil rights suit. As in our
case, the district court denied a summary judgment motion wherein
the defendants claimed qualified immunity. We dismissed the
appeal of the order denying summary judgment as to Sheriff
Thompson and another defendant. Silva v. Donley County, No. 93-
1308 (5th Cir. July 28, 1994). While unpublished opinions prior
to January 1, 1996 are precedent in our circuit, Fifth Circuit
Rule 47.5.3, we conclude that a new rule applies in our case
because of our intervening en banc decision in Hare v. City of
Corinth, 74 F.3d 633 (5th Cir. 1996), discussed below.
3
sufficient to show a genuine issue of fact for trial.”3 The
Supreme Court more recently explained, however, that jurisdiction
over an interlocutory appeal in this context is not lacking
simply because “[m]aterial issues of fact remain,” since “[e]very
denial of summary judgment ultimately rests upon a determination
that there are controverted issues of material fact . . . .”4
Instead, the order is not appealable if the district court’s
“sufficiency determination is nothing more than whether the
evidence could support a finding that particular conduct occurred
. . . .”5 In this case, we believe that we have jurisdiction
because, deferring completely to plaintiff’s factual claims of
alleged conduct, her § 1983 claim cannot stand.
In Hare v. City of Corinth,6 a summary judgment case
involving the suicide of a pretrial detainee, we addressed the
standard for determining qualified immunity. We held that the
defendant’s conduct must amount to more that mere negligence or
even gross negligence.7 Instead, liability attaches under § 1983
for the episodic act or omission of a state jail official only
where the official acted or failed to act with deliberate
indifference to the detainee’s needs.8 Deliberate indifference
3
Johnson v. Jones, 115 S. Ct. 2151, 2153 (1995).
4
Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996).
5
Id.
6
74 F.3d 633 (5th Cir. 1996)(en banc).
7
Id. at 645-6.
8
Id. at 647-48.
4
means that the official “‘knows that the inmate faces a
substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.’”9
A. The County
Deana Romero sued Thompson and Blackburn individually and in
their official capacities as the sheriff and deputy sheriff of
Donley County. Defendants appeal in their individual and
official capacities. A suit against county officials in their
official capacities is a suit against the county.10 We have no
jurisdiction to entertain an interlocutory appeal by the
county.11 Accordingly, the appeal by the county is dismissed.12
B. Individual Liability
Blackburn filled out the inmate screening form for Romero,
indicating that Romero was not a suicide risk. Blackburn swore
by affidavit that “Romero seemed liked a typical arrested
individual” and “Romero’s conduct did not show any signs that he
was going to commit suicide.” Like Blackburn, Thompson swore in
his affidavit that Romero was a typical arrestee who did not seem
to be suffering from any mental problems. Another deputy and
9
Id. at 648 (quoting Farmer v. Brennan, 114 S. Ct. 1970,
1984 (1994)).
10
Rhyne v. Henderson County, 973 F.2d 386, 392 n.2 (5th Cir.
1992).
11
Nicoletti v. City of Waco, 947 F.2d 190, 191-92 (5th Cir.
1991).
12
We note, however, that on this record there is no
underlying constitutional violation on which to hold the county
liable under § 1983, as discussed below.
5
Bohlar had personally observed Romero and gave sworn statements
to the same effect. Neither defendant believed that Romero had
been drinking, although Blackburn placed a question mark beside
the question on the booking form inquiring whether the inmate
appeared to be under the influence of barbiturates or other
drugs.
The district court, in discussing Blackburn’s conduct, noted
evidence that Blackburn did not completely fill out the screening
form and, at Thompson’s direction, placed Romero in the day room.
Plaintiff also relies on evidence that the cord had been in the
day room for a long enough period of time for Blackburn and
Thompson to have known that it was there.
The deliberate indifference standard compels the conclusion
that Thompson’s and Blackburn’s conduct or inaction could give
rise to liability only if they knew that Romero faced a
substantial risk of committing suicide. Placing an inmate in a
day room with an extension cord cannot amount to deliberate
indifference unless they had such knowledge.
Thompson’s and Blackburn’s sworn statements in the record,
based on their observations of Romero, indicate that Romero did
not display any suicidal tendencies. Plaintiff failed to raise a
genuine issue of material fact suggesting otherwise, i.e. that
these officers knew that Romero faced a substantial risk of
suicide. Plaintiff offered the affidavit of an expert stating
that “Romero was subject to tremendous trauma due to the probable
loss of his job and the resultant embarassment and shame
6
associated with the arrest,” and that as a young prisoner (Romero
was 36), he was a higher than usual risk for suicide according to
national surveys. The expert affidavit sheds no light on whether
Blackburn or Thompson personally and subjectively knew that
Romero was a substantial suicide risk. We have noted that
“[p]olice personnel are not required to ‘unerringly detect
suicidal tendencies;’ such an exacting standard ‘requires the
skill of an experienced medical professional with psychiatric
training. . . .’”13
Plaintiff also offered evidence that Romero was quiet after
his incarceration, hesitated in answering questions posed by
Blackburn, and did not exercise his right to make a phone call.
Romero told Blackburn that he was a first-time offender, Thompson
viewed him as a first-time offender, and Thompson knew his
employer would be notified about the arrest. At most this
evidence is “merely colorable” on the critical issue of whether
defendants knew that Romero faced a substantial risk of suicide,
and is not “such that a reasonable jury could return a verdict
for the nonmoving party.”14 Accordingly, summary judgment should
have been granted in favor of Thompson and Blackburn on the §
1983 claim, since “there is no issue for trial unless there is
13
Evans v. City of Marlin, 986 F.2d 104, 107 (5th Cir. 1993)
(quoting Burns v. City of Galveston, 905 F.2d 100, 104 (5th Cir.
1990).
14
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49
(1986).
7
sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.”15
The evidence presented here by plaintiff falls far short of
the evidence presented in other cases where we have held that
defendants might be found liable for the suicide of a pretrial
detainee. In Hare, we remanded for further proceedings in light
of our clarified standard for imposing liability, where summary
judgment evidence was offered that the police were informed that
the detainee was a heavy drug user, she gave an interview “in a
defensive, ‘fetal-type’ position,” admitted she was a drug
addict, was observed by the police going through drug withdrawal,
attempted to destroy the interview videotape, was described by
witnesses as emotionally distraught, “frantic,” and “hyper,” and
threatened to commit suicide in the presence of the police
captain and “in a serious, believable tone of voice.”16
15
Id. at 249.
16
Hare, 74 F.3d at 636-37. See also Lewis v. Parish of
Terrebone, 894 F.2d 142, 145 (5th Cir. 1990) (affirming jury
verdict in favor of plaintiffs where jury heard evidence “(1)
that the deceased had expressed [to the jail nurse and warden] a
death wish, (2) that the decedent alleged consuming an inordinate
number of pills which required medical emergency treatment, (3)
that the emergency room physician ordered a psychiatric
examination, (4) that the deceased was transported to New Orleans
from the jail for such an examination, (5) that the deceased was
transported from New Orleans to the jail after the examination,
(6) that the envelope [containing a medical opinion that the
deceased was suicidal] given to the driver of the transporting
vehicle was delivered to the jail, (7) that another jail employee
believed the deceased to be suicidal and should not be left alone
and (8) that the deceased was housed in a solitary confinement
cell immediately prior to this death.”); Partridge v. Two Unknown
Police Officers of the City of Houston, 791 F.2d 1182, 1184 (5th
Cir. 1986) (reversing dismissal of complaint alleging that
decedent became hysterical during questioning after arrest,
8
We also conclude that Thompson cannot be held liable for
failing to properly supervise or train other employees in his
charge. We held in Doe v. Taylor Indep. Sch. Dist.17 that the
standard for imposing liability on a municipality should apply to
an individual to whom a municipality had delegated responsibility
for the direct supervision of employees. That standard imposes
liability where “the official, by action or inaction,
demonstrates a deliberate indifference to [the plaintiff’s]
constitutional rights.”18 In Hare, we clarified that municipal
liability turns on objective deliberate indifference:
Our opinion in this case makes clear that to prove an
underlying constitutional violation in an individual or
episodic acts case, a pre-trial detainee must establish
that an official acted with subjective deliberate
indifference. Once the detainee has met this burden,
she has proved a violation of her rights under the Due
Process Clause. To succeed in holding a municipality
accountable for that due process violation, however,
the detainee must show that the municipal employee's
act resulted from a municipal policy or custom adopted
or maintained with objective deliberate indifference to
the detainee's constitutional rights.19
arresting officer was told that decedent had suffered a nervous
breakdown, decedent was wearing two medical alert bracelets,
decedent became agitated and violent in police car, decedent
deliberately struck his head against police car seat divider and
attempted to kick out the doors and windows of the car, arresting
officers did not call to anyone’s attention the aberrant
behavior, police department knew decedent was a mental patient
and had records that he had attempted suicide during an earlier
confinement, defendant was booked as “heart and mental,” and
decedent was placed in solitary confinement where he hung
himself.)
17
15 F.3d 443, 453-54 (5th Cir.) (en banc), cert. denied,
115 S. Ct. 70 (!994).
18
Id. at 454.
19
Hare, 74 F.3d at 649 n.4.
9
Both Doe and Hare make clear, however, that imposing liability on
a supervisor or municipality requires proof that the plaintiff’s
constitutional rights were violated. Hare, in the passage quoted
above, requires an “underlying constitutional violation.”
Similarly, Doe requires proof that the supervisor’s deliberate
indifference “caused a constitutional injury to the
[plaintiff].”20 Given that Blackburn and Thompson established
that they did not individually act or fail to act with deliberate
indifference to Romero’s needs, there is no underlying
constitutional tort on which to hold Thompson liable in his
capacity as a supervisor.
Further, we have held that “[a] municipality should be
required to provide its police officers with minimal training to
detect ‘obvious medical needs of detainees with known,
demonstrable, and serious mental disorders.’ . . . In the
absence of any manifest signs that the Decedent was a danger to
herself, the city’s failure to train police personnel to detect
potential suicidal impulses does not give rise to a deprivation
of constitutional rights.”21 Given the failure of proof that
Romero was an obvious and manifest suicide risk, liability
premised on Thompson’s alleged failure to train his staff in
suicide prevention and detection must also fail.
20
15 F.3d at 454.
21
Evans, 986 F.2d at 107-08 (quoting Burns, 905 F.2d at
104).
10
C. State Law Claims
Plaintiff also asserted state law claims against Blackburn
and Thompson for negligence, statutory wrongful death, and
statutory survival. The individual defendants claim qualified
immunity from suit under Texas law. We have jurisdiction to
address this issue.22
We have described Texas’ law of qualified immunity as
“substantially the same as federal immunity law.”23 Government
officials are immune from suits arising from performance of their
discretionary duties in good faith as long as they were acting
within the scope of their authority.24 Here there is no question
that Blackburn and Thompson were acting within the scope of their
authority and that all decisions regarding training and the
placement and observation of Romero in the day room were
discretionary in nature. Actions are discretionary unless “the
law prescribes and defines the duties to be performed with such
precision and certainty as to leave nothing to the exercise of
discretion or judgment. . . .”25
Thus the question is whether these defendants acted in good
faith. Both swore that they harbored no ill will toward Romero,
22
Cantu v. Rocha, 77 F.3d 795, 803-04 (5th Cir. 1996); Morin
v. Caire, 77 F.3d 116, 119-20 (5th Cir. 1996).
23
Cantu, 77 F.3d at 808.
24
Id.
25
City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex.
1994)(quoting Rains v. Simpson, 50 Tex. 495, 501 (1878)).
11
and discharged their duties toward him in good faith and without
any intent to cause him harm.
Under Texas immunity law, “[a]n official acts in ‘good
faith’ if any reasonably prudent officer could have believed that
the conduct was consistent with the plaintiff’s rights.”26 “To
controvert the officer’s summary judgment proof on good faith . .
. the plaintiff must show that ‘no reasonable person in the
defendant’s position could have thought the facts were such that
they justified defendant’s acts,’” and “‘if officers of
reasonable competence could disagree on this issue, immunity
should be recognized.’”27 In adopting this test the Texas
Supreme Court stated that it is derived substantially from the
federal test for deciding immunity under § 1983.28 We have
recognized that federal constitutional standards do not require
such training of officers that they will “unerringly detect
suicidal tendencies.”29 Likewise, we conclude that Texas law
does not require every officer to possess such skills where the
detainee, as here, did not manifest “known, demonstrable, and
26
Cantu, 77 F.3d at 809 (emphasis added).
27
Chambers, 883 S.W.2d at 657 (emphasis added) (quoting Post
v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993)
and Malley v. Briggs, 106 S. Ct. 1092, 1096 (1986)).
28
Chambers, 883 S.W.2d at 656.
29
Burns, 905 F.2d at 104.
12
serious mental disorders.”30 Accordingly, Blackburn and Thompson
are entitled to immunity under state law.31
CONCLUSION
The appeal as to Thompson and Blackburn in their official
capacities is DISMISSED. The summary judgment as to Thompson and
Blackburn individually is REVERSED and REMANDED with instructions
to dismiss them as defendants.
30
Id.
31
We express no opinion as to whether summary judgment on
state law claims against the county is appropriate, or whether
such claims should proceed in federal court in the absence of any
federal claims. See Evans, 986 F.2d at 108-09 (discussing
municipal liability under state law for inmate suicide); Rhyne,
973 F.2d at 395 (discussing discretion of district court to
dismiss state claims after dismissal of federal claims).
13
|
751 N.W.2d 292 (2008)
2008 SD 40
Chad CARPENTER, Plaintiff and Appellant,
v.
RAPID CITY RED DOGS, LLC, Defendant and
The National Indoor Football League, Defendant and Appellee.
No. 24584.
Supreme Court of South Dakota.
Argued March 27, 2008.
Decided June 4, 2008.
Michael J. Simpson of Julius & Simpson, LLP, Rapid City, SD, for plaintiff and appellant.
Dennis W. Finch of Finch Bettmann Maks & Hogue, PC, Rapid City, SD, for defendant and appellee NIFL.
MEIERHENRY, Justice.
[¶ 1.] Chad Carpenter signed a contract to play indoor football for the Rapid City Red Dogs, a member of the National Indoor Football League (League). While playing for the Red Dogs in a regular season league game, Carpenter suffered a wedge compression fracture in his neck. The injury prevented Carpenter from working four weeks and cost him $5,461.95 in medical bills.
[¶ 2.] At the time of Carpenter's injury, neither the Red Dogs nor the League were insured under the workers' compensation laws of South Dakota. Carpenter sued both the Red Dogs and the League for workers' compensation benefits under SDCL 62-3-11. The circuit court entered a default judgment against the Red Dogs, but granted the League's motion for summary *294 judgment exempting it from liability for Carpenter's injuries.
[¶ 3.] Carpenter appeals the circuit court's grant of summary judgment to the League. The issue on appeal is whether the League is a joint employer with the Red Dogs and therefore equally responsible for workers' compensation coverage for Carpenter.
DECISION
[¶ 4.] As part of the summary judgment proceedings, the parties submitted a joint statement of undisputed facts. Since there was no issue of material fact, the circuit court determined as a matter of law that only the Red Dogs, not the League, was obligated to provide workers' compensation coverage. On appeal, we review the circuit court's application of the law de novo. Thornton v. City of Rapid City, 2005 SD 15, ¶ 4, 692 N.W.2d 525, 528-29 (citations omitted).
[¶ 5.] It is uncontested that Carpenter was employed by the Red Dogs and that the Red Dogs had no workers' compensation coverage for its employees. Carpenter claims that he was also an employee of the League. He contends that the Red Dogs and the League were joint employers. The circuit court rejected this contention. It relied upon a provision in the employment contract that expressly designated that the Red Dogs would be responsible for workers' compensation coverage. Carpenter claims the circuit court erroneously relied on the contract provision, because SDCL 62-3-18 unequivocally prohibits employers from contracting away their statutory obligation to provide workers compensation insurance.
[¶ 6.] We agree that the law does not allow a "contract or agreement, express or implied, . . . in any manner [to] operate to relieve any employer in whole or in part of any obligation created by [the workers compensation statutes]." SDCL 62-3-18. Nevertheless, the circuit court did not err in granting the League summary judgment. A de novo review of the entire contract along with the undisputed material facts supports the Leagues claim that Carpenter was not its employee.
[¶ 7.] In order for a person to be entitled to workers' compensation benefits, an employer-employee relationship must exist. Woodcock v. City of Lake Preston, 2005 SD 95, ¶ 10, 704 N.W.2d 32, 34; Egemo v. Flores, 470 N.W.2d 817 (S.D. 1991). "[A]lthough the existence of an employer/employee relationship is normally a question of fact, where clear, the relationship may be determined by the court." Goodman v. Sioux Steel Co., 475 N.W.2d 563, 565 (S.D.1991). Generally, we construe workers' compensation statutes liberally to find coverage. Id.
[¶ 8.] South Dakota law defines an employer as: "[A]ny individual, firm, association, limited liability company, or corporation . . . using the service of another for pay." SDCL 62-1-2 (emphasis added). An employee is defined as: "[E]very person, including a minor, in the services of another under any contract of employment, express or implied. . . ." SDCL 62-1-3 (emphasis added). Although the statute requires service for pay, actual monetary payment is not required. Nevertheless, the employer must supply some form of "valuable consideration" to the employee for his/her services. See Schumacher v. Schumacher, 67 S.D. 46, 288 N.W. 796, 798 (1939) (stating that "`Pay' here means compensation, and whether respondent received his compensation for services in money or other valuable consideration is immaterial"). See also Woodcock, 2005 SD 95, ¶ 13, 704 N.W.2d at 35 (noting that gratuitous employees are not covered under the workers' compensation statutes).
*295 [¶ 9.] The contract that Carpenter signed unequivocally provided that it was between Carpenter and the Red Dogs:
THIS CONTRACT is between Chad Carpender (sic), hereafter "Player" and The Rapid City Red Dogs L.L.C., hereinafter "Club" as a member of the National Indoor Football League ("League"). In consideration of the promises made by each to the other, [Carpenter] and [the Red Dogs] agree as follows: . . . [the Red Dogs] employ [Carpenter] as a skilled football player. [Carpenter] accepts such employment. [Carpenter] agrees to provide his best effort and loyalty to [the Red Dogs]. . . . If the state in which [the Red Dogs] operates requires state Workman's Compensation Insurance, [the Red Dogs] will provide the coverage for [Carpenter].
Another contract provision specified that the Red Dogs would pay Carpenter "weekly for each League game the sum of weekly expense allowance and $200.00 per game while on active roster for the team." Clearly, compensation for regular season games derived exclusively from the Red Dogs.
[¶ 10.] Additionally, only the Red Dogs could terminate Carpenter's employment without cause.[1] The contract provided that:
TERMINATION. The [Red Dogs] may terminate this contract without cause. If in the sole judgment of the [Red Dogs], [Carpenter's] service will not be necessary for [the Red Dogs] to field a professional football squad [the Red Dogs] may terminate [Carpenter's] contract. [Carpenter] understands that he is competing with other players for a position on the roster of said [Red Dogs]. At any time and in the sole judgment of the [Red Dogs], said [Red Dogs] may terminate this contract if [Red Dogs] determines that [Carpenter's] skill or performance has been unsatisfactory as compared with that of other players competing for roster positions, in which event all earned but unpaid salary [Carpenter] has earned or is otherwise entitled to shall be due and payable. . . .
[¶ 11.] In contrast, the contract does not specifically provide for Carpenter to receive any compensation from the League for his services.[2] Although Carpenter could be required to make publicity and promotional appearance "on behalf of official League or [the Red Dogs] corporate sponsors or suppliers, or the League and [the Red Dogs]," he was to "receive the appearance fee from [the] sponsor." The contract also called for Carpenter "to grant and assign" his name and/or likeness to the "League, [the Red Dogs] and any League-designated entity" for "advertisement, promotion or sale of trading cards or any other commercial product or entity." He was required to waive any claim to revenues except he could "receive compensation for playing cards, still photographs, motion pictures and videos." Even if we were to assume that the League would *296 have compensated Carpenter either directly or through the Red Dogs had he been chosen to participate in the all-star games, all of his compensation for regular season games unquestionably came from the Red Dogs. Since Carpenter was injured during a regular season game, the Red Dogs, not the League, was paying Carpenter for his service. Thus, the League does not meet the definition of employer under SDCL 62-1-2 because the League was not "using the service of [Carpenter] for pay."
[¶ 12.] Carpenter cites Gulbrandson v. Town of Midland as authority for his joint employment argument. 72 S.D. 461, 36 N.W.2d 655 (1949). Contrary to his position, the right to seek payment was central to finding joint employment in Gulbrandson. Id. at 657 (requiring an employment contract agreeing to service for pay). In Gulbrandson, Charles Schofield, the acting town marshal, also served in the capacity as deputy sheriff for the county. Schofield sought Gulbrandson's help in apprehending robbers. While under Schofield's direction, the robbers shot and killed Gulbrandson. Gulbrandson's family sued both the town and the county for benefits related to his death. We determined that Gulbrandson was under the direction of both the town and the county and could have been compensated for services from either entity. Id. at 658.
[¶ 13.] Carpenter contends that because of the League's control over the game, the Red Dogs and the players; the League had an express and/or implied contract of employment with Carpenter. Carpenter relies on certain league regulations and contract provisions in support of his express and implied contract argument.[3]
[¶ 14.] Even recognizing that the League had the authority to regulate and control certain aspects of Carpenter's services in regular season games and that it benefited from Carpenter's performance, Carpenter had no right to seek payment from the League and the League had no obligation to pay for or to provide other valuable consideration for Carpenter's services in regular season games. Consequently, the League was not a joint employer of Carpenter for purposes of workers' compensation coverage.
[¶ 15.] Affirmed.
[¶ 16.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.
NOTES
[1] Although the League had the authority to terminate Carpenter's contract for player misconduct, this disciplinary authority demonstrates the League's role as a licensing/regulatory entity rather than Carpenter's employer.
[2] The contract provision entitled EMPLOYMENT AND SERVICES includes the following:
If invited, [Carpenter] will practice for and play in any and all all-star football games sponsored by the League. [Carpenter] will receive compensation if playing in All-Star game.
The terms of the contract do not specify whether the compensation for the all-star games is paid to Carpenter by the Red Dogs or the League.
[3] Carpenter cites to the following league regulations and contract provisions:
The contract was printed on League letterhead, with three lines designated for signatures of the player, team representative and the CEO of the League (only the team representative and Carpenter actually signed the contract); the League was the sole arbiter of disputes between the Red Dogs and Carpenter; the League mandated certain apparel (but did not supply the apparel); incentive based contracts between the player and club required the League's approval; the League set the rules and regulations for league games; both the League and the Red Dogs were empowered to release players from their contract in order to sign with another professional football league; the League was permitted to use the player's name and likeness and pictures for publicity and promotion of the League, the Red Dogs or any of its other member clubs; both the League and the Red Dogs were empowered to direct the player to make personal appearances on behalf of the League or the Red Dogs corporate sponsors or suppliers; the League was permitted to use the players name and/or likeness in connection with advertising, promotion or sale of trading cards or any other commercial product or entity; and the League could fine, discipline or terminate player's contract for misconduct such as betting on league games, drug use, etc.
|
102 P.3d 660 (2004)
2004 OK 71
R. Keith TUCKER and Pam Tucker, Individually and as husband and wife, Plaintiffs/Appellants,
v.
ADG, INC., a/k/a Architectural Design Group, Inc., Defendant,
OKC Athletic Club, Limited Partnership otherwise known as Oklahoma City Athletic Club a/k/a or d/b/a Oklahoma Redhawks, T.S.M.G. a/k/a The Sports Management Group, Defendants/Appellees.
No. 98,895.
Supreme Court of Oklahoma.
September 21, 2004.
Rehearing Denied December 14, 2004.
Rex K. Travis of Oklahoma City, OK, for Plaintiffs/Appellants.
Robert D. Looney, Jr. of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, OK, for Defendant/Appellee OKC Athletic Club, Limited Partnership, otherwise known as Oklahoma City Athletic Club a/k/a or d/b/a Oklahoma Redhawks. T.S.M.G. a/k/a The Sports Management Group.
Natalie K. Ramsey and Bradley K. Donnell of McAfee & Taft, P.C., Oklahoma City, OK, for Defendant/Appellee.
*662 LAVENDER, J.
¶ 1 The issue in the present cause is whether the trial court erred in entering judgment as a matter of law in favor of Defendants/Appellees in accordance with Hull v. Oklahoma City Baseball Co., 1945 OK 194, 163 P.2d 982, which held a spectator seated in an unscreened portion of a grandstand at a baseball game assumes all normal or ordinary risks attendant upon the use of the premises. Plaintiffs/Appellants seek the overruling of Hull in the instant appeal. We hold that the trial court correctly entered judgment as a matter of law in favor of Defendants in this case and we further hold that Hull remains the rule of law in Oklahoma.
I
FACTS AND PROCEDURAL HISTORY
¶ 2 Plaintiffs, R. Keith Tucker and Pam Tucker filed the instant action on August 8, 2002[1], seeking compensatory and punitive damages for injuries allegedly caused by the wanton, reckless and gross negligence of the Defendants (Redhawks, lessee and operator of the ball park/stadium, ADG, Inc., a/k/a Architectural Design Group, Inc., the architectural firm/designer of the stadium, and S.M.G., the stadium consultant, respectively). Plaintiffs' Petition alleged that on April 17, 1998, while Plaintiffs attended a Redhawks baseball game at the Redhawks stadium in Oklahoma City, Oklahoma, Plaintiff, R. Keith Tucker was injured when a foul ball struck his left facial and eye area. Plaintiffs specifically alleged they were "on Defendant's premises as a business invitee in the luxury suite seating area."
¶ 3 Plaintiffs alleged Defendants "negligently fail[ed] to provide a reasonably safe facility and premises, which complied with architectural design standards and baseball stadium and seating standards, as well as use of protective devices, nets, and other available safeguards available on the market." *663 Plaintiffs further alleged Defendant Redhawks failed to warn Plaintiff "of known dangers on Defendant's premises, which Defendants created" and the "[t]he protective net behind home plate was dangerous in design and wasn't large enough and was too low to protect the Plaintiff from injury."[2]
¶ 4 In addition to their negligence claims, Plaintiffs seek punitive damages for the alleged wanton, reckless and gross negligence of Defendants. Specifically, Plaintiffs allege Defendants "knew of the statistics of injury resulting form [sic] failure to properly safeguard the baseball patrons under similar circumstances and willfully and recklessly failed to warn the patron or to take any reasonable safeguards to compensate for the dangerous design of the premises by proper netting and other measures available in the industry." Finally, Plaintiffs' Petition included allegations of breach of contract and express and implied warranties.[3]
¶ 5 On the same date of filing of its Answer,[4] S.M.G. filed its Motion to Dismiss and Brief in Support, seeking dismissal of Plaintiffs' breach of contract and breach of express and implied warranty claims for failure to state a claim upon which relief can be granted on the basis that there was no contract or warranty, express or implied between Plaintiffs and S.M.G.
¶ 6 Defendants ADG, Inc. and Redhawks[5] likewise filed respective Motions to Dismiss and Briefs in Support pursuant to 12 O.S. § 2012(B) (Supp.2003) on the basis of statute of limitations. In the alternative, ADG, Inc. sought dismissal of Plaintiffs' breach of contract, warranty and negligence claims for failure to state a claim upon which relief can be granted. Regarding the negligence claims, ADG, Inc. argued Plaintiff voluntarily assumed the risk of injury while attending a baseball game, citing Hull v. Oklahoma City Baseball Co., 1945 OK 194, 163 P.2d 982.
¶ 7 Plaintiffs' October 15, 2002 Response to Defendants' Motions to Dismiss included an express acknowledgment in paragraph one as follows:
[t]his is an unusual case in that ultimately, all the Defendants will be entitled to have either Motions to Dismiss or, more probably, Motions for Summary Judgment, sustained. This is so because this case seeks to raise the issue whether the Oklahoma Supreme Court will change the old rule of Hull v. Oklahoma City Baseball Co., that a fan who sits in the unscreened portion of the bleachers at a baseball game cannot recover if hit by a ball.
Plaintiffs' Response further included Plaintiffs' dismissal "in its entirety Plaintiff's *664 claims against [Defendant ADG, Inc.]."[6] Additionally, Plaintiffs announced their dismissal of the breach of contract and breach of express or implied warranty claims against the remaining Defendants S.M.G. and Redhawks.
¶ 8 Redhawks filed their Amended Motion to Dismiss and Brief in Support, in which Redhawks expressly withdrew their Motion to Dismiss on the basis of statute of limitations. Redhawks argued the remaining negligence claims should be dismissed upon the basis that the Redhawks had no legal duty to warn Plaintiff, a spectator at a baseball game, of the obvious, well-known and natural risk of being struck by a baseball, nor do they have a legal duty to protect Plaintiff from such a risk. Additionally, Redhawks argued Plaintiffs' claims were barred by the doctrine of implied primary assumption of the risk. S.M.G. later filed a Motion for Summary Judgment and Brief in Support essentially raising the same legal arguments.[7]
¶ 9 Plaintiffs' Response to Redhawks' Amended Motion to Dismiss reiterates their concession that pursuant to existing Oklahoma law as enunciated in the Hull case, "[t]he trial court should sustain the pending Motion to Dismiss so as to present that issue to the Supreme Court." Plaintiffs argue Hull should be overruled on the basis that the OKLA. CONST. art. 23, § 6 is absolute on its face that the defense of contributory negligence or assumption of risk shall go to the jury rather than be decided as a question of law by the court. Additionally, Plaintiffs urge the overruling of Hull on the basis that the rule in Hull runs afoul of the Good Samaritan Act, 76 O.S.2001 § 5, and further argue that Hull is inconsistent with other Oklahoma Supreme Court case law concerning open and obvious defects. Plaintiffs' Response to S.M.G.'s Motion for Summary Judgment concedes the material facts are uncontroverted and reiterates that "[t]he trial court should sustain the pending Motion for Summary Judgment so as to present that issue to the Supreme Court. The Supreme Court should then reverse Hull."
¶ 10 Subsequent to hearing, the trial court entered a Journal Entry of Judgment on January 30, 2003 sustaining Defendants' motions in their entirety and entered judgment for Defendants The Sports Management Group and OKC Athletic Club, Limited Partnership, a/k/a Oklahoma City Athletic Club, a/k/a or d/b/a Oklahoma Redhawks against Plaintiffs R. Keith Tucker and Pam Tucker. Plaintiffs filed their Petition in Error with this Court on February 21, 2003 and a Motion to Retain on the same date. Defendants/Appellees thereafter filed responses *665 indicating consent to Plaintiffs' Motion to Retain. We previously granted Plaintiffs' Motion to Retain this appeal.
II
THE TRIAL COURT CORRECTLY DETERMINED DEFENDANTS WERE ENTITLED TO JUDGMENT AS A MATTER OF LAW PURSUANT TO HULL V. OKLAHOMA CITY BASEBALL CO., 1945 OK 194, 163 P.2d 982 AND ITS PROGENY.
¶ 11 As a starting point, we note that "summary judgment is appropriate only when it appears [from the pleadings, affidavits, depositions, admissions or other evidentiary materials] there is no substantial controversy as to any material fact and that one of the parties is entitled to judgment as a matter of law." Flanders v. Crane Co., 1984 OK 88, 693 P.2d 602, 605; Carris v. John R. Thomas & Assoc., 1995 OK 33, 896 P.2d 522, 530; 12 O.S. Ch.2 App., Dist. Ct.R. 13(d). An order granting summary relief disposes solely of law questions and is reviewable by a de novo standard. Copeland v. Lodge Enterprises, Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699; Brown v. Nicholson, 1997 OK 32, ¶ 5, 935 P.2d 319, 321. Additionally, our review of a trial court's dismissal for failure to state a claim upon which relief can be granted likewise involves a de novo consideration as to whether the petition is legally sufficient. Indiana Nat'l Bank v. State Dep't of Human Services, 1994 OK 98, 880 P.2d 371, 375. "Generally, a petition may be dismissed as a matter of law for two reasons (1) lack of any cognizable legal theory, or (2) insufficient facts under a cognizable legal theory." Id.
¶ 12 This case is unique in that Plaintiffs repeatedly have conceded in their Response briefs submitted below that the trial court should grant Defendants' respective motions and enter judgment in Defendants' favor as a matter of law pursuant to the rule in Hull, thereupon Plaintiffs would pursue the overruling of Hull on appeal to this Court. We note that despite Plaintiffs' repeated concessions of the propriety of granting Defendants' motions (and acknowledgment that the material facts of this case are uncontroverted), Plaintiffs, nevertheless, in their Response to Redhawks' Amended Motion to Dismiss as well as the Petition in Error, attempt to raise factual skirmishes concerning whether Plaintiff was seated in an unscreened or screened portion of the stadium[8] and/or assert that this case is distinguishable from the facts in Hull such that Redhawks' Motion to Dismiss should be denied. We reject Plaintiffs' later-raised factual contentions to the extent we find they are immaterial to the determination at issue in this case and to the extent that they are inconsistent with Plaintiffs' earlier concessions in their earlier filed Response Briefs. "Oklahoma case law has long allowed admissions in the brief to be regarded as a supplement to the appellate record." Brennen v. Aston, 2003 OK 91, ¶ 4, 84 P.3d 99, 100 n. 3; Deffenbaugh v. Hudson, 1990 OK 37, 791 P.2d 84, 86, n. 3 (citation omitted). In accordance with Plaintiffs' admissions and the uncontroverted material facts of this case, the trial court properly granted Defendants' respective Motions and entered judgment in Defendants' favor as a matter of law pursuant to the rule in Hull.
¶ 13 In Hull v. Oklahoma City Baseball Co., 1945 OK 194, 163 P.2d 982, this Court set forth the rule applicable in personal injury actions filed by spectators who, while seated in an unscreened portion of a baseball stadium, are struck and injured by a baseball during a baseball game.[9] The Hull Court's Syllabus provides in pertinent part as follows:
*666 The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no legal duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of ordinary care.
Id. at 982. With respect to defendants' alleged duty to warn, Hull set forth the general rule as follows:
Generally speaking, the possessor of land is liable to a visitor only if he knows of or should have known of a dangerous condition and realizes that it involves unreasonable risk and has no reason to believe that the plaintiff will discover the condition and fails to warn the visitor so that the latter may avoid the harm.
Id. at 984. (citation omitted).
¶ 14 The baseball stadium at issue in Hull included areas of spectator seating which were protected by a protective screen and areas of unscreened spectator seating. The plaintiff in Hull was injured upon being struck by a foul ball while seated in an unscreened portion of a grandstand. Defendants there had "screened several box seats, some of which were in front of the part of the grandstand occupied by plaintiff.[10] However, the screens protecting the box seats did not extend high enough and were not intended to protect occupants of such seats used by plaintiff." Id. at 983. The issue in Hull was whether it was negligent for defendants to fail to screen that portion of the grandstand where plaintiff was seated. The plaintiff in Hull argued that "reasonable men may differ as to whether the facts constitute negligence, [and therefore,] the question is one for the jury to decide." Id. (citation omitted). Defendants in Hull,
distinguishing cases of injury resulting from defective conditions of grandstand structures or protective screens, contend that the only duty that devolved upon defendants was to afford protected seats to those of the patrons who desired them and that defendants performed this duty by screening a reasonable number of seats.
Id. The trial court in Hull sustained the defendants' theory, the cause was dismissed and ultimately, this Court affirmed.
¶ 15 While the rule in Hull has been summarily labeled "assumption of the risk,"[11] the Hull Court's ruling actually encompasses several additional key determinations as a matter of law: the absence of a duty on the part of the owner or occupant of the premises to reconstruct or alter the premises so as to obviate known and obvious dangers, and the absence of defendants' liability for a spectator's injury resulting from an obvious danger or one that should have been observed in the spectator's exercise of ordinary care. Hull, 163 P.2d at 982. Further, Hull's conclusion that "there was no unreasonable risk not appreciated by the plaintiff as a spectator of the baseball game," amounts to a determination that the risk of injury by a foul ball is a normal or ordinary risk, which is open and obvious to a spectator at a baseball game as a matter of law, for which defendants have no duty to warn. Id. at 984.
¶ 16 In this case, the facts and allegations closely mirror those of the Hull case. Plaintiff here alleged he was seated "in the luxury suite seating area" while observing the baseball game at the time he was struck and injured by a foul ball. Plaintiff in this case similarly alleged the protective net behind home plate "wasn't large enough and was too low to protect the Plaintiff from injury." Plaintiffs here further argued in their Response to Defendant Redhawks' Amended Motion to Dismiss that their Petition "alleges [Plaintiff] sat behind a screen but that the screen was inadequate." Notably absent from both Hull and this case are any allegations of defective conditions of either grandstand structures or protective screens. Likewise, in neither case do the plaintiffs *667 allege defendants failed to screen a reasonable number of seats. Rather, in both Hull and here, plaintiff alleged the protective screen behind home plate was too low to protect the area in which plaintiff was seated. The facts in this case are analogous to the facts in Hull, and as such, the case is subject to dismissal pursuant thereto.
III
PLAINTIFFS' CHALLENGES TO THE VIABILITY OF THE HULL CASE.
A. Plaintiffs' constitutional challenge.
¶ 17 Plaintiffs attack the Hull case and its progeny on the basis that the Oklahoma Constitution is absolute on its face that the defense of contributory negligence or of assumption of risk shall be decided by the jury pursuant to OKLA. CONST. art. 23, § 6.[12] While this constitutional mandate has been strictly followed in many cases, Plaintiffs' argument ignores the fact that Oklahoma jurisprudence has two[13] longstanding recognized exceptions to the rule that the defenses of assumption of the risk and contributory negligence must be submitted to a jury. See Flanders v. Crane Co., 1984 OK 88, 693 P.2d 602, 606. (footnote omitted) (citations omitted).
First, assumption of the risk and contributory negligence need not be submitted to a jury in cases where the plaintiff fails to present evidence tending to show primary negligence on the part of the defendant.... In the first instance, there is no need for any defense at all because where there is no duty or negligence there can be no liability.
Id. In other words, pursuant to this recognized exception, if there is no duty or negligence on the part of the defendant, there is no need for submission of the defenses of assumption of risk and contributory negligence to a jury and the determination may be made by the court as a matter of law. We have described a case such as this one "a fan injured while attending a sports event" as "a classic example" of implied primary assumption of the risk, "where the defendant does not owe a duty of care to the plaintiff [and therefore, would not be negligent]." Thomas v. Holliday, 1988 OK 116, 764 P.2d 165, 169. The Thomas case further explains "[i]mplied primary assumption of risk is, arguably, not a true negligence defense since no duty is ever owed the plaintiff and no cause of action for negligence is ever alleged." Id. at 169, n. 8 (citations omitted). Clearly, under the facts of this case, which amount to a classic example of implied primary assumption of the risk such that no duty is ever owed to the Plaintiff in the first instance, the case falls squarely within the first well-recognized exception to the constitutional mandate requiring submission of the defenses of assumption of the risk and contributory negligence to a jury for determination.[14]
B. Plaintiffs' statutory challenge.
¶ 18 Plaintiffs also challenge Hull and the cases following Hull on the basis that Hull conflicts with the "Good Samaritan Act," 76 O.S.2001 § 5,[15] arguing that this *668 statute "provides the duty, which Hull found lacking." Plaintiffs argue that part (a) of this statute imposes legal responsibility "upon everyone" for injury occasioned by negligence, the statute "has been on the books in Oklahoma since before statehood" and notes that the statute does not expressly exclude cases involving a fan injured at a ball park.
¶ 19 While we acknowledge that the statutory language contained in part (a) of this particular statutory provision has been the law for many years prior to the Hull case,[16] we note the absence of any expression of legislative intent to abrogate the common-law duty of care applicable on the facts of this case.[17] Generally, abrogation of the common law "must be clearly and plainly expressed" by the legislature. Greenberg v. Wolfberg, 1994 OK 147, 890 P.2d 895, 900, cert. denied, 493 U.S. 1045, 110 S.Ct. 843, 107 L.Ed.2d 838 (1990)(footnote omitted). "A presumption favors preservation of common law rights" and the common law remains in full force and effect unless a statute explicitly "or by necessary implication" provides to the contrary. Rogers v. Meiser, 2003 OK 6, ¶ 9, 68 P.3d 967, 973 (citations omitted).
¶ 20 Further, we note that this Court has previously addressed the effect, if any, this particular statutory provision had on the common-law duty of care. In the 1914 case of Midland Valley R.R. Co. v. Littlejohn, 1914 OK 388, 143 P. 1, we rejected a plaintiff's similar challenge to the virtually identical predecessor of this statutory provision as abrogating the common-law rule regarding a landowner's duty to trespassers and licensees. Plaintiff argued in Littlejohn that the common-law rule that a landowner owed no duty to a trespasser or licensee except to not intentionally or wantonly injure him was abrogated by the statutory provision, which appeared to create a legal responsibility or duty of care on "everyone" for ordinary acts of negligence. The Littlejohn Court determined in pertinent part as follows:
this statutory provision [has not been] regarded as more than a declaration of a general rule of the common law, which is limited by other common-law rules; and, notwithstanding its long standing in our statutes, our own court has repeatedly and uniformly held ... following the common law, that a landowner owes a trespasser or mere licensee no duty except to not injure him intentionally or wantonly.
Id. at 3 (emphasis added).
¶ 21 Underlying the Court's determination in Littlejohn is the fundamental concept where there is no duty, there can be no negligence. Littlejohn clearly illustrates that this particular statutory provision does not operate to create a duty where one previously did not exist, but merely declares the general common-law rule, which is limited by other common-law rules such as the one at bar. Just as the common-law rule concerning the landowner's duty toward a trespasser or licensee is unmodified by this general declaratory statutory provision, the ballpark owner/operator's common-law duty or lack thereof owed to a spectator/invitee likewise remains unmodified. Pursuant to the longstanding rule enunciated in Littlejohn and the repeatedly and uniformly held rule enunciated *669 in Hull, the absence of a duty on the part of the owner or occupant of the premises to reconstruct or alter the premises so as to obviate known and obvious dangers remains unchanged despite the existence of the general common-law rule enunciated in 76 O.S. § 5(a).
C. Plaintiffs argue Hull is inconsistent with other Supreme Court cases concerning open and obvious conditions.
¶ 22 The crux of Plaintiffs' argument appears to be the determination of what constitutes an open and obvious condition in any given premises liability case should be a fact question for the jury and not a determination of law for the court. In support of this assertion, Plaintiffs cite two cases, neither of which are factually on point, as neither involve injury to a spectator attending a sports event. See Jack Healey Linen Service Co. v. Travis, 1967 OK 213, 434 P.2d 924, 927-28 (slip and fall case) and Phelps v. Hotel Management, Inc., 1996 OK 114, 925 P.2d 891 (plaintiff's head injury by a glass bowl containing seasonal display extending behind bench into seating area of hotel lobby). Although in each of these cases, we concluded there were fact issues for the jury whether a defect on the premises was obvious and apparent or rather, in the nature of a hidden danger, it is clear that the particular facts and circumstances of these cases led to this conclusion in each case. The "facts of each particular case are controlling upon the question of negligence...." Travis, 434 P.2d at 925 (Syllabus by the Court). Travis further provided:
If ... conflicting inferences may be drawn from the facts and circumstances in evidence as to whether the offending hazard did have a 'deceptively innocent appearance', or its extent could not be anticipated, neither the trial court nor this court may declare that the peril was obvious and apparent and that recovery is precluded as a matter of law. The question is one for the jury.
Id. at 928 (emphasis added) (citations omitted).
Similarly, in Phelps, we determined "[t]he characteristics of the offending bowl as a hidden or open hazard at the time of the injury presented an issue of fact rather than one of law." Phelps, 925 P.2d at 894. Again, we noted in Phelps that on the particular facts presented there, a jury question was raised as to "whether a reasonable person would recognize that the bowl was in such a position that it appeared perfectly harmless but in fact presented the potential for injury." Id. (emphasis added).
¶ 23 Plaintiffs in this case do not argue that on the facts of this case, the risk of injury to a spectator by a ball while attending a baseball game might be construed as a hazard with a "deceptively innocent appearance" or that its hazardous extent could not have been anticipated. Plaintiffs merely assert that the issue of whether Plaintiff in this case "could appreciate that sitting where he sat in the ballpark would subject him to danger ought to be a jury question." Hull held spectators assume "all normal and ordinary risks attendant upon the use of the [ballpark]" and this pronouncement is tantamount to the conclusion that the risk of injury by a foul ball to a spectator seated in an unscreened seating area of a ballpark is an open and obvious danger as a matter of law. Hull, 163 P.2d at 982 (Second Syllabus by the Court). We have further determined "[t]he risk of being struck by a batted or thrown ball is one of the natural risks assumed by spectators attending a ball game." Lang v. Amateur Softball Ass'n of America, 1974 OK 32, 520 P.2d 659, 662 (citing Mann v. Nutrilite, Inc., 136 Cal.App.2d 729, 289 P.2d 282, 285 (1955)). The rule in Hull concerning the open and obvious nature of the danger is fact specific, as are the determinations in both Travis and Phelps. Therefore, despite the different outcomes reached on the basis of unique factual circumstances, the cases cited by Plaintiffs are not inconsistent with Hull.
IV
SUMMARY
¶ 24 In sum, we hold the trial court correctly entered judgment in Defendants' favor as a matter of law pursuant to Hull v. Oklahoma City Baseball Co., 1945 OK 194, 163 *670 P.2d 982, which held a spectator seated in an unscreened area of a grandstand at a baseball game assumes all normal or ordinary risks attendant upon the use of the premises. In addition, we reject Plaintiffs' quest for overruling this longstanding case. The trial court's Journal Entry of Judgment is affirmed in its entirety.
¶ 25 Upon Motion to Retain previously granted,
JUDGMENT OF THE TRIAL COURT IS AFFIRMED.
¶ 26 ALL JUSTICES CONCUR.
NOTES
[1] The record reflects this case was originally filed on April 13, 2000 with Plaintiff subsequently filing a notice of voluntary Dismissal Without Prejudice on August 9, 2001. Plaintiff re-filed the action within one year pursuant to 12 O.S.2001 § 100.
[2] Plaintiff Pam Tucker, as the wife of Plaintiff, R. Keith Tucker, also sought compensatory damages for loss of consortium, companionship and services in this case. Plaintiffs' Petition also included additional negligence claims as follows: Plaintiffs' claim against Defendant ADG, Inc. alleged the architectural firm's failure to design a safe area where the Plaintiffs could be located and Plaintiffs finally generally allege that the Redhawks as operator of the ball park "breached the duty to create and maintain a safe luxury suite setting [sic] area where Plaintiffs were seated."
[3] These claims were based upon Plaintiffs' assertion that Defendants "fail[ed] to furnish a safe place to sit during the game, as the seats and the area where Plaintiff contracted to sit was reserved and designated as a more expensive area in the luxury suite seating area. The Plaintiff was thus required to sit in a specific seat for which was paid an additional price separate from the reserved seating. This along with the purchase of the ticket created an express or implied warranty."
[4] In its Answer, Defendant S.M.G. raised numerous affirmative defenses including but not limited to failure to state a cause of action against Defendant upon which relief can be granted, Plaintiffs' action was barred by the applicable statute of limitations, comparative and contributory negligence of Plaintiff, R. Keith Tucker barred Plaintiffs' recovery, all conditions complained of by Plaintiffs were open and obvious and readily observable and barred recovery, and Plaintiffs voluntarily assumed the risk of all conditions existing at the ballpark on or about April 17, 1998 and voluntarily assumed the risk of a known danger by attending a baseball game at the ballpark on that date.
[5] Redhawks' Motion to Dismiss additionally argued Plaintiffs' cause of action for breach of express and implied warranty fails to state a cause of action because Plaintiff was not a third party beneficiary to whom such warranties would extend under Oklahoma law under 12A O.S.2001 § 2-318.
[6] Plaintiffs filed a formal notice of Dismissal of Defendant, ADG, Inc., a/k/a Architectural Design Group, Inc. on November 15, 2002.
[7] In support of its summary judgment motion, S.M.G. additionally argued Plaintiffs' prior admissions concerning assumption of the risk in the originally filed action should be deemed admitted in the instant action. Plaintiffs' failure to timely respond to S.M.G.'s First Request for Admissions in the originally filed action had resulted in an Order entered against Plaintiffs in that case deeming the request for admissions admitted pursuant to 12 O.S.2001 § 3236(A). Plaintiffs subsequently filed their Notice of Voluntary Dismissal in that case and re-filed the instant action 364 days later. We note the admissions in the first action each were directed at Mr. Tucker's subjective awareness and/or observations of the dangers associated with attending a baseball game and subjective awareness of warnings provided to spectators at the ballpark. Whether or not these admissions are deemed admitted in this case, the extent of Plaintiff's subjective awareness of the risks, dangers and warnings is not determinative of assumption of risk as a matter of law in this case. Furthermore, Plaintiffs concede in their Response to S.M.G.'s Motion for Summary Judgment that the facts contained in the admissions are not material or necessary to a decision in this case. We therefore refrain from ruling on the admissibility of the admissions from the originally filed action in the instant case. One who voluntarily participates in a particular activity or situation "involving inherent and well-known risks" is presumed to have consented to release the defendant from future liability for injuries caused by such risks. Thomas v. Holliday, 1988 OK 116, 764 P.2d 165, 169. Specifically, an owner or occupant of a baseball park is not "liable for an injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of ordinary care," Hull v. Oklahoma City Baseball Co., 1945 OK 194, 163 P.2d 982, 982 and "[t]he risk of [a spectator attending a baseball game] being hit by a baseball from virtually any direction [is] open and apparent" as a matter of law. Simpson v. City of Muskogee, 1994 OK CIV APP 103, 879 P.2d 1269, 1271.
[8] Plaintiffs' Response to Redhawks' Amended Motion to Dismiss argued "Tucker's Petition does not allege that he chose to sit in an unscreened part of the ballpark, as in Hull. Rather, it alleges that he sat behind a screen but that the screen was inadequate." Plaintiffs' position as stated in this particular response brief that this case is factually distinguishable from Hull is inconsistent with Plaintiffs' previous acknowledgment of the application of the rule in Hull on the facts of this case and their present quest for the overruling of Hull.
[9] For a historical perspective on the law and baseball spectator injuries, see Roger I. Abrams, Two Sports Torts: The Historical Development of the Legal Rights of Baseball Spectators, 38 TULSA L. REV. 433 (2003).
[10] The protective screen in Hull"extended from behind home plate to 135 feet on each side thereof and within a distance of 35 feet of where plaintiff sat." Hull, 1945 OK 194, 163 P.2d at 983.
[11] See Lang v. Amateur Softball Ass'n of America, 1974 OK 32, 520 P.2d 659; Simpson v. City of Muskogee, 1994 OK CIV APP 103, 879 P.2d 1269.
[12] "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury." OKLA. CONST., art. 23, § 6.
[13] Since we find this case falls within the first exception to the rule requiring submission of the assumption of risk and contributory negligence defenses to a jury, we need not determine whether this case likewise falls within the second exception to the rule, which provides that these defenses "need not be submitted to a jury, where, upon undisputed facts, reasonable people exercising fair and impartial judgment could not reasonable reach differing conclusions concerning them." Flanders v. Crane Co., 1984 OK 88, 693 P.2d 602, 606.
[14] See also Simpson v. City of Muskogee, 1994 OK CIV APP 103, 879 P.2d 1269, 1270 (labeling a spectator's assumption of the risk at a baseball game as implied primary assumption of risk, finding defendants had no legal duty to protect the spectator from such open and apparent risks and thus, determining in this case that the defense of primary assumption of risk may be determined as a matter of law by the court).
[15] "(a) Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself, and except as hereinafter provided." 76 O.S.2001 § 5(a).
[16] The substance of part (a) of this statute was originally enacted as Section 906, Stat. 1890 (§ 998, Rev. Laws 1910) and subsequently re-numbered to 76 O.S. § 5(a). The original wording of the provision is identical to its current version with the exception of the 1963 amendment of the language at the end of the provision as follows: "and except as hereinafter provided."
[17] Oklahoma adopted the Good Samaritan Act in 1963, at which time the text of § 988 of Revised Laws of 1910 was included in toto as § 5(a) of the Good Samaritan Act. Plaintiffs do not argue the facts of this case constitute a rescue situation that would trigger the substantive provisions of the Good Samaritan Act beyond the general introductory paragraph (a). Clearly, the substantive provisions beyond the general introductory paragraph (a) of the Good Samaritan Act do not apply to the facts of this case, as these provisions are specifically directed to medical providers rendering emergency care to an injured person under emergency circumstances. We have held the Good Samaritan Act "abrogates the common-law rescue doctrine for medical providers in an effort to encourage them to risk helping strangers in need of succor, even when they have no duty to render aid." Jackson v. Mercy Health Center, Inc., 1993 OK 155, 864 P.2d 839, 843 (footnote omitted). Our holding in Jackson remains undisturbed by our pronouncement today.
|
241 N.W.2d 703 (1976)
Norbert DEGEN, Plaintiff and Respondent,
v.
Donald BAYMAN, Defendant, Third-party Plaintiff and Respondent,
v.
OUTBOARD MARINE CORPORATION, a Delaware Corporation, Defendant and Appellant.
William DEGEN, Plaintiff, Appellant and Cross-Respondent,
v.
Donald BAYMAN, Defendant, Third-party Plaintiff, Respondent and Cross-Respondent,
v.
OUTBOARD MARINE CORPORATION, a Delaware Corporation, Defendant, Respondent and Cross-Appellant.
Nos. 11336-11338.
Supreme Court of South Dakota.
May 13, 1976.
*704 Franklin J. Wallahan of Hanley, Wallahan & Murray, Rapid City, for plaintiff and respondent, Norbert Degen; and for plaintiff, appellant and cross-respondent, William Degen.
William G. Porter of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for Donald Bayman.
H. L. Fuller of Woods, Fuller, Shultz & Smith, Sioux Falls, George Beal, Rapid City, for Outboard Marine Corp.
MYDLAND, Circuit Judge.
This the second time that this case has been before this court. See Degen v. Bayman & Outboard Marine, 86 S.D. 598, 200 N.W.2d 134. There we held that the case had to be retried because of improper statements made by counsel in closing argument. We also held that defendant Donald Bayman was not entitled to indemnity from defendant Outboard Marine Corporation.
*705 The facts of this case are fully set out in our earlier opinion in Degen v. Bayman, supra. Since they are set out there, we will only summarize them here. Plaintiff William J. Degen was severely injured when a 210 h.p. boat manufactured by defendant Outboard Marine backed over him and struck his legs with its propeller. The accident occurred July 28, 1968, on Sheridan Lake in Pennington County. The operator of the boat was Donald Bayman. Bayman had borrowed the boat from his employer. He had driven the boat at least twice previously and had been operating it on Sheridan Lake for some time prior to the accident. The boat was equipped with an automatic push-button transmission mounted near the throttle control on the right side of the boat. The shift positions were "forward," "neutral" and "reverse." The evidence is undisputed that the boat was designed to start in any gear. There was also no warning in the boat to the effect that the boat would start in gear.
At the first trial, William Degen charged Bayman with negligent operation of the boat and Outboard Marine with negligent design of the boat, failure to give an adequate warning of the danger and breach of an implied warranty of merchantability or fitness for intended use. Later a cause of action against Outboard Marine was added alleging strict liability under § 402A, Restatement, Second, Torts.
During the trial of the first case, Bayman settled with William Degen for $65,000, and Degen's mother as his guardian executed a release relieving Bayman of any further liability to William Degen as a result of the accident. The jury then found both Bayman and Outboard Marine liable and set Degen's damages at $380,000. We then considered the case on appeal, reversed and remanded it for a new trial.
At the second trial, Outboard Marine, which had previously filed a cross claim against Bayman, chose to drop its cross claim and was granted an order by the trial judge whereby Bayman was denied active participation in the new trial except as a witness. Norbert Degen, the father of William Degen, sought to recover the cost of the medical expenses relating to his son's injury. Norbert Degen settled with Bayman for $10,000 and executed a release to Bayman relieving him of further liability. Norbert Degen sued Outboard Marine for the medical expenses and this suit was consolidated with the retrial of William Degen's suit against Outboard Marine.
The case was tried to a jury with Bayman participating only as a witness. The jury again found for William Degen and against Outboard Marine. The jury also found for Norbert Degen and against Outboard Marine in his suit for medical expenses. The lower court judge advised the jury in his instructions that William and Norbert Degen had both settled with Bayman for an unspecified amount of money. The jury was instructed, "If you find for the Plaintiffs and against the Defendant, you must award to each of the Plaintiffs the total amount of damages which they sustained by reason of the accident. You may not make any deduction whatsoever therefrom by reason of the settlement as you have not been instructed concerning what amount was paid by Donald Bayman to the Plaintiffs in connection therewith."
Pursuant to this instruction, the jury determined that William Degen's total damages amounted to $100,000 and that the total due Norbert Degen for medical expenses was $22,658.35. The judge then deducted the money settlements paid by Bayman, plus accrued credits, and gave judgment to William Degen in the amount of $32,969.63. He deducted the $10,000 settlement from the verdict of $22,658.35 and entered judgment for Norbert Degen in the amount of $12,658.35.
There are three separate appeals from these cases before this court. In No. 11337, William Degen appeals and alleges numerous assignments of error at the trial. No. 11338 involves a cross appeal by Outboard Marine assigning as error the trial judge's refusal to grant its motion for a directed verdict against William Degen. In No. 11336, Outboard Marine appeals from the judgment against it in favor of Norbert *706 Degen. In each case the judgment of the trial court is affirmed.
William Degen presents numerous assignments of error. We will discuss only two in this opinion as we find the rest to be without merit.
Degen assigns as error the trial court's refusal to give the jury his prepared instructions concerning loss of earning capacity, personal inconvenience and loss of ability to enjoy life because of his injuries. The court gave the following instruction, which was numbered 22:
"If you decide for the Plaintiffs on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate Plaintiff William J. Degen for any of the following elements of detriment or damage proved by the evidence to have resulted from the negligence or breach of warranty of the Defendant, whether such detriment could have been anticipated or not, namely:
1. The nature, extent and duration of the injury.
2. The disability experienced and reasonably certain to be experienced in the future as a result of the injury.
3. The pain, suffering and mental anguish experienced and reasonably certain to be experienced in the future as a result of the injury.
4. The reasonable expense of extra shoes, shoe lifts and prescriptions for the same which he has incurred and which are reasonably certain to be incurred in the future.
5. The time lost from his employment and from pursuing his normal activities since his injury, wherein he has been unable to pursue his occupation and normal activities. In determining this amount, you should consider evidence of his earning capacity, his earnings, and the manner in which he ordinarily occupied his time before the injury, and find what he was reasonably certain to have earned in the time lost had he not been disabled.
6. Such sum also as will compensate him reasonably for whatever loss of earning capacity you find that he has suffered as a result of his injury.
7. The reasonable expense of necessary medical care, treatment and services received by him since he reached the age of eighteen, his age of majority, and the reasonable expense of medical care, treatment and services reasonably certain to be received in the future.
"Whether any of the foregoing elements of damage have been proved by the evidence is for you to determine. Your verdict must be based on evidence and not upon speculation, guesswork, conjecture or sympathy."
Although Degen's requested instruction on loss of earning capacity differed in some respects from the above instruction given by the court, we do not consider the court's refusal to be error. This court has consistently held that jury instructions must be considered as a whole in determining if error was committed in giving or refusing to give certain instructions. Duprel v. Collins, 1914, 33 S.D. 365, 146 N.W. 593; Pollman v. Ahrens, 1974, S.D., 218 N.W.2d 475. We have therefore examined instruction No. 22 and we are convinced that the elements of detriment or damage relating to lost earning capacity are sufficiently stated.
It is settled law in South Dakota that a jury award for personal injury cannot be based upon speculation or conjecture. Kressly v. Theberge, 1961, 79 S.D. 386, 112 N.W.2d 232, and Koenig v. Weber, 1970, 84 S.D. 558, 174 N.W.2d 218. We conclude that the instruction set out above properly apprised the jury of the elements of damage for loss of earning capacity so as to enable the jury to determine a reasonable award that was not based upon speculation or conjecture. Degen's requested instructions did not substantially vary from the instructions given by the court, but merely amplified those instructions. As we said in Peters v. Hoisington, 1949, 72 S.D. 542, 37 N.W.2d 410: "It was not error to refuse to amplify the instructions given which substantially *707 cover the principle embodied in the requested instructions."
The same reasoning applies to Degen's proposed instruction on personal inconvenience and inability to enjoy life. Although the court refused Degen's instruction, it did fully instruct the jury on damages for pain, suffering and mental anguish, as well as for time lost from pursuing normal activities. While the specific words "personal inconvenience and loss of ability to enjoy life" were not used, their meaning was embodied therein. Had the court given the refused instruction, it would have been only cumulative of those already given and might very well have only confused the jury in its deliberations. We find no error in the court's refusal to give this instruction.
After the jury had determined Degen's total damages, the court deducted Bayman's settlement from the jury verdict before entering judgment. Degen assigns this as error. He maintains that the settlement should not have been deducted from the verdict under South Dakota law. South Dakota has adopted the Uniform Contribution Among Tort-feasors Law which is found at SDCL 15-8-11 through 15-8-22. The lower court reduced Degen's verdict pursuant to SDCL 15-8-17 which provides as follows:
"Joint tort-feasor not discharged by release of anotherClaim reduced by amount stated in release.A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides; but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid." (emphasis supplied)
Degen maintains that this section is not applicable since there was never a determination made that Bayman and Outboard Marine were joint tort-feasors as defined by SDCL 15-8-11.
We cannot accept this contention for two reasons. First, this court, after reviewing the evidence from the first trial, held in Degen v. Bayman, supra, that Bayman was not entitled to indemnification from Outboard Marine. In that opinion we stated:
"Viewed most favorably, Bayman's conduct consisted of not less than acts of omission in his duty to plaintiff which contributed to the proximate cause of the injury. His negligence was more than passive or vicarious. Being in pari delicto, he was in no position to shift the entire liability to Outboard Marine. Indemnity was not an issue and the trial court should have dismissed Bayman's claim therefor." 86 S.D. at 605, 200 N.W.2d at 138.
Second, Degen's amended pleadings alleged that Bayman and Outboard Marine were joint tort-feasors. We adopt the view of the Supreme Court of North Dakota as stated in Levi v. Montgomery, 1963, N.D., 120 N.W.2d 383, that where there has been no other clear determination as to whether two parties are joint tort-feasors the plaintiff's pleadings should control:
"Thus the question at issue between the parties is determined by the pleadings. Even though the plaintiff now contends that he, in fact, had no cause of action in tort against one of the defendants, the court will consider the issues as framed by the pleadings. Where the plaintiff charges several defendants with tort, and one of the defendants buys its way out of the suit and is given a release and covenant not to sue, the court will not go into the question of liability of such defendant. The test in such case is: Was the defendant sued as a tort-feasor? If so, any liability of the remaining defendants to the plaintiff must be reduced by the amount paid for such release or covenant not to sue by such defendant." 120 N.W.2d at 388-389.
In view of our previous determination of liability in Degen v. Bayman, supra, and the amended pleadings filed by Degen in this action, we find that SDCL 15-8-17 is applicable and that the lower court was correct *708 in deducting Bayman's settlement from the jury verdict.
Outboard Marine contends in its cross appeal that the lower court erred in not granting its motion for a directed verdict against William Degen. It urges that there was insufficient evidence at the trial to sustain liability against it on any of Degen's three theories. In our review of the denial of the motion for a directed verdict, "this court will assume that the evidence of the party against whom a (directed) verdict is demanded is undisputed, and will also give such evidence that construction which is most favorable to such party." Clinkscales v. Wisconsin Granite Co., 1916, 38 S.D. 205, 212, 160 N.W. 843, 845. In the instant case, we have examined the record in the light most favorable to the plaintiff William Degen. We find that on the basis of the testimony of both his lay witnesses and his expert witness that there is sufficient evidence to sustain Outboard Marine's liability based on any one of the three theories alleged by Degen. There is competent evidence that the unsafe design of the boat and Outboard Marine's failure to give a warning of the fact that the boat would start in gear were the proximate causes of the injury which William Degen suffered. It should be noted that the question of Outboard Marine's liability has been considered by two different juries and both have arrived at the same conclusion as to liability and have returned verdicts against Outboard Marine. Clearly, the trial court was justified in denying its motion for a directed verdict.
Outboard Marine has also appealed from the judgment against it in the suit by Norbert Degen for recovery of the medical expenses incurred as a result of William Degen's injury. It raises three issues in this appeal. First, it maintains that the court erred in not directing a verdict in its favor against Norbert Degen. The issue was discussed above in connection with William Degen's suit and will not be repeated, except to say that in view of the evidence the court was justified in refusing to direct a verdict against Norbert Degen.
It is uncontroverted that sometime after the accident on July 28, 1968, William Degen was treated at the Shriners Hospital for Crippled Children in Minneapolis, Minnesota, for the injury to his legs as a result of the accident; that the reasonable value of these medical services was $13,490 and that these services were rendered to William Degen free of charge. In light of this, Outboard Marine maintains that the court erred in allowing Norbert Degen to recover a total of $22,658.35 in medical expenses when $13,490 of those expenses did not have to be paid by Norbert Degen. A determination of this issue involves consideration of the so-called "collateral source rule" which has been adopted in many jurisdictions. The rule was stated concisely at 22 Am.Jur.2d, Damages, § 207.
"The general rule is that a plaintiff who has been injured by the tortious conduct of the defendant is entitled to recover the reasonable value of medical and nursing services reasonably required by the injury. This is a recovery for their value and not for the expenditures actually made or obligations incurred. Thus, under this general rule, the fact that the medical and nursing services were rendered gratuitously to the one who was injured will not preclude the injured party from recovering the value of those services as a part of his compensatory damages. Accordingly, the plaintiff's recovery will not be reduced by the fact that the medical expenses were paid by some source collateral to the defendant, such as by a beneficial society, by members of the plaintiff's family, by the plaintiff's employer, or by an insurance company."
The rationale for this rule is that a tort-feasor should not be allowed to benefit because the victim of his wrongdoing was able to receive gratuitous medical and nursing services for his injuries. This rule is followed in many jurisdictions including Minnesota. See Dahlin v. Kron, 1950, 232 Minn. 312, 45 N.W.2d 833; Dyson v. Schmidt, 1961, 260 Minn. 129, 109 N.W.2d 262. This court feels that the rule and the *709 rationale behind it are sound. See Moore v. Kluthe & Lane Ins. Agency, Inc., 1975, S.D., 234 N.W.2d 260. Accordingly, we hold that where the victim of a tort-feasor receives gratuitous medical services from a source wholly independent of the tort-feasor the value of the gratuitous medical services may not be deducted from the verdict for overall medical care received. This rule is no less applicable here where Norbert Degen assumed responsibility for the medical bills of his son and sued for recovery in his own name. Under our law he was legally obligated to pay the medical bills and then seek recovery from the tort-feasor. See SDCL 25-7-7 and Doyen v. Lamb, 1953, 75 S.D. 77, 59 N.W.2d 550. Thus, when a parent pays the medical bills for an injured child and some of the medical services are rendered gratuitously, the collateral source rule applies, and no deduction is allowed for the gratuitous services. See Evans v. Pennsylvania Railroad Company, 1957, D.C.Del., 154 F.Supp. 14. In the instant case the court properly refused to deduct the $13,490 in medical services provided by the Shriners Hospital for Crippled Children from the overall verdict for medical expenses.
Outboard Marine also makes the claim that the court erred in allowing it only a pro tanto credit of $10,000 (the amount of the Bayman settlement) rather than a pro rata credit of one-half of the verdict (or $11,329.17) in entering judgment on the jury verdict of $22,658.35 in the Norbert Degen suit. At this point, reference must again be made to SDCL 15-8-17 which was quoted above in its entirety. That section states that the claim should be reduced by the consideration received for the release "or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid." The release which Norbert Degen signed in consideration of the $10,000 paid by Donald Bayman was silent on the question of apportionment of liability. Outboard Marine asserts that it and Bayman were both 50% liable and therefore the verdict for Norbert Degen should be reduced by one-half. We disagree. There was never a jury determination as to the proportionate liability of Bayman and Outboard Marine. The reason is that Outboard Marine dropped its cross claim for contribution against Bayman and sought and was granted an order barring Bayman from participation in the second trial except as a witness. Since Outboard Marine was the party which dropped the cross claim and sought the order, it cannot now assert that each tort-feasor was 50% responsible for William Degen's injuries. Therefore, in accordance with SDCL 15-8-17, the trial court was correct in deducting Bayman's actual settlement from the verdict rather than reducing the verdict by one-half.
The judgments of the circuit court are in all respects affirmed.
WINANS, WOLLMAN and COLER, JJ., concur.
DUNN, C. J., dissents.
MYDLAND, Circuit Judge, sitting for DOYLE, J., who, prior to his death, disqualified himself from taking part in the decision in this action.
DUNN, Chief Justice (dissenting).
I would remand for a new trial on damages only.
The failure of the trial court to give Degen's requested instructions on determining lost earning capacity and on personal inconvenience and loss of ability to enjoy life as a result of the injury was prejudicial. The general charge on damages did not sufficiently cover these items.[*] In reaching this conclusion, I am cognizant of the fact that the jury in the first trial, where the above mentioned instructions were given, found damages in the amount of $380,000. The jury's award of $100,000 in the second trial is no small amount, but I feel that the error in failing to properly instruct the jury in the second trial, coupled with the wide disparity in verdicts, warrants a new trial on damages.
NOTES
[*] See South Dakota Pattern Jury Instruction 30.07-1(B) and Committee Comments thereto.
|
280 U.S. 404
50 S.Ct. 167
74 L.Ed. 513
CHESAPEAKE & O. RY. CO.v.BRYANT.
No. 113.
Argued Jan. 16, 17, 1930.
Decided Feb. 24, 1930.
Mr. J. M. Perry, of Staunton, Va., for petitioner.
Mr. Charles Curry, of Staunton, Va., for respondent.
Mr. Justice HOLMES delivered the opinion of the Court.
1
This is an action seeking to charge the petitioner for the death of the respondent's intestate, who was shot and killed by the foreman of a gang in which the deceased if not discharged would have worked. At the evidence, on the petitioner demurred to the evidence, on the ground, among others, that at the time of the killing the parties were engaged in interstate commerce. The demurrer was overruled and the respondent (plaintiff) got judgment, which was affirmed by an equally divided Court. If the parties were governed by the Federal Employers' Liability Act (45 USCA §§ 51-59), the respondent might have difficulties from the decisions of this Court. Davis v. Green, 260 U. S. 349, 43 S. Ct. 123, 67 L. Ed. 299; Atlantic Coast Line R. R. Co. v. Southwell, 275 U. S. 64, 48 S. Ct. 25, 72 L. Ed. 157. But the deceased was killed on Monday and there was some evidence that he had been discharged on the Saturday before. If so the Act of Congress did not govern and the parties were left to the State law, with which we have no concern. The writ of certiorari would not have been granted but for the impression that there was no doubt that the deceased was employed by the petitioner in interstate commerce up to the moment immediately preceding his death.
2
Judgment affirmed.
|
[Cite as Trudell v. Trudell, 2012-Ohio-5023.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
LISA J. TRUDELL,
NKA, LISA J. RETTIG,
CASE NO. 5-11-47
PLAINTIFF-APPELLEE,
v.
JAMES J. TRUDELL, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Domestic Relations Division
Trial Court No. 2005-DR-351
Judgment Affirmed
Date of Decision: October 29, 2012
APPEARANCES:
William E. Clark for Appellant
Bret A Spaeth for Appellee
Case No. 5-11-47
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, James J. Trudell (“Father”), appeals the
judgment of the Hancock County Court of Common Pleas, Domestic Relations
Division, denying his motion to reallocate parental rights and responsibilities, and
finding that Lisa J. Trudell, nka Lisa J. Rettig (“Mother”), should remain the
primary residential parent. On appeal, the Father contends that the trial court
abused its discretion when it found that he failed to meet his burden of proving
that the proposed change would be in the children’s best interests and that the
advantage caused by the change would outweigh the harm. For the reasons set
forth below, the judgment is affirmed.
{¶2} The parties were married in 1994, and two children were born as issue
of the marriage: CJ in early 2000 and Rachel in late 2001. They were divorced on
December 18, 2006, when the children were approximately 5 and 7 years old. The
parties had agreed upon a Shared Parenting Plan which deemed each parent would
be the “residential parent” when the children were in their possession, and the plan
further outlined the time of “possession” during the school year, for vacations,
holidays, etc. During the school year, the children were to attend school in the
school district of the Mother’s residence and the Father would have parenting time
on alternating weekends, from Friday afternoon to Sunday afternoon. During the
summer school recess, the Father’s alternating weekend time was longer, from
Thursday afternoons to Monday afternoons. The Shared Parenting Plan also
2
Case No. 5-11-47
provided that “the residence of the children shall be in either Franklin, Hancock,
Lucas, or Wood counties and that the children will not be moved out of any of
those four (4) counties except by permission of the parent or the Court.” (Dec. 18,
2006 J.E.)
{¶3} At the time of the divorce, the children primarily resided with the
Mother in Columbus, Ohio, in Franklin County, where they had lived since the
spring of 2006. Two years later, in the spring of 2008, the Mother married James
Rettig (“Rettig” or “Step-Father”), and they moved to a new residence about a
mile away.
{¶4} On May 15, 2009, the Mother filed a notice of intent to relocate
herself and the children to Tampa, Florida, when Rettig had an opportunity to take
over his father’s financial management business, providing a substantial increase
in the family income. (Aug. 17, 2010 Amended J.E.) The Father did not consent
to the relocation, and the parties were unable to resolve the issue in mediation. On
September 15, 2009, the Mother filed for reallocation of parental rights and
responsibilities, requesting that she be named the residential parent; that the
children be permitted to move with her to Florida; and, that the Father be granted
companionship rights under Appendix K of the Hancock County Local Rules.
The Father also filed a motion, requesting the court to terminate the Shared
Parenting Plan and designate himself as the residential parent. Hearings were held
in July 2010. On August 17, 2010, the trial court granted the Mother’s motion,
3
Case No. 5-11-47
designating her as the residential parent and allowing the children to move to
Tampa, Florida. (Id.)
{¶5} In June of 2011, the Mother informed the Father that she, Rettig, and
the children were moving from their leased residence in North Tampa to another
residence in South Tampa, about 26 miles away. They were moving because there
was uncertainty as to whether the property owners had been paying the mortgage
and they were concerned that the home might be foreclosed upon. The move was
within the same county and the same Hillsborough County School District, but
Rachael would have to attend a different elementary school. CJ was going to be
changing schools anyway because he was going into junior high, so he would now
attend a junior high in the new neighborhood.
{¶6} On July 15, 2011, the Father filed another motion to reallocate custody
because he was concerned that the children were again “being uprooted from their
residence and school.” (Jul. 15, 2011 Motion, p. 2) The Father asserted that the
children have substantial ties in Ohio with him, with extended family members,
and many friends in the Toledo area. After spending summer visitation with him,
the Father represents that the children expressed that they did not wish to return to
Florida. The Father contends that the circumstances which caused the court to
originally allow the children to move to Florida have now changed. The trial court
had found that “the strength of the Florida-based school system the children would
attend and the overall receptiveness of the neighborhood in which they would
4
Case No. 5-11-47
live” were reasons to permit the children to move to Florida. (Aug. 17, 2010 J.E.,
p. 13) Rachael was diagnosed with ADHD and required special attention, and
now she will no longer be attending the same school. The Father also claimed that
the Mother “travels extensively” for her job and often spends time away from the
children. (Jul. 15, 2011 Motion, p. 2)
{¶7} The Mother’s response and her testimony at trial asserted that the
children did very well academically in the new Florida school system and that
their new schools were still within the same system and were also highly rated.
The Mother testified that the children were engaged in extra-curricular activities
and had made many friends in Florida. She only traveled overnight for her job
about eight nights in a year.
{¶8} The trial court appointed the same Guardian Ad Litem (“GAL”) that
had previously worked with the family. The court also held an in camera
interview with the children on August 17, 2011, and reviewed the transcript from
the July 2010 in camera interview.
{¶9} A hearing was held on October 5, 2011, and the trial court heard
testimony from: the Mother and Rettig; the Father and his fiancé; the Father’s
mother and sister; the children’s former guidance counselor; and Rachael’s
optometrist and her vision therapist.1 After considering all of the evidence, the
trial court found that there was a change of circumstances as to Rachael that was
1
Rachael had some vision problems which impacted her reading ability.
5
Case No. 5-11-47
sufficient to meet the threshold level necessary before a modification of custody
may be considered. See R.C. 39109.04(E)(1)(a). The trial court found that the
move would have a relatively minor impact on CJ, as he would have had to change
schools regardless. However, the trial court found that the move represented a
“substantial change” for Rachael, requiring her to once again change schools.2
(Nov. 29, 2011 J.E., p. 9)
{¶10} Having found that the first prong of the statutory requirement was
met, the trial court then reviewed the facts to determine whether modification of
parental rights would be in the best interests of the children and whether one of the
three factors in R.C. 3109.04(E)(1)(a) was applicable. After doing a detailed
analysis of all the facts and statutory factors, the trial court found that “the
advantages likely to be caused by a change in environment do not outweigh the
harm likely to be caused by such a change in environment, as set forth in R.C.
3109.04(E)(1)(a)(iii). As such [the Father] has failed to meet his burden of
proving the proposed change as to the allocation of parental rights and
responsibilities is in the children’s best interest.” (Nov. 29, 2011 J.E., p. 13) On
November 29, 2011, the trial court denied the Father’s motion to reallocate
parental rights and held that the previous judgment entry of the court was to
remain in effect.
2
The trial court found that Rachael’s academic performance improved significantly during her time at Pride
Elementary in Florida (as compared to her previous Ohio school), despite her having some trouble initially
adjusting to the new setting. It also stated that there was no testimony that Rachel was having any
problems at her new school since the move, but noted that a child did not have to suffer any adverse
consequences in order for a court to find a change of circumstances has occurred. (Nov. 29, 2011 J.E., p. 9,
citing LaBute v. LaBute, 179 Ohio App.3d 696, 2008-Ohio-6190, ¶ 8 (3d.Dist).
6
Case No. 5-11-47
{¶11} It is from this judgment that the Father timely appeals, raising the
following two assignments of error for our review.
First Assignment of Error
The trial court erred and abused its discretion when it ignored
probative evidence and held that [Father] failed to meet his
burden of proof.
Second Assignment of Error
The trial court erred and abused its discretion when it held that
[Father] failed to prove by a preponderance of the evidence that
the advantage likely to be caused by naming him residential
parent outweighs the harm likely to be caused by such a change
in environment.
{¶12} In addition to her reply to the above assignments of error, the Mother
has also raised a cross assignment of error, pursuant to R.C. 2505.22:
Cross Assignment of Error
The trial court erred and abused its discretion in finding there to
be a change in circumstances.
Law and Standard of Review
{¶13} The modification of parental rights and responsibilities is controlled
by R.C. 3109.04(E). This statute creates a rebuttable presumption in favor of
retaining the residential parent. R.C. 3109.04(E)(1)(a); Rohrbaugh v. Rohrbaugh,
136 Ohio App.3d 599, 604 (7th Dist.2000). Therefore, a court shall not modify a
parenting decree allocating parental rights unless it finds that, based on facts that
have arisen since the decree, there has been a change in circumstances of the child
or the child’s residential parent and modification of the decree is necessary to
7
Case No. 5-11-47
serve the child’s best interest. R.C. 3109.04(E)(1)(a). Additionally, the court
must find that one of the factors listed in R.C. 3109.04(E)(1)(a)(i), (ii), and (iii)
applies. R.C. 3109.04(F) provides a non-exclusive list of relevant factors to be
utilized in helping to determining what would be in a child’s best interest.
{¶14} Custody issues are some of the most difficult decisions a trial judge
must make. Therefore, those decisions rest within the sound discretion of the trial
court. Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260; Miller v.
Miller, 37 Ohio St.3d 71, 74 (1988). A court’s decision regarding an award of
custody is subject to reversal only upon a showing of an abuse of that discretion.
Id.; Trickey v. Trickey, 158 Ohio St. 9, 13–14 (1952). A trial court will be found
to have abused its discretion when its decision is contrary to law, unreasonable,
not supported by the evidence, or grossly unsound. Bruce v. Bruce, 3d Dist. No.
9–10–57, 2012–Ohio–45, ¶ 13, citing State v. Boles, 187 Ohio App.3d 345, 2010–
Ohio–278, ¶ 17–18 (2d Dist.), citing Black’s Law Dictionary (8 Ed.Rev.2004) 11.
“A reviewing court will not overturn a custody determination unless the trial court
has acted in a manner that is arbitrary, unreasonable, or capricious.” Pater v.
Pater, 63 Ohio St.3d 393 (1992).
{¶15} The reason for this standard of review is that the trial judge is in the
best position to view the demeanor, attitude, and credibility of each witness and to
weigh the evidence and testimony. Davis, 77 Ohio St.3d at 418. This is especially
8
Case No. 5-11-47
true in a child custody case, since there may be much that is evident in the parties’
demeanor and attitude that does not translate well to the record. Id. at 419.
[I]t is inappropriate in most cases for a court of appeals to
independently weigh evidence and grant a change of custody. The
discretion which a trial court enjoys in custody matters should be
accorded the utmost respect, given the nature of the proceeding and
the impact the court’s determination will have on the lives of the
parties concerned. The knowledge a trial court gains through
observing the witnesses and the parties in a custody proceeding
cannot be conveyed to a reviewing court by a printed record. * * *
(Citations omitted.) Miller, 37 Ohio St.3d at 74.
{¶16} In applying an abuse of discretion standard, a reviewing court is not
free to substitute its judgment for that of the trial court. Hay v. Shafer, 3d Dist. No.
10–10–10, 2010–Ohio-4811, ¶ 14, citing Holcomb v. Holcomb, 44 Ohio St.3d 128,
(1989). When reviewing a change of child custody proceedings, an appellate court
should be guided by the presumption that trial court’s findings were correct.
Miller at 74.
Father’s Assignments of Error
{¶17} In both of his assignments of error, the Father contends that the trial
court abused its discretion when it failed to find that the evidence supported his
motion for a change in parental rights and responsibilities. In the first assignment
of error, the Father claims that the trial court improperly considered certain facts,
and that it ignored evidence that it would be in the children’s best interest to live
with him in Toledo. In the second assignment of error, the Father asserts that the
trial court’s decision was against the manifest weight of the evidence because it
9
Case No. 5-11-47
failed to place appropriate weight on the factors that would show the benefit in
moving to Toledo would outweigh the harm caused by a change in environment
and custody.
{¶18} Our review of the record shows that both parents had concerns about
the other parent’s ability to provide the kind of parenting and environment that he
or she felt would be best for the children. For example, the Mother was concerned
that the Father would enroll CJ in a Catholic school, in contravention of their
agreement that he would be raised in the Protestant religion. The Mother also
believed that the Father was too lenient with the children and that he was not
diligent in insisting that school work was properly completed. The Father had
concerns that the children were moving too often, that the Mother sometimes
traveled overnight for business, and that the children were having issues in
adjusting to living with their new stepfather. However, none of the issues that
either parent raised indicated that the children’s health, safety, and well-being
were not being appropriately taken care of by both of the parents. (Tr. pp. 17, 30 –
counselor affirming that there was no evidence of abuse or any reason to contact
children’s services)
{¶19} This case was replete with positive evidence that both parents love
the children very much, want to provide the best care and upbringing possible, and
that either parent would be a competent, capable, and caring residential parent.
The evidence showed numerous benefits that the children would have with each
10
Case No. 5-11-47
parent. There would be some advantages and some disadvantages for the children,
regardless of which parent was designated the residential parent. The trial court
found that the evidence was not sufficient to overcome the presumption in favor of
retaining the current residential parent. See Rohrbaugh, 136 Ohio App.3d at 604.
{¶20} The record demonstrates that the trial court carefully considered all
of the relevant evidence and applicable statutory factors and took the
responsibility of its decision very seriously. The trial court spent a considerable
amount of time talking to the children during two in camera interviews in 2010
and 2011. It analyzed all of the evidence and factors in a detailed fourteen-page
decision. “Where an award of custody is supported by a substantial amount of
credible and competent evidence, such an award will not be reversed as being
against the weight of the evidence by a reviewing court.” Bechtol v. Bechtol, 49
Ohio St.3d 21 (1990), at the syllabus.
{¶21} The trial court has been involved with these parties, and in making
decisions concerning the best interests of these children since 2005. The trial
court was in a superior position to evaluate the weight of the evidence and judge
the credibility, demeanor and motivation of the various witnesses. See Malone v.
Malone, 3d Dist. No. 13-10-39, 2011-Ohio-2096, ¶ 14. This is especially true in a
child custody case, since there may be much that is evident in the parties'
demeanor and attitude that does not translate well to the record. Id.; Davis, 77
Ohio St.3d at 419. It is not our position to weigh the evidence or substitute our
11
Case No. 5-11-47
judgment for that of the trial court. See Miller, 37 Ohio St.3d at 74; Daniels v.
Daniels, 3d Dist. No. 11-08-10, 2009-Ohio-784, ¶ 14.
{¶22} Based on the above, we find that there was ample competent and
credible evidence in the record to support the trial court’s decision. We find no
abuse of discretion in denying the Father’s motion to modify parental rights and
responsibilities. The Father’s first and second assignments of error are overruled.
Mother’s Cross-Assignment of Error
{¶23} In her cross assignment of error, the Mother contends that the trial
court erred when it found that a “change of circumstances” of a child or the
residential parent had occurred since the prior order went into effect on November
16, 2010. See R.C. 3109.04. The Mother asserts that the Father failed to meet his
burden of proving this threshold requirement by a preponderance of the evidence,
and therefore, the trial court erred in even considering a change in parental rights
within less than a year of its previous order.
{¶24} Based upon our disposition of the Father’s assignments of error,
resulting in an affirmance of the trial court’s decision, this defensive assignment of
error is moot and need not be considered. See Glidden Co. v. Lumbermens Mut.
Cas. Co., 112 Ohio St.3d 470, 2006-Ohio-6553, ¶¶ 31-32; Parton v. Weilnau, 169
Ohio St. 145, 158 N.E.2d 719, (1959) paragraph seven of the syllabus (We may
consider an appellee's cross-assignment of error “only when necessary to prevent a
reversal of the judgment under review.”)
12
Case No. 5-11-47
{¶25} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. concurs.
ROGERS J., Concurring separately.
{¶26} I concur with the result reached by the majority, but for different
reasons. I would sustain Father’s assignments of error because the trial court
analyzed the issues in an improper manner. The consequence of sustaining
Father’s assignments would be reversal of the trial court’s judgment. However,
because I would sustain the cross-assignment of error, which argues that the trial
court erred in finding that there was a change of circumstances, I concur in
affirming the judgment.
{¶27} Procedurally, it is necessary to consider Father’s assignments of error
first, as the cross-assignment need only be considered for the purpose of
preventing a reversal of the appealed judgment. See App.R. 3(C)(2).
R.C. 3109.04 reads, in pertinent part, as follows:
(E)(1)(a) The court shall not modify a prior decree allocating
parental rights and responsibilities for the care of children unless it
finds, based on facts that have arisen since the prior decree or that
were unknown to the court at the time of the prior decree * * * that a
change has occurred in the circumstances of the child, the child’s
residential parent, or either of the parents subject to a shared
parenting decree, and that the modification is necessary to serve the
best interest of the child. In applying these standards, the court shall
retain the residential parent designated by the prior decree or the
13
Case No. 5-11-47
prior shared parenting decree, unless a modification is in the best
interest of the child and one of the following applies:
(i) The residential parent agrees to a change in the residential parent
or both parents under a shared parenting decree agree to a change in
the designation of residential parent.
(ii) The child, with the consent of the residential parent or of both
parents under a shared parenting decree, has been integrated into the
family of the person seeking to become the residential parent.
(iii) The harm likely to be caused by a change of environment is
outweighed by the advantages of the change of environment to the
child.
{¶28} The last sentence of (E)(1)(a) requires that “the court shall retain the
residential parent designated by the prior decree or the prior shared parenting
decree, unless a modification is in the best interest of the child and one of the
following applies” and then lists three additional (and alternative) criteria.
Therefore, if the trial court finds a change of circumstances, it must next consider
the best interests of the child. If the best interest requirement is met, then, and
only then, will the trial court need to consider whether the “harm likely to be
caused by a change of environment is outweighed by the advantages of the change
of environment to the child.”
This court has previously stated:
When deciding whether a modification of custody is appropriate, the
court must determine three things. (1) Has there been a change in
circumstances? (2) Is this modification in the best interest of the
child? (3) Will the harm that will result from the change be
outweighed by the benefits that will result from the change?
(Emphasis added.) Clark v. Smith, 130 Ohio App.3d 648, 653 (3d
Dist. 1998).
14
Case No. 5-11-47
{¶29} In this case, after finding that a change of circumstances existed, the
trial court found that “the advantages likely to be caused by such a change in
environment do not outweigh the harm likely to be caused by such a change * * *.
As such [the father] has failed to meet his burden of proving the proposed change
* * * is in the children’s best interest.” Nov. 29, 2011 Judgment Entry, p. 13.
Apparently the trial court reasoned that a failure to meet a test of harm versus
advantages defeats the best interest issue, when logically the trial court was
required to first determine best interests before getting to the harm versus
advantages issue. See Eatherton v. Behringer, 3d Dist. No. 13-11-12, 2012-Ohio-
1584, ¶ 14, citing Loudermilk v. Lynch, 11th Dist. Nos. 2002-A-0044, 2002-A-
0045, 2004-Ohio-5299, ¶ 19 (the trial court must consider each of the three steps
in R.C. 3109.04(E)(1)(a) in the order listed).
{¶30} Therefore, the trial court improperly applied the statute in this case.
{¶31} Furthermore, it is logical that once the movant has demonstrated a
change of circumstances, and satisfied the trial court as to best interests of the
child, then the burden of going forward would shift to the current residential
parent to demonstrate that the harm caused by the change would outweigh the
advantages of the change of environment to the child.3 Because the statute reads
“harm likely to be caused * * * is outweighed by the advantages * * * to the child”
it would seem illogical to require the movant to prove the harm, and one would
3
The reference here is limited to the consideration required by R.C. 3109.04(E)(1)(a)(iii) because (a)(i) and
(a)(ii) are inapplicable to this case.
15
Case No. 5-11-47
think that having proven best interests, the advantages are already in evidence,
although further evidence on the issue should not be excluded. Here, the trial
court improperly placed the burden on the movant/Father.
{¶32} Therefore, I would sustain Father’s assignments of error, which then
opens the door to consideration of Mother’s cross-assignment of error pursuant to
App.R. 3(C)(2).
The Ohio Supreme Court has stated:
The clear intent of that statute is to spare children from a constant
tug of war between their parents who would file a motion for change
of custody each time the parent out of custody thought he or she
could provide the children a ‘better’ environment. The statute is an
attempt to provide some stability to the custodial status of the
children, even though the parent out of custody may be able to prove
that he or she can provide a better environment. Davis v. Flickinger,
77 Ohio St.3d 415, 418 (1997), quoting Wyss v. Wyss, 3 Ohio App.
3d 412, 416 (10th Dist. 1982).
{¶33} Further, the Supreme Court has stated that: “[c]learly, there must be a
change of circumstances to warrant a change of custody, and the change must be a
change of substance, not a slight or inconsequential change.” (Emphasis sic.)
Flickinger at 418.
{¶34} The facts of this case do not warrant a finding of a change of
substance. The trial court’s minuscule statement as to a change of circumstances
was limited to Rachel’s “once again” having to change schools. Apparently the
trial court was concerned that moving 26 miles within the same city and remaining
in the same school district was more traumatic to Rachel than moving from Ohio
16
Case No. 5-11-47
to Florida and away from her friends and father had been one year earlier. This
conclusion of a change of circumstances comes in the same breath where the trial
court finds no change affecting C.J. The logic escapes me.
{¶35} It is also remarkable that the trial court made reference to the fact
that if Father was named the residential parent he might enroll the children in a
Catholic school contrary to the original shared parenting order which provided
“that the children be raised in the Protestant/Reformation church.” Nov. 29, 2011
Judgment Entry, p. 7. However, that same shared parenting order also provided
that the children continue to reside in the state of Ohio, but just one year earlier
that proviso was of no consequence to the trial court. If there was some logic
behind the trial court’s reference to the shared parenting order in this case when it
is no longer in effect, but to ignoring it in the prior hearing a year earlier when it
was still in effect, I have failed to find it in the trial court’s decision.
{¶36} Although I disagree with the majority’s disposition of Father’s
assignments of error, I would sustain Mother’s cross-assignment of error and
affirm the judgment of the trial court.
/hlo
17
|
970 F.Supp. 306 (1997)
CHEMICAL BANK, Plaintiff,
v.
AFFILIATED FM INSURANCE CO., Defendant.
Nos. 87 Civ. 0150(MP), 87 Civ. 1537(MP), 87 Civ. 0835(MP), 87 Civ. 0151(MP), 87 Civ. 1538(MP), 87 Civ. 0153(MP), 87 Civ. 4524(MP).
United States District Court, S.D. New York.
July 18, 1997.
*307 *308 Zalkin, Rodin & Goodman, New York City, for plaintiff Chemical Bank.
Winston & Strawn, New York City, for plaintiff NatWest Bank National Ass'n.
Haight, Gardner, Poor & Havens, New York City, for plaintiffs Banque Paribas, European American Bank and Rabobank Nederland.
Lloyd D. Feld, Armonk, NY, for plaintiff Andina Coffee, Inc.
Winthrop, Stimson, Putnam & Roberts, New York City, for plaintiff American Express Bank Ltd.
Podvey, Sachs, Meanor, Cattenacci, Hildner & Cocoziello, Newark, NJ, for defendant Affiliated FM Ins. Co.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
OPINION AND FINDINGS
MILTON POLLACK, Senior District Judge.
This action was tried at a Bench Trial before the Honorable Milton Pollack, United States Senior District Judge, without a jury on May 12, 1997, May 13, 1997, May 14, 1997, May 15, 1997, May 16, 1997, May 19, 1997, May 20, 1997, May 22, 1997, May 23, 1997, May 27, 1997, May 28, 1997, May 29, 1997, May 30, 1997, June 2, 1997 and June 3, 1997; and this Court having heard and seen the witnesses, and having received and ruled on the exhibits proffered by the parties and having received deposition designations of the parties at hearings held on June 4, 1997 and June 5, 1997; and this Court having evaluated the testimony of witnesses, and having considered the documents received in evidence, and having reviewed the depositions, in whole or in part, as designated by the parties, and due deliberation having been had, reports the same in its Opinion and Findings and expresses its Conclusions, as follows.
This decade-old insurance policy dispute stems from the fraud perpetrated by a Colombian coffee exporter, Gonchecol Ltda. ("Gonchecol"), against a United States importer ("Andina")[1] and six financing banks *309 (the "Banks"),[2] which caused losses in 1986 totalling over $94,500,000. Gonchecol presented fraudulent truck bills of lading as draw documents in order to obtain payment on letters of credit provided by the Banks to their customer Andina. At the outset of these consolidated actions, the Banks and Andina brought claims against two insurance companies Affiliated FM Insurance Company ("Affiliated") and Lloyd's of London ("Lloyd's" or the "London Insurers") to recover under open cargo marine insurance policies and against two insurance brokers Trinder & Norwood and Hogg Robinson Ltd. and Hogg Robinson & Gardner Mountain Ltd. By 1993, all the defendants except for Affiliated negotiated settlements with the Banks. In this action, the Banks seek to recover $44,174,000 together with pre-judgment interest from January 1, 1987 arising under forty-eight letters of credit drawn or paid prior to March 21, 1986.
Plaintiffs base jurisdiction under 28 U.S.C. § 1332. Defendant Affiliated is a citizen of Rhode Island. Each of the plaintiffs, at the commencement of the actions, was a citizen of a state other than Rhode Island or a nation other than the United States and had its principal place of business in New York.
The unique commercial context and drawnout prelitigation history is as follows.
I. The Parties and Their Commercial Dealings
The Echeverris, Colombian nationals, owned and controlled Gonchecol and other coffee businesses in Colombia. These businesses Gonchecol, Goncheverri and Gonchelopez (collectively the "Gonche Group") exported sizable quantities of coffee to the United States, Europe, and Japan during the 1970s and 1980s up until the fraud.[3] The Gonche Group represented one of two of the largest private exporters of coffee in Colombia.[4] Julian Echeverri directed the Echeverri family enterprises; his nephew, Ruben Echeverri ("Ruben" or "Echeverri"), ran the day-to-day operations of Gonchecol. Bank files on Andina reveal that the Gonche Group also held large interests in banking,[5] textiles, cattle ranching and other industrial enterprises and its owners were well connected in Colombia.[6] The Banks believed the Echeverri family to be a leading family in Colombia, and well regarded in the political and business community.[7]
In 1974, the Echeverris, along with several other Colombian coffee-exporting families, established Andina Coffee, Inc. in New York, New York[8] to serve as its agent and to facilitate the importation of coffee into the United States. Subsequently, in order to minimize the exporters' taxable income in the United States, the ownership of Andina's stock shifted from the founding individual shareholders to three Panamanian corporations, in which the Echeverris held a minority share.[9] In 1983, Andina Coffee, Inc. formed Andina Trading Corporation as a wholly-owned subsidiary. Andina Coffee derived its income from commissions on the sale of coffee and from financing charges imposed on the exporters. Andina Trading *310 Corporation derived its income from profits in the sale of coffee.[10]
At the time of the discovery of the fraud in 1986, Andina was the largest importer of Colombian coffee into the United States and enjoyed a strong reputation in terms of delivery, quality, and reliability.[11] Humberto Canal and Dennis Kessler managed Andina: Canal served as the chief operating officer;[12] Kessler served as its chief financial officer.[13] Based on between five and ten years of profitable collaborative experience, which was described as "increasingly close and open," the Banks knew Andina's management well and regarded them highly.[14] Canal and Kessler enjoyed over a long time solid reputations in the industry as reliable, respected and trustworthy merchants.[15] Julian Echeverri, Ruben Echeverri and Hernan Lopez all original individual owners of Andina at various times, also served as officers of Andina[16] and members of the board of directors.[17]
After Gonchecol contracted for a sale of coffee to roasters in the United States,[18]*311 Andina provided the Gonche Group with financing for the export of coffee from Colombia through documentary letters of credit charged against secured lines of credit established with various United States and European banks.[19] The letters of credit at issue in this case provided that the Colombian exporter, as beneficiary, could obtain payment from a Bank by presenting the following draw documents: a railroad or truck bill of lading; a commercial invoice; and a letter to the port forwarder requesting the preparation of an ocean bill of lading to the order of the financing bank. Correspondent Colombian banks forwarded the draw documents to the financing banks, which in turn advanced the funds. As a general rule, Andina did not receive copies of the truck bills of lading or other draw documents.[20] This mode of transactional financing enabled Andina to finance the purchase of specified lots of coffee and to repay the letters of credit with the proceeds of the sales of coffee.[21]
Through this asset conversion cycle plaintiff Banks extended hundreds of millions of dollars of credit to Andina, all of which was timely repaid prior to 1986.[22] Up until the discovery of the fraud, Andina proved a reliable and profitable customer of the Banks. Canal and Kessler maintained good relations with the Banks' officers. The Banks' officers maintained in-depth files on Andina and kept abreast of industry developments. While some of the Banks endeavored to improve upon the security underlying the transactional financing especially in light of the uncommon challenges posed by conducting business in Colombia during the 1980s on the whole, Andina had established an excellent track record of credit trustworthiness and profitability.
Andina, for its part, profited from its commercial arrangements. Gonchecol had kept up with their shipment obligations. Canal, Andina's president, testified (by deposition) that prior to 1986 Andina did not need to interfere in the manner in which the Gonche Group transported coffee from the warehouses to the ports because they had exported over the years between 13 to 14 million bags without incident. These volumes both impressed and pleased Andina's management.[23] Canal expected Andina to make sizable profits in 1986;[24] and, some of the Banks noted Gonchecol's profitable operations through the first quarter of 1986. In addition, Andina's minutes of its board meetings in September, 1985 and May, 1986 indicate that the Gonche Group hoped to increase its monthly exports to over 130,000 bags, and that Kessler sought additional lines of credit with other banks to augment Andina's available credit to at least $250 million.[25]
II. The Insurance Policy
As a condition of financing, the Banks routinely obtained through Andina suitable insurance *312 against false draw documents. Andina obtained a marine open cargo insurance policy issued by Affiliated (the "Affiliated Policy" or "Policy") on July 23, 1980. Each of the Banks was named in the Affiliated Policy as an additional assured as evidenced by separate Banker's Endorsements. The Affiliated Policy expressly extended coverage to losses caused by fraudulent bills of lading, shipping receipts or messenger receipts.[26] In addition, each of the Banker's Endorsements, in relevant part, stated: (1) that the Bank's interest would not be impaired or invalidated by an act or neglect or breach of warranty of Andina; (2) that the Bank must receive 10 days prior written notice of any cancellation; and, (3) that "the policy does not insure against conversion, misappropriation or other dishonest acts committed by or on behalf of the named Assured."[27]
Affiliated did not deal directly with Andina, but rather dealt with Trinder & Norwood, an insurance broker.[28] In the summer of 1985, Affiliated decided to cancel the Affiliated Policy because the Andina account had proven to be unprofitable and contacted Trinder & Norwood about replacing it with another policy. In the fall of 1985, the manager of Affiliated's marine cargo department, David Pemmerl, called Trinder & Norwood to inform them of Affiliated's intention to cancel the policy. Shortly thereafter, on November 27, 1985, Pemmerl sent notice of cancellation for the insurance policy effective March 1, 1986.[29] Pemmerl did not send a copy of the letter to Andina or to any of the Banks.[30] Because Trinder & Norwood feared marketing the Andina account under a notice of cancellation, it asked and Affiliated agreed to rescind the cancellation, and Trinder & Norwood assured Affiliated that it would seek a replacement policy as soon as possible.[31] On February 25, 1986, Pemmerl received a telex from Trinder & Norwood notifying Affiliated that a second insurance policy with Lloyd's of London was placed with their underwriters and became effective as to all shipments made on and/or beginning on and/or after February 25, 1986.[32] Affiliated, however, did not send notice of cancellation to the Banks until March 11, 1986, and under the 10-day prior written notification of cancellation requirement the Affiliated Policy was not cancelled until March 21, 1986.
III. The Discovery of the Fraud
During the 1980s, among other business endeavors, the Gonche Group constructed a large office building in Cali, Colombia called the Cali Tower. The Cali Tower proved to be an unsuccessful business venture and a financial drain for the Gonche Group.[33] In addition, the Gonche Group looted Gonchecol to cover debts incurred by Goncheverri and Gonchelopez, and Goncheverri's director speculated in coffee futures on the commodities market and thus incurred further debts.[34] Over time, Gonchecol's financial situation grew dire as debts mounted.
*313 Nonetheless, as noted above, throughout 1985 and into 1986, the Gonche Group sustained a steady rate of coffee exports, and kept up with its asset conversion cycle.[35] In the winter of 1985, Ruben Echeverri requested that Andina increase the amount of available financing in order to augment the exports of coffee.[36] Andina's management imposed as conditions of their securing additional lines of credit that the Gonche Group increase their working capital and that they shorten the asset conversion cycle.
In April, 1986, Canal travelled to Colombia to assist the Echeverris in increasing their working capital. During this trip, Canal discovered that the Gonche Group faced a cash flow liquidity problem, which he attributed to several factors each of which compounded the other. First, the Colombian peso had undergone a substantial devaluation. Second, the Echeverris had taken out significant loans in dollars, which they were forced to repay with devalued pesos at high exchange rates. Finally, a shift in tax policy, which required exporters to pay an export tax with increasingly greater cash contributions rather than in-kind payments and which moved up the time of payment from the port to the mill, further exacerbated the Gonche Group's cash flow liquidity problem.[37] The Echeverris informed Canal that the requirement to pay ever-increasing portions of the tax in cash and the Gonche Group's liquidity crisis were causing delays in the anticipated deliveries of coffee.
Andina held a board of director's meeting on May 19, 1986, at which time Canal discussed the Gonche Group's cash flow liquidity problem and the resulting delays in coffee shipments. Canal assured the Board that the situation in Colombia did not jeopardize Andina's collateral position, and that he believed the liquidity problem to be temporarily resolvable. Canal outlined a plan of the Gonche Group to sell $30 million in hard assets in order to infuse Andina with working capital and to shorten the asset conversion cycle. At the meeting, Ruben Echeverri, a senior executive of Gonchecol and a director of Andina, stated that even if the Banks suspended all the lines of credit, the Gonche Group would nonetheless export all financed coffee. Ruben Echeverri further noted that he had signed a subordination agreement covering all amounts due Gonchecol as unrepatriated earnings.
At this point, Kessler did not notify the Banks that the Gonche Group faced a cash flow liquidity problem. Ruben Echeverri had personally assured the Andina management that the Gonche Group could and would deliver the financed coffee. Because the exporters had always complied with past promises, had met their obligations in a timely fashion, had sustained the necessary export volumes, and had substantial wealth and assets in Colombia, Canal and Kessler trusted that the exporters would resolve the liquidity crunch that they faced.[38]
In late May or early June, 1986, Andina noticed a marked elongation in the cycle with increased delays in the exportation of coffee and repayment of letters of credit. In June and July, Gonchecol's shipments began to lag appreciably,[39] and the exporters requested on at least two occasions that Andina send funds to Colombia. Canal and Kessler declined to do so.[40] Relations between the Gonche Group and Andina's management became strained. Nonetheless, in order to maintain Andina's economic viability, when the exporters asked Andina to request 60-day extensions of payment of Andina's letters of credit coming due, Andina complied. Starting in early July, Andina began to contact and meet with individual financing Banks to discuss the liquidity crunch and to request additional *314 short-term financing, which request at least one Bank granted.[41],[42] Chemical Bank, with whom Andina had the largest line of credit, refused Andina's request because its management found the exporters' explanations inadequate. Chemical Bank informed Andina that it needed greater details regarding the changes in the taxes before it would extend credit.[43] Shortly thereafter, the Banks and Andina were quickly overtaken by events.
The Gonche Group failed to sell any hard assets to raise working capital for Andina as promised by Ruben Echeverri at the Andina board meeting of May 19, 1986.[44] As the situation deteriorated, the Banks' officials conferred with one another and confirmed that Andina's loans were due with all the financing institutions. On August 12, 1986, Robert Nead ("Nead"), an American Express bank official, joined Canal in Colombia to investigate the situation.[45] On August 14, 1986, Kessler arranged a meeting of the Banks in New York to discuss potential solutions to the liquidity problem.[46] At the same time, Nead and Canal arranged to meet Ruben Echeverri at Gonchecol's offices in Bogota. At the Bogota meeting, Ruben Echeverri stated that he was in financial difficulty with the Colombian banks, that he had pledged coffee to them, and that approximately 200,000 bags of coffee financed by the Banks was missing.[47] Ruben Echeverri further stated that because he was in a liquidity crisis and needed money, he had drawn against letters of credit with false documents.[48] Ruben Echeverri's admissions infuriated Canal.[49] Immediately thereafter, Canal and Nead placed two separate conference calls to the Banks' group meeting in New York at which time they informed the group of Ruben Echeverri's admissions. The attendees, including Kessler, responded to the news of the missing coffee and the fraudulent draw documents with shock and surprise.
At the August 14, 1986 meeting, the Banks decided to send a representative group to Colombia to investigate the situation and determine what steps the Banks could take to identify and secure their collateral. The Banks met in Bogota on August 19, 1986 at a meeting attended by Ruben Echeverri, another employee from Gonchecol, eleven representatives from the financing Banks, and attorneys from two of the Banks' local Colombian counsel. Subsequently, Ruben indicated that twenty people were present. Canal did not attend. In the presence of this large group, Echeverri offered the same explanation for the missing coffee that he had given at the first meeting: he stated that he was in a liquidity crisis due to other business ventures, foreign exchange losses and illiquid investments.[50] Echeverri elaborated that he had borrowed money from Colombian banks, that they sought repayment, and that he presented false truck bills of lading (through a trucking company called Enaltra, which he had previously bought) to draw on letters of credit.[51] At this August 19, 1986 meeting, Nead specifically asked Echeverri whether Andina was aware of the fraudulent draw documents. Echeverri responded that Andina was not aware and complained that Andina was causing him discomfort by pressuring him to deliver coffee, exacerbating his financial difficulties, and risking a financial scandal.[52]*315 Canal later expressed anger at being excluded from attending this meeting.[53]
In the events leading up to and after the discovery of the fraud, Andina broke completely from the Gonche Group. In addition to refusing to send further funds to the Gonche Group, subsequent to the discovery of the fraud, Andina placed its liquid assets into an escrow account for the benefit of the Banks. Further, after August, 1986 and on the advice of its counsel, Andina's personnel ceased all direct communications with the Echeverris.
A preponderance of the credible evidence shows that at the very least Echeverri began to present fraudulent draw documents upon becoming financially strapped and desperate and that Andina's management neither knew nor participated in the fraud. Echeverri offered consistent explanations at the August 14, and August 19, 1986 meetings for the cause of the missing coffee specifically, the Gonche Group's financial difficulties and Gonchecol's subsequent presentation of fraudulent truck bills of lading. At the latter meeting, in the presence of twenty witnesses, Echeverri not only unqualifiedly exonerated Andina of any wrongdoing but expressed irritation at Andina for "exacerbating" his difficulties. Eyewitness testimony of Canal's reaction to both Echeverri's confession of the fraud and to his exclusion from the August 19, 1986 meeting further support a conclusion of Andina's lack of knowledge of Gonchecol's fraud.
The discovery that 200,000 bags of coffee were missing and that Gonchecol had presented fraudulent truck bills of lading for payment came as a complete shock and surprise to the Banks and Andina's management. Neither the financing Banks nor Andina had any inkling that their moneys had been misappropriated in an age-old type of fraud through the use of false draw documents to obtain payments of letters of credit. The Banks had enjoyed a close working relationship with a major, reputable, and profitable importer, which in turn had dealt with and trusted its founding principals members of one of the largest, best respected, and most successful Colombian coffee exporting families.[54]
*316 Another reason why the discovery of the fraud came suddenly, unexpectedly, and unbelievably for the Banks and Andina was because Gonchecol had continued to supply coffee up until May or June, 1986. Andina obtained coffee for its sales to the roasters and used the payments it received therefor to repay the Banks millions of dollars of outstanding letter of credit loans.[55] Moreover, prior to the discovery of the fraud, Andina had experienced similar delays in shipments of coffee. Periodically, Andina's inventory would accumulate in Colombia and its inland portion of the financing cycle would lengthen due to port congestion, strikes, or problems in securing military escorts for the transport of coffee from the mills to the port.[56] For example, in 1983, a protracted dock strike in Colombia caused a buildup of 92 percent of Andina's inventory in Colombia.[57] Not surprisingly, the debacle of 1986 caught the Banks and Andina wholly by surprise.
In the aftermath of the discovery and confession of the fraud, the Banks notified Affiliated of the losses and filed timely proofs of losses. At no time did the Banks conceal any material information regarding the fraud.
IV. Affiliated's Pre-Trial Conduct
The subsequent chapter of this case concerns the conduct of Affiliated in preparation for trial, specifically its efforts to concoct a defense to the Banks' claims. In 1990, Affiliated retained the firm of Podvey, Sachs, Meanor, Catenacci, Hildner & Cocoziello ("Podvey, Sachs") as its sole counsel in the instant litigation. As Affiliated readily admitted at trial, at that time, Affiliated had no witnesses to help advance a cognizable defense.[58] Among its numerous attempted theories, Affiliated reasoned that proof of Andina's and the Banks' complicity in the fraud would bar recovery under the Policy's "dishonesty" clause. To that end, between 1990 and 1994, Affiliated engaged in secret, questionable negotiations to induce Ruben Echeverri and his brothers, Luis and Jorge Hernan, to impute to the Banks and Andina knowledge of and participation in the fraud. Affiliated's pretrial strategy, which is summarized below, at a minimum casts doubt on the management's integrity in its attempt to find a cognizable defense.
A. Affiliated's Activities in 1990
In 1990, as part of its casting about for a defense strategy, Affiliated retained an investigator *317 named Josiah Thompson ("Thompson") to conduct research related to the coffee business and this case in Colombia. He allegedly spent months interviewing unnamed sources. While in Colombia, Thompson repeatedly contacted the Echeverris' counsel, Juan Parada ("Parada"). Thompson sought and failed to arrange for Affiliated to meet with the Echeverris, but succeeded in obtaining a memorandum from Parada, which responded to questions Thompson had posed to the Echeverris.[59] In violation of its pretrial discovery obligations, Affiliated did not disclose to the Banks or Andina either Thompson's contacts with Parada or Parada's memorandum; several years later Affiliated was finally compelled to make the requisite disclosures of its activities.
B. Affiliated's Activities in 1992
In 1992, Thompson contacted Parada again to renew Affiliated's efforts to interview the Echeverris.[60] On May 13, 1992, Thompson and a Podvey, Sachs attorney named Michael O'Kane ("O'Kane") met Parada in Bogota. At the meeting, Thompson specifically stated that he "wanted Kessler." Andina by that time had been destroyed by Ruben Echeverri's fraud; the flourishing coffee importation business and Kessler long since were gone. Little further damage could result from making Ruben a turncoat as to Andina, for a price. O'Kane and Thompson proposed that the Echeverris should collaborate with the insurance company by "cooperat[ing] fully in debriefings"[61] and in exchange Affiliated would take measures in an attempt to obtain immunity for the Echeverris from state and federal prosecution in the United States for the host of matters overhanging them, including bank fraud.[62][63] After the meeting, Thompson and Parada arranged for a meeting of Affiliated's representatives, including their counsel, with Ruben and his brothers in Panama City, Panama. The Echeverris had been advised by Affiliated's representatives that a meeting should not be conducted on United States' soil. Affiliated disclosed none of these contacts to the Banks or to Andina until compelled to do so by the Magistrate Judge assigned to this case.
For two days, on June 3 and 4, 1992, Affiliated's representatives, including their lawyers, accountants, investigators, and sundry personnel met with Ruben, his brothers, and Parada in Panama City, Panama. Affiliated's counsel elected to obtain a Court Reporter from his home base in New Jersey, to accompany counsel to Panama to record in detail the interview sessions, which the Court Reporter did. At the conclusion of the two-day session, Affiliated's counsel instructed the Court Reporter to prepare only one copy of the transcript of her notes and to destroy her notes. She complied with the instructions. Affiliated knew, of course, that Ruben was the only witness who could testify to his fraud and who had knowledge of it. Although this lawsuit was in full progress at the time, Affiliated's representatives gave no notice to the plaintiffs of the two-day interview or the destruction of the record thereof.
A second meeting for another interview was then arranged to convene in Key Biscayne, Florida, despite Affiliated's advice to the Echeverris to stay out of the country. Affiliated followed the same procedure as before. Affiliated brought along the Court Reporter from New Jersey; she took the notes of the interview and was given the same instruction to deliver one copy to counsel and to destroy her notes. She did.
At each meeting, remarkably considering what was at stake and promised to the Echeverris for their input, Ruben made clear, if it had been missed before, that the *318 Banks had had no knowledge of Ruben's fraudulent activity and that he could not provide Affiliated with any documentary evidence to the contrary. As to the defunct Andina, he was willing to say that Andina's officers knew Ruben had manufactured false truck bills of lading. Nonetheless, Affiliated's representatives continued insistently to condition assistance with obtaining immunity from criminal prosecution on Ruben's inculpating the Banks.[64]
After the Florida meeting, O'Kane or Thompson, or both, prepared a statement for Ruben's signature. On August 26, 1992, Ruben travelled to the New Jersey offices of Podvey, Sachs to sign it in exchange for the promised help on the immunity effort.
Affiliated's counsel represented that he then destroyed his copies of the transcripts of the interviews. Counsel explained his actions with respect to the instructions to the Court Reporter and his destruction of the transcripts by stating that this was his practice for every witness interview that was followed by a sworn statement. Counsel added that he had given the Court Reporter those instructions at the time she was retained and prior to his knowing the substance of the interview.
Also in August, 1992, Thompson and O'Kane met again with Luis Echeverri in Cali, Colombia. In fact, between 1990 and approximately 1993, Thompson and O'Kane met with Ruben Echeverri between five and ten times in Colombia.[65] At these meetings, O'Kane always stressed that the only way the Echeverris could obtain immunity would be by accusing Andina and the Banks of knowledge of the fraud that Ruben had perpetrated.[66] Affiliated's representatives did not disclose the extended, recorded meetings they had with the Echeverris, the pressures imposed to procure inculpatory statements from them, or the destroyed transcripts taken over three days from their most significant witness, discovery rules non constat.
In October or November, 1992, Affiliated's counsel, without notifying Andina or the Banks, met with the Manhattan District Attorney's office ("Manhattan D.A.") and alleged that some of the plaintiffs, their officers and counsel had committed criminal offenses. To support its charges, Affiliated provided the Manhattan D.A. with the proffers of the signed Echeverri statements in order to instigate a criminal investigation of the Banks, Andina, their officers and counsel for plaintiffs. Affiliated also disclosed documents and testimony subject to a confidentiality order of Judge Broderick of this Court who was administering this case at that time, without informing the Manhattan D.A. that such an order was in effect.[67] The Banks and Andina learned of the secret meetings between Affiliated and the Echeverris in February, 1993, when Affiliated filed a motion to amend its complaint and assert a third-party complaint for insurance fraud against the Banks and Andina, their counsel, and several Andina officers. Affiliated's motion was denied. Disclosure of the statements and events at Panama City, Panama and Key Biscayne, Florida did not surface for another year.
C. Affiliated's Activities in 1993
In the spring of 1993, Affiliated's representatives continued to convene secret meetings with the Echeverris. Affiliated sought to obtain further statements and documentary evidence from Ruben Echeverri implicating not only Andina but also the Banks with knowledge of the fraud. Affiliated persisted in this pursuit even though Ruben Echeverri had previously remained firm in his assertion to Affiliated's representatives that he could not comply because he had no knowledge of and could offer no documents that showed any awareness on the part of the Banks of the fraud.[68]
Nonetheless, Parada brought to Echeverri's offices a statement dated May 6, 1993 *319 ("the May 6, 1993 statement"), which implicated the Banks with knowledge of the fraud and which Affiliated had drafted for Echeverri to sign. At the time, Parada indicated that the statement would furnish Echeverri with a "passport" to obtain immunity, and Echeverri signed the statement without reading it.[69] Thus, despite the fact that Ruben was Affiliated's key witness on its contentions that the Banks and Andina knew of the fraud in direct repudiation of the Banks' and Andina's contentions as to their ignorance of the fraud Affiliated's representatives prepared this subsequent statement, which charged the Banks' with knowledge of the fraud and which contention Ruben himself had successively disavowed. Affiliated's counsel made no effort at trial to set the record straight on Ruben's disavowal of the Banks' knowledge of the fraud. Affiliated did not disclose to the Banks or Andina any of its dealings with the Echeverris or furnish copies of any of the statements or proffers obtained.
On June 30, 1993, the Manhattan Assistant District Attorney in charge of investigating the fraud notified Judge Broderick that his office had terminated its investigation of the matter. On July 6, 1993, based on this notice and on alleged verbal statements by federal prosecutors in New York and in Florida to Affiliated's representatives that those offices would not investigate the fraud further, Affiliated's lead counsel sent a letter to Parada. The letter concluded that "[t]he result of all this is that your clients are free from any criminal prosecution arising from the events surrounding the collapse of Andina in 1986."[70]
On July 14, 1993, Affiliated gave notice to Andina and the Banks to depose the Echeverris in Cali, Colombia, but continued to withhold the Echeverri statements. The Magistrate Judge assigned to the case ordered the depositions to be held in London, and further ordered Affiliated to produce the written proffers of the Echeverris' statements.
D. Affiliated's Activities in 1994
Affiliated finally produced to Andina and the Banks copies of the written proffers of the Echeverris' statements on January 18 and 19, 1994. Several weeks later Affiliated produced copies of the signed statements. Approximately ten days before the scheduled depositions in London, Ruben Echeverri and Parada met with Affiliated's representatives in Miami.[71] During this meeting, Echeverri understood that Affiliated again wanted him to testify that both Andina and the Banks knew of the fraud despite Echeverri's prior steadfast denial of any knowledge that the Banks knew of the fraud.[72]
On February 9, 1994, at the Miami airport while en route to London for the deposition, federal agents arrested Ruben Echeverri, who subsequently pleaded guilty to and was convicted of bank fraud. After his arrest, notwithstanding a clear conflict of interest, Echeverri was represented initially by O'Kane and then by a former partner of Affiliated's lead counsel. Eventually, Echeverri retained new counsel. In 1996, while serving two concurrent four-year terms of imprisonment, the parties deposed Ruben Echeverri at a federal prison in North Carolina. Affiliated furnished a video of that deposition, which the Court received for its content and credibility value.
V. The Banks' or Andina's Alleged Complicity in the Fraud
A. The Banks
Affiliated failed to produce a scintilla of evidence that the Banks knew of or participated in the fraud. The evidence overwhelmingly shows that the Banks had no inkling whatsoever, prior to the discovery of the fraud, that Gonchecol created and presented false truck bills of lading in order to draw down on letters of credit. Credible witness testimony indicated, without exception, the Banks' total ignorance of Gonchecol's fraudulent intent and practices. Trial *320 exhibits spoke on two sides of the issue making it necessary to evaluate them in light of the other evidence. Moreover, Ruben Echeverri, Affiliated's "primary witness"[73] except for the highly suspect May 6, 1993 statement, which Echeverri was told was his "passport" to immunity[74] exonerated the Banks absolutely in every statement he provided to Affiliated prior to his arrest and to law enforcement personnel and to the Banks after his arrest. Following his arrest, Echeverri further acknowledged that, had the Banks known the Gonche Group manufactured false truck bills of lading, the Banks unquestionably would have ceased financing Andina.[75]
B. Andina
Similarly, Affiliated also failed to present by a preponderance of the credible evidence that Andina's management engaged in "conversion, misappropriation or other dishonest acts committed by or on behalf of the named Assured" regarding any matter covered by the Affiliated policy either through their knowledge of or participation in Gonchecol's presentation of false truck bills of lading or otherwise. Affiliated offered only two witnesses who had personal knowledge regarding Andina's affairs during the time in question: Ruben Echeverri and Mark Rudnick, a computer analyst in charge of Andina's information systems. Both witnesses either because of their lack of credibility or because of the statements they made at the time of the discovery of the fraud thoroughly discredit Affiliated's contention that Andina knew of or participated in the fraud.
In his second public statement regarding the Gonchecol fraud, at the August 19, 1986 Bogota meeting, Ruben Echeverri expressly exonerated Andina of any knowledge or wrongdoing related to the fraud. Six and seven years later (on August 26, 1992 and on May 6, 1993), in a desperate and futile attempt to keep Gonchecol viable, in part, by staving off prosecution, Echeverri agreed to collaborate with Affiliated and signed statements implicating Andina. Echeverri's motivations for implicating Andina are various: possibly revenge for Andina's refusal to send moneys immediately before and after the discovery of the fraud; and, possibly a fruitless desire to avoid prosecution and force the United States financing banks to negotiate a commercial resolution to the debacle. The fact that Echeverri continued to implicate Andina following his arrest in no way diminishes his motivation to punish Andina for its assertion of autonomy from the Gonche Group.
Equally important in disproving Affiliated's contrived theory is the testimony of Mark Rudnick. Rudnick served as the director of Andina's computer department starting in the Spring of 1985.[76] Rudnick testified that during his tenure as director of the computer department, even though he had frequent contact with Kessler and was in charge of the computer system that tracked Andina's finance cycle, he never suspected Andina to be involved in a fraud or suspected the Gonche Group of defrauding Andina or the Banks. After Ruben Echeverri's arrest, when interviewed by federal law enforcement personnel, Affiliated's witness, Rudnick, reported that "[t]here was nothing that [he] had ever seen ... that would raise a red flag in any reasonable person's mind."[77] Similarly, as to the Banks, although the Banks' *321 officers supervised the exporters and the Andina account in a relaxed manner, as testified by the Banks' witnesses and as shown in the documentary evidence, the circumstances at the time did not give rise to the level of "red flags in any reasonable person's mind" of fraud by Gonchecol.
Rudnick's testimony at trial and Echeverri's confessions in August, 1986 if taken alone support the conclusion that Andina's management did not engage in any conversion, misappropriation, or dishonest acts by or on behalf of Andina or the Banks.
ADDITIONAL SPECIFIC FINDINGS
1. Plaintiffs commenced these actions against defendant Affiliated FM Insurance Company for breach of its contractual obligations under an insurance policy entitled "Marine Open Cargo Policy OCP-302" issued by Affiliated to Andina on or about July 23, 1980.
2. At the commencement of these actions each of the plaintiffs was a citizen of a state other than Rhode Island or a nation other than the United States and had its principal place of business within the United States in the Southern District of New York. Defendant Affiliated is a citizen of the State of Rhode Island.
3. The matter in controversy for each of the actions commenced by the plaintiffs exceeds $50,000, exclusive of interest and costs, and this Court has subject matter jurisdiction over these cases based upon 28 U.S.C. § 1332(a).
4. Each of the Banks is named in the Affiliated Policy as an additional assured, as provided in Clause 2 of the Affiliated Policy and in separate endorsements (Nos. 6 (as amended by No. 32), 10, 13, 30, 31 and 34) entitled "Special Terms and Conditions" (the "Bankers' Endorsements").
5. Clause 37(D) of the Affiliated Policy (as amended by Endorsement No. 33, the "FBOL Clause") specifically provides, in a section entitled "Special Conditions," that:
This policy covers loss or damage occasioned through the acceptance by the Assured and/or their agents or shippers of fraudulent Bills of Lading and/or shipping receipts and/or messenger receipts and/or warehouse receipts and/or truckmen's receipts.
6. Each of the Bankers' Endorsements provides, among other things, that:
[T]his policy shall not be canceled nor materially changed as to the interest of the Bank unless 10 days' ... prior written notice of such change or cancellation shall have been given to the Bank.
7. In addition, each of the Bankers' Endorsements provided that each Bank's interest under the Affiliated Policy would not be impaired by any act or neglect of or breach of any warranty by Andina.
8. Clause 15 of the Affiliated Policy provides that if any other insurance is subsequently obtained on the same interest, Affiliated is "nevertheless answerable for the full extent of the sum insured" by it "without right to claim contribution from such subsequent insurers."
9. As a condition of the financing provided by each Bank, Andina was required to maintain suitable insurance and to provide audited and certified financial statements to the Banks.
10. The Affiliated Policy requires that, "[i]n the case of loss or damage, such loss or damage is to be paid in thirty days after proof of loss...."
11. Andina was an United States importer of coffee from Colombia, and, at all relevant times, its business was managed by Humberto Canal and Dennis Kessler.
12. At all relevant times, Gonchecol was an exporter of coffee to Andina and, for most of that time, Ruben Echeverri was one of Gonchecol's principal officers.
13. Each of the Banks (as well as other financial institutions) extended separate secured lines of credit to Andina. Pursuant to those lines of credit, Andina transactionally financed, by letters of credit, its purchases of coffee from Colombian exporters.
14. Andina paid and Affiliated accepted premiums under the Affiliated Policy, including quarterly deposit premiums pursuant to Endorsement No. 17, which deposit premiums *322 were adjusted periodically in accordance with the Affiliated Policy.
15. Between 1974 and up to 1986, the Banks extended hundreds of millions of dollars of credit to Andina (pursuant to letter of credit transactions of the type involved in this action), all of which was timely repaid.
16. In extending financing to Andina, each Bank required Andina to provide it with insurance coverage, and relied upon the insurance obtained by Andina from Affiliated which included, among other provisions, as a special condition, protection for Andina and for each Bank for "loss or damage occasioned through the acceptance by the assured and/or their agents or shippers of fraudulent Bills of Lading and/or shipping receipts and/or messenger receipts and/or warehouse receipts and/or truckmen's receipts."
17. The Banks kept an abundance of information on file about the various business ventures of Andina's principals and relied upon their wealth and reputation in extending credit.
18. Andina trusted its principal shareholders, including Gonchecol, and never contemplated or suspected being defrauded by them.
19. The Banks trusted the exporters and relied on the relationship between the exporters and Andina in financing Andina. The Banks also trusted Andina because they had excellent relationships with that Company.
20. Completely trusting the exporters, its related principals, Andina simply did not believe there was a risk of nonexistent goods in its precise factual situation.
21. It was well known and believed that the Echeverri Group of the exporters would never let Andina suffer any type of financial difficulty.
22. The commercial reality in this case was that reasonable business persons in the positions of either the importer, Andina, or the financing Banks would not perceive or suspect any risk of fraud on the part of the exporter in its relationships with either Andina or the Banks. It was that trust and confidence which motivated the issuance of letters of credit and enabled the exporter to receive time and indulgence from the Banks and Andina in the slowly elongating cycle of deliveries of coffee during the Spring of 1986.
23. Each letter of credit provided that the Colombian exporter, as beneficiary, could obtain payment from a Bank by presenting certain draw documents (the "Draw Documents"), including truck bills of lading. The truck bills of lading provided apparent confirmation to the Bank of the existence of coffee and the commencement of the export cycle.
24. The Letter of Credit Department of each Bank independently administered and serviced its own letter of credit transactions for the account of Andina. Each Bank's Letter of Credit Department determined whether the Draw Documents for the letters of credit at issue here conformed to the terms of the applicable letter of credit and, when necessary, obtained waivers of discrepancies from Andina before accepting and paying the Colombian exporter in accordance with the letter of credit. Each Bank's Letter of Credit Department accepted the truck bills of lading as Draw Documents prior to payment.
25. No plaintiff disputes that the Affiliated Policy was canceled with respect to Andina for shipments occurring on and after February 25, 1986.
26. Affiliated did not send notice of cancellation of the insurance herein involved to any Bank prior to March 11, 1986, and the Affiliated Policy was not canceled as to the interest of any Bank prior to March 21, 1986.
27. On August 14, 1986, representatives of Andina and the Banks met in New York to discuss possible solutions to a liquidity crisis, which they were told and believed Gonchecol was experiencing. During the course of that meeting, Humberto Canal and Robert Nead (of American Express Bank) called from Colombia to inform the group assembled in New York that approximately 200,000 bags of coffee financed by the Banks through letter of credit payments made between January, 1986 and June, 1986 had not been located.
28. At a meeting in Colombia on August 19, 1986, in the office of a local attorney *323 attended by representatives of Chemical Bank, American Express, NatWest and Gonchecol, and others, in all, over 20 persons, whereat Ruben Echeverri admitted that the truck bills of lading prepared by Gonchecol and Ruben and utilized by Ruben to draw payment on the letters of credit issued by the Banks were false and fraudulent in that the coffee referenced in such truck bills of lading was not in the possession of either the trucker or the port forwarder. Echeverri further stated that Andina was not aware of and did not participate in the fraud and had no knowledge thereof. He had made a similar disclosure as to the use of fraudulent truck bills of lading to a Bank representative on August 14, 1986.
29. Prior to August 14, 1986 neither the Banks nor Andina knew of the fraud perpetrated upon them by Ruben Echeverri and Gonchecol.
30. A discrepancy between the truck bills of lading and the actual coffee shipped by Gonchecol and Ruben Echeverri began to raise questions with Andina and the Banks in the Spring of 1986. By May, 1986 questions raised by them were discussed at the meeting of Andina's board of directors and purportedly were explained by Ruben as due in part to traffic jams at the port of embarkation, as involved in a money stringency of the exporters due to gyrations in the value of the peso and as due to the burden of export tax regulations, the cuchilla. The significant slowdown in deliveries from the exporters commenced in the second part of June, 1986. In early August, 1986 Echeverri sought vainly to obtain loan accommodations from Colombian bank sources. Ultimately on August 14 and 19, 1986 Ruben confessed that the coffee that purportedly backed up the truck bills of lading did not exist. The only time Andina realized that the Gonche Group was incapacitated to ship the coffee was when their fraud was confessed by Ruben as aforesaid.
31. Each of the truck bills of lading included in the Draw Documents presented under the letters of credit upon which losses were incurred by plaintiffs ("Fraudulent Document Losses") was fraudulent in that the coffee represented by the truck bills of lading did not exist when such documents were presented to and accepted by the Banks in New York and when the corresponding letters of credit were paid, and the said truck bills of lading were the proximate efficient and dominant cause of all of the Banks' losses.
32. There is no evidence that any ocean shipment ever commenced as to any of the coffee associated with the Fraudulent Document Losses.
33. As a result of their acceptance of the fraudulent truck bills of lading presented to draw under the relevant letters of credit, the Banks suffered Fraudulent Document Losses in the principal amount of $94,598,368.
34. Upon discovery of the fraud, each plaintiff gave timely written notice of loss to Affiliated. These notices of loss were submitted to Affiliated between August 21, 1986 and September 5, 1986.
35. Each plaintiff timely filed a written proof of loss with Affiliated between October 3, 1986 and October 23, 1986.[78]
36. Commencing on September 2, 1986, the Banks provided Affiliated with additional information and documentation supporting their losses, requested forms from Affiliated, proposed that a surveyor be appointed, and offered to make their employees available for interviews by Affiliated.
37. Affiliated did not accept any of the Banks' offers to interview any of their employees, and ignored the Banks' requests and proposals set forth in the preceding paragraph.
38. Neither Andina nor any of the Banks concealed from Affiliated any material facts concerning their losses.
39. The Banks and Andina in good faith fulfilled all obligations to Affiliated required to be performed in connection with their claims.
*324 40. There is no credible evidence whatsoever that the Banks were privy to the fraud.
41. Each of the Endorsements on Affiliated's Policies provided that "[t]his agreement shall not extend the said policy to cover any additional risks, it being especially agreed that the policy does not insure against conversion, misappropriation or other dishonest acts committed by or on behalf of the named Assureds."
42. There is no credible evidence that Andina or its officers Canal or Kessler were privy to any fraud or dishonest act committed by or on behalf of the named assureds. The defendant failed to prove by a fair preponderance of the credible evidence that any dishonest acts were committed by or on behalf of the named assureds or by Kessler in the transactions of the Banks and of Andina in respect of the letters of credit and the false truck bills of lading created, issued or utilized by, or on behalf of Ruben Echeverri or Gonchecol.
43. The Banks' losses have not been paid by Affiliated.
44. Andina's losses have not been paid by Affiliated and Andina has assigned the proceeds of its claims under the Affiliated Policy to the Banks.
45. The Banks' claims against Affiliated for the Fraudulent Document Losses arising under letters of credit drawn and paid prior to March 21, 1986 are as follows:
Unpaid Fraudulent Document Losses prior to
March 21,1986
Bank Amount
Chemical Bank $14,860,000
Banque Paribas 14,392,500
American Express Bank 7,049,500
NatWest Bank 5,762,000
Rabobank Nederland 1,620,000
European American Bank 490,000
___________
TOTAL: $44,174.000
___________
46. Pre-judgment interest on the principal amount of $44,174,000 unpaid to the Banks continues to accrue at a per annum rate of 9% or at a per diem rate of $10,892 from January 1, 1987.
47. Andina's claims against Affiliated for Fraudulent Document Losses arising under letters of credit paid before February 25, 1986, which are not duplicative of losses claimed by the Banks, are in the principal amount of $2,975,000. Pre-judgment interest on the principal amount of $2,975,000 continues to accrue at a per diem rate of $733 from January 1, 1987. Andina has assigned its claims in this litigation to the Banks to satisfy the loans it incurred from the drawn upon letters of credit.
48. In addition to the Fraudulent Document Losses the Banks claim against Affiliated, the Banks incurred Fraudulent Document Losses on and after March 21, 1986 in the principal amount of $50,424,368 (before interest).
49. Each of the plaintiffs asserted claims for Fraudulent Document Losses incurred on and after March 21, 1986 against the London insurers and the insurance brokers Hogg Robinson and Gardner Mountain Limited and Hogg Robinson (Cargo) Limited (together, "Hogg Robinson") and Trinder & Norwood ("T & N"), which purported to have placed "Ocean Open Cargo Policy No. TN-OCP-1811" (the "London Policy").
50. The London Insurers denied the plaintiffs' claims based upon, among other things, the defense that the London Policy was not properly bound and was void ab initio as a result of alleged placing errors and non-disclosures by Hogg Robinson and T & N. T & N and Hogg Robinson did not disclose to the London Insurers the fact that Affiliated had issued notices of cancellation of the Affiliated Policy dated November 27, 1985 and February 20, 1986 or the contents thereof. No Bank was advised of such purported cancellations and no Bank knew that the London Insurers had or would assert these defenses until after August, 1986.
51. In January, 1993, plaintiffs settled their claims against the London Insurers, Hogg Robinson and T & N for $25,217,375 (the "London Settlement").
52. Prior to the London Settlement, the Banks recovered $26,485,533 (before expenses shared by the Banks) from the liquidation of property voluntarily delivered to the Banks by Andina. This amount properly *325 excludes $2,288,366 in expenses incurred by Andina during liquidation.
53. In January, 1995, Ruben Echeverri agreed to provide partial monetary restitution to the Banks. Pursuant to that agreement, the Banks have received $10,500,000 from Gonchecol, and Gonchecol has promised to pay $500,000 per year for nine years without interest (absent a default). On April 25, 1997, a payment of $11,250 was received by the Banks from Gonchecol as payment of interest in consideration of the deferral to April 30, 1997 of the $500,000 payment due on January 31, 1997, which has not been received. On May 27, 1997, an additional payment of $11,250 was received by the Banks from Gonchecol in connection with a request to defer the $500,000 payment due on April 30, 1997 to July 31, 1997.
54. The Banks' loan agreements with Andina, which preceded the discovery of the fraud, authorized the Banks to apply all recoveries in any manner they selected. The relevant provisions of those agreements were reconfirmed by the Banks and Andina after the discovery of the fraud.
55. In addition, Andina under its existing by-laws and corporate structure, directed each Bank to apply all recoveries to payment in full of Andina's reimbursement obligations with respect to the letters of credit upon which Fraudulent Document Losses were incurred in the inverse chronological order of draw date. This was a permissible voluntary agreement and not made under duress.
56. From August, 1986, each of the Banks was entitled to charge interest on Andina's obligations at or above the prime rate.
57. The Banks have agreed to share recoveries and related expenses with respect to the Fraudulent Document Losses. Chemical Bank acts as Collateral Agent for the Banks in connection with shared recoveries and related expenses.
58. After application of the recoveries to the principal amount of the Fraudulent Document Losses incurred by the Banks on and after March 21, 1986 (and to interest accrued thereon either at the prime rate or at the legal rate of 9% per annum, but before expenses), such losses have not been fully recovered, and no balance remains for application to the Banks' claims against Affiliated.
59. No part of plaintiffs' recoveries are available for application to their claims against Affiliated.
60. From and after 1980, T & N was engaged by Andina to obtain and service insurance concerning certain aspects of Andina's business. T & N acted as Andina's broker, for certain limited purposes, in connection with the Affiliated Policy.
61. On February 25, 1986, T & N purportedly advised Andina that coverage had been placed with the London Insurers under the London Policy "effective with all shipments made on/or after February 25, 1986."
62. T & N expected Affiliated to send notices of cancellation to the Banks.
63. Affiliated sent notices of cancellation of the Affiliated Policy to three of the Banks on March 11, 1986 and claims that it sent notice of cancellation to the other three Banks on that date.
64. Affiliated enclosed with the March 11, 1986 notice of cancellation Endorsement No. 38 to the Affiliated Policy which had a signature line for the "Assured." Such endorsement was never signed by Andina or the Banks.
65. T & N never communicated with any Bank regarding the purported cancellation of the Affiliated Policy; no Bank advised T & N at any time that T & N was authorized to commit a Bank regarding cancellation of or replacement of the Affiliated Policy; no Bank ever advised T & N that it was authorized to waive the cancellation provision.
66. There is no evidence that T & N purported to cancel the Affiliated Policy on behalf of any Bank.
67. There is no evidence that any Bank engaged in any conduct that would have led Affiliated to conclude that T & N was authorized to act for such Bank independently without express authorization regarding cancellation or replacement of the Affiliated Policy.
*326 68. A modification or elimination of the Banks' rights to 10 days' prior written notice of cancellation is, in itself, a material change that would require 10 days' prior written notice. No such notice was ever given, nor was any such modification or elimination effected.
69. The Banks did not agree to waive or release any liability of Affiliated under the Affiliated Policy, and T & N had no authority to waive any rights of the Banks under the Policy.
70. The Affiliated Policy was not canceled as to the interest of any Bank prior to March 21, 1986.
71. The London Policy (Finding # 49) became effective as to all ocean shipments on and after February 25, 1986. Defendant contended herein that the London Policy also, by an Endorsement No. 9, covered the Colombian interior risk for shipments where an ocean bill of lading had issued on or after February 25, 1986.
72. Endorsement No. 9, dated April 22, 1986 ("Endorsement No. 9"), is an endorsement to the London Policy. It is not an endorsement to the Affiliated Policy.
73. At the time Endorsement No. 9 was issued, all of the Fraudulent Document Losses claimed against Affiliated had already occurred.
74. The last endorsement to the Affiliated Policy is Endorsement 38, which bears the typewritten date February 25, 1986. After issuance of Endorsement 38, there was no advice from Affiliated of any further changes to the Affiliated Policy.
75. No evidence was presented that written notice was given to the Banks of any purported changes to the Affiliated Policy resulting from the issuance of Endorsement No. 9.
76. No Bank received a copy of the London Policy prior to May 14, 1986.
77. When the London Policy was sent to the Banks on May 14, 1986, it did not contain a copy of Endorsement No. 9.
78. Even if Endorsement No. 9 covered interior risks without ocean shipment, the London Policy is insurance on that interest subsequent in date to the Affiliated Policy. In addition, Endorsement No. 9 only covers shipments of actual coffee that had commenced interior transit before February 25, 1986.
79. Endorsement No. 9 to the London Policy did not alter or affect the Banks' coverage under the Affiliated Policy.
80. All of the truck bills of lading presented to and accepted by the Banks which resulted in the Fraudulent Document Losses are fraudulent because the coffee represented thereby did not exist and thus was not in the possession of or taken in charge by the trucker at the time that such truck bills of lading were presented as Draw Documents and accepted by the Banks.
81. The truck bills of lading presented to the Banks under the letters of credit issued by the Banks evidenced that the trucker had assumed responsibility for the coffee.
82. There is no evidence that the date on the truck bills of lading represented the actual issuance date of those documents. The date appearing on the truck bills of lading represented the issuance date only for purposes of "staleness" under the UCP 400 and was not necessarily the actual issuance date.
83. The letters to the Banks from Colombian banks transmitting the Draw Documents were not Draw Documents under the letters of credit.
84. The letter of credit document examiners at each Bank were required to check only the Draw Documents for their compliance with the letters of credit.
85. The dates on the truck bills of lading or the letters transmitting the same did not put any Bank on notice of any misconduct.
86. The letters of credit at issue in the litigations conducted in the Supreme Court, State of New York, entitled Andina Coffee, Inc. v. Cooperative Centrale Raffeisenboerenleenbank B.A., et at., Index No. 20123/86, and Andina Coffee Inc. v. National Westminster Bank U.S.A., et al., Index No. 19759/86, were materially different from those on which the Banks make claim here. Additionally, the portions of the State Court submissions relied upon by Affiliated are incorrect *327 or inapplicable to the facts presented here.
87. Prior to mid-August 1986, neither Andina nor any of the Banks had any sufficient reason to suspect that the coffee financed by draws under the letters of credit did not exist.
88. Prior to the discovery of the fraud in mid-August 1986, neither Andina nor any of the Banks knew that Ruben Echeverri or his family had an ownership interest in and controlled Empresa Nacional De Transportes Ltda., d/b/a Enaltra ("Enaltra"), the Colombian trucker used by Ruben Echeverri to utilize the fraudulent truck bills of lading at issue.
89. Ruben Echeverri's accusation that Andina's management knowingly financed nonexistent coffee is repudiated by Gonchecol's coffee position reports and Andina's Harris computer reports (which were derived therefrom) in that: (a) the position reports did not uniformly report the coffee at all of the mills (coffee was reported at anywhere from 6 to 19 mills); (b) at least 130 lots of Gonchecol's coffee, worth approximately $13,000,000, that did not appear on any position report were, in fact, shipped from Colombia; (c) over $38,000,000 of Goncheverri's and Gonchelopez' coffee financed by Andina between October 1, 1985 and June 19, 1986 is not reported on any position report, and Goncheverri and Gonchelopez have never been accused of fraud; and (d) Ruben Echeverri had nothing to do with the preparation of the reports.
90. Ruben Echeverri's accusation that Dennis Kessler improperly interfered with Arthur Andersen's September 30, 1985 audit of Andina's financial statements by inducing or attempting to induce Arthur Andersen to certify to an overstatement of inventory is not credible. There is no evidence that Arthur Andersen used anything other than appropriate auditing standards in connection with the inventory audit at the statement date.
91. Andina's bank statement for May, 1986 does not show that funds drawn by Gonchecol under letters of credit were deposited directly to Andina's account to repay prior outstanding letters of credit. Ruben Echeverri acknowledged that Gonchecol had access to dollars with which to pay its obligations to Andina, notwithstanding any Colombian currency control laws.
92. From time to time and in the ordinary course of its business, Andina prepaid its reimbursement obligations arising from draws under letters of credit in order to, among other things, reduce borrowing costs. These prepayments were not evidence of fraud.
93. Once the reimbursement obligation relating to a letter of credit was paid, the Banks had no reason to and did not receive further information or documentation concerning the transaction giving rise to that obligation.
94. Periodically, port congestion, strikes, and quota restrictions delayed shipment of coffee and repayment of sums advanced to purchase such coffee under the letters of credit. As a result, requests were made by Andina from time to time to the exporters for funds to liquidate letters of credit prior to the sale of the coffee being financed, and the exporters complied with these requests. Andina believed that the exporters had ample means to provide such funds.
95. Although Affiliated had knowledge of the coffee exportation process, the Colombian exporters, and the nature of the letter of credit financing provided by the Banks to Andina, it did not specify or restrict the documents to be used as Draw Documents under the letters of credit issued by the Banks.
96. The Affiliated Policy does not require as a condition to coverage:
(i) that the Banks monitor or track any portion of the transaction, including the length of time from the issuance of a truck bill of lading to the issuance of an ocean bill of lading;
(ii) that the Draw Documents to be issued in connection with letter of credit financing be title documents;
(iii) that the Draw Documents to be issued in connection with letter of credit financing *328 be negotiable title documents under Colombia law;
(iv) that the Banks limit the financing provided, including a limitation of the interior portion of the financing;
(v) that the Banks have perfected security interests in insured goods; or
(vi) the use of a "Revision," "Guia," "Orden de Cargue," or "Registro de Contracto" as Draw Documents.
97. Paragraph 38 of the Affiliated Policy provided that Andina would declare shipments to T & N for transmission to Affiliated.
98. The declarations by Andina to T & N were made on a weekly basis when Harry Pedersen, a T & N employee, visited Andina and took letter of credit draw reports, ocean bills of lading and other documents related to declarations and claims.
99. Various employees of T & N would review, notate and compile the Andina documents for transmission to Affiliated. T & N also prepared bordereaux of interior movement, ocean movement, and warehoused coffee.
100. In order to determine the rate to be applied, T & N waited for the ocean bill of lading for each shipment and determined the ocean shipping terms at that time. If the coffee was sold FOB Colombia, Andina was not responsible for insurance of the ocean voyage and an interior movement report and declaration was transmitted by T & N to Affiliated. If coffee was sold under terms making Andina responsible for the insurance of the ocean voyage, an ocean bordereaux and declaration was transmitted by T & N to Affiliated.
101. On occasion, T & N waited as much as a year after the time it was given an initial letter of credit draw report to compile all information concerning a specific shipment and include that information in a bordereaux report. Such delays were the result of the quarterly reporting system for the Affiliated Policy and the need to await information to establish the rate to be applied and as to the valuation of the cargo.
102. This system was followed by T & N. Affiliated accepted declarations under this system, without complaint from at least 1980 through 1986.
103. There was no intentional delay by Andina in making declarations of shipments under the Affiliated Policy.
104. There is no evidence that Affiliated gave written notice to Andina or any Bank of cancellation for reasons of incomplete declarations or nonpayment of premium.
105. The Banks were not required to make declarations or to pay premiums under the Affiliated Policy.
106. Any alleged failure to pay premiums or make declarations by Andina does not affect the Banks' coverage under the Affiliated Policy.
107. Clause 9 (Limit of Insurance) of the Affiliated Policy provides that "[t]his insurance shall cover for not more than $8,000,000 ... in any one place at any one time." Each presentation and acceptance of fraudulent bills of lading took place at separate Banks at separate times. Each presentation and acceptance was for less than $8,000,000. Clause 9 does not limit the plaintiffs' claims against Affiliated.
108. Clause 10 (Accumulation) of the Affiliated Policy provides:
"Should there be an accumulation of interests beyond the limits expressed in this policy by reason of any interruption of transit beyond the control of the Assured, or by reason of any casualty or at any transhipping point or on a connecting vessel or conveyance, this policy shall attach for the full amount at risk (but in no event for more than twice the policy limit) provided written notice be given (to this Company) as soon as known to the Assured."
109. This accumulation of interests clause is inapplicable to the plaintiffs' claims because (i) no transit had taken place (the relevant truck bills of lading were false and fraudulent in that the coffee described therein did not exist and was never in the possession or under the control of the trucker), and (ii) there was no casualty in transit at any transhipping point or on any vessel or conveyance. Even if Clause 10 were applicable *329 to the losses at issue in this case, it would apply separately to each assured. Thus, Clause 10 is irrelevant because no Bank's principal claim exceeds $16,000,000, and Andina's claims against Affiliated which are not duplicative of losses claimed by the Banks do not exceed $16,000,000.
110. Endorsement No. 3 (Warehouse Endorsement) extends the Affiliated Policy to "cover the goods insured" for the import voyage under this open policy while temporarily situated at the locations listed herein [U.S. warehouse locations], and Endorsement No. 4 (Colombian Locations) extends this coverage to "coffee awaiting export while stored at the following locations in Colombia." The Limit of Liability under Endorsement No. 4 that "this Company shall be liable for no more than $3,000,000 any one location, nor for more than $10,000,000 over all locations at any one time" is inapplicable. None of the plaintiffs' claims here are due to losses that occurred at warehouse locations.
111. The losses of the plaintiffs sued for herein were not caused by dishonest acts of the assured. No dishonest acts of the named assured, Andina, were the proximate cause of the losses sued on.
112. Andina and its principal officer, Kessler, were not guilty of any conversion, misappropriation or other dishonesty in respect of the false documents utilized to cash the Banks' letters of credit.
113. Decision of these cases turns uniquely on the issue of credibility of the key players and, in a subsidiary way, of the representatives of the parties and their motivations. The issues of credibility herein are resolved in favor of the plaintiffs and against the defendant.
CONCLUSIONS OF LAW
A. The Federal District Court has subject matter jurisdiction over the issues in controversy in this action pursuant to diversity of citizenship and requisite amount in controversy.
B. The venue of the Southern District of New York is proper.
C. This Court having found that all of the Draw Documents submitted to the Banks with respect to the Fraudulent Document Losses were accepted by the Banks in New York and that no ocean shipment ever commenced as to such losses, admiralty jurisdiction does not exist in this case.
D. New York law is the controlling substantive law.
E. The plaintiffs base their claims on the undisputed fact that truck bills of lading presented to draw upon letters of credit were false in that the stated cargo did not exist at the time the truck bills of lading were presented. The FBOL Clause of plaintiffs' policy covers these losses.
F. Affiliated's contention that the Affiliated Policy required existing cargo is contrary to the plain, unambiguous language of the FBOL clause.
G. While this Court finds no relevant ambiguity in the Affiliated Policy, were there any such ambiguity, it would be construed against the insurer.
H. Coverage exists for the Banks under the Affiliated Policy as additional assureds under both the "for account of whom it may concern" clause and the Bankers' Endorsements issued to each Bank.
I. This Court having found that no plaintiff had actual knowledge of the fraud, Affiliated's contention that each plaintiff should have known of the fraud being perpetrated has no legal merit. As a matter of law, insurance coverage is avoided where an insured intends to cause its loss, but not where its negligence (ordinary or gross) causes the loss. Thus, it is not sufficient for Affiliated to prove that a plaintiff "should have known" of the exporter's fraud; to avoid liability it must prove that the plaintiff actually knew of the falsity of the truck bills of lading and nonexistence of the coffee at the time the relevant letters of credit were drawn upon and paid.
J. Affiliated's contentions that bills of lading should have been "title" documents, or that Colombian export documents such as a "Revision," "Guia," "Orden de Cargue," "Registro de Contracto" would have avoided *330 the possibility that a beneficiary would draw with knowingly false truck bills of lading (nonexistent coffee) are defeated by the provisions of the Affiliated Policy, which do not require these documents for coverage under the FBOL Clause or otherwise.
K. Affiliated's contention that plaintiffs must prove actual reliance upon the draw documents is without merit because the FBOL Clause requires only that the losses be caused (i.e., "occasioned") by the acceptance of fraudulent truck bills of lading, not that such documents be relied upon. Even though reliance upon the truck bills of lading was not required as a matter of law, the acceptance of the truck bill of lading and its use by each Bank to confirm the existence of the coffee and the commencement of the export cycle demonstrates reliance by each Bank on the fraudulent truck bills of lading.
L. This Court having found no credible evidence that Andina knew of or participated in the fraud or of the creation and use of false documents by Ruben Echeverri and the Gonche Group, no conduct of Andina is a defense to any claim asserted by plaintiffs. Where an insurer asserts an affirmative defense based on the "conversion, misappropriation or other dishonest acts committed by or on behalf of the named Assured," it must prove the defense by a preponderance of the evidence; here Affiliated did not establish this affirmative defense by a preponderance of the credible evidence presented to the Court thereon.
M. This Court having found that no Bank knew of or was privy to or participated in fraud, each Bank is an innocent co-assured entitled to coverage under the Affiliated Policy.
N. Each of the plaintiffs timely complied with the notification and documentation requirements under the Affiliated Policy with respect to its claim of loss. Further, under New York law, clauses in insurance policies requiring "immediate notice" to the insurer are construed to require notice within a reasonable time after a duty to give notice has arisen.
O. Notice and proof requirements are liberally construed in favor of the assured and merely require substantial, not strict, compliance.
P. This Court having found that each plaintiff acted in good faith in connection with these claims, the doctrine of uberrimae fidei, pursuant to which parties to a marine insurance contract owe each other the utmost degree of good faith, is not implicated. Moreover, it does not apply here because the claims made arose under inland risks, not marine risks.
Q. This Court having found that there is no dispute that the Affiliated Policy was canceled as to the interests of Andina with respect to shipments on or after February 25, 1986, but that separate endorsements to the Policy expressly provided that each Bank is entitled to 10 days' prior notice of cancellation and such notice was first given to some Banks on March 11, 1986, the earliest cancellation date of the Affiliated Policy as to the interest of any Bank was with respect to shipments on or after March 21, 1986.
R. T & N had no express, implied, or apparent authority to cancel the Bank's insurance coverage or to waive the right of any Bank to notice of cancellation stipulated in the insurance policy.
S. As a matter of law, replacement of an insurance policy does not automatically result in cancellation of that policy, and cancellation provisions of the earlier policy must be followed. Moreover, the Affiliated Policy explicitly provides in clause 15 thereof, that it remains in force if a subsequent policy attached to the same interest.
T. The doctrine of ratification involves a party's subsequent authorization of an unauthorized act undertaken on behalf of the party. Here, in view of the absence of any evidence that T & N purported to act on behalf of any Bank with respect to cancellation or replacement of the Affiliated Policy, there was no unauthorized act which could be the subject of a subsequent ratification by any Bank.
U. Since no Bank knew of the losses that had occurred prior to August *331 1986, and no Bank knew that London Insurers had a defense based on non-disclosure which permitted the London Policy to be avoided ab initio, no Bank effectively ratified the alleged agreement between T & N and Affiliated to cancel the Affiliated Policy as of February 25, 1986. An invalid or defective cancellation will not become effective by ratification where the insured does not have full knowledge of its rights and all material facts, including that losses had occurred or that a purported "substitute" insurer (here London Insurers) would later deny attachment of its policy.
V. Endorsement No. 9 to the London Policy did not alter the Affiliated Policy, nor did it affect any of Affiliated's obligations to the plaintiffs under the Affiliated Policy. Moreover, a party to a contract cannot relieve itself of obligations under a contract without the express consent of the other party to that contract. Thus, because the plaintiffs were unaware of Endorsement No. 9 until after the discovery of the fraud in August 1986, any agreement among Affiliated and the London Insurers relating to Endorsement No. 9 does not affect Affiliated's obligations to the plaintiffs under the Affiliated Policy.
W. As to each of the Banks, the Affiliated Policy covered shipments or purported shipments occurring on or before March 21, 1986. As to Andina, the Affiliated Policy covered shipments or purported shipments occurring before February 25, 1986. Each of the losses claimed in this matter relates to purported shipments on or before March 21, 1986 for the Banks and before February 25, 1986 for Andina. Consequently, each loss is covered by the Affiliated Policy.
X. This Court having found that the plaintiffs paid money at the time of acceptance of the fraudulent documents the time of each insured loss is the time that such money was paid. Where a party is induced to pay money on the basis of fraudulent documents, a loss occurs at the time the money is paid out, not when the party discovers the fraud.
Y. Loss occurs under a transportation or cargo policy when an insured peril causes harm to the interest insured, and not when the loss is discovered or manifest.
Z. Affiliated's contentions concerning the Banks' compliance with the law or practices governing documentary letters of credit is not relevant in determining whether there is a covered loss under the Affiliated Policy. Even if the Banks had a duty to Affiliated to comply with the law or practices governing documentary letters of credit, the Banks did comply.
AA. The plaintiffs are entitled to pre-judgment interest at the rate of 9% per annum from January 1, 1987 to the date of entry of judgment hereon. Pre-judgment interest at the statutory rate of 9% per annum from January 1, 1987 to the date of entry of judgment is mandatory. Even if this Court had discretion concerning interest, such as under the law of New Jersey, the Second Circuit has held in a similar case that interest be awarded.
BB. This Court having found that plaintiffs' losses occurring on and after March 21, 1986 have not been fully recovered from other sources, the plaintiffs are permitted to allocate all third-party recoveries to losses after March 21, 1986. As a matter of law, an insured must be made whole before an insurer is entitled to receive credit for any portion of the insured's recoveries.
CC. This Court having found that before (and after) the discovery of the fraud, each of the Banks entered into a contractual agreement with Andina which provided that each of the Banks had the right to apply recoveries in any manner they selected, the allocations of recoveries made by the Banks are permitted by law. Quite apart from the contractual agreements that authorized each Bank to apply recoveries in any manner it selected, the law provides that a debtor owing a creditor more than one debt has the right to direct how a payment shall be applied. Where the debtor fails to make such direction, the creditor may apply the payment as it deems fit.
DD. A debtor and creditor are free to agree to a particular allocation at the time *332 of payment or later, and free to reallocate payments after a particular allocation has been made.
EE. The right of the debtor and creditor to make a particular allocation or reallocation is not affected by third parties, who generally have no standing to protest.
FF. Under New York law, the right of the debtor and creditor to specify an allocation does not cease when litigation is commenced; rather, an allocation may be made at any time until a court has ordered one.
GG. Quite apart from the rule of law that an insured must be made whole before an insurer may share in subrogation, and even if the agreements of the parties on allocation were not controlling, the plaintiffs are still at liberty to allocate their recoveries to the period of the London Policy, because the London Insurers have settled and been released. As between the London Insurers (who may no longer be pursued as an avenue of recovery and) who had a defense that their policy was void ab initio, on the one hand, and Affiliated, which makes no such assertion as to its policy on the other hand, the London Policy is least secure.
HH. Affiliated seeks to take advantage of certain Banks' internal bookkeeping entries which caused a portion of Andina's obligations, or interest accruing thereon, to be removed as an asset from the Banks' books. The practice of writing off or writing down a debt has no bearing, however, on a bank's right to collect those amounts. Moreover, the contractual agreements of the parties not only permitted, but required, the application of recoveries to interest.
II. The Banks properly applied certain recoveries to interest, with the surplus, if any, to the principal on a pro tanto basis.
JJ. Ruben Echeverri's dishonesty in defrauding the Banks cannot be imputed to Andina so as to bar recovery under the Affiliated Policy.
KK. The Banks have proved that from January 13, 1986 through March 21, 1986, the latter being the earliest date the defendant's policy could have been cancelled under the terms thereof, as to the Banks, they advanced and paid a total of $44,174,000 to Gonchecol against fraudulent truck bills of lading covering coffee that did not exist, which were presented to the Banks for payment under letters of credit which the Banks had issued. None of the plaintiffs actually knew of the nonexistence of the coffee when the relevant letters of credit were drawn upon and paid.
LL. The Bankers' Endorsements' "non-impairment" and "no dishonest acts" clauses do not contradict one another: 1) the "non-impairment" clause expressly addresses the interest of each Bank and provides that each of the Bank's interest shall not be impaired or invalidated by any act or neglect or breach of warranty or condition by Andina; and 2) the "no dishonest acts" clause refers to Andina's rights under the policy in light of the Bankers' Endorsements, and makes it clear that the Endorsement does not extend Andina's coverage under the policy to cover additional risks. However, even if the "non-impairment" and "no dishonest acts" clauses were in conflict with each other, the conflict would be resolved against Affiliated, the drafter of the policy, and the former clause (i.e., the "non-impairment" clause) would supersede the latter (i.e., the "no dishonest acts" clause).
MM. The plaintiffs herein are entitled to recover judgment in their favor and against the defendant with pre-judgment interest as aforesaid to be added by the Clerk to the following principal awards:
Plaintiff Amount
Chemical Bank $14,860,000
Banque Paribas 14,392,500
American Express Bank Ltd 7,049,500
NatWest Bank N.A. 5,762,000
Rabobank Nederland 1,620,000
European American Bank 490,000
Andina Coffee, Inc. 2,975,000
Counsel should submit a proposed calculation to the Clerk of the Interest allowed.
The foregoing Opinion and Findings together with the Additional Specific Findings and Conclusions shall constitute the Findings *333 of Fact and Conclusions of Law required by Fed.R.Civ.P. 52(a).
SO ORDERED.
NOTES
[1] The coffee importer is Andina Coffee, Inc. and its subsidiary, Andina Trading Corp. (collectively "Andina").
[2] The plaintiffs are: Chemical Bank (now known as The Chase Manhattan Bank) ("Chemical"); Banque Paribas ("Paribas"); American Express Bank Ltd. (formerly known as American Express International Banking Corporation) ("American Express Bank" or "Amex"); NatWest Bank N.A. (now known as Fleet Bank, N.A.) ("NatWest"); Cooperative Centrale Raffeisenboerenleenbank B.A. ("Rabobank"); European American Bank ("EAB") (collectively the "Banks"); and the plaintiff Andina.
[3] See Ocampo, Plaintiffs' Deposition Designations, at 1235; see also Sahyoun, Defendant's Deposition Designations, at 130 (referring to sales to Europe by Andina).
[4] Tr. at 21 (Gleason testimony); Pls.'s Ex. CH 39.
[5] Pls.'s Ex. 43 at 305275.
[6] Pls.'s Ex. 41 at 703029.
[7] Pls.'s Ex. 43 at 305278.
[8] Canal, Plaintiffs' Deposition Designations, at 16.
[9] Tr. at 1012 (Kessler testimony); Echeverri deposition, at 602 (stating that due to tax matters and upon the recommendation or advise of Kessler and Canal, the Echeverris decreased their shares to own less than fifty percent of the Panamanian companies).
[10] Tr. at 1007 (Kessler testimony).
[11] Tr. at 295 (Nead testimony).
[12] Canal, Plaintiffs' Deposition Designations, at 16-17.
[13] Tr. at 1006 (Kessler testimony).
[14] See, e.g., Pls.'s Ex. 43 at Z112061 (describing the relationship between Chemical Bank and Andina as "increasingly close and open"); Pls.'s Ex. 49-8 at C005393-94, C005398 (describing officers' impressions at Paribas, NatWest, and Chemical Bank that their respective banks held Andina's senior management in high regard, and concluding that American Express likewise held Andina's senior management in high regard).
[15] Pls.'s Ex. 43 at 305278.
[16] Tr. at 1015-16 (Kessler testimony) (noting that these officers did not engage in Andina's day-to-day operations but rather provided consulting and advisory services in Colombia regarding the coffee market).
[17] Kessler testified that the principals of the Colombian exporters never constituted a majority of Andina's board of directors. Tr. at 1012-13.
[18] The typical transaction underlying the commercial relationship between the Banks, Andina, and Gonchecol was as follows. Gonchecol would contract for a sale of coffee with a United States roaster. Gonchecol would then request that Andina arrange for a documentary letter of credit to be opened in its favor. The letter of credit was payable on presentation of inland documents consigned to one of the Banks. Once the Bank opened the letter of credit, Gonchecol would register the sale of coffee with the Central Bank of Colombia and the National Federation of Coffee Growers of Colombia (the "Federation"). The letter of credit evidenced the importation of dollars and served as a prerequisite for a license to export. Gonchecol would then purchase the coffee, which would be transported to one of its mills for processing. The Federation would inspect the coffee and, if approved, issue a document called the "Revision," which specified the quantity of coffee and assigned a lot number. Gonchecol would then arrange for the coffee to be shipped from the mill to the port. The trucker would issue a truck bill of lading, which would in turn be presented to the advising bank, and the letter of credit would be drawn upon. Andina would then incur a loan chargeable against its line of credit with the Bank, and would begin charging interest to Gonchecol. The trucker would transport the coffee from the interior to the port for shipment, usually in convoys and with military escort. Once at the port, the Federation would inspect the coffee again and the coffee would be consigned to the port forwarder for shipment to the United States. The Bank would hold the interior documents as collateral for the loan (usually with a maximum tenor of between 45 and 60 days) until receipt of the ocean bills of lading. Upon issuance of the ocean bills of lading, Gonchecol would courier the bills of lading to Andina in New York, Andina would present the bills to the Bank for endorsement, and the Bank would release the document to Andina on trust receipt (usually for a maximum of 60 days). Andina would then arrange for the coffee to clear customs, and would present the coffee to its customer. Once the roaster took possession of the coffee and made payment, Andina would repay its corresponding portion of the loan. Pls.'s Ex. Ch 43 at 305276; see also Pls.'s Ex. Ch. 4 Exhibit A.
The mechanics of the letter of credit transaction were as follows. Upon request from Gonchecol, Andina would contact the Bank's account officer to apply for a letter of credit. The account officer would check Andina's line of credit. If adequate, Andina would submit a letter of credit application to the Bank's letter of credit department. Upon receipt of such applications, the letter of credit department would examine the application, for information such as the corresponding or advising bank and relevant dates. Once the letter of credit department completed its review of the application, it would obtain credit approval from the account officer. The letter of credit would then be telexed to the advising bank in Colombia. Tr. at 560-61 (Blanc testimony).
The payment of letters of credit on behalf of Andina required the advising Colombian banks to forward the draw documents to the letter of credit department of the financing Bank. The letters of credit called for draw documents consisting of a railroad or truck bill of lading, a commercial invoice, and a letter to the port forwarder requesting the preparation of an ocean bill of lading to the order of the financing bank. The letter of credit department would inspect the draw documents for compliance with the letter of credit. The department would prepare a document called a turn-down that listed any discrepancies noted, and if any were noted the Bank would contact Andina and inquire whether Andina waived the discrepancies. Upon Andina's waiver, the Bank would accept the documents and make payment to the Colombian bank. Tr. at 562-63 (Blanc testimony).
[19] Tr. at 1016 (Kessler's testimony).
[20] Tr. at 1017 (Kessler testimony); Canal, Affiliated's Supplemental and Counter Deposition Designations, at 571.
[21] Bazin, Affiliated's Supplemental and Counter Deposition Designation, at 10.
[22] Tr. at 894 (Oster testimony); tr. at 1019 (Kessler testimony).
[23] Canal, Plaintiffs' Deposition Designations, at 950.
[24] Canal, Plaintiffs' Deposition Designations, at 1375 (stating that the Gonche Group had been exporting amounts of coffee that corresponded to the credit advanced and that Andina was making a good profit in 1986 prior to the discovery of the fraud).
[25] Pls.'s Ex. AND 163-2 at 5; Pls.'s Ex. AND 163-23 at 6 (Andina's board minutes of September 23, 1986) (referring to Kessler's efforts to negotiate lines of credit with additional banks).
[26] Affiliated Policy's Clause 37(D) provided that:
This policy covers loss or damage occasioned through the acceptance by the Assured and/or their agents or shippers of fraudulent Bills of Lading and/or shipping receipts and/or messenger receipts.
[27] Each of the Banker's Endorsements provided the following:
This insurance, as to the interest of the Bank, shall not be impaired nor invalidated by any act or neglect of the named Assured nor by failure to comply with any warranty or condition over which the Bank has no control; and this policy shall not be cancelled nor materially changed as to the interest of the Bank unless 10 days' (in case of war risks coverage only, 48 hours') prior written notice of such change or cancellation shall have been given to the Bank. This agreement shall not extend the said policy to cover any additional risks, it being especially agreed that the policy does not insure against conversion, misappropriation or other dishonest acts committed by or on behalf of the named Assured.
[28] Tr. at 1489 (Pemmerl testimony).
[29] Tr. at 1499 (Pemmerl testimony).
[30] Tr. at 1500 (Pemmerl testimony).
[31] Tr. at 1501 (Pemmerl testimony).
[32] Tr. at 1509-10 (Pemmerl testimony); Jensen, Defendant's Deposition Designation, at 376.
[33] Echeverri, at 211-22 (deposition testimony).
[34] Pls.'s Ex. Echv 60 at 1 (Echeverri post-arrest statement dated November 16, 1995); Pls.'s Ex. Echv 58 ¶ 14 (Echeverri post-arrest statement dated October 26, 1995); Pls.'s Ex. Echv 59 ¶¶ 3-4 (Echeverri post-arrest statement dated November 17, 1995).
[35] Canal, Affiliated's Supplemental and Counter Deposition Designations, at 130.
[36] Tr. at 1019 (Kessler testimony).
[37] Pls.'s Ex. AND 163-2 (minutes of Andina's board of directors meeting held on May 19, 1986); Pls.'s Ex. AND 163-3; tr. at 1022 (Kessler testimony).
[38] Tr. at 1023, 1307 (Kessler testimony).
[39] Canal, Affiliated's Supplemental and Counter Deposition Designations, at 946-47.
[40] Tr. at 1024 (Kessler testimony).
[41] Tr. at 15 (Gleason testimony); Tr. at 164 (Nead testimony).
[42] Andina's management held a series of meetings in July with the financing Banks.
[43] Tr. at 15 (Gleason testimony).
[44] Tr. at 1023 (Kessler testimony).
[45] Tr. at 167 (Nead testimony).
[46] Tr. at 1026 (Kessler testimony).
[47] Tr. at 170 (Nead testimony).
[48] Tr. at 170-71 (Nead testified that when he asked Ruben Echeverri how the coffee could be missing Ruben stated "that because [Ruben] was in a liquidity crisis and needed the money, that he drew against bills of lading with ... false documents"). Nead's testimony corroborates Garcia's account of Ruben's explanation for the causes of the crisis immediately after the discovery of the fraud. See Garcia, Plaintiffs' Deposition Designations, at 89.
[49] Tr. at 171 (Nead testimony).
[50] Tr. at 177 (Nead testimony).
[51] Tr. at 178 (Nead testimony).
[52] Tr. at 179 (Nead testimony).
[53] Tr. at 180 (Nead testimony).
[54] Significantly, Affiliated at one point in 1991 argued this very point persuasively. In a memorandum of law in support of its motion for summary judgment, Affiliated asserted:
The fact that neither Andina nor the financing Banks perceived any risk of fraud on the part of Gonchecol is confirmed by the commercial context of the commodities financing in this case. Andina had the same ownership as the Gonche Group. The Banks knew that Andina and the Gonches were inter-related. The Banks also knew of Andina's role as commission and financing agent for the Colombian exporters, as well as its purpose in minimizing taxable income for the principals. Finally, the Banks kept an abundance of information on file about the various business ventures of Andina's principals and relied upon their wealth and reputation in extending credit.
Andina trusted its principal shareholders completely and never contemplated being defrauded by them. Likewise, the Banks trusted the exporters and relied on the relationship between the exporters and Andina in financing Andina. The Banks also trusted Andina because they had excellent relationships with that company.
As importer, Andina knew that the only risk of non-existent goods must originate with the exporter. Completely trusting the exporters, its related principals, Andina simply did not believe there was a risk of non-existent goods in its precise factual situation. No reasonable business person would expect an importer in Andina's position to insure against the fraud of its "principals."
Likewise, the Banks would have viewed the risk of non-existent goods in other words, of the exporter's fraud as itself nonexistent or highly remote. First, as demonstrated above, the Banks knew of the relationship between the exporters and Andina. The reputation and financial banking of the Gonche Group was used as justification for the Banks to extend credit to Andina and was seen as a mitigating factor to risk. It was well-known that "[t]he Echeverri Group would never let Andina suffer any type of financial difficulty." For example, if a financed shipment did not reach port for any reason, the principals would provide coffee to fulfill their obligation. The Banks did not view fraud on the part of the exporter as a risk of financing, as is evident from their failure to identify this risk in their comprehensive credit analyses. The one Bank which even identified the risk deemed it "unlikely." Thus, the close relationship between the exporters and Andina relieved the Banks, as it would any reasonable commodities financier, of concern about fraud on the part of the exporter.
Second, the Banks trusted Andina because they had excellent relationships with that company. The accounting documents supplied to the Banks by Andina to demonstrate its stability and net worth provided the Banks with confidence in the security of transactions with Andina.
Tr. at 2318-20 (citing Affiliated's Mem. Supp. Summ. J., May 3, 1991 at 59-61.) The memorandum concluded that "[t]he commercial reality in this case is that reasonable business persons in the positions of either the importer or the financing banks would not perceive any risk of fraud on the part of the exporter." Id. at 61.
[55] For example, American Express Bank like many of the other Banks experienced a sudden onset of slow notes and loans past due from Andina. On July 10, 1986, at the time of Andina's 60-day request for extension of credit, 70 percent of Andina's outstanding loans had been outstanding for less than 150 days. Pls.'s Ex. 52 at 0004308. In addition, up to that point, Andina had repaid 15 letters of credit making payments totalling $12,750,700 in 1986. Pls.'s Ex. 15-b (showing that Andina repaid the 15 letters of credit in 1986 as follows: four in January; two in January and February; four in February; two in March; one in April; one in April and May; and one in June and July). These letters of credit had been opened between June 27, 1985 and February 26, 1986; the average length of time between the opening of the letter of credit and Andina's repayment was 4.6 months or approximately 138 days. Pls.'s Ex. 15-b. The maximum tenor of the financing cycle was 150 days at the time of the discovery of the fraud. Tr. at 218 (Nead testimony). American Express Bank eliminated a sublimit of $5 million on inland financing in 1984; thereafter, American Express Bank did not monitor the intervals within the financing cycle. Ex. 49-2; tr. at 879 (Oster testimony).
[56] Tr. at 293 (Nead testimony).
[57] Pls.'s Ex. 49-6 at 005443; see also Pls.'s Ex. CH 41 at 703029; Pls.'s Ex. CH 42-a.
[58] Lead counsel emphasized repeatedly during his summation that Affiliated had no witnesses, tr. at 2357, 2360, and that as a last resort Affiliated "investigated" this claim by going to Colombia. Tr. at 2361 (stating "[s]o the only place and the only way that this insurance company could possibly investigate this claim was to go to Colombia ... [and] we did because we had no choice").
[59] Thompson, Affiliated's Supplemental and Counter Deposition Designations, at 148.
[60] Thompson, Affiliated's Supplemental and Counter Deposition Designations, at 148.
[61] Thompson, Affiliated's Supplemental and Counter Deposition Designations, at 164.
[62] Thompson, Affiliated's Supplemental and Counter Deposition Designations, at 164 (testifying that "it was made clear to Mr. Echeverri that his statement would be used for two purposes[:][o]ne was in this particular civil action and the other was in discussions ... with law enforcement to obtain immunity").
[63] Ruben Echeverri's younger brother, Luis Echeverri, faced immigration and tax problems in the United States.
[64] Echeverri deposition, at 519.
[65] Echeverri deposition, at 530-32.
[66] Echeverri deposition, at 531-32.
[67] The Manhattan D.A.'s office terminated the criminal investigation of the Andina matter in June, 1993.
[68] Echeverri deposition, at 510-13.
[69] Echeverri deposition, at 432-35.
[70] Ch. Ex. "Echeverri Statements" at 1000053 (tab 68).
[71] Echeverri deposition, at 509.
[72] Echeverri deposition, at 510-13.
[73] Affiliated's Summary of Relevant Deposition Testimony of Ruben Echeverri Taken November 1996.
[74] See Echeverri, Plaintiffs' Deposition Designations, at 271 (stating that the Banks had no reason to know Gonchecol diverted the proceeds from the letters of credit to other business ventures), 512 (stating that "at any moment I did not know that [the banks] did have knowledge of [the fraud]"); 518 (stating that at the meeting in Panama City on or about June 1992, Ruben told Sachs and his colleagues that he had no knowledge that the banks knew the truck bills of lading were false); 519 (stating that Ruben told Sachs and his colleagues that he had never been able to find any information to implicate the Banks).
[75] Pls.'s Ex. Echv 62 at 4 (summarizing meeting with Ruben Echeverri, Chemical Bank's counsel, and representatives of the United States Attorneys' Office held on November 2, 1994).
[76] Andina utilized a computer system called the Harris computer to track its importation cycle, but many of its management, including Kessler, found it ineffective and cumbersome.
[77] Tr. at 1693 (Rudnick testimony).
[78] Chemical Bank and Andina filed their amended proofs of loss on March 3, 1989 and November 4, 1986, respectively.
|
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-266-CV
APPELLANTS
DOMINIC A. DECRESCENTIS, JR.
AND CYNTHIA E. DECRESCENTIS
V.
METRO BASEMENTS AND WATERPROOFING APPELLEE
----------
FROM THE 16TH
DISTRICT COURT OF DENTON COUNTY
----------
MEMORANDUM
OPINION
(footnote: 1)
AND JUDGMENT
----------
On October 29, 2004, we notified appellants that their brief had not been filed as required by rule
38.6(a).
See
T
EX.
R. A
PP.
P. 38.6(a). We stated we would dismiss the appeal for want of prosecution unless appellants or any party desiring to continue this appeal filed with the court within ten days a response showing grounds for continuing the appeal. We have not received any response.
Because appellants' brief has not been filed, we dismiss the appeal for want of prosecution.
See
T
EX
. R. A
PP
. P. 38.8(a)(1), 42.3(b).
Appellants shall pay all costs of this
appeal, for which let execution issue.
PER CURIAM
PANEL D: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DELIVERED: December 2, 2004
FOOTNOTES
1:See
Tex. R. App. P. 47.4.
|
229 Ga. 186 (1972)
190 S.E.2d 52
BROWN
v.
CALDWELL.
27095.
Supreme Court of Georgia.
Submitted March 13, 1972.
Decided May 19, 1972.
Franklin D. Brown, pro se.
Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, William F. Bartee, Jr., Assistant Attorneys General, for appellee.
HAWES, Justice.
The appeal here is from the order and judgment of the Superior Court of Tattnall County remanding the appellant to the custody of the warden of the State prison after a hearing on his application for a writ of habeas corpus.
1. Appellant makes six contentions before this court. Four of those contentions relate to his arrest without a warrant: his illegal detention for several days before his arraignment; his interrogation by the police without advice as to his constitutional rights to remain silent and to have counsel present during the interrogation; and, to the unconstitutional composition of the grand and petit jury panels. A valid plea of guilty waives all defenses known and unknown. Snell v. Smith, 228 Ga. 249, 250 (184 SE2d 645). With respect to contentions like those here sought to be raised by the appellant, this rule is based upon the premise that such things as the arrest without a warrant, the illegal interrogation and the illegal composition of the jury panels bear no causal relation to the prisoner's present incarceration. This is especially true where it appears, as here, the petitioner was represented by counsel (in this case retained counsel), and where the evidence authorizes the finding that his plea was freely and voluntarily and knowingly entered. There is a presumption that, having entered the guilty plea while represented by counsel, the accused did so upon competent advice and after full advice as to his rights. *187 Fowler v. Grimes, 198 Ga. 84, 88 (31 SE2d 174). There is no merit in these four contentions.
2. Appellant contends that he was denied effective assistance of counsel in that retained counsel did not confer with him or investigate his case. However, the evidence authorized a finding that a firm of attorneys was employed by the appellant's mother and brother some ten days or two weeks prior to the entry of his guilty plea; that the attorneys so retained had conferred with the solicitor general and had investigated the case to the extent that they were convinced that it was the best strategy for the accused to plead guilty to the charge of murder, and that they advised appellant's mother and brother that if he would plead guilty the solicitor would agree to the imposition of a life sentence. A finding in accordance with appellant's contention that he was misled as to the nature of the plea he was entering, thinking that he was pleading guilty to the lesser offense of manslaughter, was not required. The evidence shows that both appellant and his attorney signed the plea of "guilty" on the back of the indictment charging him with the offense of "murder." Appellant did not contend that he was illiterate and could not read. He represented himself in the trial of this habeas corpus case and the record made upon the trial indicates that he is certainly not a person of low intelligence. Under all the circumstances, the habeas corpus court was authorized to find against his contention that his plea was not freely, voluntarily and knowingly entered.
3. Finally, appellant contends that he should be released because the trial judge failed to ascertain that his plea was freely and voluntarily entered and that there was a factual basis for it. This contention is obviously based upon the holding of the Supreme Court of the United States in the case of Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). The plea in this case was entered in March of 1964. The ruling in the Boykin case will not be given retroactive application. Laidler v. *188 Smith, 227 Ga. 759 (2) (182 SE2d 891); Purvis v. Connell, 227 Ga. 764, 767 (182 SE2d 892).
4. The trial court did not err in denying the writ and in remanding the applicant to the custody of the respondent.
Judgment affirmed. All the Justices concur.
|
STATE OF MICHIGAN
COURT OF APPEALS
GRIER, COPELAND & WILLIAMS, P.C., UNPUBLISHED
June 21, 2016
Plaintiff-Appellee,
V No. 325656
Wayne Circuit Court
SHIRLEY T. SHERROD, M.D., P.C., and LC No. 10-014567-CK
SHIRLEY T. SHERROD, M.D.,
Defendants-Appellants.
Before: JANSEN, P.J., and O’CONNELL and RIORDAN, JJ.
PER CURIAM.
In this action for the collection of legal fees, defendants appeal by delayed leave granted1
the trial court order holding defendant Dr. Shirley T. Sherrod in civil contempt of court. Because
Dr. Sherrod was not provided adequate notice, we reverse the trial court’s order and remand for
any necessary proceedings consistent with this opinion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In August 2009, defendants hired plaintiff, a law firm, to represent them in a lawsuit
initiated by Dr. Michael Sherman. Plaintiff and defendants signed a retainer agreement, and
plaintiff subsequently represented defendants in accordance with the contract for legal services.
However, defendants failed to pay the legal fees billed by plaintiff. Plaintiff withdrew as counsel
and initiated the instant case in December 2010, alleging breach of contract and requesting entry
of a judgment against defendants for approximately $41,000 in unpaid legal fees. Ultimately, a
default judgment was entered against defendants in March 2011.
Subsequently, plaintiff sought payment of that judgment. Defendants, however, either
refused to pay or were unable to pay. Between July 2012 and January 2014, a variety of
proceedings occurred in this case,2 including the scheduling of multiple creditor’s examinations
1
Grier, Copeland & Williams PC v Shirley T. Sherrod, MD, PC, unpublished order of the Court
of Appeals, entered July 6, 2015 (Docket No. 325656).
2
The result of multiple motions filed during this time period is unclear from the record received
on appeal.
-1-
to determine the amount of liquid assets at Dr. Sherrod’s disposal. Dr. Sherrod was either
unresponsive during, or absent from, these examinations. Eventually, in January 2014, the trial
court entered a notice of a judgment lien, which indicated that the current balance of the
judgment was $51,768.45.
Shortly thereafter, plaintiff filed a motion requesting that the trial court enter an
emergency order issuing a bench warrant for Dr. Sherrod’s arrest. Plaintiff argued that Dr.
Sherrod had failed to follow the court’s orders, failed to appear for creditor’s examinations, and
willingly concealed assets from the trial court to avoid paying the default judgment. It also
alleged that Dr. Sherrod had been avoiding service and was impossible to find. Thus, plaintiff
requested permission to personally serve Dr. Sherrod with a notice of a creditor’s examination
while she was present in the Wayne Circuit Court for a proceeding related to the lawsuit against
Dr. Sherman.
On February 3, 2014, the trial court granted plaintiff’s motion, finding that Dr. Sherrod
deliberately evaded personal service and permitting plaintiff to personally serve Dr. Sherrod
while she was in court. The order indicated that the creditor’s examination would be held that
same day, beginning immediately following the conclusion of the trial in the Sherman case, and
stated that Dr. Sherrod would be held in contempt of court if she failed to attend.
At a hearing before the trial court later that day, plaintiff asserted that Dr. Sherrod had
disappeared without attending the creditor’s examination, even though she had been personally
served in court, as permitted by the trial court’s order. Michael Sugameli appeared on the record
on behalf of Dr. Sherrod and the corporation. Sugameli stated that he was the attorney for
defendants in the Sherman case and that he had no knowledge of the facts in this case. However,
the trial court deemed Sugameli to be defendants’ attorney in the instant collection action in light
of its belief that defendants’ former attorney had withdrawn and the fact that both cases involved
the same subject matter. Sugameli then asserted to the court that Dr. Sherrod had reported to the
creditor’s examination, but she fainted and had to be taken to the hospital. Plaintiff insinuated
that Dr. Sherrod feigned fainting in order to avoid questioning at the creditor’s exam and was
not, in fact, ill. Ultimately, the trial court stated on the record that Dr. Sherrod would not be held
in contempt because she actually had appeared for the creditor’s examination. However, the
court also held that the examination would be continued on Friday, February 7, 2014, and that
plaintiff was permitted to serve defendants notice of that exam through Sugameli.
On February 6, 2014, the trial court entered an order inconsistent with its holding on the
record, finding Dr. Sherrod in contempt of court due to her failure to comply with its February 3,
2014 order and stating that a bench warrant would be issued for her arrest. The order also stated
that Dr. Sherrod was required to appear for a creditor’s examination on February 7, 2014, and
that notice of that hearing could be served on Sugameli.
When Dr. Sherrod failed to appear for the examination scheduled for February 7, 2014,
the trial court entered an order once again finding Dr. Sherrod to be in contempt of court. In
pertinent part, the February 13, 2014 order stated that another bench warrant would be issued for
Dr. Sherrod’s arrest, that Dr. Sherrod could cure the civil contempt only by appearing before the
trial court and posting bond in the amount of $50,000, and that Sugameli must accept service on
behalf of defendants.
-2-
In April 2014, the trial court granted defendants’ motion to stay the instant action and
quash the bench warrant given the fact that Dr. Sherrod had filed for bankruptcy in the U.S.
District Court for the Northern District of Illinois. The court expressly canceled the bench
warrant, finding that it was required to do so under federal law after Dr. Sherrod filed for
bankruptcy.
The bankruptcy case was dismissed in June 2014. In response to that dismissal, plaintiff
filed a motion requesting that the trial court reissue the bench warrant, issue sanctions against
defendants, and require that Dr. Sherrod appear for a creditor’s exam. Plaintiff also raised a
series of other claims, including that Dr. Sherrod was concealing her assets. In particular,
plaintiff asked the court to increase the posted bond to $250,000 in light of Dr. Sherrod’s
ongoing scheme to repudiate the trial court’s authority and avoid payment of the judgment.
Plaintiff also alleged that defendants’ conduct warranted the imposition of $25,000 in sanctions
against defendants and payable to plaintiff. Finally, plaintiff moved the trial court to permit
service of the motion to defendants’ last known business and home addresses, due to Dr.
Sherrod’s continued avoidance of service.3
On July 11, 2014, plaintiff filed a proof of service of the aforementioned motion with the
trial court. The proof of service indicated that notice had been mailed to three addresses: 2631
South Indiana #1911, Chicago, IL 60616; 1672 Lone Pine Road, Bloomfield Hills, MI 48302;
and 27 Doris, Detroit, MI 48203.4
On July 18, 2014, the trial court held a hearing on plaintiff’s motion. Defendants had not
responded to the motion, and they were not present at the motion hearing. Plaintiff reiterated its
claims regarding Dr. Sherrod’s evasive conduct throughout this case, including her failure to
comply with the court’s orders that she appear for a creditor’s examination and her failure to pay
the default judgment. It also argued that Dr. Sherrod had feigned illnesses and fainting. The trial
court stated that it would grant plaintiff’s motion and asked if plaintiff was aware of where Dr.
Sherrod resided. Plaintiff indicated that notice had been served by mail to the three addresses
listed on the proof of service. The trial court responded, “Okay, good luck. You can submit the
order.” Notably, before the trial court entered its order, (1) there was no discussion of the nature
of Dr. Sherrod’s alleged illness at the hearing, (2) service was never provided to Sugameli, and
(3) the trial court never entered an order permitting plaintiff’s alternate service of notice
regarding the contempt hearing.
On July 21, 2014, consistent with its statements on the record, the trial court entered an
order holding Dr. Sherrod in civil contempt and ordering the issuance of a bench warrant for her
arrest. The trial court’s order stated that defendants could only purge the contempt by appearing
before the trial court, posting a $250,000 bond, and complying with the trial court’s order to
provide full and complete testimony at a creditor’s examination. The order included a penalty of
3
There was no mention of Sugameli or service to him or his firm.
4
There was no order on the record approving this form of service at the time the proof of service
was filed.
-3-
$75 for each day that Dr. Sherrod failed to appear and cure the contempt. Finally, the trial court
ordered that $25,000 in sanctions were payable to plaintiff within five days of the subject order.
II. STANDARD OF REVIEW
“We review a trial court’s issuance of a contempt order for an abuse of discretion and
the factual findings supporting the order for clear error.” In re Moroun, 295 Mich App 312, 335;
814 NW2d 319 (2012). “The abuse of discretion standard recognizes that there will be
circumstances where there is no single correct outcome and which require us to defer to the trial
court’s judgment; reversal is warranted only when the trial court’s decision is outside the range
of principled outcomes.” Porter v Porter, 285 Mich App 450, 455; 776 NW2d 377 (2009). We
review de novo questions of law concerning the civil contempt order and proceedings, id.,
including “[w]hether a person has been afforded due process[.]” In re Moroun, 295 Mich App at
331. Likewise, we review de novo the interpretation and application of statutes and court rules.
Id. at 336.
III. ANALYSIS
Trial courts have both “inherent independent authority” and statutory authority to hold a
person in contempt. In re Contempt of Robertson, 209 Mich App 433, 436; 531 NW2d 763
(1995); see also MCL 600.1701 et seq. In Michigan, the governing statute providing circuit
courts with authority to hold a party to an action in contempt is MCL 600.1701. In relevant part,
MCL 600.1701 provides:
The supreme court, circuit court, and all other courts of record, have
power to punish by fine or imprisonment, or both, persons guilty of any neglect or
violation of duty or misconduct in all of the following cases:
* * *
(g) Parties to actions, attorneys, counselors, and all other persons for
disobeying any lawful order, decree, or process of the court.
Different procedures apply to the punishment of contempt that occurs before the trial
court and contempt that occurs outside of the presence of the trial court. MCL 600.1711; In re
Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 712-713; 624 NW2d 443 (2000). “When
any contempt is committed in the immediate view and presence of the court, the court may
punish it summarily by fine, or imprisonment, or both.” MCL 600.1711(1). However, MCL
600.1711(2) imposes a higher burden for establishing contempt outside the court’s view: “When
any contempt is committed other than in the immediate view and presence of the court, the court
may punish it by fine or imprisonment, or both, after proof of the facts charged has been made by
affidavit or other method and opportunity has been given to defend.” Likewise, when a party’s
disobedience of a trial court order occurred outside the court’s presence, the court must comply
with the procedures under MCR 3.606 in punishing that contempt. S Abraham & Sons, Inc v
Dep’t of Treasury, 260 Mich App 1, 24 n 11; 677 NW2d 31 (2003).
Consistent with the language of the trial court’s July 21, 2014 order, this Court previously
determined that the contempt proceedings in the matter before us are civil in nature. See Grier
-4-
Copeland & Williams, PC v Shirley T Sherrod, MD, PC, unpublished order of the Court of
Appeals, entered August 26, 2014 (Docket No. 323117) (dismissing defendants’ claim of appeal
for lack of jurisdiction, as an order finding a party in civil contempt is not a final order
appealable as of right).
In civil contempt proceedings, a trial court employs its contempt power to coerce
compliance with a present or future obligation, including compliance with a court
order, to reimburse the complainant for costs incurred as a result of contemptuous
behavior, or both. Civil contempt proceedings seek compliance through the
imposition of sanctions of indefinite duration, terminable upon the contemnor’s
compliance or inability to comply. [In re Moroun, 295 Mich App at 331
(quotation marks and citations omitted).]
“When exercising its civil contempt power, the court acts as the factfinder, determines
whether there was contempt under a preponderance of the evidence standard, and imposes
sanctions if this standard is met.” In re Contempt of Auto Club Ins Ass’n, 243 Mich App at 712.
During such proceedings, “the accused must be accorded rudimentary due process, i.e., notice
and an opportunity to present a defense, and the party seeking enforcement of the court’s order
bears the burden of proving by a preponderance of the evidence that the order was violated.”
Porter, 285 Mich App at 457. Notably, “[w]hen proceedings for contempt for disobeying any
order of the court are initiated, the notice or order shall be personally delivered to such party,
unless otherwise specially ordered by the court.” MCL 600.1968(4); see also MCR
2.107(B)(1)(b) (“When a contempt proceeding for disobeying a court order is initiated, the notice
or order must be personally delivered to the party[.]”); S Abraham & Sons, 260 Mich App at 24 n
11; In re Contempt of Steingold, 244 Mich App 153, 158; 624 NW2d 504 (2000). “The use of
‘shall’ in a statute generally ‘indicates a mandatory and imperative directive.’ ” Michigan Ed
Ass’n v Secretary of State, 489 Mich 194, 218; 801 NW2d 35 (2011) (citation omitted).
Here, defendants did not receive personal notice of the July 18, 2014 contempt hearing.
Instead, plaintiff mailed the notice to defendants’ three last known addresses. Although plaintiff
moved the trial court to permit alternate service, the trial court never granted that portion of
plaintiff’s motion. Further, the notice was mailed before the trial court even considered the
motion for alternate service. Thus, because plaintiff failed to provide personally delivered notice
to Dr. Sherrod prior to the contempt proceedings, proper notice was not provided. MCL
600.1968(4); MCR 2.107(B)(1)(b); In re Contempt of Steingold, 244 Mich App at 158.
On this record, as egregious as Dr. Sherrod’s actions may seem, we are constrained to
conclude that defendants were not provided with the “rudimentary due process” required for civil
contempt proceedings, as, at the very least, notice and an opportunity to defend are mandatory to
protect a party’s due process rights. Porter, 285 Mich App at 457. Thus, reversal is required.
See id.; see also MCL 600.1711(2).
Plaintiff argues that this procedural error was harmless and, therefore, reversal is not
required pursuant to MCR 2.613(A). We must disagree. There is no indication in the record that
defendants actually had any notice of the proceedings, even by mail. Further, the record shows
that defendants had a potentially viable defense to a finding of contempt: the claim that Dr.
Sherrod was unable to attend the February 3, 2014 creditor’s examination because she was ill.
-5-
Additionally, when Dr. Sherrod previously received an order to appear under a threat of
contempt, she presented herself as required under the order. Therefore, we conclude that it
would be “inconsistent with substantial justice” for this Court to affirm the trial court’s order
when Dr. Sherrod was not provided proper notice and afforded an opportunity to present her
defense that she was too ill participate in the hearings and examinations. See MCR 2.613(A).
Although we conclude that reversal is warranted solely on the basis of the lack of notice
in this case, we are troubled by other aspects of the contempt proceedings. Thus, we find it
necessary to remind the court of procedural requirements that are mandatory in civil contempt
proceedings in the event that such proceedings are initiated once again below. First, “[w]hen
adjudicating contempt proceedings without a jury, a court must make findings of fact, state its
conclusions of law, and direct entry of the appropriate judgment.” In re Contempt of Henry, 282
Mich App 656, 674; 765 NW2d 44 (2009); see also DeGeorge, 276 Mich App at 596 (“A court
that is adjudicating contempt proceedings without a jury must make findings of fact.”).
Additionally, we remind the trial court that contempt must be established by a preponderance of
the evidence. In re Contempt of Auto Club Ins Ass’n, 243 Mich App at 712. We are doubtful
that plaintiff’s bald assertions that Dr. Sherrod feigned illness are sufficient to fulfill that
standard without additional supporting evidence.
Finally, we remind the court that MCL 600.1715(1) provides that a fine imposed as
punishment for contempt may not be greater than $7,500. MCL 600.1721, however, permits the
imposition of compensatory damages if the party’s “alleged misconduct has caused an actual loss
or injury to any person.” It is likely in this case that plaintiff accrued some costs in addressing
the disobedience that gave rise to Dr. Sherrod’s alleged contempt. In the future, however, the
court should delineate the basis for all fines or monetary damages that it imposes, including the
factual basis of damages actually sustained, to ensure compliance with the applicable statutes.
The trial court’s “contempt power is awesome and must be used with the utmost restraint,”
meaning that the sanction imposed must be the least that is necessary to achieve its purpose. In
re Contempt of Dudzinski, 257 Mich App 96, 109; 667 NW2d 68 (2003) (quotation marks and
citations omitted).
IV. CONCLUSION
Reversed and remanded for further proceedings, if necessary. We do not retain
jurisdiction.
/s/ Kathleen Jansen
/s/ Peter D. O'Connell
/s/ Michael J. Riordan
-6-
|
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WILLIE WILSON, )
)
Appellant, )
)
v. ) Case No. 2D19-1891
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed November 13, 2019.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court
for Polk County; Larry Helms,
Judge.
Willie Wilson, pro se.
PER CURIAM.
Affirmed. See Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009); Brown
v. State, 827 So. 2d 1054 (Fla. 2d DCA 2002); Pleas v. State, 41 So. 3d 980 (Fla. 1st
DCA 2010); Lykins v. State, 894 So. 2d 302 (Fla. 3d DCA 2005); Thomas v. State, 778
So. 2d 429 (Fla. 5th DCA 2001); Bloodworth v. State, 504 So. 2d 495 (Fla. 1st DCA
1987).
VILLANTI, LaROSE, and BADALAMENTI, JJ., Concur.
|
108 N.H. 203 (1967)
H.J.H., INC.
v.
STATE TAX COMMISSION.
No. 5631.
Supreme Court of New Hampshire.
Argued June 7, 1967.
Decided June 30, 1967.
*204 Wiggin, Nourie, Sundeen, Nassikas & Pingree (Mr. Hedley G. Pingree orally), for the plaintiff.
George S. Pappagianis, Attorney General and R. Peter Shapiro, Assistant Attorney General (Mr. Shapiro orally), for the defendant.
KENISON, C. J.
A hearing was held by the State Tax Commission to determine whether plaintiff's failure to file an inventory for the taxable year beginning April 1, 1964, was sufficient reason for the Commission to refuse to consider the appeal. The parties have agreed as follows: "That the uncontradicted evidence presented at that hearing was that the Petitioner did not receive an inventory blank from the City of Manchester, although it is the custom of that City to provide such blanks to each taxpayer; that the principals of the corporation, namely, Henry Mack, Marielise Mack, Henry Opipari and John Mathias were not at that time and had never been residents of the State of New Hampshire; had never owned or operated a prior business within the State of New Hampshire; had never owned any real estate or other taxable property within the State of New Hampshire; that their states of domicile, namely Florida and New York, do not require such inventory and that they had no actual knowledge that such inventory was required in this State. The evidence further showed that such failure to file an inventory did not deceive or hinder the Assessors of the City of Manchester in that the inventory if it had been received and returned would have listed only `Motel, restaurant and land, Front Street, Manchester, New Hampshire', a fact known to the Assessors and no other taxable property."
Although the statutes require that a party appealing to the State Tax Commission for an abatement must file an inventory (RSA 74:7, 8; Laws 1965, 21:3, 4; RSA 76:16-a; Laws 1955, 162:2), it has been established by a long line of cases that a tax abatement appeal is not precluded where a party was prevented from filing the inventory by accident, mistake or misfortune and without fault on its part. Dewey v. Stratford, 40 N. H. 203; Trust and Guaranty Co. v. Portsmouth, 59 N. H. 33; Parsons v. Durham, 70 N. H. 44; Amoskeag Mfg. Co. v. Manchester, 70 N. H. 200, 202; Kerby v. Charlestown, 78 N. H. 301, 307; Bean & Co. v. Jaffrey, 80 N. H. 343. See Verney Corporation v. *205 Peterborough, 104 N. H. 368, where the failure to file a full and complete inventory was held not to preclude an appeal where there was no intent to mislead and the taxpayer acted in good faith. In Bartlett v. New Boston, 77 N. H. 476 a petition for abatement of taxes was denied but the plaintiff not only failed to file an inventory but "refused" to do so. The cases construing our tax abatement statutes over a long period of time do not encourage the slothful, are designed to penalize the contumacious but also indicate some concern for the taxpayer. The reminder "that the machinery of government would not work if it were not allowed a little play in its joints" (Bain Peanut Co. v. Pinson, 282 U. S. 499, 501) has relevance here.
During the argument of this case it appeared that there was some indication that the Tax Commission may have relied on a memorandum which contained errors of fact or facts which were contrary to those agreed upon in this proceeding. While this was done in absolute good faith, it should not prejudice the plaintiff's right to a hearing on the merits. As Judge Smith said almost a century ago: "Next to securing a fair and impartial trial for parties, it is important that they should feel that they have had such a trial." Beattie v. Hilliard, 55 N. H. 428, 435-436. Upon the agreed facts submitted by the parties we reverse the ruling of the State Tax Commission that it "is without jurisdiction to consider the application for abatement of taxes." Plaintiff's application for abatement of taxes is remanded to the Commission to "make such order thereon as justice requires." RSA 76:16-a; Laws 1965, 29:1.
Remanded.
All concurred.
|
487 F.2d 1404
U. S.v.Raymond
73-1157, 73-1158, 73-1159 and 73-1160
UNITED STATES COURT OF APPEALS Seventh Circuit
11/12/73
1
N.D.Ind.
AFFIRMED
|
449 F.Supp. 538 (1978)
MAJOR'S FURNITURE MART, INC.
v.
CASTLE CREDIT CORPORATION, INC., et al.
Civ. A. No. 76-1625.
United States District Court, E. D. Pennsylvania.
May 1, 1978.
*539 *540 Robert W. Maris, Philadelphia, Pa., for plaintiff.
James J. Boyle, Philadelphia, Pa., for defendants.
OPINION
FOGEL, District Judge.
I. PROCEDURAL AND FACTUAL HISTORY OF THE CASE:
Plaintiff, Major's Furniture Mart (Major's), was in the business of making retail sales of furniture to consumers, and defendant, Castle Credit Corporation (Castle), is in the business of financing furniture dealers. Major's and Castle entered into a Sale of Receivables Agreement (Agreement), dated June 18, 1973, by which Major's agreed to transfer its accounts to Castle, and Castle agreed to provide funds to Major's at a given ratio to the accounts it accepted. Castle accepted accounts offered by Major's from July, 1973 until June, 1975. In March, 1975, and again in September, 1975, Castle notified Major's that its failure to repurchase delinquent accounts constituted a default under the Agreement.
Major's, a New Jersey corporation, (both with respect to incorporation and situs of its principal place of business), then brought this diversity action pursuant to 28 U.S.C. § 1332(a) against Castle, (a Pennsylvania corporation as to incorporation and location of its principal place of business); it alleged damages in excess of $10,000 based upon the following four counts: 1) payment to it of sums held in the reserve account established by the agreement; 2) reimbursement of overpayments made to satisfy a $30,000 promissory note; 3) damages for the destruction of its business by misuse of confidential information; and 4) equitable relief and damages for violations of the anti-trust laws. Castle filed counterclaims with respect to the first two counts, and alleged the following: 1) failure by Major's to repurchase accounts as required by the acceleration clause in the agreement, and 2) default on the promissory note. Pursuant to our Order dated March 19, 1977,[1] Major's filed an amended complaint which revised its theory of recovery under Count I, and dropped Count IV. The parties then filed cross-motions for summary judgment with respect to Count I; Major's filed a motion for summary judgment with respect to the counterclaim to Count I; Castle moved for summary judgment as to Count II and its *541 counterclaim under that same count. On June 13, 1977, we granted Major's motion for summary judgment, with an opinion to follow, and denied all of Castle's motions. Trial was held on Counts II and III, and the jury decided in favor of Castle. On July 25, 1977, we ordered that the parties submit briefs, proposed findings of fact and conclusions of law, and reply briefs, and scheduled oral argument,[2] to resolve the accounting issue left open by our grant of summary judgment in part on Count I of the complaint. Our reasons for the grant of plaintiff's motions for summary judgment and determination of the accounting issue follow.
II. SUMMARY JUDGMENT:
The question presented for decision on summary judgment was whether accounts receivable held by Majors were sold to Castle or transferred as collateral security. Apparently, under the facts of this case, the matter is one of first impression. The significance of this question goes to the issue of Major's right to any surplus collected by Castle on the accounts, over and above the amount paid or loaned to Major's in exchange for the accounts.
Article 9 of the Uniform Commercial Code, (U.C.C.), applies "to any sale of accounts, contract rights or chattel paper," with exceptions not applicable to this type of transaction. 12A P.S. § 9-102(1)(b). Section 9-502(2) makes a distinction between transactions which "secure an indebtedness," and "sales," in the allocation of debtor's rights and creditor's obligations after a default. That section reads as follows:
A secured party [Castle] who by agreement is entitled to charge back uncollected collateral or otherwise to full or limited recourse against the debtor [Major's] who undertakes to collect from the account debtors or obligors must proceed in a commercially reasonable manner and may deduct his reasonable expenses of realization from the collections. If the security agreement secures an indebtedness, the secured party must account to the debtor for any surplus, and unless otherwise agreed, the debtor is liable for any deficiency. But, if the underlying transaction was a sale of accounts, contract rights or chattel paper, the debtor is entitled to any surplus or is liable for any deficiency only if the security agreement so provides. (Emphasis added.) § 9-502(2).
Thus, if Major's accounts receivable were transferred to Castle as collateral to secure an indebtedness, then Castle must first account for and then, under Section 9-504(2), turn over any surplus to Major's. If, however, the accounts were sold to Castle, then Major's is only entitled to the surplus if the security agreement so provides, which, in fact, it does not. A debtor's right to a surplus under sections 9-502(2) and 9-504(2), in the case of a transfer for security, (as opposed to a sale), cannot be waived by Agreement. Section 9-501(3)(a).
Castle makes three arguments in support of its contentions that the transactions pursuant to the agreement were sales of accounts:
1) On its face, the contract unambiguously uses terms of "sale" and "purchase", and the meaning of such a clear statement of the parties' intent can only be determined from the four corners of the document;
2) the provisions in the Agreement for full recourse against Major's does not determine whether transactions were sales or transfers of collateral; and
3) the conduct of the parties, including the allegations in the original complaint, establish that the transactions were in fact sales.
We do not find these contentions to be persuasive.
1) Language of the Agreement:
The rule of contract interpretation cited by defendant has never been applied *542 to this type of transaction. In a pre-U.C.C. case which analyzed the precise question, the issue was whether, in the words of the Pennsylvania Supreme Court,
the transactions which included the assignment of the contracts to the finance company, the advancement of a percentage of the amounts due on them, the written guaranties of payment by Integrity, and the matters incidental to them, amounted to sales of the contracts for consideration or merely the advancement of loans to Integrity by the defendant, finance company, on the security of the assignments;
the court noted at the outset that
[i]n cases of this kind it is more important what parties actually do than what they say they do. . . . Transactions similar in character to these have frequently been held in fact loans, though apt words importing sales were used by the parties. Kelter v. American Banker's Finance Co., 306 Pa. 483, 160 A. 127, 129, 130 (1932).
Both the comments which follow Section 9-502 and the explicit policies incorporated in Section 9-501(3)(a) demonstrate that Pennsylvania Courts today would adopt the rationale of Kelter.[3]
Comment 2 to Section 9-502 reveals legislative intent to distinguish between two types of accounts receivable financing, which are functionally similar for most commercial purposes, when a default does occur. See G. Gilmore, Security Interests In Personal Property, §§ 8.1-8.8, 44.4. To the extent that the assignee "retains a right of full or limited recourse or charge-back for uncollectible accounts," both debtor and creditors have a right to insist the assignee act so as not "to increase a possible deficiency claim or to reduce a possible surplus;" to the extent the assignee assumes the credit risk fully, "neither the debtor nor his creditors have any legitimate concern with the disposition which the assignee makes of the accounts." § 9-502, Comm. 2.
A traditional "factoring" arrangement in which the parties use the terms "transfer of security interest" would clearly be treated as a sale, if the entire credit risk had passed to the assignee. Contractual language which characterizes the original transaction as either a "sale" or "transfer" does not address the functional distinction that is crucial in the default situation: whether the assignee retained a sufficient interest in the collection of the accounts to bring the non-waivable protections of § 9-502(2) into effect. See § 9-502, Comm. 3.
Finally, we must examine the non-waiver provisions of section 9-501(3)(a). If "magic words" were determinative of the debtor's rights, the non-waiver policy could be circumvented by the mere use of the terms "sale" or "purchase" in an accounts receivable financing agreement; the financer could always avoid accountability for surpluses by the use of sales language. Thus, we must look to the substance of the transaction, and not be sidetracked by passing clauses, no matter how clear and artistically drawn.
2) Full Recourse Provision:
We also reject Major's contention that a per se rule applies in this case because of the full recourse provision. Major's has argued that the existence of a provision for full recourse automatically transforms any sale of accounts into a transfer of a security interest for the purposes of Section 9-502(a). See Gilmore, supra, § 44.4 at 1230. This reading of the Code finds support in the above-cited portion of Comment 2, but ignores the decisive effect of Comment 4: "the subsection recognizes that there may be a true sale of accounts . . . although recourse exists. The determination whether a particular assignment constitutes a sale or a transfer for security is left to the courts." (Emphasis added.) Although we do not find *543 Major's interpretation of this comment, which relies on a distinction between recourse based on warranties of quality and recourse based on guarantees of collectibility, to be supported by the statute, comments or treatises, we read the comments to Section 9-502, in their entirety, to state that the allocation of credit risks is indicative, but not determinative, of the nature of the transaction.
In the instant case the allocation of risks heavily favors Major's claim to be considered as an assignor with an interest in the collectibility of its accounts. It appears that Castle required Major's to retain all conceivable risks of uncollectibility of these accounts. It required warranties that retail account debtors e. g., Major's customers meet the criteria set forth by Castle, that Major's perform the credit check to verify that these criteria were satisfied, and that Major's warrant that the accounts were fully enforceable legally and were "fully and timely collectible." It also imposed an obligation to indemnify Castle out of a reserve account for losses resulting from a customer's failure to pay, or for any breach of warranty, and an obligation to repurchase any account after the customer was in default for more than 60 days. Castle only assumed the risk that the assignor itself would be unable to fulfill its obligations. Guaranties of quality alone, or even guarantees of collectibility alone, might be consistent with a true sale, but Castle attempted to shift all risks to Major's, and incur none of the risks or obligations of ownership. It strains credulity to believe that this is the type of situation, referred to in Comment 4, in which "there may be a true sale of accounts . . .. although recourse exists." When we turn to the conduct of the parties to seek support for this contention, we find instead that Castle, in fact, treated these transactions as a transfer of a security interest.
3) Conduct of the Parties:
As Castle has noted, the course of performance of an agreement is a useful indication of the parties' intent. See § 2-208. Of the actions cited by the parties, a letter from Irving Canter, President of Castle Credit, dated August 31, 1973, seems to be most telling. This letter, in effect, announces the imposition of a floating interest rate on loans under a line of credit of $80,000 per month, based upon the fluctuating prime interest rate. The key portion of the letter states:
Accordingly, your volume for the month of September cannot exceed $80,000. Any business above that amount will have to be paid for in October. I think you'll agree that your quota is quite liberal. The surcharge for the month of September will be 3% of the principal amount financed which is based upon a 9½% prime rate. On October 1, and for each month thereafter, the surcharge will be adjusted, based upon the prime rate in effect at that time as it relates to a 6½% base rate. . . .
This unilateral change in the terms of the Agreement makes it obvious that Castle treated the transaction as a line of credit to Major's i. e., a loan situation. Were this a true sale, as Castle now argues, it would not have been able to impose these new conditions by fiat. Such changes in a sales contract would have modified the price term of the agreement, which could only be done by a writing signed by all the parties. (Paragraph 16 of the Agreement.)
Castle does not cite an instance of any conduct by Major's that is inconsistent with the treatment of these transactions as a transfer of collateral. This is not surprising, given the functional similarity between a sale of accounts and a transfer of accounts as a security interest; indeed, prior to default, the characterization of the Agreement as one or the other would have little, if any, business significance.[4] Castle's argument, that Major's compliance with the terms of the Agreement demonstrates that it was intended to be a sale, is *544 simply not persuasive in these circumstances.
Castle's second contention, that Major's' counsel[5] characterized the transaction as a sale, also lacks merit. Counsel's letters, interrogatories, and/or the original complaint demonstrate no more than an erroneous legal judgment concerning the nature of the transaction. There is no magic in the use of the terms "sale" or "purchase; " counsel's use of these terms could have no greater effect than the language of the Agreement itself, nor can counsel's conduct be deemed a waiver in light of the non-waiver provisions of Section 9-501(3).
Accordingly, we held initially and now reiterate that the transactions between Castle and Major's pursuant to the Agreement "secured an indebtedness" within the meaning of Section 9-502(2); therefore, Castle must account to Major's for any surplus, as Major's must account to Castle for any deficiency.
4) Counterclaim to Count I
Castle's counterclaim seeks the face amounts of all the accounts as yet uncollected pursuant to Paragraph 13 of the Agreement, which requires acceleration of the full recourse clause upon default. Major's contends that this provision merely created a right which Castle could have sought to enforce in a judicial proceeding; it claims that Castle's exercise of its rights pursuant to § 9-502(1) and its commencement of collection triggered the provisions of § 9-502(2). Major's further contends that it no longer had an obligation to repurchase, once Castle accumulated a surplus and ceased to loan money.
Since we hold in Part III of this opinion that Castle has in fact accumulated a surplus, we need not decide the question of the election of remedies raised by Major's. It follows from our decision, with respect to Major's Count I claims that the repayment of Major's loan obligations extinguished Castle's security interest in the accounts receivable. Thus, the next inquiry goes to the nature of those obligations.
III. ACCOUNTING:
Our grant of summary judgment disposed only of the narrow issue that goes to the applicability of Section 9-502(2). We now determine, after full consideration of the briefs, reply briefs, oral presentations and supplemental letters of both parties, whether, in fact, a surplus or a deficiency did exist as of July 1, 1977, the date which we ordered to be used for this purpose.
Both parties agree that the accounting must proceed by a comparison of the amount collected by Castle with the amount due Castle pursuant to the Agreement. The parties further agree that the amount collected can only be calculated by subtracting the face value of the open accounts from the total value of the security interest transferred, since Castle did not keep direct records of the amount it actually collected. It is the determination of Major's' obligations to Castle that poses the difficult question.
Major's argues that 1) in our summary judgment decision we necessarily decided that the accounts receivable were collateral owned by Major's, to which Castle has no legal claim beyond its security interest, and 2) Castle's rights are limited to the repayment of the money it actually loaned to Major's, an 18% discount of the face amount of the accounts, (exclusive of insurance and interest charges), insurance charges and the actual expenses incurred in post-default collection.
Castle responds that the Agreement gave it a right to the entire amount of the accounts, whether considered as collateral or purchases. Thus, the finance charges incurred by the customers, repurchase charges to the reserve account, and the *545 remaining uncollected amounts should all be credited to Castle.
A. The Account Debtor Interest Charges and Uncollected Amounts:
Castle first argues that Major's has conceded its right to interest due from account debtors in its prior memorandum. Major's responds that it mistakenly confused the interest from the account debtors with the interest Castle earned by the deduction. It follows that the citation to Kelter, in this regard, was also mistaken; unlike that case, in which the financing party only charged interest to the account debtor, Castle charged an 18% deduction to the assignor as a fee for use of the money. We do not believe that counsel's misunderstanding, corrected prior to our decision on his motion for summary judgment, should affect a determination of the accounting issue. In contrast to the Kelter transaction, Castle also claims an entitlement to both an interest charge to account debtors and an interest charge to the assignor for the same loan transaction.[6] Castle advances the following arguments in support of its claims: 1) it, not Major's, advanced the money to finance the purchase of furniture; 2) therefore, it, not Major's, is the sole creditor in the transaction; and 3) the additional deduction charged to Major's was a reasonable business response to the high credit risks and collection costs posed by Major's low-income customers and weak financial condition.
In light of our previous conclusion that these accounts were transferred as a security interest, it seems more credible to view the series of transactions as follows:
1) Major's sold furniture to a customer in exchange for a security interest in the furniture and a note to pay the purchase price, insurance costs and interest charges on monthly installments over a two year period;
2) Castle then loaned money to Major's in exchange for a security interest in Major's chattel paper;[7] and an 18% interest charge on the loan (the deduction);
3) Major's, in effect, then loaned this money to its next customer in exchange for the above-mentioned note and a security interest in the furniture, thus creating new chattel paper, which it then transferred to Castle;
4) Castle protected this collateral by terms in the Agreement which required Major's to restore its value under various conditions: defective warranty of collectibility, default on payments by account debtors, or repossession of the furniture by Major's. Castle specifically protected its security interests from the alleged high risks by the creation of an interest free reserve fund and a buy-back provision. The record gives no indication of any collection costs to Castle during the life of the agreement that would provide a reasonable business basis for an 18% deduction.[8]
We agree that Castle has an interest in the accounts receivable, but only as the holder of collateral securing its loan to Major's. Its efforts to assure the collectibility of these accounts are consistent with its financial stake in maintaining the value of its security interest. Castle asks us to view these transactions as two entirely distinct *546 matters a loan to Major's secured by the face value of the note exclusive of interest, and a loan to the account debtor, secured by Major's security interest in the furniture; we find no basis in the Agreement or the record to do so. Indeed in the absence of such a clear provision to this effect, we will not interpret an agreement in a manner which would give Castle's its sorely coveted windfall of two payments when one makes it whole.
Castle also argues that we should enforce the assignment, full recourse and acceleration clauses of the Agreement as standards for the evaluation of surplus and deficiency permitted by § 9-501(3)(a). We disagree. Section 9-501(3) permits the parties to set standards for the "fulfillment of these [non-waivable] rights and duties . . insofar as they require accounting for surplus proceeds of collateral" pursuant to Section 9-502(2). Section 9-502(2) only applies when a secured party attempts to make collections on the collateral after default, (or by agreement). The Agreement makes no reference to this situation, aside from the general assignment of rights clause; certainly, there is no provision which addresses the standards for accounting in the event that Castle undertook collections on the collateral.
Paragraph 5, which entitles Castle "to all of the rights possessed by MAJOR in each such Account," merely makes explicit an incident of a true sale of accounts, and thus, in light of our decision that these transactions were a transfer of collateral, has no independent effect in an accounting pursuant to Section 9-502(2).
Paragraph 10 requires a "repurchase" after default of the entire deficiency, (less a rebate of interest under the "Rule of the 78's"); as noted above, we view this as consistent with an obligation to maintain the value of the collateral, so that the use of the sales language again has no independent significance at this point in the proceedings.
Paragraph 12 regulates computation of a surplus during the life of the Agreement, but does not, by its own terms, apply to the default situation regulated by section 9-501 and 9-502(2). Castle also seems to argue that paragraph 12 limits the surplus to the reserve created by the Agreement. This is contrary to Comment 3 to Section 9-502(3), which states that the accounting will be limited to the reserve only when an agreement limits both parties' risk to the amount in that reserve. The full recourse provisions undercut any such claim.
Paragraph 13, the acceleration clause, is manifestly not a "standard" fulfillment for the "accounting for surplus proceeds of collateral" within the meaning of § 9-501; it does not even mention the collection rights of the secured party, and its obligations, pursuant to § 9-502.
We conclude that the Agreement only affected the retail accounts between Major's and its customers to the extent it created a security interest in Castle with respect to the chattel paper transferred to Castle. Whatever rights and obligations existed during the operation of that Agreement with respect to the creation, maintenance or replacement of collateral and the making and repayment of loans were superseded by the non-waivable provisions of Section 9-502, once Castle placed Major's in default and began to collect the accounts itself. We therefore hold that, since Castle had only a security interest in the interest payments made by the account debtors, it must now account to Major's for any surplus attributable to this portion of the accounts it accepted.
B. The Reserve:
Pursuant to the Agreement, Major's "repurchased" numerous defaulted accounts by making a cash payment for 50% of the amount due, and having the remainder, a sum of $22,972.28, deducted from the reserve account. Major's counsel has not contested this obligation, but instead has *547 sought to set off various entries totaling $20,919.27, credited to the reserve by Castle. The parties agree that three of the entries (items 9, 11 and 12 in Part V of this Opinion), though properly credited to Major's, arose from different transactions than those contested in Count I, and should not affect this accounting. The remaining entry, $5,899.44, represents accounts that Castle did not accept as collateral, but rather agreed to attempt to collect solely as Major's' agent. Therefore, this amount must also be excluded from the accounting, despite the untimely manner in which counsel presented this information to the Court. In conclusion, we determine that Castle must be credited with the full $22,972.28 charged to the reserve during the operation of the Agreement.
IV. THE COUNTERCLAIM TO COUNT II:
At trial Castle prevailed on its Counterclaim to Count II. The accounting effect of the verdict has been left to the Court to decide. Major's does not dispute Castle's entitlement to a judgment for $14,445 (the face amount of the unpaid portion of the loan minus Castle's collections on collateral). It does contest an award of interest and attorney's fees pursuant to the loan agreement on the grounds that the loan obligation should have been set off immediately against Major's accumulated surplus in a related transaction. At the time Major's stopped payment on the note in March, 1976, Castle had in its possession a substantial surplus generated by collections on the accounts receivable financing agreement of June 18, 1973. The surplus held by Castle and the deficiency on the loan owed by Major's are cross-obligations which arose out of cross-transactions between the parties. As such, the cross-obligations must be set off against each other. Willing v. Lupin Building and Loan Ass'n, 20 F.Supp. 774, 777 (E.D.Pa.1937). We so hold.
V. JUDGMENT:[9]
I. Collateral Held by Castle:
Item 1. Total Accounts Receivable 596,901.88
Item 2. Uncollected Accounts Rec. 70,310.44
__________
Line A: Net Value of Collateral 526,591.44
II. Major's Obligations to Castle
Item 3. Payments by Castle 316,107.42
Item 4. Deductions 77,957.35
Item 5. Charges to Reserve 22,972.28
Item 6. Insurance 42,304.03
Item 7. Collection Costs 1,627.81
__________
Line B: Total Obligations 460,968.89
III. Accounting of Surplus 65,622.55
IV. Counterclaim
Item 8. Loan and Costs 15,000.00
Item 9. "Flipped" accounts 4,386.93
Item 10. Collections 555.00
_________
Line C: Net 10,058.07
V. Miscellaneous Obligations to Major's
Item 11. Loan 10,000.00
Item 12. Insurance Overcharge 632.90
_________
Line D: Total 10,632.90
Total owing to Major's (Line A & Line D) 537,224.34
Total owing to Castle (Line B & Line C) 471,026.96
__________
$ 66,197.38
Amount of Judgment $66,197.38
NOTES
[1] Our Order stated that plaintiff could file an amended complaint on Count II, rather than Count I. Our notes of the pre-trial conference indicate that this was a clerical error, and that Count I was intended. Defendant suffered no harm from this confusion, as he had argued in his motion for summary judgment, filed April 19, 1977, that the theory of liability advanced in the pre-trial order, which is identical to the amended complaint, superseded the complaint.
[2] Illness of defendant's counsel caused the oral argument to be postponed until December 20, 1977.
[3] Of course, in a diversity case we sit as a court of Pennsylvania, and must apply Pennsylvania substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We note that neither counsel, nor our own research, has revealed any case law in this jurisdiction, or in any other jurisdiction, which has ruled upon this provision of the U.C.C. in the context of this case.
[4] For example, the requirement that Major's "repurchase" delinquent accounts is functionally equivalent to a requirement to preserve the value of the collateral; Major's payments on uncollectible accounts is thus consistent with both characterizations of the transactions.
[5] We note that these efforts were made by plaintiff's previous counsel.
[6] E. g., in acct. # 15915, Castle advanced $1,224 to Major's, charged $308 to Major's, and now claims an entitlement to the $588 charged to the account debtor for use of that money for a two year period.
[7] Although neither party uses the term, these "accounts" appear to be chattel paper within the meaning of U.C.C. § 9-105(1)(b).
[8] Castle made a motion to present testimony on the reasonableness of the agreement as it has characterized it. The Court denied that motion at oral argument on December 20, 1977, on the ground that it addressed factual questions which had already been decided on the motion for summary judgment. Counsel for Castle had the opportunity to present affidavits in support of its cross-motions for summary judgment on count I with respect to these factual questions. Factual affidavits concerning the administrative costs of collections could also have been submitted along with the briefs on the accounting issue. Having failed to bring these matters before the Court, Castle will not now be permitted to argue on the basis of alleged facts not contained in the record.
[9] Source of each item set forth below:
1. Castle's adjustments to the amounts cited by Major's in items 1 and 3 are roughly equivalent to the adjustments made by Major's in Item 1 (see trans. 12/20/77 at 24-27); Major's acknowledges that Castle has provided all the accounting numbers, so we deem it reasonable to apply these figures when it would not be unjust to Major's to do so.
2. Castle claims this amount should be $77,686.34. Counsel for Major's put forward a reasonable explanation of the lower amount in oral argument (Trans. 12/20/77 at 28-29). We gave Castle until the first week in January to respond to these contentions; no response was forthcoming. (Trans. 12/20/77, 30; letter by Major's 1/19/78). We therefore accept Major's uncontested explanation of this amount. As previously noted, both parties agree Castle did not keep records of the amount actually collected.
3. See item I comments.
4. Uncontested.
5. See discussion in Part III B.
6. Uncontested.
7. Uncontested.
8. See discussion in Part IV.
9. Uncontested. (Letter, 4/28/78)
10. Uncontested.
11. Uncontested. (Letter, 4/28/78)
12. Uncontested. (Letter, 4/28/78)
|
415 B.R. 334 (2009)
The COMPAK COMPANIES, LLC, Plaintiff,
v.
Jimmie L. JOHNSON, et al., Defendants.
Nos. 03 C 7427, 08 C 4665.
United States District Court, N.D. Illinois, Eastern Division.
June 1, 2009.
*335 Jeffrey Neal Cole, Jennifer Lynn Camden, Cole & States, Ltd., Robert Michael Fishman, Allen Jay Guon, George J. Spathis, Rebecca J. Hanson, Shaw Gussies Fishman Glantz Wolfson & Towbin LLC, Chicago, IL, for Plaintiff.
Charles Sanford Riecke, Seyfarth Shaw LLP, Chicago, IL, for Defendants.
MEMORANDUM OPINION
JOHN F. GRADY, District Judge.
Before the court are the bankruptcy court's proposed findings of fact and conclusions of law with respect to the defendants' motion for summary judgment. Except as modified below, we accept the bankruptcy court's recommendations and we grant defendants' motion for summary judgment on Counts I and II of plaintiff's complaint.
BACKGROUND
BMJ Partners ("BMJ") purchased certain assets "free and clear of all liens, claims, encumbrances and interests" from bankruptcy debtors Compak Corporation ("Compak") and Communion Packaging Company ("CPC") pursuant to 11 U.S.C. § 363. BMJ then assigned those assets to the plaintiff, The Compak Companies, LLC ("TCC"). TCC alleged in its complaint that defendant Jimmie Johnson, Compak's founder and former principal, wrongfully obtained "legal title" to certain patents that rightfully belonged to Compak.[1] Johnson, in turn, assigned the patents to PatPak Corporation (another company formed and controlled by Johnson), which licensed the patents to Compak. He then caused PatPak and Compak to sublicense the patents to defendant DuoTech Holdings, LLC ("Holdings"). These machinations were all part of Johnson's alleged scheme to retain the benefits of the patents in the face of his companies' impending insolvency. TCC's legal theory has changed somewhat, but it is ostensibly still pursuing a constructive-trust claim against whichever party or parties hold legal title to the patents-in-suit (Count I) and a patent-infringement claim against Holdings and its affiliate DuoTech Packaging, LLC ("Packaging," and in conjunction with Holdings, "DuoTech") (Count II). We referred those counts to the bankruptcy court because, we concluded, they were "related to" Compak's bankruptcy. See The Compak Co., LLC v. Johnson, No. 03 C 7427, 2004 WL 2034083, *3 (N.D.Ill. Sept. 2, 2004); see also 28 U.S.C. § 157(a) (authorizing district courts to refer to a bankruptcy court matters that are "related to a case under title 11."). DuoTech and defendant Bruce Carlson, the president of Holdings and the manager of Packaging (collectively, the "DuoTech Defendants"), have moved for summary judgment on both counts. Because the issues raised in Counts I and II are not "core" bankruptcy matters as defined in 28 U.S.C. § 157(b), this court must enter final judgment "after considering the bankruptcy judge's proposed findings and conclusions." See 28 U.S.C. § 157(c)(1). The bankruptcy court has reviewed the parties' summary-judgment submissions and recommends that we grant defendants' motion for summary judgment.[2] We review de novo "those *336 matters to which any party has timely and specifically objected." Id. Before addressing those matters, a brief summary of the parties' dispute will be helpful.
On April 7, 1992, Johnson applied for a patent for a container designed to hold wine and communion wafers for religious services. (Findings of Fact ¶ 9.) Several months later Johnson assigned to Compak all of his "right, title and interest in any intellectual property rights whatsoever he owns in any manufacture of packaging of sacramental wine, juice and/or communion wafer or other such food product and any invention related thereto including, without limitation," Johnson's patent application. (Id. at ¶ 10; see Bill of Sale for Personal Property, dated July 9, 1992, attached as Ex. 4 to TCC's App. of Ex.) The USPTO granted Johnson's application and issued U.S. Patent No. 5,246,106 (the "'106 patent") on September 21, 1993. (Findings of Fact ¶ 9.) Between 1993 and 1998 the USPTO issued three other patents to Johnson: U.S. Patent Nos. 5,456,351 (the "'351 patent"), 5,584,388 (the "'388 patent") and 5,746,312 (the "'312 patent," and together with the '351 and '388 patents, the "Subsequent Patents"). (Id. at ¶ 11.) Neither side has challenged the bankruptcy court's conclusion that the Subsequent Patents are "related to the ideas and inventions which are the subject of the '106 patent." (Conclusions of Law ¶ 1 (Count II).) Notwithstanding his earlier agreement with Compak, Johnson purported to assign the Subsequent Patents to PatPak.[3] PatPak and Compak then executed an agreement in May 1997 (the "PatPak License") granting Compak a license to use certain intellectual property in its business, including the '351 and '388 patents and the application that the USPTO would later grant as the '312 patent. (PatPak License, attached as Ex. 26 to TCC's App. of Ex., at 1-3.)
In 2001, Compak entered into a series of agreements with Holdings, Johnson and PatPak purporting to grant Holdings a license to use all four patents. (See Findings of Fact ¶¶ 12-15; TCC's App. of Ex. at Ex. 30-32, 42.) Only two of these agreements are relevant here: (1) an Agreement, dated July 9, 2001, between Compak and "Duo-Tech;" and (2) a License Agreement, dated August 29, 2001, between Holdings, Compak, PatPak and Johnson. (See Findings of Fact ¶¶ 13-14; see also TCC's App. of Ex. at Ex. 32 and 42.) The July 2001 Agreement refers to all four patents as the "Process" and recites that Compak is the "sole assign of the Process by the inventor, Jimmie L. Johnson." (Agreement, dated July 9, 2001, § 1.) The August 2001 License Agreement recites that Compak is the "sole and exclusive owner of" the '106 patent, and the "sole and exclusive licensee of" the Subsequent Patents from PatPak. (License Agreement, dated August 29, 2001, §§ 1, 8, 22.) Both agreements purport to grant Holdings or "Duo-Tech" the right to use all four patents that defendants are alleged to infringe. (Findings of Fact ¶ 15.) But they do differ substantially in their terms: among other differences, the July agreement contains minimum-royalty requirements not present in the August agreement.
Compak filed for chapter 11 bankruptcy on June 10, 2002; CPC filed approximately four months later and the bankruptcy court consolidated the two cases. (Id. at ¶ 3.) Compak's amended schedule of executory *337 contracts and unexpired leases, which Compak filed with the bankruptcy court on August 9, 2002, listed "Duo-Tech" as a party to an executory contract identified as a "patent license" and included an address for that company. (Id. at ¶ 16; see First Am. Summary of Schedules, attached as Ex. I to Supp. in Support of DuoTech Defs.' Mot. for Summ. J., at Schedule G.) On February 28, 2003, Compak filed its "Motion to Sell Business Real and Personal Property and to Shorten Notice Period" (the "Sale Motion"). (Findings of Fact ¶ 17.) The notice of the Sale Motion (the "Notice") consisted of a copy of the motion and a copy of a proposed asset purchase agreement between Compak and a stalking-horse bidder. (Id. at ¶ 18.) Compak did not send the Notice to Holdings, and Holdings was not represented at the Sale Motion hearing. (Id. at ¶ 19; Conclusions of Law ¶ 10 (Count II).) BMJ was the successful bidder at a public auction for the debtors' assets and the bankruptcy court entered an order approving the sale on March 24, 2003 (the "Sale Order"). (Findings of Fact ¶ 4.) The Sale Order authorized the debtors to sell their "Business Assets" defined as "substantially all of [their] business real and personal property, excluding bankruptcy causes of action and related claims and cash" to BMJ "free and clear of all liens, claims, encumbrances and interests." (Sale Order, attached as Ex. 62 to TCC's App. of Ex., ¶¶ 6 and G.) The Sale Order also attached and incorporated the Asset Purchase Agreement between Compak and the stalking-horse bidder. (See id. at ¶ G ("The Debtors are authorized to sell the Business Assets to BMJ pursuant to sections 363 and 105 of the Bankruptcy Code and on terms substantially comparable to those of the Asset Purchase Agreement attached hereto[.]").) That Agreement lists "Assets to be Sold by Compak" and specifically identifies the '106 patent as well as Compak's "right, title and interest in and under all Leases, Contracts and Permits, which are being assigned to and assumed by Purchaser." (Sale Order at Ex. A, ¶ 1.) BMJ assigned the purchased assets to TCC in April 2003. (Findings of Fact ¶ 5.)
The debtors' chapter 11 reorganization was converted to a chapter 7 liquidation on April 3, 2003. (Id. at ¶ 3.) Approximately six months later Packaging filed an interpleader complaint in the bankruptcy court against the debtors' chapter 7 trustee, BMJ, PatPak and Johnson alleging that it did not know which party was owed royalties under the August 2001 license. (The record is curiously silent concerning when and how DuoTech actually learned of the sale.) The bankruptcy court has approved a settlement in the interpleader action between DuoTech and the trustees for the Compak and Johnson estates. That agreement, assuming it was consummated, transferred to DuoTech whatever rights and interests the trustees may have had in the patents-in-suit and related property. (See Order Approving Compromise and Settlement of Claims, dated November 29, 2007, at Ex. A (hereinafter, the "Settlement Order.").)
We turn now to the parties' objections to the bankruptcy court's proposed findings of fact and conclusions of law.
DISCUSSION
A. Whether the August 2001 License Was Invalid Ab Initio.
The bankruptcy court has concluded that it is irrelevant whether the August 2001 license is invalid, as TCC contends, because in that event the July 2001 agreement *338 would still be effective.[4] (Conclusions of Law ¶ 6 (Count II).) And because both agreements purport to grant DuoTech the right to use all four patents, defendants are entitled to summary judgment on TCC's patent infringement claim so long as one of the two licenses survived the bankruptcy sale. (Id. at ¶¶ 7-8.) But the July Agreement includes minimum-royalty requirements, not included in the August license, that DuoTech apparently did not satisfy in the contract's first two years. (See Interpleader Compl. ¶ 27 (alleging that DuoTech anticipated making its first royalty payment as a result of "certain pending sales" in September 2003).) Under the July Agreement, "[f]ailure to pay royalties that are due shall render this Agreement null and void." (License Agreement, dated August 29, 2001, § 3); see B. Braun Medical, Inc. v. Abbott Labs., 124 F.3d 1419, 1426 (Fed.Cir. 1997) ("[V]iolation of valid conditions entitles the patentee to a remedy for either patent infringement or breach of contract.") (emphasis added). We agree with TCC that the July 2001 agreement was binding (see supra n. 2); the document is complete on its face and expressly states that it "becomes a complete and binding Contract upon its acceptance as signified by the signatures below." (See Agreement, dated July 9, 2001, at 2.) But the August 2001 agreement did not merely purport to modify the earlier agreement the parties mutually agreed that it "superced[ed] any preexisting agreements between" the parties concerning the license's subject matter. (License Agreement, dated August 29, 2001, ¶ 19); cf. Doyle v. Holy Cross Hosp., 186 Ill.2d 104, 237 Ill. Dec. 100, 708 N.E.2d 1140, 1145 (1999) (concluding that the defendant's unilateral insertion of an additional contract term was not supported by consideration). And it did more than simply alter the minimum royalty requirement it added additional parties (PatPak and Johnson) and provisions, some of which are mutually beneficial. (See, e.g., License Agreement, dated August 29, 2001, ¶¶ 7 (confidentiality) and 14 (insurance and indemnification).) We conclude that the August 2001 agreement superceded any previous agreements between the parties. TCC made several other arguments in response to defendants' summary-judgment motion concerning the August 2001 agreement's enforceability. (See TCC's Opp'n to DuoTech Defs.' Mot. for Summ. J. at 15-16.) TCC did not develop these arguments in the bankruptcy court and it has not raised them again here in response to the bankruptcy court's proposed conclusions. We reject TCC's argument that the August 2001 license was invalid or unenforceable ab initio.
B. Whether the Sale Order Extinguished the August 2001 License
Section 363(f) authorizes bankruptcy courts to approve the sale of a debtor's property "free and clear of any interest in such property" if one of five conditions is satisfied. See 11 U.S.C. § 363(f). "[O]ne of those conditions is the consent of the interest holder, and lack of objection (provided of course there is notice) counts as consent." FutureSource, LLC v. Reuters Ltd., 312 F.3d 281, 285 (7th Cir.2002). The bankruptcy statute does not define *339 "interest," but courts have interpreted the term broadly. See Precision Indus., Inc. v. Qualitech Steel SBQ, LLC, 327 F.3d 537, 545-46 (7th Cir.2003). A leasehold in real property is an "interest," id., as is a license in intellectual property. See FutureSource, 312 F.3d at 285. Applying section 363(f), as construed by Qualitech and FutureSource, the bankruptcy court had authority to extinguish DuoTech's license in the bankruptcy sale, at least with DuoTech's consent (or lack of objection). Without specifically identifying DuoTech's interest, or identifying what subsection of § 363(f) it was relying on, this is what the bankruptcy court purported to do. (See Sale Order ¶ G & H); see also Qualitech, 327 F.3d at 541, 548 (upholding sale order that extinguished all "liens, claims, encumbrances, and interests" not specifically excluded by the order).
TCC does not dispute that Compak did not send the Notice to DuoTech at the address listed in Compak's bankruptcy schedules. See Fed. R. Bankr.P. 2002(g) (Unless a creditor specifies a different mailing address, notices must "be mailed to the address shown on the list of creditors or schedule of liabilities, whichever is filed later."). It does contend, however, that DuoTech had actual notice of the sale through other channels. Two documents in the record suggest that Carlson, DuoTech's president, had notice as early as July 2002 that Compak had filed for bankruptcy. (See Email from David Seitelman to Bruce Carlson, dated July 26, 2002, attached as Ex. 47 to TCC's App. of Ex.; Fax from Bruce Carlson to Ken Marchetti, dated July 29, 2002, attached as Ex. 49 to TCC's App. of Ex.) This is insufficient, by itself, to satisfy due process in a bankruptcy sale under chapter 11. See, e.g., In re Metzger, 346 B.R. 806, 818 (Bankr. N.D.Cal.2006) ("In a chapter 11 case, the creditor who is not given notice, even if he has actual knowledge of reorganization proceedings, does not have a duty to investigate and inject himself into the proceedings."). TCC also argues that we should modify the bankruptcy court's findings to reflect that the Notice was served on three individuals Ron Bowen, Kenneth Binkley and Glenn Johnson each purportedly affiliated with DuoTech entities. (TCC's Am. Obj. at 3; see Notice, attached as Ex. 56 to TCC's App. of Ex., at 4, 6, 8.) Carlson's affidavit states that during 2003, the year that Compak sold its assets to BMJ, Holdings had only two officers: Carlson and Rick Alvarado, neither of whom was served with the Notice. While some documents refer to Bowen, Binkley and Johnson as having a connection with DuoTech, they do not contradict Carlson's affidavit.[5] (TCC apparently never tested its suspicion that DuoTech had notice by way of a deposition or requests to admit.) And despite multiple opportunities, TCC has not objected to the bankruptcy court's conclusion that the Sale Notice was unclear as applied to executory contracts like DuoTech's license.[6] (See Conclusions of Law ¶ 17) ("Even if the Defendants had actual notice *340 or were served with the Sale Motion, that notice would not have been `of such a nature as reasonably to convey the required information' that the property rights of the Defendants were in jeopardy in the sale.") (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).) The Notice implies that the purchaser would assume the debtors' executory contracts. (Findings of Fact ¶ 20); see Fogel v. Zell, 221 F.3d 955, 962 (7th Cir.2000) ("If the notice is unclear, the fact that it was received will not make it adequate."). We agree with the bankruptcy court that, under these circumstances, "terminating the DuoTech License pursuant to the Sale Order would violate Holdings' right to due process of law under the Fifth Amendment to the Constitution of the United States." (Id. at ¶ 15.)
Based upon its conclusion that the DuoTech Defendants did not receive proper notice, the bankruptcy court concluded that its order was "void" insofar as it purported to extinguish defendants' license. (Conclusions of Law ¶ 18); see also In re Metzger, 346 B.R. at 819. TCC challenges the bankruptcy court's conclusion on the ground that, as a bona fide purchaser, it acquired title to Compak's intellectual property free and clear of DuoTech's license notwithstanding DuoTech's lack of notice.[7]See In re Edwards, 962 F.2d 641, 645 (7th Cir.1992).
1. In re Edwards and Fed.R.Civ.P. 60
We referred Counts I and II to the bankruptcy court because we concluded that TCC sought relief that could affect the property available for distribution to Compak's creditors. See In re FedPak Systems, Inc., 80 F.3d 207, 213-14 (7th Cir.1996). At the center of the parties' dispute, however, is a final sale order that was not stayed pending appeal. See Edwards, 962 F.2d at 643 (A sale without notice is improper, but it may not be rescinded on appeal if the sale has not been stayed.); In re Sax, 796 F.2d 994, 997 (7th Cir.1986) (The lienholder "did not obtain a stay of the sale or of the order approving the sale, so there is nothing we can do to affect the validity of the sale."). Edwards holds that when the time to appeal has passed the sale may be challenged, "if at all, only in accordance with the provisions of Rule 60(b) of the Federal Rules of Civil Procedure." Edwards, 962 F.2d at 643.[8]*341 (The Court's decision in Qualitech suggests that there are limited instances where this rule does not apply, see Qualitech, 327 F.3d at 543, but defendants have not argued that this case is one of them.) Like the lienholder in Edwards, the defendants challenge the Sale Order on due-process grounds; but they have not filed a Rule 60 motion in the bankruptcy court. Indeed, TCC moved to dismiss their interpleader complaint on that basis (a motion that the bankruptcy court denied when TCC failed to appear at a hearing on the motion). This is not necessarily fatal to the defendants' claim. Our Court of Appeals has not squarely addressed the issue, but "a majority of circuits to have considered the power of a district court to vacate a judgment under Rule 60(b) have concluded that district courts have the discretion to grant such relief sua sponte." See Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 385 (7th Cir.2008). Alternatively, the court could construe defendants' interpleader complaint as a motion for relief from the Sale Order. See, e.g., In re MMH Automotive Group, LLC, 385 B.R. 347, 356 (Bkrtcy. S.D.Fla.2008). On the other hand, we are not aware that the bankruptcy court has taken any action to vacate its order we have only its proposed conclusion that the order is "void," a conclusion that we consider de novo.
After the bankruptcy court approves a sale, "the existence of fraud, mistake or a like infirmity would be necessary to set [it] aside." In re Chung King, 753 F.2d 547, 549-50 (7th Cir.1985) (quoting In re Webcor, 392 F.2d 893, 898 (7th Cir.1968)). "By far the most frequent mistake or infirmity held to warrant vacating a confirmed sale is defective notice to interested parties of the judicial sale." Id. at 551 (collecting cases). Edwards held, however, that a bona fide purchaser of property in a bankruptcy sale "free and clear of interests" acquires "good title" to the property notwithstanding an interest-holder's lack of notice. Edwards, 962 F.2d at 645-46. The plaintiff in that case held a second mortgage on property that the debtor sold in an approved bankruptcy sale. Id. at 642. More than a year passed before the lienholder moved to vacate the sale, cf. Fed.R.Civ.P. 60(c)(1), but it argued that its motion was timely because a "void" judgment may be set aside at any time. See Fed.R.Civ.P. 60(b)(4); see also In re Hanson, 397 F.3d 482, 485, 487 (7th Cir.2005) (affirming decision granting a creditor's Rule 60(b)(4) motion, which it filed five years after the bankruptcy court entered an order discharging student loan debt, because the creditor was not afforded due process). The Edwards Court rejected the lienholder's argument that an order entered without notice to an affected party is necessarily void: an erroneous jurisdictional finding, "[i]f it is not egregious," is "good against collateral attack, like any other erroneous but final judgment." Edwards, 962 F.2d at 644; see also id. ("[N]ot every jurisdictional defect makes an order approving a bankruptcy sale void, because a court has jurisdiction to determine its own jurisdiction."). This left the "practical question, in what circumstances can a civil judgment be set aside without limit of time and without regard to the harm to innocent third parties?" Id. Balancing the creditor's interest and the "strong policy of finality of bankruptcy sales," the court adopted a "strict rule in favor of the bonafide purchaser at the bankruptcy sale." Id. at 645-46. "The policy [of finality] would mean rather little if years after the sale a secured creditor could undo it by showing that through some slip-up he hadn't got notice of it." Id. at 645.
Defendants argue that BMJ was not an "innocent third party" and therefore TCC, *342 its assignee, cannot rely on Edwards. See Black's Law Dictionary 1271 (8th Ed.2004) (A bona-fide purchaser is "one who has in good faith paid valuable consideration for property without notice of prior adverse claims"); see also In re Rock Indus. Machinery Corp., 572 F.2d 1195, 1197 (7th Cir.1978) (adopting a similar definition for the term "good faith purchaser" in the precursor to 11 U.S.C. § 363(m)).[9] It is unclear what "notice of prior adverse claims" means in this context: the lienholder in Edwards filed a proof of claim in the bankruptcy court and, arguably, the purchaser could have been charged with constructive notice of the lien on that basis. See, e.g., In re Rock Indus., 572 F.2d at 1199. There is authority for the proposition that actual notice of a third-party's interest would prevent the purchaser from acquiring bona-fide purchaser status. See In re Metzger, 346 B.R. at 817 (distinguishing Edwards on the ground that the purchaser had actual notice of the plaintiff's interest). BMJ was one of Compak's creditors and was sent notices throughout the bankruptcy proceedings, whereas the purchaser in Edwards was apparently a stranger to the proceedings before the bankruptcy sale. But the question, we think, is whether BMJ reasonably believed that it was acquiring Compak's property free and clear of interests, not whether it knew what interests the bankruptcy court was purporting to extinguish. See Edwards, 962 F.2d at 643 ("No one doubts [] that Noble was a bona fide purchaser who thought he was getting the property free and clear of all liens.").
The more telling difference between this case and Edwards is the nature of the interests at stake. The lienholder in Edwards "suffered only a trivial loss of interest (the interest on $7,000 [the value of the lien on the proceeds after the trustee paid the first lienholder] during the period that it was in the hands of the trustee) as a result of the failure to notify it of the sale." Id. at 645. In effect, the bankruptcy court granted in the lienholder's absence all the protection it was due. The same would be true in this case had Compak failed to notify a secured creditor. (See Sale Order ¶ G (providing that any liens would attach "to the net proceeds of the sale in the same order of priority as such Liens possessed against the Business Assets.").) Defendants stand to lose much more if we conclude that the Sale Order extinguished their license notwithstanding their lack of notice. Even if defendants were not subject to enhanced damages for willful infringement, see Jurgens v. CBK, Ltd., 80 F.3d 1566, 1570-71 (Fed.Cir.1996), an injunction could have a devastating impact on their business. Moreover, they may have lost through no fault of their own a greater range or potential remedies in the bankruptcy court. The Bankruptcy Code contains special protections for patent licensees in the event that the trustee or debtor-in-possession rejects a license. See 11 U.S.C. § 365(n) (licensees may elect to retain their rights to use the licensed patents after the license is rejected). As we interpret Qualitech, § 365(n) would not prevent the trustee or debtor-in-possession from extinguishing a license in a sale of intellectual property free and clear of interests provided that one of § 363(f)'s conditions was satisfied. See Qualitech, 327 F.3d at 548; see also id. at 546 n. 3 *343 (assuming, based upon the appellant's acquiescence, that the sale free and clear of the appellant's leasehold was permissible under § 363(f)). It is unclear whether such a sale would be permissible without the licensee's express or implied consent. See 11 U.S.C. § 363(f)(2); FutureSource, 312 F.3d at 285 ("It is true that the Bankruptcy Code limits the conditions under which an interest can be extinguished in a bankruptcy sale, but one of those conditions is the consent of the interest holder, and lack of objection (provided of course there is notice) counts as consent.") (emphasis added). Neither side squarely addresses the issue (see Defs.' Mem. at 10; TCC's Opp'n at 12), but we are not aware of any authorities that would support a finding that one of § 363(f)'s other subsections applied on these facts. If defendants had received clear notice that their interests were threatened, they could have withheld their consent altogether or tried to work out some other arrangement with Compak. See In re Hanson, 397 F.3d at 486 ("Hanson's failure to serve ECMC with a summons and an adversary proceeding complaint effectively denied ECMC the opportunity of presenting an objection prior to the adjudication of its rights."). Or if, as appears unlikely, Compak was authorized to sell its intellectual property free and clear under another subsection of § 363(f), the defendants could have requested adequate protection under § 363(e). See Qualitech, 327 F.3d at 548. They were deprived of that opportunity, too. See In re MMH Automotive, 385 B.R. at 372.
We conclude that the Sale Order is "void" insofar as it purports to extinguish the defendants' license. See id. (fashioning a remedy short of rescinding the entire sale); In re Metzger, 346 B.R. at 819 (vacating a sale order only to the extent that it extinguished the creditor's interest); cf. Edwards, 962 F.2d at 645 ("[W]e have property interests on both sides of the equation here, since Guernsey wants to take away property that Noble bought, and Northwest financed, without compensating them for their loss."). The bankruptcy court concluded, as a corollary to its conclusion that its Sale Order was partially void, that BMJ "acquired Compak's interest in the DuoTech License through its purchase of the debtors' assets and that BMJ assumed the DuoTech License Agreement." (Conclusions of Law ¶ 19.) Defendants object to this conclusion because, they argue, Compak did not properly assume the license agreement before assigning it to BMJ. See 11 U.S.C. § 365(a) (requiring court approval to assume or reject any executory contract). It follows, they argue, that (i) Compak could not assign the license (see 11 U.S.C. § 365(f) (2)), (ii) the license was rejected by operation of law sixty days after the chapter 7 conversion (see 11 U.S.C. § 365(d)(1)), and (iii) defendants retained their rights to use the intellectual property under 11 U.S.C. § 365(n).[10] The upshot of defendants' argument is that TCC has, at most, a disputed claim to royalties stemming from defendants' use of the '106 patent. The bankruptcy court has concluded by implication that its Sale Order disregarding the void provisions was effective to approve both Compak's assumption of the license and its assignment to BMJ. See 11 U.S.C. §§ 365(a) and (f); In re Tleel, 876 F.2d 769, 770-71 (9th Cir. 1989) (order approving sale was effective to approve debtor's assumption); see also *344 In re Consolidated Industries, 360 F.3d 712, 716 (7th Cir.2004) ("We will not reverse a court's interpretation of its own order unless it is a `clear abuse of discretion,' because a court that issued an order is in the best position to interpret it."). Even if the assumption and assignment did not strictly comply with § 365, see, e.g., In re Dehon, Inc., 352 B.R. 546, 559 (Bkrtcy. D.Mass.2006), this is not an appeal of the bankruptcy court's Sale Order. Given the procedural posture of this case, and the "strong policy of finality of bankruptcy sales," we believe that a narrow remedy is appropriate. See In re Metzger, 346 B.R. at 819. We are not persuaded that the Sale Order was void except to the limited extent we have already indicated.
Because Holdings' license survived the bankruptcy sale the DuoTech Defendants are entitled to summary judgment on Count II of TCC's complaint.
C. TCC's Constructive-Trust Claim and the Parties' Rights in Subsequent Patents
The bankruptcy court concluded that Compak acquired the rights to the Subsequent Patents pursuant to the 1992 Bill of Sale and that Johnson's purported assignment to PatPak was invalid. Defendants insist that Johnson's assignment to PatPak was valid and that they acquired PatPak's rights pursuant to their settlement agreement with the chapter 7 trustees. But they have not addressed the merits of the bankruptcy court's conclusion, insisting instead that the issue was beyond the scope of the referred counts because TCC made different arguments (e.g., fraudulent conveyance and breach of fiduciary duty) in its complaint. The fact that TCC chose to include these theories in its complaint, when a simple statement of its claim would have sufficed, does not mean that TCC was bound to pursue those theories throughout the litigation. See Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir.1997) ("Having specified the wrong done to him, a plaintiff may substitute one legal theory for another without altering the complaint."). TCC properly raised its alternative argument, and the bankruptcy court properly addressed it. Turning to the merits, we agree with the bankruptcy court that the Bill of Sale conveyed Johnson's interest in all future related inventions, including those that were later claimed in the Subsequent Patents. Johnson broadly conveyed,
all of [his] right, title and interest in any intellectual property rights whatsoever he owns in any manufacture or packaging of sacramental wine, juice and/or communion wafer or other such food product and any invention related thereto including, without limitation, any rights to ideas, trade secrets, patents, patent application serial number XX-XXX-XXX dated April 7, 1992, copyrights, trademarks, processes, methods and inventions relating to the packaging and sale of foodstuffs associated with any religious ceremony. . . .
(Bill of Sale, dated July 9, 1992, at 1.) The inventions claimed in all four patents are substantially similar, and the Subsequent Patents are derived from continuations or continuations-in-part originating in the patent application identified in the Bill of Sale. (See generally Subsequent Patents, attached as Exs. 8-9, 12 to TCC's App. of Ex.) All three describe "delivering communion" as a potential use. (Id.) They are clearly "related" to the "manufacture or packaging of sacramental wine, juice and/or communion wafer or other such food product." Accordingly, all right, title and interest in the Subsequent Patents vested in Compak by operation of law as they were issued. See Filmtec Corp. v. Allied-Signal Inc., 939 F.2d 1568, 1573 (Fed.Cir.1991) (when a contract assigns *345 rights in future inventions, title is conferred by operation of law as the inventions come into being).[11] The purported license from Johnson to PatPak was a "nullity" Johnson could not convey the same property more than once, see id. at 1572 as was the license from PatPak to Compak. It follows, as the bankruptcy court concluded, that a constructive trust is "unnecessary because none of the defendants ever had legal title to the patents before the bankruptcies were filed." (See Order Clarifying Proposed Findings of Fact and Conclusions of Law at 2.) Accordingly, defendants' motion for summary judgment is granted as to Count I.
As the bankruptcy court's conclusion suggests, this leaves open the question whether the Sale Order conveyed the Subsequent Patents to BMJ. On the one hand, they were not identified as Compak's property at the auction or in the Sale Order and the attached Asset Purchase Agreement. On the other, Compak and BMJ plainly understood that the bankruptcy court was approving the sale of all of Compak's property. (See, e.g., Bill of Sale, attached as Ex. 3 to TCC's Resp. to DuoTech's Motion to Refer, at 1 (Compak agreed to sell to BMJ, and its "successors and assigns," "all of Seller's right, title and interest in and to all of the personal property of the Seller, tangible and intangible, wherever located.").) We recommitted the matter to the bankruptcy court in part to address this question because the answer turns on the proper interpretation of that court's order, but the court declined on the ground that it was not necessary to decide the referred counts. (Order Clarifying Proposed Findings of Fact and Conclusions of Law at 2-3.) At the same time, the court directed our attention to the defendants' settlement with the chapter 7 trustees. The settlement agreement which was scheduled to close in May 2008 does not resolve the ultimate question whether the trustees had anything to assign. (See Settlement Order ¶ 3.) We think the bankruptcy court should address this issue in the first instance, but that need not detain us here. The answer will not affect the outcome of TCC's infringement and constructive-trust claims. Therefore, we decline the parties' invitation to declare who owns the Subsequent Patents. We also decline to address DuoTech's argument that they are entitled to off-set their attorneys' fees against the amounts currently held in escrow by the clerk of the bankruptcy court. The interpleader action is the appropriate case in which to address these issues.
CONCLUSION
Except as modified by the foregoing, we accept the bankruptcy court's findings of fact and conclusions of law and grant defendants' motion for summary judgment as to Counts I and II of TCC's complaint. A status hearing is scheduled for June 3, 2009, at which time the parties should be prepared to discuss the remaining counts of TCC's complaint.
NOTES
[1] Johnson filed for chapter 7 bankruptcy shortly after TCC filed its complaint. (See Answer and Affirmative Defenses of Joseph A. Baldi, Chapter 7 Trustee of the Estate of Jimmie L. Johnson, filed in Adv. Proc. No. 04-A-04028, at 28.) Johnson's trustee has joined the DuoTech Defendants' objections to the bankruptcy court's recommendations.
[2] For clarity's sake we will refer to the bankruptcy court's findings of fact and conclusions of law separately (e.g., "Finding of Fact ¶ 1," and "Conclusions of Law ¶ 1 (Count I)"), although they appear in the same memorandum.
[3] The scant evidence of this assignment in the record consists entirely of references to it in other documents.
[4] TCC "specifically" objects to paragraph 13 of the bankruptcy court's findings of fact, arguing that the July 2001 agreement was binding and not a mere "draft." (See Findings of Fact ¶ 13 (The latest license agreement between Compak and DuoTech "was dated August 29, 2001, and purported to modify a similar license agreement draft circulated among the parties in July 2001.").) The more pertinent issue, we think, is whether the August license superceded the July license. We conclude, however, that TCC's objection is sufficient to trigger de novo review of this question. See 28 U.S.C. § 157(c)(1).
[5] See Carlson Memo., attached as Ex. 57 to TCC's App. of Ex. (undated document that appears to be an informal memorandum regarding the proposed structure of a limited liability company); Duo-Tech Company Profile, attached as Ex. 57 to TCC's App. of Ex., at 25 (document dated August 2001, approximately 15 months before the Notice was sent); see also TCC's App. of Ex. at Ex. 48-50 (informal memoranda listing or referring to members of DuoTech's "team.").
[6] Neither party disputes that the contract was executory. See In re Superior Toy & Mfg. Co. Inc., 78 F.3d 1169, 1172 n. 3 (7th Cir.1996) ("An executory contract is a contract on which performance remains due to some extent on both sides.") (citation and internal quotation marks omitted).
[7] We granted plaintiff leave to file amended objections in this court after it failed to raise its bona-fide purchaser argument in its objections to the bankruptcy court's conclusions. (See Order, dated Sept. 9, 2008, at Dkt. # 73.) Defendants have renewed their objection to our ruling. TCC made its bona-fide purchaser argument in the bankruptcy court in its response to the defendants' objections. The entire matter, including defendants' own objections to the relevant portion of the bankruptcy court's conclusions, are subject to de novo review. We conclude that TCC has not waived this argument.
[8] Defendants argue that the bankruptcy court "retained jurisdiction to consider the effect of its Sale Order, including determining if the § 363 sale was properly conducted." (Defs.' Resp. in Opp'n to TCC's Am. Obj. at 3-4.) Insofar as defendants contend that the bankruptcy court has general, unfettered discretion to reconsider its final orders, that is not the law of this Circuit. See In re Met-L-Wood Corp., 861 F.2d 1012, 1018 (7th Cir.1988) ("[W]e hold that confirmed sales which are final judicial orders can be set aside only under Rule 60(b). We conclude that the old inherent power of to reconsider bankruptcy orders has been merged into the rule."). If a party cannot bring itself within one of Rule 60's narrow exceptions, applicable to bankruptcy orders pursuant to Fed. R. Bankr.P. 9024, it is not entitled to relief from a final sale order. See FutureSource, 312 F.3d at 286 ("[T]he order approving a bankruptcy sale is a judicial order and can be attacked collaterally only within the tight limits that Fed. R.Civ.P. 60(b) imposes on collateral attacks on civil judgments.").
[9] Defendants do not dispute that BMJ, who was the highest bidder at auction, paid "valuable consideration" for Compak's Business Assets. (See Sale Order ¶ 16.) They do contend that BMJ acted in bad faith, but their claim is predicated upon BMJ's failure to disclose at the sale hearing information that was already disclosed in the bankruptcy record. If we did not conclude that Edwards was otherwise distinguishable, see infra, we would not grant defendants summary judgment based on this equivocal evidence.
[10] Defendants effectively concede that Compak, as the debtor-licensor, could assume and assign the license with the bankruptcy court's approval. Cf. 11 U.S.C. § 365(c) (prohibiting trustees from assuming or assigning certain executory contracts without the other contracting party's consent).
[11] Johnson evidently believed, based on a legal opinion that he obtained from outside counsel, that he could retain ownership of the Subsequent Patents so long as he gave Compak a license to use the patents for "communion related invention[s]." (See Letter dated May 1, 1997, attached as Ex. 21 to TCC's App. of Ex., at 2.) The legal opinion refers generically to "courts" and "cases" but does not specifically cite any legal authority, so it is difficult to evaluate the attorney's conclusion. In any case, defendants did not raise this theory in the bankruptcy court and they have not raised it here. See United States v. Alden, 527 F.3d 653, 664 (7th Cir.2008) ("[I]t is not the obligation of this Court to research and construct the legal arguments available to parties.").
|
Case: 17-41042 Document: 00515059445 Page: 1 Date Filed: 08/01/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-41042 August 1, 2019
Lyle W. Cayce
AMBROSIO LONGORIA, Clerk
Plaintiff - Appellee
v.
HUNTER EXPRESS, LIMITED; SARBJIT SINGH BASATIA,
Defendants - Appellants
Appeal from the United States District Court
for the Southern District of Texas
Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
Cases with the simplest of facts can raise difficult legal issues on appeal.
So it is with this appeal from a three-day personal injury trial that resulted in
a verdict of more than $2.8 million for the plaintiff. The appeal raises issues
of error preservation, whether state or federal law governs challenges to the
excessiveness of damages in diversity cases, and the role of the “maximum
recovery” rule. After wading through these sometimes murky waters, we
vacate the award for future mental anguish as there was no evidence to
support any such award and vacate as excessive the award for future pain and
suffering and remand that award for a remittitur determination.
Case: 17-41042 Document: 00515059445 Page: 2 Date Filed: 08/01/2019
No. 17-41042
I.
Ambrosio Longoria and Sarbjit Singh Basatia are commercial
truckdrivers. They got into an accident in Laredo. Basatia went straight in a
turn-only lane while Longoria was properly making a left. The trucks collided,
rendering both inoperable. Longoria’s truck was pushed back into the
intersection. Basatia’s truck continued moving forward until it collided with
the shoulder of the road, bringing it finally to a halt.
Longoria walked away from the accident. But a few hours later, he began
experiencing back pain that prompted him to visit the emergency room. The
hospital took a few x-rays and gave him some painkillers, then let him go.
Longoria ended up just taking ibuprofen that night.
The next day, Longoria awoke in severe pain. He went to a physical
therapy center and began three months of rehabilitation. He did not work
during that time. At the end of this physical therapy, he was cleared to return
to work. But that was not the end of Longoria’s treatment. The therapy center
referred Longoria to a back specialist for continued care.
As part of that care, the doctor ordered an MRI to assess how Longoria’s
back was doing. The MRI showed Longoria had a bulging disc, a disc
pressuring a spinal nerve, and a herniated disc. The doctor gave Longoria two
options to manage the pain: a steroid shot or back surgery. Fearing surgery,
Longoria opted for the shot.
The injection wore off after a few months and the pain returned. Faced
with the same options of back surgery or short-term relief via the shot, this
time Longoria chose surgery. During surgery, the doctor discovered that the
injury was not a simple herniated disc but a bone spur protruding from
Longoria’s spine that was pinching his nerves.
Longoria underwent another three-month recovery period. Ultimately,
the operation alleviated some but not all of his pain. To this day, he has back
2
Case: 17-41042 Document: 00515059445 Page: 3 Date Filed: 08/01/2019
No. 17-41042
pain that regularly wakes him up at night. And every morning Longoria must
stretch for an hour to manage the pain. He typically must repeat that hour of
stretching later in the day because the discomfort returns. Around twice a
week, Longoria also takes ibuprofen for his back. He also is on a permanent
50-pound lifting restriction.
Longoria filed this negligence action against Basatia and Basatia’s
employer, Hunter Express. The jury found Defendants fully liable for the
accident. It awarded Longoria over $2.8 million in damages allocated as
follows:
• Past physical pain: $150,000;
• Future physical pain: $1 million;
• Past mental anguish: $120,000;
• Future mental anguish: $140,000;
• Past medical expenses: $94,243;
• Past physical impairment: $200,000;
• Future physical impairment: $1.1 million;
• Past disfigurement: $1,000; and
• Past lost wages: $15,000
Defendants sought a new trial, arguing that there was no basis for two
of the damage awards (future mental anguish and future physical impairment)
and that two others (future physical pain and past physical impairment) were
excessive. The district court denied the motion.
II.
The four issues Defendants press on appeal do not replicate those they
urged as the basis for a new trial. Two are the same. They continue to argue
that there is no support for the future mental anguish award, and they renew
their challenge to the excessiveness of the future pain award. Asking the trial
court to order a new trial for those reasons preserved the issues for our
consideration.
3
Case: 17-41042 Document: 00515059445 Page: 4 Date Filed: 08/01/2019
No. 17-41042
But Defendants add two new challenges. They contend for the first time
that a new trial should have been ordered because: (1) there is no basis for
finding any past mental anguish, and (2) the award for future physical
impairment is excessive. Because the trial court had no opportunity to assess
whether problems with these awards might warrant a new trial, Defendants
have forfeited these issues. Bueno v. City of Donna, 714 F.2d 484, 493–94 (5th
Cir. 1983) (“It is well-established that there can be no appellate review of
allegedly excessive or inadequate damages if the trial court was not given the
opportunity to exercise its discretion in a motion for a new trial.”); see also
Vargas v. Lee, 317 F.3d 498, 499 n.1 (5th Cir. 2003). 1
Defendants did not dispute the past mental anguish award on any basis
in the trial court. As to future physical impairment, the new trial motion
addressed it only under the “Sufficiency of Evidence” heading, which claimed
a “complete absence of proof.” A separate heading for “Excessive Damages
Award” does not mention future physical impairment. In one sense, a claim
that the award should be zero would seem to encompass as a “lesser included”
a claim that any amount is excessive. But the inquiries are distinct, as the
new trial motion recognizes in separating them. The sufficiency challenge asks
only whether there is any evidence for a jury’s award; if there is, the judge’s
job is at an end. An excessiveness challenge requires more extensive scrutiny,
including—as will be seen—consideration of verdicts in similar cases. And we
review the district court’s decision on remittitur only for an abuse of discretion.
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 438–39 (1996). We cannot
assess whether such discretion was abused if the district court was not asked
1 Forfeiture in this context can be overcome in exceptional circumstances. Bueno, 714
F.2d at 494. But that applies only to pure questions of law, which excessiveness review is
not, and miscarriages of justice, which the facts of this case do not present. Id.; Pounds
Photographic Labs, Inc. v. Noritsu Am. Corp., 818 F.2d 1219, 1226 (5th Cir. 1987).
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to exercise it in the first instance. Bueno, 714 F.2d at 493–94. Because the
Defendants did not ask the district court to conduct that review as part of its
discretionary call on whether to grant a new trial, the claim that the future
physical impairment award was excessive was not preserved for appeal. Id.;
Baker v. Dillon, 389 F.2d 57, 58 (5th Cir. 1968) (stating that there “can be no
appellate review [on the ground of excessive damages] if the trial court was not
given an opportunity to exercise its discretion on a motion for new trial”); see
also C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 796 (Tex. App.—
Houston [1st Dist.] 2004, no pet.) (“A request for relief by remittitur must,
therefore, be preserved in the trial court by a motion that seeks remittitur,
whether filed independently or as part of a motion for new trial.”).
III.
Moving on to the grounds for a new trial that Defendants did present to
the district court, we first consider the challenge to the excessiveness of the
award for future pain.
This is a diversity case. At first glance, that would indicate that the
question of what law applies to excessiveness review is straightforward. More
than two decades ago, the Supreme Court held that state law governs “review
[of] the size of jury verdicts” in diversity cases. Gasperini, 518 U.S. at 418,
430–31; see also Fair v. Allen, 669 F.3d 601, 604 (5th Cir. 2012) (explaining
that Gasperini required application of Louisiana’s standard for new trial
motions). Yet the parties focus on a federal judge-made doctrine—the
maximum recovery rule—for evaluating excessiveness. 2
2 Longoria argues Defendants did not cite the maximum recovery rule in arguing
excessiveness to the district court. We need not resolve whether this constituted forfeiture
because we end up concluding the result is the same under either the state standard
Defendants did urge below or the federal rule. While we conclude the maximum recovery
rule does play a role in determining the amount of remittitur that should be set on remand,
as we explain that rule helps the plaintiff by preserving as much of the award as the law
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Some background on the maximum recovery rule is helpful at this point.
Judge Rubin, during his time on the district court, provided an early
explanation of the rule in deciding the amount of a remittitur after our court
had remanded a case with an excessive verdict. See Glazer v. Glazer, 278 F.
Supp. 476, 478–82 (E.D. La. 1968), cited in Gorsalitz v. Olin Mathieson Chem.
Corp., 429 F.2d 1033, 1047 (5th Cir. 1970) (adopting maximum recovery rule
at circuit level). He noted that courts had followed three approaches in setting
the amount of a remittitur that a plaintiff could accept in lieu of a new trial:
award the lowest amount the jury could have awarded, award the highest
amount the jury could have awarded, or set an amount the court would have
awarded. Glazer, 278 F. Supp. at 478–79 (citing 6A MOORE’S FED. PRAC., at
3743–44 (2d ed. 1966)). Judge Rubin opted for the highest award the law
allowed—thus the “maximum recovery” label—because that approach
preserves as much of the jury’s award as possible and, relatedly, is the only
remittitur approach he thought compatible with the Seventh Amendment. Id.
at 481–82. Although these rationales for the maximum recovery rule are
usually not apparent because it applies when a verdict is being reduced, the
rule is actually a pro-jury and pro-plaintiff one.
Over time we have developed a method for determining the maximum
amount a jury could have awarded. The inquiry looks to other published
decisions from the relevant jurisdiction (in a diversity case, the forum state)
involving comparable facts. Lebron v. United States, 279 F.3d 321, 326 (5th
Cir. 2002). The rule allows some leeway, so it permits a verdict at 150% of the
highest inflation-adjusted recovery in an analogous, published decision. Puga
permits. So a defendant cannot forfeit a rule that benefits the plaintiff. And the decision to
offer a remittitur option in lieu of a new trial is a discretionary act of the court.
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v. RCX Solutions, Inc., 922 F.3d 285, 298 n.12 (5th Cir. 2019); Thomas v. Tex.
Dep’t of Crim. Justice, 297 F.3d 361, 369 n.8 (5th Cir. 2002). 3
But we have been inconsistent about where in the analysis the rule has
a role. Sometimes we apply maximum recovery at the outset to determine
whether the damages are excessive. See, e.g., Moore v. M.V. Angela, 353 F.3d
376, 384 (5th Cir. 2003); Lebron, 279 F.3d at 328. Other times we use the rule
only to determine how much of a reduction is warranted after deciding the
award is excessive. 4 See, e.g., Giles v. Gen. Elec. Co., 245 F.3d 474, 489 (5th
Cir. 2001); Denton v. Morgan, 136 F.3d 1038, 1046 (5th Cir. 1998). This
difference may matter to the Erie question.
The state/federal issue is presented because Texas does not use the
maximum recovery rule. It instead conducts a more holistic assessment at
both stages of the inquiry. Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986)
(explaining that factual sufficiency of the evidence is the “sole remittitur
standard”). Texas review for excessiveness uses the same standard as any
factual sufficiency claim. Id. The question boils down to whether the evidence
introduced at trial would allow a reasonable, fair-minded jury to come to the
verdict the actual jury reached. Waste Mgmt. of Tex., Inc. v. Tex. Disposal
Systems Landfill, Inc., 434 S.W.3d 142, 159–60 (Tex. 2014). The strong
deference afforded the jury’s judgment is overcome when the jury’s damage
award is “so factually insufficient or so against the great weight and
3 One of the inconsistencies in maximum recovery caselaw is whether a 150% or 133%
multiplier applies. Compare Giles v. Gen. Elec. Co., 245 F.3d 474, 489 (5th Cir. 2001) (150%
multiplier), with Lebron, 279 F.3d at 326 (133% multiplier). We resolved that inconsistency
by explaining that we had applied the 133% multiplier only in bench trials. See Thomas, 297
F.3d at 369 n.8. The 150% multiplier applies to jury trials. Id. (citing Salinas v. O’Neill, 286
F.3d 827, 831 n.6 (5th Cir. 2002)).
4 Judge Rubin thought the rule addressed both problems: “The same standard that
guides a court in deciding that a verdict is so excessive as to require a new trial should guide
it in determining the amount of remittitur.” Glazer, 278 F. Supp. at 482.
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preponderance of the evidence as to be manifestly unjust.” Pope, 711 S.W.2d
at 624 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).
Although the guiding principle is factual sufficiency, a court may look to
approved awards in other cases to help determine if the award under review is
excessive. SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 250 (Tex.
App.—Texarkana 2005, no pet.). So whereas a comparison to other verdicts is
the lodestar for the federal maximum recovery rule, it is only part of the Texas
inquiry.
Does the federal maximum recovery rule or the more general Texas
inquiry govern a diversity case? We have already noted that Gasperini is on
point. Some of our precedent recognizes that. Fair, 669 F.3d at 604;
Learmonth v. Sears, Roebuck & Co., 631 F.3d 724, 735 (5th Cir. 2011); Foradori
v. Harris, 523 F.3d 477, 497 (5th Cir. 2008). Yet our law is again inconsistent.
As recently as this year, we have applied the maximum recovery rule in a
diversity case to answer the initial question whether damages are excessive.
See Puga, 922 F.3d at 297; see also Vogler v. Blackmore, 352 F.3d 150, 156 (5th
Cir. 2003). But most of our cases do not grapple with the continued use of the
maximum recovery rule after Gasperini because the parties often do not raise
the Erie issue. See Puga, 922 F.3d at 297; Vogler, 352 F.3d at 156.
There may be a solution to the Erie puzzle in what other circuits do. The
Second Circuit now applies the the maximum recovery rule only at the second
step—determining size of the remittitur—explaining that the rule operates
only to “minimize the extent of judicial inference with . . . the jury’s domain.”
Rangolan v. Cty. of Nassau, 370 F.3d 239, 244 (2d Cir. 2004) (quotation
omitted); see also Foradori, 523 F.3d at 505 n.21 (Dennis, J., writing for
himself) (describing the rule as operating simply to protect the “constitutional
allocation of fact-finding to the jury”). Other circuits have done the same post-
Gasperini: Use state law to determine whether damages are excessive but
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retain a role for the maximum recovery rule in setting any remittitur. See
Wright v. Byron Fin., LLC, 877 F.3d 369, 374 (8th Cir. 2017); Jabat, Inc. v.
Smith, 201 F.3d 852, 857–58 (7th Cir. 2000); Koster v. Trans World Airlines,
Inc., 181 F.3d 24, 36 (1st Cir. 1999); see also CYCLOPEDIA OF FED. PROC. § 34:28
n.2 (3d ed.) (recognizing role for maximum recovery role at remittitur stage);
2A FED. PROC., LAWYER’S ED. § 3:885 (explaining that the maximum recovery
rule is used to determine the size of the remittitur). We agree that it does not
override state substantive law to use the maximum recovery rule as a
guidepost in setting a remittitur, which is itself a discretionary act. See 11
Charles Alan Wright et al., FED. PRAC. & PROC. § 2815 (3d ed.) (“The final
determination whether a new trial or remittitur is appropriate is committed to
the sound discretion of the trial court.”).
For the threshold excessiveness determination where Gasperini seems
to apply, we need not definitively reconcile our caselaw and resolve the issue
because the outcome is the same under the Texas or federal standard. See
Learmonth, 631 F.3d at 738 n.4 (considering award under state law and the
maximum recovery rule because parties discussed both standards). Under
either Texas sufficiency review or the federal maximum recovery rule, the $1
million award for future physical pain is too high.
Here is the evidence of future pain. Longoria must perform an hour of
stretching and warming up every morning. Then, most afternoons, the pain
returns, and he must repeat the stretching. Around twice a week, the
stretching is insufficient pain management, and he must take ibuprofen. The
pain is severe enough that it wakes him up roughly four times per week.
Longoria describes the pain as a “burning” and “tingling” sensation. He also
sometimes experiences a feeling of numbness. Longoria’s doctor believes the
current pain will be permanent. And there is a risk that the two discs still
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facing pressure from the bone spur will pinch a nerve and cause further pain,
so Longoria is on a permanent 50-pound lifting restriction.
This pain is significant. But an award of $1 million is “contrary to the
overwhelming weight of the evidence,” given that Longoria can mostly manage
the pain by stretching and taking over-the-counter medicine. 5 Cresthaven
Nursing Residence v. Freeman, 134 S.W.3d 214, 228 (Tex. App.—Amarillo
2003, no pet.). Such a large award cannot be said in this situation to “fairly
and reasonably compensate” Longoria. Saenz v. Fid. & Guar. Ins.
Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). Although these types of
awards are necessarily imprecise, the jury “cannot simply pick a number and
put it in the blank.” Id. This million-dollar award looks close to that. Pain
that can largely be managed through nonprescription methods does not
warrant such a sizeable recovery.
Jury awards in comparable cases, a factor in the Texas analysis and the
benchmark under the federal rule, support the view that $1 million is
excessive. In one case, the plaintiff, like Longoria, tried numerous remedies
before eventually undergoing surgery. Pilgrim’s Pride Corp. v. Smoak, 134
S.W.3d 880, 904 (Tex. App.—Texarkana 2004, pet. denied). The surgery
helped with the pain but did not cure it. Due to pain, the plaintiff could no
longer work in his former profession. And like Longoria, he was put on a lifting
restriction. Id. at 904–05. That plaintiff received just $25,000 for future
physical pain and mental anguish combined. Id. at 887. In another case, the
plaintiff ruptured two discs, had muscle atrophy in one arm, and developed an
irregular spinal curvature. Roberts v. Tatum, 575 S.W.2d 138, 141 (Tex.
App.—Corpus Christi 1978, write ref’d n.r.e.). Like Longoria, he described
5It bears noting that the inconvenience of managing the pain, and other ways in which
the lingering injuries inhibit Longoria’s enjoyment of life activities, are accounted for in the
separate award for future physical impairment.
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numbness and burning sensations. Id. The plaintiff received today’s
equivalent 6 of approximately $100,000 for both future physical pain and
mental anguish. Id. The highest recovery for future pain we found in a case
bearing even a semblance of similarity to Longoria’s is $500,000. Primoris
Energy Servs. Corp. v. Myers, 569 S.W.3d 745, 754 (Tex. App.—Houston [1st
Dist.] 2018, no pet.). That plaintiff was hit by a truck while on his four-
wheeler. Like Longoria, he underwent major back surgery and was left with
two herniated discs that could result in further injury if a lifting restriction is
not followed. Id. at 761. As in this case, the plaintiff’s doctor did not prescribe
any painkillers, but pain persists. Id. If anything, the pain in Primoris Energy
seems marginally greater than what the evidence shows in this case. For
example, the lifting restriction for that plaintiff was 20–30 pounds. Id. The
half-a-million-dollar award upheld in that case thus seems to be the outer
range of awards for this type of future pain. Even when the Primoris Energy
verdict is multiplied as the maximum recovery rule allows, Longoria’s million-
dollar award is still excessive. Under either the federal or state standard, the
full award cannot stand.
The next question is remittitur, the step at which we agree with other
circuits that the maximum recovery rule still has a role. We have discretion to
set that amount or remand for the district court to do so. Koster, 181 F.3d at
36. Following the path we took more than 50 years ago in the remand that led
Judge Rubin to adopt the maximum recovery rule, we will allow the district
court to finalize the amount. Glazer v. Glazer, 374 F.2d 390, 414 (5th Cir.
1967); see also Puga, 922 F.3d at 298 (remanding for the district court to
6 We adjusted the award to account for inflation. For the calculation, we used the date
April 2016, when Longoria’s accident occurred. See Wharf Cat, Inc. v. Cole, 567 S.W.2d 228,
233 (Tex. App.—Corpus Christi, 1978, writ ref’d n.r.e.); Puga, 922 F.3d at 298 n.12. We used
the CPI Inflation Calculator from the Bureau of Labor Statistics, available at
https://data.bls.gov/cgi-bin/cpicalc.pl. See Puga, 922 F.3d at 298 n.12.
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finalize the remittitur amount). Having presided over the trial, it has greater
familiarity with the evidence of future pain from which to evaluate which cases
are comparable. We thus remand for that determination.
IV.
Legal complexities do not plague the final question we address about the
future mental anguish award. This time Defendants urge that we follow the
state standard, which asks whether the jury’s verdict is “so contrary to the
overwhelming weight of the evidence that the verdict is clearly wrong and
unjust.” Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).
The Supreme Court of Texas has “admonished courts to closely scrutinize”
mental anguish awards. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex.
1997). To recover for mental anguish, a plaintiff generally must provide
evidence that the anguish created a “substantial disruption” in the plaintiff’s
“daily routine” or caused a “high degree of mental pain and distress.” Saenz,
925 S.W.2d at 614. The anguish must be “more than mere worry, anxiety,
vexation, embarrassment, or anger.” Id. (quoting Parkway Co. v Woodruff, 901
S.W.2d 434, 444 (Tex. 1995)).
The evidence of future anguish is sparse. Longoria points to his fear that
he may be unable to keep working as a truck driver. He testified that this
occupation is his “childhood dream” and that without it, he could not support
his family. But Longoria is cleared to work, and no doctor indicated his ability
to work may change in the future. His understandable concern for the future
is not the high degree of distress or frequent disruption Texas law requires.
Even when a plaintiff was no longer working as a result of injuries, her worries
that her family could lose its house did not “rise to the level of compensable
mental anguish.” Saenz, 925 S.W.2d at 614. It follows that Longoria’s more
speculative fear is not compensable.
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Longoria also testified that he “sometimes [feels] just useless” due to his
inability to help with many jobs around the house or ride roller coasters with
his grandchildren. This too fails to rise to the level of a substantial disruption
in his routine that would support an award for mental anguish. See Katy
Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 598 (Tex. App.—Houston
[14th Dist.] 2015, pet. denied) (denying a future mental anguish award to a
plaintiff whose doctor testified that he appeared depressed and faced a “bleak
future unless he received psychiatric treatment”).
The record does not support any award for future mental anguish.
***
We AFFIRM the district court as to the damage awards for past mental
anguish and future physical impairment, VACATE the full award for future
mental anguish, and VACATE and REMAND the future physical pain award
for the district court to determine a remittitur.
13
|
94 F.Supp.2d 18 (2000)
Richard COLEMAN, et al., Plaintiffs,
v.
The PENSION BENEFIT GUARANTY CORPORATION, Defendant.
No. 99-278 SSH.
United States District Court, District of Columbia.
March 21, 2000.
*19 Susan S. Sauntry, Washington, DC, for plaintiffs.
Jeffrey Bruce Cohen, Nancy Snyder Heermans, Pension Benefit Guaranty Corp., Office of the General Counsel, Washington, DC, for defendant.
OPINION
STANLEY S. HARRIS, District Judge.
Before the Court are defendant's motion to dismiss, plaintiffs' opposition thereto, defendant's reply, and plaintiffs' surreply. Upon consideration of the entire record, the Court denies defendant's motion. Although findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56, see Fed.R.Civ.P. 52(a); Summers v. Department of Justice, 140 F.3d 1077, 1079-80 (D.C.Cir.1998), the Court nonetheless sets forth its reasoning.
BACKGROUND
Plaintiffs are former employees of McLouth Steel Products Corporation ("McLouth Products") who claim benefits under a pension plan, the "Products Plan," previously administered by McLouth Products. All of the plaintiffs were laid off by McLouth Products in March 1996, after it closed its production plants; the Products Plan was terminated effective August 11, 1996. Defendant Pension Benefit Guaranty Corporation ("PBGC") is a federal agency that administers the pension plan termination insurance program under Title IV of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1301-1461. When a covered pension plan terminates with insufficient assets to satisfy pension obligations, PBGC becomes the trustee of the plan and guarantees payment of certain pension benefits to plan participants. See generally Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 636-640, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990). PBGC became trustee of the Products Plan upon the plan's termination.
The background to this litigation spans almost twenty years. McLouth Products's predecessor, McLouth Steel Corporation ("MSC"), administered the McLouth Pension Plan for Union Employees (the "Hourly Plan"). In 1981, MSC filed for bankruptcy. Approximately one year later, McLouth Products purchased substantially all of MSC's assets out of bankruptcy. As part of that transaction, MSC transferred certain assets and liabilities of the Hourly Plan to McLouth Products's newly-created Products Plan. MSC then filed an application with PBGC to terminate the Hourly Plan. Thereafter, PBGC became statutory trustee of the Hourly Plan.
PBGC objected to the spin-off of assets and liabilities from the Hourly Plan to the Products Plan. After several years of negotiations among PBGC, McLouth Products, and the United Steelworkers of America (the "Union") about the spin-off and proposed termination of the Hourly Plan, the parties reached an agreement (the "Settlement Agreement") in 1988. In that agreement, McLouth Products agreed to "spin-back" certain assets and liabilities from the Products Plan to the Hourly Plan, and to grant PBGC a lien on its assets in order to secure certain minimum funding obligations of the Products Plan, which had been waived. See Def.'s Motion, Ex. 2, ¶¶ 5.1-5.3, 6. The Settlement Agreement also provided that, if the amount of assets and liabilities spun back *20 to the Hourly Plan needed to be changed as a result of guidance that McLouth Products was seeking from the Internal Revenue Service (the "IRS"), the parties would adjust the amounts accordingly. Id. ¶ 5.3. Under the terms of the Settlement Agreement, the reconstituted Hourly Plan was terminated effective November 30, 1982. Id. ¶ 1.1.
On September 29, 1995, McLouth Products filed for bankruptcy under Chapter 11 of the United States Bankruptcy Code. Shortly thereafter, McLouth Products, PBGC, and the Union agreed to amend the Products Plan to suspend the provision of Layoff Pension Benefits ("LPBs"), which allowed plan participants meeting a combination of age and service requirements to take early retirement with enhanced benefits in the event of a layoff. See Compl. ¶¶ 26, 34. Under the terms of the Products Plan, such an amendment required the consent of the Union. Plaintiffs allege that McLouth Products and PBGC obtained the Union's consent to this amendment by failing to advise the Union and company employees of the imminent termination of the Products Plan; according to plaintiffs, they were led to believe that, if the plan were amended in the manner described, it would not be terminated and the plants would not be closed. See id. ¶¶ 36-38. On October 27, 1995, McLouth Products amended the Products Plan by suspending LPBs for the duration of its period in bankruptcy.
On February 2, 1996, McLouth Products, PBGC, and the Union entered into a Memorandum of Understanding ("MOU"), in which they agreed, in relevant part, that: (1) McLouth Products would transfer $12.68 million of assets from the Products Plan to PBGC, as statutory trustee of the Hourly Plan, in order to complete the spin-back of assets provided for in the Settlement Agreement[1]; (2) PBGC would not commence proceedings to terminate the Products Plan until (a) a permanent shutdown of a McLouth Products plant occurred, (b) McLouth Products's Chapter 11 proceedings were converted to Chapter 7 liquidation proceedings, or (c) substantially all of McLouth Products's assets were sold; and (3) in the event of termination, the Products Plan's effective termination date would be one day before the triggering event. Def's Motion, Ex. 3, ¶¶ 1-3. Plaintiffs allege that the $12.68 million asset transfer was only made possible by the amendment to the Products Plan suspending the plan's obligation to pay LPBs, and that McLouth Products received significant tax credits or waivers and secured the removal of PBGC's liens on its assets as a quid pro quo for the asset transfer.[2]See Pls.' Opp'n at 3. McLouth Products effected the $12.68 million asset transfer on February 5, 1996.
In March 1996, McLouth Products closed its production plants and laid off its non-managerial workforce. On August 12, 1996, the Bankruptcy Court approved an agreement in which McLouth Products sold substantially all of its assets. In accordance with the terms of the MOU, PBGC terminated the Products Plan as of August 11, 1996, and thereafter became its trustee. At some point in the fall of 1996, a meeting was held for Products Plan participants at which a PBGC representative was present. Plaintiffs allege that the representative advised the participants that they could not claim LPBs because the LPBs had been eliminated in order to protect existing retirees under the plan. See Pls.' Opp'n, Exs. B, C, D & E.
Plaintiffs filed the instant lawsuit as a class action on behalf of all participants in the Products Plan who were laid off by McLouth Products after October 27, 1995, *21 and who were eligible to claim LPBs. See Compl. ¶ 48. Plaintiffs' complaint alleges two ERISA violations. Count I alleges that the plan amendment suspending LPBs is invalid because it contravened 29 U.S.C. § 1054(g)(1), which states that an "accrued benefit of a participant under a plan may not be decreased by an amendment of the plan." In the alternative, Count I alleges that the amendment is invalid because the Union's consent was obtained through misrepresentation. Count II alleges that the transfer of $12.68 million in Products Plan assets to PBGC was a prohibited transaction in violation of 29 U.S.C. § 1106 because it benefitted McLouth Products.[3] Plaintiffs request that the Court declare the amendment to the Products Plan invalid, require PBGC to pay LPBs to all class members, and require PBGC to repay the Products Plan $12.68 million. In the motion pending before the Court, PBGC argues that Count I should be dismissed because plaintiffs have not exhausted their available administrative remedies, and that Count II should be dismissed because it fails to state a claim upon which relief can be granted.
STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure should not be granted "unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief."[4]Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994); accord Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint is construed liberally in plaintiffs' favor, and plaintiffs are given the benefit of all inferences that can be derived from the facts alleged. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C.Cir.1997); Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1334-35 (D.C.Cir.1985). "However, the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal, 16 F.3d at 1276.
In the event matters outside the pleadings are presented to and not excluded by the Court, and the Court assures itself that such treatment would be fair to both parties, a motion to dismiss under Rule 12(b)(6) may be treated as one for summary judgment and disposed of as provided in Federal Rule of Civil Procedure 56. Fed.R.Civ.P. 12(b); Americable Int'l Inc. v. Department of the Navy, 129 F.3d 1271, 1274 n. 5 (D.C.Cir.1997); Tele-Communications, 757 F.2d at 1334. Because the Court will consider various matters outside the pleadings raised by both parties in connection with their briefing of the instant motion, it treats PBGC's motion to dismiss as one for summary judgment. Summary judgment may be granted only if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Mere allegations in the pleadings, however, are not sufficient to defeat a summary judgment motion; if the moving *22 party shows that there is an absence of evidence to support the nonmoving party's case, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. See Fed. R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
DISCUSSION
A. Count I Failure To Exhaust
PBGC argues that plaintiffs have failed to exhaust their administrative remedies by not availing themselves of the required procedures for challenging benefit determinations. Under PBGC regulations, once PBGC becomes statutory trustee of a terminated pension plan, it makes an initial benefits determination as to each plan participant, sending them an initial determination letter ("IDL"). See 29 C.F.R. §§ 4003.1(a), (b)(6) and (7), 4003.21. A participant who wants to challenge the IDL must file an appeal with the PBGC Appeals Board. Id. § 4003.7. The subsequent decision of the Appeals Board constitutes final agency action, at which point the participant may seek judicial review. Id. § 4003.59(b). PBGC argues that, because plaintiffs have not presented their claim for LPBs to the Appeals Board, they have failed to exhaust their administrative remedies. Plaintiffs do not dispute their failure to exhaust, but rather contend that it would be futile to pursue their claim within the agency. Alternatively, plaintiffs contend that the exhaustion requirement does not apply to their claim because it asserts a statutory ERISA violation, as opposed to a violation of the terms of their pension plan.
At the outset, the Court notes that plaintiffs seeking a determination pursuant to ERISA of their rights under a pension plan must generally exhaust the administrative remedies available under their plan. See Communications Workers of America v. American Tel. & Tel. Co., 40 F.3d 426, 431 (D.C.Cir.1994) (quoting Springer v. Wal-Mart Assocs. Group Health Plan, 908 F.2d 897, 899 (11th Cir. 1990)). Nevertheless, when a plaintiff alleges a statutory violation of ERISA, the courts are divided over whether the exhaustion requirement applies. Compare Powell v. A.T. & T. Communications, Inc., 938 F.2d 823, 825-26 (7th Cir.1991) (exhaustion requirement applies); Simmons v. Willcox, 911 F.2d 1077, 1081 (5th Cir. 1990) (same); Curry v. Contract Fabricators Inc. Profit Sharing Plan, 891 F.2d 842, 846 (11th Cir.1990) (same), with Zipf v. American Tel. & Tel. Co., 799 F.2d 889, 891 (3d Cir.1986) (exhaustion requirement does not apply); Amaro v. Continental Can Co., 724 F.2d 747, 752 (9th Cir.1984) (same). Although the Court of Appeals for the D.C. Circuit has not decided this issue, at least three district judges in this Circuit have concluded that exhaustion is not required before a court may rule on an asserted violation of ERISA's statutory protections. See Greer v. Graphic Communications Int'l Union Officers, 941 F.Supp. 1, 3 (D.D.C.1996); Garvin v. American Ass'n of Retired Persons, 1992 WL 693382, *3-4 (D.D.C.1992); Rauh v. Coyne, 744 F.Supp. 1186, 1191-92 (D.D.C. 1990). In the absence of controlling precedent, the Court is persuaded by the Third Circuit's finding in Zipf that there is "no indication in [ERISA] or its legislative history that Congress intended to condition a plaintiff's ability to redress a statutory violation in federal court upon the exhaustion of internal remedies. The provision relating to internal claims and appeals procedures, Section 503, refers only to procedures regarding claims for benefits."[5]*23 Zipf, 799 F.2d at 891. Thus, the Court concludes that the exhaustion requirement does not apply to claims asserting statutory violations. Because Count I of plaintiffs' complaint alleges that the amendment to the Products Plan suspending LPBs violated 29 U.S.C. § 1054(g), plaintiffs were not required to exhaust available administrative remedies before bringing their claim in federal court.[6]
Furthermore, even if the exhaustion requirement did apply, plaintiffs' failure to exhaust their administrative remedies would be excused on the ground of futility. Futility is a recognized exception to the exhaustion requirement. See Communications Workers, 40 F.3d at 432. Nevertheless, it is a narrow one, and requires that there be a "certainty of an adverse decision," or some other indication that resort to the administrative process would be "clearly useless." Id. (internal quotations omitted). That requirement is met here. First, PBGC's position as to plaintiffs' entitlement to LPBs was well-established; not only did PBGC participate in drafting the amendment to the Products Plan which terminated the availability of LPBs, but a PBGC representatives advised plan participants, at a meeting in 1996, that they could not claim LPBs. See Pls.' Opp'n, Exs. B, C, D & E. And, although PBGC argues that the Appeals Board ultimately could decide that plaintiffs are entitled to LPBs, the fact remains that LPBs no longer exist because they have been amended out of the plan. In this vein, the crux of plaintiffs' claim does not concern eligibility for LPBs under the terms of the Products Plan, but rather challenges the legality of the amendment. See Costantino v. TRW, Inc., 13 F.3d 969, 974-75 (6th Cir.1994) (resort to administrative process futile because plaintiffs' claim directed at legality, rather than interpretation, of plan amendment). Under these circumstances, the Court finds that plaintiffs' resort to PBGC review procedures would have been clearly useless.[7] Accordingly, any obligation of plaintiffs to exhaust their administrative remedies is excused on the ground of futility.
Because the Court concludes that the exhaustion requirement does not apply to ERISA claims alleging statutory violations and, if it did, would be excused as to plaintiffs' claim, PBGC's motion to dismiss Count I of plaintiffs' complaint is denied.
B. Count II Failure To State a Claim Upon Which Relief Can Be Granted
PBGC argues that Count II should be dismissed for failure to state a claim upon which relief can be granted because (1) PBGC was not a fiduciary to the Products Plan at the time of the asset transfer; (2) its actions were specifically authorized by ERISA; and (3) the transfer did not benefit *24 McLouth Products. PBGC's arguments are unavailing.
At the outset, the Court finds it necessary to clarify the nature of plaintiffs' claim. Count II of plaintiffs' complaint alleges that "[t]he payment of $12.7 Million in Plan assets to the PBGC benefitted McLouth by reducing the amount owed to the PBGC by McLouth. The payment was thus a prohibited transaction in violation of § [406] of ERISA, 29 U.S.C. § 1106." Compl. ¶¶ 68-69. In their opposition brief, however, plaintiffs appear to expand their theory as to the source of the alleged statutory violation; plaintiffs now allege that McLouth Products received "approximately $13 million in tax credits or waivers and also had the PBGC's liens [on its assets] removed, as part of a transaction in which McLouth Products caused the Products Plan to pay $12.7 million to the PBGC, and in which the Plan was unlawfully amended to eliminate accrued benefits and thereby free up funds to enable the rest of the transaction."[8] Pls.' Opp'n at 16. Plaintiffs contends that this transaction is prohibited by ERISA § 406(b)(2) and (3), because McLouth Products, a fiduciary to the Products Plan, received consideration for its own personal account in dealing with the PBGC in a transaction involving plan assets.[9]See Pls.' Opp'n at 16.
PBGC argues that Count II should be dismissed because ERISA does not hold fiduciaries liable for breaches of fiduciary duty committed before becoming fiduciaries, see 29 U.S.C. § 1109(b); at the time of the $12.68 million asset transfer, PBGC had not yet become a fiduciary of the Products Plan.[10]See Def.'s Statement of Points and Authorities in Support of Motion at 10. Nevertheless, plaintiffs do not seek to hold PBGC retroactively liable *25 for a breach of a fiduciary duty. Rather, the crux of plaintiffs' claim is that PBGC knowingly assisted McLouth Products a fiduciary of the Products Plan at the time of the asset transfer engage in a transaction prohibited by ERISA § 406(b)(2) and (3). Courts have recognized a cause of action for equitable relief against a nonfiduciary for participation in a prohibited transaction under ERISA § 406. See, e.g., LeBlanc v. Cahill, 153 F.3d 134, 151-153 (4th Cir.1998); Herman v. S.C. Nat'l Bank, 140 F.3d 1413, 1422 (11th Cir.1998); Landwehr v. DuPree, 72 F.3d 726, 734 (9th Cir.1995). Of direct relevance here, the Fourth Circuit has held that a nonfiduciary can be held liable for knowingly participating in a transaction prohibited by § 406(b)(2) and (3). See LeBlanc, 153 F.3d at 151-153. Accordingly, PBGC's status as a nonfiduciary at the time of the $12.68 million asset transfer does not warrant dismissal of Count II.
Nor do PBGC's remaining two arguments compel the Court to dismiss Count II. PBGC argues that its actions were specifically authorized by ERISA because, as statutory trustee for the Hourly Plan, it was empowered to "require the transfer of all (or any part) of the assets and records of the plan to [it]self as trustee." 29 U.S.C. § 1342(d)(1)(A)(ii). Because the $12.68 million of assets were part of the spin-back of assets from the Products Plan to the Hourly Plan, PBGC argues that it was authorized to receive the asset transfer. PBGC also argues for dismissal of Count II on the ground that McLouth Products could not have benefitted from the asset transfer because, by decreasing the Products Plan's assets, McLouth Products actually increased the amount of its unfunded benefit liabilities. Nevertheless, both of PBGC's arguments ignore that portion of plaintiffs' (now clarified) claim alleging that McLouth Products received $13 million in tax credits or waivers, and the removal of liens on its assets, as part of a quid pro quo for the asset transfer.[11] Although PBGC has shown that it was authorized to receive moneys owed to the Hourly Plan, it has not explained how its role as statutory trustee of the Hourly Plan authorized it to engage in the form of quid pro quo alleged by plaintiffs. Nor has PBGC explained why the alleged tax credits or waivers and lien removal if actually part of the asset transfer agreement did not benefit McLouth Products.[12] Thus, at this stage *26 of the litigation, the Court concludes that the alleged tax credits or waivers and lien removal constitute a genuine issue of material fact, and that PBGC is not entitled to judgment as a matter of law. Accordingly, PBGC's motion with respect to Count II is denied.
CONCLUSION
For the foregoing reasons, PBGC's motion to dismiss plaintiffs' complaint is denied.
NOTES
[1] PBGC refers to the amount of the asset transfer as $12.6 million, while plaintiffs refer to it as $12.7 million. The MOU states that the amount of the transfer was $12,680,293.00. Rounding to the nearest ten-thousand, the Court uses the figure $12.68 million to describe the amount of the transfer.
[2] The MOU does not contain any provision pertaining to the grant of tax credits or removal of liens. Plaintiffs allege that "[t]he parties failed to document [these] key elements in their agreement." Pls.' Opp'n at 5 n. 5.
[3] For further elaboration of this claim, see infra Discussion, Part B.
[4] PBGC moves to dismiss Count II of plaintiffs' complaint under Rule 12(b)(6). Nevertheless, PBGC does not specify under which subsection of Rule 12(b) it moves to dismiss Count I. Because exhaustion of internal remedies under ERISA is not a prerequisite to a court's exercise of jurisdiction, but rather a matter of judicial discretion, see McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), and because "Rule 12(b)(6) forms a proper basis for dismissal for failure to exhaust administrative remedies," Taylor v. United States Treasury Dep't, 127 F.3d 470, 478 n. 8 (5th Cir.1997), the Court treats PBGC's motion to dismiss Count I as one under Rule 12(b)(6).
[5] PBGC attempts to distinguish those cases holding that the exhaustion requirement does not apply to claims of statutory violations on the ground that they involve private arbitration procedures, whereas this case involves public administrative procedures because PBGC is administering the Products Plan as statutory trustee. Thus, PBGC argues, its involvement in this case implicates "[w]ell-established principles of administrative law dictat[ing] that the court allow the agency to interpret the law before they determine whether the agency has violated it." Def.'s Reply at 3 (quoting Action for Children's Television v. F.C.C., 59 F.3d 1249, 1256 (D.C.Cir. 1995), cert. denied, 516 U.S. 1072, 116 S.Ct. 773, 133 L.Ed.2d 726 (1996)). Nevertheless, PBGC does not argue that it should be allowed to interpret and apply the statutory provisions at issue in Count II, even though Count II also involves an asserted statutory violation. See infra Part B. In light of PBGC's disparate application of the exhaustion requirement to the statutory claims in this case, as well as the lack of any indication in ERISA or its legislative history that Congress intended the exhaustion requirement to apply to claims of statutory violations, the Court finds it unnecessary to accord PBGC the deference it now seeks.
[6] PBGC argues that complex factual issues are involved in this case which are better suited, as an original matter, for administrative review; according to PBGC, if the amendment eliminating LPBs is invalid, plaintiffs' right to those benefits under the terms of the Products Plan will depend on when the McLouth Products plants were permanently shut down. See Def.'s Reply at 2 & n. 4. Nevertheless, on the basis of the record before it, the Court does not find this issue to be any more complex than other factual issues routinely adjudicated in a judicial forum.
[7] Since filing their motion to dismiss, PBGC has offered to review plaintiffs' LPB claims en masse before issuing IDLs. See Def.'s Reply at 1-2. Nevertheless, inasmuch as PBGC's greater willingness to consider plaintiffs' claim appears to have been prompted by plaintiffs' initiation of this litigation, the Court finds that it has no bearing on the futility prong of the exhaustion analysis.
[8] PBGC notes that plaintiffs have abandoned the theory espoused in their complaint as to how McLouth Products benefitted from the asset transfer; Count II alleges that the company benefitted from the transfer because the transfer reduced the amount it owed PBGC, whereas plaintiffs' opposition brief asserts that the company benefitted from the transfer because it received tax credits or waivers and the removal of PBGC's liens on its assets. "[I]t is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss." Morgan Distributing Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir.1989) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984)). Nevertheless, it is also well-established that a complaint must be liberally construed and in a manner most favorable to the plaintiff. See Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C.Cir.1983). The Federal Rules of Civil Procedure do not require a plaintiff "to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is `a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99 (quoting Fed.R.Civ.P. 8(a)(2)); accord Sinclair, 711 F.2d at 293. The Court finds that, although the complaint sets forth a different theory as to how McLouth Products benefitted from the asset transfer than plaintiffs' opposition brief, it provided PBGC with fair notice of the "clarified" claim plaintiffs now assert because it identified the allegedly prohibited transaction and the general nature of the alleged statutory violation that McLouth Products benefitted from the transaction.
[9] Sections 406(b)(2) and (3) of ERISA state:
A fiduciary with respect to a plan shall not ... (2) in his individual or in any other capacity act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries, or (3) receive any consideration for his own personal account from any party dealing with such plan in connection with a transaction involving the assets of the plan.
29 U.S.C. § 1106(b)(2) and (3).
[10] As relevant here,
a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, ... or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.
29 U.S.C. § 1002(21). PBGC did not become a fiduciary to the Products Plan until August 1996, when the plan terminated and PBGC became statutory trustee.
[11] Plaintiffs have submitted affidavits from two union officials the President and Recording Secretary which state that, during a meeting of the Union, McLouth Products, and PBGC in the fall of 1995, they were informed of an agreement in which the PBGC would remove the liens it held on McLouth Products's assets in exchange for the asset transfer. See Pls.' Opp'n, Ex. H; Pls.' Surreply, Ex. A. The affidavit of the Union President also states that McLouth Products would receive a large tax credit as part of this agreement. See Pls.' Opp'n, Ex. H. PBGC argues that these two affidavits must be disregarded because plaintiffs have not submitted a copy of the agreement referred to in the affidavit; Rule 56(e) states that "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." Fed.R.Civ.P. 56(e). Nevertheless, plaintiffs allege that the alleged portion of the agreement pertaining to the tax credits or waivers and lien removal was never documented in writing. See supra note 2. In light of this allegation, the Court will not strike the two affidavits from the record on this motion.
[12] Plaintiffs' counsel submitted an affidavit pursuant to Federal Rule of Civil Procedure 56(f) stating that he is unable to respond adequately to PBGC's motion because PBGC has denied his requests to depose two PBGC employees who worked on matters related to McLouth Products in the fall of 1995; plaintiffs' counsel wishes to depose these individuals in order to probe the extent of the benefits McLouth Products received in connection with the asset transfer. However, plaintiffs already have submitted two affidavits alleging how McLouth Products benefitted from the transfer. See supra note 10. In the absence of any documents submitted by PBGC controverting the substance of those affidavits, the Court concludes that plaintiffs have sustained their burden of establishing a genuine issue of material fact with respect to whether PBGC knowingly participated in a prohibited transaction under ERISA § 406. Thus, it need not consider plaintiffs' Rule 56(f) application.
|
732 F.2d 148
Wertz, Appeal of
83-5558, 83-5572
United States Court of Appeals,Third Circuit.
3/5/84
W.D.Pa.,
Cohill, J.
AFFIRMED
|
680 So.2d 997 (1996)
Tommy Lee RUTLEDGE
v.
STATE.
CR-94-2264.
Court of Criminal Appeals of Alabama.
March 8, 1996.
Rehearing Denied April 19, 1996.
Certiorari Denied July 12, 1996.
*998 Joe W. Morgan, Jr., Birmingham, for Appellant.
Jeff Sessions, Atty. Gen., and John Park, Jr., Deputy Atty. Gen., for Appellee.
Alabama Supreme Court 1951347.
TAYLOR, Presiding Judge.
The appellant, Tommy Lee Rutledge, who was 18 years old at the time of the offenses, was indicted on two counts of murder. The murder was made capital because two or more persons were killed pursuant to one course of conduct, see § 13A-5-40(a)(10), Code of Alabama 1975, and also because the murders occurred during a robbery in the first degree, see § 13A-5-40(a)(2), Code of Alabama 1975. The jury convicted Rutledge of capital murder on the charge brought pursuant to § 13A-5-40(a)(10), but convicted him of the lesser included offense of robbery in the first degree on the charge brought pursuant to § 13A-5-40(a)(2), see § 13A-8-41, Code of Alabama 1975. He was sentenced to life imprisonment without parole for the capital murder conviction and to life imprisonment for the robbery conviction.
The state's evidence tended to show that on December 22, 1993, Rutledge, the victimsKevin Edwards and Radshaw Whitmanand Edwards's cousin Gerald Campbell were at Edwards's grandmother's house. Rutledge testified that they had been there about a day and a half and that they had been smoking marijuana.
Campbell testified that on December 22, 1993, Edwards and Whitman were sleeping on couches, and that he was sleeping on the floor when he was suddenly awakened around 5:00 o'clock a.m. by the sound of two gunshots. He testified he saw Rutledge standing over Edwards and Whitman with a gun in his hand.
Campbell testified that Rutledge put the gun to his head and ordered him to search Edwards's body. Rutledge also forced Campbell to help him drag the bodies into the kitchen, where Rutledge shot them each again in the head and dumped trash over them. Rutledge then told Campbell to take some Christmas presents that were in the house and a stereo to Edwards's car. Campbell *999 testified that Rutledge then set fire to the trash on the bodies and to the couch.
Rutledge and Campbell left in Edwards's car and went to Rutledge's house, where they took the Christmas presents and the stereo to the attic. Campbell testified that they then walked to a nearby store and purchased a small amount of gasoline. They returned to Rutledge's house, and Rutledge poured gasoline on Edwards's car and set it ablaze.
Rutledge then took Campbell to a small storehouse next to his house, tied him to a chair, and taped his mouth shut. After about two hours, Campbell escaped and telephoned the police.
I
Rutledge's first contention on appeal is that there was not sufficient evidence presented to sustain a conviction.
"`In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.' Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App. 1984), affirmed, 471 So.2d 493 (Ala.1985)."
Allen v. State, 611 So.2d 1188, 1192 (Ala.Cr. App.1992).
Rutledge contends that there was insufficient evidence to support his conviction for capital murder based on the killing of two or more persons pursuant to one course of conduct and for capital murder because the killings occurred during a robbery in the first degree. The record shows that the appellant was convicted of violating § 13A-5-40(a)(10), Code of Alabama 1975, which makes capital the murder of two or more persons pursuant to one course of conduct. However, on the other charge, the appellant was convicted only of the lesser included offense of robbery in the first degree, see § 13A-8-41, Code of Alabama 1975. We address the issue of sufficiency of the evidence only as it concerns those crimes of which the appealing party was convicted.
Rutledge first alleges that Gerald Campbell's story was "unbelievable" and that from the evidence the jury could conclude that Campbell had actually shot one of the two victims. Campbell testified at trial that he saw Rutledge shoot both Kevin Edwards and Radshaw Whitman. As this court stated in McLeod v. State, 627 So.2d 1066, 1068 (Ala.Cr.App.1993), quoting Johnson v. State, 555 So.2d 818, 820 (Ala.Cr.App.1989), "`[t]he credibility of witnesses and the weight to be given the testimony is for the jury to determine.'"
This court will not substitute its judgment for that of the jury. Gossett v. State, 451 So.2d 437 (Ala.Cr.App.1984). There was a "gracious plenty" of evidence from which the jury could convict Rutledge of capital murder and of robbery in the first degree.
II
Rutledge next contends that the trial court erred in not permitting him to play a portion of an audio tape that contained Campbell's statement to police during crossexamination. Rutledge states in his brief to this court that he wanted to offer the tape to show that Campbell had made prior inconsistent statements.
Before a witness may be impeached by use of a prior inconsistent statement, the party seeking to impeach must lay a proper predicate.
"When a witness, on cross-examination, denies that he made a statement out of court which is inconsistent with his testimony on direct examination, the only available move for the impeaching party is to bring on an impeaching witness who can testify as to the prior inconsistent statement of the witness being impeached. Before such extrinsic evidence may be elicited, however, it is the general rule that the impeaching party must lay a proper predicate by asking the party being impeached whether he made such statement, specifying with reasonable certainty the time when, the place where, the person to whom such supposed statement was made and the substance of such statement." *1000 C. Gamble, McElroy's Alabama Evidence, § 157.01(1) (4th ed. 1991).
The new Alabama Rules of Evidence, effective adopted January 1,1996, state:
"Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness has been confronted with the circumstances of the statement with sufficient particularity to enable the witness to identify the statement and is afforded an opportunity to admit or deny having made it."
Rule 613(b), Ala.R.Evid.
The record shows that Rutledge's counsel failed to lay a proper predicate and that the trial court was correct in not allowing the tape to be played to the jury.
Ill
Rutledge also contends that the trial court erred when it refused to charge the jury on the lesser included offense of manslaughter. "Generally, a trial court should instruct the jury on a lesser offense if there is a reasonable theory from the evidence to support that lesser offense." Parker v. State, 587 So.2d 1072, 1084 (Ala.Cr.App. 1991).
"`A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury.'"
Fox v. State, 659 So.2d 210, 212 (Ala.Cr.App. 1994), quoting Anderson v. State, 507 So.2d 580 (Ala.Cr.App.1987).
Manslaughter, under § 13A-6-3, Code of Alabama 1975, requires that the victim's death be caused recklessly or due to a sudden heat of passion. No evidence was presented that would support a jury charge on the lesser included offense of manslaughter.
Campbell testified that Rutledge was standing over the bodies of the two victims immediately after Campbell heard two gunshots, and that he saw Rutledge shoot them each again in the head after he and Rutledge dragged the victims into the kitchen. Campbell also testified that he and the victims were sleeping immediately before the shooting. No reasonable theory of manslaughter can be supported by these facts and the trial court did not err in refusing to give jury instructions on manslaughter.
IV
Rutledge additionally contends that the State of Alabama used 9 of its 14 peremptory strikes to remove potential black jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Rutledge alleges that these potential jurors were struck for no other reason than their race.
In Batson, the United States Supreme Court held that black prospective jurors could not be struck from a black defendant's jury based solely on the basis of their race. The United States Supreme Court extended its decision in Batson to apply to white defendants in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); to civil cases in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); and to defense counsel in criminal cases in Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). The Alabama Supreme Court had held that Batson applies to the striking of white prospective jurors. White Consolidated Industries, Inc. v. American Liberty Insurance Co., 617 So.2d 657 (Ala.1993). In 1994, the United States Supreme Court extended Batson to apply to gender. J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.E.2d 89 (1994).
The burden is on the party alleging a Batson violation to first prove a prima facie case of discrimination. Ex parte Bird, 594 So.2d 676 (Ala.1991). Some of the methods for establishing a prima facie case were listed by the Alabama Supreme Court in Ex parte Branch, 526 So.2d 609 (Ala.1987):
"1. Evidence that the `jurors in question share[d] only this one characteristic their membership in the groupand that in all other respects they [were] as heterogeneous as the community as a whole.' ...
"2. A pattern of strikes against black jurors on the particular venire....
*1001 "3. The past conduct of the [offending] attorney in using peremptory challenges to strike all blacks from the jury venire....
"4. The type and manner of the [offending] attorney's questions and statements during voir dire, including nothing more than desultory voir dire....
"5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions....
"6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner....
"7. Disparate examination of members of the venire....
"8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury....
"9. The [offending party] used peremptory challenges to dismiss all or most black jurors."
526 So.2d at 622-623.
After ruling on Rutledge's Batson motion, the court made the following remarks.
"THE COURT: I wanted to go back on the record in regard to the Batson motion yesterday. I did state for the record the numbers that we were dealing with. I didn't specifically give my reasons for my ruling and I think I will go back and do that for purposes of the record, which I normally do.
"For the record, the Court, of course, was present during the entire voir dire, both general and individual voir dire of the jurors, and observed the response or lack of response by all the jurors; and, of course, their demeanor during voir dire.
"Also go on the record and say I have tried many cases with Ms. Petro [the prosecutor] over the years and she has not shown any pattern or practice of using strikes in a discriminatory manner or racial manner."
"And again, for the record, there were 42 jurors from which we struck, 18 of those were black citizens. The State used 9 of their strikes out of 14 to strike blacks. The defendant used all of his strikes to strike whites which, of course, greatly reduced the pool from which the State had to exercise their strikes."
The trial court found that Rutledge did not establish a prima facie case of discrimination. "`It is within the sound discretion of the trial court to determine if the State's peremptory challenges of black jurors are motivated by intentional racial discrimination.' " Taylor v. State, 666 So.2d 36, 43 (Ala.Cr.App.1994), quoting Ex parte Lynn, 543 So.2d 709, 712 (Ala.1988), cert, denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989). The court did not abuse its discretion in denying Rutledge's motion, but rather, in this, our opinion, exercised that discretion in the manner envisioned in Batson and Branch.
V
Rutledge finally contends that the trial court erred by denying his motion to suppress his statement to police because, he says, it was given in violation of Rule 11, Ala.R.Juv.P.
He specifically contends that there is no evidence in the record to show that he was allowed to talk to his mother before he gave his statement. He attempts to support his allegations through the testimony of Jimmy Warren, school resource officer for the Birmingham Police Department, who testified that he did not actually hear the conversation between Rutledge and his mother. No other witness testified that they heard the conversation between Rutledge and his mother.
Officer Warren testified that Rutledge was read his juvenile rights and signed a juvenile rights form, which informed him of his right to communicate with his parents before being questioned. Warren testified that Rutledge asked to talk to his mother, he was not questioned any further until she arrived. Warren further testified that Rutledge's mother came to the police station and was in the same room with Rutledge and that they were given an opportunity to communicate.
In Flowers v. State, 586 So.2d 978 (Ala.Cr.App.), cert, denied, 596 So.2d 954 (Ala.1991), cert, denied, 504 U.S. 930, 112 S.Ct.1995, 118 L.Ed.2d 591 (1992), this court *1002 held that all Rule 11, Ala.R.Juv.P., requires is that the juvenile be informed that he or she has the right to communicate with a parent and that the juvenile be allowed to communicate with that parent if he or she so chooses. Whether Officer Warren actually heard the conversation between Rutledge and his mother or even whether such conversation took place is irrelevant, because the record shows that they were given the opportunity to communicate. Surely, Rutledge does not mean to suggest that there should be an attendant, or an eavesdropper, to these conversations. "`In reviewing the correctness of the trial court's ruling on a motion to suppress, this Court makes all the reasonable inferences and credibility choices supportive of the decision of the trial court.'" Kennedy v. State, 640 So.2d 22, 26 (Ala.Cr.App.1993), quoting Bradley v. State, 494 So.2d 750, 761 (Ala.Cr.App.1985), affd, 494 So.2d 772 (Ala. 1986), cert, denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). A trial court's ruling on a motion to suppress will not be disturbed unless it is "palpably contrary to the great weight of the evidence." Parker v. State, 587 So.2d 1072, 1088 (Ala.Cr.App. 1991). The trial court's ruling in this case was not contrary to the great weight of the evidence; the court did not err in denying appellant's motion to suppress the statement.
For the foregoing reasons, the judgment in this case is due to be, and it is hereby, affirmed.
AFFIRMED.
All the Judges concur.
|
22 B.R. 745 (1982)
In re Michael Steven MEEKER, Debtor.
Michael Steven MEEKER, et al., Plaintiffs,
v.
LIVENGOOD REAL ESTATE CO., et al., Defendants.
Adv. No. 1-81-0160, Bankruptcy Nos. 1-80-00148, C-1-82-365.
United States District Court, S.D. Ohio, W.D.
August 16, 1982.
Stephen H. Olden, Legal Aid Soc. of Cincinnati, Robert A. Goering, Cincinnati, Ohio, for Michael and Sharon Meeker.
Morton I. Rosenbaum, Cincinnati, Ohio, for Livengood.
Robert Gensler, Cincinnati, Ohio, for Bernard P. Weil.
Mark Bubenzer, Florence, Ky., for Kevin O'Brien & Abey Pest Control.
OPINION
SPIEGEL, District Judge.
This is a bankruptcy appeal from an order of The Honorable Leonard C. Gartner, Bankruptcy Judge, overruling appellant's motion to dismiss and granting appellees' demand for a jury trial, and fixing completion date for discovery, entered February 24, 1982.
Plaintiff-appellees sought relief under the Bankruptcy Code by filing a Wage Earner's Plan pursuant to Chapter 13. According to defendant-appellant, the bankrupt (plaintiff-appellee) and his wife filed an action against defendant-appellant, Livengood Real Estate Company, et al., claiming damages, misrepresentation and fraud. At a pretrial conference, defendant-appellant *746 "objected to the forum of the Bankruptcy Court for various reasons, and then orally moved that the action be dismissed on the basis that the Bankruptcy Court, as presently created under Public Law No. 95-598, and 28 U.S.C. § 1471, was an unconstitutionally created court, not conforming to the Constitution of the United States, having been given general jurisdiction and broad judicial powers, but the judges being neither tenured nor with guaranteed income" (Appellant's brief, doc. 4, page 1). Defendant-appellant's motion was overruled, and it appealed to this Court.
Apparently, jurisdiction is founded in this Court on 28 U.S.C. § 1334(a), (b), which provide:
(a) The district courts for districts for which panels have not been ordered appointed under Section 160 of this Title shall have jurisdiction of appeals from all final judgments, orders, and decrees of bankruptcy courts.
(b) The district courts for such districts shall have jurisdiction of appeals from interlocutory orders and decrees of bankruptcy courts, but only by leave of the district court to which appeal is taken.
Since panels have not been appointed under Section 160 in the Southern District of Ohio, this Court has jurisdiction under 18 U.S.C. § 1334(b) of interlocutory orders and decrees of the Bankruptcy Court, "but only by leave of the district court to which the appeal is taken." The denial of a motion to dismiss is not a final judgment, order, or decree of a bankruptcy court. Nor has leave of this Court been sought by appellant to consider Judge Gartner's order denying appellant's motion to dismiss. In the interests of justice and to avoid additional expense to the parties, and in furtherance of judicial economy, this Court sua sponte will consider this appeal of the aforesaid order, considering same to be an interlocutory order.
The issue presented is whether the Bankruptcy Court lacked jurisdiction to hear the adversary action in the Bankruptcy Court as established by Congress under the Bankruptcy Reform Act of 1978, because the expansive jurisdiction granted to the Bankruptcy Court by Congress contravenes Article III, Section 1 of the United States Constitution in that the judges of the Bankruptcy Court are limited in tenure "with their compensation subject to the whims of Congress" (Appellant's brief, page 2). The Supreme Court of the United States in Northern Pipeline Construction Co. v. Marathon Pipeline Co., ___ U.S. ___, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) decided that the broad jurisdiction granted by 28 U.S.C. § 1471(a) is unconstitutional. This grant, contained in 28 U.S.C. § 1471, confers on bankruptcy courts jurisdiction of all civil proceedings arising under Title 11 (the Bankruptcy Code), "or arising in or related to cases under Title 11." This provision of the Bankruptcy Reform Act of 1978 expanded the jurisdiction of bankruptcy courts significantly, allowing them to exercise nationwide personal and subject matter jurisdiction over civil cases in which the trustees or debtors were parties, or that were otherwise related to the bankruptcy proceedings. It was this grant of expansive jurisdiction that failed to pass constitutional muster because such jurisdiction was being exercised by judges who do not enjoy the guarantees of life tenure and undiminished salary required by Article III of the Constitution.
Although the Supreme Court's ruling applies only prospectively and the judgment is stayed until October 4, 1982, since defendant-appellant had raised the issue of the Bankruptcy Court's jurisdiction before Judge Gartner, thereby preserving its right on appeal, we conclude that the Bankruptcy Court does not have jurisdiction of the plaintiff-appellees' common-law damage claim against defendant-appellant for misrepresentation and fraud. Accordingly, defendant-appellant's motion to dismiss should have been granted.
Therefore, the decision of the Bankruptcy Court appealed from is reversed, and the action against defendant-appellant in the Bankruptcy Court is dismissed.
SO ORDERED.
|
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1185
Federal Home Loan Mortgage Corporation,
Respondent,
vs.
Paul V. Pope,
Appellant,
Gretchen A. Pope, et al.,
Defendants.
Filed March 30, 2015
Affirmed
Bjorkman, Judge
Hennepin County District Court
File No. 27-CV-HC-11-5652
David R. Mortensen, Greta L. Burgett, Wilford, Geske & Cook, P.A., Woodbury,
Minnesota (for respondent)
William Bernard Butler, Butler Liberty Law, LLC, Minneapolis, Minnesota (for
appellant)
Considered and decided by Bjorkman, Presiding Judge; Hudson, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges an eviction judgment, arguing that (1) respondent lacks
standing, (2) fact questions about the underlying mortgage foreclosure procedure
preclude summary judgment, and (3) he was entitled to an unconditional stay of the
eviction pending appeal. We affirm.
FACTS
In July 2007, appellant Paul Pope executed a mortgage against a Minneapolis
property in favor of Wells Fargo Bank. Pope defaulted in 2010, and Wells Fargo
commenced foreclosure proceedings by advertisement. Wells Fargo purchased the
property at the sheriff’s sale in February 2011, and obtained the sheriff’s certificate,
which it recorded with the county. Pope did not redeem, and Wells Fargo subsequently
deeded the property to respondent Federal Home Loan Mortgage Corporation (Freddie
Mac) in August 2011. Freddie Mac began an eviction action against Pope later that
month.
Prior to the eviction action, Pope filed a complaint in Hennepin County District
Court challenging various aspects of the foreclosure process. Wells Fargo, a defendant in
that action, removed the case to federal court. The eviction proceeding was stayed in
September 2011. In May 2012, the federal action was dismissed with prejudice.
Pope commenced a separate quiet-title action against Wells Fargo and Freddie
Mac in Hennepin County District Court in late 2012. That matter was also removed to
federal court and dismissed with prejudice in May 2013.
In July 2014, the district court lifted the stay of this eviction proceeding and
granted Freddie Mac’s motion for summary judgment. Pope appealed, and asked the
district court to stay the eviction during this appeal. The district court granted the
2
request, conditioned on Pope posting a supersedeas bond in the amount of $1,834.38 per
month. Pope did not post a bond.
DECISION
I. Freddie Mac has standing to bring this eviction action.
Whether a party has standing is a question of law, which we review de novo.
Builders Ass’n of Minn. v. City of St. Paul, 819 N.W.2d 172, 176 (Minn. App. 2012).
“Standing is a legal requirement that a party have a sufficient stake in a justiciable
controversy to seek relief from a court.” Enright v. Lehmann, 735 N.W.2d 326, 329
(Minn. 2007). A party may acquire standing by suffering an injury-in-fact or being the
beneficiary of a legislative act that grants standing. Olson v. State, 742 N.W.2d 681, 684
(Minn. App. 2007). “An injury-in-fact is a concrete and particularized invasion of a
legally protected interest.” Lorix v. Crompton Corp., 736 N.W.2d 619, 624 (Minn.
2007).
Pope argues that due to irregularities in the foreclosure sale, Wells Fargo’s
subsequent conveyance of title to Freddie Mac is invalid, and because Freddie Mac does
not have valid title, it has not suffered an injury-in-fact. This argument is without merit.
It is undisputed that Wells Fargo purchased the foreclosed property at the sheriff’s
sale and recorded the sheriff’s certificate of sale. When a sheriff’s certificate is recorded,
“upon expiration of the time for redemption, the certificate shall operate as a conveyance
to the purchaser . . . of all the right, title, and interest” in the foreclosed property. Minn.
Stat. § 580.12 (2014). Accordingly, when the redemption period expired, Wells Fargo
had title to the property. See id. Wells Fargo subsequently conveyed its interest in the
3
foreclosed property by deed to Freddie Mac. Freddie Mac recorded the deed, at which
point it became the owner of the property. As owner, Freddie Mac has a right to possess
the property and Pope invaded this legally protected interest when he did not allow
Freddie Mac to take possession. Because Freddie Mac has suffered an injury-in-fact, it
has standing to proceed in this eviction action.
II. Freddie Mac is entitled to summary judgment in its favor.
Summary judgment is appropriate if there are no genuine issues of material fact
and a party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal
from summary judgment, we review the evidence de novo, in a light most favorable to
the nonmoving party. Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359, 364
(Minn. 2009).
An eviction action is a “summary court proceeding to remove a tenant or occupant
from or otherwise recover possession of real property by the process of law.” Minn. Stat.
§ 504B.001, subd. 4 (2014). A party seeking eviction after a foreclosure must
demonstrate that (1) the other party remains in possession of the property; (2) the
mortgage on the property has been foreclosed; (3) the statutory redemption period has
expired; and (4) the party seeking eviction has the right to possess the property. Minn.
Stat. § 504B.285, subd. 1(1)(ii) (2014).
Pope asserts that genuine issues of material fact preclude summary judgment. We
disagree. Pope concedes the first and third elements—that he remained in possession of
the property and did not exercise his rights during the redemption period. And the record
demonstrates that the other statutory requirements are met. The mortgage was foreclosed
4
in 2010. Wells Fargo purchased the property and both acquired and recorded the
sheriff’s certificate of sale. See Minn. Stat. § 580.19 (2014) (stating that the sheriff’s
certificate is prima facie evidence that all legal requirements relating to the sale have
been met and that the purchaser holds title in fee after the time for redemption has
passed). Wells Fargo conveyed the property to Freddie Mac as demonstrated by the
recorded deed. On this record, Freddie Mac demonstrated that it is entitled to an eviction
judgment as a matter of law.
Pope argues that improprieties in the underlying foreclosure procedure call
Freddie Mac’s right to the property into question. This argument is unavailing. Pope
fully litigated the specific claims he asserts here in both state and federal court; both
courts dismissed them with prejudice. He is not entitled to relitigate them, particularly
not in the context of this summary-eviction proceeding. See Dahlberg v. Young, 231
Minn. 60, 68, 42 N.W.2d 570, 576 (1950) (explaining an eviction action “merely
determines the right to present possession and does not adjudicate the ultimate legal or
equitable rights of ownership”); Fraser v. Fraser, 642 N.W.2d 34, 41 (Minn. App. 2002)
(holding counterclaims and defenses should only be considered if eviction action
provides the “only forum” for litigating those claims); AMRESCO Residential Mortg.
Corp. v. Stange, 631 N.W.2d 444, 445 (Minn. App. 2001) (stating that the scope of an
eviction proceeding is narrow).
Moreover, even if Pope’s foreclosure-related counterclaims fell within the narrow
scope of this eviction action, he has failed to establish competent evidence to create a
genuine issue of material fact. Aside from theorizing about an unrecorded assignment of
5
title to Freddie Mac prior to the foreclosure, Pope provides no credible, case-specific
evidence to substantiate his claims. Even when viewed in the light most favorable to
him, the generic Freddie Mac documents and agreements Pope cites have limited
relevance and at best create only “metaphysical doubt as to a factual issue.” DLH, Inc. v.
Russ, 566 N.W.2d 60, 71 (Minn. 1997).
III. Pope was not entitled to an unconditional stay of the eviction pending appeal.
The district court stayed enforcement of the eviction judgment pending appeal
pursuant to Minn. Stat. § 504B.371, subd. 3 (2014), conditioned on Pope posting monthly
supersedeas bonds. If Pope wished to challenge the bond condition, he should have done
so by bringing a motion to this court. See Minn. R. Civ. App. P. 108.02, subd. 6 (stating
that on a motion under Minn. R. Civ. App. P. 127, a party may challenge the “amount of
security pending appeal”). By failing to do so, Pope effectively waived his right to
challenge the bond condition.
Moreover, Pope’s challenge is based on the incorrect premise that he is entitled to
an unconditional stay of the eviction proceedings based on Bjorklund v. Bjorklund
Trucking, Inc., 753 N.W.2d 312 (Minn. App. 2008), review denied (Minn. Sept. 23,
2008). Under Bjorklund, a district court may stay pending eviction proceedings if
counterclaims and defenses necessary to a “fair determination” of that proceeding are
pending in a separate but related civil action. 753 N.W.2d at 318-19. The district court,
in accord with Bjorklund, stayed this eviction proceeding until the federal and state
foreclosure-related actions were concluded. When the district court subsequently granted
its conditional stay of enforcement of the eviction judgment pending this appeal, no
6
arguably-related civil action was pending. Accordingly, Bjorklund is not applicable.
Rather, the stay is governed by Minn. Stat. § 504B.371, subd. 2 (2014), under which
parties remaining on a premises pending appeal of an eviction judgment “must” give the
described bond. See Minn. Stat. § 645.44, subd. 15a (2014) (stating “‘[m]ust’ is
mandatory.”). On this record, we discern no abuse of discretion by the district court in
granting a conditional stay pending appeal.
Affirmed.
7
|
United States Court of Appeals
For the First Circuit
____________________
No. 01-2133
LARKIN D. WATSON IV,
Plaintiff, Appellant,
v.
DEACONESS WALTHAM HOSPITAL, CAREGROUP, INC., LIBERTY LIFE
ASSURANCE CO. OF BOSTON,
Defendants, Appellees.
____________________
ERRATA SHEET
The opinion of this court, issued August 8, 2002,
should be amended as follows:
p 3, line 16: remove "at" before §
p 6, last line: insert comma after "1999"
p 10, line 22: insert period after "Cir"
p 16, n.12, line 3: insert "[s]" after "make"
p 23, last line: delete "r" in "3rd"
|
Affirmed and Memorandum Opinion
filed August 4, 2011.
In
The
Fourteenth
Court of Appeals
NO. 14-10-00767-CR
Jozef Kawaski
Jones, Appellant
v.
The State of
Texas, Appellee
On Appeal from
the 248th District Court
Harris County, Texas
Trial Court
Cause No. 1239443
MEMORANDUM OPINION
Appellant, Jozef Kawaski
Jones, appeals his conviction for aggravated robbery asserting that (1) a
material variance between the indictment and the allegedly insufficient proof
at trial requires acquittal and (2) the evidence is insufficient to support a
deadly-weapon finding, such that he should have been convicted of the
lesser-included offense of robbery. We affirm.
Factual and Procedural Background
The complainant, his brother, and their
eleven-year-old cousin were walking home at night from a nearby sandwich shop
when a van pulled up next to them. Appellant and two other men were inside the
van. The driver got out of the vehicle and remarked, “You know what time it
is. You know what’s up.” The complainant’s brother believed that the words
implied they were about to be robbed. At that point, the van’s sliding side door
opened, and the complainant saw appellant inside the vehicle. The complainant’s
brother removed his valuables and shoes and placed them in his sandwich bag to
hand over to the men in the van. But, the complainant was slow to offer up his
own belongings. The complainant testified that the driver remarked to appellant,
“Get the AK,” and threatened to shoot the complainant. The complainant claimed
that appellant brandished a weapon, pointed it at the complainant, and remarked
to the driver, “Yeah, let’s light one of them up.” The complainant then placed
his wallet and possessions in his sandwich bag and handed the items to
appellant.[1]
At this point, two law enforcement officers happened
to pull up behind the van, which was blocking a moving lane of traffic. The
officers investigated the incident and learned from the complainant that the
men in the van had taken items belonging to the complainant and his relatives. The
officers recovered the items as well as a weapon that the officers referred to
as an “air rifle.” The officers arrested appellant and the two other men in
the van.
Appellant was charged by indictment with the offense
of aggravated robbery. The indictment provides, in relevant part, that while
in the course of committing theft of property with intent to obtain and
maintain control of that property, appellant intentionally and knowingly
threatened and placed the complainant in fear of imminent bodily injury and
death and used and exhibited a deadly weapon, to wit: “a BB rifle.” The
charge was enhanced by a prior felony conviction. Appellant pleaded “not
guilty” to the charged offense. After a trial, the jury found appellant guilty
of aggravated robbery and assessed his sentence at forty years’ confinement.
Issues and Standard of Review
On appeal, appellant challenges the sufficiency of
the evidence to support his conviction. In evaluating a legal-sufficiency
challenge, we view the evidence in the light most favorable to the verdict. Wesbrook
v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal
is not whether we, as a court, believe the State’s evidence or believe that
appellant’s evidence outweighs the State’s evidence. Wicker v. State,
667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned
unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson
v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is
the sole judge of the credibility of the witnesses and of the strength of the
evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App.
1999). The trier of fact may choose to believe or disbelieve any portion of
the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.
Crim. App. 1986). When faced with conflicting evidence, we presume the trier
of fact resolved conflicts in favor of the prevailing party. Turro v. State,
867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim.
App. 1997).
Is the
evidence insufficient because of a material variance between the indictment and
proof at trial?
In his second issue, appellant claims the evidence is
insufficient to support his conviction because of a material variance between
the charging instrument and the proof at trial. The indictment alleged use of
a “BB rifle” as a deadly weapon. According to appellant, the air rifle
actually produced at trial and the testimony amounts to a material variance from
the allegation, as charged in the indictment, that he used a BB rifle in
commission of the offense.
A “variance” occurs when there is a discrepancy
between the allegations made in a charging instrument and the proof presented
at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App.
2001). When faced with a challenge to the legal sufficiency of the evidence
based upon a variance between the indictment and the proof, only a material
variance will render the evidence legally insufficient. Id. at 257. In
determining whether a variance is material, we consider whether the charging
instrument offers an accused enough notice of the charged offense to allow
preparation of an adequate defense and precludes the accused from being
prosecuted later for the same crime. See Fuller v. State, 73 S.W.3d
250, 253, 255 (Tex. Crim. App. 2002).
A variance between the wording of an indictment and
the evidence presented at trial is fatal only if it is material and prejudices
the defendant’s substantial rights. See Gollihar, 46 S.W.3d at 257; Hart
v. State, 173 S.W.3d 131, 144 (Tex. App.—Texarkana 2005, no pet.). To
determine whether an accused’s substantial rights have been prejudiced, we
consider whether the indictment, as written, informed the defendant of the charge
against him sufficiently to allow him to prepare an adequate defense at trial
and whether the prosecution, under the deficiently drafted charging instrument,
would subject the accused to the risk of being prosecuted later for the same
offense. Gollihar, 46 S.W.3d at 248; Hart, 173 S.W.3d at 144. A
variance that is not prejudicial to an accused’s substantial rights is deemed
immaterial. Gollihar, 46 S.W.3d at 247–48; see Hart, 173 S.W.3d
at 144. The accused has the burden of demonstrating surprise or prejudice. Santana
v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).
Nothing in the record reflects that appellant was
unaware of what weapon he was accused of brandishing or that he was surprised
by the proof at trial. The term “BB rifle,” as used in the charging instrument,
gave appellant enough notice to prepare an adequate defense at trial for the
charge of aggravated robbery. See Fuller, 73 S.W.3d at 255; Gollihar,
46 S.W.3d at 258. When, as in this case, the variance does not involve a statutory
element of the offense and there is no showing of surprise or prejudice as a
result of it, the variance is immaterial. See Hart, 173 S.W.3d at 144.
The indictment, as written, sufficiently informed appellant of the charge
against him and the variance would not subject him to another prosecution for
the same offense. See id. The term “BB rifle,” as used in the
indictment, does not render the evidence legally insufficient to support
appellant’s conviction for aggravated robbery. We overrule appellant’s second
issue.
Is the evidence sufficient to support a
deadly-weapon finding?
In his first issue, appellant contends that the
evidence is insufficient to support a finding that he used a deadly weapon. A
person commits the offense of robbery if, in the course of committing theft and
with intent to obtain or maintain control of the property, that person intentionally
or knowingly threatens or places another in fear of imminent bodily injury or
death. See Tex. Penal Code Ann.
§ 29.02(a)(2) (West 2011); see Francis v. State, 746 S.W.2d 276, 277 (Tex.
App.—Houston [14th Dist.] 1988). The offense becomes elevated to aggravated
robbery if, as alleged in this case, the accused uses or exhibits a deadly
weapon. See Tex. Penal Code Ann.
§ 29.03(a)(2) (West 2011). The term “deadly weapon” is defined as “a firearm
or anything manifestly designed, made, or adapted for the purpose of inflicting
death or serious bodily injury” or “anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)
(West 2011).
Officers recovered an air rifle from the van, which
was admitted into evidence. The firearms examiner testified that the air rifle
is not a firearm, and expressly referred to it as a weapon. One of the
officers testified that the air rifle is a deadly weapon. Whether an object,
in its use or intended use, is capable of causing death or serious bodily
injury must be evaluated in light of the facts that existed at the time of the
alleged offense. See Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim.
App. 2005).
The officer who recovered the air rifle opined that
it was a deadly weapon. The firearms examiner testified that although she held
no opinion as to whether the air rifle could cause serious bodily injury, the
weapon propelled steel BBs and lead pellets well above or even double the
velocity necessary to perforate human skin or penetrate a human eye. A worn
label on the air rifle bears the following: “Caution, not a toy, adult
supervision [illegible] . . . Misuse or careless use may cause [illegible]
jury.” The firearms examiner presumed that the worn portions of the label
cautioned that misuse or careless use could result in injury or death. See
id. at 299 (concluding evidence was sufficient to support finding of a
deadly weapon, in part, based on testimony that a warning label cautioned that
injury or death could result from misuse or careless use). Appellant
acknowledges in his appellate brief that in certain circumstances, the air
rifle is capable of propelling some types of ammunition in a manner that could
cause serious bodily injury. But, appellant claims that, as used in the commission
of the alleged offense, the unloaded air rifle was not capable of causing
serious bodily injury. He refers to evidence that the unloaded weapon was held
in his lap as he was seated inside the van, which was anywhere from three to
fifteen feet away from the complainant. A fact-finder reasonably could have
inferred that the air rifle was loaded based on the complainant’s testimony
that appellant pointed the gun at him and threatened to shoot him. See Adame
v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002) (providing that
whether a BB gun was loaded or unloaded is not significant to a determination
of a deadly-weapon finding).
Appellant also asserts that threats of which the
complainant testified he made were “hollow.” An actor need not actually intend
death or serious bodily injury in order for an object to be considered a deadly
weapon. See McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App.
2000). In considering whether an object is a deadly weapon, the jury may
consider all of the facts of a case, including the words spoken by the accused.
Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). The record
reflects that appellant brandished the air rifle, pointed it at the complainant,
his brother, and a frightened eleven-year-old boy, and threatened to “. . .
light one of them up” after the driver directed appellant to “get the AK.”[2] Appellant’s
threats, while pointing the weapon at the complainant, suggest that he held a
firearm rather than merely a gun of the nonlethal variety. See Davis v.
State, 180 S.W.3d 277, 286 (Tex. App.—Texarkana 2005, no pet.). The jury
was entitled to believe that appellant was capable of making good on his
threats to use the weapon. See Delgado v. State, 986 S.W.2d 306, 308–09
(Tex. App—Austin 1999, no pet.) (providing that the jury was entitled to
believe an accused was capable of making good on his threats when the evidence
reflected that he brandished an unloaded pistol, held it to the heads of the complainants,
and threatened to kill them). Likewise, the jury was entitled to infer that
the air rifle allegedly used in the commission of the offense was a deadly
weapon. Campbell v. State, 577 S.W.2d 493, 494–96 (Tex. Crim. App.
1979) (providing that an air pistol was considered a deadly weapon, even if it
was unloaded, when defendant pointed it at complainant and threatened to kill
complainant); Williams v. State, 240 S.W.3d 293, 298 (Tex. App.—Austin
2007, no pet.) (concluding legally sufficient evidence supported a
determination that a CO2-powered BB pistol was a deadly weapon when
it was pointed directly at the complainants in a robbery).
Viewing the evidence in the light most favorable to
the verdict, we conclude that the evidence is legally sufficient to support the
jury’s deadly-weapon finding. See id. To the extent appellant
asserts the judgment should be reformed to reflect a lesser-included offense of
robbery or that a new punishment hearing is warranted for a conviction of a
lesser-included offense, his arguments lack merit. We overrule appellant’s
first issue.
The trial court’s
judgment is affirmed.
/s/ Kem
Thompson Frost
Justice
Panel consists of Justices Frost,
Jamison, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1]
The record does not indicate whether the complainant’s cousin handed over items
to the men in the van.
[2]
The complainant understood this reference to mean a rifle called the AK-47.
|
BILL OF COSTS
TEXAS COURT OF APPEALS, FOURTEENTH DISTRICT, AT HOUSTON
No. 14-14-00645-CV
Matthew Hermann Favard d/b/a Best Offer Auto
v.
Renee Edmund
(No. 2013-29045 IN 189TH DISTRICT COURT OF HARRIS COUNTY)
TYPE OF FEE CHARGES PAID/DUE STATUS PAID BY
FILING $175.00 09/08/2014 PAID ANT
STATEWIDE EFILING $20.00 09/08/2014 PAID ANT
The costs incurred on appeal to the Fourteenth Court of Appeals Houston, Texas
are $195.00.
Court costs in this cause shall be paid as per the Judgment issued by this Court.
I, CHRISTOPHER A. PRINE, CLERK OF THE FOURTEENTH COURT OF
APPEALS OF THE STATE OF TEXAS, do hereby certify that the above and foregoing
is a true and correct copy of the cost bill of THE COURT OF APPEALS FOR THE
FOURTEENTH DISTRICT OF TEXAS, showing the charges and payments, in the
above numbered and styled cause, as the same appears of record in this office.
IN TESTIMONY WHEREOF, witness
my hand and the Seal of the COURT
OF APPEALS for the Fourteenth District
of Texas, February 13, 2015.
|
10 F.3d 1448
Ronald John SMITH, Plaintiff-Appellee,v.HUGHES AIRCRAFT COMPANY, Defendant-Appellant.HARTFORD ACCIDENT & INDEMNITY COMPANY, Plaintiff-Appellee,v.HUGHES AIRCRAFT COMPANY, Defendant-Appellant.INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellee,v.HUGHES AIRCRAFT COMPANY, Defendant-Appellant.Ronald John SMITH; Hartford Accident & Indemnity Company,Plaintiffs-Appellees,v.HUGHES AIRCRAFT COMPANY, Defendant-Appellant.Ronald John SMITH; John Edgar Gale; Philip John Freemen,American Home Assurance Company and National UnionFire Insurance Company, et al.,Plaintiffs-Appellees,v.HUGHES AIRCRAFT COMPANY, Defendant-Appellant.INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellee,v.HUGHES AIRCRAFT COMPANY, Defendant-Appellant.
Nos. 91-16758, 91-16876, 91-16877, 92-15815, 92-16901 and 92-16957.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted June 15, 1993.Decided Nov. 26, 1993.
Jeffrey S. Davidson, Kirkland & Ellis, Los Angeles, CA, for defendant-appellant.
John R. Tomlinson and David M. Schoeggl, Lane Powell Spears Lubersky, Seattle, WA, for plaintiffs-appellees Ronald John Smith, et al.
Thomas F. Connell, Wilmer Cutler & Pickering, Washington, DC, for plaintiff-appellee Insurance Co. of North America.
Peter W. Davis, Stephen G. Schrey, James C. Martin, Joseph P. Mascovich, Crosby, Heafey, Roach & May, Oakland, CA, for plaintiff-appellee Hartford Acc. and Indem. Co.
Appeal from the United States District Court for the District of Arizona.
Before: FAIRCHILD*, BEEZER, and WIGGINS, Circuit Judges.
WIGGINS, Circuit Judge:
OVERVIEW
1
In 1985, approximately 2,400 residents of the City of Tucson ("the Valenzuela claims") sued Hughes Aircraft Company ("Hughes") for injuries arising out of contamination of their drinking water due to Hughes' practice of discharging trichloroethylene ("TCE") into unlined ponds. In 1991, Hughes settled the Valenzuela claims with a payment of almost $85 million. Ronald John Smith and other Lloyd's underwriters ("Lloyd's"), Hartford Accident and Indemnity Company ("Hartford"), and Insurance Company of North America ("INA") (collectively referred to as "Insurers") brought declaratory judgment actions beginning in 1988 to determine their respective liability for the Valenzuela claims.
2
On September 6, 1991, the district court granted summary judgment for the Insurers with respect to policies issued between 1971 and 1985, 783 F.Supp. 1222. On March 19, 1992, the district court declined to review a $55,777.83 award for Hartford's deposition costs that was issued by the district court clerk. Finally, on September 16, 1992, the district court granted summary judgment for INA and Lloyd's with respect to policies issued between 1956 and 1971. Hughes timely appealed each decision. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm in part and reverse in part.
I. Standard of Review
3
We review de novo the district court's grants of summary judgment. See FDIC v. O'Melveny & Meyers, 969 F.2d 744, 747 (9th Cir.1992), cert. filed, 62 U.S.L.W. 3275 (Sept. 27, 1993); Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir.1990). Viewing the evidence in the light most favorable to Hughes, we must determine "whether there are any genuine issues of material fact for trial, and whether the district court correctly applied the relevant substantive law." See O'Melveny & Meyers, 969 F.2d at 747. We also review de novo the district court's interpretation of state law. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); Brooks v. Hilton Casinos, Inc., 959 F.2d 757, 759 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 300, 121 L.Ed.2d 224 (1992).
II. Merits
4
A. The September 6, 1991, Order Granting Summary Judgment for Insurers. (Nos. 91-16758, 91-16876, & 91-16877)
5
1. The AVN 46A Pollution Exclusion.
6
The district court concluded that the language of AVN 46A unambiguously excluded pollution risks not only in the aviation policies, but also in the excess CGL policies.1 Hughes argues that the drafting history of AVN 46A and the testimony of key Lloyd's witnesses demonstrate that Lloyd's never intended the exclusion to apply to anything but aviation coverage. The district court refused to consider this evidence because Hughes "failed to tie it to the parties' intent." We agree with Hughes. Hughes presented evidence from Hughes' former insurance manager that his understanding of AVN 46A was based in part on AVN 46A's drafting history. Because it is unclear from the language of the exclusion whether AVN 46A applied to the CGL policy, this evidence is admissible to indicate the real agreement of the parties. See Darner Motor Sales v. Universal Underwriters Ins. Co., 140 Ariz. 383, 393, 682 P.2d 388, 398 (1984); Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal.2d 33, 69 Cal.Rptr. 561, 564, 442 P.2d 641, 644 (1968) (allowing extrinsic evidence to determine the parties' intent).2
7
Hughes also presented evidence that its agents understood AVN 46A to apply only to aviation risks. Moreover, the plain language of AVN 46A, when read in its entirety, contains ambiguities that preclude summary judgment. For example, the AVN abbreviation denotes that the exclusion came from the aviation form book; the first AVN 46A exclusion, for noise, vibration, and sonic booms, appears to apply only to airplanes; and all four AVN 46A exclusions are subject to an exception for "a crash, explosion or collision or a recorded in-flight emergency causing abnormal aircraft operation." Thus, because Hughes' interpretation of the evidence regarding its understanding of AVN 46A supports the conclusion that the exclusion did not apply to non-aviation risks, we reverse the grant of summary judgment.
8
2. The "Sudden and Accidental" Exception to the Pollution
9
Exclusion.
10
The district court concluded, as a matter of law, that the so-called pollution exclusion contained in the Insurers' 1974-1985 policies precluded coverage. The pollution exclusion contains an exception for "sudden and accidental" discharges.3 The district court concluded that this exception did not apply because (1) under both Arizona and California law, the definition of "sudden" incorporates a notion of temporal brevity and does not merely mean unexpected; and (2) under the Valenzuela facts, the claimants' injuries were the result of pollution that was not "sudden." We agree.
11
a. "Sudden" Connotes Temporal Brevity.
12
Under Arizona law, the district court correctly concluded that the phrase "sudden and accidental" is ambiguous because different jurisdictions have interpreted the provision differently. See Federal Ins. Co. v. P.A.T. Homes, Inc., 113 Ariz. 136, 138-39, 547 P.2d 1050, 1052-53 (1976), disapproved on other grounds, State Farm Mut. Auto. Ins. Co. v. Wilson, 162 Ariz. 251, 258, 782 P.2d 727, 734 (1989); see also Intel Corp. v. Hartford Acc. & Indem. Co., 952 F.2d 1551, 1561 (9th Cir.1991) (recognizing disparate interpretations of the "sudden and accidental" exception). This ambiguity is properly analyzed under State Farm Mut. Auto. Ins. Co. v. Wilson, 162 Ariz. 251, 257-58, 782 P.2d 727, 733-34 (1989). The district court properly (1) looked to the language of the exclusion and concluded that "sudden" "unmistakably connotes a temporal quality" (otherwise, it would simply be a synonym for "accidental"); (2) concluded that requiring temporal brevity furthered public policy by excluding deliberate indifference on the part of a polluting insured; and (3) analyzed the purpose of the transaction and, noting that Hughes is not an unsophisticated consumer, concluded that "an interpretation of 'sudden' that fails to recognize its temporal quality" would frustrate the parties' intent by forcing the Insurers to buy into the risk of insuring a pollution prone operation. See id. We agree with and adopt the district court's analysis and conclude that, under Arizona law, the "sudden and accidental" exception "unmistakably connotes a temporal quality."
13
Under California law, the district court summarily concluded that no ambiguity existed, citing only United States Fid. & Guar. Co. v. Morrison Grain Co., 734 F.Supp. 437, 446-47 (D.Kan.1990), aff'd, 999 F.2d 489 (10th Cir.1993). However, the district court's cursory conclusion is consistent with California law. The "clear and explicit" meanings of insurance contract provisions, interpreted in their "ordinary and popular sense," control judicial interpretation. AIU Ins. Co. v. Superior Court, 51 Cal.3d 807, 274 Cal.Rptr. 820, 831, 799 P.2d 1253, 1264 (1990). Using this standard, California courts have concluded that the phrase "sudden and accidental" is not ambiguous. Shell Oil Co. v. Winterthur Swiss Ins. Co., 12 Cal.App.4th 715, 15 Cal.Rptr.2d 815, 841 (1993); Truck Ins. Exch. v. Pozzuoli, 17 Cal.App.4th 856, 21 Cal.Rptr.2d 650, 651 (Ct.App.1993); ACL Technologies, Inc. v. Northbrook Prop. & Cas. Ins. Co., 17 Cal.App.4th 1773, 22 Cal.Rptr.2d 206, 213-14 (1993). Moreover, California courts have indicated that "sudden" connotes a temporal quality.[A]ccidental conveys the sense of an unexpected or unintended event, while "sudden" conveys the sense of an unexpected event that is abrupt or immediate in nature. "Sudden and accidental" is not ambiguous if we give the words their full significance. A court should not make a phrase ambiguous by unreasonably truncating a word's meaning.
14
Shell Oil, 15 Cal.Rptr.2d at 841; ACL Technologies, 22 Cal.Rptr.2d at 214. Therefore, under California law, non-sudden, continuous pollution does not qualify as an exception to the pollution exclusion in this case. See Shell Oil, 15 Cal.Rptr.2d at 841-42; Pozzuoli, 21 Cal.Rptr.2d at 651-52.
15
Hughes argues that the pollution exclusion was drafted as a mere "clarification" of the "occurrence" definition contained in prior CGL policies and that the insurance industry, in selling the new exclusion, stated that the new pollution exclusion did not reduce coverage. However, we agree with the district court that the drafting and marketing history of the pollution exclusion is not only unclear but also irrelevant because Hughes has not shown that it relied on this history or that the history played any part in the policy negotiations. See AIU, 274 Cal.Rptr. at 832 n. 9, 799 P.2d at 1265 n. 9; Darner Motor, 140 Ariz. at 393, 682 P.2d at 398 (explaining that extrinsic evidence must show the parties' intent with regard to the negotiation of the agreement). Accordingly, we conclude that under Arizona and California law, the "sudden and accidental" exception to the pollution exclusion necessarily incorporates a notion of temporal brevity.
16
b. The Valenzuela Claims were Caused by Hughes' Gradual,
17
Non-Sudden Pollution.
18
Hughes further argues on two grounds that the pollution exclusion does not exclude coverage: (1) TCE was not a contaminant or pollutant within the pollution exclusion for most of the relevant time period and (2) certain "sudden" polluting events contributed to the Valenzuela injuries. We disagree.
19
First, the fact that TCE was not listed as a pollutant by the EPA until the late 1970's does not help Hughes because the language of the exclusion does not require such a listing. The pollution exclusion excludes injuries arising out of the "discharge, dispersal, [or] release" of, inter alia, "toxic chemicals, liquids or gases, [or] waste materials or other irritants." Because Hughes does not and could not claim that TCE is not a toxic chemical, liquid, waste material, or irritant, we reject its first ground. Moreover, because Hughes raises this argument for the first time on appeal, Hughes has waived it. See Gruver v. Midas Intern. Corp., 925 F.2d 280, 283 (9th Cir.1991).
20
Second, Hughes' argument that certain "sudden" polluting events partially caused the injuries to the Venezuela claimants also fails. These "sudden" polluting events caused TCE and other toxic chemicals to be dumped directly into Hughes' unlined ponds. They occurred when the waste treatment plant broke down or was over-capacitated or when TCE was spilled onto the work floor and was pushed into a drain that bypassed the treatment plant. The district court properly rejected Hughes' effort to "break down its long-term waste practices into temporal components in order to find coverage where the evidence unequivocally demonstrates that the pollution was gradual." Accordingly, we affirm the district court's grant of summary judgment for the Insurers regarding the pollution exclusion.
21
B. The March 19, 1992, Order Declining to Review the Clerk's Award of Costs to Hartford. (No. 92-15815)
22
Based on its summary judgment victory in the September 6, 1991, order, Hartford filed an application for costs. Hartford sought costs of $62,170.73, the vast majority of which were reimbursement for Hartford's 20% share of deposition costs under a cost-sharing agreement with the other insurers. After a hearing, the district court clerk granted Hartford $55,777.83. Hughes filed a motion for review pursuant to Fed.R.Civ.P. 54(d). The district court (1) denied Hughes' motion as untimely and (2) concluded that had Hughes' motion been timely, it would have denied the motion on the merits because the depositions for which Hartford sought reimbursement were "necessarily obtained." We agree with the district court's second conclusion.4
23
We review the district court's determination of the nature and amount of the costs award for an abuse of discretion. Haagen-Dazs Co. v. Double Rainbow Gourmet Ice Creams, Inc., 920 F.2d 587, 588 (9th Cir.1990). Hughes argues that the district court erred (1) by creating a presumption that Hartford's deposition costs were "necessarily obtained" and (2) by concluding that the costs were "necessarily obtained" even though Hartford failed to detail why each of the depositions was necessary. We disagree.
24
First, as the district court correctly noted, this court has not clearly allocated between the prevailing and losing party the burden of demonstrating whether deposition costs are "necessarily obtained" under 28 U.S.C. Sec. 1920. The district court relied on out-of-circuit cases that appear to place the burden on the losing party. See Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1242 (7th Cir.1985), overruled on other grounds, Provident Bank v. Manor Steel Corp., 882 F.2d 258, 261 (7th Cir.1989); Desisto College v. Town of Howey-In-The-Hills, 718 F.Supp. 906, 910 (M.D.Fla.1989), aff'd, 914 F.2d 267 (11th Cir.1990) (table). However, we need not address this question because the district court independently determined that Hartford's deposition costs were necessary.
25
Second, we reject Hughes' contention that the district court could not conclude that the deposition costs were "necessarily obtained" because Hartford failed to detail why each deposition was necessary. The district court's order specifically addresses each category of depositions and adequately explains why they were necessary for Hartford. In light of the fact that the district court was "intimately familiar" with the proceedings that led to the imposition of costs, we conclude that the district court did not abuse its discretion by concluding that Hartford's deposition costs were "necessarily obtained." See Haagen-Dazs, 920 F.2d at 588.
26
C. The September 16, 1992, Order Granting Summary Judgment for INA and Lloyd's. (Nos. 92-16901 & 92-16957)
27
1. The "Expected" or "Intended" Requirement.
28
a. The District Court Properly Inferred an Exclusion for
29
"Expected" or "Intended" Damage.
30
The district court inferred an exclusion into the pre-1971 policies for damages that Hughes "expected or intended." The court further ruled that a subjective standard should be used to measure Hughes' intent. Hughes contends that this inference was error. Specifically, Hughes argues that the district court erred by extending the public policy stated in California Insurance Code Sec. 533 to include "expected" harm.5 We disagree.
31
"A 'willful act' under section 533 must ... include a deliberate liability-producing act that the individual, before acting, expected to cause harm." Shell Oil, 15 Cal.Rptr.2d at 833. "[S]ection 533 precludes indemnification for liability arising from deliberate conduct that the insured expected or intended to cause damage." Id. Accordingly, INA and Lloyd's are not liable for any bodily injury caused by Hughes' conduct that Hughes subjectively expected or intended to cause. See id. at 833-35.
32
Hughes also contends that the district court erred in failing to admit extrinsic evidence that INA believed that policies similar to the policies in this case provided coverage for "expected" harm. However, these memoranda and letters were not created before 1970, after Hughes' INA policies had expired, and were therefore never seen, much less relied upon by Hughes during its negotiations with INA. Therefore, we conclude that Hughes' extrinsic evidence is neither persuasive nor relevant and that the district court properly refused to consider it. See AIU, 274 Cal.Rptr. at 832-33, 799 P.2d at 1265-66.
33
b. The District Court Erred in Ruling that Hughes Expected
34
or Intended the Injuries.
35
In granting summary judgment, the district court concluded that Hughes "expected" the damage that it caused the Valenzuela claimants. "The appropriate test for 'expected' damage is whether the insured knew or believed its conduct was substantially certain or highly likely to result in that kind of damage." Shell Oil, 15 Cal.Rptr.2d at 836. We conclude that summary judgment was inappropriate because it is not clear whether Hughes' conduct meets this test.
36
First, the district court improperly based its conclusion that Hughes expected or intended the Valenzuela injuries, in large part, on Hughes' disposal of chromium. This was error because the Valenzuela injuries were not caused by chromium contamination. There is no evidence that the Valenzuela claimants were ever exposed to harmful levels of chromium; the Valenzuela wells never contained excess chromium and were never closed based on chromium contamination. Rather, the City of Tucson closed wells because of the presence of organic solvents like TCE. Accordingly, on remand the district court should not rely on evidence of Hughes' chromium disposal practices.
37
Second, the evidence that Hughes expected or intended injuries caused by TCE contamination is insufficient for summary judgment. In reaching its conclusion that Hughes expected or intended to cause injuries by its disposal of TCE, the district court relied on evidence that TCE was toxic in some concentration if ingested. However, Hughes raises a genuine issue of material fact by arguing that, until recently, exposure to moderate amounts of TCE was not considered harmful. TCE was commonly used as an anesthetic and disinfectant. It was also used to extract hops, decaffeinate coffee, and to prepare fish meal. It was not until 1977 that the FDA first proposed banning TCE as a food additive. The first recommended, non-binding TCE standard for drinking water was not promulgated by the EPA until 1979. Moreover, Hughes introduced evidence that the common and preferred method of disposing of TCE was to put it on the ground to evaporate. Further, throughout the applicable period, regulatory agencies did not comment on Hughes' TCE disposal practices.
38
In light of this evidence, we cannot conclude that Hughes "knew or believed its [disposal of TCE] was substantially certain or highly likely to result" in harm to the Valenzuela claimants. See Shell Oil, 15 Cal.Rptr.2d at 836. Accordingly, we reverse this ground for the district court's grant of summary judgment.
39
2. The Requirement that Injuries Must Occur During the
40
Policy Period.
41
a. The District Court Properly Inferred a Requirement that
42
the Valenzuela Injuries Must Occur During the Policy Period.
43
INA's CGL policies (and Lloyd's excess policies) provide Hughes insurance coverage for "occurrences which occur during the policy period anywhere." However, with respect to bodily injury coverage, the word "occurrence" is not defined. The district court concluded that an "occurrence" could happen only if the Valenzuela claimants were injured during the policy period. Therefore, Hughes' act of dumping TCE was not an "occurrence" by itself; someone had to be injured first. We agree.
The general rule in California is that
44
[t]he insurer's obligation to pay is ordinarily triggered when the insured is liable to a third party for injuries or damages caused by an "occurrence" or "accident," and the time of the "occurrence" is "not the time the wrongful act was committed, but the time the complaining party was actually damaged."
45
Chu v. Canadian Indem. Co., 224 Cal.App.3d 86, 274 Cal.Rptr. 20, 25-26 (1990) (quoting Remmer v. Glens Falls Indem. Co., 140 Cal.App.2d 84, 295 P.2d 19, 21 (1956)); see also Hallmark Ins. Co. v. Superior Court, 201 Cal.App.3d 1014, 247 Cal.Rptr. 638, 640 (1988); State Farm Mut. Auto. Ins. Co. v. Longden, 197 Cal.App.3d 226, 242 Cal.Rptr. 726, 729-30 (1987). Hughes contends that the general rule does not apply in this case, citing only Insurance Co. of N. America v. Sam Harris Constr. Co., 22 Cal.3d 409, 149 Cal.Rptr. 292, 583 P.2d 1335 (1978). We disagree.
46
In Sam Harris, the court found coverage even though the complaining party was injured outside the policy period. The court departed from the general rule because it found that the policy phrase "occurrences or accidents" was ambiguous where neither "occurrence" nor "accident" was defined in the policy. Id. 149 Cal.Rptr. at 293, 583 P.2d at 1336. However, Sam Harris is distinguishable from this case because Sam Harris places great emphasis on the undefined disjunctive phrase "occurrences or accidents," whereas in this case only the phrase "occurrence" is used. See Longden, 242 Cal.Rptr. at 730 (distinguishing Sam Harris because the policy in Longden did not contain the disjunctive phrase "occurrence or accidents" but referred only to "accidents"); Employer Cas. Co. v. Northwestern Nat'l Ins. Group, 109 Cal.App.3d 462, 167 Cal.Rptr. 296, 299-300 (1980) (same), overruled on other grounds, In re Marriage of Arceneaux, 51 Cal.3d 1130, 275 Cal.Rptr. 797, 801, 800 P.2d 1227, 1231 (1990). Accordingly, the general rule applies, and INA and Lloyd's are not liable for any injuries that occurred after the relevant policy period ended. See Chu, 274 Cal.Rptr. at 25-26.
47
b. The District Court Erred in Ruling that the Valenzuela
48
Injuries Occurred after the Pre-1971 Policies Expired.
49
In concluding that no Valenzuela claimant was injured during the relevant policy periods, the district court relied on expert evidence that Hughes had developed to defend itself in the underlying Valenzuela tort action. These experts plotted the underground TCE contamination from Hughes' ponds to Tucson drinking water wells. They concluded that contaminants moved too slowly to affect all but one of the wells before the policies terminated in 1971. They further concluded that no harm was caused by the contaminated well because that water was mixed with uncontaminated water and was thus rendered harmless during the policy period.
50
However, Hughes offered expert evidence that was developed by the Valenzuela claimants. These experts concluded that Tucson's municipal wells were contaminated with TCE from Hughes' property beginning no later than 1956. They also concluded that any level of TCE is harmful and causes bodily injury. The district court refused to hear this testimony because Hughes had failed to "designate" these experts before a discovery deadline. The district court also found that the evidence, even if it were timely presented, was not as credible as the experts Hughes had previously retained.
51
We review for an abuse of discretion the district court's discovery rulings. United States v. Bourgeois, 964 F.2d 935, 937 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 290, 121 L.Ed.2d 215 (1992). The district court's requirement that the expert testimony be designated refers to a discovery order requiring the parties to designate their retained expert witnesses. However, in this case, none of the Valenzuela experts were ever "retained" by Hughes. Because the Valenzuela expert evidence clearly supports a finding that some of the Valenzuela injuries occurred prior to 1971, we conclude that the district court abused its discretion in failing to review it. Moreover, the district court's conclusion that the Valenzuela experts were less credible is inappropriate at summary judgment. See Musick, 913 F.2d at 1394. Accordingly, because a genuine issue of material fact exists regarding whether some Valenzuela claimants were injured prior to 1971, we reverse the district court's grant of summary judgment.
52
AFFIRMED in part; REVERSED in part; and REMANDED. Each party shall bear its own costs on appeal.
*
Hon. Thomas E. Fairchild, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation
1
AVN 46A provides:
NOISE AND POLLUTION AND OTHER PERILS EXCLUSION CLAUSE
1
This policy does not cover claims directly or indirectly occasioned by happening through or in consequence of:
(a) noise (whether audible to human ear or not), vibration, sonic boom and any phenomena associated therewith,
(b) pollution and contamination of any kind whatsoever,
(c) electrical and electromagnetic interference,
(d) interference with the use of property;
unless caused by a crash, explosion or collision or a recorded in-flight emergency causing abnormal aircraft operation.
2
The district court determined that California law applies to the interpretation of INA's policies. However, the district court did not determine what law applied to the policies of the other insurers, but instead applied both Arizona and California law. We do not decide which law applies to the other insurers' policies because both states' laws yield the same results
3
The "pollution exclusion" states that the insurance does not apply
(f) to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion shall not apply if such discharge, dispersal, release or escape is sudden and accidental.
(Emphasis added.)
4
Because we agree that the depositions for which Hartford seeks reimbursement were "necessarily obtained," we do not consider whether Hughes' Rule 54(d) motion was timely
5
The district court did not decide whether California or Arizona law applies to Lloyd's excess policies. However, the district court concluded that California law applies to INA's underlying primary CGL policies, for which Lloyd's excess policies "follow-form." Accordingly, we apply California law to both INA's and Lloyd's pre-1971 policies
|
Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-13-00148-CV
Javier H. PEREZ,
Appellant
v.
Patricia VILLARREAL and Israel Villarreal,
Appellees
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2011-CVT-000406-D2
Honorable Monica Z. Notzon, Judge Presiding
BEFORE JUSTICE ANGELINI, JUSTICE MARION, AND JUSTICE ALVAREZ
In accordance with this court’s opinion of this date, the trial court’s judgment is
AFFIRMED. Appellees’ motion to strike Appellant’s surreply is DENIED. Costs of this appeal
are taxed against Appellant Javier H. Perez.
SIGNED August 29, 2014.
_____________________________
Patricia O. Alvarez, Justice
|
688 F.2d 820
Gitzv.Goodman
81-2836
UNITED STATES COURT OF APPEALS Third Circuit
6/14/82
1
E.D.Pa.
AFFIRMED
|
49 Cal.4th 635 (2010)
234 P.3d 428
THE PEOPLE, Plaintiff and Respondent,
v.
GREGORY O. TATE, Defendant and Appellant.
No. S031641.
Supreme Court of California.
July 8, 2010.
*641 Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Harry Gruber, Deputy State Public Defender, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Bruce Ortega and Sara Turner, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BAXTER, J.
A jury found defendant Gregory O. Tate guilty of the first degree murder of Sarah LaChapelle. (Pen. Code, §§ 187, 189.)[1] The jury also found that defendant personally used a dangerous and deadly weapon, a knife (§ 12022), and that robbery-murder and burglary-murder special circumstances were true (§ 190.2, subd. (a)(17)). Defendant was sentenced to death. This appeal is automatic. We will affirm the judgment in its entirety.
I. FACTS
A. Guilt trial.
1. Prosecution case.
Around 8:00 p.m. on Monday, April 18, 1988, Tanya DeLaHoussaye paid a brief visit to Sarah LaChapelle in Sarah's home on Hesket Road in Oakland.[2] Sarah's burgundy Oldsmobile Cutlass was parked in her driveway. Sarah was wearing a nightgown and said she planned to lie down because she had a cold.
At 11:00 a.m. on Tuesday, April 19, 1988, Anthony LaChapelle, Sarah's son, went to her home and noticed her Cutlass was not in the driveway. The front door was open, though the outer screen door was closed. Anthony went *642 in and found his mother dead on the living room floor, dressed in a nightgown. Her body had been impaled with a butcher knife and a barbecue fork. Her ring finger had been cut off and was lying near her body. A chair had been turned over, items had been tossed about, and the room was in disarray. There was a hole in the back door. Anthony called 911.
An autopsy confirmed that a knife was embedded in the victim's back, and a barbecue fork was stuck in the side of her neck. She had multiple stab wounds on her back, buttocks, and neck, some inflicted by a knife different from the one lodged in her back. There also were incised, or slicing, wounds on her left shoulder, right index finger, and right thumb. Her back and face exhibited numerous puncture wounds, caused by something small and sharp entering the body, including one such wound that had penetrated her eye. In all, her body had 24 stab wounds and 28 puncture wounds. These wounds had caused damage to her ribs, voice box, pericardial sac, heart, torso, neck, back, right jugular vein, right chest cavity, right lung, vertebral column, left kidney, abdominal cavity, and left buttock, and well as the tendons and muscles of her right hand. As noted, her ring finger had been detached from her hand, and she had damage to the adjacent third and fifth fingers. She had also suffered multiple blunt force injuries, including defensive wounds, to her head, face, arms, and torso. Her upper jaw was fractured, and teeth had been knocked out. The examining pathologist opined that the victim was alive, though not necessarily conscious, at the time these injuries were inflicted.
The victim had a telephone cord wrapped around her wrists and torso. There was a 10-inch tear on the front of her nightgown, which had been lifted above her waist. The evidence indicated that the assailant had made a forced entry through the back door, that a bloody struggle had occurred in the living room, that the assailant thereafter left bloody traces, including bloody footprints, throughout the house while looking for items to steal, and that the murder weapons were knives and tools found in the victim's home.
Defendant's grandmother lived across the street and three houses down from the victim's residence. Also living in the grandmother's house were defendant's mother, his brother, his aunt, and several other relatives. According to defendant's aunt, he sometimes lived with the family at his grandmother's house, but he was not living there on the day of Sarah's murder.
Around 6:00 p.m. on April 19, 1988, Oakland patrol officers Sullivan and Boyovich were parked on Kingsland Avenue. They spotted a burgundy Oldsmobile Cutlass that was on the stolen vehicle list. They stopped the vehicle, which was the victim's car. Defendant was driving. He was arrested. The interior of the Cutlass contained a small carving knife and a pair of red pants, as well as a radio-television and a videocassette recorder (VCR) that had been taken from the victim's home.
*643 After initial resistance, defendant was handcuffed and placed in the police car. Once seated in the police vehicle, he volunteered that he had gotten the Cutlass from "a guy named Fred Bush."
Defendant was taken to the homicide division of the Oakland Police Department to be interviewed. Defendant's sweater had a bloodstain on its sleeve, and, when one of the interviewing officers arrived, the bloody shoes defendant had been wearing were sitting outside the interview room. The interview began around 9:25 p.m. on April 19 and lasted through much of the night, with periodic breaks.[3] Only a single portion was recorded. During the unrecorded initial segment, interrogating officers advised defendant they were investigating the theft of the Oldsmobile, and that a lady had been "hurt" in the incident. The officers read him his Miranda rights. He agreed to waive his right to silence, both orally and by initialing the written advisement form.
During the initial unrecorded segment, the officers asked defendant about the bloodstain on the sleeve of his sweater. Defendant said it was from a nosebleed. Defendant further stated the following: He lived with his grandmother, but was staying at the home of his girlfriend, Lisa Henry.[4] He was at his grandmother's between 2:00 p.m. and 3:00 p.m. on April 18, 1988, but arrived at Lisa's residence around 8:00 p.m. The next morning, April 19, he got up at 10:00 a.m. and went to 55th Avenue and Foothill Boulevard. There he met Fred Bush, who had the burgundy Oldsmobile Cutlass. Bush was trying to sell a small television and a VCR. He owed defendant $500 because, when defendant was arrested and jailed following an earlier fight between the two men, Bush or Bush's mother had taken defendant's jacket, which contained cocaine worth that sum. As a "fair trade" for the debt, defendant gave Bush two rocks of cocaine, worth $20 each; in return, Bush gave defendant the television and the VCR, and lent him the Cutlass until 11:00 that evening so he could take Lisa to a drive-in movie.
The recorded portion of the interview began at 10:07 p.m. At this time, defendant was re-Mirandized, and he agreed to continue speaking. During the recorded segment, defendant provided a more detailed version of the account he had previously given. Meanwhile, the officers learned that Fred Bush had *644 been taken into custody on April 7, 1988. (He would thereafter remain in the county jail until July 18, 1988.) Without telling defendant that Bush was in jail, the officers asked defendant to identify a picture of Bush. Defendant positively identified, and initialed, the picture.
The recorded session ended at 10:33 p.m.,[5] and the interview resumed at 11:29 p.m. Before this latter segment commenced, the officers advised defendant that the victim in the case they were investigating was dead.
In the renewed session, defendant conceded that his grandmother lived near the victim, Sarah LaChapelle, and that he knew Sarah's son, but he denied ever being inside the victim's house. An officer asked defendant whether anything had happened at his grandmother's residence on April 18, 1988. Defendant said he had gone there once that day to get money from his mother for a bus ticket, but she would not give him money. He had also gone to obtain his gun, and he went into his grandmother's room for that purpose. Told that two 911 calls had been made from his grandmother's address on that day (at 7:04 p.m. and 9:25 p.m.), defendant responded, "What if I did go back? But I didn't." Defendant insisted his family blamed him for everything and did not like him. When accused of lying, defendant muttered to himself, "Going to jail for the rest of your life, man."
At length, the officers confronted defendant with the facts that Fred Bush was in jail, defendant had been driving the victim's car and was in possession of property taken from her home, and he had bloodstains on his clothing and shoes. Urged to tell the truth in the face of this evidence, defendant responded, "Well, what's in it for me?" The officers indicated there would be no deals. In the early morning hours of April 20, 1988, defendant was arrested for Sarah LaChapelle's murder.
Later on the morning of April 20, and pursuant to a warrant, officers searched the residence where Lisa Henry lived with her father and her 15-year-old brother, Germaine. Among other things, the officers seized a watch, a chain necklace, and a Visa credit card in the victim's name. Lisa gave the watch and chain to police after an officer advised her they were looking for evidence that might have been taken in the homicide.
*645 When the search was complete, the police transported Lisa to the station to obtain a statement. Among other things, the officers asked whether defendant had given her some rings. Lisa said he had done so, but had subsequently taken them back.[6]
At the conclusion of an initial interview, Lisa was allowed to speak with defendant, who was in another interview room. There were several versions of how this visit came about, and of what defendant told Lisa. Sergeant Medsker, one of the interrogating officers, testified that Lisa asked if she could see defendant, was granted permission to do so, and spoke with him for about five minutes. Immediately thereafter, the officers questioned Lisa on tape about what defendant had said. In this recorded portion of the interview, which was played for the jury, Lisa stated that defendant had denied committing the crime, had ultimately agreed with Lisa's suggestion that "Freddie, Fred did it," and at one point had said he tried to stop Fred. Lisa indicated she had urged defendant to disclose who else was involved in hopes of receiving a lesser sentence, but defendant said he would have to stay in jail anyway.
At trial, when asked by the prosecutor if she had requested permission to see defendant, Lisa responded only that the officers said they would allow her to see and speak with him. On cross-examination, she denied having asked to see defendant.[7] Lisa testified that when she asked him about Fred, defendant "didn't say anything," and when she asked him what happened with a lady, he was "just vague" and "didn't really say." When the prosecutor sought to refresh her recollection by showing her the transcript of her taped police statement, Lisa claimed she had misspoken to the officers; they had mentioned Fred and she went into the room thinking Fred must have committed the crime, so after her visit with defendant, in which she did "all the talking," she just told them, "Fred did it."
Lisa further testified as follows: Defendant had stayed at her home off and on since the end of March, when he was discharged from the hospital after *646 being treated for gunshot wounds. He came to her house around 8:00 p.m. on April 18, 1988, but he did not stay the night. When he arrived, he was wearing acid-washed jeans with a red jacket. He subsequently left the house with Lisa's father. Her father returned later that evening, but defendant did not. Lisa saw defendant again the next morning; Germaine had let him in while Lisa slept. Defendant was still wearing the jeans and red jacket. The jacket had a matching pair of red leather pants. Lisa had seen defendant wear jeans under those pants before. Germaine wore the matching jacket and pants to school that day. That same morning, Lisa found a Chase Manhattan Visa card with the name "Sarah" in a paper bag on the kitchen table. Defendant gave her a watch, a necklace, a diamond wedding ring, and a diamond engagement ring. She did not ask where he got these items and assumed they were from his drug dealing activities. Later that day, defendant drove Lisa to the store in a burgundy Oldsmobile Cutlass. She asked where he had obtained the car, but he did not answer. During the drive, he asked her to give him back the rings; she did so. He dropped her off at her home around 6:00 p.m.
In his trial testimony, Germaine Henry admitted he had told police defendant arrived at the Henry residence on the morning of April 19, 1988, carrying a red jogging suit in a pillowcase. However, he disavowed this statement on the stand, saying the jogging suit had been in his possession for weeks. He testified he wore the suit on occasion, but could not remember wearing it on April 19. He admitted the pants legs had little soiled spots, as well as dirt that needed to be wiped off.
Thereafter, Germaine's tape-recorded statement to the police was admitted in evidence and played for the jury. In this statement, Germaine recounted the following: Defendant was not at the Henry residence on the evening of April 18, 1988, but arrived the next morning carrying a red jogging suit in a pillowcase. Germaine wore the suit to school that day (Apr. 19) after wiping dirt off the pants legs. When he left for school, a burgundy-colored car was parked outside the house. When he got back from school, Lisa was wearing a watch, and defendant showed Germaine a ring, which Germaine put on his finger and then returned to defendant.
Defendant's aunt, Mamie Jackson, lived with defendant's grandmother on Hesket Road. Jackson testified as follows: Defendant came to the house in the late afternoon or early evening of April 18, 1988. He was wearing a red jogging suit. Jackson was not present when defendant left the house later that night, but when she next returned, the grandmother's room appeared to have been ransacked. The next morning, the victim's husband, Sylvester LaChapelle, called Jackson and asked if she could see Sarah LaChapelle's Oldsmobile Cutlass parked in Sarah's driveway. Jackson walked across the street to check, saw the car was not there, and relayed this information to Sylvester.
*647 Serological evidence indicated that the pants of the red leather jogging suit and the sleeve of defendant's sweater both contained type B human blood, found in 19 percent of the Black population. The victim had type B blood; defendant has type O blood. Other genetic markers in the blood on the sweater were consistent with the victim's blood and appear in about 1.2 percent of the Black population. Other genetic markers in the blood on the red pants were also consistent with the victim's blood and appear in about 11 percent of the Black population.
According to the prosecution criminologist, the bloodstains on the pants were both "transfer-type" and "spatter" stains. The criminologist described the latter as "blood in flight." There was also blood on the jacket of the red jogging suit, and on the tops and tongues of defendant's Fila tennis shoes. The print of one of these shoes matched a bloody shoeprint found at the crime scene.
2. Defense case.
An Oakland Police Department fingerprint specialist testified for the defense that he could obtain no fingerprint match with defendant for prints taken from the crime scene, the victim's car, or various items seized from the victim's house.
Defendant testified in his own behalf and denied killing Sarah LaChapelle. He gave the following account: He went to his grandmother's house between 4:00 p.m. and 5:00 p.m. on April 18, 1988. He was wearing Fila tennis shoes and a red leather jogging suit over acid-washed jeans and a sweater. He sought to obtain a gun, and also wanted his grandmother to give him money for a bus ticket, because he had learned that the man who had shot him the previous month was after him again. His grandmother did not have enough money to give him. He went into her bedroom without permission and opened drawers to look for a firearm, but he did not ransack the room. He found a .38-caliber revolver under the bed and put it in his belt. As he left, after a stay of about 40 minutes, he heard his name broadcast on his grandmother's police scanner. Because he was on probation for prior weapons offenses, and feared the police might catch him with the revolver, he hid it on a shelf in his old clubhouse adjacent to his grandmother's garage. Then, carrying the scanner, he jumped over her fence.
Still listening to the scanner, defendant walked along a creek to Hegenberger Road, getting mud on his pants and shoes in the process. Eventually he took a bus to Lisa Henry's house, where he rinsed off his pants with a hose. He changed shoes and socks, putting on a different pair of Fila tennis shoes that belonged to Germaine. Lisa's father, Reginald Henry, then drove *648 defendant to look for drugs defendant had hidden. When they could not find the drugs, they went to a liquor store and bought beer. They sat in the parking lot, drinking the beer, for about 40 minutes. Then they drove back to the Henry house. Reginald went inside, but defendant did not.
After several more stops, including one to purchase wine, defendant returned to his grandmother's house to retrieve the gun. He was not sure when he arrived there. This time, he did not go into the house. He proceeded to his old clubhouse, obtained the gun, and stayed for about 15 minutes, finishing the wine.
As he walked toward the front of his grandmother's property, defendant observed two men, whom he had seen before, coming out of Sarah LaChapelle's house. One was carrying a box and the other a pillowcase. The man with the pillowcase saw defendant, dropped the pillowcase, and ran. Both men were Black. One was tall and had a light complexion.
Defendant looked inside the pillowcase and saw a VCR and a television. The front door to the victim's house was open, and he entered the residence. There he found the victim dead and the house in bloody disarray. He tried to see if the victim was breathing, but was distracted when he heard a noise at the back door. He reached for his gun and dropped it beside the victim's body. He picked up the gun, went to the back door, and saw that it had been kicked in. Because Germaine's shoes were two sizes too small, he was wearing them like slippers, and one fell off.
Defendant wiped his gun off with a towel. He took the victim's car keys, the television, the VCR, and other items, and drove away in her Oldsmobile. He did not call the police to report that she was dead. Nor did he impart this information to his grandmother.
After leaving the victim's house, defendant drove aimlessly. He threw away his bloody socks, and finally fell asleep in the Oakland hills. The next morning, he drove to Lisa Henry's residence. He took off his leather pants, put them in the pillowcase containing the television and the VCR, took the pillowcase into Lisa's house, and put it in a closet. Germaine asked if he could wear the red leather jogging suit to school, and defendant agreed. He retrieved the red pants from the pillowcase and gave them to Germaine. He did not realize there was blood on them.
After taking a shower, defendant examined the pillowcase's contents. Along with the television and the VCR, it contained a watch, a chain necklace, some rings, and a paper bag with a credit card inside. He gave the chain, watch, and rings to Lisa, then went to sleep on the floor.
*649 Later, defendant drove Lisa and her friend Yolanda to the supermarket. They dropped off some medicine for Yolanda's mother and returned to Lisa's house. Defendant then placed the television and VCR in the trunk of the Oldsmobile and drove to the apartment of his friends Roshan and Judo, intending to sell the items. However, he began drinking and talking with his friends and did not get around to selling the television and the VCR.
On his way back to Lisa's house, defendant picked up his friend Arnold Haney. Defendant cooked a pizza for himself and Arnold, but Lisa came home and demanded that Arnold, whom she disliked, leave the house. Defendant and Arnold ate the pizza in the car. Defendant then returned to the house, where Germaine gave back the red leather pants he had worn to school. Lisa started an argument that escalated as she and defendant drove around in the Oldsmobile. Finally, she threw at him the rings he had given her. He put the rings in the car's ashtray, dropped Lisa off, and drove away. He removed the television and the VCR from the trunk and placed them in the passenger compartment, intending to sell them. While he was stopped at an intersection on Kingsland Avenue, an acquaintance approached and inquired about purchasing drugs.
Police had been sitting in a parked patrol car on Kingsland Avenue. At this point, they jumped out of their car and pointed guns at the two men. After defendant complied with their orders to put his hands through the window, crawl out onto the ground, and place his hands on his head, one of the officers kicked him while handcuffing him. In the police car following his arrest, defendant falsely told Officer Sullivan that he got the Oldsmobile from Fred Bush. He lied because he held a grudge against Bush. Two months earlier, he and Bush had gotten into a fight that led to defendant's being arrested and jailed. When defendant fled from the fight, Bush grabbed defendant's jacket, the pockets of which contained rock cocaine, and gave it to a family member. This incident caused defendant to think of Bush as his enemy.
At the homicide division, the police took defendant's shoes, and he was placed in an interview room, where Sergeants Medsker and Paniagua questioned him. They read defendant his rights, and he agreed to talk, but he did not know why. When asked where he got the Oldsmobile, he repeated the lie about Fred Bush because he had already told that story to Sullivan. Moreover, he did not think the truth would help and, in any event, he disliked Medsker, whom he knew from a previous investigation into the murder of defendant's friend. He also lied about getting the VCR and television from Bush in exchange for two rocks of cocaine, and lied by denying that he went into Sarah LaChapelle's house. When he told these falsehoods, he did not know he was going to be charged with homicide.
*650 B. Penalty trial.
1. Prosecution case.
In aggravation of penalty, the prosecution presented evidence of three other instances of defendant's violent criminal conduct (§ 190.3, factor (b)):
In March 1986, following a traffic accident between a truck he was driving and a car, defendant pointed two guns at the car's owner, then pursued the other vehicle at high speed, rammed it twice with the truck, fired three shots at the car, and, when finally cornered on foot by California Highway Patrol officers, initially resisted their orders and made movements as if to draw the two handguns in his belt.
In September 1987, defendant resisted arrest after a traffic stop by punching the officer's shoulder, challenging the officer to a street fight, and then rushing at the officer, whereupon the officer was forced to fell defendant with his baton.
In February 1988, several days after his fight with Fred Bush, defendant approached Bush's sister, Marlena Brown, hit her in the face with the back of his hand, placed her in a chokehold, and forced her to telephone Bush under threat that if she did not do so, he would shoot her.
The prosecution presented a single victim impact witness, Sarah LaChapelle's son Anthony. Anthony testified as follows: His son, age 11, and daughter, age 7, were both severely affected by Sarah's death. The mention of grandparents in the children's presence now caused them to cry, so the adults in the family avoided talking about the victim in front of the children. Anthony often dreamed about his mother. Since her death, he could not accomplish anything or face his friends. He began to drink heavily and was arrested for drunk driving. His friends advised him to hunt down and kill his mother's murderer. To get away from his friends, he moved to Los Angeles, where he again was arrested for drunk driving and spent time in jail. While he was in jail, his father passed away. Because of the loss of his parents, Anthony had trouble making business decisions, and he lost his contracting business.
As to his feelings about defendant, Anthony said, "Even now I want to get this guy. I want him to die, so I hope the law gets him for me."
2. Defense case.
Defendant presented an extensive case in mitigation. His mother, father, paternal grandmother, and various friends, acquaintances, school officials, and *651 juvenile justice workers testified at length about his family, his childhood, his educational difficulties, and his troubles with the law. A marriage and family counselor testified about the effects of child abuse on mental and psychological development.
Regarding defendant's childhood and family background, his mother, Rosia Carter, testified as follows: Defendant was born out of wedlock in 1967. At one point, Rosia had tried to abort the pregnancy by taking quinine and mustard powder. Defendant's father, Gregory Tate, Sr., ultimately married another woman and was involved only intermittently in defendant's life. Rosia was physically abused by Gregory, Sr., and by her husband, Wayne Carter. Defendant also suffered childhood physical abuse at the hands of these men, who used drugs such as heroin and cocaine. Among other things, Carter treated defendant harshly about defendant's bedwetting problem, which did not go away until the sixth or seventh grade. Carter was involved in criminal drug activities and went to prison twice during his marriage to Rosia. During Carter's second prison term, Rosia divorced him. In his teenage years, defendant was affected by the deaths of a cousin, Clifton Spencer, who was fatally stabbed; a neighborhood youth, Willis Reed, who died in a shed fire in Rosia's backyard; a friend, Antoine Martin, who died in defendant's arms after a driveby shooting; and defendant's maternal grandfather, who had been a constructive force in the family. After the grandfather's death, the family "fell apart." Several relatives developed drug problems, and there were physical fights in which defendant was sometimes involved. At age 17, defendant tried to hang himself in Rosia's backyard, got into an altercation with responding police officers, then fled. The officers opined he might be trying to make them kill him.[8] Once during a violent argument with Rosia, defendant blamed his upbringing for his life of crime and drugs.
Further details of the family background were supplied by Gregory, Sr., and defendant's paternal grandmother, Zelma Richard. Both confirmed that Gregory, Sr., dropped out of high school, married another woman, Pat Davis, in 1969, entered the military, was sent to Vietnam, and came back addicted to heroin. Gregory, Sr., recalled a 1968 incident, to which Rosia had also alluded, in which Rosia stabbed Davis during a street altercation, causing Gregory, Sr., to slap Rosia.
Gregory, Sr., recounted his further abuse of marijuana and alcohol, and admitted he supported his drug habits with crime. He confirmed that during the two periods he and Rosia lived together, they fought, and he hit her. They *652 argued about how defendant was being raised; Gregory, Sr., thought Rosia was overprotective and too lenient. Gregory, Sr., recounted that when defendant was 17 years old, he briefly lived with Gregory, Sr., in Seattle after escaping from a juvenile camp. Gregory, Sr., was then living in Seattle to avoid arrest for a parole violation.
Richard observed signs that defendant was an angry child who was getting into trouble in school and with the law. Like Gregory, Sr., she believed Rosia was too lenient. When defendant was a teenager, Richard tried to get him to work or go to school, and she enrolled him in a trade school, but he did not attend. She generally considered defendant to be smart, helpful, and respectful.
A friend of Rosia's and a jail acquaintance of Wayne Carter's confirmed the physical abuse Rosia suffered from both Carter and Gregory, Sr. A crisis intervention counselor recalled Rosia's efforts to place defendant, then eight years old, in a residential school because he was disobeying, fighting, and stealing. The counselor sensed that Rosia was rejecting defendant.
Three men, all of whom were serving prison terms at the time they testified, recounted their relationships with defendant as a child and youth. Their testimony indicated that defendant began drinking beer, smoking, stealing, and committing burglaries as early as age six; was smoking marijuana by the fourth grade; "hung out" with older people in an effort to "fit in"; had a violent temper and a "don't care" attitude; and engaged in fights. One of these witnesses opined that defendant was affected by the deaths of Willis Reed, defendant's friend Antoine Martin, and defendant's maternal grandfather.
Numerous witnesses detailed defendant's educational history. Rosia testified that she enrolled him in kindergarten a year early, but he was already having problems by the first grade. He transferred elementary schools several times. He was smaller than the other children, and tended to act aggressively toward them. He was easily distracted and may have been diagnosed with dyslexia. When learning disabilities caused his one-year transfer in third grade to a school with smaller class sizes, neighborhood children teased him about going to and from school on a "special bus." Back in his regular school, he had to repeat fourth grade. During this time, Rosia took him to juvenile authorities to see if they could talk to him before he got into trouble. She tried to place him in a residential school, but it already had one student with the same learning disability and could not take another. She took defendant for counseling, but he resisted, and the counselor could not break through. Defendant took some special education classes during junior high school. He was expelled for the remainder of the school year during seventh *653 grade when a friend brought a pellet gun to school. Things improved somewhat in ninth grade after defendant's transfer to yet another school. He joined the gymnastics team in 10th grade, but a foot injury ended his participation.
Teachers, an administrator, a psychologist, and a counselor who had contact with defendant while he attended public school testified about his behavior, attitude, grades, and test scores. These witnesses variously confirmed that, throughout much of his school career, defendant performed poorly, and he attended special classes for educationally handicapped students. In February 1975, when he was in the third grade, he attained an IQ score of 96, within the average range. Had the tester known defendant was only eight years old instead of nine, the score would have been higher. In separate evaluations during each of his fourth grade years, defendant tested well below grade level in reading, though his math scores were solidly at grade level. In seventh grade, after he was suspended for receiving a pellet gun from another student and was placed on home instruction for the remainder of the year, defendant received all failing grades. He did earn some B's and C's during his ninth grade year.
According to several witnesses, defendant was hot tempered and aggressive, often involved in fights with other students, and a frequent disciplinary problem. One teacher perceived him as a bully, while another reported that, though not a high achiever, he could behave when strict control was maintained. The individual education plan, or IEP, prepared for defendant early in his school career indicated he had visual-motor integration and reading disabilities, was overactive, and lacked impulse control. The IEP also suggested he had emotional problems.
There was evidence that Rosia's parenting methods, and her ambivalent attitudes toward defendant, contributed to his school problems. An elementary school teacher thought Rosia believed defendant's difficulties were the school's fault. A high school dean testified that, when he suspended defendant for fighting, Rosia at first asserted she did not believe defendant was involved in the incident, and she threatened to kick the dean's "ass," though she later came to accept defendant's complicity. One witness was a clinical psychologist who, as a graduate psychology student, had evaluated defendant during his third grade year. She testified Rosia told her, in front of defendant, that he resembled his father, that he was "evil," and that Rosia whipped him to make him angry enough to fight other children when that became necessary.
A juvenile probation officer testified about defendant's contacts with the juvenile justice system in 1983 and 1984, when he was 16 and 17 years old. According to this witness, defendant was arrested for battery in November *654 1983, but the district attorney deemed the incident mutual combat, and defendant was released to his stepfather, Carter. Defendant was arrested for burglary in early December 1983, but no wardship petition was filed, and he was released to his mother. Two weeks later, he was arrested on another burglary charge; he was declared a court ward and released to his mother under home supervision. In February 1984, he was arrested for yet another burglary and committed to a county juvenile camp. He twice walked away from this camp, but surrendered both times.
Finally, a licensed marriage and family counselor provided expert testimony about the nature of child abuse, the effects it can have on family dynamics, and the development, behavior, and maturity of one who has suffered it.[9] The witness indicated the following: Child abuse is an act or omission by a parent that is developmentally inappropriate and damaging to the child. A child can suffer physical, sexual, or psychological abuse, and parental neglect can also qualify as abuse. Psychological mistreatment can include rejection of the child, singling a child out for negative treatment, wishing the child had not been born, or terrorizing a child. Symptoms can include fistfighting by a young child and bed-wetting by an older child, though the latter problem may also have a physiological origin. The long-term effects of childhood abuse can include cognitive difficulties, poor school performance, impulsive behavior, alcohol and drug abuse, "acting out" behavior, aggressiveness, running away from home, depression, and suicide. People who were abused as children often become immature adults prone to temper tantrums. There is also a correlation between child abuse and a "conduct disorder," a diagnosis that may apply to one who breaks the law before age 18. In the 1970's and 1980's, child abuse often was not identified, and even if identified, the treatment may not have been effective.
II. DISCUSSION
A. Jury selection issues.
1. Restrictions on voir dire.
Defendant claims that by refusing to allow questioning of prospective jurors about whether they would automatically vote for the death penalty in light of certain specific facts about Sarah LaChapelle's murder, the trial court risked empanelling a juror who, though perhaps open to either the death penalty or life without parole in some cases, would vote for death in this case without regard to the mitigating evidence. The court's ruling, defendant *655 urges, violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and analogous provisions of the California Constitution. We find no error.
The pertinent procedural facts are as follows: Prior to trial, defendant's counsel submitted a proposed script to be used by the court in questioning jurors during the death qualification voir dire.[10] This script first advised a prospective juror that he or she was to hear a summary of the accusations against defendant in order to make voir dire more meaningful. The script then instructed the prospective juror not to assume the trial evidence would prove the accusations beyond reasonable doubt, not to draw inferences about defendant's guilt or innocence from the summary, and that guilt or innocence was a jury question to be decided on the basis of the evidence. After setting forth these admonitions, the script asked the prospective juror whether, if it were proved beyond reasonable doubt that (1) defendant kicked in the victim's back door and entered her home with intent to rob, (2) he murdered the victim during that burglary and robbery, (3) the victim died of multiple stabbing and puncture wounds and multiple blunt instrument blows, (4) defendant severed the victim's ring finger and took her wedding rings, and (5) the victim's adult son discovered her body, the prospective juror would automatically impose either death or life without parole as a penalty.[11]
*656 The defense proposal was extensively argued over three separate hearing dates, during which the court considered several alternatives. At the initial hearing, on September 3, 1992, the prosecutor objected that the defense's proposed question was "too detailed" and invited prospective jurors to prejudge the evidence. The court offered the prosecutor the chance to draft an alternative, and he agreed to do so.
The court took the matter up again on September 8, 1992. Having reviewed the prosecutor's draft,[12] the court proposed its own question. With the prosecutor's approval, this version included reference to the assumed facts that a woman was robbed, stabbed, and bludgeoned to death in her own home. Defense counsel urged that this was inadequate because it left out the most serious piece of aggravating evidence, i.e., that the victim's finger was severed. The court responded that it intended to omit this latter detail because whether, and why, the finger was severed was a jury issue. The court said that if a severed finger were mentioned, it would "invit[e] inquiries from the jurors why that is significant, and so then we are going to have to be feeding them more and more of the facts of this case, and we are asking them to prejudge the evidence."
The matter was continued again for two days, during which the court researched and considered the issues further. In its final ruling, on September 10, 1992, the court retreated from its September 8 position, and determined that death qualification inquiry about prospective jurors' case-specific penalty attitudes should be confined to matters embodied in the accusatory pleading. The court said it would read the information to the prospective jurors, and then would ask whether both penalties would be open if defendant was convicted of first degree murder, and the jury further found true the robbery-murder and burglary-murder special circumstances and that a deadly weapon was used. In addition, the court ruled, counsel could question prospective jurors about the effect on their penalty attitudes of (1) the felony-murder rule, (2) the fact that the victim was a woman, and (3) the fact that a knife was used in the murder.
On the other hand, the court indicated, it would not allow counsel to explore such details as that the victim was bludgeoned to death and was *657 stabbed multiple times and that, when found by her son, she was nude below the waist and a finger was severed. The court expressed the view that, under Witherspoon, supra, 391 U.S. 510, death qualification was concerned with a prospective juror's penalty attitudes in the abstract and should not focus on the specific facts of the case at hand. Questions that went into great detail about the facts of the particular case, the court remarked, improperly sought to "indoctrinate[] the juror" and get the "juror to vote in a specific way."
(1) We have had several recent occasions to summarize the relevant law. At the time of trial, as now, a prospective juror could be excluded from service on a capital case if the person's attitudes toward the death penalty would prevent or substantially impair his or her ability to follow the court's instructions and the juror's oath. (Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt) [clarifying that exclusion is permitted under broader circumstances than those previously specified in Witherspoon, supra, 391 U.S. 510, 522, which allowed exclusion where a prospective juror made "unmistakably clear" that he or she would "automatically" vote for or against the death penalty].) In the process of determining prospective jurors' capital case qualifications, the court has considerable discretion to place reasonable limits on voir dire (People v. Carasi (2008) 44 Cal.4th 1263, 1286 [82 Cal.Rptr.3d 265, 190 P.3d 616] (Carasi); People v. Zambrano (2007) 41 Cal.4th 1082, 1120 [63 Cal.Rptr.3d 297, 163 P.3d 4] (Zambrano)) and to determine the number and nature of voir dire questions (Carasi, supra, at p. 1286; People v. Stitely (2005) 35 Cal.4th 514, 540 [26 Cal.Rptr.3d 1, 108 P.3d 182] (Stitely)).
"[D]eath-qualifying voir dire seeks to determine prospective jurors' attitudes about capital punishment only in the abstract, and whether, without knowing the specifics of the case, they have an open mind on penalty. (Zambrano, supra, 41 Cal.4th [1082,] 1120, quoting People v. Clark (1990) 50 Cal.3d 583, 597 [268 Cal.Rptr. 399, 789 P.2d 127].)" (Carasi, supra, 44 Cal.4th 1263, 1286.) Thus, "as we have said on many occasions, `[d]efendant ha[s] no right to ask specific questions that invite[] prospective jurors to prejudge the penalty issue based on a summary of the aggravating and mitigating evidence ([Cash, supra,] 28 Cal.4th 703, 721-722 ...), to educate the jury as to the facts of the case (People v. Sanders (1995) 11 Cal.4th 475, 538-539 [46 Cal.Rptr.2d 751, 905 P.2d 420]), or to instruct the jury in matters of law (People v. Ashmus (1991) 54 Cal.3d 932, 959 [2 Cal.Rptr.2d 112, 820 P.2d 214]).' (People v. Burgener (2003) 29 Cal.4th 833, 865 [129 Cal.Rptr.2d 747, 62 P.3d 1]; see also, e.g., People v. Mason (1991) 52 Cal.3d 909, 939-941 [277 Cal.Rptr. 166, 802 P.2d 950] ....)" (Zambrano, supra, at p. 1120.)
"Nevertheless, voir dire cannot be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair their *658 performance under Witt, supra, 469 U.S. 412, 424. Rules have developed to balance the competing interests." (Carasi, supra, 44 Cal.4th 1263, 1286.) The gist of these rules is that the defense cannot be categorically denied the opportunity to inform jurors of case-specific factors that could invariably cause an otherwise reasonable and death-qualified juror to vote for death regardless of the strength of the mitigating evidence. (Id. at pp. 1286-1287; Zambrano, supra, 41 Cal.4th 1082, 1120-1123; People v. Roldan (2005) 35 Cal.4th 646, 693-694 [27 Cal.Rptr.3d 360, 110 P.3d 289] (Roldan); People v. Vieira (2005) 35 Cal.4th 264, 285-286 [25 Cal.Rptr.3d 337, 106 P.3d 990]; Cash, supra, 28 Cal.4th 703, 721.)
In Cash, supra, 28 Cal.4th 703, "our lone reversal for limiting death penalty inquiry into case-specific facts" (Carasi, supra, 44 Cal.4th 1263, 1286), we concluded that such a reaction might be engendered by anticipated penalty phase evidencemention of which the trial court had categorically excluded at all phases of voir direthat, as a juvenile, the defendant had murdered his grandparents. (Cash, supra, at p. 723.) On the other hand, in Roldan, supra, 35 Cal.4th 646, we found no facts so similarly inflammatory that reliance on Cash was appropriate. The Roldan evidence suggested that, after the defendant and an accomplice robbed participants in a swap meet, then fled, the defendant reappeared and fatally shot a swap meet employee who had chased and caught the accomplice, even though the victim complied with the defendant's order to release the accomplice. (Roldan, supra, at pp. 663-664.) Seeing no need for specific voir dire on details such as these, we explained that Roldan involved "no prior murders, no sensational sex crimes, no child victims, no torture." (Id. at p. 694.)[13]
Here, defendant renews his contention that his counsel should have been allowed to question prospective jurors about anticipated evidence that the murder victim, Sarah LaChapelle, was bludgeoned as well as stabbed, and in particular, that her ring finger had been severed. However, we find no abuse of the trial court's broad discretion.
Closely on point in this regard is our recent decision in Zambrano, supra, 41 Cal.4th 1082. There the information charged that the defendant, using a dangerous and deadly weapon, had committed the attempted murders, with great bodily injury, of a Berkeley couple, the Mishells. The information further asserted that the defendant had committed the first degree murder of Luis Reyna, inflicting great bodily injury. As to Reyna's murder, the information alleged a witness-killing special circumstance. The prosecution intended *659 to introduce evidence that the defendant, a successful contractor and local official, bludgeoned the Mishells, a University of California professor and his wife, in their home because he thought they had exposed his extramarital affair, and that he murdered Reyna, a friend and colleague, to prevent the victim from testifying against defendant in the Mishell case. There would also be evidence that the murder victim's body was found in an isolated hilly area, decapitated and dismembered.
The trial court indicated that, for purposes of death qualification, it would read aloud, and paraphrase, the information for the prospective jurors, and would permit counsel to question them with respect to the community status of the defendant and the victims, and the location of the Mishell assaults, but would not grant the defense request to explore the issue of dismemberment. To ask prospective jurors about their reaction to the "method of killing," the court explained, would be inviting them to prejudge the case.
(2) On appeal, we upheld the trial court's ruling as a valid exercise of its broad discretion. Distinguishing Cash, we held that "[t]he sole fact as to which the defense unsuccessfully sought additional inquirythe condition of the adult murder victim's body when foundwas not one that could cause a reasonable jurori.e., one whose death penalty views otherwise qualified him or her to sit on a capital juryinvariably to vote for death, regardless of the strength of the mitigating evidence." (Zambrano, supra, 41 Cal.4th 1082, 1122.) We acknowledged that a normal juror would certainly be affected by the condition in which the victim's body was found, "as by any brutal circumstance of a criminal homicide. But the fact of dismemberment, in and of itself, does not appear so potentially inflammatory as to transform an otherwise death-qualified juror into one who could not deliberate fairly on the issue of penalty." (Id. at p. 1123.)
Similarly here, the fact that Sarah LaChapelle was beaten as well as stabbed, though affecting, is not outside the realm of "brutal circumstance[s]" that might be expected in a trial for capital homicide. And if dismemberment of the victim's body in Zambrano was not a detail so gruesome, sensational, and inflammatory that it could cause a reasonable, otherwise qualified capital juror invariably to vote for the death penalty, the victim's severed finger in this case also does not qualify for that status.
Defendant urges that, in Zambrano, we made a point of noting there would be no evidence the murder victim might have been dismembered while alive, and thus perhaps was tortured. By contrast, defendant notes, the prosecution here presented evidence that the victim was likely alive, though not necessarily conscious, when the various injuries to her body, including the severed finger, were inflicted. But again, capitally charged homicides are often brutal.
*660 Since the victim was alive at the time she was stabbed to deatha detail prospective jurors would learnit seems unlikely a reasonable, otherwise qualified juror would focus on the additional pain and suffering represented by the severed finger as a basis for refusing to consider any penalty but death. Of course, many would deem it offensive that a robber-murderer cut off the victim's finger in a crass effort to obtain her rings. But that alone does not seem calculated to transform an otherwise fair juror into one who would vote for death regardless of the mitigating evidence.
Defendant's proposed script for death qualification voir dire included various admonitions against prejudgment, but it would nonetheless have invited prospective jurors to focus on specific details about the case at the outset, and to begin to form judgments and opinions about the appropriate penalty in advance of hearing the trial evidence. The trial court properly sought to avoid such a situation. The court did not abuse its broad discretion in denying inquiry on the subjects about which defendant now complains. His contention lacks merit.
2. Hardship excusal of Prospective Juror R.W.
Defendant contends the trial court improperly excused Prospective Juror R.W., despite defense counsel's refusal to stipulate to the excusal, on grounds R.W. was a full-time student. Defendant claims the excusal was not permitted, under the governing statute and rules, because R.W. did not affirmatively request he be excused and because the record does not show R.W. faced hardship sufficient to justify an excusal. The error, defendant asserts, implicates his federal and state constitutional rights to a fair and impartial jury drawn from a representative cross-section of the community. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) We are not persuaded.
The pertinent facts are as follows: On September 10, 1992, at the outset of jury selection, the trial court directed introductory remarks to the entire venire. Among other things, the court explained that the trial would begin in early December, and could take as long as four weeks, not counting jury deliberations or the hiatus that would occur between the guilt phase and any penalty phase. The daily trial schedule, said the court, would generally be from 1:30 p.m. to 4:30 p.m. on Mondays and Wednesdays, and from 11:00 a.m. to 4:30 p.m. on Tuesdays and Thursdays, with Fridays off. The court further indicated that, because it was responsible for empanelling a fair and impartial jury, an excusal from service on the case would not be easy to obtain, but the court nonetheless would consider certain kinds of hardship excuses, including significant loss of employment income, prepaid vacations, medical problems, and full-time student status. The court said it would take up any prospective juror's hardship issues during individual voir dire.
*661 During the subsequent individual voir dires, counsel stipulated to, and the trial court granted, hardship excusals to students L.S. and A.K. On her juror questionnaire, Prospective Juror L.S., a self-identified 22 year old with strong pro-death-penalty views, had indicated she was "currently attending" California State University, Hayward (Cal State Hayward).[14] In response to a question about her "job status," she had circled "full-time student," and had handwritten that she "[c]an't afford to miss my classes cuz it's already been paid for." During voir dire, the court obtained L.S.'s oral representation that she would be taking 17 units at Cal State Hayward,[15] and that her class schedule primarily fell during daytime weekday hours. Defense counsel indicated she would stipulate to L.S.'s excusal, and the prosecutor concurred. The court excused L.S., advising her that "we are going to excuse you for hardship. We don't want to interrupt your schooling."
On his juror questionnaire, Prospective Juror A.K., self-described as 34 years old and with strong pro-life views, had indicated he was a full-time student pursuing a master's degree in clinical psychology at the University of California, Berkeley. When A.K. appeared for individual voir dire, the court placed on the record that he had supplied official verification of his student status and advised him that "because of your school commitment, ... both sides have stipulated you can be excused."
Thereafter, the court conducted individual voir dire of Prospective Juror R.W. On his juror questionnaire, R.W. had described himself as 19 years old, and had indicated that a life sentence was preferable to the death penalty in all but "severe" cases. Like L.S. and A.K., he had circled "full-time student" on his questionnaire. He indicated he was studying criminal justice at Cal State Hayward. During his death-qualification voir dire, R.W. confirmed that he was open to the death penalty in "severe" cases like serial or multiple murder, and said he could also consider it in this single-murder case because the victim was stabbed to death.
While examining R.W. during the immediately following general voir dire, defense counsel asked what R.W. intended to do with his criminal justice major. At this point, the following colloquy occurred: "The Court: Can I interrupt for just a second? Are you still in school, Mr. [W.]? [¶] Prospective Juror Mr. [W.]: Yeah. [¶] THE COURT: Are you a full-time student? [¶] Prospective Juror Mr. [W.]: (Nods head.) [¶] The Court: You are a full-time student? [¶] Prospective Juror Mr. [W.] Yes. [¶] the Court: Where are you going? [¶] Prospective Juror Mr. [W.]: Cal State Hayward. [¶] The Court: Cal State Hayward. And how many units are you taking? [¶] Prospective Juror *662 Mr. [W.]: Seventeen. [¶] The Court: And you're in school right now; right? [¶] Prospective Juror Mr. [W.]: Yeah."
At this point, defense counsel interjected, "There hasn't been any complaint about that. We don't have anything written about that." The court responded, "But I'll accept it." Defense counsel then asked R.W. if he had a problem sitting on a jury for a trial that might take one or two months. R.W. answered, "It depends on the time schedule." Counsel repeated the day-to-day schedule the court had given earlier, Tuesdays and Thursdays 11:00 a.m. to 4:30 p.m., Mondays and Wednesdays 1:30 p.m. to 4:30 p.m., with Fridays off. The court added, "Plus you may be deliberating all day for three or four days or longer. I don't know. [¶] The point is, Mr. [W.], we don't want to screw up your semester at school." Defense counsel argued, however, that if the trial schedule could work around R.W.'s school schedule, "and [if] he is not claiming a hardship, we don't have to insist that he take it."
At this point, the prosecutor indicated he would stipulate to R.W.'s excusal. However, defense counsel stated she would not do so, and "want[ed] to hear what [R.W.] has to say." The court said to R.W. that "I notice here you circled full-time student." Then the court explained that "[w]e've been letting students off," because they might get so far behind academically that they could not catch up, and "[t]hat's my concern." The court continued: "And we've let a lot of students off here now. If you think you can do it both ways, that's okay. But if you think it's going to be a burden, you know, to go to school full time, taking 17 units and maybe sitting here as a juror for a month, two months, you let me know now. Because if it's going to be a real problem, I will seriously consider letting you go. [¶] What do you think?"
The following exchange then occurred: "Prospective Juror Mr. [W.]: This is during the month of December? [¶] The Court: December and probably January. [¶] And that's around finals time; right? [¶] Prospective Juror Mr. [W.]: Yeah. [¶] The Court: See, that's the problem. [¶] Prospective Juror Mr. [W.]: Most likely it would probably be a burden. [¶] The Court: I think it will. Yeah. [¶] All right. [Defense counsel], over your objection I'm going to excuse Mr. [W.] I don't see any point in having this kid lose two months of school sitting here. [¶] I know you like him as a juror, but on the other hand, he should be treated like everybody else. He is a full-time student. Seventeen units is a big load to carry. And to sit here for two months I think would unduly burden him, and he admitted as much just now."
Defense counsel argued that R.W. had not brought up the subject himself, had inquired about scheduling, and had "admitted" hardship only after great hesitation. The court responded, "I'm not here to have kids flunk out of school by taking two months sitting here as a juror when we have a lot of *663 other jurors. I know he is 19 years old, he is an African-American. You probably want to see him as a juror. I understand that. [¶] But I don't want [R.W.] to blow a whole semester at school because of this case. He can always serve during the summer when he is not in school." Under these circumstances, the court asserted, "Why should he blow two months of school? It doesn't make any sense. It really doesn't." The court thereupon excused R.W.
(3) "[A] trial court has authority to excuse a person from jury service for undue personal hardship. [Citations.] Exercise of that authority is reviewed for abuse of discretion. [Citation.]" (People v. Mickey (1991) 54 Cal.3d 612, 665 [286 Cal.Rptr. 801, 818 P.2d 84]; see also People v. Jenkins (2000) 22 Cal.4th 900, 986, fn. 15 [95 Cal.Rptr.2d 377, 997 P.2d 1044]; People v. Lucas (1995) 12 Cal.4th 415, 488 [48 Cal.Rptr.2d 525, 907 P.2d 373].)[16] Under the governing statute, Code of Civil Procedure section 204, subdivision (b), such excusals "are to be granted only on a sufficient showing that the individual circumstances of the prospective juror make it unreasonably difficult for the person to serve or that hardship to the public will occur if the person must serve in the particular case." (Visciotti, supra, 2 Cal.4th 1, 44, fn. 15.)[17]
Here it is manifest, and defendant does not dispute, that the court applied a blanket policy of granting hardship excusals to prospective jurors who established to the court's satisfaction they were full-time students with academic schedules that would make jury service burdensome. The court made clear it believed such persons would suffer undue hardship and academic loss if forced to sit, during a critical period of their fall school terms, on a capital trial that might take two months to complete. Defendant fails to demonstrate that this determination was unreasonable.
Nor did the court act unreasonably by concluding, in each student hardship case, that the requisite showing of full-time student status had been made. L.S. and R.W. each were excused after they stated under oath, in their questionnaires and/or in oral voir dire, that they were taking 17 units of *664 college credit at Cal State Hayward. A.K. was excused when he provided the court with official verification of his full-time student status at the University of California, Berkeley.
Nonetheless, defendant argues that the court excused R.W. improperly because (1) R.W. did not affirmatively claim a hardship exemption, but was coached and prompted by the courtacting in a misguided sense of paternalism toward a minority prospective jurorto say that jury service would burden him, and (2) the record does not establish that jury service would actually present an unduly burdensome conflict with R.W.'s class schedule and academic responsibilities.
At the outset, we observe that the record indicates no clear-cut affirmative request for excusal in either of the other cases in which student hardship excusals were granted. L.S. did say in her questionnaire that she could not afford to miss prepaid classes, but she did not explicitly ask to be excused for that reason. While A.K. brought in documentary support for his claim of student status, his questionnaire contained no assertion that jury duty would interfere with this status, and the record includes no other indication that he requested excusal.
Moreover, as a matter of reasonable discretion, we see no impropriety in the court's effort to protect the interests of one who reported his status as a full-time student, but did not immediately seek excusal on that basis. Whether R.W.'s inaction in this respect stemmed from initial ignorance that a hardship excusal might be available, or from a willingness to consider serving if service was practicable, the law did not require he be penalized, once he was before the court, for failing to demand excusal in the first instance.
Defendant points to California Rules of Court, rule 2.1008 (rule 2.1008), formerly rule 860, adopted under authority of Code of Civil Procedure section 204, subdivision (b). Rule 2.1008(b) "govern[s] the granting of excuses from jury service by the jury commissioner on grounds of undue hardship ...." (Italics added.) The rule specifies, among other things, that "[n]o class or category of persons may be automatically excluded from jury duty except as provided by law" (id., subd. (b)(1)) and that "[a] statutory exemption from jury service [(i.e., for undue hardship)] must be granted only when the eligible person claims it" (id., subd. (b)(2)). Defendant also cites Code of Civil Procedure section 218, which provides that "[t]he jury commissioner shall hear the excuses of jurors summoned, in accordance with the standards prescribed by the Judicial Council.... All excuses shall be in writing setting forth the basis of the request and shall be signed by the juror." (Italics added.)
But these provisions, which apply explicitly to the jury commissioner's preliminary screening of hardship claims received in response to a general *665 jury summons, have little or nothing to do with the procedures the trial court itself may subsequently employ to resolve hardship issues in the course of jury selection in a specific case. Defendant cites no authority suggesting that the statutes and rule he invokes limit the trial court's authority, upon its reasonable exercise of discretion, to examine and excuse individual prospective jurors on grounds of undue hardship.
Finally, we see no basis to conclude the record demonstrates insufficient justification to excuse R.W. As noted, full-time students L.S. and A.K. had previously been excused without objection, and with little inquiry into their specific academic burdens. There appeared no reason to treat R.W. differently. He was carrying a full load of 17 units and, upon inquiry by the trial court, he conceded that service in a lengthy capital case, under the trial schedule proposed by the court, during the "finals time" months of December and January, would "likely" be a burden. Accordingly, we find no error in the excusal of this prospective juror.[18]
3. Excusal of prospective jurors for cause.
Defendant urges that several prospective jurors were improperly excused on prosecution challenges as a result of the death qualification process. We find no merit in defendant's contentions.
(4) The following principles apply: A prospective juror in a capital case may be excused for cause on the basis of his or her death penalty views if, but only if, those views would prevent or substantially impair the performance of a juror's duties under the court's instructions and the juror's oath. (Witt, supra, 469 U.S. 412, 424; People v. Stewart (2004) 33 Cal.4th 425, 441 & fn. 3 [15 Cal.Rptr.3d 656, 93 P.3d 271] (Stewart); People v. Heard (2003) 31 Cal.4th 946, 958 [4 Cal.Rptr.3d 131, 75 P.3d 53] (Heard); People v. *666 Cunningham (2001) 25 Cal.4th 926, 975 [108 Cal.Rptr.2d 291, 25 P.3d 519].) Thus, a prospective juror may be excused if his or her views on capital punishment would cause him or her invariably to vote either for death, or for life, in the case at hand. (People v. Ochoa (2001) 26 Cal.4th 398, 431 [110 Cal.Rptr.2d 324, 28 P.3d 78] (Ochoa); People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005 [30 Cal.Rptr.2d 818, 874 P.2d 248]; see Morgan v. Illinois (1992) 504 U.S. 719, 726-728 [119 L.Ed.2d 492, 112 S.Ct. 2222].)
We will uphold the trial court's decision to excuse a prospective juror under Witt if that decision is fairly supported by the record. (Stewart, supra, 33 Cal.4th 425, 441; People v. Cunningham, supra, 25 Cal.4th 926, 975.) The court must have "sufficient information ... to permit a reliable determination" whether a prospective juror's views would disqualify the juror from service in a capital case. (Stewart, supra, at p. 445.) But even where the prospective juror has not expressed his or her views with absolute clarity, the court may be left with the definite impression that the person cannot impartially apply the law. Thus where, after reasonable examination, the prospective juror has given conflicting or ambiguous answers, and the trial court has had the opportunity to observe the juror's demeanor, we must accept as binding the court's determination of the juror's true state of mind. (E.g., Uttecht v. Brown (2007) 551 U.S. 1, 9-10 [167 L.Ed.2d 1014, 127 S.Ct. 2218]; Morgan v. Illinois, supra, 504 U.S. 719, 729; Witt, supra, 469 U.S. 412, 424-426; People v. DePriest (2007) 42 Cal.4th 1, 20-21 [63 Cal.Rptr.3d 896, 163 P.3d 896] (DePriest); People v. Avila (2006) 38 Cal.4th 491, 529 [43 Cal.Rptr.3d 1, 133 P.3d 1076]; People v. Moon (2005) 37 Cal.4th 1, 14, 16 [32 Cal.Rptr.3d 894, 117 P.3d 591] (Moon); Stewart, supra, at p. 451.)
The erroneous granting of the prosecution's Witt challenge against a prospective juror requires automatic reversal of the penalty verdict, even if the prosecutor had remaining peremptory challenges and could have excused the prospective juror. However, an error of this kind does not require reversal of the guilt phase verdict. (Gray v. Mississippi (1987) 481 U.S. 648, 663-666 [95 L.Ed.2d 622, 107 S.Ct. 2045]; Stewart, supra, 33 Cal.4th at pp. 454-455; Heard, supra, 31 Cal.4th 946, 966; People v. Ashmus, supra, 54 Cal.3d 932, 956-957, 962.)[19] Moreover, the improper excusal for cause of a prospective juror for reasons other than his or her views on the death penalty does not require reversal of either the guilt or penalty judgments unless the defendant can show that the improper excusal resulted in the seating of a biased juror, *667 or of a sworn jury that was not fair and impartial. (People v. Holt (1997) 15 Cal.4th 619, 656 [63 Cal.Rptr.2d 782, 937 P.2d 213] (Holt).)
We consider each of the asserted improper excusals under these standards.
a. Prospective Juror A.S.-P.
On her juror questionnaire, A.S.-P., who identified herself as African-American, indicated she had done graduate work in international and multicultural education at the University of San Francisco (USF), and had received a Doctor of Education degree in 1992.
On October 6, 1992, court and counsel conducted the sequestered voir dire of A.S.-P. In response to questioning during the death qualification procedure, she stated that she had no feelings about the death penalty that might prevent her from selecting the appropriate penalty in a capital case, and that after hearing all the relevant evidence, she could choose between life and death. She indicated she had reservations concerning the time lapse between the commission of a crime, conviction, and execution, and also about the method of execution. However, she asserted, she accepted these circumstances as part of the process, and they would neither affect her ability to apply the law nor influence her penalty decision.
In her general voir dire, which followed immediately, A.S.-P. stated that, while she thought it was "impossible" to be completely free of bias, she believed she could put any bias aside and be "objective." Defense counsel asked A.S.-P. about her experience as the victim of a burglary, and about an assault on her niece by the niece's domestic partner. A.S.-P. again indicated that, despite these events, she could be objective in the instant case.
Neither party challenged A.S.-P. for cause at the conclusion of her voir dire. The court advised her she had qualified herself to sit on a capital jury, and it directed her to return at a subsequent time for peremptory challenges.
On October 27, 1992, while the voir dire process was still ongoing, the prosecutor challenged A.S.-P. for cause. Asked by defense counsel to explain the belated challenge, the prosecutor said that A.S.-P. had claimed she had a doctoral degree in her juror questionnaire, and had asked the court bailiff to call her "doctor," but the prosecutor had had a "funny feeling about that," so he checked with USF and discovered that A.S.-P. "has lied to us" and "is not a doctor in education." The prosecutor stated he had spoken by telephone to Sunny Kidd, an administrative aide at USF who, after looking at A.S.-P.'s file, reported that A.S.-P. was currently in USF's doctoral program, but "has not submitted her dissertation yet" and had not been awarded a doctoral degree.
*668 When defense counsel inquired whether "the basis for the challenge for cause is perjury," the prosecutor confirmed that "[i]t's perjury." However, the court indicated it was not a question of perjury; rather, the court remarked, "It's a question of [A.S.-P.'s] credibility in how she answered her other questions. If she purports to be something she isn't, how can we lend any credence to the way she answered her other questions?" The court briefly took the matter under submission to allow defense counsel to obtain a copy of A.S.-P.'s questionnaire.
When the court took up the matter again later the same day, defense counsel asserted that the prosecutor had singled out A.S.-P., "an African-American woman with a high education," for investigation, and that the Penal Code did not allow a challenge under these circumstances. In any event, counsel urged, A.S.-P. should be called back to explain her questionnaire answers, because she might have misinterpreted the question about her academic credentials, and because hearsay information the prosecutor had obtained on the telephone should not be a sufficient basis for challenge.
The court responded that it believed "the Penal Code allows the Court to take into consideration the veracity of the particular juror if the Court's of the opinion that there may be some question about the credibility of that particular juror and it's brought into question. I think the Court has a right toto weigh and assess that credibility, number one." Moreover, the court stated that it seemed unlikely A.S.-P. was confused, and that there appeared no reason to disbelieve the prosecutor, an officer of the court.
Counsel insisted she did not disbelieve the prosecutor, but was concerned that the person he spoke to at USFa person who, unlike A.S.-P., was not under oathmight have made a mistake. In response, the prosecutor provided further information about his inquiries at USF.
The prosecutor stated the following: He wanted to read A.S-P.'s dissertation before deciding whether to retain her as a juror. For that purpose, sometime before October 20, 1992, he called the USF library and spoke to librarian Vickie Rosen, who said the dissertation was not on file and not catalogued. He asked Rosen to look for the dissertation, and she spent several days doing so. On October 20, Rosen called him back and said "there is, in fact, no dissertation presented by [A.S.-P.]" He asked Rosen if this meant A.S.-P. had no doctorate in education. Rosen said she assumed so, but she advised him to call the administrative office for confirmation. The following day, he telephoned USF's postgraduate division and spoke to Kidd, an administrative assistant. After "pull[ing] [A.S.-P.'s] file," Kidd reported that "no, there is no dissertation on file ..., [A.S.-P.] has not finished her dissertation, and she has not received a doctorate degree." The prosecutor *669 purposely refrained from speaking to A.S.-P.'s department chair, or asking USF for a confirmatory letter, because he was afraid such matters would "go into [A.S.-P.'s] file" and would actually compromise her efforts to achieve her doctorate.
The prosecutor argued that the willfulness of A.S.-P.'s misrepresentation was shown by the fact that she had insisted the court bailiff introduce her as "doctor." Moreover, the prosecutor observed, the court had addressed A.S.-P. by that title some 26 times during voir dire without being corrected by her. The prosecutor also indicated he had called USF on the very day he heard commentator Charles Osgood speak on the radio about people who misrepresent their degrees and awards to obtain employment.
Defense counsel seemed to concede the possibility that, for whatever reason, A.S.-P. had "padded her resumé," perhaps to maintain "a certain consistency" after exaggerating her credentials on an employment application, as Charles Osgood had suggested people do. Counsel nonetheless pressed her contention that A.S.-P. should be allowed to appear personally and provide any information that might rebut or explain such concerns. The court refused, suggesting again that A.S.-P. was an educated person, could not have been confused, and had had numerous opportunities to advise the court she did not have a doctorate.
"[T]he problem with what's happened here," said the court, "is she's been caught misrepresenting her credentials pure and simple.... [¶] She's telling us that she is something she isn't. This casts some question on her veracity in my mind. How can you believe her answers to her other questions? She is playing games with the Court."
The court asserted that the prosecutor had presented "pretty good, solid evidence," and that the court would accept his representation. The court declared that "[t]here is no question in my mind, based upon the representations from [USF], from the people who are running the program, that [A.S.-P.] doesn't have a Ph.D. degree or doctor of education." Moreover, the court suggested, it did not wish to subject A.S.-P. to the "embarrassment" of coming to court and being "called on the fact that she misrepresented her credentials."
Alluding to defense counsel's speculation that A.S.-P. might have overstated her credentials on a job application, the court asked, "Wouldn't that be more grounds to question her credibility and question her character if you're telling me she's padded her credentials in order to gain employment?" The court continued, "She has not been forthright with us in telling us what her credentials are. Maybe that's one little white lie, and how many others are *670 there in that particular questionnaire. Now she's been caught in perpetratingI'm not going to say a fraud, but a misconception on this Court and on everybody in this courtroom. [¶] How can you trust the rest of her answers? How do I know?"
Stating again its view that the error could not have been inadvertent, and that the misrepresentation raised questions about the veracity of all A.S.-P.'s voir dire answers, the court granted the challenge for cause. The court made clear that it was taking this action because, "based upon her representation and her answers, the Court has some question about the veracity of the rest of her answers, because apparently she has not been forthcoming with the Court in answering these questions truthfully."
The next day, the court placed on the record that the excusal of A.S.-P. was "based on Wainwright versus Witt, because the impression is that it's under [Code of Civil Procedure section] 229, and that's not correct."[20] When defense counsel objected that A.S.-P.'s voir dire answers had made her a death-qualified juror, the court reiterated that "[i]t's a Wainwright versus Witt challenge. That is the basis for the challenge as far as I'm concerned."
On appeal, defendant insists the record was inadequate to justify a Witt excusal. He asserts that all A.S.-P.'s questionnaire and voir dire answers concerning her death penalty views indicated that they would not prevent or substantially impair her ability to serve as a capital juror. Indeed, the People do not suggest otherwise.
This being so, defendant contends, the court, faced with claims that A.S.-P. had misrepresented or concealed material information on voir dire tending to show disqualifying bias regarding the death penalty, was obliged to make a sufficient inquiry to determine the truth of such allegations. At a minimum, he asserts, this required the court to recall A.S.-P. herself, and to hear her explanation, before concluding that she had committed misconduct warranting excusal under Witt.
Finally, defendant insists, the excusal of A.S.-P. under Witt was error, requiring at least a penalty reversal, even if there was a proper showing that she lied on her questionnaire about holding a doctoral degree. Any such falsehood, defendant urges, bore no reasonable relationship to a conclusion that her death penalty views would prevent or substantially impair her ability to judge the issue of capital punishment fairly.
However, we need not determine whether A.S.-P.'s excusal would have been proper under Witt. This is because we are persuaded that, despite the *671 trial court's single contrary statement, the prosecutor did not challenge A.S.-P. on the basis of capital penalty bias, and the excusal of this prospective juror cannot properly be characterized as premised on such a ground. Our reasons for this conclusion are several.
First, neither A.S.-P.'s questionnaire, nor her voir dire, was confined to examination of her death penalty attitudes. The juror questionnaire asked about views on the death penalty, but it also broadly explored how the prospective juror's background might relate to general bias for or against a party. Similarly, as indicated above, the voir dire of each prospective juror began with death qualification but, if no Witt challenge was interposed and granted at this stage, the examination then immediately proceeded to noncapital issues. So it was with A.S.-P. Indeed, as noted above, A.S.-P. stated on her questionnaire, and confirmed during general voir dire, that she had been the victim of a burglary, and that her niece had suffered an assault. In response to voir dire questions, A.S.-P. stated that whatever biases she might have as the result of these life experiences, she believed she could set them aside and be objective in the case at hand.
Second, contrary to the court's statement that Witt was the "basis for the challenge" against A.S.-P., the prosecutor did not challenge this prospective juror on grounds that her death penalty views disqualified her for service on a capital jury. Instead, the prosecutor twice specified that his challenge was based on a claim of perjury.
Third, in all but one instance, the court itself made clear that it was not concerned, in particular, with A.S.-P.'s death penalty attitudes as a basis for her qualifications to serve in a capital case. While the court strove to avoid the prosecutor's term "perjury," the court agreedindeed, stressed time and time againthat the "problem" was A.S.-P.'s credibility in answering all the questions posed to her. As the court repeatedly stated, if A.S.-P. had lied in answering the question about her academic background, one could not be confident she had not also done so in the rest of her answers. The court went so far as to suggest that the apparent falsehood called A.S.-P.'s overall character into question.
Never once, when analyzing the prosecutor's challenge and the defense objections thereto, did the court indicate it believed the apparent falsehood impacted upon A.S.-P.'s capital qualifications in particular. Nor did the court do so in the course of issuing its ruling in the matter. The clear gravamen of the court's remarks was that, insofar as A.S.-P. had deliberately misstated her academic credentials, the court could not trust any of her claims that she would be a fair and impartial juror.
*672 Finally, for the reasons stated above, we are not convinced by the post hoc rationale the court placed on the record the day after it excused A.S.-P. Read as a whole, the record makes it apparent the court was not focused on A.S.-P.'s death penalty attitudes, but rather on whether she had represented herself honestly as a basis for allowing the court, and the parties, to assess her general qualifications for jury service.
(5) The court's concerns about A.S.-P.'s overall credibility were, of course, relevant to those qualifications. A prospective juror's misstatement or concealment on voir dire of a material fact by itself undermines the selection and empanelment of unbiased jurors, and thus the Sixth Amendment right to an impartial jury, and constitutes misconduct. (In re Hitchings (1993) 6 Cal.4th 97, 110-112 [24 Cal.Rptr.2d 74, 860 P.2d 466].)
(6) We do think the trial court would have been well advised to recall A.S.-P. and hear her explanation before excusing her on grounds she had misstated her academic credentials. However, we need not decide whether the trial court erred in granting the prosecution's challenge for cause on this ground, either because the court conducted an inadequate factual inquiry, or because the apparent misstatement of academic credentials was an insufficient basis for excusal. We have rejected "[the] assumption that an error in excusing a juror for reasons unrelated to the [juror's] views on imposition of the death penalty requires reversal. `[T]he general rule [is] that an erroneous exclusion of a juror for cause provides no basis for overturning a judgment.' [Citation.]" (Holt, supra, 15 Cal.4th 619, 656.) Even if defendant "was denied a juror with scruples against the death penalty who could not have been disqualified on Witherspoon-Witt grounds, ... [A.S.-P.] was not excluded on those grounds. Defendant has a right to jurors who are qualified and competent, not to any particular juror. [Citation.] He does not assert that, as a result of the excusal of [A.S.-P.], a juror was seated who did not meet those criteria or that, as a result of her excusal, he was tried before a jury that was not fair and impartial." (Holt, supra, at p. 656.) Accordingly, the court's excusal for cause of A.S.-P. affords no basis for disturbing the guilt or penalty judgments.[21]
*673 b. Prospective Juror B.E.
On her juror questionnaire, B.E. answered "no" to questions whether she had feelings about the death penalty, and whether any religious or philosophical principle would affect her ability to vote for the death penalty in the instant case. She wrote that life without parole was a "just punishment for very severe crimes," and indicated that if the death penalty were on the ballot, she would vote for it.
During oral voir dire, in response to more specific questions, she expressed far more uncertainty and ambivalence. Early in the examination, she twice flatly stated that she could never vote to execute another human being. She also declared, when first confronted with the issue, that the death penalty "would not be open to" her in a case where the defendant committed a first degree murder by stabbing the female victim to death during a residential robbery and burglary. At a later point, she confirmed that she could not, as the jury foreperson, sign a death verdict.
In other portions of her examination, B.E. appeared, albeit reluctantly, to soften and retreat from some of the absolute positions she had originally expressed. She acknowledged the death penalty was justified for "heinous" crimes, such as serial or child murders, and insisted she had no "hard and fast reservations" that would prevent her from voting to impose that penalty "under certain circumstances" if the crime involved was bad enough. When pressed by the court, and later by the prosecutor, B.E. protested that it was difficult to say what she could do in this case without knowing more about the facts. However, she indicated that, while inclined to life without parole on the facts she did know, she could consider both penalties. She explained that her initial flat refusal to consider the death penalty stemmed from a "reservation" about whether she was "strong enough within herself" and "had a strong enough sense of herself with respect to this particular issue" to undertake "one of the heaviest decisions I would ever have to make in my life." On reflection, she said, she thought she had enough strength to make the "right" and "proper" decision on the facts.
Defense counsel then sought to ascertain whether there was a distinction between B.E.'s "philosophical" ability to envision the death penalty in this case, and her personal ability actually to impose it. At length, counsel candidly asked if, despite her philosophical views, "[y]ou're saying that *674 personally you're not sure that you could impose the death penalty ... ?" B.E. responded, "That's probablythat's probably what I am saying. Based on ... my understanding of the crime, that's the only way I know how to express it."
Pursuing this issue, the court said to B.E. that, philosophy aside, "The question is when you get right down to it, is it something that you could do. That's all I want to know." B.E. answered, "I think I could. I think I could." The court suggested to B.E. that her answers were inconsistent, at which point she protested, "But had I not said that I can?" At this point, the court cut off questioning and excused B.E. In doing so, it noted that it had "observed [B.E.'s] demeanor, ... listened to her answers, her long pauses, her vacillation."
This record amply supports the trial court's decision to excuse B.E. Though her answers were inconsistent and conflicting, they indicated that, even if she accepted capital punishment in the abstract for "heinous" crimes, she harbored very serious doubts whether, if seated on a capital jury, she could ever personally vote to impose the death penalty. "`Those answers, in combination with the trial court's firsthand observations, could give rise to a definite impression that [B.E.'s] views on the death penalty would substantially impair the performance of [her] duties.' [Citation.] We thus defer to the court's ruling sustaining the prosecution's challenge[] for cause." (DePriest, supra, 42 Cal.4th 1, 22, quoting People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1007 [47 Cal.Rptr.3d 467, 140 P.3d 775].)[22]
*675 c. Prospective Juror A.D.
On his juror questionnaire, A.D., a 68-year-old African-American, did not answer questions about his views on the death penalty, and said he would need more information about a case before expressing any view on life without parole. He marked "not sure" when asked how he would vote on a ballot measure to adopt the death penalty.
On voir dire, when first asked whether he personally could ever vote to execute a person, A.D. said he "would have to look deep inside of me to really see whether that would be possible." A.D. said he was reminded that the justice system had dealt too slowly and leniently with the man who killed his daughter in a car accident, and he "[did not] know" if he could be "impartial" in listening to witnesses. But when asked if the experience in his daughter's case predisposed him to the death penalty, he responded, "No, no, no, no. I'd probably be inclined to vote for life without parole." A.D. said he was thinking of his own 35-year-old son, who was very quiet, but who might do something he regretted if cornered with no means of retreat. When asked if he thought these feelings would affect his ability to choose between the two penalties, A.D. answered, "Well, at the moment, yes."
At this point, the court said, "I think we have a Wainwright versus Witt," and the prosecutor responded, "Clearly." However, defense counsel was allowed to pursue the matter further. When counsel suggested that "what I think I hear you saying" is that "you wonder whether or not you could ever vote for the death penalty," A.D. agreed. When counsel asked if it was possible the facts could convince A.D. to agree to that penalty, A.D. answered that "[i]f I said yes to that right now, I feel like I would be committing myself" without first hearing the evidence. When counsel suggested that, even if A.D.'s son would have "some impact," A.D. would consider both penalties and make a decision based on the facts, A.D. merely responded, "The instructions of the judge, I will have to consider both penalties." The *676 court thereupon granted the prosecutor's challenge for cause, noting, over defense counsel's objection, that A.D.'s demeanor supported the decision.
Though defendant earnestly argues otherwise, the court's decision is amply supported. In several different ways, during questioning by both court and counsel, A.D. expressed serious doubts that he had the ability ever to impose the death penalty, or that it was possible the facts could persuade him otherwise. That he finally agreed he would "have to" follow the court's instructions if sworn as a juror does not indicate he believed he was actually able to do so. The court did not err in excusing this juror.
d. Prospective Juror P.M.
In his juror questionnaire, P.M., a corporate mathematician, stated he had no "significant" death penalty views "at the moment," though imposition of this penalty was "[ob]viously" a "serious act," Moreover, over much of the course of an extended voir dire, he generally agreed that without "enthusias[m]," "with reluctance," "very conservatively," and "very cautionar[il]y," he could, after hearing all the evidence, comply with California law, weigh the aggravating and mitigating factors, and decide whether the death penalty was appropriate, both generally and in a case where the defendant committed first degree murder by stabbing an African-American female victim to death in her home during a residential burglary and robbery. At one point, P.M. indicated he could sign a death verdict as jury foreperson.
On the other hand, he expressed the view that the death penalty should be reserved for "heinous" crimes. While a single-victim case was not necessarily excluded, he suggested, the facts should be "quite extreme" and present "more than the ordinary repulsion," something "not . . . ordinarily read in the newspaper." At various times, he indicated uncertainty about how the process worked, asking whether the existence of one or more aggravating factors was necessary for the death penalty, or compelled that penalty. He indicated his feelings were "ambivalent," saying he could "rethink it many times and never reach a permanent sort of conclusion." He mused uncomfortably about being obligated to "do[] what the law dictates," "comply with what society requires," and be a "pawn of society." "The whole thing," he lamented, "is a social almost dilemma." He expressed the strong understanding that "rehabilitation" was a prime objective of the penal system, and he seemed taken aback when the court advised that in a capital case, the defendant's potential for progress toward reentry into society was not a factor in the penalty decision.
P.M.'s feelings appeared to crystallize when, during examination by defense counsel, he realized that, at the penalty phase of a capital trial, the alternative to death was life without the possibility of parole, a sentence *677 under which the defendant would remain forever behind prison walls. At this point, P.M. stated, "It is perhaps the case that I'm wasting the court's time. There are matters upon which people cannot decide. This may be one of them. . . . [I]f there is the option of life in prison without the possibility of release, that is perhaps insurmountably the way to go." (Italics added.)
The court interrupted to ask whether P.M. was saying that if life without parole was available, the death penalty was not an option. P.M. answered, "I am saying I'm very confused," and he agreed he "sure would" have some difficulty in making this decision under those circumstances. At this point, the court denied defense counsel's request to ask further questions and excused P.M.[23]
The record provides full support for the trial court's decision. P.M. had expressed reluctance and ambivalence about his ability to follow the death penalty law. However, he ultimately stated that if he could vote to keep defendant in prison for life, without any possibility of release, this alternative might be the "insurmountabl[e]" choice, and further efforts to determine his qualifications thus might be a "wast[e of] . . . time." P.M.'s brief expressions of "confus[ion]" and "difficult[y]" thereafter did not significantly detract from this, his strongest statement. The court could reasonably conclude that P.M.'s views would prevent or substantially impair his ability to consider the death penalty.
Defendant urges the trial court influenced P.M.'s "tipping point" by wrongly telling this prospective juror that defendant's rehabilitationi.e., his redeemability as a personwas not at issue. The contention lacks merit. In the first place, defendant has forfeited the issue, since his counsel raised no objection at trial.
In any event, the court simply told P.M. that, while all the possibly sympathetic factors in defendant's background were relevant, "nobody here is talking about rehabilitating anybody. We are talking about penalties pure and simple, because he's never going to get out. There is no reason to prepare him to get back into society," no reason "to teach him a trade, to teach him to be a printer, unless he is going to be printing books in prison for the rest of his life." These remarks only highlighted, accurately, that this was not a case in which the penal system was obliged to try to prepare defendant for a return to society. The court's comments were permissible.
*678 Defendant also argues the court erred by denying defense counsel's request for further questioning after P.M. stated he might "insurmountably" choose life without parole over death. (See People v. Mattson (1990) 50 Cal.3d 826, 845 [268 Cal.Rptr. 802, 789 P.2d 983] [counsel's right to attempt to rehabilitate potentially disqualified prospective juror].) Again, we disagree. After a lengthy voir dire, during which P.M. had acknowledged only the most reluctant willingness to consider the death penalty, he ultimately stated an "insurmountabl[e]" inclination to vote for life without parole over death. P.M. himself suggested that further inquiry "might be a wast[e] [of] the court's time." Rehabilitation seemed a remote possibility under those circumstances, and the court could reasonably conclude that further voir dire would not change its impression of P.M.'s state of mind. No error occurred.
e. Prospective Juror M.R.
In her juror questionnaire, M.R. stated she was against the death penalty and felt life without parole was "[b]etter than death." On voir dire, M.R. continued to indicate her opposition to the death penalty, but she displayed great confusion about whether she could vote to impose that penalty, either generally or in the instant case. She first misunderstood a question whether she could vote to "execute" someone as asking whether she could convict a guilty person. Once that issue was cleared up, she initially stated she could not vote to execute someone in the gas chamber, but then backpedaled, indicated she wasn't "really sure," and said she "guess[ed]" it depended "on what the person did." As an example, she mentioned Charles Manson.
When the court suggested her willingness to impose the death penalty in extreme cases meant she was not opposed to that penalty after all, she said, "I guess not." But then she changed course again; when the court asked her whether her questionnaire response meant she could not vote to send someone to the gas chamber, she said, "That's true." When the court asked her to explain her conflicting answers, she said, "Well, I don't know how to explain myself, but I justMy belief, I don't thinkYou know, I don't think anybody should be executed to death penalty."
Defense counsel finally got a fairly clear statement from M.R. that she could vote for death in certain deserving cases, such as Charles Manson's. Moreover, when counsel asked if M.R. could consider both penalties for someone who fatally stabbed a woman during a residential burglary and robbery, M.R. initially said, "Yes." But when counsel pressed the point by asking again whether "[b]oth penalties are something you would consider," M.R. said, "I would consider one of them." When the court asked which one, M.R. responded, "I would probably say the life." When counsel *679 yet again tried to clarify if M.R. would seriously consider the death penalty in a case like this one, M.R. said, "Not forI guess not for burglary. I know it's burglary and"
At this point, the court solicited a challenge from the prosecutor and, over a defense objection, excused M.R. As the court explained to defense counsel, "[T]his is a failure under Wainwright versus Witt. In looking at the potential juror, listening to her responses, I am satisfied that she's a Wainwright versus Witt failure."
Despite the confusion and inconsistency of her answers, M.R. made it reasonably clear that her scruples against the death penalty would probably render her unable to consider the death penalty in the case at hand. The court's impression in this regard was reinforced, as it said, by its observation of the juror.
Defendant suggests the excusal was motivated by the court's inexplicable refusal to understand how a juror could be conscientiously opposed to the death penalty, yet willing to impose that penalty in particular cases. The record does not support this inference. Rather, as indicated, it suggests the court acted on its impression that M.R. was hopelessly ambivalent about her death penalty stance and, in any event, was unable to consider both penalties in the instant case. No error occurred.
f. Prospective Juror R.F.
On her juror questionnaire, R.F. did not answer inquiries about her death penalty views, except to say she was "not sure" whether she would vote for a death penalty measure if one were on the ballot. In the course of a lengthy voir dire by court and counsel, R.F. vacillated among three basic positions: first, that she "honestly didn't know" whether she could vote to impose the death penalty; second, that she needed full information about the crime and the defendant's background to answer; and third, that she could choose between the two penalties under the process as explained to her.
However, R.F. alluded to deep personal reservations about her ability to make this decision, suggesting at one point that "[S]ubconsciously, I do not know whether I could be the one to say, yes, he deserves the death penalty." When the court asked what good society gets out of the death penalty, R.F. responded, "Nothing, really," while she indicated that life without parole requires "the person . . . to sit and think about what he has done." She indicated she thought life without parole was the worse penalty.
When the court asked if R.F., acting as jury foreperson, could sign a death verdict, she flatly said "no" and maintained that position, explaining that she *680 could not assume such a responsibility. When defense counsel then asked what was the difference between voting to impose the death penalty and signing a verdict form, R.F. responded, "Put it that way, there is no difference." (Italics added.) Over a defense objection, the court thereupon granted the prosecution's challenge for cause.
After R.F. had left the courtroom, an extended discussion ensued between court and counsel. The court explained that its ruling was based on Witt, and was supported by R.F.'s confusion, her inconsistent answers, and her demeanor. Defense counsel urged that further questioning should have been allowed, and that R.F.'s demeanor did not support the court's decision. The court responded that R.F. had had plenty of opportunity to make her position clear, that she had not done so, and that an attempt to rehabilitate her would have been futile.
At this point, the prosecutor pointed out that in response to defense counsel's last question, R.F. had agreed there was no difference between signing a death verdictan act R.F. clearly stated she could not perform and voting to impose the death penalty. The court responded, "Yeah. Anybody reviewing this record can read that for themselves. It's in black and white in the record. And I'll go to the bank with this ruling."
We agree. Despite her earlier struggles to formulate her death penalty views, R.F. achieved clarity when confronted with defense counsel's suggestion that it was illogical to be willing to vote to impose the death penalty, but unwilling to sign the death verdict. R.F.'s response could only be understood as her concession that she could do neither. The excusal was proper.
B. Guilt phase issues.
1. Admission of defendant's statements in police custody.
Defendant urges the trial court erred by declining to suppress his statements made in police custody, both to the investigating officers and to Lisa Henry. As discussed below, he insists his Miranda waivers were not knowing and intelligent waivers of his Fifth Amendment right against self-incrimination because (1) the officers prejudicially misled him about the scope of their interrogation, and (2) Henry was acting, without his knowledge, as a police agent. These contentions lack merit.
The following facts disclosed at the in limine suppression hearing (Evid. Code, § 402) are essentially undisputed: Following his arrest on April 19, 1988, defendant was brought to the Oakland Police Department's homicide division. There he was questioned by Sergeants Paniagua and Medsker. At the *681 outset of an initial, unrecorded, session, the officers stated they were investigating the car defendant had been driving, because the car was stolen and a lady had been "hurt," but they did not tell defendant the victim had been killed. They then read defendant his Miranda rights. Defendant waived those rights, both orally and in writing, and agreed to talk.
At the beginning of a subsequent, recorded, session, defendant asked if he was in the homicide division. Paniagua replied that he was. Defendant said, "So I'm here for a car that was stolen." Paniagua explained again that he was investigating an incident in which a car was stolen and a lady was "hurt"; and he stated that "I'm not here to trick you into anything." Defendant said, "I know you ain't, just tell me, you just said a car was stolen." Paniagua repeated that he was investigating "the incident [in] which the car was taken." Defendant responded, "Whatever you said, okay." Paniagua asked if everything was now clear in defendant's head, and defendant answered, "Yeah." Paniagua then re-Mirandized defendant.
During these first two sessions, defendant denied all knowledge and involvement in the incident under investigation and maintained he obtained the vehicle from Fred Bush in payment for a debt. Prior to the third, unrecorded, portion of the interview, Paniagua advised defendant the victim in the stolen car incident was dead. Thereafter, during this third session, the officers confronted defendant with the facts that Fred Bush was in jail, that defendant's clothing was bloodstained, and that he had been arrested in possession of the victim's car, television, and VCR. They accused defendant of lying and urged him to tell the truth. He responded, "Why should I tell the truth? Well, what's in it for me? I'm going to jail anyway." Early in the morning of April 20, 1988, following this third session, the officers arrested defendant for Sarah LaChapelle's murder.
Later in the morning of April 20, the officers executed a search warrant at the home of Lisa Henry, then brought Lisa to the police station and obtained a statement from her. Defendant was in an adjacent interview room at the time. Lisa was allowed to speak with defendant, and, in a recorded interview, she reported her conversation to the officers.
The evidence at the suppression hearing was in dispute about who initiated Lisa's meeting with defendant. The officers indicated the following: They told Lisa they had been questioning defendant all night and he was not telling the truth. She asked to speak with him, suggesting that maybe she could get him to tell the truth. The officers agreed. They had not planned to have Lisa talk with defendant, they did not tell her to try to get information from him, they suggested no questions for her to ask, they said nothing about Fred Bush, and they did not consider her a police agent.
*682 In her recorded statement concerning her conversation with defendant, Lisa stated, among other things, that defendant "said he didn't do it. He said Freddie, Fred did it." According to Lisa's statement, defendant also indicated that "he tried to stop Fred" and that the victim "was a lady."
At one point on the recording, Paniagua asked Lisa, "Did I tell you to do anything else?" Lisa responded, "No, you asked me just did I want to talk to him, maybe I can talk to him to convince him to tell the truth or to tell what happened." On the recording, Paniagua reacted by saying, "Okay. [¶] Is this a true statement?" Lisa responded, "Yes." At the hearing, Paniagua explained that Lisa's "you asked me" statement was not accurate, but it was not appropriate to argue about the matter at that time.
The trial court rejected defendant's argument that he was tricked into waiving his Miranda rights when the officers failed to tell him he was suspected of a homicide, but simply indicated they were investigating a car theft in which a lady got "hurt." The court noted, among other things, that defendant expressed awareness he was being questioned in the homicide division, and must have inferred a killing was involved. Contrary to the defense's contentions, the court also found that Lisa Henry had spoken to defendant on her own initiative, and thus was not a police agent. Even if she were, the court further concluded, there was no requirement defendant be Mirandized a third time before she spoke to him. Accordingly, the court denied the motion.
As below, defendant urges that he was deceived into waiving his Miranda rights when the officers failed to tell him they were investigating a homicide, instead substituting their misrepresentation that the lady who owned the stolen car had merely been "hurt." Hence, he argues, his waiver of his Fifth Amendment right against self-incrimination was not knowing, voluntary, and intelligent. We disagree.
At the outset, we agree with the trial court that the evidence indicates defendant was not ignorant, when he twice heard and waived his Miranda rights, about the nature of the officers' investigation. They told him they were investigating the stolen vehicle in which he had been arrested, and they indicated a lady had been "hurt" in the incident. Thus, he understood the matter was more serious than mere car theft. Nor, it appears, was he misled by any ambiguity in the officers' use of the word "hurt" rather than "killed." Recognizing that he was in the "homicide" division, he specifically asked the *683 officers if this was so, and they indicated it was. He must certainly have understood that the injury at issue was fatal.[24]
Even if this evidence were not present, however, we would not accept defendant's contention. We conclude the officers did nothing to invalidate defendant's two separate waivers of his Miranda rights.
(7) As the high court explained in Colorado v. Spring (1987) 479 U.S. 564 [93 L.Ed.2d 954, 107 S.Ct. 851] (Spring), the Fifth Amendment simply provides that no person may be compelled to be a witness against himself or herself. (Spring, at p. 572.) But this right can be waived, if the waiver is knowing, voluntary, and intelligent. (Ibid.) The warnings required by Miranda, supra, 384 U.S. 436 for a suspect in custodyi.e., that the suspect has the right to refuse to talk, to talk only with counsel present, and to stop talking at any time, and that criminal use will be made of any statements the suspect does utterare designed fully to protect the knowing, voluntary, and intelligent exercise of the constitutional right against compelled self-incrimination in that custodial context. (Spring, supra, at p. 572.) Thus, in general, a suspect in custody who, having heard and understood a full explanation of these rights, then makes an uncompelled and uncoerced decision to talk, has thereby knowingly, voluntarily, and intelligently waived them. (Id. at p. 574.)
"[A] valid waiver does not require that an individual be informed of all information `useful' in making his decision or all information that `might . . . affec[t] his decision to confess.' [Citation.] `[W]e have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights.' [Citation.]" (Spring, supra, 479 U.S. 564, 576-577.)
(8) In Spring, the defendant argued that, when confronting him in custody about a federal weapons charge, agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) tricked him into waiving his right to silence by failing to warn him they would also ask about a Colorado murder. Hence, he urged, his admissions to the ATF agents about this latter crime tainted his subsequent murder confession to Colorado authorities. The Spring court disagreed, holding that mere failure by law enforcement officers to advise a custodial suspect of all possible topics of interrogation is not trickery sufficient to vitiate the uncoerced waiver of one who heard and understood the warnings required by Miranda. (Spring, supra, 479 U.S. 564, 576.)
*684 Defendant points out that, in Spring, the United States Supreme Court left open whether, and under what circumstances, "affirmative misrepresentations" by the police about the scope of their investigation might vitiate a Miranda waiver. (Spring, supra, 479 U.S. 564, 576, fn. 8.) However, as examples of the "certain circumstances" under which the court had previously invalidated Fifth Amendment waivers procured by affirmative police misrepresentations, Spring cited cases involving falsehoods that were of a coercive nature, and thus reasonably calculated to induce false confessions. (Ibid.; see, e.g., Lynumn v. Illinois (1963) 372 U.S. 528 [9 L.Ed.2d 922, 83 S.Ct. 917] [misrepresentation by police officers that suspect would be deprived of state financial aid for her dependent child unless she cooperated]; Spano v. New York (1959) 360 U.S. 315 [3 L.Ed.2d 1265, 79 S.Ct. 1202] [misrepresentation by suspect's friend that friend would lose his job if suspect failed to cooperate].)
(9) We have recently confirmed that "[t]he use of deceptive statements during an interrogation . . . does not invalidate a confession [as involuntary, unknowing, or unintelligent] unless the deception is `"`of a type reasonably likely to procure an untrue statement.'"' (People v. Jones (1998) 17 Cal.4th 279, 299 [70 Cal.Rptr.2d 793, 949 P.2d 890]; see People v. Thompson (1990) 50 Cal.3d 134, 167 [266 Cal.Rptr. 309, 785 P.2d 857].)" (People v. Carrington (2009) 47 Cal.4th 145, 172 [97 Cal.Rptr.3d 117, 211 P.3d 617] (Carrington).)[25] Defendant urges that by deceptively minimizing the seriousness of the investigation, the officers induced false statements that were later used against him, but his argument fails to persuade.
At all times before he was informed the victim in the car theft incident under investigation was dead, defendant denied all criminal involvement in the incident. The most damaging thing he did during his interrogation by the officers was to state falsely that he had obtained the car from Fred Bush in payment for a debt. To be sure, this lie was later exposed and used against him to show a consciousness of guilt. But it is difficult to see how the Fred Bush falsehood was induced because the police at first told him the victim was "hurt," as opposed to advising him she had died. In either case, his motivation to make false exculpatory statements was the same; he sought to avoid criminal responsibility for the crimes under investigation. If anything, the motivation to lie to escape responsibility would have been even greater had he been advised he was a murder suspect. We therefore reject defendant's contention that the officers' statements the victim had been "hurt" as opposed *685 to killed invalidated his Miranda waiver or rendered his statements involuntary, unknowing, or unintelligent.
We also find no merit in defendant's contention that his statements to Lisa Henry at the police station were inadmissible because, without providing Miranda warnings for a third time, the police used her as an agent to obtain incriminating information. The trial court ruled against this argument on two correct grounds.
(10) First, "[c]onversations between suspects and undercover agents do not implicate the concerns underlying Miranda." (Illinois v. Perkins (1990) 496 U.S. 292, 296 [110 L.Ed.2d 243, 110 S.Ct. 2394] (Perkins); accord, People v. Mayfield (1997) 14 Cal.4th 668, 758 [60 Cal.Rptr.2d 1, 928 P.2d 485] (Mayfield).) As the high court explained in Perkins, Miranda protects the Fifth Amendment rights of a suspect faced with the coercive combination of custodial status and an interrogation the suspect understands as official. On the other hand, even if a suspect happens to be in custody, "[t]here is no empirical basis for the assumption that [when] speaking to those whom he assumes are not officers, [he] will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess." (Perkins, supra, at pp. 296-297.)[26]
Defendant stresses a factual distinction between this case and Perkins, supra, 496 U.S. 292. There, suspecting the defendant of a crime unrelated to the offense for which he was then incarcerated, the police planted an undercover agent in his cellblock to befriend him and elicit incriminating information about the unrelated crime. By contrast, defendant urges, he was "in the throes" of a custodial interrogation about the Sarah LaChapelle case at the time Lisa spoke to him about that same incident. Thus, defendant suggests, he, unlike the defendant in Perkins, confronted the coercive combination of circumstances that brings Miranda into play.
(11) We disagree. We held in Mayfield that the police did not violate Miranda when, after the defendant in custody had invoked his right to silence, and thus could not be further interrogated, they allowed his father to discuss the case privately with him, then extracted a report of what was said. We so concluded because "`defendant's conversations with his own visitors are not the constitutional equivalent of [forbidden] police interrogation.' *686 [Citations.]" (Mayfield, supra, 14 Cal.4th 668, 758; see also Arizona v. Mauro (1987) 481 U.S. 520, 528 [95 L.Ed.2d 458, 107 S.Ct. 1931] [police did not engage in forbidden interrogation, for purposes of Miranda, by mere placement of officer in room to observe and tape-record conversation between suspect in custody, who had invoked right to silence, and suspect's wife].)[27] This conclusion is entirely consistent with Perkins, supra, 496 U.S. 292; one who voluntarily speaks alone to a friend, even during a break in a custodial interrogation, has no reason to assume, during the private conversation, that he or she is subject to the coercive influences of police questioning.
Second, the trial court found, on the particular facts, that Lisa was not, in any event, a police agent. Despite Lisa's recorded statement that the officers had asked her to speak with defendant, the court accepted the officers' testimony in court that it was Lisa's idea to speak with him, that they did not order or ask Lisa to act on their behalf, and that they did not provide guidelines for the meeting. Though defendant suggests otherwise, we must defer to these factual and credibility determinations, made after the court observed the officers' demeanor. (E.g., People v. Dykes (2009) 46 Cal.4th 731, 752 [95 Cal.Rptr.3d 78, 209 P.3d 1]; People v. Rundle (2008) 43 Cal.4th 76, 115 [74 Cal.Rptr.3d 454, 180 P.3d 224].) Also, as a legal matter, we independently agree with the trial court that, under these circumstances, Lisa was not a police agent.
(12) Defendant urges that, even if Lisa initiated the meeting with him, the police somehow violated Miranda by "exploit[ing]" her possible status as an accomplice or accessory, and his vulnerability in the coercive atmosphere of custody, to obtain incriminating statements. But again, "Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect's misplaced trust" in a supposed friend or ally. (Perkins, supra, 496 U.S. 292, 297.) "Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns. [Citations.]" (Ibid.)
(13) Rather, Miranda's aim is to ensure that the suspect's will to remain silent is not overborne by the coercive atmosphere of police questioning in custody. Both "custody" and "police questioning" are necessary to invoke Miranda, and both concepts are viewed from the suspect's perspective. (Perkins, supra, 496 U.S. 292, 296.) Even when the suspect is in the process of a custodial interrogation, voluntary statements to someone the suspect does not believe is a police officer or agent, in a conversation the suspect assumes is private, simply does not involve one of these two critical concerns. *687 Defendant's Miranda rights were not violated, and his statements in police custody were properly admitted.
2. Alleged prosecutorial misconduct.
(14) Defendant urges the prosecutor engaged in pervasive misconduct at the guilt phase of his trial, thereby violating both state law and his Fifth, Sixth, and Fourteenth Amendment rights to a fair trial. Singly and in combination, he asserts, these instances of misconduct require reversal of the guilt verdict.[28]
"The standards governing review of misconduct claims are settled. `A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "`unfairness as to make the resulting conviction a denial of due process.'" [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.' [Citation.] `In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, `"the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."' [Citation.]" (People v. Friend (2009) 47 Cal.4th 1, 29 [97 Cal.Rptr.3d 1, 211 P.3d 520] (Friend).)
Applying these standards, we find no basis for reversal. Many of defendant's claims were forfeited by failure to object, and each individually lacks merit, because there was either no misconduct or no prejudice. Even if we consider his strongest claims in combination, we are not persuaded that prejudicial misconduct occurred. We address defendant's assertions in turn.
*688 a. Comment on defendant's refusal of consent to search.
In his opening argument, the prosecutor asserted that defendant was interrogated by the police, denied involvement, and offered an alibi. The prosecutor then stated, "After the denial by the defendant, a request was made for the defendant to consent to the search of the place he was staying at, meaning Lisa Henry's house. He denied such consent." Defense counsel promptly objected. The court responded, "The jury can disregard that." When defense counsel asked whether the court was going to "assign prosecutorial misconduct," the court stated, "No, I'm not going to assign prosecutorial misconduct. I'm going to ask the jury to disregard that."
Assuming, as defendant contends, that the prosecutor committed misconduct by commenting on defendant's exercise of his Fourth Amendment right to refuse consent to a search and by arguing evidence that would be inadmissible at trial, the court's response was sufficient to resolve the problem. The court immediately "asked"i.e., politely admonishedthe jury to disregard the argument, and later instructed the jury that "[s]tatements made by attorneys during the trial are not evidence."
Defendant insists a far more elaborate cautionary instruction was required, such as that suggested in People v. Bolton (1979) 23 Cal.3d 208 [152 Cal.Rptr. 141, 589 P.2d 396] (Bolton). There the prosecutor twice insinuated in his closing remarks that, but for the rules of evidence, he could present information about the defendant's past crimes. This court found significant misconduct, though no prejudice in light of the overwhelming evidence that the defendant was guilty as charged. In a dictum footnote, Bolton contemplated what, short of outright reversal, is an effective remedy for improper prosecutorial argument. Bolton expressed the view that a "mere verbal rebuke" may be an insufficient deterrent, and stated that the trial court must give a cautionary instruction on request if it believes misconduct occurred. In that instance, Bolton proposed, the court should tell the jury that the prosecutor's remarks were "unwarranted," "improper," "uncalled for," unsupported by any evidence, and an attempt to prejudice the jury, and that, if they caused the jury to convict the defendant, the court would have to declare a mistrial. (Bolton, supra, at pp. 215-216, fn. 5.)
Here, defense counsel asked if the court was going to "assign misconduct," but counsel did not request a Bolton-type instruction.[29] Accordingly, and given the fleeting nature of the prosecutor's remark, the court's admonition to *689 the jury to disregard it was sufficient to cure any harm. We see no abuse of discretion in the trial court's handling of the matter.
b. Testimony of Mamie Jackson.
Mamie Jackson, defendant's aunt, testified as a prosecution witness. Among other things, Jackson indicated that she and other members of defendant's family lived only a few houses away from Sarah LaChapelle's home, that defendant sometimes lived there also, and that he arrived there in the late afternoon or early evening of April 18, 1988, wearing a red leather suit. The prosecutor asked whether, when defendant entered the house, everyone left. Jackson responded simply that when he entered, he went to see his mother in her room. When the prosecutor asked how long defendant was in the house, Jackson said she was busy ironing a dress for her daughter and did not time his stay.[30]
The prosecutor then asked, "Did you tell the police back in April 19th of 1988 that when [defendant] entered the house that everyone ran out because [defendant] is very violent?" Defense counsel asserted, "Objection, Your Honor. That's speculation, it's prejudicial, and that's" The court interrupted to disagree, stating that the witness "said she can't remember, so he's refreshing her memory." Counsel argued that the proper way to refresh Jackson's recollection was to have her read her statement to the police. The court responded, "He can ask her if that refreshes her recollection that that's what she told the police. [¶] Is that what you told the police . . . Ms. Jackson?" Jackson answered, "I can't remember what I said now." In response to the prosecutor's further questions, Jackson confirmed that, earlier that morning, she had "looked over" a signed and initialed copy of her police statement.
The following colloquy then occurred: "[The Prosecutor]: As a matter of fact, [defendant] has kicked in the door in your house [¶] [Defense Counsel]: Objection, Your Honor. Objection, Your Honor. [¶] [The Prosecutor]:on three occasions?" The court interrupted to ask the basis of the defense objection, and counsel responded "Irrelevant." The court sustained the objection, admonished the jury to disregard the question, and cautioned the prosecutor to "keep it in the ballpark."
Defendant argues the prosecutor improperly attempted to use the device of refreshing Jackson's recollection to inject inadmissible and prejudicial "bad *690 character" evidence of defendant's violent nature and uncharged violent acts into the guilt trial. He asserts the prosecutor's questions also violated the court's in limine decision to exclude evidence about defendant's violence against family members from both the guilt and penalty trials.
As the People assert, defendant forfeited the latter argument by failing to object on that basis at trial. (E.g., People v. Samayoa (1997) 15 Cal.4th 795, 841 [64 Cal.Rptr.2d 400, 938 P.2d 2]; People v. Berryman (1993) 6 Cal.4th 1048, 1072 [25 Cal.Rptr.2d 867, 864 P.2d 40].) In any event, though we are persuaded the prosecutor committed misconduct, we see nothing serious enough to constitute, or contribute to, grounds for reversal. Though its reaction was delayed, the court ultimately made an appropriate response to the prosecutor's tactic. Under the circumstances, we conclude, its actions were adequate to obviate any prejudicial effect.
At first, the court apparently thought the prosecutor was just trying to demonstrate that Jackson's vague trial testimony about defendant's presence at his grandmother's home in the hours before Sarah LaChapelle's nearby murder was inconsistent with her more contemporaneous police statement, and that she might be shading her testimony on the stand so as not to damage her nephew's case. In fact, the prosecutor's query whether the family had fled when defendant arrived did not ultimately produce a damaging answer from Jackson.
Once the prosecutor made clear his true purpose by asking Jackson whether defendant had thrice "kicked in the door" of his grandmother's residencethus clearly attempting to inject extraneous evidence of defendant's propensity for violencethe court responded immediately. It prevented Jackson from answering, sustained the defense objection, instructed the jury to disregard the question, and admonished the prosecutor in front of the jury.
Moreover, the court later instructed the jury that "[i]f an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it enables you to understand the answer."
We do not condone the prosecutor's improper tactics, but they produced no damaging evidence. Under the circumstances, we are confident the court's response was sufficient to cure any possible prejudice. In any event, in view of the very strong evidence of defendant's guilt, we are persuaded, by any standard, that this relatively brief incident did not contribute to the guilt verdict.
*691 c. Asserted Doyle error; attorney-client privilege.
During the direct examination of defendant, counsel asked him to explain why he had not told Sergeants Medsker and Paniagua what he was now telling the jury about what happened at Sarah LaChapelle's house. Defendant responded that he did not feel it would do him any good, because he "didn't too much like" Medsker. Moreover, he stated, about a week after his arrest, he learned from his initial appointed counsel, James Chaffee, that he faced the death penalty, and Chaffee advised him not to discuss the case with anybody.
On cross-examination, the prosecutor elicited from defendant that, on the Friday and Sunday preceding his trial testimony, defendant had "somewhat discussed" that testimony with his current counsel. Learning that current counsel was in the same firm as Chaffee, the prosecutor sarcastically repeated, "Oh, they were from the same office." A defense objection was sustained, and the prosecutor was directed to proceed by question and answer.
The prosecutor then asked whether, when Chaffee first advised him not to discuss the case with anyone, Chaffee had made notes of what defendant told him. When the defense objected that "we're getting into attorney-client confidential communication," the court responded, "He's just asking if he made notes. That's all. [Defendant] brought this up himself." In answer to the prosecutor's question, defendant then said, "I don't know. He probably did. I don't know." The prosecutor next asked if defendant had made notes of his conversation with Chaffee, and defendant said no. At that point, the prosecutor moved on to another topic.
Somewhat later, the prosecutor asked when defendant told Chaffee he saw two men coming out of Sarah LaChapelle's house. The court promptly sustained a defense objection, ruling that the prosecutor's question "go[es] beyond what he said Chaffee told him" and "assumes a fact not in evidence."
Later still, the prosecutor asked defendant whether "you [made] any effort to call the police and tell them that Mrs. LaChapelle was murdered" or "that you saw two men coming out of her home." Defendant said no. "As a matter of fact," the prosecutor continued, "you never told that to anyone until this jury heard it for the first time." Defense counsel objected on grounds of attorney-client privilege, and the court sustained the objection.
(15) Defendant first argues the prosecutor's questions about defendant's failure to report the crime, or to tell the true story before trial, were misconduct under Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91, 96 S.Ct. 2240] (Doyle). Doyle forbids impeachment of a defendant's exculpatory trial *692 testimony with cross-examination about his or her postarrest silence after receiving Miranda warnings. (Doyle, supra, at p. 619.) Defendant did not object on Doyle grounds below, and thus has forfeited this claim.
In any event, it largely lacks merit. Insofar as the prosecutor questioned why defendant, upon discovering Sarah LaChapelle's body, did not promptly call the police, the prosecutor was not casting suspicion upon defendant's silence during a period after he had been arrested, and had heard and decided to exercise his Miranda rights. The prosecutor was simply making the point that if, as defendant now claimed, he innocently came upon the horrific murder of his family's neighbor, it would have been natural to summon assistance immediately. Such questions did not violate Doyle, and were not improper.
When the prosecutor went further, and asked whether defendant had told anyone the supposed true facts prior to trial, a defense objection on attorney-client privilege grounds was promptly sustained. If incipient Doyle misconduct lurked in this question, it was thus nipped in the bud.
Defendant also complains of the prosecutor's efforts to elicit the content of his pretrial conversations with his counsel. He asserts these efforts were invasions of his attorney-client privilege, as well as improper attempts to insinuate that he and his counsel colluded to produce "coached" and "rehearsed" testimony. The latter claim was forfeited by failure to raise it below. In any event, no basis for reversal appears. With one exception, each prosecutorial attempt to probe attorney-client conversations was squelched by a successful defense objection before any answer was forthcoming. The single exception, the prosecutor's question about whether defendant's first counsel, Chaffee, took notes of their initial conversation, produced an "I don't know" answer from defendant. The subject was not pursued. Defendant cannot have suffered prejudice.
Finally, defendant urges that the prosecutor exploited his theory of collusion between defendant and counsel, and improperly impugned defense counsel's integrity, by suggesting in his rebuttal that, when preparing for her just completed argument, counsel had "created" a "preposterous" defense involving a nonexistent "phantom killer," and said that counsel "wants you to start guessing about a phantom killer."
The claim is forfeited by failure to object below to the remarks now challenged. In any event, we find no misconduct.
(16) Personal attacks on opposing counsel, including accusations that counsel fabricated a defense or misstated facts in order to deceive the jury, *693 are forbidden. (E.g., Friend, supra, 47 Cal.4th 1, 30-31; Zambrano, supra, 41 Cal.4th 1082, 1154.) On the other hand, the prosecutor may vigorously argue his or her case, including the inferences to be drawn from the evidence. (Friend, supra, at p. 30.) A substantial portion of defense counsel's argument was devoted to the premise that defendant was not guilty of special circumstance murder if, though involved with another person in the burglary and robbery of Sarah LaChapelle's home, he was not Sarah's actual killer and did not intend to kill. In support of this theory, counsel interpreted the forensic evidence to suggest that, even if defendant was a coparticipant in the burglary and robbery, a second burglar and robber was the actual killer. It was in this context that the prosecutor responded by disparaging counsel's use of the evidence to manufacture a "phantom killer" theory.
The prosecutor did not accuse defense counsel of factual fabrication or deceit; he merely argued, as he was allowed to do, that there was no evidence for counsel's theory. The prosecutor's language was strong, but well within bounds we have previously recognized as permissible. (See Zambrano, supra, 41 Cal.4th 1082, 1154-1155, and cases cited.) No misconduct occurred.
d. Prosecutor's facial gestures.
Defendant points to several instances in which the prosecutor smiled, smirked, or laughed in response to defendant's testimony. In prompt response to defense objections, the court twice strongly admonished the jury to disregard the prosecutor's reactions, expressions, and gestures, stating that they were irrelevant, and that the jury, exercising its common sense under the instructions, was the sole judge of defendant's veracity. The court's actions were sufficient to ameliorate any undue prejudice.
e. Alleged self-aggrandizement by the prosecutor.
On Tuesday, December 15, 1992, just after both sides had rested at the guilt trial, the court began to discuss, in the jury's presence, the scheduling of closing arguments. The court indicated it would allow the jurors to choose between two alternative argument schedules. The prosecutor began to suggest that one of the court's proposed scheduleswhich would postpone arguments from Thursday, December 17, to Monday, December 21, thus giving the jury a five-day hiatusmight interfere with his long-planned holiday trip. At this point, defense counsel interjected an unspecified objection. Moments later, after desultory further discussion, the prosecutor stated, "I'll tell you what I'm going to do. I'm going to cancel my flight." The court asked the prosecutor whether he "[had] any reason to believe" that if the case was argued on Monday, it could not go to the jury on Tuesday. The prosecutor responded, "I think it's going to be close." In that event, the court decided, "we'll come back [for arguments] on Thursday afternoon."
*694 Defendant contends the prosecutor's "I'm going to cancel my flight" remark was an improper attempt to garner personal sympathy and admiration from the jurors by appearing noble and dedicated. The claim is forfeited for failure to state this ground for objection below.
In any event, we cannot agree that this brief remark, made in the course of a scheduling discussion with the court, rose to the level of calculated self-aggrandizement. Nor, we are persuaded, would the jury reasonably have understood the comment in that way. This is especially so since the prosecutor soon seemed to retreat from his sacrificial offer, thereafter advising the court that Monday arguments would make his ability to travel a "close" issue. Indeed, as the jurors saw, the prosecutor never had to back up his offer, because the court accommodated him. Under these circumstances, we agree with the People that defendant's claim of improper self-aggrandizement is "tenuous and tangential." We find no misconduct.
f. Referring to facts not in evidence.
Defendant complains of an instance during the prosecutor's guilt phase summation when, in arguing that defendant's explanation for how he got blood on his clothing (i.e., his gun fell from his pants to the floor near the victim's body) was incredible, the prosecutor asked the jury to consider the size of a Smith & Wesson revolver and used his hands to demonstrate. Defense counsel objected that no evidence had been introduced on this subject. The court sustained the objection, admonishing that "[t]he jury can disregard it." Defendant insists the court's response was, typically, too weak, especially in its use of the equivocal word "can." However, in light of the general instruction that counsel's arguments are not evidence, the jury must have understood the argument was improper and should not be considered.
g. Conclusion; cumulative prejudice.
Defendant asserts that, even if no single instance warrants reversal on its own, the pervasive nature of the prosecutor's misconduct, the court's "quaint" but inadequate efforts to control the prosecutor, and the extended jury deliberations indicating a close case, all point to a pattern of unfairness and prejudice that render the guilt verdict unsustainable. We disagree. As we have explained, defendant forfeited many of his misconduct claims; others are not well taken. Though several instances of misconduct, or arguable misconduct, occurred, the court for the most part took adequate remedial steps. Moreover, as noted, despite the jury's careful consideration of the capital charges, the evidence of defendant's guilt as the lone robber and killer of Sarah LaChapelle was strongly persuasive. Singly or in combination, and judged by any standard of prejudice, the cited instances thus cannot have influenced the guilt outcome. No basis for reversal appears.
*695 3. Instructional issues.
a. Burglary instruction based on CALJIC No. 14.59.
Defendant argues the trial court erred by giving a version of CALJIC No. 14.59, concerning the elements of burglary. This standard instruction states, in essence, that the jury "should" find the defendant guilty if it unanimously agrees he or she entered the premises with the intent to steal or to commit a felony (in this case, robbery), and is not required to agree as to which particular crime the defendant intended to commit.[31] Though the clerk's transcript version of this instruction included the standard "should" language, defendant further notes the court substituted the word "must" when it read the instruction to the jury.
Defendant asserts that because he was not charged with the substantive crime of burglary, and because CALJIC No. 14.59, as given in his case, did not include the words "of burglary" after "guilty," the effect of this instruction was to direct a verdict of murder on the sole basis of a jury finding that he made an entry into Sarah LaChapelle's house with the intent to steal or rob. He claims he thereby suffered a violation of his state and federal constitutional rights to due process and a fair trial. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16.) The contention lacks merit.[32]
The court began by instructing the jury on the elements of murder, including first degree murder by premeditation and, on a felony-murder theory, by a killing in the commission of robbery or burglary. Addressing the law of felony murder, the court explained that if a human being was killed during the commission of burglary or robbery, the perpetrator is guilty of first degree murder if he or she had the specific intent to commit one of those underlying crimes. Similarly, the court instructed, if a person was killed by any one of several persons engaged in the commission of burglary or robbery, *696 all those who actively assisted the perpetrator in committing the burglary or robbery, with knowledge of the perpetrator's felonious purpose, are also guilty of first degree murder.
The court next turned to the special circumstance allegations, noting that "[i]f you find the defendant guilty of murder in the first degree, you must then determine" whether one or both special circumstances is true. (Italics added.) The court set forth the elements of the robbery-murder and burglary-murder special circumstances, duly noting that the murder must have been committed while the defendant was engaged in one of those felonies. Finally, not yet having covered the elements, and the necessary specific intents, for burglary and robbery as elements of felony murder and the charged special circumstances, the court gave instructions, including CALJIC No. 14.59, on those issues.
In assessing a claim of instructional error or ambiguity, we consider the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled. (E.g., People v. Ervine (2009) 47 Cal.4th 745, 804 [102 Cal.Rptr.3d 786, 220 P.3d 820]; People v. Smithey (1999) 20 Cal.4th 936, 963-964 [86 Cal.Rptr.2d 243, 978 P.2d 1171] (Smithey); see Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4 [116 L.Ed.2d 385, 112 S.Ct. 475].) Here, we find no reasonable likelihood the challenged instruction led the jury to believe it "should" or "must" find defendant guilty of Sarah LaChapelle's murder just because it concluded he entered her house with a felonious or larcenous purpose. Read as a whole, the instructions clearly informed the jurors a first degree felony-murder verdict was appropriate if the victim was killed during defendant's perpetration of, or knowing participation in, a robbery or burglary. (See Holt, supra, 15 Cal.4th 619, 680 [rejecting contention, in light of instructions as a whole, that failure to include the words "of burglary" after "guilty" in CALJIC No. 14.59 created a mandatory presumption the defendant was guilty of all charged crimes].) We find no error.
b. First degree murder instructions.
(17) Defendant argues the court erred by instructing on first degree murder because the information simply charged him with murder in violation of section 187, and did not state the degree of the murder, cite the actual first degree murder statute (§ 189), or allege the facts necessary for first degree murder. Thus, he asserts, he was charged only with second degree murder.[33]*697 "As defendant acknowledges, however, we have consistently rejected such arguments and have concluded that a defendant may be convicted of first degree murder even though the indictment or information charges only murder with malice in violation of section 187. (People v. Whisenhunt [(2008)] 44 Cal.4th [174,] 222 [79 Cal.Rptr.3d 125, 186 P.3d 496]; People v. Hughes [(2002)] 27 Cal.4th [287,] 368-370 [116 Cal.Rptr.2d 401, 39 P.3d 432]; People v. Witt (1915) 170 Cal. 104, 107-108 [148 P. 928].) Defendant also contends that Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348], prohibits [his] conviction on an uncharged crime. His reliance on Apprendi, however, is misplaced, because he was not convicted of an `uncharged crime.' (People v. Whisenhunt, supra, 44 Cal.4th at p. 222.)" (Friend, supra, 47 Cal.4th 1, 54.)
c. Failure to require jury unanimity on theory of first degree murder.
Defendant contends the trial court erred in failing to instruct the jury it was required to agree unanimously whether he committed premeditated murder or first degree felony murder. He claims a violation of his state and federal constitutional rights to proof beyond a reasonable doubt on all elements of a charged crime, a unanimous jury verdict, and a reliable guilt determination in a capital case. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, 17.)[34]
As defendant acknowledges, however, we consistently have rejected the identical claim. (E.g., Friend, supra, 47 Cal.4th 1, 54; People v. Benavides (2005) 35 Cal.4th 69, 100-101 [24 Cal.Rptr.3d 507, 105 P.3d 1099]; People v. Nakahara (2003) 30 Cal.4th 705, 712-713 [134 Cal.Rptr.2d 223, 68 P.3d 1190] (Nakahara); People v. Kipp (2001) 26 Cal.4th 1100, 1132 [113 Cal.Rptr.2d 27, 33 P.3d 450] (Kipp); People v. Carpenter (1997) 15 Cal.4th 312, 394-395 [63 Cal.Rptr.2d 1, 935 P.2d 708].) Defendant presents no arguments that require us to reconsider these conclusions, and we decline to do so.
d. Instructions assertedly affecting reasonable doubt standard.
Defendant urges that a series of standard instructions given by the trial court unconstitutionally diluted the prosecution's burden to prove guilt *698 beyond a reasonable doubt. As defendant acknowledges, we have rejected similar arguments as to all the instructions he cites: CALJIC Nos. 1.00, 2.01, 2.02, 2.21.2, 2.22, 2.27, 2.51, 2.90, 8.20, 8.83, and 8.83.1. (E.g., Friend, supra, 47 Cal.4th 1, 53; People v. Whisenhunt, supra, 44 Cal.4th 174, 221; People v. Guerra (2006) 37 Cal.4th 1067, 1138-1139 [40 Cal.Rptr.3d 118, 129 P.3d 321] (Guerra); Nakahara, supra, 30 Cal.4th 705, 713-715; People v. Catlin (2001) 26 Cal.4th 81, 148, 151 [109 Cal.Rptr.2d 31, 26 P.3d 357]; People v. Montiel (1993) 5 Cal.4th 877, 941 [21 Cal.Rptr.2d 705, 855 P.2d 1277].) He asks us to reconsider our conclusions, but we decline to do so.
e. CALJIC Nos. 2.03 and 2.06.
Defendant contends the trial court erred when, over defense objections, it instructed the jury with CALJIC Nos. 2.03 (defendant's willfully false or misleading pretrial statement about the charged crimes as circumstance tending, but not alone sufficient, to show consciousness of guilt) and 2.06 (attempt by defendant to conceal evidence against himself or herself as circumstance tending, but not alone sufficient, to show consciousness of guilt). He claims violations of his rights to due process, a fair jury trial, and reliable determinations of guilt, special circumstances, and penalty under the Fifth, Sixth, Eighth, and Fourteenth Amendments. His arguments lack merit.
Defendant first asserts that these instructions are impermissibly one sided and argumentative pinpoint instructions that allow juries to draw impermissible inferences of guilt. As he concedes, we have rejected the identical challenges many times (e.g., People v. McWhorter (2009) 47 Cal.4th 318, 377 [97 Cal.Rptr.3d 412, 212 P.3d 692] (McWhorter); People v. Schmeck (2005) 37 Cal.4th 240, 291 [33 Cal.Rptr.3d 397, 118 P.3d 451]; Stitely, supra, 35 Cal.4th 514, 555; People v. Breaux (1991) 1 Cal.4th 281, 303-304 [3 Cal.Rptr.2d 81, 821 P.2d 585]), and we do so again.
Defendant also urges the instructions were improper on the facts of this case. Of course, there was substantial evidence both of willfully false pretrial statements, and of concealing or destroying evidence. When the police told him they were investigating the stolen vehicle he was driving, and that the owner had been hurt, he lied, saying he obtained the car from Fred Bush. Moreover, there was evidence he threw away his bloody socks, and that Lisa Henry promptly washed the red leather suit he was wearing on the day of Sarah LaChapelle's murder.
(18) Nonetheless, he urges, his lies and destruction of evidence had no rational tendency to prove he was guilty of the charged crime, first degree murder, because they had no bearing on the states of mind or specific intent necessary to establish that particular offense. Defendant overlooks that the *699 evidence tended to show his fear of apprehension for his involvement in Sarah LaChapelle's injury or death, and her killer's identity was a disputed issue. In any event, even where mental state is the principal issue, we have rejected the notion that consciousness of guilt instructions call for impermissible inferences about mental state, or are otherwise inappropriate. (E.g., Zambrano, supra, 41 Cal.4th 1082, 1160; Moon, supra, 37 Cal.4th 1, 28; Smithey, supra, 20 Cal.4th 936, 983.) The claim lacks merit.
f. CALJIC No. 2.51.
Defendant contends the court should not have given CALJIC No. 2.51, which allows the jury to consider the presence or absence of motive as a circumstance that may tend to establish guilt or innocence. He urges that his state and federal constitutional rights to due process, a fair jury trial, and a reliable guilt and penalty determination (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15) were violated, because CALJIC No. 2.51 lessens the prosecution's burden of proof and irrationally allows the jury to find guilt on the basis of motive alone. We reject these arguments, as we have in the past. (E.g., Friend, supra, 47 Cal.4th 1, 53; People v. Riggs (2008) 44 Cal.4th 248, 314 [79 Cal.Rptr.3d 648, 187 P.3d 363]; People v. Cleveland (2004) 32 Cal.4th 704, 750 [11 Cal.Rptr.3d 236, 86 P.3d 302].)[35]
C. Penalty phase issues.
1. Prosecutorial misconduct.
Defendant asserts the prosecutor committed misconduct several times during his cross-examination of defendant's mother, Rosia Carter, who testified for the defense, and during his argument to the jury. To the extent misconduct occurred, the court dealt with it promptly and adequately. We conclude that, singly or in combination, the cited instances did not prejudice defendant.
a. "Burglary gloves" suggestion.
Rosia testified that, when told a male around 14 years old had died in the shed fire in her backyard on December 24, 1983, she first feared it was defendant, who was then 16 years old. The prosecutor reminded her that, assuming this was the correct date of the fire, defendant was then "in jail for committing a burglary, [was] he not?" Defense counsel did not object, and Rosia answered that she "thought it was a probation violation."
*700 The prosecutor then asked, "Incidentally, in February of 1984 did you ever receive or go and pick up the gloves that [defendant] used in the burglary from my office?" Before Rosia could respond, defense counsel objected on grounds of irrelevance. The court sustained the objection, and the prosecutor moved on to other topics. We do not condone the prosecutor's effort to insinuate defendant's commission of an unproven burglary. However, given the brief nature of the episode, and the court's prompt response, we cannot conclude defendant was harmed.
b. Suggestion that defendant "hit a store owner with a rock three times in the head."
The prosecutor cross-examined Rosia at length about her efforts to discipline and support defendant through a childhood and youth marked by misbehavior and troubles with the law. In the course of this examination, and without objection by the defense, Rosia acknowledged, among other things, that she attended court when, in the prosecutor's words, defendant "burglarized a railroad car in 1981" with two other youths. The prosecutor then asked, "Did youDid you attend court in July and August of 1983 [(interruption by the court)]for [defendant] when he hit a store owner with a rock three times in the head?" Defense counsel objected on grounds that the incident to which the prosecutor was referring "[had] been resolved in favor of [defendant]" in that defendant "was acquitted of those charges."
After a brief discussion between court and counsel, the court instructed the prosecutor to "[c]hange [the question] to accused of hitting a store owner in the head three times with a rock," and the prosecutor agreed. (Italics added.) "The issue," the court stated to the witness, "is did you go to court?" Rosia responded, "I don't know." Counsel continued to object and requested an admonishment. Again the court explained it had "changed the question to `accused,' not convicted or that he did it. And the question was did she go to court." On that basis, the court overruled the objection.
Defendant asserts there was little if any relevance to Rosia's attendance in court, and that the "gratuitous" reference to inadmissible violent conduct by defendant was inflammatory and prejudicial. However, as noted, the prosecutor, in asking about Rosia's court attendance, sought to rebut what defendant concedes was a defense theory that he was an unwanted child who suffered from maternal neglect and lack of support.
Moreover, the defense objection, as well as the court's response, to the prosecutor's original misframed question made clear to the jurors that defendant had been legally exonerated in the incident to which the question referred, and that they should disregard any implication he had committed an *701 assault with a rock. That understanding was reinforced when the jury was later instructed, as at the guilt phase, that they must not speculate why objections to questions were sustained, or what the answers might have been, and that statements or insinuations by counsel are not evidence. The court's treatment of the incident was sufficient, and we find no prejudice to defendant.
c. Questions about violence and theft against relatives and acquaintances.
Defendant asserts the prosecutor committed prejudicial misconduct when he questioned Rosia about a series of violent acts by defendant as to which evidence had not previously been introduced. The following facts are pertinent:
At a pretrial Phillips hearing,[36] the trial court had specifically excluded, as aggravating evidence at the penalty phase (see § 190.3, factor (b) [other criminal conduct by defendant involving violence or threat of violence]), evidence of assaults by defendant on certain members of his own familya cousin, Carla Spencer, and his aunts Brenda and Mamie Jackson. Further, the court had reserved judgment regarding evidence that defendant lacerated the face and neck of Patrick Shields during an assault.[37]
In its case-in-chief at the penalty phase, the prosecution did not present evidence of any of these incidents. As noted above, the prosecution confined its showing to three instances of defendant's criminal violencea March 1986 traffic accident, after which defendant, driving a truck, pursued and fired shots at the other vehicle; violent resistance to a police officer during a traffic stop in September 1987; and an assault on Marlena Brown in February 1988. During her direct penalty phase testimony for the defense, Rosia asserted that after the death of her father in 1984, the family "fell apart." According to Rosia, several family members, including Brenda Jackson, Mamie Jackson, and Carla Spencer, had drug problems, family tensions sometimes exploded into physical fights, and defendant was involved in some of these fights. Rosia agreed with defense counsel's assessment "that the world [defendant] saw in 1984 when he was 16, 17 was a family with a lot of problems, a lot of drug use."
*702 While cross-examining Rosia, the prosecutor began asking about her knowledge of acts of violence by defendant against family members and others. The prosecutor first queried whether Rosia "witness[ed] the incident where [defendant] struck his cousin, Carla Spencer." Defense counsel objected, asserting that "if she didn't witness it, it's putting facts before the jury that didn't exist." The court sustained the objection on grounds that the question assumed facts not in evidence.
The following colloquy then occurred: "[The Prosecutor:] Do you know if [defendant] struck his cousin Carla Spencer in October of 1985? [¶] A. I know that there was some problems with them. I wasn't in the room. [¶] [The Prosecutor:] Do you know if your son struck his Aunt [Mamie] in October of 1985? [¶] A. No, I don't. [¶] [The Prosecutor:] Do you know if your son struck your sister Brenda in November of 1985? [¶] A. Well, that could be a yes or no answer. [¶] [The Prosecutor:] Do you know if your son struck Carla Spencer in January of 1986? [¶] A. I don't know. [¶] [The Prosecutor:] Do you know if your son stole your grandmother's and grandfather's truck in March of 1986 and wrecked it because he was mad at your grandmother?[[38]] [¶] A. He wasn't mad at my mother. [¶] [The Prosecutor:] Was he mad at anybody? [¶] A. No. My mother was out of town, so how could he be mad at her? [¶] He just saw the opportunity to get a car to drive or a truck to drive. [¶] [The Prosecutor:] Do you know Trina Berry? [¶] A. Yes, I do. [¶] [The Prosecutor:] Do you know if your son struck Trina Berry in September of 1987? [¶] A. No, I don't. [¶] [The Prosecutor:] Do you know Patrick Shields? [¶] A. Yes, I do. [¶] [The Prosecutor:] And who is Patrick Shields? [¶] A. He's the father of five of my nieces and nephews. [¶] [The Prosecutor:] Do you know if your son[¶] [Defense Counsel:] Your Honor[¶] [The Prosecutor:]cut Patrick Shields' throat? [¶] [Defense Counsel:] I object to this, Your Honor. There is no evidence of that. It assumes a fact not in evidence, and there is no evidence that it's going to be presented. [¶] The Court: Sustained. [¶] [Defense Counsel:] It's extremely[¶] The Court: Sustained. Sustained. Sustained. Sustained. Sustained. Sustained. Sustained. [¶] [Defense Counsel:] Could we have an admonishment? [¶] The Court: The jury may be admonished to disregard that."
When defense counsel asked the court for "a little more force," the court declined, noting that this was "not Hollywood." Clearly exasperated with the contentious atmosphere, the court asked rhetorically whether counsel wanted it to "stand on [its] feet and stomp and hold [its] breath." The court noted that it had proceeded "legally" by sustaining the defense objection and admonishing the jury, and indicated it was "not going to engage in histrionics up here."
*703 Defendant urges the prosecutor's questions were improper attempts to introduce inflammatory aggravating evidence (1) not presented in the People's case-in-chief, (2) beyond the scope of the direct examination of Rosia (see People v. Ramirez (1990) 50 Cal.3d 1158, 1191-1193 [270 Cal.Rptr. 286, 791 P.2d 965] [rebuttal evidence or cross-examination concerning defendant's "bad character" must respond specifically to particular "good character" evidence presented by defense witness]), and (3) in partial violation of the court's Phillips order. Assuming that defense counsel's "facts not in evidence" objections were sufficient to preserve these issues (see Champion, supra, 9 Cal.4th 879, 908, fn. 6), we find no prejudicial misconduct under the circumstances. Our reasons are several.
First, any direct complaint that the prosecutor violated the Phillips order lacks merit. In that order, the court merely excluded certain evidence from the prosecution's case-in-chief. But neither the Phillips order, nor the prosecution's failure to introduce particular evidence in its case-in-chief, precluded the proper introduction of rebuttal evidence. The issue thus becomes whether the evidence the prosecutor sought to elicit from Rosia was proper rebuttal.
Whether the questions about assaults against Carla Spencer, Brenda Jackson, and Mamie Jackson were proper rebuttal examination is a close question. Rosia had not testified to specific altercations between defendant and these particular persons. On the other hand, she had stated that family problems in 1984 concerned these family members, among others, and that the family tensions caused fights between defendant and other family members. The defense effort was to suggest defendant had been scarred by his involvement in a failing family unit that had lost its patriarch. Thus, to the extent the prosecutor sought to flesh out some of the violent family incidents, to show they continued well after 1984, and to demonstrate defendant was less a helpless witness and more a violent aggressor in these episodes, the questions appear proper.
No reason of proper rebuttal appears, however, for the prosecutor's insinuations concerning the assault on Trina Berry, a nonrelative, and the "throat-cutting" assault against Patrick Shields, whom Rosia had not mentioned as one of the family's "problem" members. We do not condone the prosecutor's improper efforts to introduce evidence of these incidents. It was misconduct.
Still, we conclude no prejudice arose. The trial court sustained both defense objections to this line of questioning. Its second response was particularly emphatic, as it repeated the word "sustained" seven times in a row. At defense counsel's request, the court further admonished the jury to disregard "that." The court's immediate reference was to the question whether Rosia was aware that defendant cut Patrick Shields's throat. But the jury *704 cannot have failed to understand, from the court's escalating response to two separate objections, that the prosecutor's entire series of questions about these violent incidents was disapproved, that no evidence about them had been introduced, and that the jurors were not to consider either the questions or the answers. Indeed, the court's refusal, in the face of a defense request for an even more forceful response, to engage in Hollywood "histrionics" by "stand[ing] on [its] feet, stomp[ing], and hold[ing] [its] breath," served, if anything, to bring home further the significance of the situation.
Moreover, Rosia gave "I don't know" answers to most of the prosecutor's questions, including his reference to Trina Berry. Rosia was never allowed to answer the provocative question regarding Patrick Shields. Her only possibly damaging testimony about defendant's assaults upon other relatives was her concession that defendant had "some problems" with Carla Spencer, and her "could be . . . yes or no" response to the question about an assault on Brenda Jackson. In light of the brutal capital robbery-murder, and other evidence the jury heard about defendant's violenceincluding evidence that, when he was 18, he struck Rosia herself during an argumentthere is no reasonable possibility (People v. Brown (1988) 46 Cal.3d 432, 448 [250 Cal.Rptr. 604, 758 P.2d 1135]) that any additional information Rosia provided about defendant's family violence affected the penalty outcome.[39]
d. Referring to facts not in evidence; expressing personal opinion.
During his cross-examination of Rosia, the prosecutor asked if she blamed herself for how defendant had turned out. She said she did not feel responsible, but "I question myself as to what could I have [done] to change it or better it." The prosecutor said that question was fair and honest, "[b]ut I don't believe you're to blame." Before defense counsel could object, the court *705 interrupted to state, "Well, that's your opinion. [¶] The jury may be admonished to disregard that. [¶] Is that forceful enough, [defense counsel]?" Counsel responded, "Yes, Your Honor, given that we didn't object at the time." Notwithstanding counsel's concession below, defendant now claims that, by expressing his personal opinion, and thus acting as a witness, the prosecutor committed prejudicial misconduct violating, among other things, defendant's Sixth Amendment right to confrontation. However, as with many other misconduct claims raised by defendant in this appeal, we conclude the trial court responded adequately. Even if misconduct occurred, no prejudice arose.
We reach a similar conclusion with regard to the prosecutor's claim in argument that the murder victim, Sarah LaChapelle, was "a wholesome, sweet grandmother, whose life was committed to helping make poor and disadvantaged people's lives [better]." The trial court sustained defense counsel's objection, agreeing that "[t]here was no evidence of that. The jury can disregard that." The court's treatment of this fleeting reference was sufficient, and we can discern no prejudice.[40]
e. Conclusion; cumulative prejudice.
Defendant claims the pervasive incidents of misconduct were collectively prejudicial. We disagree. We have identified several instances of clear or arguable prosecutorial misconductthe gratuitous reference to defendant's "burglary" gloves, the questions and argument about assaults on nonrelatives, and the "I don't believe you're to blame" comment to Rosia. But the instances were relatively minor in context. The trial court usually made adequate responses to well-taken defense objections. The jury was generally instructed not to consider counsel's questions, insinuations, or arguments as evidence.
Moreover, the balance of properly admitted aggravating and mitigating evidence weighed very strongly against defendant. It portrayed him as a delinquent child and youth whose escalating violence culminated in the brutal murder and robbery of a female neighbor in her own home. While the evidence suggested that defendant, as a child, suffered some rough or neglectful treatment from the men in his mother's life, and that family tensions surfaced after the death of his grandfather, it also tended to show that he was raised by a mother who loved him and did her best, if imperfectly, to set him on the right path. There were no indications of serious mental or psychological issues. Under the circumstances, we are convinced *706 there is no reasonable possibility that any instances of prosecutorial misconduct, whether considered singly or in combination, affected the penalty outcome.
2. Instructional issues.
a. Jury inquiry whether death or life without parole is the more severe punishment.
On February 2, 1993, the fourth day of penalty deliberations, the jury foreperson sent out a note stating, "We need to talk to you. We seem to be irrevocably deadlocked." Once counsel were present, the foreperson asked if the jury could get further instructions. The court indicated it could reread particular instructions if that would help, and asked whether the issue was "about deciding the penalty, about the circumstances and the weighing of the aggravating and mitigating [evidence]." The foreperson responded in the affirmative, then indicated that "the other thing to clarify for us, when you're weighing the severity of the punishment" was whether "death [was] the more severe punishment, or [was] life without chance of parole."
The court said "I can't tell you that," and stated the issue was not which penalty was more severe, but rather "which is the most appropriate punishment in this case based upon the evidence." The court then reread CALJIC No. 8.88, the standard instruction which explains, among other things, that, in order to reach a death verdict, "each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole." Following this, the court began to reread CALJIC No. 8.85, which sets forth the relevant aggravating and mitigating factors. Halfway through this instruction, the jurors indicated that no further rereading was necessary.
The court then readmonished the jury that "we are not talking about which is the worst penalty," but, instead, which penalty is "justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances." Again, the court stressed that the issue was "whether the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole."
Out of the jury's presence, defense counsel asserted that, during voir dire, several prospective jurors had indicated they thought life without parole was worse than death. In such cases, the court had responded by admonishing that jurors should not rely on this belief to impose the death penalty as an act of mercy. Counsel now requested that the sitting jurors be similarly admonished. *707 The court declined, noting, among other things, that it did not like to give "off-the-cuff" instructions, and that the "so substantial in comparison" instruction reread by the court "takes care of the problem."
On appeal, defendant asserts that in light of the jury request, the trial court had a duty, both under state law (see § 1138 [court must give jury requested information on point of law]) and pursuant to the Eighth Amendment guarantee of a capital jury suitably instructed to avoid an arbitrary and capricious death verdict, to clarify for the jury that death is the more severe punishment. However, we find no abuse of the court's sound discretion in handling the matter. (See, e.g., People v. Beardslee (1991) 53 Cal.3d 68, 97 [279 Cal.Rptr. 276, 806 P.2d 1311] (Beardslee); People v. Gonzalez (1990) 51 Cal.3d 1179, 1213 [275 Cal.Rptr. 729, 800 P.2d 1159] (Gonzalez).)
In People v. Harris (2005) 37 Cal.4th 310 [33 Cal.Rptr.3d 509, 118 P.3d 545], we upheld, as within the trial court's discretion, its decision to instruct, pursuant to a jury request, that death is the more severe penalty. This instruction was clearly a correct statement of the law, we explained, because the principle "[t]hat death is considered to be a more severe punishment than life [without parole] is explicit in California law: CALJIC No. 8.88 . . . states in pertinent part, `To return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole.'" (Harris, supra, at p. 361, italics added.)
Implicit in this analysis is the assumption that CALJIC No. 8.88 itself, by stressing that death is warranted only where aggravation "so substantial[ly]" outweighs mitigation as to call for that penalty, makes the greater severity of the death penalty "explicit." It follows that the trial court adequately conveyed this principle by reinstructing the jury with CALJIC No. 8.88. Indeed, by indicating that no further rereading was necessary, the jury appeared to signal that the court's approach had clarified the issue. We find no basis for reversal.[41]
b. Failure to give victim impact instruction.
As noted above, the prosecution presented one victim impact witness, Sarah LaChapelle's son Anthony. He testified that the victim's death had hit both him and his children hard. As a result of the murder, he said, he became *708 an "instant mental case," developed a serious drinking problem, lost the ability to run the construction business he inherited from his father, and thereafter "never really got [him]self together." According to Anthony, he still dreamed about his mother and still needed help with decisions he should be able to make on his own. He was gently admonished by the court when, at the conclusion of his direct testimony, he stated, "And now I still want to get this guy. I want him to die. So I hope the law gets him for me."
The trial court gave all the standard penalty phase instructions, including those that set forth the relevant aggravating and mitigating factors (CALJIC No. 8.85), describe the process of weighing aggravating and mitigating evidence by which the penalty verdict should be reached (CALJIC No. 8.88), and admonish that the jury "must [not] be influenced by bias [or] prejudice against the defendant" (CALJIC No. 8.84.1). The court refused a defense instruction that while evidence had been introduced to show the "specific harm caused by the defendant's crimes," such evidence was not to "divert [the jury's] attention from [its] proper role of deciding whether defendant should live or die."
Relying on several out-of-state decisions, defendant contends that, under both state law and the Eighth Amendment, the trial court should have instructed on the proper use of victim impact testimony. A proper instruction, he suggests, would have told the jurors the following: They could consider victim impact evidence, which shows that the victim was a unique individual, as a circumstance of the capital crime. However, the law deems no one life more valuable than another. Thus, the jurors must confine themselves to a "rational inquiry into the culpability of the defendant, not an emotional response to the evidence." Further, they must not consider the opinions of the victim's survivors, or any other members of the community, as to the appropriate punishment.
(19) However, we have repeatedly held that it is not error to refuse an instruction substantially identical to that defendant offered below, or to fail, sua sponte, to give an instruction substantially identical to the one defendant proposes on appeal. We have explained that the proffered instructions are misleading insofar as they suggest the jury may not be moved by sympathy for the victims and their survivors, and that the standard instructions adequately convey to the jurors the proper consideration and use of victim impact evidence. (E.g., Carrington, supra, 47 Cal.4th 145, 198; People v. Bramit (2009) 46 Cal.4th 1221, 1245 [96 Cal.Rptr.3d 574, 210 P.3d 1171]; People v. Zamudio (2008) 43 Cal.4th 327, 368-370 [75 Cal.Rptr.3d 289, 181 P.3d 105]; People v. Valencia (2008) 43 Cal.4th 268, 310 [74 Cal.Rptr.3d 605, 180 P.3d 351]; Ochoa, supra, 26 Cal.4th 398, 455; see People v. Pollock (2004) 32 Cal.4th 1153, 1195 [13 Cal.Rptr.3d 34, 89 P.3d 353].) We adhere to these conclusions here.
*709 c. Jury inquiry re meaning of duress.
On the second day of penalty deliberations, the jury submitted a written request for clarification of sentencing factors (d) (whether the capital offense was committed "under the influence of extreme mental or emotional disturbance") and (g) ("[w]hether . . . the defendant acted under extreme duress or the substantial domination of another person"), as set forth in CALJIC No. 8.85. With the agreement of both counsel, the court first instructed the jurors that factors (d) and (g) are mitigating factors, orally recited both factors, and advised that the jury must resolve whether each of these factors was present or absent.
When the court asked whether this response satisfied the jury, the foreperson stated that the jurors wanted a "good legal definition" of duress. The foreperson acknowledged, in response to the court's query, that they wished to know "what the word means," then stated that "I think that the otherthe part of `duress' that we are concerned with is how direct or indirect can the duress be, at what distance might duress be impacted." The court asked for clarification of this latter concern, whereupon the foreperson said, "Well, both in a physical and in an abstract sense, how doeshow does one put another under duress." Before withdrawing to consult with counsel, the court confirmed, in response to a question from another juror, that it was the jury's province to decide whether there was evidence to support any sentencing factor.
Court and counsel then conferred outside the jury's presence. Defense counsel argued that the jury's question suggested it was concerned about whether duress could be triggered by long-past events, such as childhood experiences. Defense counsel agreed with the court's intention to instruct the jury that it should use its commonsense understanding of duress, that a dictionary defined the word to mean "compulsion" or "coercion," and that whether duress was present was an issue for the jury to decide based on the evidence.
However, defense counsel requested an additional instruction "that the application of duress can extend to as far in time as [the jurors] deem appropriate." The court declined this instruction, stating that "whether or not the duress in this case has existed for a long period or a short period of time is a factual issue for [the jurors] to determine from the evidence in this case and the inferences therefrom."
Back before the jury, the following colloquy occurred: "The Court: Mrs. [S.] [(the foreperson)], we've given thistried to give this response a lot of thought, and I'm not so sure this will be a satisfactory answer to you, but this *710 is the best thing we can come up with. First of all, with respect to the definition of `duress,' I'm going to tell you to use your common sense understanding of what `duress' means. To assist you, in Webster's New 20th Century Dictionary Unabridged, it can be defined as `compulsion or coercion.' All right? The second thing, as I understand Mr. [M.'s] [(another juror)] question, is whether or not you can have direct or indirect duress and how long can it last. Is that what you're asking? Is that the question? [¶] The Foreperson: If duress can be directed from outside. [¶] The Court: Okay. Now, see, you're asking me to testify and give you information. I can't do that. [¶] The Foreperson: Oh. [¶] The Court: All I can tell you, is thatthat you have to decide for yourself based upon the evidence that you've received in this case and any reasonable inferences that you, as the fact finders, come to. See, I can't tell you stuff that's not in the evidence. Okay? [¶] The Foreperson: I see. [¶] The Court: So I hope that helps you with the definition of duress. All right? Okay. We'll send you upstairs."
Out of the jury's presence, counsel renewed a request for the previously proposed additional instruction. The court reiterated its satisfaction with the answer it had given.
On appeal, defendant claims that three flaws in the court's response to the jury's inquiry violated his rights, under both state law and the federal Constitution, to a properly instructed capital penalty jury. First, he asserts the court was obliged to respond to the jury's specific question whether duress could be "indirect" and imposed from "outside." Second, he contends that by saying the jury was asking it to provide information "not in the evidence," the court implied there was no factual basis for a finding of duress. Third, he insists the court's instruction that the jury was to determine the issue of duress by drawing "reasonable inferences" from the evidence interfered with the jury's discretion to view the mitigating evidence subjectively in making the normative penalty decision.
Assuming these arguments were preserved by counsel's limited request below for an instruction on the temporal duration of duress (Champion, supra, 9 Cal.4th 879, 908, fn. 6), we find they lack merit. The court responded to the request for a definition of duress by giving the jury, with the approval of all counsel, a dictionary definition of the term as synonymous with coercion or compulsion. (See Visciotti, supra, 2 Cal.4th 1, 75 [for purposes of factor (g), the phrase "extreme duress" is not unduly vague; "duress" has a generally understood meaning of coercion or compulsion, and "extreme" "is generally understood as describing the farthest end or degree of a range of possibilities"].) Defendant cites no authority suggesting the court was obliged to "strike out on its own" (Beardslee, supra, 53 Cal.3d 68, 97) and expand upon this dictionary definition by explicitly addressing issues such as the temporal *711 duration of duress, or its "direct" or "indirect" nature. The court properly instructed that the presence or absence of extreme duress was a factual issue for the jury to decide.
Nor could the jury reasonably have understood the court's comments to mean there was no factual basis for a finding of duress. The court merely conveyed to the jurors that their specific questions about the meaning of duress called upon the court to exceed its proper role by invading the jury's province to find the facts for itself. The court repeatedly made clear that it was for the jury to decide, from the evidence, whether duress was present.
(20) Finally, the court did not err by telling the jury to resolve the issue of duress by drawing "reasonable" inferences from the evidence. The penalty decision itself is subjective and normative, but it cannot be "factually untethered." Instead, it must relate to evidence of the aggravating and mitigating factors set forth in section 190.3.
For this reason, both we and the high court have confirmed that instructions and argument admonishing the jury to decide penalty on the basis of the facts and the evidence are proper. (E.g., California v. Brown (1987) 479 U.S. 538, 542-543 [93 L.Ed.2d 934, 107 S.Ct. 837] (plur. opn. of Rehnquist, J.); see id. at pp. 544-545 (conc. opn. of O'Connor, J.); People v. Avena (1996) 13 Cal.4th 394, 437 [53 Cal.Rptr.2d 301, 916 P.2d 1000] [upholding prosecutorial argument that jury should decide penalty in accordance "`with the facts and in accordance with the evidence presented to you in this case'" (italics omitted)]; People v. Wright (1990) 52 Cal.3d 367, 443 [276 Cal.Rptr. 731, 802 P.2d 221] [upholding prosecutor's plea that jury should not decide penalty on "`an emotional basis,'" but on "`a cool, clear, logical basis'" and on "`the facts and the law'"]; Gonzalez, supra, 51 Cal.3d 1179, 1225 [instruction that admonished against penalty decision based on mere "sympathy" upheld because it warned only against factually untethered sympathy]; see Zambrano, supra, 41 Cal.4th 1082, 1176 [prosecutor's antisympathy argument merely pursued the theme that the particular defendant did not deserve mercy "on the basis of the evidence actually presented"].)
It follows that, in finding the facts that underlie the jury's normative penalty decision, the jury should rely on the evidence presented and reasonable inferences to be drawn therefrom. A court instruction to this effect is not error. The court responded properly to the jury's request. No basis for reversal appears.
3. Challenges to California death penalty law and instructions.
Defendant raises numerous constitutional challenges to California's death penalty law, and to the adequacy of the standard instructions directing the *712 jury's penalty determination. We affirm the decisions that have rejected similar claims, and decline to reconsider such authorities, as follows: Section 190.3, factor (a), is neither vague nor overbroad, and does not impermissibly allow arbitrary and capricious imposition of the death penalty. (Friend, supra, 47 Cal.4th 1, 90; Guerra, supra, 37 Cal.4th 1067, 1165.) The standard penalty instructions are not deficient because they fail to identify which sentencing factors are aggravating and which are mitigating (Friend, supra, at p. 90; People v. Carpenter (1999) 21 Cal.4th 1016, 1064 [90 Cal.Rptr.2d 607, 988 P.2d 531]), or because they fail to require written findings (Friend, supra, at p. 90; People v. Prieto (2003) 30 Cal.4th 226, 275 [133 Cal.Rptr.2d 18, 66 P.3d 1123]) or jury unanimity (Friend, supra, at p. 89; People v. Abilez (2007) 41 Cal.4th 472, 533 [61 Cal.Rptr.3d 526, 161 P.3d 58]) regarding the aggravating factors.
The instructions are not constitutionally faulty insofar as they fail to require proof beyond reasonable doubt of each aggravating factor, or findings that aggravation outweighs mitigation and that death is the appropriate penalty. (People v. Brasure (2008) 42 Cal.4th 1037, 1067 [71 Cal.Rptr.3d 675, 175 P.3d 632]; People v. Bell (2007) 40 Cal.4th 582, 620 [54 Cal.Rptr.3d 453, 151 P.3d 292].) Recent United States Supreme Court decisions interpreting the Sixth Amendment's jury trial guarantee (e.g., Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856]; Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428]; Apprendi v. New Jersey, supra, 530 U.S. 466) have not altered our conclusions in this regard. (Brasure, supra, at p. 1067; Bell, supra, at pp. 620-621.)
As noted, CALJIC No. 8.88 specifies that the jury may return a sentence of death only if each juror is persuaded the aggravating circumstances are "so substantial" in comparison to the mitigating circumstances that death is warranted. Jurors so instructed need not further expressly be told that life without parole is mandatory if aggravation does not outweigh mitigation or if mitigation outweighs aggravation, or that life without parole is permissible even if aggravation outweighs mitigation. (Friend, supra, 47 Cal.4th 1, 90; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 124 [17 Cal.Rptr.3d 710, 96 P.3d 30] (Coffman and Marlow).) Nor need the jury be instructed that the law presumes life without parole, rather than death, to be the appropriate penalty. (McWhorter, supra, 47 Cal.4th 318, 379; People v. Gutierrez (2009) 45 Cal.4th 789, 833 [89 Cal.Rptr.3d 225, 200 P.3d 847]; Kipp, supra, 26 Cal.4th 1100, 1137; People v. Arias (1996) 13 Cal.4th 92, 190 [51 Cal.Rptr.2d 770, 913 P.2d 980].)
The phrases "so substantial" and "warranted" in CALJIC No. 8.88 are not unconstitutionally vague. (Friend, supra, 47 Cal.4th 1, 90; People v. Salcido (2008) 44 Cal.4th 93, 117 [79 Cal.Rptr.3d 54, 186 P.3d 437]; Coffman and *713 Marlow, supra, 34 Cal.4th 1, 123.) CALJIC No. 8.88 is not defective for failing to inform the jury as to which side bore the burden of persuading it that death was appropriate or inappropriate. (Friend, supra, at p. 90; Coffman and Marlow, supra, at p. 124.)
The jury may properly consider evidence of unadjudicated violent criminal activity under section 190.3, factor (b). (Friend, supra, 47 Cal.4th 1, 90; People v. Panah (2005) 35 Cal.4th 395, 499 [25 Cal.Rptr.3d 672, 107 P.3d 790].) The 1978 death penalty law is not unconstitutional insofar as it fails to provide for intercase proportionality review. (Friend, supra, at p. 89; People v. Cook (2007) 40 Cal.4th 1334, 1368 [58 Cal.Rptr.3d 340, 157 P.3d 950]; Moon, supra, 37 Cal.4th 1, 48; see Pulley v. Harris (1984) 465 U.S. 37, 50-51 [79 L.Ed.2d 29, 104 S.Ct. 871].) Nor does the death penalty statute deny equal protection to capital defendants. (Friend, supra, at p. 90; People v. Hinton (2006) 37 Cal.4th 839, 913 [38 Cal.Rptr.3d 149, 126 P.3d 981].)
International law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements. (Friend, supra, 47 Cal.4th 1, 90; Guerra, supra, 37 Cal.4th 1067, 1164.)
E. Cumulative error and prejudice.
Defendant contends the cumulative effect of the asserted guilt and penalty phase errors warrants reversal of his conviction and death sentence even if none of the errors is prejudicial individually. For the reasons set forth above, we conclude that any errors or assumed errors were nonprejudicial, whether viewed separately or cumulatively.
III. DISPOSITION
The guilt and penalty judgments are affirmed.
George, C. J., Kennard, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
MORENO, J., Concurring.
Although I concur in the majority opinion, I write separately to address the trial court's refusal to give Prospective Juror A.S.-P. an opportunity to refute the prosecutor's assertion that she had lied about her academic credentials. It is true that a defendant "has a right to jurors who are qualified and competent, not to any particular juror." (People v. Holt (1997) 15 Cal.4th 619, 656 [63 Cal.Rptr.2d 782, 937 P.2d 213].) However, where hearsay allegations are made regarding the truthfulness of a prospective juror, fairness requires that the prospective juror be given an opportunity to respond to those chargesfairness not only to the party *714 objecting to the prospective juror's excusal on this ground but to the juror herself whose reputation has been sullied by an allegation of dishonesty.
We give seated jurors this opportunity when such charges are made against them. "When the trial court discovers during trial that a juror misrepresented or concealed material information on voir dire tending to show bias, the trial court may discharge the juror if, after examination of the juror, the record discloses reasonable grounds for inferring bias as a `demonstrable reality,' even though the juror continues to deny bias. [Citations.]" (People v. Price (1991) 1 Cal.4th 324, 400 [3 Cal.Rptr.2d 106, 821 P.2d 610], italics added.) Here, the prosecutor's allegations against Prospective Juror A.S.-P. went to her credibility, with the implication that, if she had lied about her academic credentials, she may have lied about other matters, and perhaps did so to conceal some bias. In my view, the court should have dealt with this situation in precisely the same manner as if this charge had been made after A.S.-P. had been seated as a juror. She should have been called and examined and given an opportunity to clear her name. It is deeply regrettable that the trial court failed to do so.
Werdegar, J., concurred.
NOTES
[1] All further unlabeled statutory references are to the Penal Code.
[2] We sometimes identify the victim, Sarah LaChapelle, as Sarah in order to differentiate her from her son, Anthony LaChapelle, to whom we generally refer as Anthony.
[3] As indicated below, defendant urges that his statements to the police, and to his girlfriend, Lisa Henry, at the police station, should have been suppressed on grounds that (1) he did not knowingly and voluntarily waive his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] (Miranda)); (2) the statements were induced by trickery, and were thus involuntary; and (3) Lisa Henry was acting as a police agent when she elicited statements from defendant. The exact circumstances under which defendant made various statements to the police, and to Lisa Henry at the station, are discussed in greater detail in connection with these arguments.
[4] Hereafter, we sometimes refer to Lisa Henry as Lisa in order to differentiate her from her brother Germaine Henry, whom we generally identify hereafter as Germaine.
[5] The recorded portion of the interview was played for the jury.
[6] At trial, the victim's son, Anthony, testified that his mother always wore at least two rings, "a diamond ring and another little band." When officers executed the search warrant at Lisa's residence, they had asked her for "what [defendant] gave [her]," specifically including "the rings." In response, Lisa had given them the watch and chain, but told them she "didn't have any rings."
[7] The dispute over whether it was Lisa or the officers who instigated her visit with defendant is further illustrated by an exchange during the taped postvisit interview with Lisa. After obtaining Lisa's agreement that the officers had been talking to defendant for much of the night, and that they had encouraged him to tell the truth, Sergeant Paniagua, one of the interviewing officers, asked Lisa, "Did I tell you to do anything else?" Lisa answered, "No. You asked me just did I want to talk to him, maybe I can talk to him to convince him to tell the truth or to tell what happened." Paniagua responded, "Okay." (See discussion post.)
[8] A juvenile probation officer confirmed the attempted hanging, which occurred on November 7, 1984. According to the probation officer, Rosia indicated that defendant was depressed over the deaths of friends and relatives. As a result of this incident, defendant was referred for psychiatric treatment, a standard procedure.
[9] This witness had not personally examined defendant or reviewed his records, and did not offer a diagnosis of defendant.
[10] It is undisputed that jury selection in this case was conducted in the same manner as in People v. Cash (2002) 28 Cal.4th 703 [122 Cal.Rptr.2d 545, 50 P.3d 332] (Cash): Each prospective juror was questioned individually, and out of the presence of other members of the venire, to determine his or her qualifications to serve on a capital jury. (See Hovey v. Superior Court (1980) 28 Cal.3d 1, 80 [168 Cal.Rptr. 128, 616 P.2d 1301].) This was followed immediately by voir dire of the same prospective juror concerning his or her general qualifications. In each instance, the prospective juror was questioned first by the court and then, in turn, by each counsel. After each step, the court entertained challenges for cause. All prospective jurors who survived this phase were directed to return at a later date. When they assembled on this date, they were called into the jury box according to randomly assigned numbers, whereupon the court entertained the parties' peremptory challenges. (Cash, supra, at pp. 718-719.)
[11] At trial, and in their briefs, the parties have repeatedly labeled a death qualification voir dire question of this type as a "Fields question," a reference to People v. Fields (1983) 35 Cal.3d 329 [197 Cal.Rptr. 803, 673 P.2d 680]. Contrary to defendant's suggestion, however, that decision never provided significant support for the notion that a capital defendant has the right to probe prospective jurors about their penalty attitudes with respect to specific factual details about the particular case to be tried. In Fields, the defendant urged that, under Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770] (Witherspoon), a pro-life or pro-death prospective juror could be disqualified on that ground only if he or she would automatically apply the preferred penalty in every capital case. Hence, the defendant argued, he was entitled to rehabilitate prospective jurors who had indicated they would automatically vote for life in the particular case by determining whether there were hypothetical cases (such as Hitler's murder of six million Jews) in which they would consider the death penalty. We rejected that contention, holding that a prospective juror was excludable if he or she had stated an inability to consider death in the specific case. (Fields, supra, at pp. 353-358.) The prospective jurors at issue in Fields had indicated they would refuse to vote for death in response to the court's question whether they would do so "`in [a] case involving these charges and special circumstances.'" (Id. at p. 354, some italics omitted.) We did not suggest in Fields that voir dire may or must go beyond the charges and special circumstances to highlight gruesome or inflammatory details about the case that might persuade an otherwise pro-life juror to consider death. A fortiori, Fields does not stand for the proposition that gruesome details beyond the bare charges may be highlighted during death qualification voir dire to determine whether prospective jurors who indicate a willingness to consider both penalties in the abstract would nonetheless automatically vote for death in the particular case.
[12] This draft is not included in the record.
[13] In Carasi, supra, 44 Cal.4th 1263, we assumed for purposes of argument that premeditated murder while lying in wait and for financial gain is a "potentially inflammatory circumstance[] analogous to multiple murder and prior murder ... that ... could transform an otherwise death-qualified juror into one who could not decide penalty fairly ...," but we did not decide that issue. (Id. at p. 1287.)
[14] This institution has since been renamed California State University, East Bay. We use the prior name for convenience and clarity.
[15] Voir dire of L.S. took place on September 14, 1992, at the beginning of the school term.
[16] We have rejected claims that improper excusals of prospective jurors, including improper hardship excusals, denied defendants their constitutional rights to fair, impartial, and representative juries where the defendants failed to show that the excusals resulted in the seating of biased jurors (see People v. Thompson (1990) 50 Cal.3d 134, 158 [266 Cal.Rptr. 309, 785 P.2d 857]), or that a panel from which persons were excused for hardship reasons is less representative (see People v. Visciotti (1992) 2 Cal.4th 1, 44, fn. 15 [5 Cal.Rptr.2d 495, 825 P.2d 388] (Visciotti)). Defendant makes no such showing here.
[17] Code of Civil Procedure section 204, adopted in 1988 (Stats. 1988, ch. 1245, § 2, pp. 4140, 4144-4145), provides in subdivision (b) that "[a]n eligible person may be excused from jury service only for undue hardship, upon themselves or upon the public, as defined by the Judicial Council."
[18] The People read defendant's opening brief as arguing that R.W.'s excusal was improper because, among other things, rule 2.1008 does not include full-time student status as one of the enumerated grounds for hardship excusal. According to the People, defendant forfeited that particular claim because his counsel did not raise it below. Defendant responds he has never contended the court could not excuse for student status; rather, he asserts, he urges only that a student excusal should be judged under the most closely analogous ground set forth in rule 2.1008, that of "extreme financial burden." (Rule 2.1008(d)(3), italics added.) He claims his counsel preserved an argument that student hardship must similarly be "extreme" by objecting that R.W. did not request an excusal and that the court should have determined whether jury service would actually interfere with R.W.'s academic schedule. Assuming this latter contention was preserved (see People v. Champion (1995) 9 Cal.4th 879, 908, fn. 6 [39 Cal.Rptr.2d 547, 891 P.2d 93] (Champion)), it does not affect our conclusions here. As noted, rule 2.1008's strictures on the jury commissioner's authority to issue hardship excusals do not necessarily apply to hardship excusals granted by the trial court during voir dire; in any event, we are satisfied that the record supports the trial court's finding that service by full-time students in this particular case would have constituted a significant, undue burden.
[19] Thus, the high court has held that the exclusion, through death disqualification, of "guilt phase includables" from the guilt phase of a bifurcated capital trial does not violate the "fair cross-section" or "impartial jury" guarantees, and we have agreed under both state and federal law. (Lockhart v. McCree (1986) 476 U.S. 162, 173-184 [90 L.Ed.2d 137, 106 S.Ct. 1758]; Stewart, supra, 33 Cal.4th 425, 455; People v. Ashmus, supra, 54 Cal.3d 932, 956-957.) Defendant contends otherwise, but does not persuade us to reconsider these conclusions here.
[20] Code of Civil Procedure section 229 states the grounds for a prospective juror's excusal for bias, actual or implied.
[21] We do not, of course, endorse or affirm the trial court's determination that A.S.-P. misrepresented her credentials. In fact, we are independently aware of contrary evidence. In 2003, another condemned prisoner, seeking to demonstrate on habeas corpus that the same prosecutor falsely claimed similar misrepresentations by a prospective juror in his case, submitted to this court copies of documents indicating that in May 1992, USF awarded A.S.-P. a doctorate in education. (See In re Young, petn. for writ of habeas corpus filed Apr. 23, 2003; order to show cause issued regarding one claim, and all other claims dismissed, Oct. 11, 2006, S115318.)
We have denied defendant's request to take judicial notice of these records for purposes of the instant appeal. They are not part of the appellate record and were not before the trial court when it excused A.S.-P. We have consistently rejected efforts to augment an appellate record with matters not before the trial court. (People v. Castillo (2010) 49 Cal.4th 145, 157 [109 Cal.Rptr.3d 346, 230 P.3d 1132] [judicial notice]; see People v. Peevy (1998) 17 Cal.4th 1184, 1207 [73 Cal.Rptr.2d 865, 953 P.2d 1212]; People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17 [61 Cal.Rptr.2d 386, 931 P.2d 960]; People v. Tuilaepa (1992) 4 Cal.4th 569, 585-586 [15 Cal.Rptr.2d 382, 842 P.2d 1142].)
[22] Defendant contends B.E.'s answers suggested, at most, that she would have extreme difficulty in imposing the death penalty. Mere difficulty in this regard, he asserts, is not alone sufficient to justify a Witt excusal. However, defendant's citation to Stewart, supra, 33 Cal.4th 425 for this premise is inapposite. There we confirmed that, when the court chooses to rely solely on a prospective juror's written questionnaire answers to justify his or her excusal, the answers themselves must clearly indicate the juror's unwillingness or inability to determine the appropriate penalty under the instructions. We indicated that a brief written response to a question whether the juror's death penalty views would "`prevent or make it very difficult'" to do so would not suffice. (Id. at pp. 446-447 & fn. 12.) Here, however, the court and both counsel subjected B.E. to substantial oral examination, and the court was able to observe the prospective juror during this process. Under such circumstances, a juror's conflicting or ambiguous answers may indeed give rise to the court's definite impression about the juror's qualifications, and its decision to excuse the juror deserves deference on appeal.
Contrary to defendant's contention, B.E.'s dismissal is distinguishable from that considered in Heard, supra, 31 Cal.4th 946, where we found no substantial support for the court's decision to excuse a prospective juror. There, the most the juror conceded was that there "might" be "`past psychological factors'" in a capital defendant's background that "`would weigh heavily enough that you probably wouldn't impose the death penalty.'" (Id. at p. 961.) Of course, a capital juror should be open to consideration of the defendant's mental issues as a mitigating penalty factor.
Defendant urges the court could not rely on B.E.'s statement she would not sign a death verdict as jury foreperson. (See People v. Chacon (1968) 69 Cal.2d 765, 772 [73 Cal.Rptr. 10, 447 P.2d 106].) However, there is no indication the court placed sole reliance on this statement.
Defendant complains that any disqualifying answers given by B.E. were the result of (1) awkward and legally inaccurate questions by the court. (2) the court's decision to cut off voir dire too soon, and (3) the court's undue restriction on voir dire inquiry about prospective jurors' attitudes toward the factual details of the case. We find no basis in the record for the first two of these claims, and we have already rejected defendant's contention that the court allowed too little voir dire about the facts of the case.
Nor is there merit to defendant's contention that, in evaluating the propriety of the trial court's decision to excuse, we should place heaviest weight on what was said late in the prospective juror's examination. Defendant cites no case, and we have found none, in which we overturned the trial court's grant of a prosecution challenge for cause under Witt on grounds that the prospective juror's later voir dire answers favored the juror's retention, even if the earlier ones did not. The trial court is entitled to consider the entirety of a prospective juror's examination in deciding whether a Witt excusal is justified.
[23] Though defense counsel requested the opportunity for further questioning, she did not object specifically to the excusal itself. Because the question of whether this resulted in a forfeiture of the latter issue is close and difficult, we proceed on the assumption that no forfeiture occurred. (Champion, supra, 9 Cal.4th 879, 908, fn. 6.)
[24] Indeed, defendant's subsequent testimony under oath at trial established his knowledge, at the time of his arrest, that he was driving Sarah LaChapelle's vehicle, and that she was dead. Defendant testified at trial that, after seeing two men emerge from Sarah's home, he entered, found her body, and ultimately decided to take her car, television, and VCR.
[25] This case does not involve ploys or deceptions that amount to the forbidden interrogation of a suspect who then has an unwaived Fifth or Sixth Amendment right to be free of police questioning. (See, e.g., Rhode Island v. Innis (1980) 446 U.S. 291 [64 L.Ed.2d 297, 100 S.Ct. 1682]; Brewer v. Williams (1977) 430 U.S. 387 [51 L.Ed.2d 424, 97 S.Ct. 1232].)
[26] We are not concerned here with the rule banning the use of police agents to obtain information from defendants about crimes with which they have been formally charged, and as to which their Sixth Amendment rights to counsel have thus attached. (See, e.g., Maine v. Moulton (1985) 474 U.S. 159 [88 L.Ed.2d 481, 106 S.Ct. 477]; United States v. Henry (1980) 447 U.S. 264 [65 L.Ed.2d 115, 100 S.Ct. 2183]; Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199].)
[27] The above quoted statement in Mayfield stands on its own merits, though we added, as makeweight, the observation that, in that case, the meeting between father and suspect was entirely on their initiative, not that of the police. (Mayfield, supra, 14 Cal.4th 668, 758.)
[28] Here, as with most issues defendant raises on appeal, he urges that the claimed error or misconduct infringes various of his constitutional rights. Usually, even if he raised the issue in the trial court, he failed explicitly to make some or all of the constitutional arguments he now advances. However, in each such instance, unless otherwise indicated, the appellate claim is either (1) one that required no trial court action by defendant to preserve it, or (2) invokes no facts or legal standards different from those the trial court was asked to apply, but merely asserts that the error or misconduct, insofar as wrong for the reasons actually presented to the court, had the additional legal consequence of a constitutional violation. To this extent, defendant's new constitutional arguments are not forfeited on appeal. Under such circumstances, of course, if we conclude the trial court did not err on the issue actually before it, the new constitutional "gloss" must be rejected as well, without any need for a separate constitutional discussion. We proceed accordingly. (See, e.g., People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [42 Cal.Rptr.3d 677, 133 P.3d 581]; People v. Partida (2005) 37 Cal.4th 428, 433-439 [35 Cal.Rptr.3d 644, 122 P.3d 765].)
[29] Though Bolton suggested that a mere admonition to disregard improper remarks may only serve to rub them in (Bolton, supra, 23 Cal.3d 208, 215-216, fn. 5), defense counsel may have decided just the opposite here. Though counsel sought to protect the record by asking for an "assign[ment] of misconduct," her failure to request a more elaborate admonition may have stemmed from her conclusion that such an instruction would itself call the jury's undue attention to the prosecutor's comment.
[30] Later, during cross-examination, Jackson stated that she left the house before defendant did.
[31] CALJIC No. 14.59 provides: "If you are satisfied beyond a reasonable doubt and agree unanimously that defendant made an entry with the specific intent to steal or to commit _______, a felony, you should find the defendant guilty. You are not required to agree as to which particular crime the defendant intended to commit when [he] [she] entered."
[32] The People urge the claim is forfeited because defendant requested the instruction, thus inviting any error. Indeed, though defendant argues his request was solely in connection with an unsuccessful attempt to obtain instructions on burglary as a lesser related offense of murder, his counsel later acquiesced in the giving of CALJIC No. 14.59 both before and after the court ruled it would not give lesser-related offense instructions on burglary. Nonetheless, "[t]he invited error doctrine will not preclude appellate review [of an assertedly erroneous instruction] if the record fails to show counsel had a tactical reason for requesting or acquiescing in the instruction. [Citations.]" (Moon, supra, 37 Cal.4th 1, 28.) The record here shows no tactical reason why defendant's counsel acquiesced in the instruction after its ostensible use for defense purposes was foreclosed. Hence, we decline to find forfeiture.
[33] The People urge the claim is forfeited, because defendant did not object below that he received inadequate charging notice. (See People v. Bright (1996) 12 Cal.4th 652, 671 [49 Cal.Rptr.2d 732, 909 P.2d 1354].) Defendant responds that his attack is not on the form or adequacy of the information, which validly charged second degree murder. Rather, he asserts, he challenges the unwarranted first degree murder instructions given at his trial, a claim we may review even though he did not object to the instructions below. (§ 1259; see Moon, supra, 37 Cal.4th 1, 28.) Because the forfeiture issue is close and difficult, we decline to find that defendant forfeited his claim. (Champion, supra, 9 Cal.4th 879, 908, fn. 6.)
[34] The People claim forfeiture on grounds defendant did not request a unanimity instruction below. We find no forfeiture, because we understand defendant's argument to be that the court should have given such an instruction sua sponte.
[35] The People urge the claim is forfeited inasmuch as defendant invited the error by requesting CALJIC No. 2.51. But the record shows no tactical reason for the request; hence, we find no forfeiture on this ground. (Moon, supra, 37 Cal.4th 1, 28; see § 1259.)
[36] In People v. Phillips (1985) 41 Cal.3d 29 [222 Cal.Rptr. 127, 711 P.2d 423], this court encouraged the use of preliminary inquiries, in advance of the penalty phase, to determine whether there is substantial evidence to support each element of "other criminal activity" the prosecution proposes to introduce as aggravating evidence. (Id. at pp. 72-73, fn. 25.)
[37] Shields's exact relationship to the family is unclear. At the Phillips hearing, the court assumed he was defendant's uncle, either biological or "by marriage." At the penalty phase, Rosia testified that Shields was the father of several of her nieces and nephews. (See below.)
[38] This appears to be a reference to the March 1986 traffic-accident-with-violence episode the prosecution introduced in its case-in-chief.
[39] Defendant notes that the prosecutor, during his closing argument, asked the jury if it remembered the "series of questions" he asked Rosia about defendant's assaults on members of his family, including whether Rosia knew defendant had "beat[en]" Carla Spencer. The prosecutor then made the point that defendant "beat on all his family." Defense counsel objected that Rosia had given a "don't know" answer to the question about Carla Spencer and that the prosecutor merely sought to prejudice the jury. The court overruled the objection. We see no basis for reversal. We assume that insofar as the prosecutor referred the jury to a series of questions as to which objections had been sustained, he committed misconduct. For several reasons, however, we find no prejudice. First, we have concluded the questions about Carla Spencer, and about violence against other members of defendant's immediate family, were proper (see text discussion, ante). Second, Rosia did not profess complete lack of knowledge of the Carla Spencer incident; she said, ambiguously, that she knew defendant and Carla had "problems" but "wasn't in the room" during the incident to which the prosecutor alluded. Third, in light of the substantial properly admitted evidence of defendant's criminal violence, including an assault against his own mother, the brief argumentative reference to the Carla Spencer incident cannot have affected the penalty outcome.
[40] Moreover, as the People point out, there was evidence to support the prosecutor's characterization of the victim as a sweet, wholesome, and compassionate grandmother.
[41] We are not persuaded otherwise by the trial court's admonition to the jury that the issue was not which penalty was worse, but instead concerned the weighing of aggravating and mitigating evidence under the instructions. In context, the court sought only to convey that the jurors should focus on the instructions, rather than considering their personal views about the severity of particular penalties, as the basis for rendering their penalty verdict.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT EUGENE NADELIN,
Plaintiff-Appellant,
v.
DAVID M. MARTIN; DAVID PLYLER;
No. 97-6385
JAMES HUGHES; ERNEST BRADLEY;
CITY OF MONROE, NORTH CAROLINA,
Defendants-Appellees,
MIKE TOMBERLIN; UNION COUNTY,
Defendants.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Carl Horn, III, Chief Magistrate Judge.
(CA-95-428-3-H)
Submitted: October 20, 1998
Decided: November 19, 1998
Before MURNAGHAN, ERVIN, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Michael G. Gibson, D. Christopher Osborn, DEAN & GIBSON,
L.L.P., Charlotte, North Carolina, for Appellant. Anthony T. Lathrop,
Patrick H. Flanagan, CRANFILL, SUMMER & HARTZOG, L.L.P.,
Charlotte, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Robert Eugene Nadelin appeals from the portion of the magistrate
judge's order1 granting the Appellees, police officers, summary judg-
ment as to his claims filed under 42 U.S.C.A. § 1983 (West Supp.
1998), against the officers in their individual capacities for use of
excessive force in violation of the Fourth Amendment and as to his
common law claims against the officers in their official and individual
capacities for assault and battery.2 Finding no reversible error, we
affirm.
Nadelin filed this complaint against police officers David Martin,
David Plyler, Mike Tomberlin, James Hughes, and Ernest Bradley, in
their individual and official capacities.3 He also filed the complaint
against the City of Monroe and Union County. He alleged various
constitutional violations as well as state law claims for assault and
battery, malicious prosecution, and false imprisonment. All the claims
against Tomberlin and Union County were voluntarily dismissed after
the parties entered into a settlement agreement. The magistrate judge
granted summary judgment to the remaining Defendants. The magis-
trate judge found that the police officers were entitled to qualified
immunity with regard to Nadelin's Fourth Amendment excessive
force claims and that the City of Monroe was not subject to liability.
The magistrate judge further found that Nadelin's state law claims
were without merit.
_________________________________________________________________
1 The parties consented to jurisdiction of the magistrate judge pursuant
to 28 U.S.C.A. § 636(c) (West 1994 & Supp. 1998).
2 We note that the remaining claims raised in Nadelin's complaint are
deemed abandoned. See Rosenberger v. Rector & Visitors of University
of Virginia, 18 F.3d 269, 276 (4th Cir. 1994).
3 All the law enforcement officers, except for Tomberlin, were
employed by the Monroe Public Safety Department. Tomberlin was an
employee of the Union County Sheriff's Department.
2
This court reviews de novo a district court's grant of summary
judgment. See Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th
Cir. 1995). Summary judgment is appropriate when a non-moving
party fails to establish, by sworn evidence, an essential element of the
case. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). When considering motions for summary judgment,
courts must view facts and inferences from the facts in the light most
favorable to the party opposing the motion for summary judgment.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). However, when the evidence from the entire record could
not lead a rational fact finder to find for the non-moving party, no
genuine issue for trial exists, and summary judgment is appropriate.
See id. at 587.
The evidence in the light most favorable to Nadelin established that
in the late evening of October 30, 1992, and early morning of October
31, 1992, Nadelin owned and was present at the Excalibur Club in
Monroe, North Carolina. Nadelin had arrived at the club at approxi-
mately 7:00 p.m., consumed three or four alcoholic drinks, and had
stopped drinking at approximately 11:00 p.m. Kenny Helms was
employed as the club manager and was present at the time in ques-
tion. Nadelin played chess with various club patrons from approxi-
mately 10:30 p.m. until 1:30 a.m., when a verbal altercation took
place inside the club between two patrons. Nadelin and Helms asked
the two individuals who were fighting to leave and they complied.
At approximately 2:00 a.m., Helms was informed that the two
patrons were again fighting in the parking lot. Helms directed that
someone press the club's "panic button," which automatically calls
the local police. Nadelin exited the club and noticed an individual
lying on the pavement and bleeding. Club patrons would testify that
they do not recall Nadelin showing signs of being intoxicated at this
time.
Approximately fifteen minutes after the "panic button" had been
pressed, several law enforcement vehicles and officers arrived at the
club. The police officers observed approximately twenty to thirty peo-
ple in the club's parking lot, one of whom was lying on the ground
bleeding from a cut throat. The officers also noted that some of the
people in the parking lot were engaged in fistfights. After breaking up
3
one of the fights, Officer Bradley determined that the injured man's
throat had been cut by a knife and that the crowd was generally "loud
and boisterous."
At some point in time after the police officers arrived at the club,
Nadelin approached Officer Martin, a Captain with the Monroe
Department of Public Safety, and inquired about whether an ambu-
lance was coming to help the injured man in the parking lot. Nadelin
would testify that Officer Martin's response included a statement to
the effect that the police were not going to have"any of this shit
here."
Nadelin and several club patrons would testify that when Nadelin
approached Officer Martin a second time, Martin accused Nadelin of
"changing his story" and proceeded to "prod, jab, and shove" Nadelin
with his flashlight. Nadelin characterizes Captain Martin's conduct as
unprovoked and inappropriate. Officer Martin would testify that
Nadelin appeared intoxicated because he was talking loudly and had
a strong odor of alcohol on his breath. Officer Martin would further
testify that Nadelin "got right up in [his] face" as they were talking;
Nadelin first grabbed Officer Martin's shoulder and then grabbed and
wrestled away Officer Martin's flashlight before several officers
approached to assist him. There is no dispute that it was at this point
in time that Nadelin was physically restrained and placed under arrest.
Nadelin admits that he placed his hand on Officer Martin's shoul-
der and then grabbed Captain Martin's flashlight in order to prevent
himself from being prodded and jabbed any further. Nadelin and sev-
eral club patrons would testify that Nadelin released the flashlight
when ordered to do so and placed his hands in the air to show that
he had no weapons. They would further testify that Nadelin did not
resist arrest, but was nevertheless thrown to the ground, hit and/or
kicked, shot with pepper spray, and called a "son of a bitch" and an
"asshole."
The police officers would testify that after Nadelin grabbed Cap-
tain Martin's shoulder, Martin ordered Nadelin to put his hand down.
They would further testify that instead of complying with the order,
Nadelin grabbed Officer Martin's flashlight and that this is why he
was physically restrained and arrested. While Nadelin claims that he
4
did not hear the officers inform him that he was under arrest, he does
not dispute that they did inform that he was under arrest. The officers
would testify that Nadelin continued to struggle and resist arrest until
a one-second shot of pepper spray successfully subdued him.
Because of his conduct, Nadelin was charged with resisting a pub-
lic officer, assault on a government official, and being intoxicated and
disruptive. Although initially Nadelin was convicted of all the charges
in a bench trial, he appealed and was acquitted by a jury trial.
In the instant case, on appeal to this court, Nadelin claims that the
district court erred in granting the Appellees summary judgment on
the ground of qualified immunity. He contends that the facts taken in
the light most favorable to him raise genuine issues of material fact
as to whether the Appellees are entitled to qualified immunity on the
§ 1983 claims against them for the use of excessive force.
Nadelin has alleged that the Appellees used a degree of force
against him that violated the Fourth Amendment's protection against
unreasonable seizures. See Graham v. Connor, 490 U.S. 386, 394
(1989). Qualified immunity is available to these officers as a defense
against this type of excessive force. See Slattery v. Rizzo, 939 F.2d
213, 215-16 (4th Cir. 1991). Qualified immunity shields government
officials from § 1983 liability as long as"their conduct does not vio-
late clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). In an excessive force case, the specific inquiry
"is whether a reasonable officer could have believed that the use of
force alleged was objectively reasonable in light of the circum-
stances." Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994). "This
test is not rigid or mechanical but depends on the`facts and circum-
stances of each particular case.'" Id. (citing Graham v. Connor, 490
U.S. 386, 396 (1989)). Force is not excessive if it is objectively rea-
sonable under the circumstances facing the officer, without regard to
his underlying intent. See Graham, 490 U.S. at 397. Although the
immunity inquiry focuses on the objective facts, it must be filtered
through the lens of the officer's perceptions at the time of the incident
in question. See Rowland, 41 F.3d at 173. Among the relevant factors
in determining whether the officers applied reasonable force are
whether the suspect posed a threat to the safety of the officers or oth-
5
ers and whether he was actively resisting arrest. See Graham, 490
U.S. at 396.
As the district court noted, the facts in this particular case involve
precisely the kind of "street-level police work, which frequently
requires quick and decisive action in the face of volatile and changing
circumstances." Rowland, 41 F.3d at 172. Thus, the officers' actions
in this case are shielded from civil liability because they did not vio-
late clearly established constitutional rights. See id. When the police
arrived at the Excalibur Club parking lot at approximately 2:00 a.m.,
they encountered a loud and boisterous crowd of twenty to thirty indi-
viduals, many of whom, including Nadelin, appeared to be at least
partially intoxicated. One individual was lying on the ground severely
injured appearing to have been cut in the throat with a knife. Other
individuals were engaged in fistfights. The overall scene was one of
confusion, and the crowd was difficult to control.
In the midst of this already tense and dangerous environment,
Nadelin, who admits to have been drinking earlier that evening, ques-
tioned the police officers, either grabbed or put his hand on Captain
Martin's shoulder, and undisputably wrestled away Martin's flash-
light. Nadelin admits that when the police officers were trying to
handcuff him, he heard someone discussing having a problem getting
the handcuffs on his left hand. Although the police officers in this
case may have handled the situation in a kinder and gentler manner,
the actions of law enforcement officials are not to be assessed or eval-
uated with "the 20/20 vision of hindsight." Graham, 490 U.S. at 396.
Therefore, the district court correctly granted the police officers sum-
mary judgment on Nadelin's claim that they used excessive force in
violation of the Fourth Amendment.
Nadelin also claims that the evidence raised a genuine issue of
material fact as to his state law claim for assault and battery. "[A]
civil action for damages for assault and battery is available at com-
mon law against one who, for the accomplishment of a legitimate pur-
pose, such as justifiable arrest, uses force which is excessive under
the given circumstances." Myrick v. Cooley , 371 S.E.2d 492, 496
(N.C. App. 1988) (citations omitted). Although the officer has discre-
tion, within reasonable limits, to judge the degree of force required
under the circumstances, "when there is substantial evidence of
6
unusual force, it is for the jury to decide whether the officer acted as
a reasonable and prudent person or whether he acted arbitrarily and
maliciously." Todd v. Creech, 209 S.E.2d 293, 295 (N.C. App. 1974).
Additionally, an assault and battery need not be perpetuated with
maliciousness, willfulness or wantonness, and actual physical injury
need not be shown in order to recover. See Myrick, 371 S.E.2d at 496
(citations omitted). Even considering that the threshold for determin-
ing whether the limits of privileged force have been exceeded for pur-
poses of liability under a normal tort action is lower than for a § 1983
action, see Justice v. Dennis, 834 F.2d 380, 382 (4th Cir. 1987), we
find no substantial evidence of unusual force. As discussed thor-
oughly with regard to Nadelin's constitutional excessive force claim,
there is no credible evidence that any of the officers acted unreason-
ably or used any type of force not necessitated by the circumstances.
Accordingly, we affirm the portion of the district court's order
granting summary judgment to the Appellees. We dispense with oral
argument because we previously granted Appellant's unopposed
motion to submit the appeal on the briefs.
AFFIRMED
7
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7661
HENRY WAYNE COLLIER,
Petitioner - Appellant,
v.
R. HUDGINS, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at
Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:19-cv-00234-FPS)
Submitted: April 16, 2020 Decided: June 9, 2020
Before FLOYD, THACKER, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry Wayne Collier, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Henry Wayne Collier, a federal prisoner, appeals the district court’s order accepting
the recommendation of the magistrate judge and dismissing his 28 U.S.C. § 2241 (2018)
petition without prejudice for lack of jurisdiction. We have reviewed the record and find
no reversible error. Accordingly, we affirm for the reasons stated by the district court. See
Collier v. Hudgins, No. 5:19-cv-00234-FPS (N.D.W. Va. Oct. 29, 2019); see also Braswell
v. Smith, 952 F.3d 441, 450 (4th Cir. 2020). We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
2
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2009∗
Decided May 27, 2009
Before
FRANK H. EASTERBROOK , Chief Judge
JOHN L. C OFFEY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 08-4280
Appeal from the United
UNITED STATES OF AMERICA, States District Court for the
Plaintiff-Appellee, Central District of Illinois.
v. No. 95-cr-30078
Richard Mills, Judge.
LYNARD JOINER,
Defendant-Appellant.
Order
Lynard Joiner, who is serving a sentence of 235 months’ imprisonment for a
crack-cocaine offense, asked the district court to reduce his sentence after the
Sentencing Commission cut the base range for crack offenses and made that change
retroactive. See 18 U.S.C. §3582(c)(2) and Amendments 607, 611, and 615. The district
court denied this motion because the reduction does not affect defendants who are
accountable for more than 4.5 kilograms of crack. The judge concluded that Joiner is
responsible for more than 6 kilograms.
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 08-4280 Page 2
Joiner acknowledges that the presentence report prepared at the time of his
sentencing calculated his relevant conduct at 6.63 kilograms of crack. But he maintains
that the judge found at the time only that he was responsible for 1.5 kilos (because that
was the amount that mattered under the Guidelines then in force), and he contends that
the court cannot now use the larger number.
This argument is not open to Joiner, however. The district court denied his
motion on May 12, 2008. Joiner filed an untimely appeal. After this court noted the
problem and suggested that Joiner ask the district judge for extra time under Fed. R.
App. P. 4(b)(4), Joiner did nothing in response. On August 8, 2008, we dismissed the
appeal. Joiner’s petition for rehearing was denied, and the mandate issued on October
7, 2008. Only then did Joiner ask the district court for extra time under Rule 4(b)(4). That
was far too late, as the judge noted on December 16, 2008, when denying Joiner’s
motion. Joiner asked the judge a second time for relief under the retroactive Guideline,
and the judge denied that request too, because it duplicated the first. Joiner then filed a
second notice of appeal.
To the extent that Joiner wants us to review the judge’s initial decision (the one
from March 2008), the notice of appeal is untimely, even longer after the deadline than
the first. Filing a post-appeal motion in the district court does not reopen the time for
appeal. To the extent that Joiner wants us to treat the post-appeal filing as a new motion
under §3582(c)(2), the appeal is timely but unavailing. A person who litigates and loses
(as Joiner did in May 2008) does not get a second bite at the apple just by filing an
identical request. Joiner observes that §3582(c)(2) itself does not forbid successive
motions, which is true, but neither does §3582(c)(2) make ordinary doctrines of
preclusion inapplicable. Joiner’s current arguments are blocked by the doctrine of issue
preclusion because they were actually, and necessarily, resolved by the district judge in
May 2008. That decision is conclusive.
AFFIRMED
|
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/03/2018 12:09 AM CDT
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ZELENKA v. PRATTE
Cite as 300 Neb. 100
Peter Zelenka, appellee and cross-appellant, v.
Jason D. Pratte, appellant and cross-appellee.
___ N.W.2d ___
Filed June 1, 2018. No. S-17-086.
1. Actions: Conversion: Replevin: Appeal and Error. Actions for con-
version and replevin are law actions. In an action at law tried to the
bench, a district court’s factual findings and disposition have the same
effect as a jury verdict and will not be set aside unless clearly wrong.
2. Replevin: Proof. In a replevin case, the plaintiff has the burden to prove
by a preponderance of the evidence that at the time of the commence-
ment of the action (1) he was the owner of the property sought, (2) he
was entitled to immediate possession of the property, and (3) the defend
ant wrongfully detained it.
3. Gifts: Intent. To make a valid inter vivos gift, there must be an inten-
tion to transfer title to property, delivery by the donor, and acceptance
by the donee.
4. Gifts: Proof. The person asserting the gift must prove all the essential
elements by clear, direct, positive, express, and unambiguous evidence.
5. Gifts: Intent. The donor must have a present donative intent and a clear
and unmistakable intent to make a gift.
6. Gifts. Ordinarily, actual delivery is necessary where the subject of the
gift is capable of manual delivery, but where actual manual delivery can-
not be made, the donor may do that which, under the circumstances, will
in reason be considered equivalent to actual delivery.
7. ____. Generally, the exercise by the donee of dominion over the prop-
erty which is the subject of a gift, or an assertion of a right to the prop-
erty by the donee, generally will constitute an acceptance.
8. ____. Ordinarily, for a gift to be delivered, it must be shown that the
owner parted with dominion and control over the gift.
9. Gifts: Parties. Delivery of a gift can take place through a third party.
10. Gifts. The subsequent possession of a gift by the donor, while it may
call for an explanation, is not necessarily incompatible with the donee’s
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dominion over the property, and will not necessarily operate to make the
gift ineffectual.
Appeal from the District Court for Douglas County:
K imberly Miller Pankonin, Judge. Affirmed in part, and in
part reversed and remanded with directions.
Ryan J. Lewis and Thomas C. Dorwart, of Govier, Katskee,
Suing & Maxell, P.C., L.L.O., for appellant.
Jill M. Mason, of Kinney Mason, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and R iedmann, Judge, and M artinez, District Judge.
Stacy, J.
Peter Zelenka filed this action against Jason D. Pratte, alleg-
ing Pratte was in possession of personal property belonging
to Zelenka. The primary dispute involved a French bulldog,
which Zelenka claimed he received as a gift from Pratte. After
a bench trial, the district court found Zelenka proved the dog
was a gift and ordered the dog be returned to Zelenka. With
respect to the other items of personal property, the court found
Zelenka had failed to meet his burden of proof. Pratte appeals,
and Zelenka cross-appeals. We affirm in part, and in part
reverse and remand with directions.
I. FACTS
Pratte and Zelenka were involved in a romantic relationship
from 2010 until 2015. They lived together in a house owned
by Pratte from July 2011 until they separated in June 2015.
At that time, Zelenka moved out of the residence. He took
only a few items of personal property with him, believing
the move was temporary to allow the parties to work on their
relationship.
When Zelenka returned the following week, he discovered
Pratte had changed the locks on the house. Zelenka was unable
to retrieve items of personal property he claims were his,
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including home furnishings, electronics, housewares, and a
French bulldog named “Princess Pot Roast,” which the parties
refer to as “Pavlov.”
In March 2016, Zelenka filed a complaint against Pratte in
the Douglas County District Court. The complaint primarily
alleged a claim for conversion. Pratte filed an answer generally
denying the allegations.
A 2-day bench trial was held in January 2017. The parties
advised the court they had reached an agreement regarding
certain items of personal property, and pursuant to that agree-
ment, the court ordered those items returned to Zelenka. The
parties presented evidence regarding the remaining disputed
items of personal property. Most of the evidence focused
on Pavlov.
1. Pavlov
Both parties claimed to be the owner of Pavlov. The evi-
dence was uncontroverted that Pratte paid for Pavlov, but
Zelenka claimed he was given Pavlov as a birthday gift. Pratte
denied this. In support of Zelenka’s claim that Pavlov was a
gift, he offered his own testimony, testimony from his mother,
and testimony from Pavlov’s breeder.
Zelenka testified that several weeks before his birthday,
Pratte surprised him by taking him to a local dogbreeder to
pick out a puppy as a birthday gift. According to Zelenka,
Pratte also gave him the option of waiting to select a puppy
“if [he] wasn’t ready.” But after interacting with the puppies,
Zelenka selected one and named it Pavlov. Zelenka did not
take Pavlov home that day. Instead, he returned later, without
Pratte, and took possession of the puppy.
Zelenka’s mother also testified that her son received Pavlov
as a birthday gift from Pratte. When asked how she knew the
puppy was a birthday gift, Zelenka’s mother testified Pratte
told her so.
Pavlov’s breeder was called as a witness. She testified
that Pratte contacted her by telephone and said he was
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looking for a puppy as a gift for his boyfriend. He said he
wanted his boyfriend to choose the puppy. She scheduled
a time for Pratte and Zelenka to come look at the litter of
five puppies. Ultimately, Zelenka picked out the puppy that
Pratte purchased. According to the breeder, she then had the
puppy spayed and microchipped at a local veterinary clinic,
after which Zelenka returned alone to pick up the puppy. At
that time, the breeder provided Zelenka with the adoption
contract, registration forms for the American Kennel Club,
and photographs of the puppy. The breeder confirmed that
it was her understanding the puppy was a gift from Pratte
to Zelenka.
Pratte testified that he did not intend Pavlov to be a gift for
anyone. According to Pratte, he contacted the breeder and told
her he was looking for a companion dog for his other dog, a
Labrador retriever. He then went to the breeder’s house alone
to assess whether any of her puppies would be a good com-
panion for his dog. He acknowledged that he later returned
to the breeder with Zelenka and allowed Zelenka to select a
puppy. But Pratte claimed he had already assessed the pup-
pies’ temperaments to narrow the options, and he then allowed
Zelenka to choose from those options, because he wanted
Zelenka to feel included in his decision to add another dog to
their household. Pratte testified that he paid for Pavlov, and
the dog has always lived at his residence.
2. Other Personal Property
Both parties testified about the various other items of
personal property in dispute. These included a “Dyson ani-
mal vacuum,” a couch, a shelf, table lamps, outdoor pots, a
deep freezer, several souvenirs from Africa, paintings, and
patio furniture. Zelenka testified that he purchased each of
these items for his personal use and not as a gift for Pratte.
He testified about where and why the items were purchased
and how he paid for them. He often used cash and had very
little documentation to demonstrate ownership or proof of
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purchase. Pratte generally offered contradictory testimony and
documentation as to the purchase and ownership of the other
items of property. He admitted Zelenka paid for a few of the
disputed items, but claimed Zelenka purchased the items as
gifts for him.
3. District Court Order
At the close of the evidence, the district court ruled from
the bench. Regarding Pavlov, the court expressly found the
testimony of Zelenka was more credible and was corroborated
by the testimony of the breeder and Zelenka’s mother. The
court found Zelenka had “sustained his burden of proof that
. . . Pavlov was a gift” from Pratte and ordered Pratte to return
Pavlov to Zelenka within 48 hours. As to the other items of
personal property, the district court found Zelenka had failed
to meet his burden of proof and ordered the property to remain
with Pratte.
The court subsequently entered judgment in accordance with
its ruling from the bench and ordered each party to pay his own
attorney fees and costs. Pratte timely appealed, and Zelenka
cross-appealed.
II. ASSIGNMENTS OF ERROR
Pratte assigns the district court erred in finding Zelenka
met his burden of proving Pavlov was a gift. On cross-appeal,
Zelenka assigns the district court erred in finding he failed to
meet his burden of proof with respect to the other items of
personal property.
III. STANDARD OF REVIEW
[1] Actions for conversion and replevin are law actions.1 In
an action at law tried to the bench, a district court’s factual
1
See, Gallner v. Larson, 291 Neb. 205, 865 N.W.2d 95 (2015) (conversion);
Allemang v. Kearney Farm Ctr., 251 Neb. 68, 554 N.W.2d 785 (1996)
(replevin).
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findings and disposition have the same effect as a jury verdict
and will not be set aside unless clearly wrong.2
IV. ANALYSIS
1. Conversion or R eplevin
Before addressing the parties’ assignments of error, it is
necessary to clarify the nature of the action tried to the court.
Zelenka’s complaint styled his action as one for conversion,
but both parties tried the action as one seeking replevin.
Generally, the measure of damages for conversion is the fair
market value of the converted property at the time and place
of the conversion,3 while the object of a replevin action is to
recover specific personal property.4
Here, although the complaint was not styled as one for
replevin, the parties tried the case as one seeking the return
of specific personal property and neither party offered evi-
dence regarding the fair market value of the disputed prop-
erty. Throughout the trial, and in closing argument, Zelenka
specifically asked the trial court for the immediate return
of the personal property, including Pavlov. Pratte did not
object that replevin relief was being sought, and on appeal,
he does not assign error to the nature of the relief ordered by
the court.
Because the parties and the trial court treated this action as
one for replevin, it would have been preferable for Zelenka
to move to conform the pleadings to the evidence. But under
Nebraska’s pleading rules, his failure to formally seek amend-
ment is not dispositive.
Neb. Ct. R. Pldg. § 6-1115(b) provides in pertinent part:
When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be
2
See id.
3
NJI2d Civ. 4.27.
4
Pinnacle Bank v. Darlan Constr. Co., 270 Neb. 978, 709 N.W.2d 635
(2006). See, also, Neb. Rev. Stat. § 25-1093 (Reissue 2016).
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treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party
at any time, even after judgment; but failure so to amend
does not affect the result of the trial of these issues.
Here, despite styling the complaint as one for conversion,
the parties tried the action as one for replevin and treated the
case in all respects as if replevin had been raised in the plead-
ings. We conclude the parties impliedly consented to try this
action as one for replevin, and pursuant to § 6-1115(b), we
therefore treat this action as one in which replevin was raised
in the pleadings.5
[2] In a replevin case, the plaintiff has the burden to prove
by a preponderance of the evidence that at the time of the com-
mencement of the action (1) he was the owner of the property
sought, (2) he was entitled to immediate possession of the
property, and (3) the defendant wrongfully detained it.6
2. Pavlov
In this case, Zelenka claimed Pavlov was his personal prop-
erty, gifted to him by Pratte. Zelenka further claimed that after
he moved out of Pratte’s house, Pratte wrongfully refused to
return Pavlov to him. The district court found Zelenka proved
Pavlov was a gift from Pratte. On this record, we agree.
[3,4] To make a valid inter vivos gift, there must be an
intention to transfer title to property, delivery by the donor,
and acceptance by the donee.7 The person asserting the gift
must prove all the essential elements by clear, direct, positive,
5
See Blinn v. Beatrice Community Hosp. & Health Ctr., 270 Neb. 809, 815,
708 N.W.2d 235, 243 (2006) (“[e]ven when a party does not move for
leave to amend pleadings, a court may constructively amend pleadings on
unpleaded issues in order to render a decision consistent with the trial”).
6
Packett v. Lincolnland Towing, 227 Neb. 595, 419 N.W.2d 149 (1988).
7
See Ferer v. Aaron Ferer & Sons Co., 273 Neb. 701, 732 N.W.2d 667
(2007).
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express, and unambiguous evidence.8 We address each element
in turn.
(a) Donative Intent
[5] The donor must have a present donative intent and a
clear and unmistakable intent to make a gift.9 Here, the breeder
from whom Pavlov was purchased testified that Pratte con-
tacted her about purchasing a puppy as a gift for his boyfriend.
Zelenka and his mother both testified that Pavlov was given to
Zelenka as a birthday gift from Pratte. Although Pratte denied
Pavlov was a gift, the district court expressly found Zelenka’s
testimony on this issue was more credible and was corrobo-
rated by the testimony of the breeder and Zelenka’s mother. On
this record, there is clear and unmistakable evidence of Pratte’s
donative intent.
(b) Delivery and Acceptance
[6,7] Ordinarily, actual delivery is necessary where the
subject of the gift is capable of manual delivery, but where
actual manual delivery cannot be made, the donor may do that
which, under the circumstances, will in reason be considered
equivalent to actual delivery.10 And generally, the exercise by
the donee of dominion over the property which is the subject
of a gift, or an assertion of a right to the property by the donee,
generally will constitute an acceptance.11
[8] Here, the evidence shows that both delivery and accept
ance of the gift occurred when Zelenka picked Pavlov up from
the breeder and took possession of the dog. Ordinarily, for a
gift to be delivered, it must be shown that the owner parted
with dominion and control over the gift.12 But in this case, the
8
Id.
9
See id.
10
In re Estate of Lamplaugh, 270 Neb. 941, 708 N.W.2d 645 (2006).
11
38 Am. Jur. 2d Gifts § 28 (2010).
12
Id., § 19.
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breeder, and not Pratte, had dominion and control over Pavlov
before the gift was made.
[9] We have recognized that delivery can take place through
a third party,13 and here, the evidence was uncontroverted that
once Pavlov was ready to be adopted, the breeder relinquished
possession directly to Zelenka and gave Zelenka the necessary
paperwork to prove ownership of Pavlov. Zelenka accepted
both the dog and the paperwork and thereafter generally held
himself out as the owner of the dog.
[10] Pratte argues there was insufficient evidence of delivery
and acceptance, because it was uncontested that after Zelenka
took possession of Pavlov, he kept the dog at Pratte’s house.
But this fact is not incompatible with Zelenka’s dominion and
control over Pavlov, especially since Zelenka moved from
an apartment into Pratte’s home shortly thereafter. This court
has recognized that the subsequent possession of a gift by the
donor, while it may call for an explanation, is not necessarily
incompatible with the donee’s dominion over the property, and
will not necessarily operate to make the gift ineffectual.14 Here,
the fact that Pavlov was kept at Pratte’s home after the gift was
made is adequately explained by the fact that, for much of the
relevant time period, Pratte and Zelenka were living together as
a couple. We reject Pratte’s suggestion that this fact operates to
make the gift ineffectual.
We conclude Zelenka met his burden of proving Pavlov was
a gift from Pratte. Pratte’s assignment of error to the contrary
is without merit.
3. Cross-A ppeal R egarding
Other Personal Property
As noted, the parties both offered testimony as to the other
items of personal property. The district court found Zelenka
failed to meet his burden of proof as to these items. After
13
See Kennedy v. Nelson, 125 Neb. 185, 249 N.W. 546 (1933).
14
Id.
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reviewing the evidence adduced and testimony received, we
affirm in part, and in part reverse and remand with directions.
(a) Niche Couch, Niche Table Lamps,
and French Bulldog Lamp
Zelenka testified that during the relationship, he purchased a
leather couch and two table lamps from a store named “Niche,”
and he purchased a French bulldog table lamp from a national
retail store. Zelenka testified he purchased these items for his
own use, and not as gifts for Pratte.
Pratte agreed Zelenka purchased these items. He testified,
however, that all of the items were gifted to him by Zelenka.
Regarding the Niche lamps and the French bulldog lamp, Pratte
offered no evidence going to the essential elements of donative
intent, acceptance, or delivery. Because the undisputed evi-
dence was that these lamps were purchased by Zelenka, and
because Pratte failed to adduce evidence of the essential ele-
ments to support his claim they were gifts, the district court
erred in finding Zelenka failed to meet his burden of proof with
respect to these three lamps.
In support of his claim that the leather couch was a gift from
Zelenka, Pratte offered, and the court received, exhibit 27. That
exhibit is a printout of a social media post made by Pratte in
October 2012. The post includes a photograph of a fully fur-
nished living room with a leather couch, side chairs, a coffee
table, an entertainment center, and related furnishings. The
caption to this post reads “Early birthday surprise!!! Check out
this amazing f**king living room!!! Love you Peter Zelenka!”
The string of responses to this post includes one from Zelenka
stating, “Its not quite finished but its a good start!” According
to Pratte, these social media comments were referencing the
fact that Zelenka had redecorated their living room as a birth-
day surprise for Pratte.
As the one claiming the leather couch was a gift, Pratte had
the burden to prove the essential elements of donative intent,
delivery, and acceptance by clear, direct, positive, express, and
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unambiguous evidence.15 Here, the social media posting and
Pratte’s limited testimony about it were insufficient to establish
the leather couch was a gift. Pratte conceded as much on cross-
examination when he admitted that Zelenka’s comment in
exhibit 27 “doesn’t acknowledge intent, delivery, and accept
ance” regarding the leather couch.
On this record, we conclude Pratte failed to meet his burden
of proving the Niche leather couch, the Niche lamps, and the
French bulldog lamp were gifts. Because the evidence was
uncontroverted that Zelenka purchased these items and that
Pratte refused to return them, the trial court erred in conclud-
ing Zelenka had failed to meet his burden of proof. Consistent
with the manner in which the parties tried this case, these three
items should be returned to Zelenka.
(b) Other Items of Personal Property
We agree that Zelenka failed to meet his burden of proof
with respect to the other items of personal property. The
record shows the parties offered contradictory evidence with
respect to the ownership of these other items of property,
each asserting he was the respective purchaser. For example,
Zelenka adduced evidence that his mother gave him $500 to
purchase a Dyson animal vacuum and that he did so, but Pratte
had a receipt demonstrating he purchased a Dyson animal
vacuum. Zelenka testified he purchased patio furniture with
cash and put it together without Pratte’s knowledge, while
Pratte testified he purchased the patio furniture, Zelenka was
with him at the time of purchase, and they worked together
to construct the furniture. Zelenka testified he purchased the
African souvenirs with cash, while Pratte produced a receipt
indicating he had purchased the souvenirs. Contradictions
appear in the evidence with respect to all the other items of
personal property as well.
15
Ferer v. Aaron Ferer & Sons Co., supra note 7.
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The district court’s findings in this case have the same
effect as a jury verdict and will not be set aside unless clearly
wrong.16 Due to the contradictory nature of the evidence
regarding the other items of personal property, there is no basis
on which to set aside the district court’s finding that Zelenka
failed to meet his burden of proving ownership.
V. CONCLUSION
For the foregoing reasons, we affirm in part, and in part
reverse and remand with directions to enter judgment con
sistent with this opinion.
A ffirmed in part, and in part reversed
and remanded with directions.
16
See Gallner v. Larson, supra note 1.
|
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 3, 2017
Decided November 21, 2017
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16-1698
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern District
of Indiana, Indianapolis Division.
v.
No. 1:12CR00129-001
WILLIAM F. CONOUR,
Defendant-Appellant. Richard L. Young,
Judge.
ORDER
William Conour, a former attorney, pleaded guilty to wire fraud after the
government discovered he had swindled clients for years by stealing settlement
proceeds. The district court initially sentenced him to 10 years in prison followed by a
year of supervised release. But in a prior appeal we granted the parties’ joint motion for
resentencing in light of United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). On
remand the district court again sentenced Conour to 10 years, and he now argues that a
third sentencing is necessary. He contends that the court misunderstood the scope of a
Thompson remand and erred both by refusing to entertain arguments made in his
sentencing memorandum and by denying him the right to allocute. We agree and
remand again for resentencing.
No. 16-1698 Page 2
Conour practiced law for nearly forty years and built a lucrative practice
representing accident victims. Starting in 1999, he encouraged clients to leave him in
charge of their settlement proceeds, which he promised to hand over to a trust company
that would distribute the proceeds in a series of monthly payments instead of as a lump
sum. But he skimmed much of this settlement money for himself. Even worse,
sometimes he did not tell clients he had received their settlement proceeds (or even that
the case had settled) and instead simply stole the funds. Conour’s fraud finally came to
light when the FBI received a tip in 2011.
A year later Conour was charged with wire fraud, 18 U.S.C. § 1343. The charging
information alleges that, as part of a scheme to defraud, he had settled a client’s case by
faxing a release to an out-of-state insurance company. Conour received and negotiated
the $450,000 settlement check without telling his client or giving the client any part of
the funds. All told, the information accuses Conour of converting $4.5 million belonging
to over 25 clients.
Conour pleaded guilty. He stipulated that he had “devised and conducted a
scheme to defraud his clients out of money,” settled the client’s case without his
knowledge, faxed the agreement using interstate wires, and used the $450,000 to pay his
own expenses.
At his initial sentencing Conour conceded, through counsel, that the loss exceeds
$2.5 million, that the number of victims is greater than 10, and that he had abused a
position of trust. But he successfully contested several proposed increases to his offense
level, and the district court granted him a 3-level reduction for acceptance of
responsibility. Conour lost only two objections to upward adjustments: a 2-level
increase for targeting vulnerable victims and another 2-level increase for using
sophisticated means to commit the crime. After calculating a guidelines imprisonment
range of 97 to 121 months, the court sentenced Conour to 120 months plus a year of
supervised release. The court also imposed more than $6 million in restitution.
Conour appealed and filed a brief principally contending that the district court
had imposed several problematic conditions of supervised release. After briefing was
completed, we decided United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). In
response to our request for statements of position following Thompson, the parties filed
a joint motion requesting a remand for resentencing, which we granted.
On remand Conour represented himself and sought both to revisit old issues and
raise new ones. He first moved to dismiss the information and for bond pending
resentencing. The district court denied both motions, characterizing Conour’s motion to
dismiss as “a last ditch attempt to evade responsibility for his conduct.” Conour then
No. 16-1698 Page 3
submitted a resentencing memorandum, again challenging the upward adjustments for
targeting vulnerable victims and using sophisticated means. But he also argued for the
first time that the loss is zero; that the number of victims is 2, not 10 or more; that he did
not abuse a position of trust; and that he should not be ordered to pay any restitution.
The government replied that the district court’s rulings on old matters are law of
the case, and that Conour had waived his new arguments by not raising them at the
initial sentencing or on appeal. Alternatively, the government said it was prepared to
introduce evidence establishing the disputed guidelines matters. And since Conour
seemed to be renouncing his previous declarations of fault, the government also argued
that he should no longer receive the 3-level decrease for accepting responsibility.
The district judge did not delve into any of these issues at resentencing. At the
outset the judge said he would entertain “discussion regarding conditions of supervised
release” (as well as a second matter that Conour declined to pursue). But the judge
concluded that Conour had waived any objection to rulings made at the first sentencing
but not challenged on appeal. The judge reasoned that he was “not authorized by the
7th Circuit to reopen those matters.” And when asked by the prosecutor if he would
reassess prior rulings if authorized, the judge first said no, explaining that he still
thought 10 years was an appropriate sentence. But then the judge added that he was
incorporating the original sentencing into the record, and that he was “not authorized
to disturb that.” The judge then asked for comments about the appropriate conditions
of supervised release; Conour offered none, and the government proposed eliminating
supervised release entirely. The judge accepted that proposal and resentenced Conour
to 10 years’ imprisonment without any supervised release.
After the judge had pronounced this sentence, the prosecutor urged him to let
Conour speak about his efforts to rehabilitate himself in prison. At that point, the judge
told Conour that he could make a statement:
[Y]ou certainly have a right and an opportunity to make any statement
you wish to the Court regarding the issue of sentencing, any issues in
sentencing that I’m authorized to take a look at here; or for that matter,
anything that’s on your mind that is relevant to the matters we’re
discussing here today.
Conour then engaged the judge in a dialogue touching on his resentencing memo, and
the judge repeated his position that Conour had waived his arguments by not raising
them previously.
No. 16-1698 Page 4
On appeal Conour argues that the district judge erred by declining to conduct a
full resentencing. He says that his case is indistinguishable from United States v. Mobley,
833 F.3d 797, 803 (7th Cir. 2016), in which we remanded a second time for resentencing
because the sentencing judge had misunderstood the scope of a Thompson remand.
Similarly, says Conour, in his case the judge mistakenly believed that the remand was
limited to revising the conditions of supervised release and did not encompass
Conour’s other arguments. Moreover, the judge—again, as in Mobley—did not let
Conour allocute before pronouncing sentence. Thus, Conour concludes, we must again
remand for resentencing.
The government concedes that the district judge misunderstood the scope of the
remand and thus erred in thinking he lacked the authority to consider Conour’s
arguments. As we explained in Mobley, a district court may, following a Thompson
remand, “reconsider the sentence as a whole” in order to “effectuate its sentencing
intent.” 833 F.3d at 801. That means the sentencing court may, in its discretion, reassess
prior rulings and entertain entirely new contentions, even if they could have been
raised previously. See id. at 801–02.
The district court did not know about this discretion (understandably, since
Mobley had not even been argued). But the government says that knowing about it
would not have made a difference. According to the government, Conour’s case is
similar to United States v. Lewis, 842 F.3d 467, 474 & n.2 (7th Cir. 2016), in which we
concluded that a district court’s ignorance about its power to entertain new arguments
after a Thompson remand was harmless. The government contends that here the district
court “left no doubt” that it would not have exercised its discretion to hear Conour’s
arguments. And, the government continues, Conour’s resentencing memo contained
meritless arguments that could not have benefitted him.
Conour’s case, however, is closer to Mobley than to Lewis. In Lewis, the district
court had entertained the defendant’s renewed arguments and calculated a lower
imprisonment range before choosing to impose the same prison sentence as before.
842 F.3d at 472–73. Here, the district court apparently thought it could not adjust the
sentence. In Lewis, moreover, the district court alternatively considered the defendant’s
newly raised argument and rejected it on the merits, id. at 472, but in this case the judge
did not share his views about any of Conour’s arguments. The prosecutor did press the
judge to say whether he would reassess his earlier rulings if allowed; the judge said no,
but it is difficult to say if “no” meant that the judge would not or could not. After all, the
exchange between them ended with the judge’s comment that he was “not authorized
to disturb” the record from the original sentencing. The judge’s “no” might suggest
No. 16-1698 Page 5
disinterest in rehashing issues already litigated, but that is far from certain; in short, his
comments offer no insight about his willingness to consider the new arguments in
Conour’s resentencing memo.
Finally, in Lewis we were able to assess the defendant’s argument because the
district court had evaluated the merits and factual findings were unnecessary. But here
the district judge did not consider Conour’s new arguments. And Conour’s principal
contention about the amount of loss is a factual inquiry. See United States v. Locke,
643 F.3d 235, 244–45 (7th Cir. 2011); United States v. Barnhart, 599 F.3d 737, 747–48
(7th Cir. 2010). As in Mobley, the record shows that the district judge mistakenly
believed that the remand was limited to revising the conditions of supervised release
and thus thought he “had no discretion to hear new arguments (including ones not
raised at any earlier stage), to hear new mitigation evidence, and to reconsider
arguments made in an earlier sentencing hearing.” 833 F.3d at 803.
We are skeptical, though, that the contentions in Conour’s resentencing memo
will help his cause. If anything, the district court seemed to conclude that those
arguments weigh against him, rather than in his favor. Still, even if we could accept the
government’s assertion that futility makes the judge’s mistake about Thompson
harmless, the judge committed a second procedural error that warrants another
resentencing: he did not invite Conour to allocute before imposing sentence.
See FED. R. CRIM. P. 32(i)(4)(A)(ii).
Before a district court imposes sentence, it must invite the defendant personally
to speak and give any information that might mitigate his sentence. Id. This right to
allocute “is the right to have your request for mercy factored into the sentencing
decision.” United States v. Barnes, 948 F.2d 325, 329 (7th Cir. 1991). It is a personal right
and separate from counsel’s presentation because even “[t]he most persuasive counsel
may not be able to speak for a defendant as the defendant might, with halting
eloquence, speak for himself.” Green v. United States, 365 U.S. 301, 304 (1961)
(Frankfurter, J., plurality opinion). And on a full remand, like Conour’s, the defendant
has “no sentence until the district court imposes a new one,” so his right to personally
address the court is “revived” on remand. Mobley, 833 F.3d at 802; see Barnes, 948 F.2d
at 330. Thus, Conour was entitled to again address the district court before sentence was
imposed, but that opportunity was withheld. He did not object to the denial, though, so
we review for plain error. Mobley, 833 F.3d at 803. That standard is met here.
The government says that plain error did not occur because Conour had “ample
opportunity to address the district court” and identifies several occasions when he
spoke at the resentencing. This misses the point. The rule requires that allocution
No. 16-1698 Page 6
precede the court’s selection of a sentence, but Conour’s opportunity to speak at any
length came after the court already had sentenced him. Before imposing the sentence,
the judge asked Conour, who was proceeding pro se, only about the two issues he had
raised in his first appeal.
A belated allocution is error unless the district court puts aside its original
determination and takes “steps to communicate effectively to the defendant that, through
his statement, he has a meaningful opportunity to influence the sentence.” United States
v. Luepke, 495 F.3d 443, 450 (7th Cir. 2007) (emphasis in original); see Barnes, 948 F.2d
at 331 & n.5. After imposing sentence and then being reminded by the government
about Conour’s right to speak, the district judge invited Conour to address the court.
But the judge did not set aside the sentence before hearing from Conour or give any
assurances that he would reconsider the sentence already imposed.
We “presume prejudice when there is any possibility that the defendant would
have received a lesser sentence had the district court heard from him before imposing
sentence.” Luepke, 495 F.3d at 450. The government does not concede that Conour was
denied his right to allocute, so it makes no effort to refute this presumption. And we
cannot say with certainty that Conour would not have received a lesser sentence had he
been afforded the opportunity to allocute.
Still, we are not required to grant Conour relief, but we may if we determine that
the error “seriously affect[s] the fairness, integrity, or public reputation of the judicial
proceedings.” Luepke, 495 F.3d at 451 (quoting Johnson v. United States, 520 U.S. 461, 467
(1997)). Ordinarily we will remand when the right to allocute has been denied, “absent
some rare indication from the face of the record” that the denial did not affect the
fairness of the sentencing process. Luepke, 495 F.3d at 452; see United States v. Pitre,
504 F.3d 657, 663 (7th Cir. 2007).
The government argues that the procedures here were not unfair to Conour.
Essentially the government suggests that Conour received the same reconsideration
that other defendants receive when we direct a limited remand for reconsideration of
the supervised-release portion of their sentences, except that Conour also personally
addressed the court. Once again, the government misses the point. The government
joined Conour in asking for a Thompson remand, which is a remand for a full
resentencing, not a limited remand. Perhaps the government did not understand what it
agreed to, but it must accept that we did what it asked and gave Conour a clean slate,
which revived his right to allocute. See Mobley, 833 F.3d at 802.
We conclude that Conour’s inability to allocute before he was sentenced did
“seriously affect” the fairness of the proceedings. Conour was not given an opportunity
No. 16-1698 Page 7
to speak about anything that might have mitigated his prison sentence—whether it was
his rehabilitative efforts in prison, an explanation of his criminal actions, or even a
rehashing of the arguments in his resentencing memo—before the judge imposed a
sentence that was near the top of the guidelines imprisonment range. And, unlike in the
majority of cases, Conour did not have counsel to voice arguments in mitigation on his
behalf. Additionally, as the Tenth Circuit recently explained, even in circumstances
where a lesser sentence might be unlikely, denying the defendant a chance to allocute
undermines other values connected to the allocution, including giving him the chance
to accept responsibility and providing the court with a better understanding of him.
See United States v. Bustamante-Conchas, 850 F.3d 1130, 1142 (10th Cir. 2017). These
circumstances, coupled with the district judge’s erroneous belief that he could not
entertain Conour’s arguments about the guidelines calculations, might give the wrong
impression to Conour and the public that the court imposed a predetermined (and,
indeed, previously imposed) sentence.
Moreover, this case is unlike others in which we have declined to remedy
allocution errors. The government has cited only one example where we did not
remand for resentencing despite an allocution error. In United States v. Noel, 581 F.3d
490, 504 (7th Cir. 2009), we concluded that even though the district court did not
personally invite the defendant to allocute at sentencing, the fairness of the process was
not affected because the judge twice mentioned the right to allocute before imposing
sentence, defense counsel read aloud a letter from the defendant that was structured
similarly to an allocution, and the defendant received a sentence below the guidelines
range. Differences in Noel and Conour’s case abound: Conour was not informed of his
right to address the court nor did he get to speak at any length before receiving his
sentence at the high end of the guidelines range.
Apart from Noel, we are aware of only one other case in which we declined to
remand, but that case involved revocation of supervised release. See Pitre, 504 F.3d
at 663. The right to allocute at a revocation hearing is the same as at sentencing.
See id. at 662. But Pitre also is distinguishable from Conour’s case because the court in
Pitre already had warned the defendant that she would receive a particular prison term
if she again violated the conditions of her supervised release and then the court
followed through the next time she broke her promise to abide by the conditions of
release. Id. at 663. We concluded that denying the defendant her right to allocute did
not affect the fairness of the proceedings because she knew she would receive a prison
term of that length and her lawyer did not attempt to contest the term of imprisonment
at the revocation hearing. Id. At Conour’s resentencing, by contrast, the judge was not
No. 16-1698 Page 8
simply implementing a predetermined prison term and Conour, as shown by his
resentencing memo, did wish to speak to the court about the length of his sentence.
Finally, Conour asks that we reassign the case to a different district judge
pursuant to Circuit Rule 36. But we see no reason why the district judge would be
unable to fairly consider the issues on remand; he exhibited a willingness to comply
with the court’s remand order and showed no bias against Conour. See United States v.
Tova-Pina, 713 F.3d 1143, 1148 (7th Cir. 2013).
Accordingly, we vacate the sentence and remand for resentencing.
|
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ABDULLAH WAZIR ZADRAN, )
et al., )
)
Petitioners, )
)
v. ) Civil Action No. 05-2367 (RWR)
)
BARACK H. OBAMA et al., )
)
Respondents. )
______________________________)
ORDER
The May 12, 2011 order issued by Judge Hogan granted the
government’s motion to designate as protected under the
Protective Order governing the Guantánamo Bay detainee litigation
“sensitive but unclassified information falling within one of the
following six categories”:
1. Names and/or other information that would tend to
identify certain U.S. government employees, FBI Joint
Terrorism Task Force members, or contractors —
specifically, law enforcement officers, agents,
translators, intelligence analysts, or interrogators,
all below the Senior Executive Service or General
Officer level — [or] the family members of detainees.
2. Information that would reveal the existence, focus,
or scope of law enforcement or intelligence operations,
including the sources, witnesses, or methods used and
the identity of persons of interest.
3. Information indicating the names or locations,
including geo-coordinates, of locations of interest as
they pertain to counter-terrorism intelligence
gathering, law enforcement, or military operations,
where the Government has not previously acknowledged
[publicly] its knowledge of those names or locations.
-2-
4. Information that would reveal the Government’s
knowledge of telephone numbers, websites, passwords,
passcodes, and e-mail addresses used by known or
suspected terrorists, or discussions of the manner in
which known or suspected terrorists use these methods
for communications with one another.
5. Information regarding the use, effectiveness, or
details regarding the implementation of certain
interrogation approaches and techniques approved by
Executive Order 13491 and described in the Army Field
Manual No. 2-22.3.
6. Certain administrative data, operational
“nicknames,” code words, dates of acquisition,
including dates of interrogations, and FBI case names
and file numbers, contained in the intelligence
documents included in the factual returns.
In re Guantánamo Bay Detainee Litig., 787 F. Supp. 2d 5, 8
(D.D.C. 2011). The respondents have filed an unopposed motion to
deem protected information highlighted in the proposed factual
return for petitioner Mohammad Rahim. Upon review of the
material submitted by the respondents, it is hereby
ORDERED that the respondents’ motion [379] to deem as
protected the material highlighted in the accompanying proposed
public factual return be, and hereby is, GRANTED, and the
information identified by the respondents with gray and green
highlighting in the version of the factual return submitted under
seal is deemed protected under paragraphs 10 and 34 of the
Protective Order governing the Guantánamo Bay detainee
litigation. It is further
ORDERED that the parties confer and agree upon a properly
redacted version of this factual return that addresses and
-3-
resolves all the concerns of the parties, and that the parties
agree can be filed on the public docket. Respondents shall file
that version by March 9, 2012.
SIGNED this 7th day of February, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge
|
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, Nos. 07-50240
09-50081
v.
D.C. No.
BRYAN LAURIENTI, a/k/a BRYAN CR-03-00620-TJH-
ANTHONY LAURIENTI, 03
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-50358
DONALD SAMARIA, akas Donald S. D.C. No.
Samaria, Donald Samuel Samaria, CR-03-00620-TJH-8
Jr., Donny Samaria, Don Samaria,
Donald Samuel Samaria,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-50365
v. D.C. No.
CR-03-00620-TJH-
DAVID MONTESANO, 05
Defendant-Appellant.
8193
8194 UNITED STATES v. LAURIENTI
UNITED STATES OF AMERICA, No. 07-50367
Plaintiff-Appellee, D.C. No.
v. CR-03-00620-TJH-
CURTISS PARKER, 06
Defendant-Appellant.
OPINION
Appeals from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Argued and Submitted
April 8, 2010—Pasadena, California
Filed June 8, 2010
Before: Barry G. Silverman and Susan P. Graber, Circuit
Judges, and Frederick J. Scullin, Jr.,* District Judge.
Opinion by Judge Graber
*The Honorable Frederick J. Scullin, Jr., Senior United States District
Judge for the Northern District of New York, sitting by designation.
8198 UNITED STATES v. LAURIENTI
COUNSEL
Dennis P. Riordan, Riordan & Horgan, San Francisco, Cali-
fornia; Jonathan D. Libby, Deputy Public Defender, Los
Angeles, California; Karen L. Landau, Oakland, California;
and Irene P. Ayala, Los Angeles, California, for the
defendants-appellants.
Ellen R. Meltzer, Fraud Section, Criminal Division, United
States Department of Justice, Washington, D.C., for the
plaintiff-appellee.
UNITED STATES v. LAURIENTI 8199
OPINION
GRABER, Circuit Judge:
After the collapse of a securities fraud “pump and dump”
scheme, the government indicted the owners, managers, and
senior brokers of a securities broker-dealer firm. The owners
and managers pleaded guilty to charges of criminal securities
fraud, but the senior brokers, including Defendants Bryan
Laurienti, Curtiss Parker, Donald Samaria, and David Monte-
sano, pleaded not guilty. Defendants conceded that a fraudu-
lent scheme existed but argued that they had not joined the
conspiracy or engaged in fraudulent acts; rather, they were
innocent brokers selling stocks to their clients, caught in the
government’s overly wide criminal dragnet. The jury found
otherwise and convicted Defendants on all counts. Defendants
appeal their convictions and sentences. We affirm Defen-
dants’ convictions but vacate their sentences and remand for
resentencing.
FACTUAL AND PROCEDURAL HISTORY
Hampton Porter Investment Bankers, LLC (“Hampton Por-
ter”), was a securities broker-dealer firm registered with the
United States Securities and Exchange Commission (“SEC”).
In the late 1990s and early 2000s, Hampton Porter’s owners
and top-level managers engaged in what is known as a “pump
and dump” scheme. Certain publicly traded companies
granted Hampton Porter (or its owners) large blocks of free,
or deeply discounted, stock. In return, Hampton Porter drove
up the price of these thinly traded stocks by pressuring unsus-
pecting clients into purchasing shares, by strongly discourag-
ing clients from selling shares, and by refusing in some
instances to execute clients’ sales orders. In the meantime,
Hampton Porter and others who stood to benefit from the
scheme sold their shares at artificially inflated prices. See gen-
erally United States v. Zolp, 479 F.3d 715, 717 n.1 (9th Cir.
8200 UNITED STATES v. LAURIENTI
2007) (describing a “pump and dump” scheme); United States
v. Skelly, 442 F.3d 94, 96-97 (2d Cir. 2006) (same).
When the stock market fell sharply in 2000, Hampton Por-
ter’s scheme crashed with it. Hampton Porter went out of
business in 2001. After an investigation, the government
indicted Hampton Porter’s owners, managers, and senior bro-
kers.1 The indictment alleges that the defendants participated
in a securities fraud conspiracy, in violation of 18 U.S.C.
§ 371, 15 U.S.C. § 78j(b), and 15 U.S.C. § 78ff and, by incor-
poration, 17 C.F.R. § 240.10b-5. The indictment alleges that
the “purpose of the conspiracy was to enrich defendants and
their co-conspirators by means of the fraudulent sales of
securities to the customers of Hampton Porter.” The indict-
ment also alleges additional counts against individual defen-
dants in connection with specified stock purchases for acts
committed “in furtherance of the fraudulent scheme.”
The government’s investigation uncovered overwhelming
evidence that the criminal conspiracy existed and that the
owners and managers were complicit. The owners and man-
agers pleaded guilty to various charges and, in plea agree-
ments, agreed to testify against the senior brokers, who are
Defendants here. Defendants pleaded not guilty, and the dis-
trict court presided over a 14-day jury trial.2
Much of the testimony and documentary evidence at trial
concerned Defendants’ receipt of “bonus commissions” when
a client purchased shares of four targeted stocks, referred to
by Defendants as “house stocks.”3 The commission structure
1
The government also initiated civil proceedings against Hampton Por-
ter and its employees. Evidence of those proceedings was not admitted at
trial, and they are not relevant to these appeals.
2
The trial also included charges against Defendant Michael Losse. The
jury acquitted him on all counts, and he is not a party to this appeal. The
term “Defendants” refers to the four Defendants that bring these consoli-
dated appeals.
3
Defendants’ use of the term “house stock” is not entirely consistent.
For purposes of this opinion, we use the term to encompass all four stocks
that generated bonus commissions for Hampton Porter’s brokers.
UNITED STATES v. LAURIENTI 8201
worked in the following manner. On the purchase of all
stocks, the client paid a sales commission—typically $100.
The brokers fully disclosed that sales commission, and the cli-
ent’s copy of the transaction ticket reflected the commission.
Out of that sales commission, Hampton Porter paid its brokers
a predetermined percentage, typically 50%, for a resulting
regular commission of $50. As an incentive to the brokers to
push house stocks, however, Hampton Porter offered a “bonus
commission,” which Hampton Porter paid the brokers in addi-
tion to the regular commission. The bonus commission typi-
cally amounted to 5% of the purchase price of the house
stock. The bonus commissions were paid directly by Hampton
Porter, not by the clients. Neither the brokers nor the transac-
tion tickets disclosed to clients the existence of bonus com-
missions. In summary, for a purchase of non-house stock, a
broker received $50; but for a purchase of house stock, a bro-
ker received $50 plus 5% of the purchase price.
Two simple examples illustrate the dramatic difference
between the broker’s commission on a client’s purchase of a
non-house stock and the broker’s commission on a client’s
purchase of a house stock. Suppose that a client bought
$30,000 worth of a non-house stock and that Hampton Porter
charged its standard $100 sales commission. The client would
pay $30,100, and the broker would receive a $50 commission.
Now assume instead that a client bought $30,000 worth of a
house stock and that Hampton Porter charged its standard
$100 sales commission. The client again would pay $30,100.
But this time, the broker would receive the $50 sales commis-
sion plus a bonus commission of $1,500. In summary, a cli-
ent’s purchase of $30,000 worth of stock would result in
either a total commission of $50 or a total commission of
$1,550—depending only on whether the stock purchased was
a house stock.4
4
The difference in commission becomes even more stark as the pur-
chase amount increases. It was not unusual for a client of Hampton Porter
to purchase hundreds of thousands of dollars worth of stock, resulting in
total commissions of tens of thousands of dollars for house-stock
purchases—compared to only $50 if the broker sold the same amount of
a non-house stock.
8202 UNITED STATES v. LAURIENTI
Additionally, bonus commissions could be lost. Generally
speaking, if the client sold shares of a house stock, the broker
would lose the bonus commission that he or she had earned
on the original purchase of the house stock. The brokers
attempted to avoid the loss of the bonus commission in sev-
eral ways. First, and most simply, the brokers dissuaded the
client from selling the house stock. Second, if the broker
could find another client to purchase the house stock, he or
she executed a “cross-trade” between clients. Although the
specifics of the transaction were unknown to the two clients,
the selling client sold his or her shares of the house stock to
the purchasing client. In this way, the total number of shares
owned by Hampton Porter clients as a group would be unaf-
fected. Third, in some instances, the broker executed unautho-
rized purchases of the house stock by another, unsuspecting
client.
The government introduced overwhelming and uncontested
evidence that Defendants knowingly received bonus commis-
sions. Several of Defendants’ former clients testified that
Defendants used high-pressure sales tactics to persuade them
to buy house stocks and that Defendants strongly discouraged
the sale of house stocks. They testified that, had they known
of the bonus commissions, they would not have bought the
house stocks. They also testified to unauthorized purchases in
their accounts and other illicit behavior by Defendants, such
as lying and failing to carry out their express instructions.
Finally, the government introduced uncontested evidence that
all Defendants except Laurienti regularly executed trades
without the necessary licenses.
The jury found Defendants guilty on all counts. Although
the jury convicted each Defendant of more than one count, the
district court imposed only one sentence by operation of
U.S.S.G. § 3D1.2(d), which mandates that “counts involving
substantially the same harm shall be grouped together.” The
district court imposed sentences ranging from 30 months’
imprisonment to 52 months’ imprisonment. Each sentence is
UNITED STATES v. LAURIENTI 8203
below the corresponding Guidelines range. The district court
also ordered that each Defendant pay restitution in amounts
ranging from approximately $300,000 to approximately $2.7
million. In these consolidated appeals, Defendants timely
appeal their convictions and their sentences.
DISCUSSION
I. Challenges to the Convictions
A. Duty to Disclose Bonus Commissions
Section 10(b) of the Securities Exchange Act of 1934
states:
It shall be unlawful for any person, directly or
indirectly, by the use of any means or instrumental-
ity of interstate commerce or of the mails, or of any
facility of any national securities exchange—
....
(b) To use or employ, in connection with the pur-
chase or sale of any security registered on a national
securities exchange or any security not so registered,
or any securities-based swap agreement (as defined
in section 206B of the Gramm-Leach-Bliley Act),
any manipulative or deceptive device or contrivance
in contravention of such rules and regulations as the
Commission may prescribe as necessary or appropri-
ate in the public interest or for the protection of
investors.
15 U.S.C. § 78j (emphasis added). The relevant SEC regula-
tion, Rule 10b-5, states:
It shall be unlawful for any person, directly or
indirectly, by the use of any means or instrumental-
8204 UNITED STATES v. LAURIENTI
ity of interstate commerce, or of the mails or of any
facility of any national securities exchange,
(a) To employ any device, scheme, or artifice to
defraud,
(b) To make any untrue statement of a material
fact or to omit to state a material fact necessary in
order to make the statements made, in the light of the
circumstances under which they were made, not mis-
leading, or
(c) To engage in any act, practice, or course of
business which operates or would operate as a fraud
or deceit upon any person, in connection with the
purchase or sale of any security.
17 C.F.R. § 240.10b-5.
Violations of section 10(b) and Rule 10b-5 can give rise to
both civil liability and criminal liability. See, e.g., Chiarella
v. United States, 445 U.S. 222 (1980) (criminal charges);
Desai v. Deutsche Bank Sec. Ltd., 573 F.3d 931 (9th Cir.
2009) (per curiam) (civil class action brought by individual
investors); SEC v. Talbot, 530 F.3d 1085 (9th Cir. 2008) (civil
charges brought by the SEC); see also 15 U.S.C. § 78ff
(imposing criminal liability for certain violations of securities
law). Here, the government brought criminal charges for will-
ful violations of section 10(b) under 15 U.S.C. § 78ff(a).
Count One of the indictment alleges that Defendants con-
spired to commit securities fraud, in violation of 18 U.S.C.
§ 371. The individual counts allege that Defendants individu-
ally acted, or aided and abetted an act, in furtherance of the
fraudulent scheme in connection with specified client pur-
chases of house stocks.
The government’s overarching theory of the case is that
Hampton Porter’s owners, its managers, and Defendants con-
UNITED STATES v. LAURIENTI 8205
spired to engage in, and did engage in, a “pump and dump”
scheme. Hampton Porter artificially inflated the price of
house stocks by fraudulently selling shares to unwitting cli-
ents, the owners and managers benefitted by selling their
shares of house stocks at an artificially high price, and the
brokers benefitted by collecting undisclosed bonus commis-
sions.
1. Viable Legal Theory
[1] One of the government’s theories of guilt was that
Defendants, with intent to defraud, failed to disclose to their
clients their receipt of bonus commissions on purchases of the
four house stocks. Defendants do not dispute, and overwhelm-
ing evidence supports the finding, that they received bonus
commissions and that they failed to disclose the bonus com-
missions to their clients. Instead, Defendants argue that their
failure to disclose is not a legal violation of any sort, espe-
cially not a criminal violation. Whether, and in what circum-
stances, a broker’s failure to disclose bonus commissions can
give rise to criminal liability is a pure question of law. “We
review questions of law de novo.” United States v. Green, 592
F.3d 1057, 1063 (9th Cir. 2010).
Before addressing that legal question, however, it is impor-
tant to note that Defendants were not necessarily charged with
their failure to disclose the bonus commissions. To prove the
conspiracy count, the government had to show that a conspir-
acy to defraud existed, that a particular defendant knew the
purposes of the conspiracy and joined the conspiracy, and that
some member of the conspiracy (including the owners and
managers) performed an overt act in furtherance of the con-
spiracy. United States v. Boone, 951 F.2d 1526, 1543 (9th Cir.
1991). The conspiracy at issue here is the overall “pump and
dump” scheme. Defendants did not challenge, and over-
whelming evidence supports the finding, that the conspiracy
existed and that at least one member of it performed an overt
act.
8206 UNITED STATES v. LAURIENTI
Defendants’ primary defense was that they had not joined
the conspiracy.5 Even if the jury had been instructed that dis-
closure of bonus commissions is not required by any law, a
reasonable juror nevertheless could have concluded that
Defendants intentionally acted contrary to the interests of
their clients by pushing house stocks as part of a fraudulent
scheme to line Defendants’ pockets without regard for the
interests of their clients. The undisclosed bonus commissions
—even if not independent criminal conduct—are nevertheless
circumstantial evidence of Defendants’ agreement to join the
conspiracy. In short, even if the failure to disclose was per-
fectly legal in all circumstances, the government still met its
burden to establish a conspiracy.6
In the final analysis, however, the government offered evi-
dence of Defendants’ failure to disclose the bonus commis-
sions not only as circumstantial evidence of their agreement
to join and carry out the conspiracy but also as an independent
violation of Rule 10b-5. Because that theory indisputably was
5
The elements of the conspiracy itself and the overt act were common
to all five Defendants, and the evidence on those elements was uncontested
and overwhelming. Because the jury convicted the four Defendants who
join in this appeal, but acquitted Defendant Losse, it apparently found that
the two common elements were met, but that the defendant-specific
element—agreement to the conspiracy—was met in all cases except
Defendant Losse’s.
6
A similar analysis applies to the individual counts. To prove the indi-
vidual counts, the government had to show, among other things, that the
defendant violated one of the prongs of Rule 10b-5 willfully and with the
intent to defraud. Once the jury found that Defendants had joined the
“pump and dump” conspiracy, it easily could conclude that Defendants’
role in the individual purchases of house stock was, for instance, an
employment of the overall scheme to defraud, in violation of Rule 10b-5.
Once Defendants agreed to the “pump and dump” scheme, their fraudulent
conduct in selling the stock to unsuspecting clients constituted a securities
violation because it was in furtherance of, and part of, the overall scheme
to defraud. Again, the undisclosed bonus commissions—even if not crimi-
nal conduct—are nevertheless circumstantial evidence of Defendants’
intent to mislead their customers.
UNITED STATES v. LAURIENTI 8207
one of the government’s theories of guilt, Defendants’ chal-
lenges to that theory must be addressed, even though the gov-
ernment did not have to advance that theory of guilt and even
though the government also presented other theories of guilt.
We turn, then, to whether, and (if so) in what circum-
stances, a broker’s failure to disclose bonus commissions can
give rise to criminal liability. Defendants argue that there is
never a duty to disclose bonus commissions. In response, the
government does not assert that a broker always owes a duty
to disclose bonus commissions. Instead, it argues that the fail-
ure to disclose the bonus commissions, coupled with Defen-
dants’ intent to defraud, constituted criminal conduct if, but
only if, (1) Defendants had a fiduciary or similar relationship
of trust and confidence with their clients and (2) the failure to
disclose the bonus commissions was a “material” omission.
We begin with the Supreme Court’s discussion of the
boundaries of criminal liability for a person trading on “inside
information.” In Chiarella, 445 U.S. at 224, the defendant
gleaned confidential information about third-party corpora-
tions through his job as a printer in New York. Capitalizing
on this “inside information,” the defendant made substantial
profits by trading in the stock market. Id. The government
indicted the defendant for violations of section 10(b) and Rule
10b-5, Chiarella, 445 U.S. at 225, the same statute and regu-
lation at issue here. The district court instructed the jury to
convict the defendant “if it found that [the defendant] will-
fully failed to inform sellers of target company securities that
he knew of a forthcoming takeover bid that would make their
shares more valuable.” Id. at 226. The Supreme Court granted
certiorari “to decide whether silence in such circumstances
violates § 10(b),” characterizing the issue as “whether silence
may constitute a manipulative or deceptive device” under sec-
tion 10(b). Id.
In a footnote, the Court noted that the defendant was
charged only with violations of subsections (a) and (c) of Rule
8208 UNITED STATES v. LAURIENTI
10b-5, and not subsection (b) of the Rule. Chiarella, 445 U.S.
at 225 n.5. Subsections (a) and (c) of Rule 10b-5 prohibit
fraudulent devices, schemes, acts, or practices. Subsection (b)
of Rule 10b-5 prohibits the telling of material lies and prohib-
its the telling of material half-truths, where the speaker
“omit[s] to state a material fact necessary in order to make the
statements made, in the light of the circumstances under
which they were made, not misleading.” In Chiarella, because
the defendant had not made any statements to the sellers of
the stocks—and, a fortiori, no misleading or false statements
—the government did not charge the defendant with a viola-
tion of subsection (b). 445 U.S. at 225 n.5.
Addressing the facts of that case, the Court held that,
“[w]hen an allegation of fraud is based upon nondisclosure,
there can be no fraud absent a duty to speak.” Id. at 235. Bor-
rowing from the Restatement (Second) of Torts, the Court
held that “the duty to disclose [material information] arises
when one party has information ‘that the other [party] is enti-
tled to know because of a fiduciary or other similar relation
of trust and confidence between them.’ ” Id. at 228 (alter-
ations in original) (quoting Restatement (Second) of Torts
§ 551(2)(a) (1976)). In holding that the defendant had no duty
to speak, the Court found persuasive that the defendant “was
not [the sellers’] agent, he was not a fiduciary, he was not a
person in whom the sellers had placed their trust and confi-
dence. He was, in fact, a complete stranger who dealt with the
sellers only through impersonal market transactions.” Id. at
232-33.
[2] In conclusion, under Chiarella, a party has a duty to
disclose material “inside information” to another party only if
there is a fiduciary relationship or a similar relationship of
trust and confidence between the parties—at least with respect
to alleged violations of subsections (a) and (c) of Rule 10b-5.
[3] In United States v. Szur, 289 F.3d 200, 211 (2d Cir.
2002), the Second Circuit applied the general Chiarella rule
UNITED STATES v. LAURIENTI 8209
to the specific context here: a broker’s failure to disclose com-
missions. The Second Circuit held that, “when dealing with a
claim of fraud based on material omissions, it is settled that
a duty to disclose ‘arises [only] when one party has informa-
tion that the other [party] is entitled to know because of a
fiduciary or other similar relation of trust and confidence
between them.’ ” Id. (alteration in original) (quoting Chia-
rella, 445 U.S. at 228). That court approved of the following
jury instruction given by the district court, which stated in
pertinent part:
Whether a fiduciary relationship exists is a matter of
fact for you, the jury, to determine. At the heart of
the fiduciary relationship lies reliance and de facto
control and dominance . . . . One acts in a fiduciary
capacity when the business with which he or she
transacts, or the money or property which he or she
handles, is not his or her own or for his or her own
benefit, but for the benefit of another person, as to
whom he or she stands in a relation implying and
necessitating great confidence and trust on the one
part and a high degree of good faith on the other
part.
Id. at 210.
In Skelly, 442 F.3d at 96-99, the Second Circuit in another
criminal case again addressed the issue raised by the parties
here: whether a stock broker has a duty to disclose bonus
commissions. That court again approved of the jury instruc-
tion given in Szur and made clear that a proper jury instruc-
tion in this context must include “the elements of ‘reliance
and de facto control and dominance.’ ” Id. at 99. Concerning
when a fiduciary duty arises, the court elaborated that,
while there is no general fiduciary duty inherent in
an ordinary broker/customer relationship, a relation-
ship of trust and confidence does exist between a
8210 UNITED STATES v. LAURIENTI
broker and a customer with respect to those matters
that have been entrusted to the broker. Most com-
monly, this relationship exists in situations in which
a broker has discretionary authority over the custom-
er’s account, but we have recognized that particular
factual circumstances may serve to create a fiduciary
duty between a broker and his customer even in the
absence of a discretionary account.
Id. at 98 (citations and internal quotation marks omitted).
[4] We agree with the Second Circuit that, when a relation-
ship of trust and confidence exists between a broker and a cli-
ent, a broker must disclose all facts material to that
relationship. We therefore adopt the Second Circuit’s
approach and hold that the general Chiarella rule applies to
a broker’s duty to disclose material information: A broker has
a duty to disclose material information about a stock purchase
if the broker and client have a fiduciary relationship or a simi-
lar relationship of trust and confidence. (As a convenient
shorthand, we will refer to “a fiduciary relationship or a simi-
lar relationship of trust and confidence” as a “trust relation-
ship.”)
Although Chiarella concerned the use of “inside informa-
tion,” the foundation for the Supreme Court’s rule was the
general law of torts and, more specifically, the rule that per-
sons in trust relationships have greater duties to each other
than do persons involved in arms-length transactions. The
Second Circuit’s holding that this general rule applies to the
situation at issue here logically applies that rule. Defendants
do not make any arguments,7 and we can think of none, why
7
Defendants quote from a civil case, Benzon v. Morgan Stanley Dis-
tribs., Inc., 420 F.3d 598, 612 (6th Cir. 2005), in which the Sixth Circuit
held that the defendant brokers did not have a duty to disclose to their cli-
ents that they earned more from selling Morgan Stanley mutual funds than
from selling other mutual funds. In this regard, the Sixth Circuit held that
UNITED STATES v. LAURIENTI 8211
the general Chiarella rule should not apply here. Accordingly,
we reject Defendants’ argument that a broker never has a duty
to disclose bonus commissions.
Our holding today is somewhat more limited than the Sec-
ond Circuit’s approach, which reached all of Rule 10b-5. As
noted above, the Supreme Court’s opinion in Chiarella
addressed whether silence could constitute a manipulative
device when a defendant is charged under subsections (a) and
(c) of Rule 10b-5. The defendant in that case had not made
any statements to anyone, so the Court naturally addressed
whether the law imposed a duty to speak. By contrast, where,
as here, a defendant is charged under subsection (b) of Rule
10b-5 and has made many statements to his clients, criminal
liability may encompass the failure to disclose bonus commis-
sions even in the absence of a trust relationship. Under sub-
section (b) of Rule 10b-5, even in the absence of a trust
relationship, a broker cannot affirmatively tell a misleading
half-truth about a material fact to a potential investor. That
requirement is entirely consistent with the Supreme Court’s
holding that there can be no fraud absent a duty to speak: The
duty to disclose in these circumstances arises from the telling
of a half-truth, independent of any responsibilities arising
from a trust relationship.
[5] But we need not decide whether that theory of guilt is
viable, and we expressly leave the question open for another
no duty arose because “Plaintiffs have pointed [to] no statutory or regula-
tory requirement that Defendants disclose that their brokers earn more for
selling their own mutual funds. Because Plaintiffs have failed to identify
the source of Defendants’ alleged duty to disclose,” the court held that no
duty existed. Id. At no point in the opinion does the Sixth Circuit mention
the potential for a duty arising from a trust relationship; it appears that the
plaintiffs simply did not argue that the brokers had a trust relationship with
the plaintiffs that would have given rise to the duty to disclose. Accord-
ingly, Benzon is consistent with the Supreme Court’s decision in Chia-
rella, the Second Circuit’s approach in cases such as Szur and Skelly, and
our approach.
8212 UNITED STATES v. LAURIENTI
day, because the government has not advanced that argument,
either on appeal or before the district court. Additionally, the
government has not distinguished among the subsections of
Rule 10b-5; it charged Defendants with violating all three
subsections, and it did not tailor its proposed jury instructions
along the lines just described. Finally, the government did not
identify which specific statements made by Defendants would
qualify as misleading half-truths such that the bonus commis-
sions would constitute a material omission under subsection
(b). See Skelly, 442 F.3d at 97 (“[O]therwise truthful state-
ments made by [a broker] about the merits of a particular
investment are not transformed into misleading ‘half-truths’
simply by the broker’s failure to reveal that he is receiving
added compensation for promoting a particular investment.”).
Accordingly, we limit our holding to the general rule that, if
a broker and a client have a trust relationship, as described by
the Second Circuit, then the broker has an obligation to dis-
close all facts material to that relationship.
[6] On the other hand, we emphasize that, even in a trust
relationship, a broker is required to disclose only material
facts. As the Second Circuit has held, materiality is defined by
the nature of the trust relationship between the clients and the
brokers: “This relationship places an affirmative duty on bro-
kers to use reasonable efforts to give the customer informa-
tion relevant to the affairs that have been entrusted to them.”
Szur, 289 F.3d at 211 (brackets and internal quotation marks
omitted). In the context at issue here—the purchase of stocks
—we see no difference between that definition of materiality
and the definition of materiality related to affirmative mis-
statements or half-truths: “For securities fraud, a statement is
material if there is a substantial likelihood that a reasonable
investor would consider it important in making a decision.”
United States v. Tarallo, 380 F.3d 1174, 1182 (9th Cir. 2004).
[7] In deciding whether to buy a given stock, a reasonable
investor would consider it important that, in contrast to the
purchase of most stocks, the broker would receive a 5% com-
UNITED STATES v. LAURIENTI 8213
mission from the purchase of this particular (house) stock. At
trial, every former client who testified said that he or she
would not have bought the house stocks had he or she known
about the bonus commissions. We therefore reject Defen-
dants’ argument that the bonus commissions are immaterial as
a matter of law. See Press v. Quick & Reilly, Inc., 218 F.3d
121, 130 (2d Cir. 2000) (holding that extra commissions on
the sale of particular securities products represent a “conflict
of interest” that is “material”); Chasins v. Smith, Barney &
Co., 438 F.2d 1167, 1172 (2d Cir. 1971) (holding that “failure
to inform the customer fully of its possible conflict of interest,
in that it was a market maker in the securities which it
strongly recommended for purchase by [the plaintiff], was an
omission of material fact in violation of Rule 10b-5”); see
also Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 756 F.2d 230, 242 (2d Cir. 1985)
(“Commissions that defendants receive on the CDs they sell
to the public are relevant and must be disclosed.”).
We recognize that brokerages often have complicated com-
pensation systems and that brokers sometimes receive addi-
tional compensation on client purchases of particular
securities products. Our holding today does not mean that all
compensation arrangements are necessarily “material” even
within a trust relationship and therefore could lead to criminal
(and civil) liability. For example, de minimis variations in
compensation among different securities products would be
immaterial as a matter of law. See Szur, 289 F.3d at 211-12
(holding that some information “borders on insignificant
minutia, the omission of which could never be actionable for
fraud” (internal quotation marks omitted)). Additionally,
courts have recognized that, depending on the circumstances,
even minimal disclosures can meet the broker’s obligation to
disclose. See, e.g., Benzon, 420 F.3d at 612 (holding that the
brokers met their disclosure obligations because of a prospec-
tus disclosure that brokers “may receive different compensa-
tion for selling each Class of share”); Press, 218 F.3d at 130
(holding that the brokers satisfied their disclosure obligations
8214 UNITED STATES v. LAURIENTI
because of “general disclosures” in fund prospectuses and
“Statements of Additional Information” filed with the SEC by
the managers of the money market funds). The bonus com-
missions here fall into neither category. The difference
between a commission of $50 on the sale of a non-house
stock and a commission of thousands of dollars on the sale of
a house stock is not a de minimis difference in compensation.
And Defendants here did not disclose the bonus commissions
in any way whatsoever.
[8] Finally, Defendants argue that, even if case law now
has established that a broker sometimes has a duty to disclose
commissions, their convictions violate the “fair warning
requirement, derived from the Ex Post Facto Clause and the
Due Process Clause, [which] requires that criminal laws spec-
ify the scope of criminal laws in advance and with clarity.”
Appellants’ Joint Opening Br. at 26. We are unpersuaded.
“Retroactive application of unforeseen expansions of substan-
tive law violate[s] due process because an ordinary person is
not able to conform his or her conduct to what the law
requires.” United States v. Miranda-Guerena, 445 F.3d 1233,
1237 (9th Cir. 2006); see also McSherry v. Block, 880 F.2d
1049, 1052-58 (9th Cir. 1989) (discussing the “fair warning”
requirement). The requirement to disclose substantial bonus
commissions to a client in a trust relationship flows naturally
from the Supreme Court’s Chiarella decision in 1980, as the
Second Circuit held, without elaboration, in Szur in 2002; it
cannot be characterized as an “unforeseen expansion[ ] of
substantive law.” Miranda-Guerena, 445 F.3d at 1237. Fur-
thermore, the failure to disclose is illegal only if done with
intent to defraud; it cannot be said that “an ordinary person is
not able to conform his or her conduct to” acting without
fraudulent intent. Cf. Screws v. United States, 325 U.S. 91,
102 (1945) (“The requirement that the act must be willful or
purposeful may not render certain, for all purposes, a statutory
definition of the crime which is in some respects uncertain.
But it does relieve the statute of the objection that it punishes
without warning an offense of which the accused was
UNITED STATES v. LAURIENTI 8215
unaware.”). We hold that Defendants’ convictions do not vio-
late the constitutional “fair warning” requirement.
2. Jury Instructions
[9] Defendants argue, in the alternative, that the district
court committed reversible error by failing to instruct the jury
on the government’s burden to prove a trust relationship
between Defendants and their clients. Defendants accurately
observe that the district court did not give a jury instruction
on the trust relationship requirement. The jury instructions as
a whole permitted a conviction on the theory, among others,
that Defendants failed to disclose the bonus commissions with
the intent to defraud—but without requiring the jury to find
that a trust relationship existed between Defendants and their
clients. With the potential caveat of the subsection (b) argu-
ment, discussed above and not advanced by the government,
there is no support for a duty to disclose commissions outside
a trust relationship. We therefore hold that the district court
erred by failing to give a “trust relationship” jury instruction.
We turn, then, to whether the error is reversible. The parties
dispute whether Defendants merely forfeited the argument
such that “plain error” review applies or whether Defendants
waived the argument outright under the “invited error” doc-
trine. “Forfeiture is the failure to make a timely assertion of
a right, whereas waiver is the ‘intentional relinquishment or
abandonment of a known right.’ Forfeited rights are review-
able for plain error, while waived rights are not.” United
States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc)
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)).
“If the defendant has both invited the error, and relinquished
a known right, then the error is waived and therefore unre-
viewable.” Id. Waiver does not occur when there is “no evi-
dence that [the defendants] considered submitting the
[omitted] element to the jury, but then, for some tactical or
other reason, rejected the idea.” Id.; see also United States v.
Tuyet Thi-Bach Nguyen, 565 F.3d 668, 676 (9th Cir. 2009)
8216 UNITED STATES v. LAURIENTI
(rejecting the government’s argument that waiver applied
because there was no evidence that the defendant was aware
of the omitted element); United States v. Romm, 455 F.3d
990, 1004 n.17 (9th Cir. 2006) (“Here, since nothing in the
record suggests that Romm or his trial counsel were aware of
the element omitted from the jury instructions, invited error
does not apply.”); United States v. Burt, 143 F.3d 1215, 1217
(9th Cir. 1998) (holding that the defendant had not waived the
argument because “there is no evidence that the defendant, the
government or even the [district] court was aware” of the
omitted element). But a defendant waives the right to appeal
if the “defendant considered the controlling law, or omitted
element, and, in spite of being aware of the applicable law,
proposed or accepted a flawed instruction.” Perez, 116 F.3d
at 845. For example, waiver occurs when “the defendant was
aware of the omitted element and yet relinquished his right to
have it submitted to the jury.” Id.
Here, the government proposed a correct trust relationship
instruction, modeled after the Second Circuit’s decision in
Skelly. Defendant Laurienti affirmatively objected to that
instruction, on the patently false ground that no criminal case
supported the government’s proposed instruction.8 For rea-
sons never explained on the record, the district judge refused
to give the government’s proposed instruction, stating only
that the instruction “will not be given.” The government asked
the district court to reconsider its decision. The instruction,
after all, ran counter to the government’s interest because it
required that the government prove an additional element
beyond a reasonable doubt. Yet again, the district judge
8
Defendant Laurienti’s objection stated: “This instruction is created
from whole cloth and [sic] civil and regulatory authorities. There is no
statute nor other apposite authority which imposes criminal liability on the
grounds advanced. Nor were the accuseds charged with, or arraigned on,
any ‘breach of fiduciary’ charges.” In support of its proposed instruction,
the government properly cited Skelly, the Second Circuit’s criminal case.
On appeal, all Defendants refer to the proposed instruction as the “Skelly
instruction.”
UNITED STATES v. LAURIENTI 8217
responded only that “You’ve made your record and you’re
free to argue it[,] but you can’t have an instruction regarding
it.” Defendants remained silent during the colloquy between
the government and the district judge. None of them raised
the trust relationship issue with the court.
We hold that Defendant Laurienti expressly waived his
right to appeal the omitted jury instruction. Defendant Lau-
rienti’s objection to the proposed instruction easily demon-
strates that he “was aware of the omitted element and yet
relinquished his right to have it submitted to the jury.” Perez,
116 F.3d at 845. Defendant Laurienti concedes, as he must,
that he objected to the government’s proposed instruction and
that all Defendants remained silent when the government re-
proposed the instruction over the district court’s contrary rul-
ing. Defendant Laurienti argues that he nevertheless should be
permitted to raise the argument on appeal, because he faced
a “Hobson’s choice.”9 Appellants’ Joint Reply Br. at 12.
Defendants’ main legal theory, of course, is that brokers never
have a duty to disclose, even if there is a trust relationship.
Defendant Laurienti argues that, “had the defendants joined in
the government’s request for the [trust relationship] instruc-
tion, they would have forfeited their lead claim of trial error
[that there is never a duty to disclose].” Appellants’ Joint
Reply Br. at 12.
Defendant Laurienti is wrong, because nothing prevents a
party from arguing in the alternative. Defendants could have
proposed an instruction along the lines of the legal theory they
proposed (which they did not) and, at the same time, argued
that, if the court rejected Defendants’ theory, the court should
accept the government’s proposed instruction. That line of
argument would not have prejudiced Defendants, either
9
Defendants briefly argue, in the alternative, that a challenge to an omit-
ted element from a jury instruction can never be waived because it is of
constitutional dimension. We squarely rejected that argument in Perez,
116 F.3d at 845 n.7.
8218 UNITED STATES v. LAURIENTI
before the district court or on appeal. And it would ensure that
the situation we face now—indisputably incorrect jury
instructions—would not have occurred. Instead, Defendants
affirmatively argued that erroneous jury instructions should
be given and now seek to fault the district court for acquiesc-
ing.
On this record, we are convinced that Defendant Laurienti
was not careless or ignorant; instead, we hold that he inten-
tionally relinquished his right to challenge the jury instruction.10
As discussed above, the jury instructions given suggested that
the failure to disclose bonus commissions was always illegal.
But the instructions were somewhat ambiguous on this point.
And that ambiguity allowed Defendants, during closing argu-
ment, to make their primary argument to the jury, even though
it is a legal argument: Brokers never have an obligation to dis-
close bonus commissions. Nothing in the jury instructions, as
given, expressly contradicted that theory. Had the district
court given the government’s proposed instruction, however,
that instruction would have fatally undermined Defendants’
argument that there is never a duty, because the proposed
instruction affirmatively states that there is a duty to disclose
when there is a trust relationship. In other words, the pro-
posed instruction would have removed the ambiguity and
would have contradicted Defendants’ main argument.
10
For this reason, our decision in United States v. Alferahin, 433 F.3d
1148 (9th Cir. 2006), is inapposite. In a footnote in Alferahin, we held that
“[t]he record in this case clearly indicates that Alferahin’s attorney did not
intentionally relinquish a known right . . . [because] both defense counsel
and the district court were operating under a misapprehension of the appli-
cable law.” Id. at 1154 n.2. We echo the concurrence’s sentiment in that
case that the majority’s explanation inadequately distinguishes Perez,
because the plain error issue is “more difficult than the majority opinion
suggests.” Alferahin, 433 F.3d at 1162 (Berzon, J., concurring in part). In
any event, we are unpersuaded that our record-specific decision in Alf-
erahin applies here. Defendant Laurienti’s intentional, affirmative objec-
tion to the proposed jury instruction clearly illustrates that he was not
simply operating under a misapprehension of the applicable law.
UNITED STATES v. LAURIENTI 8219
[10] In conclusion, we hold that Defendant Laurienti
waived his right to challenge the district court’s failure to give
the “trust relationship” jury instruction. With respect to the
other three Defendants, the issue of waiver versus forfeiture
requires a bit more explanation. At a pre-trial hearing, the dis-
trict court instructed Defendants that, in a joint trial, the court
would consider all objections raised by any one Defendant as
having been raised by all Defendants, unless one or more
Defendants opted out. Defendants agreed, and they do not
challenge that general policy on appeal.
[11] No Defendant opted out of Defendant Laurienti’s
objection to the government’s proposed jury instruction.
Effectively, therefore, all Defendants joined the objection.
The government argues that all Defendants, and not just
Defendant Laurienti, thereby waived the right to challenge the
omitted jury instruction. At oral argument, Defendants’ coun-
sel argued that we should not hold that the three other Defen-
dants waived the right to challenge the omitted jury
instruction, because silence cannot constitute waiver. We dis-
agree for three reasons.
First, we have not held that silence can never constitute
waiver. Because the court placed Defendants clearly on notice
of the effect of their silence, silence very well might consti-
tute waiver. See Perez, 116 F.3d at 845 (“We do not mean to
suggest that a defendant may have jury instructions reviewed
for plain error merely by claiming he did not know the
instructions were flawed. What we are concerned with is evi-
dence in the record that the defendant was aware of, i.e., knew
of, the relinquished or abandoned right.”).
Second, we decline to accept an argument that might pro-
mote gamesmanship on the part of joint defendants. Defen-
dants in similar circumstances could spread objections among
themselves so as to defeat waiver for all objections.
Third, and most important, the record demonstrates without
a doubt that all Defendants intentionally shared in the strategy
8220 UNITED STATES v. LAURIENTI
that resulted in the waiver expressed by Defendant Laurienti’s
objection to the government’s proposed jury instruction. In
other words, taken in context the other Defendants’ silence
here was conscious, active agreement, not merely passivity or
failure to comment.
[12] For those reasons, we hold that all Defendants waived
the right to challenge the district court’s failure to give the
“trust relationship” jury instruction. Accordingly, we do not
examine that issue on the merits.
B. “Unlawful Sales Practices” in the Indictment
Defendants next challenge, as unnecessary surplusage, the
indictment’s use of the word “unlawful” in relation to Defen-
dants’ receipt of bonus commissions. Under the heading “The
Scheme to Defraud,” the indictment includes the following
paragraph:
Defendants and their co-conspirators employed a
variety of unlawful sales practices, including:
(a) paying brokers undisclosed special incentive
compensation to sell particular stocks;
(b) using high-pressure tactics and false state-
ments to induce customers to buy stocks;
(c) recommending stocks without determining
customers’ suitability for purchasing thinly-traded
speculative low-priced securities;
(d) making false and misleading statements to per-
suade customers not to sell particular stocks;
(e) failing to take and execute customer orders to
sell particular stocks;
UNITED STATES v. LAURIENTI 8221
(f) engaging in so-called “cross trades”;
(g) making unauthorized purchases in customers’
accounts;
(h) converting customer cash account holdings to
margin without authorization;
(i) placating customers with false promises of
“make-up” trades;
(j) opening and trading in customer accounts with-
out an active brokers license, by using the registered
representative numbers of other brokers.
(Emphases added.)
At a pre-trial hearing on motions in limine, Defendants
requested that the word “unlawful” be redacted. Consistent
with their general legal theory, Defendants argued that bro-
kers never have a duty to disclose bonus commissions and
that the challenged sections of the indictment must be
redacted as prejudicial. In response, the government admitted
that undisclosed bonus commissions are not always unlawful.
The government argued that, in the context of this case, how-
ever, the actions were part of an overall scheme to defraud
and therefore constituted criminal behavior. The government
expressly conceded that a failure to disclose bonus commis-
sions is illegal only if a trust relationship exists. The govern-
ment stated that it intended to prove the existence of just such
a trust relationship at trial. The district judge issued his ruling
with unhelpful brevity: “All right. The motion to redact is
denied.”
[13] Federal Rule of Criminal Procedure 7(d) states: “Sur-
plusage. Upon the defendant’s motion, the court may strike
surplusage from the indictment or information.” The advisory
committee’s notes state that “[t]his rule introduces a means of
8222 UNITED STATES v. LAURIENTI
protecting the defendant against immaterial or irrelevant alle-
gations in an indictment or information, which may, however,
be prejudicial.” Id., advisory committee’s notes. “Denial of a
motion to strike surplusage is reviewed for an abuse of discre-
tion.” United States v. Terrigno, 838 F.2d 371, 373 (9th Cir.
1988). “The purpose of a motion to strike under Fed. R. Crim.
P. 7(d) is to protect a defendant against prejudicial or inflam-
matory allegations that are neither relevant nor material to the
charges.” Id. (internal quotation marks omitted).
[14] The characterization of the sales practices as unlawful
was relevant, because the government sought to prove that, as
conducted by Defendants (with an intent to defraud and in
violation of trust relationship duties), the practices were
indeed unlawful. See id. (holding that the indictment’s refer-
ence to the defendant’s issuing checks “willfully” was rele-
vant because the government sought to prove that fact). Even
if the use of the word “unlawful” could be considered prejudi-
cial, we hold that the district court nevertheless did not abuse
its discretion because the allegation was relevant. See id.;
accord United States v. Hedgepeth, 434 F.3d 609, 612 (3d
Cir. 2006).
C. Failure to Allow Paul Meyer to Testify as an Expert
Defendants argue that the district court abused its discretion
by not permitting defense witness Paul Meyer to testify as an
expert. We review for abuse of discretion the district court’s
decision not to permit expert testimony. United States v.
Cohen, 510 F.3d 1114, 1123 (9th Cir. 2007). Even if the dis-
trict court abused its discretion, we review any error for harm-
lessness. “ ‘Under our test for nonconstitutional error, which
we apply to errors as to the admissibility of expert testimony,
we must reverse unless it is more probable than not that the
error did not materially affect the verdict.’ ” Id. at 1127 (quot-
ing United States v. Rahm, 993 F.2d 1405, 1415 (9th Cir.
1993)).
UNITED STATES v. LAURIENTI 8223
Defendants offered Meyer as an expert on the securities
industry. Meyer had worked in a wide variety of positions for
26 years in the securities industry—all of that time at a large
firm, Smith Barney, and its predecessors. He had recently
retired and started his own expert witness consulting business.
He had never testified as an expert in federal court, but he had
testified at several administrative proceedings and once in
state court. He did not have any specialized degrees and had
not written any publications.
The district court denied Defendants’ request that Meyer be
permitted to testify as an expert witness. The court held that
Meyer could testify as a “summary” witness but that he could
not testify to ultimate conclusions. When pressed on the limits
of permissible testimony, the court held that it would issue
question-specific rulings as Meyer testified. When Meyer tes-
tified, the district court permitted many of Defendants’ ques-
tions, but it also sustained some of the government’s
objections.
[15] To the extent that Defendants argue that the district
court abused its discretion by failing to describe Meyer as an
“expert” in front of the jury, we disagree. The determination
that a witness is an expert is not an express imprimatur of spe-
cial credence; rather, it is simply a decision that the witness
may testify to matters concerning “scientific, technical, or
other specialized knowledge.” Fed. R. Evid. 702. For exam-
ple, the Ninth Circuit Manual of Model Criminal Jury Instruc-
tions includes an instruction admonishing the jury to consider
expert witness testimony “like any other testimony.” 9th Cir.
Crim. Jury Instr. 4.17. It is the scope of testimony excluded
by the district court that we must examine, not the court’s
nominal decision not to label Meyer an “expert.”
[16] “If the evidence could have been excluded under
either [Federal Rule of Evidence 702 or 704], the district
court did not abuse its discretion.” United States v. Morales,
108 F.3d 1031, 1035 (9th Cir. 1997) (en banc). The govern-
8224 UNITED STATES v. LAURIENTI
ment does not argue that Meyer’s testimony could have been
excluded under Federal Rule of Evidence 704. The scope and
meaning of the rules of the National Association of Securities
Dealers (“NASD”), for example, is a proper subject of expert
testimony. See Vucinich v. Paine, Webber, Jackson & Curtis,
Inc., 803 F.2d 454, 461 (9th Cir. 1986) (“Testimony concern-
ing the rules of the New York Stock Exchange and of the
[NASD] was highly relevant and far from prejudicial because
the rules reflect the standard to which all brokers are held . . . .
Exclusion was an abuse of discretion.” (citation and internal
quotation marks omitted)). The government argues instead
that Meyer did not meet the threshold test of Rule 702.
Federal Rule of Evidence 702 states:
If scientific, technical, or other specialized knowl-
edge will assist the trier of fact to understand the evi-
dence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experi-
ence, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testi-
mony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and
methods, and (3) the witness has applied the princi-
ples and methods reliably to the facts of the case.
We have held:
Rule 702 assigns to the district court the role of
gatekeeper and charges the court with assuring that
expert testimony “rests on a reliable foundation and
is relevant to the task at hand.” The gatekeeper role
“entails a preliminary assessment of whether the rea-
soning or methodology underlying the testimony is
. . . valid and of whether that reasoning or methodol-
ogy properly can be applied to the facts in issue.”
UNITED STATES v. LAURIENTI 8225
United States v. Hermanek, 289 F.3d 1076, 1093 (9th Cir.
2002) (citation omitted) (quoting Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 592-93, 597 (1993))
[17] The government argues that Meyer was not qualified
as an expert because his opinions were not supported by any
methodology other than his own work experience. But the
government does not explain why Meyer’s experience was
not sufficient in this regard. It is true that Meyer’s experience
was only at a large firm, that he had little experience with the
types of stocks at issue in this case, and that he had never
heard of the term “house stock.” But those facts do not under-
mine his general knowledge of the NASD rules and his gen-
eral knowledge of the industry as a whole. Although the
district court has a gatekeeping function, the district court
here abused its discretion by sustaining some of the govern-
ment’s objections, particularly with respect to questions about
the NASD rules.
[18] We have examined the record carefully, however, and
we conclude that the district court’s errors were harmless.
Unlike in many cases, where the district court prohibits all
testimony by a proffered expert, the district court here permit-
ted testimony by Meyer on a wide range of topics and sus-
tained objections only to a limited set of questions. See, e.g.,
Cohen, 510 F.3d at 1126 (holding that “the best way for the
district court to have insured the exclusion of the potentially
inadmissible aspects of Dr. Roitman’s testimony was not to
bar him from testifying altogether, but to sustain the govern-
ment’s objections to particular questions”); United States v.
Finley, 301 F.3d 1000, 1018 (9th Cir. 2002) (holding that the
exclusion of expert testimony was not harmless because, in
part, “the [district] court excluded the entire testimony” of the
proffered expert). Most of the excluded testimony here per-
tained to the NASD rules and to Defendants’ failure to dis-
close bonus commissions. As an initial matter, we note that
Meyer was permitted to testify to a large extent on those top-
ics, even though some questions were disallowed. Even if
8226 UNITED STATES v. LAURIENTI
Meyer had testified in response to all questions and even if his
testimony had fully convinced the jury that the failure to dis-
close bonus commissions was a common practice in the
industry and consistent with NASD rules, the government
introduced strong and convincing evidence of many other the-
ories of guilt, as discussed above in Part I(A)(2). Our exami-
nation of the record does not reveal any other excluded
subject area of importance, and Defendants’ counsel identi-
fied none when pressed at oral argument. Cf. Cohen, 510 F.3d
at 1127 (holding that exclusion of expert testimony was not
harmless because it was “ ‘essential to the defense’ ” (quoting
Finley, 301 F.3d at 1018)).
In summary, we are persuaded that “it is more probable
than not that the error did not materially affect the verdict.”
Id. (internal quotation marks omitted). The district court’s
errors were harmless.
D. Guilt-Assuming Hypotheticals
Defendants argue that the government used improper
“guilt-assuming hypotheticals” during its direct examination
of government fact witnesses and during its cross-
examination of Defendant Laurienti’s character witnesses.
Defendants argue that, under this court’s decision in United
States v. Shwayder, 312 F.3d 1109, 1120-21 (9th Cir. 2002),
the government’s questions violated Defendants’ right to due
process. We review for abuse of discretion the district court’s
rulings on the scope of questioning. United States v. Larson,
495 F.3d 1094, 1101-02 (9th Cir. 2007) (en banc).
We have held that guilt-assuming hypotheticals are imper-
missible in the context of the government’s cross-examination
of a defendant’s character witnesses. Shwayder, 312 F.3d at
1120-21. That rule derives from the fact that, when a charac-
ter witness is asked a guilt-assuming hypothetical, the answer
“can have only negligible probative value as it bears on the
central issue of guilt.” Id. at 1120 (internal quotation marks
UNITED STATES v. LAURIENTI 8227
omitted). Consistent with our holding, the district court sus-
tained Defendant Laurienti’s objections to the government’s
guilt-assuming hypotheticals posed to his character witnesses.
[19] With respect to the government’s fact witnesses, how-
ever, there appears to be no support for the proposition that
the government cannot ask its own fact witnesses otherwise
relevant questions that may have a guilt-assuming element.
The government’s questions in this case were plainly relevant
and probative: In order to establish materiality of Defendants’
actions, the government asked questions such as, “If you had
known prior to purchasing [a house stock] that Hampton Por-
ter prevented or discouraged their brokers from allowing their
clients to sell their shares of [the house stock], would you
have purchased the [shares of the house stock]?” Because
those questions have much more than “negligible probative
value as it bears on the central issue of guilt,” id., our primary
concern with respect to character witnesses simply does not
apply. We therefore hold that the district court did not abuse
its discretion by permitting the government’s questioning of
its own fact witnesses. See United States v. Jennings, 487
F.3d 564, 581-82 (8th Cir. 2007) (holding that, unlike with
respect to character witnesses, it is generally permissible to
ask guilt-assuming hypotheticals of fact witnesses to prove
materiality); see also United States v. Kellogg, 510 F.3d 188,
196 (3d Cir. 2007) (distinguishing between opinion character
witnesses and reputation character witnesses and holding that
“there is nothing inherent in guilt-assuming hypotheticals, in
the abstract, that makes them unfairly prejudicial, let alone so
prejudicial as to constitute a per se violation of due process”).
E. Other Challenges to the Convictions
[20] We have considered Defendants’ other challenges to
their convictions, and we reject those arguments. On de novo
review, United States v. Green, 592 F.3d 1057, 1063 (9th Cir.
2010), we hold that the district court did not err in failing to
give Defendant Laurienti’s proposed instruction on knowl-
8228 UNITED STATES v. LAURIENTI
edge of Rule 10b-5. Defendant Laurienti’s argument that
knowledge of the Rule is an element of the crime, and not an
affirmative defense, is squarely foreclosed by our decision in
Tarallo, 380 F.3d at 1192.
Reviewing de novo, United States v. Stewart, 420 F.3d
1007, 1014 (9th Cir. 2005), we conclude that sufficient evi-
dence supported the convictions of Defendant Laurienti and
Defendant Samaria. See Jackson v. Virginia, 443 U.S. 307,
319 (1979) (holding that we must affirm if, viewing the evi-
dence in the light most favorable to the prosecution, any ratio-
nal trier of fact could have found the essential elements of the
crime beyond a reasonable doubt).
[21] Reviewing for abuse of discretion, United States v.
Pang, 362 F.3d 1187, 1191-92 (9th Cir. 2004), we hold that
the district court properly declined to admit into evidence
charts and summaries, because those charts and summaries
were of evidence already admitted into evidence, see United
States v. Wood, 943 F.2d 1048, 1053 (9th Cir. 1991) (holding
that “charts or summaries of testimony or documents already
admitted into evidence are merely pedagogical devices, and
are not evidence themselves”).
[22] On de novo review, United States v. Chang Da Liu,
538 F.3d 1078, 1087 (9th Cir. 2008), we hold that the district
court did not violate Defendant Montesano’s right to due pro-
cess by admonishing all Defendants to consider carefully
whether to testify on their own behalf. Under these circum-
stances, we are unpersuaded that the admonition became coer-
cive or impermissible simply because, on the previous day,
the government filed an ex parte submission (which, we now
know, related to Defendant Losse, not Defendant Montesano).
See generally United States v. Jaeger, 538 F.3d 1227, 1231-
33 (9th Cir. 2008) (holding that the district court’s admonition
was within permissible bounds), cert. denied, 129 S. Ct. 941
(2009). We note that Defendant Montesano never inquired
UNITED STATES v. LAURIENTI 8229
about the ex parte submission before deciding whether to tes-
tify, even though he had ample opportunity to do so.
[23] On de novo review, United States v. Valdez-Santos,
457 F.3d 1044, 1046 (9th Cir. 2006), we hold that venue was
proper as to the individual counts against Defendant Lau-
rienti. Although some acts occurred outside the Central Dis-
trict of California, the clients’ funds were received by
Hampton Porter’s clearing house in the Central District, an
entirely foreseeable and necessary result of the transactions.
See United States v. Angotti, 105 F.3d 539, 544 (9th Cir.
1997) (holding that, in criminal prosecutions involving bank-
ing transactions, venue is proper where funds are received);
see also United States v. Svoboda, 347 F.3d 471, 483 (2d Cir.
2003) (holding that “venue is proper in a district where (1) the
defendant intentionally or knowingly causes an act in further-
ance of the charged offense to occur in the district of venue
or (2) it is foreseeable that such an act would occur in the dis-
trict of venue”).
[24] Finally, we hold that the two errors discussed above—
the erroneous jury instruction and the excluded expert
testimony—are cumulatively harmless. See United States v.
Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (“In some
cases, although no single trial error examined in isolation is
sufficiently prejudicial to warrant reversal, the cumulative
effect of multiple errors may still prejudice a defendant.”); see
also United States v. Fernandez, 388 F.3d 1199, 1257 (9th
Cir. 2004) (holding that “errors not rising to level of plain
error are to be considered in assessing cumulative error” (cit-
ing United States v. Wallace, 848 F.2d 1464, 1476 n.21 (9th
Cir. 1988))). We are not persuaded that “the aggregated error
so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Jackson v. Brown, 513
F.3d 1057, 1085 (9th Cir. 2008) (internal quotation marks
omitted).
In conclusion, we affirm Defendants’ convictions.
8230 UNITED STATES v. LAURIENTI
II. Challenges to the Sentences
Defendants raise challenges to their sentences that fall into
four categories: (1) failure to hold an evidentiary hearing, (2)
sentencing adjustments other than amount of loss, (3) loss cal-
culation for purposes of the Sentencing Guidelines, and (4)
loss calculation for purposes of restitution. Because the dis-
trict court erred in calculating loss both for purposes of the
Sentencing Guidelines and for purposes of restitution, we
vacate Defendants’ sentences and restitution orders and
remand for resentencing and a recalculation of restitution. In
the interest of judicial economy, we address Defendants’
other objections to their sentences, because the district court
might make similar findings on remand. Because we vacate
the sentences, however, Defendants are entitled to an entirely
new sentencing hearing on an open record. See United States
v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en banc)
(“We hold that, as a general matter, if a district court errs in
sentencing, we will remand for resentencing on an open
record—that is, without limitation on the evidence that the
district court may consider.”).
We also note at the outset that the district court applied the
1998 edition of the Sentencing Guidelines—the version appli-
cable at the time of the offense—because that version is, over-
all, more favorable to Defendants. Defendants do not
challenge that choice on appeal. Except as otherwise noted,
therefore, all citations to the Sentencing Guidelines are to the
1998 version.
A. Evidentiary Hearing
[25] Defendant Laurienti argues that the district court
abused its discretion by denying his motion for an evidentiary
hearing on the amount of loss. He cites no authority requiring
a district court to hold a hearing in this context, and he does
not describe what evidence he would have presented at such
a hearing that he did not present in his written submissions.
UNITED STATES v. LAURIENTI 8231
We hold that the district court did not abuse its discretion. See
United States v. Kimball, 975 F.2d 563, 568 (9th Cir. 1992)
(“There is no general right to an evidentiary hearing at sen-
tencing, and where a defendant fails to present any facts in
rebuttal to the government’s evidence, there need be no new
evidentiary hearing.” (citation, brackets, and internal quota-
tion marks citation omitted)).
B. Sentencing Adjustments Other than Loss
Defendants challenge four different sentencing adjust-
ments: (1) minor role, (2) number of victims, (3) mass-
marketing, and (4) abuse of trust. Before discussing those
adjustments, a discussion on the standard of review is in
order.
1. Standard of Review
Two standards of review are clear. We review de novo the
district court’s interpretation of the Sentencing Guidelines
(because it is a pure question of law). United States v. Kil-
bride, 584 F.3d 1240, 1261 (9th Cir. 2009). And we review
for clear error the district court’s finding of fact (because it is
a pure question of fact). Id. But it is unclear what standard of
review applies to the district court’s application of the Sen-
tencing Guidelines to the facts at hand (which typically is
viewed as a mixed question of fact and law). In many opin-
ions, we state, without qualification, that we review for abuse
of discretion. See, e.g., United States v. Loew, 593 F.3d 1136,
1139 (9th Cir. 2010) (“‘We review . . . the district court’s
application of the Guidelines to the facts for abuse of discre-
tion . . . .’ ” (quoting United States v. Garro, 517 F.3d 1163,
1167 (9th Cir. 2008)), cert. denied, 2010 WL 1130267 (U.S.
Apr. 19, 2010) (No. 09-9760). In recent years, however, we
have “noted an intracircuit conflict as to whether the standard
of review for application of the Guidelines to the facts is de
novo or only for abuse of discretion.” United States v. Yip,
592 F.3d 1035, 1038 (9th Cir. 2010) (citing United States v.
8232 UNITED STATES v. LAURIENTI
Rivera, 527 F.3d 891, 908 (9th Cir.), cert. denied, 129 S. Ct.
654 (2008)); accord United States v. Berger, 587 F.3d 1038,
1041 & n.5 (9th Cir. 2009); United States v. Contreras, 581
F.3d 1163, 1164 n.2 (9th Cir. 2009), adopted in relevant part,
593 F.3d 1135, 1136 (9th Cir. 2010) (en banc) (per curiam);
United States v. Thornton, 511 F.3d 1221, 1227 n.4 (9th Cir.
2008). We have avoided the question because the standard of
review has not changed the outcome: The same result is
reached under either standard. Thornton, 511 F.3d at 1227
n.4. We join that growing number of cases in declining to
reach the issue.
2. Minor Role Adjustment
[26] “Based on the defendant’s role in the offense,
decrease the offense level as follows: . . . (b) If the defendant
was a minor participant in any criminal activity, decrease by
2 levels.” U.S.S.G. § 3B1.2(b). Defendant Laurienti argues
that the district court erred in declining to give him a two-
point reduction for a minor role.
[T]his court has emphasized that any downward role
adjustment should be restricted to those cases pre-
senting exceptional circumstances. The defendant
bears the burden of proving that he is entitled to a
downward adjustment based on his role in the
offense.
....
Whether the defendant qualifies for either a mini-
mal or minor role adjustment depends on the facts of
the particular case. Thus, a district court’s refusal to
grant a defendant’s request for role reduction based
on his minimal or minor role should be overturned
only where the refusal was a clearly erroneous deci-
sion. Moreover, where there are two permissible
UNITED STATES v. LAURIENTI 8233
views of the evidence, the fact-finder’s choice
between them can not be clearly erroneous.
United States v. Awad, 371 F.3d 583, 591 (9th Cir. 2004)
(citations and internal quotation marks omitted).
Defendant Laurienti certainly was not the mastermind, and
the overall scheme to defraud could have operated without
him. But he joined the conspiracy, and he played a key role
by convincing unwitting clients to purchase house stocks. In
our view, this case does not present “exceptional circum-
stances” in which the district court had no choice but to grant
the two-level downward adjustment.
3. Number-of-Victims Enhancement
“If the offense involved . . . (B) a scheme to defraud more
than one victim, increase by 2 levels.” U.S.S.G. § 2F1.1(b)(2).
Defendant Samaria challenges the district court’s finding that
there was more than one victim. In United States v. Galliano,
977 F.2d 1350, 1354 (9th Cir. 1992), in discussing a challenge
to this enhancement, we held:
Conduct relevant in determining the applicable
Guideline range includes all harm that resulted from
the acts or omissions for which the defendant is
accountable. Among others, Galliano participated in
a scheme to defraud California Federal, Valley
Bank, VISA, Citibank, and American Express. In
addition to the counts of conviction, the district court
properly considered the entire fraudulent scheme in
concluding that he was involved in a scheme to
defraud more than one victim.
(Brackets, citation, and internal quotation marks omitted.)
[27] The conspiracy in this case targeted scores of
investors—certainly more than one. Curiously, in view of the
8234 UNITED STATES v. LAURIENTI
conspiracy count, the arguments by both the government and
Defendant Samaria assume that the relevant victims for pur-
poses of this enhancement are only those with whom Defen-
dant Samaria personally had some direct connection. But even
if one considers only those investors with whom Defendant
Samaria had a direct connection, ample evidence supports
application of this enhancement. The district court did not err
in this respect.
4. Mass-Marketing Enhancement
“If the offense was committed through mass-marketing,
increase by 2 levels.” U.S.S.G. § 2F1.1(b)(3). Defendants
argue that the district court erred in imposing that two-level
increase. The application notes state:
“Mass-marketing,” as used in subsection (b)(3),
means a plan, program, promotion, or campaign that
is conducted through solicitation by telephone, mail,
the Internet, or other means to induce a large number
of persons to (A) purchase goods or services; (B)
participate in a contest or sweepstakes; or (C) invest
for financial profit. The enhancement would apply,
for example, if the defendant conducted or partici-
pated in a telemarketing campaign that solicited a
large number of individuals to purchase fraudulent
life insurance policies.
Id. cmt. n.3. “We are bound by the interpretative commentary
of the Sentencing Guidelines unless it violates the Constitu-
tion, a federal statute, or is inconsistent with the guideline
itself.” United States v. Pirello, 255 F.3d 728, 731 (9th Cir.
2001).
At trial, ample evidence demonstrated that Hampton Porter
solicited clients in part through cold-calling large numbers of
potential clients. Hampton Porter secured many clients,
including several of the testifying victim-witnesses, through
UNITED STATES v. LAURIENTI 8235
its cold-calling practice. Defendants do not dispute that
Hampton Porter solicited clients in this manner. Defendants
argue, instead, that any cold-calling was incidental to the
fraudulent scheme, or that it was done primarily for legitimate
purposes (i.e., to solicit clients for legitimate stock purchases).
But the “pump and dump” scheme could not function without
securing new and unsuspecting clients. Even if the telemar-
keting campaign was done, in part, for legitimate purposes, on
this record it is undeniable that the telemarketing also was
done, in part, for fraudulent purposes.
[28] The example given in the Guideline’s application
note, quoted above, guides our analysis. If the example’s
hypothetical insurance company solicited some clients
through non-telemarketing means and if the company sold
some legitimate policies, it seems clear that the enhancement
would apply nevertheless. The text of the enhancement does
not require that the only means of solicitation was through
mass-marketing but, rather, whether that means of solicitation
played some non-trivial role in the commission of the crimi-
nal offense. Cf. United States v. Olshan, 371 F.3d 1296, 1299
(11th Cir. 2004) (rejecting the defendant’s argument that the
enhancement should not apply “where the targeted audience
is drawn from the defendant’s existing client list, . . . instead
of from the public at large or some subgroup of it with whom
the defendant has had no prior dealings”). We hold that the
district court did not err by applying this enhancement.
[29] Defendant Montesano also argues that it was imper-
missible to apply an enhancement for both mass-marketing
and the number of victims. The text of the Guideline states
the opposite, because it lists the enhancements in separate,
independent subsections:
(2) If the offense involved . . . (B) a scheme to
defraud more than one victim, increase by 2 levels.
(3) If the offense was committed through mass-
marketing, increase by 2 levels.
8236 UNITED STATES v. LAURIENTI
U.S.S.G. § 2F1.1(b). The intent of the Sentencing Commis-
sion is clear: Enhancements under both subsection (2) and
subsection (3) could apply. As the government explains, the
conduct described in those subsections does not necessarily
overlap: One can defraud only one victim through a mass-
marketing scheme, and one can defraud more than one victim
but not use mass-marketing. For those reasons, applying an
enhancement for mass-marketing and for the number of vic-
tims does not constitute impermissible double-counting. In so
holding, we join the Tenth and Eleventh Circuits. Olshan, 371
F.3d at 1301; United States v. Fredette, 315 F.3d 1235, 1244-
45 & n.4 (10th Cir. 2003).
Defendant Montesano insists that the Sentencing Commis-
sion intended the enhancements to be in the alternative, and
not cumulative, because of the 2001 amendments to this
Guideline. The applicable Guideline currently states:
(2) (Apply the greatest) If the offense—
(A) (i) involved 10 or more victims; or (ii) was
committed through mass-marketing, increase by 2
levels;
(B) involved 50 or more victims, increase by 4
levels; or
(C) involved 250 or more victims, increase by 6
levels.
U.S.S.G. § 2B1.1(b) (2009).
We agree that the 2001 amendment indeed changed the cal-
culations so that, under the plain text of the Guideline, mass-
marketing is an alternative enhancement for number of vic-
tims. But nothing in the amendment suggests that the change
was retroactive. Moreover, the other 2001 changes to the
Guideline, such as the loss-amount chart, greatly increased the
UNITED STATES v. LAURIENTI 8237
enhancements. For instance, a $1 million loss under the old
Guideline resulted in an 11-level increase, but the new Guide-
line mandates a 16-level increase for the same loss amount.
The district court applied the 1998 Guidelines because—
overall—they are more favorable to Defendants (and Defen-
dants do not contest that choice). Defendant Montesano
appears to be cherry-picking which amendments he would
like and which amendments he would not like. That he cannot
do.
5. Abuse-of-Trust Enhancement
“If the defendant abused a position of public or private
trust, or used a special skill, in a manner that significantly
facilitated the commission or concealment of the offense,
increase by 2 levels. This adjustment may not be employed if
an abuse of trust or skill is included in the base offense level
or specific offense characteristic.” U.S.S.G. § 3B1.3. Defen-
dants argue that the district court erred by imposing the two-
level enhancement for abuse of trust. They contend that their
conduct did not meet the first sentence of the enhancement
because it was not an abuse of trust. Additionally, Defendant
Montesano argues that the enhancement cannot be applied
because any abuse of trust “is included in the base offense
level” and thus violates the second sentence of the enhance-
ment.
a. Was Defendants’ Conduct an “Abuse of Trust”?
The scope of the “abuse of trust” enhancement was the sub-
ject of a recent en banc decision. In Contreras, 593 F.3d at
1136, sitting en banc, we adopted all but two small sections
of the three-judge panel opinion in the case, 581 F.3d 1163.
Through incorporation of the three-judge panel opinion, we
overruled longstanding precedent on what the government
must show in order to establish that a person is in “a position
of public or private trust.” U.S.S.G. § 3B1.3. We held that,
contrary to a long line of cases, a person must hold “a position
8238 UNITED STATES v. LAURIENTI
of ‘professional or managerial discretion.’ ” Contreras, 581
F.3d at 1167. The defendant must be “a ‘professional’ or
‘manager’ who, because of his or her special knowledge,
expertise, or managerial authority, is trusted to exercise ‘sub-
stantial discretionary judgment that is ordinarily given consid-
erable deference.’ ” Id. at 1168 n.5 (some internal quotation
marks omitted) (quoting U.S.S.G. § 3B1.3 cmt. n.1). We held
that our earlier cases permitting a finding of a position of trust
under a much lower standard were too broad, and impermiss-
ibly encompassed positions such as truck driver and bank
teller. Id. at 1167.
We decided Contreras after the sentencing hearings in the
present case, at which the district court applied the then-
correct, but now overruled, legal standard. On remand, the
district court must assess this enhancement anew, using the
new, more stringent legal test.
b. Is “Abuse of Trust” Encompassed by the Base
Offense Level?
[30] Defendant Montesano argues that the abuse-of-trust
enhancement is impermissible because an abuse of trust is
included in the base offense level. See U.S.S.G. § 3B1.3
(“This adjustment may not be employed if an abuse of trust
or skill is included in the base offense level . . . .”). Because
this argument is independent of our new legal standard, we
address it now. The base offense level here encompasses a
wide variety of crimes: “Fraud and Deceit; Forgery; Offenses
Involving Altered or Counterfeit Instruments Other than
Counterfeit Bearer Obligations of the United States.” Id.
§ 2F1.1. Not all of those crimes necessarily include an abuse
of trust; for example, one can commit forgery without an
abuse of trust. Accordingly, the second sentence of § 3B1.3
does not apply. See United States v. Ajiboye, 961 F.2d 892,
895 n.4 (9th Cir. 1992) (holding that the second sentence of
§ 3B1.3 does not apply to the base offense level for “Larceny,
Embezzlement, and Other Forms of Theft” because that “pro-
UNITED STATES v. LAURIENTI 8239
vision of the Guidelines does not include ‘an abuse of trust or
skill’ in it”). Joining the Fifth and Tenth Circuits, we hold that
the abuse-of-trust enhancement is not included in the base
offense level under Sentencing Guideline § 2F1.1. See United
States v. Gallant, 537 F.3d 1202, 1243 (10th Cir. 2008) (“[I]t
is well-established that an abuse of trust is not incorporated in
the base offense level for fraud under § 2F1.1.”), cert. denied,
129 S. Ct. 2026 (2009); United States v. Buck, 324 F.3d 786,
792-93 (5th Cir. 2003) (holding that an abuse-of-trust
enhancement is permissible when the base offense level is
under § 2F1.1).
[31] Defendant Montesano’s true argument is that he
“could not be saddled with the two-level, abuse-of-trust
enhancement because his offenses of conviction necessarily
included his position of trust.” Appellant Montesano’s Open-
ing Br. at 11 (emphasis added). But Defendant Montesano
misstates the legal test. The enhancement is inapplicable only
if the base offense level necessarily includes an abuse of trust,
regardless whether the defendant’s offenses of conviction
include an abuse of trust. See United States v. Levy, 992 F.2d
1081, 1084 (10th Cir. 1993) (holding that Sentencing Guide-
line § 3B1.3 “directs that we look to the base offense level . . .
assigned by the guidelines to the crime of conviction. It does
not direct us to the elements of the offense itself.” (citing Aji-
boye, 961 F.2d at 895 n.4)). The apparent concern of the Sen-
tencing Commission was that, if the Sentencing Commission
had already incorporated an abuse-of-trust consideration into
its base offense level calculation, it would constitute unfair
“double counting” to apply this enhancement. Where the
abuse-of-trust consideration is not included in the base
offense level, no unfairness results.
C. Loss Enhancement
According to the government, there are approximately 100
victims of the conspiracy. But the government conducted an
investigation into the activities of only 30 of those victims,
8240 UNITED STATES v. LAURIENTI
many of whom were clients of Defendants’. The government
then calculated the 30 investigated victims’ losses with
respect to the four house stocks. The government calculated
their losses individually, by taking the full purchase price paid
by a victim minus the residual value of the stock in April 2001
—the date when Hampton Porter closed its doors and clients
were required to transfer their holdings to a different broker-
age firm.11 The government then attributed to each Defendant
the losses specific only to that Defendant’s clients. The gov-
ernment used the same loss amount as the recommended
amount of restitution. The Presentence Reports adopted the
government’s calculations, and the district court adopted the
findings in the Presentence Reports.
The loss amount corresponds to an enhancement under the
chart at Sentencing Guideline § 2F1.1(b)(1). Depending on
the loss amount specific to each Defendant, Defendants here
received enhancements ranging from 8 levels to 13 levels.
Defendants challenge (1) the applicable legal standard, (2)
the sufficiency of the evidence, (3) the failure to offset gains,
and (4) the calculation method generally.
1. Applicable Legal Standard
Defendant Laurienti argues that the district court should
have applied the “clear and convincing” standard, instead of
the “preponderance of the evidence” standard, when making
its factual findings related to loss. Because each Defendant
was convicted of conspiracy, and because the losses were
incurred because of that conspiracy, the “preponderance of
the evidence” standard applies. United States v. Harrison-
Philpot, 978 F.2d 1520, 1523-24 (9th Cir. 1992); see also
United States v. Riley, 335 F.3d 919, 926 (9th Cir. 2003)
(applying Harrison-Philpot).
11
The residual value calculation for one of the house stocks was as of
February 2001 instead of April 2001. No party challenges that disparity.
UNITED STATES v. LAURIENTI 8241
2. Sufficiency of the Evidence
Defendants next argue that the government did not meet its
burden of establishing that the clients who did not testify at
trial were victims, because there was insufficient evidence to
establish that those clients invested because of the criminal
conspiracy. Defendants do not challenge that the non-
testifying clients bought house stocks and suffered losses.
Instead, Defendants argue that the district court could not
have concluded, without more evidence, that those clients
were victims of the conspiracy. We disagree. Defendants were
convicted of criminal conspiracy to defraud clients specifi-
cally by recommending the house stocks; in the circumstances
shown in this record, it is reasonable to infer that all clients
of Defendants who purchased the house stocks were duped by
the conspiracy. Except as described below, Defendants did
not offer any evidence to rebut that inference.
[32] Defendant Laurienti presented evidence that two of
his clients were not victimized. In its briefing on appeal, the
government concedes that the loss calculation should not have
included those two clients’ losses. Appellee’s Br. at 91 n.33.
We agree and hold that the district court erred by including
those clients’ losses in the loss calculation.
[33] Defendant Parker presented evidence that two of his
clients suffered much smaller losses than the losses calculated
by the government. In its briefing on appeal, the government
admits that Defendant Parker’s calculations are correct: Two
of his clients suffered smaller losses. Appellee’s Br. at 104-
05. We agree and hold that the district court erred by over-
stating the losses to those clients.
3. Failure to Offset Gains
The government calculated the losses for a particular victim
as follows. For each house stock that a victim bought, the
government calculated the total net loss or gain for that stock
8242 UNITED STATES v. LAURIENTI
by that victim. It then added up all of the net losses that the
victim incurred, ignoring any house stocks in which the vic-
tim had accrued a gain. For instance, if a victim lost $200,000
on stock A but gained $50,000 on stock A in an earlier trans-
action, then the total loss would be $150,000. But if the victim
lost $200,000 on stock A and gained $50,000 on stock B, then
the total calculated loss would be $200,000: The $50,000 gain
was not factored in, because the gain accrued on a different
house stock.
[34] There is no logical reason to offset gains made on one
house stock, but not to offset the gains made on a different
house stock. The single scheme to defraud encompassed all
four house stocks. For a given victim, it is the net loss or gain
of all house stocks that truly accounts for the actual loss to the
victim as a result of the scheme to defraud. Cf. United States
v. Orton, 73 F.3d 331, 334 (11th Cir. 1996) (holding that, in
calculating loss from a Ponzi scheme, the district court cor-
rectly calculated the net loss to the losing victims); United
States v. Mount, 966 F.2d 262, 265 (7th Cir. 1992) (noting
that “a fraud that consists in promising 20 ounces of gold but
delivering only 10 produces as loss the value of 10 ounces of
gold, not 20”). The proper focus is on the amount of loss for
a particular victim. It is true that, for those clients who experi-
enced a gain as a result of the fraudulent scheme, the govern-
ment correctly determined that those gains should not be used
to offset the losses to other victims. Orton, 73 F.3d at 334.
But, for any given victim, it is the net loss that matters; there
is no basis for selectively offsetting gains for some house
stocks but not others. We hold that the district court’s calcula-
tion method erred in this regard.
4. Calculation Method Generally
Defendants argue that the district court’s calculation
method is also contrary to our opinion in United States v.
Zolp, 479 F.3d 715 (9th Cir. 2007). In Zolp, the defendant had
conducted a “pump and dump” scheme similar to the one at
UNITED STATES v. LAURIENTI 8243
issue here. The stocks in that case came from legitimate com-
panies whose stock values were inflated through the fraudu-
lent scheme. Id. at 717. The district court calculated the actual
loss as the amount that the victims paid to buy the stock, with
no offset for the present-day value of the stock. Id. 717-18.
We held that that calculation method was erroneous. Id. at
718-19. If the underlying company was worthless or practi-
cally worthless, it is reasonable to use the total investment
cost as the actual loss. Id. at 719. But, if the underlying com-
pany has intrinsic value, then the use of the total investment
cost is erroneous. Id. We held that,
because the stock continues to have residual value
after the fraudulent scheme is revealed, the court
may not assume that the loss inflicted equals the full
pre-disclosure value of the stock; rather, the court
must disentangle the underlying value of the stock,
inflation of that value due to the fraud, and either
inflation or deflation of that value due to unrelated
causes.
Id.
[35] The government argues that the district court’s calcu-
lation method here is consistent with Zolp because, unlike in
Zolp where the district court used no offset, the district court
here offset the victim’s losses with the market value of the
stock as of April 2001. We are only partially persuaded. In
Zolp, we held that the district court “must disentangle the
underlying value of the stock, inflation of that value due to the
fraud, and either inflation or deflation of that value due to
unrelated causes.” Id. (emphasis added). Although the district
court here accounted for “the underlying value of the stock,”
it did not account for the market forces that also contributed
to the decrease in stock value. It is undeniable that, in addition
to the fraud, the market’s drop in 2000 had an effect on stock
values.
8244 UNITED STATES v. LAURIENTI
We are aware, and Defendants do not appear to dispute,
that some of the house stocks may have fallen into the cate-
gory of “practically worthless” stocks that we discussed in
Zolp. On remand, for each house stock, the district court must
either make a finding that the stock is “practically worthless,”
as discussed in Zolp, or it must estimate the “inflation or
deflation” of the value of the house stock due to market
forces, unrelated to the conspiracy.
5. Holistic Perspective
The thrust of the government’s arguments concerning the
loss calculation is that, even if there are some minor errors,
the Sentencing Guidelines require only a reasonable estimate,
not mathematical precision. There is force to the govern-
ment’s argument. “The district court’s determination of loss
is a finding of fact to which we must give ‘appropriate defer-
ence,’ see U.S.S.G. § 2B1.1, cmt. n.3(C), and which we
review for clear error.” Zolp, 479 F.3d at 718. “The court
need not make its loss calculation with absolute precision;
rather, it need only make a reasonable estimate of the loss
based on the available information.” Id. at 719. The govern-
ment argues that, even if the district court’s calculations were
somewhat erroneous, the calculated losses are a reasonable
estimate of the loss caused by each Defendant and that, there-
fore, the loss calculations should not be reversed.
In this regard, the government points out that its calculation
method is grossly in Defendants’ favor in at least three ways.
First, the government attributed to each Defendant only those
losses that had a direct connection to the Defendant. Because
Defendants were convicted of conspiracy, the government
likely could have attributed almost all losses from the conspir-
acy to all Defendants. See U.S.S.G. § 1B1.3(a)(1)(B) (permit-
ting loss calculation to include “all reasonably foreseeable
acts and omissions of others in furtherance of the jointly
undertaken criminal activity”). Second, the government’s cal-
culation contained losses only with respect to the 30 victim-
UNITED STATES v. LAURIENTI 8245
clients that it investigated. The government asserts that
approximately 70 other victim-clients could be investigated.
Third, the government could have chosen to calculate
intended loss instead of actual loss. The government asserts
that the intended loss of the conspiracy was much greater than
the actual loss suffered by the victims. In sum, had the gov-
ernment so chosen, it could have introduced evidence of much
greater losses for all Defendants. That being so, the govern-
ment argues, its chosen calculation method is a reasonable
estimate, even though it does contain some mathematical
errors.
We acknowledge that the loss calculation need be only a
reasonable estimate. In the context of this case, though, we
are unpersuaded that the “reasonable estimate” requirement
allows us to overlook the district court’s many errors, particu-
larly because many of the errors suffer from logical defects.
All methodologies for estimation have inherent imperfections;
otherwise they would be precise calculations, not estimates.
So long as those imperfections are logical and are not prone
to overwhelming the final result, they are permissible. But
where, as here, the imperfections are illogical, such as the
failure to offset gains in certain house stocks, it is impossible
to tell whether the ultimate estimate is reasonable or not. Hav-
ing chosen to calculate actual loss for a subset of victims tied
to each Defendant, the government cannot now argue that its
flaws in calculation are irrelevant simply because it could
have calculated loss differently.
On the other hand, the government has always made clear,
to the court and to Defendants, that its loss calculations could
greatly exceed the loss calculations that it actually submitted
to the district court. Defendants nevertheless chose to appeal
the government’s calculation method. Because we remand for
resentencing on an open record, the government is free to
present evidence concerning any calculation methods that are
consistent with the Sentencing Guidelines, our discussion
above, and its ethical obligations. See Nulph v. Cook, 333
8246 UNITED STATES v. LAURIENTI
F.3d 1052, 1057 (9th Cir. 2003) (“A defendant has a due pro-
cess right under the Fourteenth Amendment not to be sub-
jected to vindictive sentencing after successfully attacking a
conviction or sentence.”).
D. Restitution Orders
[36] Finally, Defendants challenge the calculation of loss
for purposes of restitution. Although a reasonable estimate
suffices for the loss calculation, “[t]he amount of restitution
must be definite and limited by the amount actually lost by
the victims.” United States v. Barany, 884 F.2d 1255, 1260
(9th Cir. 1989) (internal quotation marks omitted). As dis-
cussed above, the district court erred in certain respects in its
calculation of loss. Accordingly, we vacate all four restitution
orders and remand for recalculation of actual loss.
Convictions AFFIRMED; sentences and restitution orders
VACATED and cases REMANDED for resentencing and
recalculation of restitution.
|
Tsionis v Eriora Corp. (2014 NY Slip Op 08421)
Tsionis v Eriora Corp.
2014 NY Slip Op 08421
Decided on December 3, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 3, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
RUTH C.BALKIN
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.
2013-00425
2013-00427
(Index No. 30126/11)
[*1]Elias Tsionis, et al., respondents,
vEriora Corp., et al., defendants, Soo I Yong, appellant.
Richard S. Piedmont, Latham, N.Y., for appellant.
Sekas & Abrahamsen, LLC, New York, N.Y. (Nicholas G. Sekas of counsel), for respondents.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Soo I Yong appeals (1) from an amended order of the Supreme Court, Rockland County (Alfieri, Jr., J.), dated March 6, 2012, which, in effect, granted the plaintiffs' ex parte motion for leave to enter a default judgment of foreclosure, and thereupon, inter alia, fixed the amounts due and owing under a primary mortgage held by the plaintiffs, determined that the defendant Soo I Yong held an invalid second mortgage and was barred from redeeming any interest in the subject premises, and directed that the premises be sold for the benefit of the plaintiffs with any surplus amounts to be recovered by the defendant Eriora Corp., and (2), as limited by his brief, from so much of an order of the same court dated September 24, 2012, as denied that branch of his motion which was to vacate the amended order dated March 6, 2012.
ORDERED that the appeal from the amended order dated March 6, 2012, is dismissed, as no appeal lies from an order issued ex parte (see CPLR 5701[a][2]; Household Fin. Realty Corp. of N. Y. v Winn, 19 AD3d 545); and it is further,
ORDERED that the order dated September 24, 2012, is reversed insofar as appealed from, on the law, and that branch of the motion of the defendant Soo I Yong which was to vacate the amended order dated March 6, 2012, is granted; and it is further,
ORDERED that one bill of costs is awarded to the defendant Soo I Yong.
This mortgage foreclosure action involves commercial property located in Tappan, New York. In the complaint, the plaintiffs alleged that the defendant mortgagor, Eriora Corp. (hereinafter Eriora), defaulted on the mortgage loan issued to it by the plaintiffs. The plaintiffs also named Soo I Young (hereinafter the appellant) as a defendant in the action, alleging that he held a second mortgage on the subject premises. The complaint alleged that the plaintiffs' primary note and mortgage contained no prepayment penalty and the plaintiffs sought a judgment of foreclosure and sale.
The plaintiffs moved, ex parte, for leave to enter a default judgment of foreclosure on the basis that none of the defendants had appeared or answered the complaint. By amended order [*2]dated March 6, 2012, the Supreme Court, in effect, granted the plaintiffs' motion for leave to enter a default judgment, and thereupon, inter alia, fixed the amounts due and owing on the primary mortgage issued by the plaintiffs, determined that the appellant held an invalid second mortgage and was barred from redeeming any interest in the subject premises, and directed that the premises be sold for the benefit of the plaintiffs with any surplus amounts to be recovered by Eriora.
The appellant moved, among other things, to vacate the amended order. He argued, inter alia, that he had appeared in the action but did not receive notice of any of the subsequent proceedings, including the plaintiffs' motion for leave to enter a default judgment. The appellant contended that the amended order erroneously stated that he had not made an appearance and granted relief to the plaintiffs that exceeded the relief sought in the complaint. The appellant also argued that he had a valid second mortgage and that he was entitled to any surplus funds resulting from a foreclosure sale. The Supreme Court denied that branch of the appellant's motion which was to vacate the amended order. This was error.
CPLR 320(a) provides that a defendant may appear in an action in one of three ways: (1) by serving an answer, (2) by serving a notice of appearance, or (3) by making a motion which has the effect of extending the time to answer (see USF & G v Maggiore, 299 AD2d 341, 342). Here, the appellant appeared in the action by timely serving his notice of appearance upon the plaintiffs (see CPLR 320[a]) and, therefore, there was no default.
Contrary to the plaintiffs' contention, the appellant was not required to serve an answer where the complaint did not set forth any allegations that the appellant was required to defend against (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C320:1 at 130; 2—R320 Weinstein-Korn Miller, N.Y. Civ. Prac. ¶ 320.03). "A defendant who has no defense, and therefore serves no pleading, might nevertheless serve a notice of appearance so as to be kept apprised of the progress of the proceeding" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C320:1 at 130). Such was the situation here. The complaint contained no allegations about the appellant, except to state that he had a second mortgage on the property. Thus, the appellant properly proceeded by serving a notice of appearance only and was entitled to be kept apprised of the proceedings.
Contrary to the plaintiffs' further contention, the appellant was not required to file his notice of appearance with the Supreme Court. There is no statutory or other requirement that a notice of appearance, timely served upon a plaintiff, must also be filed with the clerk of the relevant court in order for a defendant to appear in the action (cf. Goonan v New York City Tr. Auth., 74 AD3d 747, 748). Moreover, since the appellant did not have proper notice that this action was e-filed, it was appropriate for the appellant to serve the notice of appearance on the plaintiffs without e-filing it (cf. 22 NYCRR 202.5-bb).
The appellant also correctly argues that the relief granted to the plaintiffs in the amended order improperly exceeded the relief sought in the complaint (see CPLR 3215[b]). In addition to determining that the appellant did not have a valid second mortgage, which was not alleged in the complaint, the amended order awarded the plaintiffs a prepayment penalty as part of the amount due and owing under the primary mortgage. The complaint, however, alleged that there was no prepayment penalty. Under these circumstances, the Supreme Court should have granted that branch of the appellant's motion which was to vacate the amended order.
MASTRO, J.P., BALKIN, MILLER and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
|
119 F.3d 3
Voinchev.CIA**
NO. 96-31270
United States Court of Appeals,Fifth Circuit.
June 18, 1997
Appeal From: W.D.La. ,No.96CV1708
1
Dismissed.
**
Conference Calendar
|
697 F.2d 301
U. S.v.Sun Myung Moon
82-3015
UNITED STATES COURT OF APPEALS Second Circuit
3/19/82
1
S.D.N.Y.
MANDAMUS DENIED
|
IN THE
TENTH COURT OF APPEALS
No. 10-06-00124-CR
Martin Saucedo Castor,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2000-759-C
BRIEFING ORDER
Acting as his own attorney, Martin
Saucedo Castor filed a notice of appeal. The notice of appeal invoked our
jurisdiction, at least to the extent of determining whether or not we have
jurisdiction of the merits of the underlying issues that Castor sought to
appeal. Still acting as his own attorney, Castor has now filed a “Motion to
Dismiss Appeal.” In the motion, Castor indicates that the notice of appeal was
filed in error and that the issue he is seeking to appeal is “jail time credit
‘Nunc Pro Tunc’ appeal. . . .”
The motion to dismiss does not contain
proof of service as required by Texas Rule of Appellate Procedure 9.5. A copy
of all documents presented to the Court must be served on all parties to the
appeal and must contain proof of service. Tex.
R. App. P. 9.5(a), (d).
Normally in this situation, we would
notify the appellant that he has fourteen days from the date of notice to
provide a proper proof of service to the Court or the relief requested in the
related document would be dismissed or the document stricken.
In this situation, however, we are
hereby providing a copy of the motion to dismiss on the State and requesting a
response to Castor’s motion to dismiss within twenty-eight days.
We ask the State to brief in response
whether or not we should first inquire as to whether or not Castor is entitled
to be represented by counsel for the issue presented to the trial court and on
appeal of that issue, and if Castor is entitled to representation on appeal,
whether or not we should abate the case to the trial court for a determination
of whether or not Castor should be allowed to represent himself on appeal. The
State’s brief is due twenty-eight days after the date of this Order.
PER
CURIAM
Before
Chief Justice Gray
Justice
Vance, and
Justice
Reyna
Briefing
ordered
Order
issued and filed July 19, 2006
Do
not publish
/p>
4. Dr. Mercer has
advised Finnegan . . . , and confirms, that retaining him as a technical expert
and consultant for the Civil Action will not create any conflict or potential
conflicts with any responsibilities that he has as a result of his present or
former employment or as a result of his other consulting work. Moreover, Dr.
Mercer agrees that although he will function as a non-exclusive consultant to
Finnegan . . . , he will not establish any new consulting or employment
relationships in conflict with his obligations under this Agreement. In the
event Dr. Mercer proposes to establish any additional consulting or employment
relationships that may result in a conflict or potential conflict, during the
period this Agreement is in effect, Dr. Mercer agrees that he will notify
Finnegan . . . of the name and address of the other organization and will
disclose to Finnegan . . . the nature of the other consulting arrangement to
the extent it is permitted by the other organization. At that time, the
parties will determine whether an actual or potential conflict exists and the
best manner of avoiding such a conflict, including possible termination of this
Agreement.
5. This Agreement
shall be for a term commencing on the date of execution by Dr. Mercer and will
extend until terminated by either party to this Agreement. Finnegan . . . or
Dr. Mercer may terminate this Agreement at any time by providing the other
party with written notice of such termination. However, the obligations
assumed by Dr. Mercer pursuant to Paragraphs 3 and 4 shall survive termination
of this Agreement for a period of three years.
Darren Jiron, a patent
attorney with Finnegan, testified that, after Mercer had signed the Retainer
Agreement, Jiron sent Mercer the five patents that were at issue in the Sony
litigation for him to review. The patents are public documents. Finnegan
attorneys also communicated with Mercer about setting up a face-to-face meeting
to discuss the issues in the case. Those communications led to a
videoconference between three Finnegan attorneys, including Jiron, and Mercer.
Jiron stated that the first thirty minutes of the videoconference were spent
getting to know Mercer and learning about his background and experience. They
also discussed the technology involved in the case, including an overview of
the five patents that Mercer had been asked to review, and spent some time
talking about the allegations in the case and the general case strategies that
the Finnegan attorneys had developed.[1]
The videoconference lasted approximately four and one-half hours.
Jiron testified that he did
not recall conversing with Mercer after the videoconference until July 3, 2007,
approximately four and one-half months later, when he e-mailed Mercer that the Sony
litigation was subject to a stay pending potential settlement. Sony later
signed a license agreement that settled the litigation. Mercer did not submit
a bill for payment for his services.
On October 1, 2008, Mercer
contacted Jiron by both voicemail and e-mail to inform him that he had been
approached by O2 Micro with a consulting opportunity in unrelated litigation
and that he wanted confirmation for his files that he was not bound by the
Retainer Agreement since it was his understanding that the Sony case had
settled long ago and he had neither requested nor received payment for his
services in that case. On October 7, 2008, Jiron sent Mercer a reply e-mail,
stating that the Sony case had settled but that the Retainer Agreement “remains
binding.” Jiron also stated in his reply e-mail that Finnegan was checking
with Sony regarding Mercer’s request to work with O2 Micro on a project
unrelated to the dispute between O2 Micro and Sony; however, Finnegan did not
contact Sony. Instead, Finnegan determined that the issue involved its own
work product, and it thus did not need to contact Sony.
Jiron testified that in
February 2009, Finnegan began representing Monolithic Power Systems, Inc. (MPS)
and ASUSTek (ASUS) in another suit filed by O2 Micro. On April 23, 2009, pursuant
to the ground rules in the International Trade Commission (ITC) investigation,
O2 Micro identified to all the parties in the case its intent to share
confidential information with two individuals, one of them being Mercer. Jiron
testified that Finnegan was shocked and, pursuant to the ground rules, raised
an objection to the other side. Jiron explained that there is a ten-day period
after an objection is raised in which the parties are to confer and see if they
can resolve the dispute. Jiron testified that Finnegan had several
communications with opposing counsel, but the dispute was not resolved.
Finnegan then filed a motion
to intervene in the ITC investigation for the limited purpose of attempting to
enforce the provisions of the Retainer Agreement and to disqualify Mercer as an
expert in the case. The administrative law judge denied Finnegan’s motion to
intervene, and Mercer was not disqualified as an expert. Jiron testified that Mercer’s
breach of the Retainer Agreement was causing Finnegan to suffer irreparable
harm.
After Jiron testified at the
temporary injunction hearing, the trial court asked Finnegan’s counsel to
explain why he believed Finnegan had standing. The court then signed an order
stating that, after determining Finnegan lacked standing and had an adequate
remedy at law, Finnegan’s request for a temporary injunction was denied.
Discussion
A temporary injunction’s
purpose is to preserve the status quo of the litigation’s subject matter
pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d
198, 204 (Tex. 2002). A temporary injunction is an extraordinary remedy and
does not issue as a matter of right. Id. To obtain a temporary
injunction, the applicant must plead and prove three specific elements: (1) a
cause of action against the defendant; (2) a probable right to the relief
sought; and (3) a probable, imminent, and irreparable injury in the interim. Id. A probable right to the relief sought is shown by alleging a cause of
action and presenting evidence that tends to sustain it. Vaughn v. Intrepid
Directional Drilling Specialists, Ltd., 288 S.W.3d 931, 936 (Tex. App.—Eastland 2009, no pet.); Tanguy v. Laux, 259 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2008, no pet.). An injury is irreparable if the injured
party cannot be adequately compensated in damages or if the damages cannot be
measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204.
In its first issue, Finnegan
argues that the trial court erred in denying its request for a temporary
injunction based on lack of standing.
Standing is a component of
subject-matter jurisdiction and is a constitutional prerequisite to maintaining
a lawsuit. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 443-44 (Tex. 1993). The standing doctrine requires that there be a real
controversy between the parties that will be actually determined by the
judicial declaration sought. Austin Nursing Ctr., Inc. v. Lovato, 171
S.W.3d 845, 849 (Tex. 2005); Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001). A plaintiff has standing when it is personally aggrieved, regardless of
whether it is acting with legal authority. Nootsie, Ltd. v. Williamson
County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). Because standing
is a component of subject-matter jurisdiction, we consider Finnegan’s standing
as we would a plea to the jurisdiction. See Brown, 53 S.W.3d at 305
n.3; Dass, Inc. v. Smith, 206 S.W.3d 197, 201 (Tex. App.—Dallas 2006, no
pet.).
Generally, a trial court looks to the
allegations of a plaintiff’s petition to determine standing. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). However,
under certain circumstances, when deciding a jurisdictional challenge, a trial
court may go beyond the allegations in the pleadings and consider evidence. See
id. at 227 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
555 (Tex. 2000)); Sarah v. Primarily Primates, Inc., 255 S.W.3d 132,
142-43 (Tex. App.—San Antonio 2008, pet. denied) (in determining jurisdictional
issue, court considered contract entered into evidence at hearing on motion to
dismiss). Here, Finnegan’s petition incorporated the Retainer Agreement by
reference. Finnegan’s trial counsel also entered the Retainer Agreement into
evidence at the temporary injunction hearing. Thus, the Retainer Agreement is
evidence that the trial court considered in deciding Finnegan’s request for
injunctive relief, and, because it is necessary to resolve the jurisdictional
issue, we will consider it on appeal. See Miranda, 133 S.W.3d at 227.
Finnegan argues that it, in addition to
Sony, has standing to sue on the Retainer Agreement because it has its own
rights and interests in the contract. Conversely, Mercer argues that Finnegan
has no independent interest in the Retainer Agreement outside of the interest
owned by Sony. We agree with Mercer.
Finnegan is not a party to the Retainer
Agreement. See Am. Heritage, Inc. v. Nev. Gold & Casino, Inc., 259
S.W.3d 816, 820 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (“A party to a
contract has standing to maintain a suit on the contract.”) (citing Interstate
Contracting Corp. v. City of Dallas, 135 S.W.3d 605, 618 (Tex. 2004)). The
first paragraph of the Retainer Agreement expressly states: “This Agreement is
entered into by and between Finnegan, Henderson, Farabow, Garrett & Dunner,
L.L.P. (“Finnegan, Henderson”), on behalf of Sony Corporation, Sony EMCS
Corporation, and Sony Electronics Inc., (collectively “Sony”) and Dr. Melvin
Ray Mercer (“Dr. Mercer”) . . . .” (Emphasis added.) Likewise, Finnegan signed
the Retainer Agreement as “Attorneys for Sony Corporation, Sony EMCS
Corporation, and Sony Electronics Inc.,” rather than in its principal capacity.
Generally someone who is not a party to
an agreement has no interest in the terms of that contract. Wells v. Dotson,
261 S.W.3d 275, 284 (Tex. App.—Tyler 2008, no pet.) (citing Grinnell v.
Munson, 137 S.W.3d 706, 712 (Tex. App.—San Antonio 2004, no pet.)); El Paso Cmty. Partners v. B & G/Sunrise Joint Venture, 24 S.W.3d 620, 626 (Tex. App.—Austin 2000, no pet.). However, a person who is not in privity to the written
agreement may show that he is eligible to bring an action on the contract as a
third-party beneficiary. Wells, 261 S.W.3d at 284.
There is a presumption against
conferring third-party-beneficiary status on noncontracting parties. S.
Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306 (Tex. 2007). In deciding
whether a third party may enforce or challenge a contract between others, it is
the contracting parties’ intent that controls. Id. The intent
to confer a direct benefit upon a third party “must be clearly and fully
spelled out or enforcement by the third party must be denied.” Id. (quoting MCI Telecommc’ns Corp. v. Tex. Utils. Elec. Co., 995
S.W.2d 647, 651 (Tex. 1999)). Incidental benefits that may flow from a
contract to a third party do not confer the right to enforce the contract. Id. A third party may only enforce a contract when the contracting parties
themselves intend to secure some benefit for the third party and entered into
the contract directly for the third party’s benefit. Id. To
qualify as one for whose benefit a contract was made, the third party must
benefit more than incidentally; he must be either a donee or creditor
beneficiary. Id. A person is a donee beneficiary if the
performance promised will come to him as a pure donation. Id. If
performance will come to satisfy a duty or legally enforceable commitment owed
by the promisee, then the third party is considered a creditor beneficiary. Id.
Finnegan contends that, by entering into
the Retainer Agreement, the parties to the contract intended to protect
Finnegan’s own personal interest in its confidences and work product. However,
the Retainer Agreement expressly provides, “Dr. Mercer acknowledges that any
information received under this Agreement remains the property of Sony.”
(Emphasis added.) The language of the contract thus reveals that the parties’
intent was to protect the interests of Sony, not Finnegan. Therefore, we
conclude that Finnegan lacks standing to sue Mercer for breach of contract.
Nor has Finnegan shown that it has
standing to seek declaratory relief regarding the Retainer Agreement. Section
37.004(a) of the Declaratory Judgment Act provides in pertinent part, “A person
. . . whose rights, status, or other legal relations are affected by a . . .
contract . . . may have determined any question of construction or validity
arising under the . . . contract . . . and obtain a declaration of rights,
status, or other legal relations thereunder.” Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (Vernon 2008).
However, as explained above, Finnegan possesses no enforceable contractual
rights under the Retainer Agreement.
Because Finnegan lacks standing to sue
Mercer for breach of contract or for declaratory relief, Finnegan did not
establish that it has a cause of action against Mercer. See Butnaru, 84
S.W.3d at 204. As a result, we hold that the trial court properly denied Finnegan’s
request for a temporary injunction because Finnegan lacked standing. We
overrule Finnegan’s first issue and need not address its second issue. See
Tex. R. App. P. 47.1.
Conclusion
Having overruled Finnegan’s first issue,
we affirm the trial court’s order denying Finnegan’s request for a temporary
injunction.
REX D. DAVIS
Justice
Before
Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray dissents to the
Court’s affirmation of the trial court’s judgment. A separate opinion will not
issue. Chief Justice Gray notes, however, that if the Court is to maintain a
parochial view of the legal profession, the result may be correct. But because
he believes the Court must recognize the national and international implication
of our decisions, the Court cannot take such a narrow view of this proceeding.
He believes when the transaction is taken in context, it is Finnegan’s contract
that recognizes the client’s obligation to pay, or at the very least, Finnegan
was an intended third party beneficiary of the contract known to Mercer. Under
either view, the trial court erred by not granting a temporary injunction. He
respectfully dissents.)
Affirmed
Opinion
delivered and filed December 30, 2009
[CV06]
[1] Mercer denies that Finnegan provided
him with any of Sony’s confidential information during the videoconference.
|
895 F.Supp. 668 (1995)
Mary Kathleen FERNOT, Plaintiff,
v.
CRAFTS INN, INC., A Corporation, et al., Defendants.
No. 91-CV-29.
United States District Court, D. Vermont.
August 2, 1995.
*669 *670 *671 *672 *673 Katherine A. Hayes, and David F. Silver, Barr, Sternberg & Moss, P.C., Bennington, VT, for plaintiff.
John Downes Burke, Castleton, VT, for Crafts Inn, Inc., and Alice Richter.
John Eric Anderson, Anderson & Hartwell, Manchester, VT, for Crafts Inn Owners Association.
R. Joseph O'Rourke, and Martha Marguerite Smyrski, Ryan, Smith & Carbine, Ltd., Rutland, VT, for Coin Devices Corporation, Inc., Coin Depot Corporation, and Herman J. Koehler, III.
Caesar Passannante, Brewster, NY, pro se.
OPINION AND ORDER
GAGLIARDI, Senior District Judge.
I. Introduction
Defendants have moved for judgment as a matter of law or in the alternative for a new trial or remittitur. For the reasons discussed below, the motion for judgment as a matter of law is granted in part and denied in part, and the motion for a new trial or remittitur is denied. The decision on the federal claims is also set out below.
II. Claims
This case involves multiple claims against multiple defendants which arose from the employment of plaintiff, Mary Kathleen Fernot ("Fernot"), in connection with a time-share resort called the Crafts Inn ("the Inn") in Wilmington, Vermont, in 1989. Fernot asserted state and federal claims of sex discrimination through hostile environment and quid pro quo sexual harassment and retaliation for complaints thereof under Vermont's Fair Employment Practices Act ("FEPA"), 21 V.S.A. §§ 495-496 (1987 and Supp.1994), and Title VII, 42 U.S.C. § 2000e et seq. (1994) ("Title VII"), a state common law claim of intentional infliction of emotional distress ("IIED") and a final claim under the federal Equal Pay Act, 29 U.S.C. § 206(d) (1978).[1]
III. Trial
A. Procedure
All of the state law claims were tried to a jury. The sex discrimination claims proceeded against Crafts Inn Inc. ("CII"), the Crafts Inn Owners Association ("the Association"), Coin Depot Corporation ("CDC"), Herman J. Koehler, III, ("Koehler"), Alice Richter ("Richter") and Caesar Passannante ("Passannante"), Fernot having voluntarily discontinued this claim against the Stirrup Cup Lounge ("the Lounge") which was not represented at trial. The IIED claim proceeded against CDC, Koehler and Passannante, the plaintiff having voluntarily discontinued this claim against the other defendants. The federal claims, Title VII sex discrimination claims, which parallel the FEPA claims, and the Equal Pay Act claim, were tried to the *674 court against all seven defendants.[2]
B. Jury Verdict
1. FEPA Claims
CII, CDC, Koehler, Richter and Passannante were found liable on all three claims. The Association was found not liable on all three claims. The compensatory damages for all three claims were considered together and were found to be $215,000. Punitive damages were assessed against Koehler and Passannante only in the amounts of $50,000 and $2,500 respectively.
2. IIED
Koehler and Passannante were found liable. CDC was found not liable. The compensatory damages were found to be $125,000. Punitive damages were assessed against Koehler and Passannante in the amounts of $40,000 and $2,500 respectively.
C. Facts
On this motion for judgment as a matter of law, the evidence must be taken in the light most favorable to the plaintiff, including all reasonable inferences which might have been drawn in her favor. Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114, 117 (2nd Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995). In such a light, the facts were as follows.
1. Parties
Fernot was a co-resort manager at the Inn from September, 1988, until July, 1989. In that position, she was paid by the Association. She had worked at the Inn in various positions, including marketing, since 1985.
At all times relevant, the Inn was a time-share resort, CII was a general partner in the Crafts Inn Limited Partnership ("the Partnership"), which was involved in marketing the time-shares at the Inn but was not a party, and the Association was an organization of the owners of time-shares at the Inn and was involved in maintaining the Inn for the owners with such services as housekeeping and reception. The Lounge was a restaurant at the Inn.
Based in Elizabeth, New Jersey, CDC was at all times relevant an armored trucking company which collected, sorted and organized coins for banks in the New York City and New Jersey area. It was owned and operated by Koehler.
At all times relevant, Koehler was the developer of the Inn and a limited partner in the Partnership, owning a 37% interest in it. Koehler or the accounting staff at CDC controlled "every dollar that came in and every dollar that went out" of the entities at the Inn. Koehler made most of the management decisions.
In June 1989, Koehler hired Passannante to revive the marketing by the Partnership of the time shares at the Inn. From mid-July, 1989, through at least the end of December, 1989, Passannante ran the marketing program, although he was not at the Inn every day. During the same period, Richter was the general manager and oversaw the employees of the Lounge, the Association and the Partnership on a day-to-day basis. Richter and Passannante were put in their positions by Koehler. Richter was paid by the Association and the Partnership from July, 1989, through at least the end of December, 1989. Passannante was paid by Koehler through the Partnership. Passannante and Richter reported to Koehler through Frank Murphy and Diane Karovic, who were formally employed as Vice Presidents of CDC.
2. Other Major Participants
Robert Hall was general partner of the Partnership from 1984 through 1989 but during the relevant period he was at most general partner in name only. While Hall was general partner of the Partnership, he was paid by Koehler through CDC. After 1985, Hall and Fernot cohabited.
At all relevant times, Karovic was Koehler's assistant. Information to and directions *675 from Koehler about the situation at the Inn would generally pass through her.
At all relevant times, Murphy was chief financial officer of CDC. He was the comptroller for the Inn. Richter would inform Murphy about "just about everything" she did. Murphy would inform Koehler of the situation at the Inn.
3. July: Initial Harassment
In mid-July, at Fernot's first meeting with Passannante, he told her "with a face and body like [yours], [you] can have anything [you] want at Crafts Inn," while holding her hand. Fernot did not respond other than by withdrawing her hand. She was embarrassed and insulted.
Fernot was with Passannante when he closed the restaurant towards the end of July. Without any indication of interest from Fernot, Passannante hugged Fernot and told her that he was happy that she had been there for him. Fernot was uncomfortable and uneasy. She hoped that if she ignored Passannante's conduct, he would stop.
Shortly after the closing of the restaurant, Fernot saw Passannante explode in anger when on the phone with CDC. Passannante was a large man, about six feet and well over three hundred pounds. Passannante's tantrum scared Fernot.
4. August: Continued Harassment
In July, Fernot was told by Passannante that she was to be moved from her position as resort manager to the position of "marketing director" and was told that Koehler wanted her out of her present position. Fernot began working for marketing in the first week of August. In that position, she was paid by the Partnership.
In mid-August, Fernot was in the main lobby. Passannante came in, grabbed Fernot, pressed her against him and spun her around the lobby. She tried to push Passannante away. She felt pain from the tightness of his grasp. She was embarrassed. Fernot had not flirted with Passannante, been playful with him or touched him. She was afraid because Passannante's conduct was continuing even though she had tried to ignore it.
One day, Passannante called Fernot into his office. He had an "Endless Vacation" magazine which had on its cover a mention of "Phucket, Asia." Passannante repeatedly asked Fernot to tell him what it said. She did not. He said "I'm going to take you there and you're never going to want to come back."
5. First Complaint and Continued Harassment
Fernot realized that she needed help. In addition to the specific incidents, whenever Passannante spoke to Fernot he stared at her breasts. He "was always making sexual comments" to Fernot, such as, that her legs went all the way to her neck. A couple of times, he asked Fernot to accompany him to his house, ostensibly to discuss marketing. When Fernot told Richter of these repeated statements, Richter said only that Fernot should not worry because Passannante was married.
6. September: Continued Harassment
One day in September, Fernot was told that Passannante wanted to see her in the restaurant. Fernot went. As she approached, Passannante was leering at her. Passannante said "You look great in that purple sweater. Do you know that purple is the passion color?" While putting his arms around her, Passannante asked "Do you want to show me how passionate you can be?" Fernot said no and left. She was "scared to death." Fernot thought that Passannante wanted to have sex with her and that if she did not she would lose her job.
7. Further Complaints
Fernot told Richter over the phone what Passannante had said. The next day she went to meet with Richter. She asked for a meeting with Passannante with someone else present. She told Richter about the incident in the restaurant and about Passannante's violent temper. Richter seemed uninterested and told Fernot, "If you don't do what Caesar tells you to do, you'll be fired." Fernot told Hall and asked him to tell Koehler.
About two weeks after the complaint to Richter, Passannante smashed a door in the Inn. The next day, in front of Fernot, Passannante said, "People in this place have to *676 do what they're told." He turned to Fernot and told her that she had "misunderstood." He tried to hug her again, but Fernot resisted and left.
In early October, Koehler sent Sharon Hunsinger (now Koehler) to the Inn to investigate Fernot's complaint on his behalf. Hunsinger met with Fernot and others. Fernot told Hunsinger of the purple sweater incident and that she needed help. Hunsinger's response was that Fernot needed to be more aggressive.
Koehler ordered Hall to meet with him in New Jersey. They had a long discussion about the allegations of sexual harassment. Koehler said, referring to Fernot and Linda Giove who also complained of harassment by Passannante, "[t]hese girls are lying, they're scum." He told Hall that he was "overruled[;] Caesar and Alice are taking over and you're going to resign and you're going to Florida."
8. November and December: Retaliation
Finally, in late October or early November, Fernot met with Passannante, Richter and Giove, the other marketing staff member. Fernot complained about Passannante's treatment of her. Soon after the meeting, the staff, Richter and Passannante stopped speaking to Fernot.
Fernot received a memorandum from Passannante dated November 15 which indicated that the phones needed to be answered seven days a week from noon until eight. Fernot received a memorandum from Passannante dated November 20, requiring that the phones be answered by the sales staff from eight to eight, seven days a week. She then received a memorandum from Richter dated November 21 which indicated that the hours were twelve to eight, weekdays, and eight to eight, weekends. Passannante, however, insisted that Fernot had to work from eight until eight, seven days a week. Fernot's hours had been twelve noon until eight in the evening, six days a week. While the memoranda said only that the phone must be answered in those hours and both Fernot and Giove were on the marketing staff, there were so many calls and so much other work to do that both were needed for all of the hours.
A memo on December 6 from Koehler to Richter, Passannante, Karovic and Hall read as follows:
"Effective immediately, any issues of any magnitude which have any bearing upon the activities of the Crafts Inn, vis-a-vis:
hiring of key personnel
firing of key personnel
changes in the relationship with the restaurant marketing
terms of holding Board of Directors Meetings
maintenance agreements
anything that can create controversy
will be discussed, understood and agreed upon by the aforementioned people.
No one person will instigate or implement anything to the contrary."
On December 18, Fernot was asked by Karovic to go to CDC in New Jersey to meet with Koehler. Hunsinger and Karovic were at the meeting; Koehler was not. Fernot mentioned Passannante's remarks, the purple sweater incident, his tantrums and that the staff was not speaking with her. Karovic said that if Hall and Fernot did not toe the line and do what they were told, they would be fired.
9. Termination
Passannante asked Koehler to fire Fernot. Koehler knew of Fernot's complaint. He did not look into that "kind of thing." Koehler made the decision to fire Fernot. On December 20, Fernot was told by Hunsinger that her draw was being cut off due to budgetary constraints. When Fernot asked Passannante if she was fired, Passannante, throwing her last paychecks at her, told her "Yes" and said to her, "Pack up your shit and get out!" Passannante said that the decision had come from New Jersey. Richter said that it wasn't her decision. Fernot asked Karovic for something in writing. She received on December 21 by fax with a CDC cover sheet a memorandum ostensibly from Richter and Passannante which said that the draw of the sales staff, which included only *677 Fernot and Giove, was being cut off due to budgetary restraint.
Fernot suffered depression, loss of sleep, nightmares and anxiety for months. She felt physically ill. She vomited and had diarrhea.
IV. This Motion
A. Introduction
The defendants found liable at trial now move for judgment as a matter of law or for a new trial or remittitur. The issues going to the claims decided at trial which are presented in support of the motion for judgment as a matter of law are as follows: "(1) defendants were not plaintiff's `employers' under ... state law; (2) plaintiff failed to prove outrageous conduct to support her claim of [IIED]; (3) defendants are not liable for the acts of [] Passannante because he was an independent contractor; (4) plaintiff failed to prove a hostile work environment; (5) plaintiff failed to prove quid pro quo harassment; ... (7) because of the financial crisis the [P]artnership was in, defendant Koehler had the right to preserve his business investment by becoming involved in the day to day activities of the Partnership without losing his limited partner status[; and] (8) punitive damages should not be awarded where they are not expressly provided by statute." In support of their motion for a new trial defendants argue that "(1) the court erred by charging the jury to hold defendants liable if there was no internal complaint procedure established in the year 1989[] and (2) the damages awarded under [the FEPA claims] are excessive because they are unsupported by the evidence[]." The jury verdict must be upheld "unless the jury reached a verdict reasonable jurors could not have reached." Milbank, Tweed, Hadley & McCloy v. Boon, 13 F.3d 537, 542 (2nd Cir.1994) (citations omitted).
B. FEPA
1. FEPA and Title VII
With certain exceptions, FEPA is "patterned on Title VII of the Civil Rights Act of 1964, and the standards and burdens of proof under FEPA are identical to those under Title VII." Hodgdon v. Mt. Mansfield Company, Inc., 160 Vt. 150, 161, 624 A.2d 1122 (1992) (citation omitted).
2. Specific Claims
a. Hostile Environment
Defendants argue that Fernot failed to prove a hostile work environment. "A hostile work environment exists `when the work-place is permeated with discriminatory intimidation, ridicule and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment.'" Karibian v. Columbia University, 14 F.3d 773, 779 (2nd Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 2693, 129 L.Ed.2d 824 (1994) (quoting Harris v. Forklift Sys., Inc., ___ U.S. ___, ___, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993)).
Defendants' contention is without merit. There were several episodes of unwanted physical contact. See Carrero v. New York City Housing Authority, 890 F.2d 569, 578 (2nd Cir.1989). As Fernot's supervisor, Passannante was her "immediate superior and chief evaluator," and, as such, "he held a position of power over her that, in combination with his unwelcome sexual advances, was tantamount to coercion." Id. Passannante's sexual remarks and constant leering provide the requisite pervasiveness. The fact that the testimony indicated that Passannante was "always" making sexual remarks and regularly leered at Fernot, rather than giving specific dates, does not negate its role in establishing a work environment of sufficiently pervasive sexual harassment.
In addition, the sexual advances are critical. While these advances make up the claim of quid pro quo harassment as well, "[h]ostile environment and quid pro quo harassment causes of action are not always clearly distinct and separate; [t]he discrimination which gives rise to them is not neatly compartmentalized but, as this case demonstrates, the two types of claims may be complementary to one another." Id. at 579. Sexual advances may create an environment which meets the requisite standardone which "a reasonable person would find hostile or abusive." Harris, ___ U.S. at ___, 114 S.Ct. at 370. Here, the advances themselves were pervasive, starting at the first *678 meeting between Passannante and Fernot and continuing in the invitations to work on marketing at his home, as well as the specific incidents, especially that involving the purple sweater. The persistence of the advances, Passannante's size and temper and the unwanted touching would put a reasonable person in fear of sexual assault. A workplace under such a fear is a hostile and abusive one, and the jury's verdict as to this issue will not be disturbed.
b. Quid Pro Quo
Defendants contend that Fernot failed to prove a prima facie case of quid pro quo harassment. Such "harassment occurs when `submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting such individual.'" Karibian, 14 F.3d at 777 (quoting 29 C.F.R. § 1604.11(a)(2) (1993) (Equal Employment Opportunity Commission)). Defendants also assert that the Carrero court "held that `[t]he gravamen of a quid pro quo claim is that a tangible benefit or privilege is conditioned on an employee's submission to sexual blackmail and that adverse consequences follow from the employee's refusal.'" 890 F.2d at 579.
Defendants' contentions are without merit. There were numerous threats. The threat that submission to or refusal of a sexual advance would be the basis of an employment decision need not have been explicit. See Carrero, 890 F.2d at 573, 579. The question is whether the plaintiff had "a reasonable fear of some job-related reprisal." Karibian, 14 F.3d at 775-776, 779 (strongest explicit threat was that victim "owed" harasser for help at work). Passannante's proposition at their first meeting while grasping Fernot's hand, stating "with a face and body like [yours], [you] can have anything [you] want at Crafts Inn," could have been reasonably found to be a threat that Fernot's future depended on her submission to Passannante's advances. A reasonable juror could also have found that the suggestions that work be done at Passannante's house were sexual advances, the refusal of which would have consequences. Most strongly, when Fernot told Richter that Passannante, while holding Fernot, had asked her if she "want[ed] to show [him] how passionate [she] [could] be," Richter, who was Fernot's supervisor, told Fernot that "If you don't do what Caesar tells you to do, you'll be fired."
Defendants' argument that Carrero established adverse consequences as an element in a prima facie case of refused quid pro quo harassment is incorrect. Karibian, 14 F.3d at 778. It is the attempt to coerce acceptance of the sexual advances which is at the core of quid pro quo harassment, whether the victim submits or refuses and whether particular employment decisions are affected or not. To create a requirement of actual adverse consequences in a refusal case would be to allow quid pro quo harassment to go unpunished so long as the threats were not carried through.
Defendants argue that Fernot suffered no actual adverse consequences and that the alleged consequences were not "causally related to Plaintiff's rejection of [] Passannante's advances." Even if adverse consequences were necessary to make out a prima facie claim of quid pro quo harassment where the advances are refused, as in the present case, defendants' factual assertions are incorrect because the case is not "void of any such evidence." There were adverse consequences. After Fernot had refused Passannante's sexual advances, her working conditions were made intolerable. The staff stopped speaking to her. Her hours were dramatically increased in three contradictory memoranda from Passannante and Richter. Passannante asked Koehler to fire her. Finally, she was fired. As to causation, a reasonable jury could have inferred that those consequences flowed from Fernot's refusal of Passannante's sexual advances and that Fernot suffered quid pro quo harassment. Therefore, the jury's finding will not be disturbed.
c. Defendants as Employers
The version of FEPA applicable to this suit defines an employer, in pertinent part, as "any individual[ or] organization ... including any partnership ... [or] corporation ... doing business in or operating within this state which has one or more individuals performing *679 services for it within this state." 21 V.S.A. § 495d(1). With respect to supervisors, in one of the few departures from Title VII, this section did not contain the words "or any agent of such employer" until 1993, after the events in question and the filing of the suit. Vermont case law has not expanded upon the general definition. The jury was charged without objection that "[t]o be an employer, among other things, one must exercise a direct and significant degree of control over the complaining party's work environment." See Goyette v. DCA Advertising, Inc., 830 F.Supp. 737, 744 (S.D.N.Y.1993).
Defendants contend that § 495(b), which indicates that FEPA should "not be construed to limit the rights of employers to discharge employees for good cause shown," limits the definition of employers to those with the power to terminate. Defendants assert that if one cannot fire, then one is not an employer, which in logic would follow from § 495(b) only if § 495(b) asserted that if one is employer, then one can fire. However, § 495(b) does not assert that. More importantly, § 495(b) is not even in the definitions section, § 495d. The definition of employer simply does not contain a requirement that to be an employer one must have the power to fire. § 495d(1).
(1) CII
CII was the general partner of the Partnership. Fernot was paid by the Partnership from August through her termination. Her marketing activity was for its benefit. It was clearly her employer. Thus, because the Partnership was responsible as Fernot's employer, so is CII. See 11 V.S.A. § 1399 (1993) ("A general partner shall have all the rights and powers and be subject to all the restrictions and liabilities of a partner in a partnership without limited partners") and 11 V.S.A. § 1207(1) (1993) ("All partners are liable [] [j]ointly and severally for everything chargeable to the partnership under section[] 1205 [wrongful acts of partner]"); see, also, Concra Corporation v. Andrus, 141 Vt. 169, 174, 446 A.2d 363 (1982) ("Partners are both jointly and severally liable for torts"); cf. Virgo v. Riviera Beach Associates, Ltd., 30 F.3d 1350, 1362 (11th Cir.1994) (finding general partner individually liable under Title VII for the acts of the president of an agent of the partnership under Florida partnership law virtually identical to Vermont law).
(2) CDC
CDC contends that "although Coin Depot assets, machinery and personnel were used, there was no evidence that Coin Depot conducted its armored truck business or any other business in Vermont." Taking the evidence in the light most favorable to the plaintiff, CDC's employees were involved in the running of the Partnership. CDC's Vice President Murphy did the books. CDC's Vice President Karovic was in contact and consultation with Richter, the Partnership's day-to-day manager. CDC's accounting staff controlled the accounts of the entities at the Inn. Karovic called Fernot to a meeting in New Jersey at CDC. Fernot was told that the decision to fire her came from New Jersey. The letter indicating that her draw was cut off was faxed under a cover sheet with a CDC letterhead.
However, CDC's employees who were involved were not acting in furtherance of CDC's business but were merely acting as agents of Koehler in his capacity as general partner of the Partnership. Their authority over Fernot derived solely from Koehler's authority as general partner. Thus, they were at most merely supervisors.
The question, then, is whether a supervisor can be individually liable under FEPA. In McHugh v. University of Vermont, 758 F.Supp. 945, 949 (D.Vt.1991) aff'd 966 F.2d 67 (2nd Cir.1992), Fred I. Parker, then-District Judge[3], held that a co-worker and a supervisor were not employers under FEPA of a secretary whom they allegedly harassed. Judge Parker considered the omission of the "or any agent" language significant, and, therefore, distinguished cases under Title VII which had held supervisors liable. Id. This court agrees.
*680 Plaintiff argues that the Vermont Supreme Court's language in Hodgdon that "the standards and burdens of proof under FEPA are identical to those under Title VII" should apply even when the language of the statutes differ. Plaintiff further argues that the 1993 amendment of the statute to include agency language after Judge Parker's decision in 1991 creates "a reasonable inference" that the legislature was effectively overruling Judge Parker.
Plaintiff's contentions give too little credit to the Vermont legislature and are without merit. Plaintiff reads too much into the language of the Vermont Supreme Court in asserting that the language of FEPA should be ignored when it differs from Title VII simply because FEPA generally tracks Title VII. This cannot be the case; for example, as plaintiff herself points out, FEPA has provided for damages since 1981, 21 V.S.A. § 495b(b), while, Title VII did not until the 1991 amendments.
Therefore, because CDC was at most only Fernot's supervisor and a supervisor cannot be individually liable under FEPA, CDC is not liable to Fernot on her FEPA claims.
(3) Koehler
Koehler was ostensibly a limited partner. However, a reasonable jury could have found that he was in control of the Partnership. Thus, he is liable as a general partner because he took "part in the control of the business." 11 V.S.A. § 1397. Thus, as with CII, he is responsible as Fernot's employer.
Koehler contends that "[b]ecause [he] saw a need and because he acted to help that cause, there is no justification for the Court to find him a General Partner rather than the Limited Partner he had been all along." Koehler offers no competent authority to support his position that "because of the financial crisis the partnership was in, [he] had the right to preserve his business investment by becoming involved in the day to day activities of the partnership without losing his limited partner status." Koehler's argument is entirely without merit. Under Vermont law, a reasonable jury could have found him liable as Fernot's employer because he was a de facto general partner of her employer.
(4) Individual Supervisors
For the same reasons that CDC as a mere supervisor cannot be liable to Fernot under FEPA, individual supervisors, Passannante and Richter, cannot be liable under FEPA.
d. Chargeable Employers
(1) Judgment as a Matter of Law
Defendants contend that they cannot be liable for Passannante's acts because he was an independent contractor and was acting outside the scope of his employment.
(a) Law
i) FEPA as tort
In State of Vermont v. RSD Leasing, Inc., No. § 822-86 CnC (Chittenden Super.Ct., April 28, 1988), the court granted summary judgment in favor of an employer for claims under FEPA by employees for hostile environment sexual harassment caused by their supervisor. Slip op. at 10. The plaintiffs "brought forward evidence of substantial, unwelcome, sexual conduct by [the supervisor], directed to each of the[m], in the workplace." Id. at 2. However, none of the plaintiffs complained to the owners or "even asked [the supervisor] to bring it to their attention[,] [n]one of the conduct occurred in the [owners'] presence [and] [t]here is nothing in the record suggesting they should have known about it." Id.
The court wrote that "Vermont's FEPA must be considered to have created a new tortemployment discrimination." Id. at 6. It concluded that "[w]e therefore think that vicarious liability for a FEPA tort should be measured by traditional tort standards for tort liability, at least where traditional damage remedies are at issue." Id.
The court considered the traditional tort standard that "[t]o hold a master liable for his servant's act, it must have been done to carry out the master's directions, express or implied, and not to effect some purpose of the servant alone; that is the act must have been done in furtherance of the master's *681 business and within the scope of the servant's employment." Id. at 7 (citing Anderson v. Toombs, 119 Vt. 40, 44-45, 117 A.2d 250 (1955)). It reported that "where the conduct of the servant is unprovoked, highly unusual, and quite outrageous, there has been something of a tendency to find that this in itself is sufficient to indicate that the motive was purely personal to the servant and vicarious liability should not attach." Id. It concluded that "[s]exual harassment, for the purposes of satisfying the employee's sexual proclivities, must fall into this category, at least without some further evidence of employer direction or condonation." Id. at 8.
The court concluded as follows:
[O]n the facts of this hostile environment case we rule that [] a complaint was necessary, in view of [the] total absence of evidence of actual or constructive knowledge of the supervisor's sexually harassing conduct by his supervisors. In another case, the circumstances may be sufficient to warrant vicarious liability, such as through evidence of unusual female employee turnover, harassing conduct in presence of the persons to whom a complaint might be made, or refusal to listen to grievances. The record does not require or permit our reaching such questions here. Id. at 9-10.
ii) Independent Contractor
Defendants assert that Passannante was only an independent contractor and not an employee. The most important factor to consider in determining whether a worker is an employee or an independent contractor is the extent of control which, by agreement, the employer may exercise over the details of the work. Verrill v. Dewey, 130 Vt. 627, 635, 299 A.2d 182 (1972); see Restatement (Second) of Agency § 220(2)(a) (1958).
(b) Application of Law to Facts
i) Independent Contractor
Passannante reported to Murphy and Karovic who then reported to Koehler, general partner of the partnership. As made absolutely clear by the memorandum of December 6, Koehler had the authority to control any significant detail of Passannante's work. Although Koehler apparently did not exercise the power of control during the early months of Passannante's employment, it is his obvious ability to control which is sufficient to make Passannante an employee rather than an independent contractor.
ii) Hostile Environment
RSD rejected automatic employer liability for supervisor hostile environment sexual harassment. It held that under traditional tort doctrine, such harassment without more is not the responsibility of the employer because it is done solely for the purposes of the employee. Slip op. at 8; See McHugh, 966 F.2d at 75 (citing RSD). However, under traditional tort doctrine an employer may be liable for the acts of employees done outside the scope of employment and for their own purposes if the employees are "aided in accomplishing the tort by the existence of the agency relation." Rest. § 219(2)(d) and Comment e. Passannante was aided in his campaign of harassment by his position as supervisor. This would appear to create automatic employer liability in this case under traditional agency law as required by RSD.
Moreover, the jury was charged that in order for an employer to be liable for hostile environment sexual harassment the plaintiff must have shown that the employer "did not take reasonable steps to remedy the situation when it knew or should have known of the situation or did not provide a reasonable avenue of complaint." See Karibian, 14 F.3d at 780 (citing Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 63 (2nd Cir.1992)). This court considers this to be in keeping with RSD's emphasis that there must be actual or constructive knowledge before an employer can be liable for hostile environment sexual harassment. Slip op. at 9-10.
A reasonable jury could have found the following. The Partnership and, therefore, Koehler and CII as general partners knew of the complaints through the Partnership's agent Richter, who actually knew of the harassment through Fernot's complaints to her. CDC's employee Karovic, as an agent of Koehler as general partner, and *682 Koehler directly, as general partner, actually knew of the complaints from Richter, Hall, Passannante and/or Hunsinger. None of the defendants provided a reasonable avenue of complaint because Richter as agent for the Partnership, with Koehler and CII as general partners and CDC's employees Karovic and Hunsinger, as agents for Koehler as general partner, at best ignored and at worst rejected all of Fernot's complaints with directions to follow Passannante's orders. Therefore, the jury's finding of liability as to CII and Koehler on the hostile environment sexual harassment claim under FEPA will not be disturbed.
iii) Quid pro quo
Koehler and CII's liability for Passannante's quid pro quo harassment is absolute. "Because the quid pro quo harasser, by definition, wields the employer's authority to alter the terms and conditions of employment either actually or apparentlythe law imposes strict liability on the employer for quid pro quo harassment." Karibian 14 F.3d at 777 (citation omitted). This court does not consider RSD to be to the contrary. RSD was not a quid pro quo case. In addition, the Karibian court's presentation of the basis for automatic liability for quid pro quo sexual harassment matches with traditional tort doctrine holding a principal liable "for torts of his servants acting outside the scope of their employment [if] ... the servant ... was aided in accomplishing the tort by the existence of the agency relation." Rest. § 219(2)(d).
Passannante was an employee and agent of the Partnership. He was sent to the Inn to improve marketing on behalf of the Partnership. See Rest. § 2. It was Passannante's position as agent and supervisor which invested in him the power to create the implicit threat of consequences for refusing his advances. See Rest. § 219(2)(d). Therefore, the jury's finding of liability as to CII and Koehler, general partners, on the quid pro quo sexual harassment claim under FEPA will not be disturbed.
iv) Retaliation
The liability on the retaliation claim is also absolute because both Richter and Passannante, using their authority as agents and supervisors for the Partnership and, therefore, general partners CII and Koehler changed Fernot's working conditions, see Rest, § 219(2)(d), and even more directly because Karovic as agent for Koehler, as general partner of the Partnership of which CII was also general partner, fired Fernot upon his direction. Therefore, Passannante's status is irrelevant to this claim and the jury's finding of liability as to CII and Koehler on the retaliation claim under FEPA will not be disturbed.
(2) New Trial/Remittitur
Defendants moved for a new trial on the basis that the jury charge was in error by allowing liability for hostile environment sexual harassment if they "did not provide a reasonable avenue for complaint." Defendants assert that this charge was based on an invalid retroactive application of 21 V.S.A. § 495h passed in 1993 which requires all employers to establish internal complaint procedures. However, the jury charge was not based on the new Vermont provision. Instead, it was based on settled law under Title VII generally incorporated by FEPA which allows employer liability for the failure to provide a reasonable avenue for complaint, a much less onerous requirement than that of § 495h. See Karibian, 14 F.3d at 780 ("the employer [] provided no reasonable avenue for complaint").
e. Damages
(1) Excessiveness
Defendants claim that the damages for the FEPA claims are excessive in that plaintiff's expert testified that damages for back pay were $167,000 and the award was $215,000 and, therefore, "the jury award must have been `the result of passion or prejudice.'" (citation omitted). Defendants suggest that "[t]he only appropriate remedy ... is a new trial on all issues or to reduce the verdict to $167,000." In fact, there were three elements to be considered in awarding damages: lost wages, lost benefits and emotional damages. Defendants' claim that damages were excessive is unsupportable.
*683 (2) Punitive
Defendants' claim that punitive damages are not available under FEPA is meritorious. FEPA does not mention punitive or exemplary damages. 21 V.S.A. § 495b(b). The Vermont legislature has authorized punitive or exemplary damages by name in numerous statutes, see, e.g., 9 V.S.A. § 2461 (1993) (consumer fraud), including anti-discrimination statutes. see, e.g., 13 V.S.A. § 1457 (Supp.1994) (hate crimes). The Vermont Supreme Court has refused to imply a civil remedy where there was "serious doubt about whether the Legislature intended" to create one. O'Brien v. The Island Corporation, 157 Vt. 135, 140 n. 3, 596 A.2d 1295 (1991). The court noted its power to "determine that such a remedy is appropriate in furtherance of the legislative purpose," but concluded that "it should be hesitant to do so when it is clear that the Legislature could have done so, knew it could do so, and did not do so." Id. This court is even more reluctant to imply the availability of punitive damages into a Vermont statute when the Legislature has not provided for them, and the Vermont courts have not interpreted the statute as providing for them.
Plaintiff argues that some of the statutes which have provided for exemplary damages have limited them or allowed such awards where they would not have been available at common law, such as contract claims. Some of the statutes do limit the amount of exemplary damages. See, e.g., 9 V.S.A. § 2461. However, the plaintiff has no response to, for example, the anti-hate crime statute. 13 V.S.A. § 1457 (Supp.1994). This statute does not limit punitive damages. An assault, for example, covered by the statute would be "maliciously motivated" by bias. 13 V.S.A. § 1455 (Supp.1994). Therefore, punitive damages would surely have been available at common law for such an attack. If availability of punitive damages at common law were sufficient for punitive damages to be recovered under a statute, the anti-hate crime statute's provision for punitive damages would be redundant. This court will not say that the Vermont Legislature's inclusion or exclusion of provisions for punitive damages in its statutes is haphazard.
Plaintiff's contentions fail. Defendants' motion for judgment as a matter of law with respect to the punitive damages under FEPA is granted, and the jury award of those damages is set aside.
C. Intentional Infliction of Emotional Distress
1. Law
Defendants claim that "plaintiff failed to prove outrageous conduct to support her claim of intentional infliction of emotional distress." Defendants cite various formulations of the standard for IIED as quoted by Vermont courts.
The issues are whether certain "conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community," Mancini v. General Electric Co., 820 F.Supp. 141, 148 (D.Vt.1993) (citation omitted), and whether there was "distress so severe that no reasonable person could be expected to endure it." Baldwin v. Upper Valley Services, Inc., 162 Vt. 51, ___, 644 A.2d 316, 319 (1994) (citation omitted). "It is for the court to determine as a threshold question whether a jury could reasonably find that the conduct at issue" was "so outrageous and extreme as to `go beyond all possible bounds of decency.'" Jobin v. McQuillen, 158 Vt. 322, 327, 609 A.2d 990 (1992). "Absent at least one incident of behavior that transcends the ignoble and vast realm of unpleasant and often stressful conduct in the workplace, incidents that are in themselves insignificant should not be consolidated to arrive at the conclusion that the overall conduct was outrageous." Denton v. Chittenden Bank, ___ Vt. ___, ___, 655 A.2d 703, 706 (1994) (citations omitted). The Vermont Supreme Court has upheld a jury verdict of intentional infliction of emotional distress affirming a denial of a motion j.n.o.v where the claim was based on the outrageous nature of the actual termination. Crump v. P & C Food Markets, Inc., 154 Vt. 284, 296-297, 576 A.2d 441 (1990). However, the District of Vermont, following Vermont IIED law, has found that verbal abuse and even the raising of an arm during *684 a termination were insufficient to make out a claim for intentional infliction which could survive summary judgment. Ploof v. Brooks Drug, Inc., Civ. A. No. 89-270, 1991 WL 497170 at *6-7 (D.Vt. Aug. 28, 1991).
2. Application of Law to Facts
a. Koehler
Taking reasonable inferences most favorable to the plaintiff, Koehler retaliated against Fernot for her complaints of sexual harassment. Koehler had her called down to New Jersey ostensibly to meet with him. He did not even attend the meeting, but his agents dismissed her complaints and told her to, "Toe the line." Koehler fired her the week before Christmas.
None of the individual events which make up the course of the retaliation in this case were sufficiently outrageous to establish a prima facie case of IIED. See Crump. A string of individually unactionable events cannot be taken together to establish a prima facie case of IIED. Denton. This court does not read this proposition of Vermont law to change if the conduct constitutes a violation of FEPA. This court also does not read Vermont law to indicate that a prima facie case of retaliation for complaints of sexual harassment under FEPA necessarily constitutes a prima facie case of IIED. Cf. Paroline v. Unisys Corp., 879 F.2d 100, 108, 112-113 (4th Cir.1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir.1990) (upholding a grant of summary judgment against a claim of intentional infliction of emotional distress, while reversing a grant of summary judgment against a claim for sexual harassment on the same facts). Therefore, because Koehler's conduct was insufficiently outrageous to make out a prima facie case of IIED, the jury verdict against Koehler on the IIED claim is set aside, judgment as a matter of law is granted for Koehler on this claim, and it is dismissed.[4]
b. Passannante
Passannante subjected Fernot to sexually suggestive remarks, unwanted touching, constant leering, and numerous sexual advances. After Fernot refused his advances and complained to Richter, Passannante retaliated against Fernot by dramatically increasing her hours. Finally, when Fernot asked if she had been fired, Passannante, throwing her final paychecks at her, responded "yes" and said to her, "Pack up your shit and get out!"
The legal reasoning which leads to the conclusion that Koehler's conduct is not actionable as IIED results in the same conclusion with respect to Passannante's conduct. Therefore, because Passannante's conduct was insufficiently outrageous to make out a prima facie case of IIED, the jury verdict against Passannante on the IIED claim is set aside, judgment as a matter of law is granted for Passannante on this claim, and it is dismissed.
V. Conclusion as to State Law Claims
CDC, Passannante and Richter are dismissed from the FEPA claims as a matter of law. The punitive damages under FEPA are dismissed as a matter of law. The IIED claims are dismissed as a matter of law. The remaining elements of the motion for judgment as a matter of law, and the motion for new trial or remittitur are denied. The jury's finding of liability and compensatory damages as to CII and Koehler under FEPA are affirmed.
VI. Decision on Federal Claims
A. Title VII
1. Findings of Fact
Taking the jury's verdict on the FEPA claims as advisory, this court incorporates the factual discussion set forth above as its findings of fact for the federal Title VII claims.
In addition, the court finds the facts as follows.
*685 In 1989, CDC employed over 1,000 people and at no time during that year had less than 15 employees. CDC did not operate its coin collecting business in Vermont. Koehler did not individually employ anyone.
In 1989, for each working day in each of at least twenty calendar weeks, the Partnership, and therefore CII and Koehler as general partners, employed Fernot, Richter, Passannante and Giove. For each working day in each of at least twenty calendar weeks, the Association employed two people in Richter's office. For each working day in each of at least twenty calendar weeks, the Association employed to run the front desk one person, full-time, and four people, part-time. For each working day in each of at least twenty calendar weeks, the Association employed one person per department in housekeeping, laundry and maintenance. For each working day in each of at least twenty calendar weeks, the Lounge employed thirteen people.
Karovic and Richter as agents of Koehler as general partner of the Partnership exercised a limited degree of control over the Association. Passannante as agent of Koehler as general partner of the Partnership exercised control over the Lounge. The Lounge did not pay Fernot anything in any form during the relevant period. The Lounge paid its payroll through its own revenues and received no funds from any other entity for that purpose. Fernot incidentally assisted the Lounge and the Association in August.
2. Law
Title VII limits its definition of an employer to one "who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." 42 U.S.C. § 2000e(b). "Two [] entities may be given single employer status such that their combined number of employees will be determinative of whether they are subject to Title VII requirements." Armbruster v. Quinn, 711 F.2d 1332, 1338 (6th Cir.1983). There are four factors used "to determine whether the entities are sufficiently related to warrant joint liability for the acts of the immediate employer.... (1) centralized control of labor relations; (2) interrelated operations; (3) common management; and (4) common ownership." Dewey v. PTT Telecom Netherlands, U.S., Inc., No. 94 Civ. 5983, 1995 WL 425005 at *2 (S.D.N.Y. July 19, 1995) (citations omitted). "The most important factor in the `single employer analysis' is the degree of centralized control of labor relations and whether it exceeds `the control normally exercised by a parent corporation which is separate and distinct from the subsidiary.'" Id. (citation omitted). "Common ownership alone is insufficient to establish application of the single employer doctrine." Id. at *3 (citations omitted). "Courts do not readily find that related entities are single employers in discrimination cases." Id. at *2 (citation omitted)
3. Application of Law to Facts
Fernot was directly employed by the Association in July. She was directly employed by the Partnership from August until December when she was fired. These periods of employment did not overlap. The Lounge and CDC were never her direct employers during the relevant period. Her incidental assistance in the Lounge and the Association in August were insufficient to create an employer-employee relationship.
Only CDC meets the jurisdictional threshold on its own. The fact that Koehler wholly owned CDC does not justify ignoring the corporate form and attributing its employees to him individually. Cf. Johnson v. Flowers, 814 F.2d 978, 980 (4th Cir.1987). Therefore, the central question is whether the number of employees of the Association or the Partnership may be aggregated with each other or with the Lounge or CDC to meet the Title VII jurisdictional threshold. This question breaks down into horizontal and vertical components. First, whether the entities at the Inn, the Association, the Partnership and the Lounge were "sufficiently related" to be treated as a single employer. Dewey at *2. Second, whether the Association or the Partnership and CDC were "sufficiently related." Id.
*686 The entities at the Inn were not sufficiently interrelated to form a single employer. During the relevant period, the Association, Partnership and Lounge did have common management and centralized labor relations through Richter and Passannante as agents for Koehler, general partner of the Partnership. See Dewey at *2. A few of CDC's employees, as agents for Koehler, general partner, also played a role in managing the Partnership and to a much lesser extent the Association. See id. While the Association and the Partnership wanted the Lounge to succeed, their operations were not interrelated. See id. There is no evidence that the Association or the Partnership owned the Lounge. See id. While the Partnership was a member of the Association because it was the owner of the unsold time shares, it did not own the Association. See id. Koehler owned a stake in the Partnership but did not own the Association or the Lounge. See id. The parties have not cited nor has the court found a case in which a plaintiff has been directly employed by one entity which failed the jurisdictional minimum but has established that threshold by agglomerating the employees of other entities only horizontally related to the direct employer but which clearly did not employ the plaintiff or control her work in any significant way. The court concludes that the Association, Partnership and Lounge were not sufficiently related to form a single employer and, therefore, the number of employees of each may not be aggregated to meet the Title VII jurisdictional threshold.
The Association was not sufficiently related with CDC to form a single employer. CDC's employees did play a minor role in managing the Association but more importantly exercised little control over its employees. See id. The operations of the Association and CDC were not in any way interrelated. See id. CDC was an armed car company, not a hotel chain. Neither Koehler nor CDC owned the Association. See id. Given the lack of interrelated operations and ownership, the minor part played in managing the Association by a few of CDC's employees as agents for Koehler is insufficient to find that the Association and CDC formed a single employer.
The Partnership was also not sufficiently related to CDC to form a single employer. A few of CDC's employees did play a role in the Partnership's labor relations. See id. However, they did so as agents of and carrying out the directions of Koehler, general partner of the Partnership. The operations of the Partnership and CDC were totally unrelated. See id. CDC did not carry on its armed car business in Vermont nor was it directly involved in time share marketing. See id. A few of CDC's employees did play a role in managing the Partnership, but again they did so only as agents of and under the direction of Koehler, general partner. See id. Koehler owned CDC and was a substantial stakeholder in the Partnership. See id. However, the fact that Koehler owned CDC and a substantial stake in the Partnership is not sufficient to establish that the two were a single employer. See id. at *3. CDC did not have any interest in the Partnership. Therefore, the facts of this case do not fit the common parent-subsidiary pattern. See id. at *2. This fact is critical to this case. "The single employer doctrine is not limited to parent-subsidiary relationships, but the issue becomes more difficult when considering two separate [entities] owned by a single" person. Rogers v. Sugar Tree Products, Inc., 7 F.3d 577, 583 (7th Cir.1993). This court concludes that where, as in this case, some employees of one company simply manage another company as agents for and under the direction of a common owner and where the managing company does not have an interest or other interrelation with the managed company, the two companies are not sufficiently related for the number of their employees to be aggregated for purposes of Title VII jurisdiction.
Because neither of Fernot's direct employers were sufficiently integrated with another entity to aggregate the number of employees, Fernot has failed to meet the Title VII jurisdictional minimum. Therefore, the claims under Title VII are dismissed.
B. Equal Pay Act
1. Claim
Fernot claims that defendants CII, CDC, the Association, Koehler, Passannante and *687 Richter violated her rights under the Equal Pay Act by paying Steven Kopri, who replaced her as marketing director, more for performing substantially the same job.
2. Findings of Fact
This court adopts as its findings of facts for this federal claim the facts as set forth in reference to the state claims and finds additional facts as follows.
When Fernot was first in marketing at the Inn in 1985, she toured clients. In 1987, when Fernot was assistant to the director of marketing, she trained the rest of the staff, helped with the paperwork, typed and checked contracts, toured clients and sold time-shares herself. In 1987, she also covered front desk breaks, helped in housekeeping, worked in the garden and worked in maintenance. As marketing director in November and December, 1989, Fernot with Giove's assistance answered the phones, followed up on the incoming calls with mailings and phone calls 84 hours a week.
Steven Kopri worked in marketing at the Inn in 1990. He "was responsible for producing sales." He would "obtain sales, close sales, do the final contracts and paperwork." He trained other employees. He handled the marketing program himself, although he may have had an assistant for part of the time.
3. Law
In order to establish a violation of the Equal Pay Act, a plaintiff must prove that her job is "substantially equal" to that of a higher paid male employee. Lambert v. Genesee Hospital, 10 F.3d 46, 56 (2nd Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1612, 128 L.Ed.2d 339 (1994). "However, where jobs are merely comparable, an action under the Equal Pay Act will not lie." Id.
4. Application of Law to Facts
At no time did Fernot hold a job that was "substantially equal" to that of Kopri. Even when she had the title of marketing director, she was not in charge of the marketing program, as he was. Because Fernot did not prove that she performed a job that was "substantially equal" to that of Kopri, her claim under the Equal Pay Act is dismissed. Therefore, the court need not pass upon which, if any, of the defendants would have been chargeable as Fernot's employer under the Act.
VII. Conclusion
Judgment is granted to the plaintiff against defendants Crafts Inn Inc. and Herman J. Koehler, III in the amount of $215,000 under FEPA claims for hostile environment and quid pro quo sexual harassment and retaliation for complaints thereof, tried to the jury as Claims 1-3 and set forth in the Second Amended Complaint as the Fifth and Sixth Causes of Action. Judgment as a matter of law is granted to defendants Coin Depot Corporation, Caesar Passannante and Alice Richter as to these claims, and to that extent they are dismissed. Judgment as a matter of law is granted to defendant Herman J. Koehler, III as to the award of punitive damages.
Judgment as a matter of law is granted to defendants Herman J. Koehler, III and Caesar Passannante as to the claims for the intentional infliction of emotional distress, tried to the jury as Claim 4 and set forth in the Second Amended Complaint as the Seventh Cause of Action, and they are dismissed.
The Court finds for the defendants under Title VII, for hostile environment and quid pro quo sexual harassment and retaliation for claims thereof, the First, Second and Fourth Causes of Action in the Second Amended Complaint, and they are dismissed.
The Court finds for the defendants on the claims under the Equal Pay Act, the Third Cause of Action in the Second Amended Complaint, and they are dismissed.
Let the clerk enter judgment accordingly.
So Ordered.
NOTES
[1] Fernot also made a claim of assault and battery, which was voluntarily dismissed during trial.
[2] Fernot voluntarily discontinued on all claims against the eighth defendant named in the Second Amended Complaint, Coin Devices Corporation, Inc., before trial.
[3] When McHugh was decided, Judge Parker was a Judge of the District of Vermont. He became a Judge of the United States Court of Appeals for the Second Circuit in October, 1994.
[4] The court notes that the emotional damages that were awarded under FEPA against Koehler duplicated in part the damages awarded against Koehler for IIED. This issue has been mooted by the dismissal of the IIED claim.
|
695 F.Supp. 1223 (1988)
UNITED STATES of America
v.
Mark A. MARAGH.
Crim. No. 88-0322-LFO.
United States District Court, District of Columbia.
September 26, 1988.
Theodore A. Shmanda, Asst. U.S. Atty., Washington, D.C., for U.S.
James E. McCollum, Jr., College Park, Md., for defendant.
*1224 MEMORANDUM
OBERDORFER, District Judge.
Defendant Mark A. Maragh, a twenty year old black male, disembarked at Union Station in the company of two other young black males from an Amtrak train that originated in New York City. He was carrying a small bag by a strap on his shoulder. A five-man squad of police detailed to interdict drug couriers at Union Station observed the three and deployed. One of the squad, Detective Vance L. Beard, observed two of the three separate from defendant and go to a phone; one of the two talked on the phone while the other observed. They rejoined defendant for a brief conversation. Defendant again separated himself from the two. In so doing he established eye contact with Detective Beard. Then defendant and the other two separately started walking toward the exit.
On the basis of the foregoing observations by Beard, the squad deployed. Detective Beard approached defendant. Detective Hanson positioned himself as a backup. Detective Cassidy, a distinctively tall, slender gentleman, left the immediate area to position himself at the exit, in Detective Beard's words, "in case anybody ran." Beard approached defendant from his left rear. According to Beard, he stopped at an oblique angle to defendant (so that defendant could continue walking if he chose to do so.) Beard then identified himself as a police officer, showed his badge and asked defendant if he would answer some questions. While Detective Hanson stood a few feet to defendant's rear and Detective Cassidy was positioned (presumably out of sight by defendant) to bar escape, a colloquy ensued between Detective Beard and defendant. There is no evidence as to Detective Beards' manner of speech when he identified himself. He is a distinguished-looking gentleman with a commanding appearance. Detective Beard asked where defendant was coming from (New York), asked to see the ticket (defendant produced it), and learned that defendant had lived in Washington for four months, went to New York the preceding Friday and was just returning (it was Tuesday).
Informed only by this colloquy and the observations preceeding his introduction of himself to defendant, Detective Beard then identified himself as an officer from the Narcotics Branch and explained that his purpose was to intercept drugs before they had a chance to reach the streets of Washington. Beard asked defendant if he was carrying drugs in what Beard describes as his "tote bag." Defendant responded in the negative. Beard then asked if he could look into the bag. Defendant acquiesced, placed the bag on the floor and started to open the zipper. Detective Beard stooped over (so that all he could see of defendant was his feet), took the bag, finished opening the zipper, felt inside, pulled out some pants (possibly swimming trunks), and felt a rock-like substance in a pocket which he suspected to be drugs. Detective Beard thereupon signalled by voice code to Detective Hanson, and told defendant he was under arrest. Simultaneously, Detective Hanson came up behind defendant, seized his arms and handcuffed him. After this exchange defendant stated that the drugs were not his.
The circumstances here raise two questions: (1) Whether an officer's commencement of a conversation with a person in a public place by identifying himself or herself as a narcotics officer constitutes a "stop" implicating the Fourth Amendment; and (2) If so, what if any level of suspicion must be generated by the circumstances to justify such a stop.
These questions have not apparently been addressed by our Court of Appeals. However, recent decisions by the Courts of Appeals for the Fifth Circuit and the Seventh Circuit commend themselves. The Fifth Circuit has stated
[P]rior to her arrest, [defendant] Gonzales was engaged in mere communication with [officer] Glenn, perfectly permissible under the fourth amendment. However, at the time Glenn informed Gonzales that he was "working narcotics" and requested to look in her bag, a reasonable person would no longer have felt free to leave. *1225 U.S. v. Gonzales, 842 F.2d 748, 752 (5th Cir.1988).
Similarly, the Seventh Circuit has stated
when the agents informed defendant he was suspected of trafficking in narcotics and asked to search his belongings, the mere consensual questioning session which did not constitute a seizure turned into an investigative stop. An investigative stop constitutes a seizure and must be supported by an agent's reasonable suspicion defendant is involved in criminal activity.
United States v. Palen, 793 F.2d 853, 857 (7th Cir.1986).
Application of these principles here requires a finding that Detective Beard executed a stop. Beard's questioning of defendant turned into an investigative stop when the Detective identified himself as a member of the Narcotics Branch whose purpose it was to stop drugs from coming into Washington, stood obliquely in front of him, with Detective Hanson behind him and Detective Cassidy "downfield", and asked to search defendant's bag. While there is no testimony as to whether defendant knew of the back up and blocking positions of the other officers, a reasonable person of defendant's years could have sensed the maneuvers and the presences, as well as the in terrorem effect of Detective Beard's identification of himself as a narcotics officer after defendant had denied possession of drugs.
Accordingly, it is necessary to evaluate the information related by Detective Beard as the justification for this stop. Contrary to the stated position of the government at argument on the motion, some minimal criteria must be met to justify such a "stop." In Gonzales, the court ruled that the officers had established the reasonable suspicion necessary to justify detention of Gonzales: he arrived from a "source city", appeared nervous and watchful, did not produce any identification when requested to do so, and deliberately attempted to mislead the officers as to the length of her stay. In Palen, the court ruled that the agents had a reasonable suspicion defendant could be involved in criminal activity at the time the consensual questioning turned into an investigative stop, justifying a seizure: Palen arrived from a "source city", was walking at an abnormal pace, had an airline ticket in an assumed name, and gave the officer false information about where he had purchased the ticket. Here, by contrast, apart from defendant's presence in Union Station en route from New York in the company of two of his peers, Detective Beard articulated nothing to distinguish defendant and his companions from any three young black men passing through Union Station from a train from New York, and stopping to telephone someone before leaving the station. The bare fact that defendant had eye contact with a detective in plain clothes and then rejoined his companions, talked with them and started walking out of the station does not justify the stop which ensued here. With great respect for the experience and expertise of Detective Beard and his colleagues, what he related here as the basis for his action is not the required "quantum of individualized suspicions" required by Supreme Court precedent." United States v. Gonzales, 842 F.2d at 753.
Since the stop was not justified by articulable suspicion, a question could remain as to whether, even though the stop was unlawful, the subsequent search was voluntary because defendant was free to refuse to agree to permit the search of his bag, and was indeed free to leave. See Gomez v. Turner, 672 F.2d 134, 141 (D.C.Cir.1982). The short answer is that the same threatening environment that converted the conversations into a "stop" vitiates any claim that a reasonable person in the circumstances of defendant would feel free to refuse the request to search his bag or feel free to leave. Accordingly, an accompanying order will grant the motion to suppress introduction into evidence of the 58 grams of cocaine that were taken from the pants found by Detective Beard in defendant's tote bag and defendant's statement to the effect that the cocaine was not his.
ORDER
For the reasons stated in the accompanying Memorandum, it is this 26th day of September, 1988 hereby
*1226 ORDERED: that defendant's motion to suppress the evidence seized from him and the statement made after it was seized should be, and is hereby, GRANTED.
|
602 F.3d 731 (2010)
Darryl M. DURR, Plaintiff-Appellant,
v.
Richard CORDRAY, et al., Defendants-Appellees.
Nos. 10-3463, 10-3466.
United States Court of Appeals, Sixth Circuit.
Submitted: April 17, 2010.
Decided and Filed: April 18, 2010.
*732 Carrie L. Davis, American Civil Liberties Union Of Ohio, Cleveland, OH, Kathleen A. McGarry, McGarry Law Office, Glorieta, NM, Dennis Lyle Sipe, Buell & Sipe, Marietta, OH, for Darryl M. Durr.
Before: BATCHELDER, Chief Judge; SUHRHEINRICH and COLE, Circuit Judges.
SUHRHEINRICH, J., delivered the opinion of the court, in which BATCHELDER, C.J., joined. COLE, J., concurs in the result only.
OPINION
SUHRHEINRICH, Circuit Judge.
Darryl Durr, an Ohio death row inmate, filed a civil rights action under 42 U.S.C. § 1983 challenging the State of Ohio's denial of access to certain physical evidence for purposes of DNA testing. Durr is scheduled to be executed on April 20, 2010. On April 16, 2010, the district court deemed the action a second or successive habeas petition under 28 U.S.C. § 2244(b)(3)(A) and transferred it to this Court for consideration. Alternatively, the district court denied Durr's motion for a temporary restraining order and preliminary injunction staying his execution upon concluding that none of Durr's claims had a likelihood of success on the merits.
We hold that the district court erred in deeming this action a second or successive petition. However, we nonetheless deny Durr's motion for a temporary restraining order or a preliminary injunction staying his execution, albeit on different grounds from those stated by the district courtwe find that even if Durr were to prevail on his § 1983 claims, he would not be entitled to this remedy.
I.
A 16-year-old girl named Angel Vincent disappeared on or about January 31, 1988. On April 30, 1988, the body of a young white female, "in an advanced state of decomposition," was found in Brookside Park in Cleveland, Ohio, and an autopsy was performed:
A deputy coroner testified that the only clothing found on the victim was a pink sweater and a pair of white tennis shoes. The pink sweater had been pushed up well above the victim's breast area. An initial external examination determined the body to be that of a young white female, who was in an advanced state of decomposition. The body was heavily infested with maggots and the body's eyes and ears had been lost. There was also prominent evidence of animal activity about the inguinal and vulval regions of the body, and in and about the thighs. According to the deputy coroner, the decomposition was consistent with three months exposure.
After examining the body, the deputy coroner concluded that the cause of death was homicidal violence. Since the body was so badly decomposed, the deputy coroner could not determine whether ligature marks, scrapes or tears indicating strangulation were present. *733 There was no damage noted to the internal cartilaginous structures of the neck. The deputy coroner declined, however, to rule out strangulation as a cause of death since damage to these structures is not always present in young strangulation victims due to the flexibility of these structures. In addition, because the body was so severely infested with bacteria, testing for the presence of acid phosphates and spermatozoa was inconclusive.
Ohio v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674, 677 (1991).
In September 1988, Deborah Mullins, a former girlfriend of Durr's, told the police that Durr had murdered Angel Vincent. The State indicted Durr and a jury convicted him of aggravated murder, in violation of Ohio Rev.Code § 2903.01; kidnapping, in violation of § 2905.01; aggravated robbery, in violation of § 2911.01; and rape, in violation of § 2907.02. The trial court sentenced Durr to death. The state courts affirmed Durr's conviction and sentence on direct appeal and denied Durr's state post-conviction appeals.[1] Durr sought and was denied federal habeas relief. See Durr v. Mitchell, 487 F.3d 423 (6th Cir.2007), cert. denied, 552 U.S. 1261, 128 S.Ct. 1652, 170 L.Ed.2d 361 (2008).
On August 6, 2009, Durr filed an application for DNA testing pursuant to Ohio Revised Code section 2953.71 et seq. in the state trial court. The State agreed to test any DNA from oral, rectal, and vaginal smears taken from the victim at the autopsy, and the court ordered the testing. On September 23, 2009, the lab issued a final report on the DNA testing of these samples, in which it reported that there was no DNA present on which DNA analysis could be conducted.
However, the State objected to the DNA testing of the victim's necklace, arguing that it was subject to possible contamination and any results would be inconclusive. The court held an evidentiary hearing on October 5, 2009, to decide if the necklace should also be subject to DNA testing. The State presented two witnesses. Frank Kost, Cuyahoga County Deputy Clerk of Courts, testified that he is the supervisor of an area known as the "dead files" storage room, where transcripts and trial exhibits are stored after an appeal. Kost testified that transcripts and trial exhibits are a public record, and may be examined by lawyers and the public. Kost further testified that the necklace was stored in an unsealed envelope. Dr. Linda Benzinger, a DNA Quality Assurance Administrator, also testified for the state. Both parties stipulated that she is an expert in the field of forensic DNA analysis. Benzinger stated that she was familiar with Ohio's legal requirements for post-conviction DNA testing. Benzinger testified that because "the body of Angel Vincent... was somewhat decomposed" she "wouldn't expect to find DNA that would have been applied during the offense ... because the bacteria and fungi from that decomposed body would have destroyed that DNA as well." She added that "[i]t's telling that the vaginal, anal and oral samples, no DNA at all was obtained from those. We went ahead and tested for Y-STR's, but the quantity testing showed us that not even any DNA from the victim was obtained." She also testified that, given the nature of its storage, the necklace could contain the DNA of anyone who had recently come into contact with it. So, Benzinger explained: given that the necklace was on the victim's decomposing body for three months, it was unsuitable for *734 DNA testing; and given the unpreserved state of the necklace in storage and the lack of chain of custody, any DNA results would be wholly unreliable. Durr did not call any witnesses at the hearing. On October 6, 2009, the state trial court found that "based upon the testimony presented at the evidentiary hearing, there is reason to believe that the evidence has been out of the State's custody and/or been contaminated since its collection during its storage in Dead Files."
On November 20, 2009, Durr sought leave of the Ohio Supreme Court to appeal the trial court's decision. The Ohio Supreme Court denied Durr's request on April 10, 2010. On April 13, 2010, Durr filed this § 1983 action in federal district court, seeking a temporary restraining order, preliminary injunction, permanent injunction, and declaratory judgment. In his complaint, Durr claimed that the State's refusal to release the necklace for testing deprived him of due process and constituted cruel and unusual punishment under the Eighth Amendment. He also claimed that Ohio Rev.Code § 2953.73(E)(1) is facially unconstitutional under the Equal Protection Clause because it gives noncapital defendants a mandatory right of appeal to the Ohio Court of Appeals with discretionary review by the Ohio Supreme Court, but gives capital defendants no appeal as of right in either court and only discretionary review in the Ohio Supreme Court. Durr further claimed that Ohio Rev.Code § 2953.73(E)(1) violated the Ex Post Facto Clause of the United States Constitution and the Retroactivity Clause of the Ohio Constitution. Durr also claimed that the statute violated the Ohio Constitution, Article IV, § 3(B)(2), conferring jurisdiction on the courts of appeal. Lastly, Durr raised an as-applied challenge to the statute.
On April 16, 2010, the district court ruled that because the underlying purpose of Durr's § 1983 action was to challenge the validity of his conviction or death sentence his only avenue of relief was habeas. Given that Durr had already pursued and exhausted federal habeas corpus relief pursuant to 28 U.S.C. § 2254, the district court concluded that it lacked jurisdiction absent an order from this Court authorizing a second or successive petition. See 28 U.S.C. § 2244(b)(3)(A). Because Durr had not obtained such an order, the district court transferred the case to this court. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam).
The district court also ruled in the alternative. Assuming Durr's action to be properly before it pursuant to § 1983, the district court denied injunctive relief that would have stayed Durr's scheduled execution. The district court held that none of Durr's claims had a likelihood of success on the merits. The district court held that Durr's claim of denial of access to evidence was barred by the Rooker-Feldman doctrine. The district court concluded that Durr's equal protection claim could not succeed because Ohio's one-tier system of appellate review has been upheld in the context of direct appeals. See Smith v. Mitchell, 567 F.3d 246 (6th Cir.2009) (upholding on habeas review, the Ohio Supreme Court's determination that its one-tier system of direct review of capital convictions and sentences does not violate the Equal Protection Clause). The district court rejected Durr's substantive due process claim, also on the basis of Smith, and held that Durr's Eighth Amendment challenge failed because the state has discretion to allow appellate review, so long as its system is consistent with due process and equal protection, and Ohio's option of a discretionary appeal to the Ohio Supreme Court met that requirement. The district court rejected Durr's ex post facto *735 and retroactivity claims because the right to DNA testing was not available at the time of his 1988 conviction. The court rejected the divestment of jurisdiction argument on state law grounds. Finally, the court found that Durr's as-applied challenge failed for the same reasons as his equal protection, Eighth Amendment, and due process claims.
The district court agreed that Durr would be irreparably harmed absent the stay, but found that the State is harmed when the execution of valid criminal judgment is delayed. As for the public interest, the court found that the public interest in this case would be best served "by deferring to [the State's] efforts to ensure the integrity of the criminal justice system because [Durr] ha[d] not carried his burden of demonstrating constitutional inadequacies in Ohio's DNA testing law." On balance then, the district court concluded injunctive relief was not warranted.
Durr now appeals to this Court.
II.
First we consider whether it was proper for the district court to treat Durr's action as a second or successive habeas petition rather than as a § 1983 action. Although most habeas corpus challenges will also, prima facie, state a claim under the plain language of § 1983, the Supreme Court has created an implied exception to § 1983's broad scope for cases that lie "within the core of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 487, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The Supreme Court has explored the relationship between the two statutes in a series of cases. See Preiser, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (holding that state prisoners' challenges to the constitutionality of prison disciplinary proceedings that led to the deprivation of good-time credits fell within the core of habeas); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (holding that state prisoners' challenges to revocation of their good-time credits through disciplinary proceedings could be brought as a § 1983 action because inmates sought only a declaration that the disciplinary proceedings were invalid and thus attacked only wrong procedures and not wrong result); Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (affirming state courts' dismissal of a prisoner's § 1983 damages suit against prosecutors and police investigator based on an allegedly unlawful investigation leading to his arrest while state-court conviction was pending because a favorable judgment would necessarily imply the invalidity of his conviction); Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) (holding that habeas was the sole vehicle for an inmate's constitutional challenge to procedures employed by state officials to deprive him of good-time credits); Wilkinson v. Dotson, 544 U.S. 74, 81-92, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (finding that inmates' suit challenging the constitutionality of applying new parole guidelines to their parole proceedings was proper under § 1983 because the relief sought would merely render invalid state procedures used to deny parole eligibility which meant at most a speedier consideration of a new parole application and neither inmate sought an injunction ordering a speedier release).
In finding Durr's claim a second or successive habeas petition, the district court relied on Boyle v. Mayer, 46 Fed.Appx. 340, 340 (6th Cir.2002) (decided without argument pursuant to Sixth Cir. R. 34(j)(1)), an unpublished, two-page opinion in which we held that the plaintiff/prisoner's request for DNA testing was not cognizable under § 1983, but was rather a habeas claim because it "plainly challenged the validity of his criminal convictions and the fact or duration of his continued confinement." *736 A review of Boyle reveals that it engaged in only limited analysis and did not discuss the sharp circuit split that existed on this issue at that time.
In Dotson v. Wilkinson, 329 F.3d 463 (6th Cir.2003) (en banc), we rejected similar reasoning, holding instead that "procedural challenges to parole eligibility and parole suitability determinations ... do not `necessarily imply' the invalidity of the prisoner's conviction or sentence and, therefore, may appropriately be brought as civil rights actions, under 42 U.S.C. § 1983, rather than pursuant to an application for habeas corpus." Id. at 472 (overruling any prior opinions to the extent they conflicted with the reasoning therein). Given our holding in Dotson and that the Supreme Court ultimately affirmed our decision, see Wilkinson, 544 U.S. at 85, 125 S.Ct. 1242, we decline to credit Boyle with any persuasive value and reject the district court's reliance upon it. The question of whether a challenge to the State's denial of a plaintiff/prisoner's request for evidence for DNA testing may be brought under § 1983 (rather than habeas) is an open question in this court.
And, as mentioned above, there is a circuit split on this question. Prior to the Supreme Court decision in Wilkinson, two courts of appeals had held that such suits could only be brought under § 2254, see Kutzner v. Montgomery County, 303 F.3d 339 (5th Cir.2009) (per curiam); Harvey v. Horan, 278 F.3d 370 (4th Cir.2002), whereas the Eleventh Circuit had held that suits seeking access to evidence for DNA testing could be brought pursuant to § 1983, see Bradley v. Pryor, 305 F.3d 1287, 1290 (11th Cir.2002). Following Wilkinson, however, "[e]very Court of Appeals to consider the question since Dotson has decided that because access to DNA evidence [] does not `necessarily spell speedier release,' it can be brought under § 1983." Third Judicial Dist. v. Osborne, ___ U.S. ___, 129 S.Ct. 2308, 2318, 174 L.Ed.2d 38 (2009) (quoting Wilkinson, 544 U.S. at 74, 125 S.Ct. 1242); Grier v. Klem, 591 F.3d 672, 677 (3rd Cir.2010). See also Savory v. Lyons, 469 F.3d 667, 671 (7th Cir.2006); McKithen v. Brown, 481 F.3d 89, 99 (2d Cir.2007). As explained by the Ninth Circuit in the case leading to the Supreme Court decision,
It is clear to us, as a matter of logic, that success in such an action would not necessarily demonstrate the invalidity of confinement or its duration.
First, success would yield only access to the evidence-nothing more.
Second, further DNA analysis may prove exculpatory, inculpatory, or inconclusive; thus, there is a significant chance that the results will either confirm or have no effect on the validity of Osborne's confinement.
And third, even if the results exonerate Osborne, a separate action-alleging a separate constitutional violation altogether-would be required to overturn his conviction.
Osborne v. Dist. Attorney's Office for the Third Judicial Dist., 423 F.3d 1050, 1054-55 (9th Cir.2005) (quotation marks and citations omitted; paragraph breaks inserted). We are persuaded by this reasoning and conclude that Durr's request to seek DNA evidence was cognizable under § 1983.
But we find that we cannot grant Durr a stay of his execution for these very same reasons: success on his claim would do no more than yield access to the evidence, it would have no direct effect on the validity of his conviction or death sentence, and he would have to bring another, separate action in order to even challenge the conviction or sentence. That is, even if Durr were to prevail on his § 1983 action (and obtain the necklace for DNA testing), success in that action would not directly *737 invalidate or undermine his conviction or sentence. Consequently, there is no nexus between the merits of Durr's underlying claim and his pending execution, so this claimno matter its meritcannot justify our interference with the State's enforcement of an otherwise uncontested judgment of conviction and sentence.
We have stated the factors for determining whether to grant a stay of execution as: "(1) whether there is a likelihood [the prisoner] will succeed on the merits of the appeal; (2) whether there is a likelihood he will suffer irreparable harm absent a stay; (3) whether the stay will cause substantial harm to others; and (4) whether the injunction would serve the public interest." Workman v. Bell, 484 F.3d 837, 839 (6th Cir.2007); see also Cooey v. Strickland, 589 F.3d 210 (6th Cir.2009); Workman v. Bredesen, 486 F.3d 896, 905 (6th Cir.2007). But the necessary implication of these cases is that this first factorthe likelihood of success on the meritsconcerns the merits of his direct challenge to his conviction or sentence (on direct appeal or via habeas); that is, the likelihood that he will be able to invalidate or undermine his conviction or sentence by prevailing on the merits. This factor most certainly does not concern the merits of an entirely separate lawsuit. And that, by his own account, is all that Durr has here: an entirely separate lawsuit, in which he does not seek to invalidate or undermine his conviction or death sentence. See Motion of Apt. Darryl Durr for Stay of Execution at *17 (Apr. 17, 2010) ("Success in his § 1983 case would not demonstrate that his confinement or impending execution was improper or even questionable.").
Finally, it warrants mentioning that, even if we were to construe this claim as a habeas petitiona second and successive habeas petition in this circumstance Durr cannot prevail because he cannot satisfy the criteria of 28 U.S.C. § 2244(b)(2). Under this provision, this Court may authorize a petitioner to bring a claim not presented in the prior habeas petition if: (A) "the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable"; or (B) "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2244(b)(2). Given that Durr raises a claim only under part B, this court may authorize the petition only "if it determines that the application makes a prima facie showing that the application satisfies the requirements." 28 U.S.C. § 2244(b)(3)(C). "`Prima facie' in this context means simply sufficient allegations of fact together with some documentation that would warrant a fuller exploration in the district court." In re Lott, 366 F.3d 431, 433 (6th Cir.2004) (quotation marks and citation omitted).
So, as a second or successive habeas, Durr's claim fails on multiple levels. Durr does not contendnor could hethat his claim rests on a new rule of constitutional law. Durr contends that his constitutional rights were violated when the State refused to provide him with the necklace so that he could test it for DNA, and again when he was denied appeal as of right on that decision. Even if we were to accept Durr's claim that he could not have obtained this evidence any earlier than 2009 (upon conclusion of the initial habeas review and not 2003 when the Ohio Rev.Code § § 2953.73(E)(1) was enacted), we still could not find that he is entitled to relief because he has presented no "documentation" *738 to support his bald assertion that the DNA results from testing the necklace would have been helpful, much less to support a claim of actual innocence. Moreover, by Durr's own admission, these particular constitutional claims of error do not, by themselves, raise any question about the validity of his conviction or death sentence.
III.
Based on the foregoing, we hold that Durr has stated claims that are cognizable under § 1983 but conclude that even if Durr were to succeed on those claims, such success would not entitled him to a stay of his execution. Therefore, we AFFIRM the district court's order denying Durr a temporary restraining order or a preliminary injunction.
Judge Cole concurs in the result only.
NOTES
[1] For a detailed procedural history of Durr's state criminal action, see Durr v. Mitchell, 487 F.3d 423 (6th Cir.2007), reh'g and reh'g en banc denied (Sept. 7, 2007), cert. denied, 552 U.S. 1261, 128 S.Ct. 1652, 170 L.Ed.2d 361 (2008).
|
Order entered July 1, 2015
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01384-CV
IN THE INTEREST OF K.V.K., A CHILD
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-12-19679
ORDER
In an order dated April 30, 2015, the Court granted appellant’s motion to file
supplemental reporter’s records and ordered Glenda Johnson, Official Court Reporter for the
256th Judicial District Court, to file reporter’s records from six hearings. In an order dated May
5, 2015, the Court granted appellee’s motion to file previously requested reporter’s records and
ordered Ms. Johnson to file reporter’s records from an additional six hearings. The requested
reporter’s records are past due.
Accordingly, we ORDER Ms. Johnson to file, by JULY 20, 2015, the reporter’s records
with exhibits from the hearings held on the following dates:
1. February 20, 2014;
2. February 28, 2014;
3. March 20, 2014;
4. October 7, 2014;
5. October 22, 2014; and
6. January 9, 2015.
If any of the above-listed hearings were not recorded, Ms. Johnson shall file written verification
that such hearings were not recorded.
We further ORDER Ms. Johnson to file, by JULY 20, 2015, either the reporter’s records
with exhibits from the hearings held on the following dates:
1. November 15, 2013;
2. December 19, 2013;
3. September 9, 2014;
4. October 2, 2014;
5. October 3, 2014; and
6. November 17, 2014
or written verification that any of the hearings were not recorded or that appellee has not paid or
made arrangements to pay for these records.
Appellant’s brief will be due THIRTY DAYS after the reporter’s record is complete or
written verification that any of the above listed hearings were not recorded or that appellee has
not paid for the records appellee requested.
We expressly CAUTION Ms. Johnson that failure to comply with this order may result
in an order that she not sit as a court reporter until she complies.
We DIRECT the Clerk of this Court to send a copy of this order by electronic
transmission to the Honorable David Lopez, Judge of the 256th Judicial District Court, Ms.
Johnson, and counsel for all parties.
/s/ ELIZABETH LANG-MIERS
JUSTICE
|
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 19, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee. No. 04-7137
v. (D.C. No. CR-04-68-01-WH)
JOSE JUAN AYON ROMERO, (E.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Defendant pled guilty to possession of cocaine with intent to distribute in
violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to ninety-six
months’ incarceration followed by a sixty-month term of supervised release.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant filed a timely notice of appeal. Rec., Vol. 1, Tab. 17. Thereafter,
Defendant’s counsel filed a brief following the mandate of Anders v. California,
386 U.S. 738 (1967), accompanied by a Motion to Withdraw. Defendant also
filed a brief articulating the bases he believes entitle him to relief.
According to Defendant’s counsel, there are no arguable appealable issues.
Aplt. Anders Br. at 6-9. We have reviewed the record on appeal, as well as
Defendant’s brief, and conclude that counsel is correct in determining that there
are no non-frivolous issues that can be raised; nothing indicates that the district
court erred under United States v. Booker, __U.S.__, 125 S. Ct. 738 (2005), when
it imposed Defendant’s sentence. Counsel’s brief contains a certificate of service
indicating that Defendant was furnished with a copy of counsel’s brief on
April 21, 2005. Id. at 11. Accordingly, we GRANT counsel’s Motion to
Withdraw and AFFIRM the decision of the trial court.
Entered for the Court
Monroe G. McKay
Circuit Judge
-2-
|
145 F.3d 1345
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Harold D. HORNSBY, Petitioner-Appellant,v.Stephen KAISER,* Respondent-Appellee.
No. 96-5210.
United States Court of Appeals, Tenth Circuit.
April 14, 1998.
1
Before PORFILIO and LUCERO, Circuit Judges, and MARTEN,*** District Judge.
2
ORDER AND JUDGMENT**
3
After examining petitioner's briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
4
Petitioner-appellant appeals the district court's denial of his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. Because petitioner has made a substantial showing of the denial of a federal right regarding the issues arising out of his conviction in Oklahoma case No. CRF-90-3198, we grant a certificate of probable cause as to these issues, including the effect the conviction had on petitioner's sentence in case No. CRF-92-170.1 As to these issues only, we reverse the judgment and remand for further proceedings. We deny petitioner's application for a certificate of probable cause regarding the issues arising out of his convictions in case Nos. CRF-90-461 and CRF-92-170, and dismiss the appeal relating to these issues.
Case No. CRF-90-3198
5
In 1990, in the district court for Tulsa County, Oklahoma, petitioner pleaded guilty to Larceny from a Person in case No. CRF-90-3198, receiving a three-year sentence. Petitioner contends his plea was based on an agreement obligating the prosecution to recommend a three-year suspended sentence, and that the trial court disregarded this recommendation in sentencing petitioner to three years' incarceration. Petitioner did not appeal the conviction or sentence.
6
In March 1995, petitioner filed an amended Motion to Withdraw Guilty Plea/Motion for Appeal Out-of-Time/Application for Post Conviction Relief in the state court, seeking to withdraw his guilty plea as involuntary. Petitioner supported his application with an affidavit stating that he waived his rights to a preliminary hearing and trial in reliance on his attorney's advice that the sentence would be suspended, and that he would not have waived these rights had he known the court would reject the recommendation. His affidavit also stated that immediately after sentencing he requested his attorney to withdraw the plea and to perfect a direct appeal, but that the attorney failed to do so. See R. II, doc. 21, Affidavit contained in ex. 2-E.
7
The state court denied petitioner's motion, finding his claims procedurally barred because they were not raised on direct appeal. The court rejected petitioner's claim that the procedural default was excused based on his attorney's ineffectiveness in not perfecting an appeal, finding that petitioner had been advised of his right to appeal but took no steps to perfect such an appeal. The Oklahoma Court of Criminal Appeals affirmed.
Case No. CRF-90-461
8
In 1990, petitioner also pleaded guilty to Larceny of Merchandise in case No. CRF-90-461, and received a one-year county jail sentence. He did not appeal. His March 1995 state court application for post-conviction relief included a challenge to this conviction as well, arguing there was no factual basis and the sentence exceeded the maximum allowable punishment under state law. The claims were rejected based on petitioner's failure to raise them on direct appeal.
Case No. CRF-92-170
9
In January 1993, in case No. CRF-92-170, petitioner was tried and convicted of Robbery by Fear, for which he received a fifteen-year sentence, and Robbery by Firearms, for which he received a twenty-five year sentence. Before trial, he filed several state court actions challenging his arrest and confinement, including a petition for a writ of habeas corpus, a writ of prohibition and a writ of mandamus. These petitions were denied. After sentencing, petitioner's county public defender moved to withdraw, citing a conflict of interest. A state public defender was then appointed to represent petitioner. On appeal, this attorney raised a single successful issue, challenging a fine that had been imposed as part of petitioner's sentence.
10
In December 1993, after his direct appeal had been fully briefed, petitioner attempted to file a motion in the Oklahoma Supreme Court dismissing his court-appointed attorney as ineffective, and requesting appointment of effective counsel. The motion was returned to petitioner to be filed in the district court. In July 1994, petitioner moved the state district court to dismiss his court-appointed attorney and to permit petitioner to represent himself on appeal. Leave to appear pro se was granted in August 1994.
11
Petitioner submitted a motion for a hearing in the state appellate court, alleging there was a petition for writ of habeas corpus pending before that court in which he had been given the right to represent himself. The appellate court denied the motion, noting the absence of a habeas petition before it, and stating that any issues petitioner wished to raise pro se should be submitted through his attorney. Petitioner then filed a writ of prohibition in the Oklahoma Supreme Court, alleging the state public defender had been appointed contrary to law, and seeking to prohibit the Oklahoma Court of Criminal Appeals from deciding his appeal upon the state public defender's briefs. Several days later, the state public defender filed a motion to withdraw, citing a conflict of interest with petitioner. Petitioner's application for a writ of prohibition was transferred to the Oklahoma Court of Criminal appeals, who denied both the application and counsel's motion to withdraw. The court found the state public defender was properly appointed, and that petitioner's attempt to represent himself, many months after the briefing had been completed, was not timely. Petitioner then filed an application for a writ of mandamus with the Oklahoma Supreme Court, which was denied.
12
In August 1995, petitioner filed an application for post-conviction relief in the state district court regarding his 1993 convictions, arguing that both his trial and appellate counsel were ineffective and raising numerous allegations of error. The state district court denied the petition in October 1995, finding petitioner received effective assistance both at trial and on appeal, and the remainder of his claims were procedurally barred. Petitioner did not appeal.
Federal Petition for Writ of Habeas Corpus
13
In September 1995, petitioner brought this federal habeas corpus action, amending his petition in October 1995 to challenge both the 1993 and 1990 convictions. The federal district court denied the petition. The court first held it lacked authority to grant habeas relief regarding petitioner's conviction in case No. CRF-90-461 because petitioner was no longer in custody under that sentence, and the conviction had not been used to enhance his subsequent sentence. Regarding his convictions in case Nos. CRF-90-3198 and CRF-92-170, the court held petitioner had not shown cause and prejudice to excuse his procedural defaults, and the failure to raise his issues on direct appeal barred the court from reviewing them in the habeas action. Finally, the court concluded an evidentiary hearing was not necessary because the issues could be determined from the record. This appeal followed.
14
In cases filed before AEDPA's enactment, a petitioner appealing from the denial of a 28 U.S.C. § 2254 petition has to make "a substantial showing of the denial of a federal right" to obtain a certificate of probable cause. See Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (quotation and brackets omitted). Petitioner has failed to make such a showing regarding his convictions in case Nos. CRF-90-461 and CRF-92-170.
15
Petitioner has not shown entitlement to relief from his conviction in case No. CRF-90-461 because he is no longer in custody or adversely affected by that conviction. Petitioner also has not demonstrated cause and prejudice to excuse his failure to raise, on direct appeal, the alleged errors in case No. CRF-92-170.2 He has not shown that his attorney was ineffective by omitting a "dead-bang winner" from the brief, or that his attorney's decision to rely on the one successful issue regarding the fine was anything other than a tactical decision. See United States v. Cook, 45 F.3d 388, 394-95 (10th Cir.1995). He also has not shown that the conflict of interest that arose after he incorrectly alleged the court lacked authority to appoint counsel was prejudicial. Petitioner's application for a certificate of probable cause is denied, therefore, as to the issues arising out of these two convictions.
16
Petitioner's claim that his procedural default in case No. CRF-90-3198 was excused by his attorney's ineffectiveness in failing to file a requested motion to withdraw the guilty plea or to perfect an appeal requires further examination. The federal district court found petitioner's claims procedurally barred, deferring to the state court's factual findings that petitioner had been advised of the right to appeal but took no steps to perfect such an appeal. Because it was unclear whether the state post-conviction court afforded petitioner adequate procedures before making its factual findings, we granted a certificate of probable cause on the issues arising out of case No. CRF-90-3198, and ordered the State of Oklahoma to file a response brief.
17
The State's response makes it clear that petitioner was not afforded a hearing in state court, despite his affidavit testimony that his attorney failed to honor a specific request to file a motion to withdraw the plea and to perfect an appeal. Based on the pre-AEDPA version of 28 U.S.C. § 2254(d), the state court's findings regarding petitioner's failure to perfect an appeal and his attorney's alleged ineffectiveness are not entitled to a presumption of correctness. See Nguyen v. Reynolds, 131 F.3d 1340, 1359 (10th Cir.1997) ("Th[e] presumption of correctness does not apply, and a federal court must grant an evidentiary hearing, if the habeas petitioner did not receive a full, fair, and adequate hearing in the state court proceeding on the matter sought to be raised in the habeas petition."); Medina v. Barnes, 71 F.3d 363, 369-70 (10th Cir.1995) (holding state court's findings regarding ineffective assistance of counsel claim not entitled to presumption of correctness when inadequate hearing held, entitling petitioner to evidentiary hearing in federal court). The case must be remanded, then, for an evidentiary determination whether petitioner's default was excused by his attorney's ineffectiveness in allegedly failing to comply with petitioner's request to file a motion to withdraw the plea and perfect an appeal.
18
We have examined the merits of petitioner's habeas pleadings to determine whether we can dispose of this appeal without a remand. We cannot, based on several issues which should be decided in the first instance by the district court. These issues include: which claims are actually raised between the initial habeas petition and the amended one; whether all such claims are exhausted; whether the underlying plea agreement required a sentencing recommendation; whether petitioner's claims have merit in light of Oklahoma's requirement that a defendant be allowed to withdraw his plea upon rejection of a sentencing recommendation, see Couch v. State, 814 P.2d 1045, 1047 (Okla.Crim.App.1991); and whether petitioner was entitled to appointed counsel for proceedings on his motion to withdraw the guilty plea in light of Randall v. State, 861 P.2d 314, 315-16 (Okla.Crim.App.1993) (holding that hearing on motion to withdraw plea is a "critical stage" invoking the right to counsel). The district court may wish to consider any or all of these issues.
19
A certificate of probable cause regarding the issues arising out of petitioner's conviction in case No. CRF-90-3198 is GRANTED, and the judgment concerning those issues is REVERSED and REMANDED for further proceedings. Petitioner's application for a certificate of probable cause regarding the issues arising out of his convictions in case Nos. CRF-90-461 and CRF-92-170 is DENIED, and the appeal of those issues is DISMISSED. Petitioner's outstanding motions, except his motion to change the caption, are DENIED. The mandate shall issue forthwith.
*
Petitioner has moved to amend the caption to reflect his transfer to a new facility while this habeas action was pending. As respondent has not objected, petitioner's current custodian, Stephen Kaiser, is hereby substituted for former custodian Edward L. Evans, Jr
**
* The Honorable J. Thomas Marten, District Judge, United States District Court for the District of Kansas, sitting by designation
**
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
1
Petitioner filed his habeas petition on September 18, 1995. Therefore, the recently-enacted amendments to the habeas statutes contained in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), do not apply. See Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). Petitioner remains subject, however, to the pre-AEDPA requirement that he obtain a certificate of probable cause before bringing his appeal, requiring him to make a substantial showing of the denial of a federal right. See Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)
2
Regarding case No. CRF-92-170, petitioner raised the following issues: (1) he was denied an opportunity for a direct appeal or corrective process to vindicate his claims that his arrest was pretextual, that the warrantless arrest was unlawful, that the warrant issued on an insufficient and perjured affidavit, that inadmissable and perjured evidence was used at trial, and that he was denied counsel during an evidentiary hearing; (2) the convictions were void because the charging information was not verified, the jury was improperly instructed on the burdens of proof and the elements, no proof of his recidivist conviction was offered, the district court lacked jurisdiction to try petitioner while his petitions for writs of mandamus and prohibition were pending, and petitioner's counsel was ineffective and had a conflict of interest both at trial and on appeal; and (3) the conviction must be reversed because it was based on inadmissible evidence, the record is void of evidence of a lawful arrest, there were no circumstances justifying the denial of a speedy trial or the late filing of a probable cause affidavit, and retrial is barred by double jeopardy
|
42 F.3d 1384
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.THE NATIONALIST MOVEMENT, Plaintiff, Appellant,v.CITY OF BOSTON, Massachusetts, Defendant, Appellee.
No. 94-1827.
United States Court of Appeals,First Circuit.
Dec. 19, 1994.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge ]
Richard Barrett on brief for appellant.
Albert W. Wallis, Claudia Billings McKelway, Krisna Basu on brief for appellee.
D.Mass.
VACATED AND REMANDED.
Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Stahl, Circuit Judge.
Per Curiam.
1
Pursuant to Local Rule 83.5.3 of the United States District Court for the District of Massachusetts, an application for admission to the court pro hac vice requires, inter alia, that a member of the bar enter an appearance and move the applicant's admission. Richard Barrett, a leader of and attorney for the Nationalist Movement, failed to comply with this requirement and the Movement appeals the resulting summary dismissal of its lawsuit. Barrett asserted below and on appeal that his diligent efforts to secure local counsel proved unsuccessful, attributing this failure to the Nationalist Movement's controversial views. He argues that, under these circumstances, dismissing his lawsuit for failure to comply with Rule 83.5.3 violates several constitutional provisions.
2
After careful consideration of the briefs, we are uncertain whether appellant was, in fact, unable to locate local counsel to move his admission pro hac vice. In order to protect the integrity of these proceedings, and to avoid the needless adjudication of serious questions of law based upon what might be an inaccurate factual premise, we vacate the district court's judgment of dismissal and remand for a hearing to determine whether appellant, after diligent effort, was unable to find any local counsel, and whether any local counsel can now be located.
3
If local counsel is found the lawsuit could proceed, in which case we assume the court would address the question of the continued viability of appellant's claims in light of the fact that the parade took place, albeit in an allegedly restricted form. If the district court determines that Barrett engaged in diligent but unavailing efforts to find local counsel and it again dismisses the suit, appellant, of course, would be free to appeal again. If the district court finds that Barrett misrepresented his efforts to locate local counsel, or that he declined any offer by local counsel to appear, it may consider whatever sanctions, including those described by Fed. R. Civ. P. 11, it deems appropriate.
4
No costs.
|
686 P.2d 456 (1984)
KUTV, INC.; Deseret News Publishing Company; KSL-TV, a division of Bonneville International Corporation; Kearns-Tribune Corporation; and Society of Professional Journalists, Sigma Delta Chi, Utah Chapter, United Press International, and Associated Press, Plaintiffs,
v.
Honorable Homer F. WILKINSON, District Judge, Defendant.
No. 19535.
Supreme Court of Utah.
May 1, 1984.
Dissenting Opinion August 30, 1984.
*458 Alan L. Sullivan, Randy L. Dryer, John Mullen, Salt Lake City, for plaintiffs.
David L. Wilkinson, Atty. Gen., Salt Lake City, for defendant.
HALL, Chief Justice.
Plaintiffs challenge the order of the district court prohibiting the news media from reporting Charles Jerome Gatto's alleged association with organized crime for the duration of his criminal trial and seek an extraordinary writ from this Court.
The issue presented for our review has become moot since the district court vacated the challenged order following the declaration of a mistrial occasioned by the exposure of jury members to extra-trial information. Nevertheless, the underlying conflict between fair trial and free press remains. Therefore, it is in the public interest that we apply an exception to mootness and reach the merits of the case.[1]
In their haste to have this matter heard on October 20, 1983, neither party provided the Court with the record or a transcript of the proceedings below. In fact, the trial court had not yet filed its written findings of fact, conclusions of law and order. Nevertheless, since the material facts were not in dispute, the Court permitted the parties to fully present their respective arguments. The Court then took the matter under advisement, with the admonition to counsel to promptly furnish the exhibits received in evidence and the written findings, conclusions and order of the trial court. Those documents were duly filed with this Court on October 21. The Court, persuaded that the protection of Gatto's right to a fair trial justified the restraint placed upon the news media, by minute entry, denied plaintiffs' demand for relief. In so doing, this Court modified the order of the trial court to the extent necessary to restrain the dissemination of information concerning Gatto's indirect as well as direct association or connection with the Mafia or organized crime.[2]
The pertinent facts furnished by counsel and later by the official record are summarized as follows:
On October 17, 1983, the trial court began the jury selection process in the criminal action entitled State of Utah v. Charles Jerome Gatto (No. CR-82-1069, then pending in the Third District Court of Salt Lake County). Gatto was charged with four counts of felony theft involving investments by ten Utahns in an allegedly bogus gold mine. The presence in the courtroom of a number of members of the news media, representing KUTV, Inc., KSL TV and United Press International among others, prompted the court to discuss with media representatives the effect of anticipated publicity during the trial on the defendant's right to a fair trial. Alternatives to an order of the court restraining the dissemination of certain information were discussed. At that time, there was some assurance, subject to confirmation, that the media might well adopt a position of voluntary restraint. However, no such confirmation was forthcoming, and the court was later informed that there could be no guarantee that the media would exercise voluntary restraint in its publications or broadcasts. At that time, counsel for the defense moved the trial court to sequester the jury. The motion was denied.
*459 The jury was impaneled, and the trial began during the afternoon of October 17. At the end of the day, the court gave the usual admonition to the jury members to insulate themselves from media reports concerning the trial. That evening, at 6:00 p.m., KSL TV reported in its newscast, in addition to various particulars of the trial:
Last year, Gatto and the two sons of alleged Mafia don Joseph Bonanno were charged by the FBI with allegedly operating another phony investment scheme involving patriotic posters.
The FBI alleged, in that case, that the Bonanno brothers and Gatto had used a Salt Lake company for that alleged scam.
On the morning of October 18, prior to resuming the trial, the court conducted a voir dire of the jury and asked the jury members if any of them had heard news reports of the trial or if anyone had told them of news reports or talked to them about such reports. One juror reported that her daughter had viewed a 10:00 p.m. television newscast and had remarked to her mother, "I bet I know what case you're on." One of the other jurors related that a fellow teacher had inquired of her, "Are you on the case about the gold mine?" In each instance, the jurors heeded the court's admonition and declined to discuss the case.
A Deseret News article dated October 18-19, 1983, reported the progress of the trial and, in addition, stated:
A Utah judge says he will not bar newspapers and broadcasters from reporting on theft suspect Charles Jerome Gatto's alleged Mafia connections unless such stories result in a mistrial.
....
Judge Homer Wilkinson denied a defense motion seeking to keep the news media from reporting on possible ties between Gatto and reputed Mafia figure Joseph Bonanno Jr.
The FBI has alleged both Gatto and members of the Bonanno family ran an investment scam in California from a Salt Lake Company.
....
"I think we have to do away with anything to do with Joseph Bonanno and organized crime because it will taint the jury," defense attorney Gil Athay told Wilkinson.
Reporters had earlier told Wilkinson they could not formally agree to any suggestion they refrain from reporting the Gatto-Bonanno connection.
Counsel for Gatto moved for a temporary restraining order and order to show cause, which were granted by the court at 5:05 p.m., October 18. Those documents were immediately served upon the various news media that appear in this proceeding as plaintiffs.
On the following morning, October 19, the court again conducted a voir dire of the jury, which disclosed that two additional jurors had had outside contact about the case. One reported that she had been approached by an unknown person just outside the courthouse on the evening of October 18 wanting "to ask [her] a couple of questions." The juror refused to talk to the person. A second juror reported that she had received a telephone call from a parent in Montana who had inquired if she was "on the case with the two Mafia guys?" The juror also declined to discuss the case.
Following the above-described voir dire, counsel for Gatto moved for a mistrial. The court denied the motion.
During the afternoon of October 19, the court held a hearing on the motion for preliminary injunction and restraining order. All parties to this proceeding presented evidence and made arguments. The court again requested that the news media voluntarily refrain from publishing or broadcasting information about Gatto during the trial that was not relevant or admissible at trial and that the prosecution stated it had no intention of attempting to place in evidence. The news media declined.
The trial court considered as alternatives to the issuance of a restraining order: (1) defendant's waiver of a jury trial, (2) sequestration *460 of the jury, (3) voluntary restraint, and (4) continued admonitions to the jury. The court discounted each of the alternatives, concluding that waiver of the jury was an unreasonable price for Gatto to pay; that sequestration was not a reasonable alternative, not only because of the expected length of the trial (four weeks), with the attendant high costs thereof, and the considerable hardship to the jurors should they be confined for such a long period of time, but also because sequestration at that stage of the trial might well have the effect of causing the jury to question the procedure and thus prejudice them against Gatto; that frequent, strong admonitions to the jury might well have a similar adverse effect upon the jury with resultant prejudice to Gatto; and that voluntary restraint was not to be expected from the media.
The pertinent findings of fact made by the trial court can be summarized as follows:
(1) [T]hat at least one juror had received information that a trial was in progress that in some manner concerned Mafia figures;
(2) that the news media did not intend to exercise restraint in disseminating reports of defendant Gatto's alleged connections with the Mafia or organized crime;
(3) that the alleged fact that defendant Gatto has connections with the Mafia or organized crime is not in the public domain, and no fact was presented which indicated a direct or indirect connection between defendant Gatto and organized crime; and
(4) that an association or connection of defendant Gatto with the Mafia or organized crime if brought to the attention of a juror would result in prejudice.
Thereupon, the trial court concluded that a restraining order was appropriate and necessary to protect Gatto's right to a fair trial and that the news media should be restrained from reporting any alleged connections between Gatto and organized crime. The court then entered the following order:
1. That KUTV, Inc., Kearns-Tribune Corp., the Desert News Publishing Company, KSL TV, KCPX TV, the United Press International and the Associated Press are hereby permanently restrained and enjoined from broadcasting, publishing or otherwise conveying to the public any information concerning the Defendant's direct connection and/or association with the Mafia and/or organized crime, until such time as the jurors have retired to deliberate in this case.
The issue thus presented is the same as was addressed in the recent case of KUTV, Inc. v. Conder,[3] namely, whether a court may impose short-term, during-trial restraint on publication in the interest of assuring a defendant a fair trial by an impartial jury free from outside influences.
In Conder, the Court exhaustively reviewed the cases that bear upon the issue at hand, and made the observation that the case of Nebraska Press Association v. Stuart[4] was the closest United States Supreme Court precedent on its facts. In that case, the Nebraska Supreme Court approved a pretrial order of the trial court that prohibited the press from publishing certain facts about a murder case until after the jury was impaneled. The United States Supreme Court overturned the order because it was issued without a sufficient showing to satisfy "the heavy burden imposed as a condition to securing a prior restraint."[5] In so doing, the Court concluded that it "need not rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint."[6] In fact, the Court reversed the restraint because the facts did not meet a three-part test involving (1) the extent to which the *461 probable publicity threatened the fairness of the forthcoming trial, (2) "whether measures short of an order restraining all publication would have insured the defendant a fair trial,"[7] and (3) whether the restraint would, in fact, have achieved the desired protection.
Similarly, this Court, in Conder, recognized that "there may be circumstances where a prior restraint of some sort would be justified in order to assure a defendant a fair trial,"[8] but held the order in that case invalid "because it was not accompanied by the procedural formalities and evidentiary showings necessary to justify such a restraint."[9]
All of the procedural formalities and evidentiary showings that were found to be lacking in Conder are present in this case. The trial court duly apprised the parties of its concern about the effect during-trial publicity would have upon Gatto's right to a fair trial. The media rebuffed the court's suggestion that voluntary restraint be exercised and broadly disseminated accounts of Gatto's alleged underworld connections and associations with organized crime figures, both on the first day of trial and the following day. This prompted the court to issue a temporary restraining order. After notice to the affected media, the court then conducted a full adversary hearing on the motion for preliminary injunction, wherein evidence was taken and exhaustive argument was permitted. The court thereafter ruled that the media was restrained and enjoined from disseminating any information concerning Gatto's connection with organized crime until such time as the jury had retired to deliberate. This Court's modification of the trial court's order was necessary to accomplish the intended purpose of the order and achieve the desired protection, the third test in Nebraska Press, supra. The media was disseminating information of an indirect connection or association with the Mafia by reporting that "Gatto and two sons of alleged Mafia don, Joseph Bonanno, were charged by the FBI with allegedly operating another phony investment scheme." This information could have had the same prejudicial effect as references to Gatto's direct connection or association.
The district court's order, as modified by this Court, is precise and narrowly drawn so as to extend no further than necessary to protect the defendant's right to a fair trial. The order does not inhibit the reporting of trial events; it only restrains the media from reporting extraneous information of a highly prejudicial nature during an ongoing trial. Furthermore, it is supported by specific findings of fact that meet the three-part test laid down in Nebraska Press: (1) the extent to which the media accounts threatened the fairness of the ongoing trial is clearly demonstrated by the successive voir dire examinations of the jury conducted by the court which revealed that the prejudicial information was reaching the members of the jury; (2) the conclusion reached that voluntary restraint, sequestration of the jury, further frequent admonitions to the jury and waiver of jury trial were not reasonable alternatives is well supported by the facts of this case and does not evidence an abuse of the court's discretion; and (3) the restraint would reasonably achieve the desired protection, preservation of the integrity of the jury.
The foregoing tests were clearly met by the particular facts of this case. Use of the term "Mafia" in almost any context is a guaranteed attention-getter. The word universally connotes a little-understood but fearsome and sinister underworld association. Use of the term by the media, unrelated as it was in any manner to the facts of the ongoing criminal trial, could only serve to invite even the most sophisticated jurors to conjecture about a defendant who has "Mafia connections."
In addition, for purposes of our own constitutional direction that "[n]o law shall be passed to abridge or restrain the *462 freedom of speech or of the press," Utah Const. art. I, § 15, we add a fourth test pertaining to during-trial publicity: the degree of public interest in immediate access to the information that the proposed order would deny them for the duration of the trial. In this case, we perceive no significant public interest in immediate access to the sole subject of the restraining order: that Gatto, on trial for theft by deception, had some direct or indirect connection or association with organized crime. This case does not involve the trial of a public official, evidence of official misconduct or connections with organized crime. In those types of cases legitimate public interest is at its highest peak and the right to know could well outweigh competing interests and justify the expense and risk of sequestering the jury.
It is significant that the issue in this case concerns the propriety of during-trial publicity rather than pretrial publicity, the effect of which can be gauged and counteracted at the time the jury is selected. The jury having already been impaneled, the threat to fair trial rights is readily apparent should the jury become tainted by the ongoing dissemination of information pertaining to defendant's alleged "Mafia connections."
We view this case as a classic example of a direct confrontation of free-press/fair-trial rights, and the circumstances that gave rise to this confrontation require that an accommodation be reached in favor of the defendant's due process right to a fair trial.
In order to avoid implying that this precedent could become commonplace, we emphasize that orders imposing any prior restraints on the media can rarely be justified. Whatever their alleged justification, they will not be sustained by this Court unless they are accompanied by suitable written findings, so that the affected media can, if they desire, subject the order to immediate review.
The denial of the request for extraordinary relief is confirmed, and the petition for rehearing of the Court's order of October 21, 1983, is denied. No costs awarded.
OAKS, HOWE and DURHAM, JJ., concur.
STEWART, Justice (dissenting).
Four members of the Court sustain the constitutionality of a gag order prohibiting certain members of the press from publishing information about a defendant in a criminal trial. Since I believe that the order is prohibited by the First Amendment to the United States Constitution and Article I, § 15 of the Utah Constitution, I dissent.
I.
"[T]he most serious and the least tolerable infringement on First Amendment rights" is a prior restraint. Nebraska Press Association v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683 (1976). In sustaining and even broadening the censorship order imposed by the trial court, the majority of this Court purports to apply the standards established by Nebraska Press. I respectfully submit, however, that the majority both misreads and misapplies Nebraska Press and also wholly fails to recognize the impact of its ruling on the doctrine of prior restraints generally and the legality of gag orders in particular.
Nebraska Press did not flatly prohibit all media gag orders in criminal trials, but the Supreme Court made clear that an order imposing a prior restraint on the press is justifiable only in the most extreme and extraordinary cases and only when other judicial remedies would not be adequate to assure the fair trial of an accused. "[T]he barriers to prior restraint remain high and the presumption against its use continues intact." Id. at 570, 96 S.Ct. at 2808. Indeed, even when the government has asserted that national security would be adversely affected by the publication of certain information, the Court has held injunctions against media publication unconstitutional. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). The majority of this Court, however, seriously enfeebles the presumption of invalidity because it fails to *463 require judicial resort to well-established remedies, short of a gag order, that would ensure a fair trial.
This is not a case where the First and Sixth Amendments are necessarily at loggerheads. The right to a fair trial and preservation of the freedom of the press could have been fairly and reasonably accommodated by sequestering the jury. The majority argues that sequestration is not practicable because "sequestration at that stage of the trial might well have the effect of causing the jury to question the procedure and thus prejudice them against Gatto." If that were true in this case, it would be true in almost every case involving prejudicial publicity, and sequestration would virtually never be appropriate. Certainly there is no evidence and no finding in this case that sequestration would create prejudice against the defendant. Surely the experience of many other jurisdictions, including the federal courts, which employ sequestration to insure fair trials, does not support the Court's assertion.
In my view the expense to the state and the inconvenience to jurors caused by sequestration is a small price to pay for freedom of the press. The rights enshrined in the Bill of Rights do on occasion cause inconvenience and expense. But considerations of inconvenience and expense pale in significance against the overarching importance of those fundamental values of our free society which are anchored in the Bill of Rights. The Florida Supreme Court in State ex rel. Miami Herald Publishing Co. v. McIntosh, Fla., 340 So.2d 904, 910 (1977) stated:
The inconvenience suffered by jurors who are sequestered to prevent exposure to excluded evidence which may be published in the press is a small price to pay for the public's right to timely knowledge of trial proceedings guaranteed by freedom of the press. It is argued that a temporary withholding of news from the public may aid in assuring a fair trial and that if the State and defendant agree to muzzling the press no one else has a right to object. We firmly reject any suppression of news in a criminal trial except in those rare instances such as national security and where a news report would obviously deny a fair trial as stated above in Federal cases.
II.
Furthermore, the trial court's findings of fact do not justify the extreme measure of imposing a gag order. Rather, the findings demonstrate that the publicity objected to had not tainted the jury and that the possibility of tainting the jury was remote and speculative. The trial court found:
(1) [T]hat at least one juror had received information that a trial was in progress that in some manner concerned Mafia figures;
(2) that the news media did not intend to exercise restraint in disseminating reports of defendant Gatto's alleged connections with the Mafia or organized crime;
(3) that the alleged fact that defendant Gatto has connections with the Mafia or organized crime is not in the public domain, and no fact was presented which indicated a direct or indirect connection between defendant Gatto and organized crime; and
(4) that an association or connection of defendant Gatto with the Mafia or organized crime if brought to the attention of a juror would result in prejudice.
None of these findings indicate that any juror was aware that whatever he had heard that might have emanated from the media was related to the trial in which he was involved. None of the findings indicate that even if a juror might have heard something about the alleged connection between the defendant and the Mafia that that information might affect that juror's judgment. True, finding No. 4 states that "an association or connection of defendant Gatto with the Mafia or organized crime if brought to the attention of a juror would result in prejudice." Concededly, the term "Mafia," if connected with the defendant could prejudice the trial. According to the press accounts, however, the defendant was not directly connected with the Mafia, but was said to be a friend of a son of a Mafia figure. The reports did not state that the defendant himself was a member *464 of the Mafia, or even that he associated with a member of the Mafia. Be that as it may, the allegation could, of course, have been prejudicial if conveyed to the jury. Nevertheless, the trial judge could have addressed the problem by a curative instruction, or he could have declared a mistrial and either sequestered the jury in a subsequent trial or appointed additional alternate jurors to sit in the event of the disqualification of a juror.
In any event, the majority does not even address, much less determine, whether the gag order it sustains is justified by whether "the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." Nebraska Press, supra, 427 U.S. at 562, 96 S.Ct. at 2804 (quoting Learned Hand, J., United States v. Dennis, 183 F.2d 201, 212 (2d Cir.1950)). That test, adopted by the Supreme Court in Nebraska Press with respect to justifying curtailment of freedom of the press, is critical in determining whether a gag order is justified when all other alternative remedies for ensuring a fair trial have been found inadequate. Without even purporting to apply the test, the majority simply asserts that the invasion of the First Amendment right is justified. Since sequestration would have prevented the evil of prejudice, there was no justification whatsoever for the "invasion of free speech."
III.
The majority's application of the Freedom of Press Clause in the Utah Constitution borders on being cavalier. In a wholly off-hand manner, the Court states with respect to the free press provision of the Utah Constitution, Article I, § 15: "[W]e add a fourth test pertaining to during-trial publicity: the degree of public interest in immediate access to the information that the proposed order would deny them for the duration of the trial. In this case, we perceive no significant public interest in immediate access to the sole subject of the restraining order: that Gatto, on trial for theft by deception, had some direct or indirect connection or association with organized crime."
In short, the majority simply bulldozes into the editorial process far beyond anything contemplated in Nebraska Press, even in the most extreme circumstances. The majority seeks to legitimatize judicial judgments on purely editorial matters that are far beyond the competence of any court. Deciding what is newsworthy and when it is newsworthy is simply not a judicial function. Judicial control of those decisions is raw censorship, pure and simple. In asserting power under the Utah Constitution to restrain the publication of information based on "the degree of public interest in immediate access to the information," the Court opens the censorship door wider than any conceivable legitimate judicial interest justifies and wider than has heretofore occurred in this state or, to my knowledge, in any federal jurisdiction. Under the Court's new-found standard, it could almost always justify a gag order on the ground that the public could wait to receive whatever news is to be suppressed but that totally ignores the realities of the process of news dissemination and is flatly at odds with the First Amendment and Article I, § 15.
I should have thought it axiomatic that it is for editors, not judges, to determine what, when, and how to publish. Concededly, what is published may in the eyes of the judiciary be prejudicial, sensationalistic, and unnecessary, but to others it may be highly informative and critical to public discussion.
In sum, I believe that the majority has basically ignored our nation's long-time aversion to prior restraint of speech and the press. There is no justification for imposing a gag order to ensure a fair trial in this case. Other judicial remedies were available and should have been employed to ensure that objective.
I think the gag order was unconstitutional.
NOTES
[1] KUTV, Inc. v. Conder, Utah, 668 P.2d 513 (1983).
[2] The minute entry, dated October 21, 1983, reads as follows:
The Court is persuaded by the findings of the district court that protection of the defendant's right to a fair trial justified the narrowly drawn order issued after notice and hearing in this case. In order to accomplish its purpose, the order is modified to include "... any information concerning the Defendant's direct or indirect connection and/or association with the Mafia and/or organized crime... ."
The relief requested in the Complaint and Petition for an Extraordinary Writ is denied.
This Court's stay of further proceedings in the criminal action is vacated.
Stewart, J., dissents. Opinions to follow.
[3] Supra note 1.
[4] 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).
[5] Id. at 570, 96 S.Ct. at 2808.
[6] Id. at 569-70, 96 S.Ct. at 2807-2808.
[7] Id. at 563, 96 S.Ct. at 2804.
[8] 668 P.2d at 524.
[9] Id.
|
ACCEPTED
01-14-00707-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/18/2015 4:36:02 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00707-CV
MARINECORP INTERNATIONAL, LTD., ) IN THE
)
FILED IN
Appellant, ) 1st COURT OF APPEALS
)
HOUSTON, TEXAS
V. ) 6/18/2015
FIRST COURT 4:36:02 PM
OF APPEALS
)
CHRISTOPHER A. PRINE
THE CHOPPER GROUP, LLC, ET AL., Clerk
)
)
Appellees ) HOUSTON, TEXAS
APPELLANT'S THIRD UNOPPOSED MOTION
TO EXTEND TIME TO FILE BRIEF
Appellant, Marinecorp International, Ltd., asks the Court to extend the time to file its brief
A. INTRODUCTION
1. Appellant is Marinecorp International, Ltd.; Appellees are The Chopper Group, LLC;
Backwoods Country Club, LLC; Tony Miller; and Kyle Tones.
2. The Appellees are unopposed to this Motion.
B. ARGUMENT & AUTHORITIES
3. The Court has authority under Texas Rule of Appellate Procedure 38.6(d) to extend time
to file a brief.
4. There appear to be conflicting due dates for the filing of Appellant's brief. Although
explained more thoroughly below, these dates are:
a. The extended deadline of May 28, 2015, accounted for in the Court's Order granting
Appellant's Motion to Extend Time to File Brief, dated April 22, 2015; and
b. Ten (10) days after the date the court reporter files her supplement to the appellate
record, as specifically requested in Appellant's Motion to Compel, which Motion was
granted by written Order dated May 7, 2015.
1
5. On April 21, 2015, Appellant filed with the Court its Unopposed [Second] Motion to
Extend Time to File Brief. In this Motion, Appellant's legal counsel requested an additional 30-
days to file Appellant's brief, through and including May 28, 2015, because he had recently had
eye surgery which impaired his ability to complete the brief. By Order dated April 22, 2015, the
Court granted Appellant's Motion to Extend Time to File Brief, giving Appellant until May 28,
2015, to complete and file its brief.
6. Realizing that Appellant's legal counsel could not complete his client's brief without a
complete appellate record, on May 4, 2015, Appellant filed of record in this case its Unopposed
Motion to Compel, which related to the court reporter's dilatory efforts in filing with the appeals
Court a complete appellate record. More specifically, in the Motion to Compel Appellant
complained that the court reporter's transcript is incomplete because it does not contain:
a. The objections, motions, and rulings that were made at the bench and without the jury
hearing such matters;
b. The numerous motions, arguments, and rulings during the trial but outside the
presence of the jury; and
c. The discussions, motions, arguments, and rulings that took place during the jury
charge conference outside the presence of the jury.
See Appellant's Unopposed Motion to Compel, attached as Exhibit "1."
7. It is important to note that at Section 7 of the subject Motion to Compel, Appellant
states, "Once the supplemental transcript is received, Appellant requests an additional 10 days to
complete its brief." Id. at §7. It is also important to note in the "Prayer" portion of the subject
Motion to Compel that Appellant specifically asks the Court "to grant an extension of time to file
its brief that is 10 days after the date the court reporter files her supplement." Id. at §9
8. On May 7, 2015, the Court issued its Order granting Appellant's Motion to Compel.
See attached Exhibit "2." At page 2 of the subject Order, the Court concludes, "We grant the
2
motion." The Court then proceeded to order the court reporters "to file, within 14 days of the
date of this order, either an amended reporter's record containing any missing portions of the
reporter's record in this case ... or a certification affirming that no additional proceedings,
including those listed above, exist." Id
9. Appellant's legal counsel was of the belief that with the Court's granting of
Appellant's Motion to Compel, the Court granted said motion in its entirety, which included
Appellant's request for "an extension of time to file its brief that is 10 days after the date the
court reporter files her supplement."
10. Remaining under the impression that Appellant had 10-days from the date the court
reporter filed her supplement to the appellate record, as ordered in the Court's Order granting
Motion to Compel [attached Exhibit "2"], Appellant's legal counsel continued preparation of
Appellant's brief to the extent he could without having available a complete appellate record.
Then, to the surprise of Appellant's legal counsel, he received an email from the Court dated
June 16, 2015, advising him that "The time for filing the APPELLANT'S brief has expired." See
attached Notice of Late Brief, Exhibit "3."
11. Appellant's failure to file its brief by the May 28, 2015, deadline was not due to
neglect or conscious indifference. Rather, this occurred because Appellant's legal counsel was
under the reasonable belief that with the Court's grant of Appellant's Motion to Compel, the
Court had also granted Appellant's specific request in said Motion for "an extension of time to
file its brief that is 10 days after the date the court reporter files her supplement" to the appellate
record.
12. Appellees have not been significantly injured by Appellant's failure to timely file
Appellant's brief. In this regard, it is important to note that while Appellant presently has a draft
3
of its Brief available, it is not complete because to this date, there is still no complete appellate
record available from which the parties can prepare their briefs citing to the Court specific
references to the record where error was preserved and where Appellant alleges supporting
evidence exists. Without a complete record, Appellant has been required to attempt to prepare
its brief in a piecemeal fashion, having to guess and even assume that certain objections and
evidence exist in segments of the reporter's record which have never been provided by the court
reporter, although specifically requested by the parties. This being said, Appellees have not
been prejudiced by Appellant's failure to timely file its brief by the May 28, 2015, deadline
because, in the alternative, prejudice would have certainly resulted to Appellees having to try to
attempt to respond to a brief that alleges appellate error without ever being provided key
references to the record and evidence because the parties have never been provided a complete
appellate record. No prejudice exists because to date Appellees have not been required to
prepare responsive briefs. Accordingly, Appellant requests that the Court grant it an extension of
time to complete and file its brief that is 10 days after the date the court reporter files her
supplement to the appellate record, as previously ordered by the Court.
13. Appellant's filing of this response to the Court's Notice of Late Brief is timely, as this
response is submitted to the Court within 10 days of the Notice's date of June 16, 2015.
PRAYER
For these reasons, Appellant asks the Court to grant an extension of time to file
Appellant's Brief to a date that is 1 0-days after the date the court reporter files her supplement to
the appellate record. Alternatively, Appellant asks that the Court order Appellant's brief filed
with the Court by a deadline deemed reasonable by the Court.
4
Respectfully submitted,
THE STROTHER LAW FIRM
/S/ MA CON D. STROTHER
MACON D. STROTHER
State Bar of Texas #19420000
4306 Yoakum Blvd., Suite 560
Houston, Texas 77006
(713) 557-9238
mstrother(),strother1awfirm.com
ATTORNEY FOR APPELLANT,
MARINECORP INTERNATIONAL, LTD.
Certificate of Conference
As required by Texas Rule of Appellate Procedure • 10.1 (a)(5), I certify that I have
conferred, or made a reasonable attempt to confer, with all other parties which are listed below
about the merits of this motion with the following results:
Brock C. Akers does not oppose motion
Steven R. Cochell does not oppose motion
MACON D. STROTHER
~~ -[ C-c-1-5-
[Date]
5
Certificate of Service
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that
on I served a 'copy of Appellant's Unopposed Motion to Extend Time to File Brief to
the attorneys listed below by electronic service, and that the electronic transmissions were
reported as complete. My email address is [email protected] .
S Mr. Brock C. Akers
The Akers Firm
3401 Allen Parkway, Suite 101
Houston, Texas 77019
Telephone 713-877-2500 Facsimile 713-583-8662
Email [email protected]
Attorney for Appellees, The Chopper Group, LW;
Backwoods Country Club, LLC; and Tony Miller
Mr. Stephen R. Cochell
The Cochell Law Firm, P.C.
5555 West Loop South, Ste. 200
Bellaire, Texas 77401
Telephone 832-767-1065 Facsimile 832-767-1686
Email srcoche1lgmail.com
Attorney for Appellee Kyle Tones
____ personal delivery
mail
commercial delivery service
fax
t,,-" email
MACON D. STROTHER
[Date]
R.
|
207 F.2d 532
SHAWv.UNITED STATES.
No. 4745.
United States Court of AppealsFirst Circuit.
Oct. 23, 1953.
Paul C. Hanna, Framingham, Mass., for appellant.
Thomas P. O'Connor, Asst. U.S. Atty. (Anthony Julian, U.S. Atty., both of Boston, Mass., on brief), for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit judges.
PER CURIAM.
1
This is an appeal from a judgment for the defendant in a suit brought under the Federal Tort Claims Act. Title 28 U.S.C. § 2671 et seq., particularly Sec. 2674. The jurisdiction of the court below rests upon Title 28 U.S.C. § 1346(b); our jurisdiction rests upon Title 28 U.S.C. § 1291.
2
In 1918 the United States took title to the property of the Boston, Cape Cod and New York Canal Company, consisting of the Cape Cod Canal itself, a strip of land on either side of the actual waterway, and, among other bridges over the canal, one known as the Sagamore-Bourne Bridge which carried a Massachusetts State Highway known as the 'Old Plymouth Road' across the canal. During the 1930's the United States built a new bridge over the canal about a quarter of a mile away and soon thereafter it demolished the old Sagamore-Bourne Bridge. When this was done the United States erected a barricade across the 'Old Plymouth Road,' then no longer usable to cross the canal, which consisted of a wooden fence, located close to the top of the bank of the canal, one end of which was approximately 5 1/2 feet and the other end approximately 14 1/2 feet inside the canal property line. The fence consisted of three plank rails spiked to three posts set in the ground. Some of the planks were painted in black and white stripes and there were also reflector-type stop signs mounted on and near the fence.
3
About eleven o'clock on the night of June 16, 1950, the plaintiff's decedent, a young man of 18, was riding as a passenger in an automobile operated by his cousin, a young man of 21. The vehicle approached the canal over the 'Old Plymouth Road,' apparently at high speed, plunged through the barricade and turning end over end sailed some eighty feet through the air into the canal. Both young men were killed.
4
Although the court below found that both the decedent and his cousin were intoxicated, it did not base its decision on a finding of contributory negligence. Instead it found that the United States through its officers and agents had taken reasonable precautions to warn the public not to drive over the old highway beyond its property line.
5
It is true that during the day preceding the accident the fence had been damaged to some extent by employees of the United States in dumping a truck load of loam over it to fill eroded areas on the bank of the canal. But nevertheless the court below found that one reflector-type sign remained attached to the barrier which could be seen in the glare of automobile headlights in ample time to halt a motor vehicle before it reached the fence, and that the damage done to the fence was non-causal for it made no markedly perceptible change in the appearance of the fence and its repair 'would not have improved the 'warning' value of the structure to any great degree, nor could it have stopped the speeding vehicle from hurtling into the canal.'
6
Perhaps the United States might have done more than it did, but we are by no means prepared to say on record before us that the District Court's conclusion of due care on its part was clearly erroneous.
7
Other arguments advanced by the appellant have been considered but in our opinion they are not of sufficient moment to invite discussion.
8
The judgment of the District Court is affirmed.
|
51 F.3d 269
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellant,v.Trina L. HARRIS, Defendant-Appellee.
No. 94-5426.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 2, 1995.Decided March 30, 1995.
ARGUED: Stephen Urban Baer, Assistant United States Attorney, Charlottesville, VA, for appellant. Shanon Stephanie Echols, Charlottesville, VA, for appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Charlottesville, VA, for appellee.
Before HALL and LUTTIG, Circuit Judges, and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation.
OPINION
PER CURIAM:
1
The government appeals the sentence imposed on Trina Harris for her conviction on one count of conspiracy to launder drug money. We hold that the district court erred in departing downward from the guidelines range, and we vacate the sentence and remand for resentencing.
2
* James Dailey and Reginald Davis came to the Roanoke area in 1989 from New Jersey and established independent drug distribution networks that they merged in early 1990. Several persons were involved in laundering money earned from the drug operation but were not directly involved in the actual distribution of drugs. Della Ferguson and Vera Ann Stuart, relatives of one of the distributors, used fictitious names to wire money on several occasions; Ferguson also titled four cars in her name in furtherance of the laundering scheme. When Ferguson and Stuart received target letters and subpoenas from the grand jury in April, 1993, each cooperated and provided what the government felt was "substantial assistance." Each pleaded guilty to a single money laundering count. The district court granted the government's motion under USSG Sec. 5K1.1 for a departure below Ferguson's guidelines range of 24-30 months, and she was sentenced to one year probation. The information against Stuart was dismissed on the government's motion, and she was permitted to enter the pretrial diversion program.
3
One of Davis's girlfriends, Kandys Taylor, was involved in two wire transfers of money from the drug trade. She also titled in her name a car purchased with drug profits. She pleaded guilty to one money laundering count and was sentenced to twenty-four months imprisonment.
4
Harris, who lived in New Jersey, was one of Dailey's girlfriends. At Dailey's request, she went to the Western Union office in Paterson, New Jersey, to pick up money orders on ten occasions over a twenty-month period. The total value of the money orders was approximately $35,000. She used her own name each time she signed for a money order, and she received no compensation for her trouble. Although she was not involved in the actual distribution of drugs, she was aware of her boyfriend's involvement.
5
In accordance with a plea agreement, Harris pleaded guilty to a single conspiracy count1 in March 1994, and a substantive money laundering count was dismissed. She had no prior criminal record, and her sentencing range was determined to be 21-27 months.2 At the sentencing hearing, Harris's lawyer asked for a sentence at the low end of the range. The court, on its own, pointed out that Ferguson and Stuart, each of whom had received no prison time, were essentially in the same position as Harris except for the provision of substantial assistance. Harris had never been given the opportunity to provide assistance to the government. Like Stuart, Harris was a first time offender who had a steady job. The court departed downward because "the appearance of justice would be very much enhanced by being evenhanded in these sentences." Harris received a six-month sentence, with credit for the six months she had spent in jail to that point, plus two years supervised release.
6
In its motion for reconsideration, the government contended that Harris's circumstances were more akin to those of Taylor than to those of the cooperating defendants Stuart and Ferguson. The government noted that Harris never attempted to cooperate and that she only decided to plead guilty on the morning of the day scheduled for her trial. The district court denied the motion without a hearing. After noting that Taylor's sentence was out of proportion to Ferguson's and Stuart's sentences, the court explained its decision to depart in Harris's case:
7
Although Trina L. Harris did not cooperate with the government, as did Stuart and Ferguson, that should not be the sole criterion for determining the appropriate punishment. As was stated in open court, the purpose of the guidelines is to promote fairness in sentencing in the eyes of the public and when sentences are imposed for the same type of act which are greatly disproportionate, then the purpose of the guidelines is defeated.
8
United States v. Harris, 93-CR-186-3 (W.D.Va. June 9, 1994) (order). The government appeals the sentence under 18 U.S.C. Sec. 3742(b).
II
18 U.S.C. Sec. 3553(b) provides that
9
[t]he court shall impose a sentence[within the applicable guideline range] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the sentencing commission in formulating the guidelines that should result in a sentence different from that described. (emphasis added)
10
In other words, the court can only go outside the applicable sentencing range for a reason that the Guidelines drafters failed to adequately take into account.
11
The Guidelines do provide for departures in certain limited circumstances, the most prominent of which is "substantial assistance." See USSG Sec. 5K1.1. Although USSG Ch.5, Pt.H lists several offender characteristics that are "not ordinarily relevant" to departure decisions, such as age (Sec. 5H1.2) or employment record (Sec. 5H1.5), the drafters recognized that the circumstances warranting departure under Sec. 5K2.0, i.e. those factors not adequately considered by the Commission, could not, "by their very nature, be comprehensively listed and analyzed in advance." Sec. 5K2.0, p.s. The threshold issue presented by this appeal is whether a disparity of sentences among similarly situated defendants might justify a departure on the ground that one of the Guidelines' purposes is to "promote fairness in the eyes of the public."
12
The test for determining whether a departure is permitted is simply stated: (1) Was the particular circumstance (the basis for the proposed departure) not adequately taken into consideration by the Guidelines (a legal question); (2) If it was not, is the circumstance supported by the facts of the case (a factual question); (3) If there is adequate factual support, is such circumstance of "of sufficient importance in the case that a sentence outside the Guidelines should result". United States v. Hummer, 916 F.2d 186, 192 (4th Cir.1990), cert. denied, 499 U.S. 970 (1991). Although the government offers arguments on the first two prongs, we are satisfied that this case can be resolved on the first one alone.
13
We have previously encountered departures based on disparity of sentences among codefendants, though the underlying rationales for the departures are slightly different. In United States v. Ellis, 975 F.2d 1061 (4th Cir.1992), cert. denied, 113 S.Ct. 1352 (1993), the district court departed downward after finding that the sentencing disparity was caused by charging decisions. We held that such a departure was invalid absent proof of actual prosecutorial misconduct. In United States v. Hall, 977 F.2d 861, 864 (4th Cir.1992), we affirmed the district court's refusal to depart downward on the basis of codefendant sentence disparity. In "reject[ing] sentencing disparity as a basis for departure when confronted with disparate sentences among both codefendants and coconspirators ...," we focused on the Guidelines' goal of nationwide uniformity, rather than uniformity within the "microcosm" of a single group of codefendants. Id. at 864 and n. 4. Harris's reliance on the district court's "public perception of fairness" rationale cannot finesse the clear dictates of Ellis and Hall.
14
Harris argues that the reasons for the departure given by the district court were certainly "reasonable" and that 18 U.S.C. Sec. 3742(e)(3), which is the statute guiding our review of this case, permits a sentence outside the guideline range to be set aside on appeal only if "unreasonable."3 Under our test for reviewing departures, however, the first step is de novo examination of the "specific reasons cited by the district court in support of its sentence outside the Guidelines range to ascertain whether those reasons encompass factors 'not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.' 18 U.S.C. Sec. 3553(b)." Hummer, 916 F.2d at 192. If the departure was made for an invalid reason, the "reasonableness" analysis is at an end. As discussed above, the reasons for the departure cited by the court in Harris's case are factors "adequately taken into consideration" by the Sentencing Commission.
VACATED AND REMANDED FOR RESENTENCING
1
18 U.S.C. Sec. 1956(g)
2
Harris's presentence report contained the following calculations:
-Base offense level (USSG Sec. 2S1.1(a)(2)) .......... 20
-Specific offense characteristic (Sec. 2S1.1(b)(1)) ... 3
-Role in offense (Sec. 3B1.2(a)) ...................... 4
-Acceptance of responsibility (Sec. 3E1.1(a)) ......... 3
Total offense level ....................... 16
3
18 U.S.C. Sec. 3742(e)(3) provides that, "[u]pon review of the record, the court of appeals shall determine whether the sentence ... is outside of the applicable guideline range, and is unreasonable, having regard for--(1) the factors to be considered in imposing a sentence ... and (2) the reasons for the imposition of the particular sentence...."
|
532 F.2d 861
91 L.R.R.M. (BNA) 3081, 78 Lab.Cas. P 11,351
In the Matter of the Arbitration between Thomas C. GANGEMI,as President of the Syracuse Draftsmen'sAssociation, Appellee,andGENERAL ELECTRIC COMPANY, Appellant.
No. 571, Docket 75-7555.
United States Court of Appeals,Second Circuit.
Argued Dec. 10, 1975.Decided March 29, 1976.
Jules L. Smith, Syracuse, N. Y. (Charles E. Blitman, Blitman & King, Syracuse, N. Y., of counsel), for appellee.
Francis D. Price, Syracuse, N. Y. (Lawrence L. Tully, Bond, Schoeneck & King, Syracuse, N. Y., of counsel), for appellant.
Before OAKES, VAN GRAAFEILAND, and MESKILL, Circuit Judges.
MESKILL, Circuit Judge:
1
This is an appeal by the General Electric Company ("Company") from an order of the United States District Court for the Northern District of New York, the Honorable James T. Foley, Chief Judge, which order compelled the Company to arbitrate a labor dispute arising under its collective bargaining agreement with the Syracuse Draftsmen's Association ("Union").
2
The dispute arose on November 1, 1974 when the Company issued 32 lack of work notices and 33 displacement notices, effective November 15, 1974, to employee members of the Union. Generally, the collective bargaining agreement then in effect between the Company and the Union provided that if certain specified conditions were met those employees who had received displacement notices had the right to "bump" or displace employees with less seniority. Shortly after issuance of the notices, the Union commenced an action in the New York State Supreme Court to obtain a temporary restraining order preventing the Company from effecting the layoffs signalled by the notices. The Union contended that the notices violated the contract because the junior workers displaced by those senior workers who had decided to exercise their "bumping" options would not be afforded the two week notice of layoff required by the contract. It further alleged that the Company was attempting to protect the jobs of seven junior employees under the guise that those employees had unique "qualifications to perform the available work." The Union contended that these seven junior employees performed jobs that required no skills or qualifications beyond those used by ordinary draftsmen.
3
The New York court granted the order to show cause containing the temporary restraining order but, on November 15, 1974, vacated the temporary restraining order on the Company's motion. On November 25, 1974, the Company removed the action from the state court to the district court, asserting jurisdiction in federal court under Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a). Thereafter, on December 16, 1974, the Company moved to dismiss the action on the ground, inter alia, that the Union had failed to exhaust its contractual remedies by not proceeding through the contract's grievance procedures and by not attempting to submit the dispute to arbitration. The Union opposed the motion and further sought a preliminary injunction against the layoff, claiming, by the affidavit of appellant Thomas C. Gangemi, its president, that it had no adequate remedy at law and that exhausting its contractual remedies would have been meaningless since "pursuant to Article IV of the parties' collective bargaining agreement any grievance excluding a disciplinary penalty may not proceed to arbitration unless both parties mutually agree in writing."1 The bargaining agreement's arbitration provisions, contained in Article IV of that agreement, are set forth in their entirety in the margin.2
4
The district court, on February 4, 1975, denied the Union's request for a preliminary injunction, concluding that the Union had failed to meet its burden of showing a "likelihood of success, irreparable harm, or a balance of equities in its favor." The court also granted the Company's "motion to dismiss the complaint for (the Union's) failure to exhaust contractual remedies" but went beyond the Company's position, indicating quite clearly in its memorandum opinion that it felt that the collective bargaining agreement's arbitration provision required mandatory arbitration of all contractual disputes.3
5
Having met with no success in the courts, the Union returned to and apparently completed the contract grievance procedures, again meeting with no success. Consequently, the Union, framing the issues in broad terms, requested that the parties voluntarily proceed to arbitration. The Company responded by offering voluntarily to arbitrate, but only with respect to more narrowly drawn issues concerning whether or not specific individual senior employees possessed the qualifications to perform the jobs held by the seven junior employees whose jobs the Company was attempting to protect.
6
Apparently unsatisfied with the Company's proposal to arbitrate only with respect to the limited issues, the Union sought to compel arbitration of the more broadly framed dispute by initiating the present action in the district court on June 5, 1975. Jurisdiction in the district court was asserted under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, and the United States Arbitration Act, 9 U.S.C. § 4. In this action the Union, armed with the reasoning contained in the district court's opinion in the initial action, reversed field and maintained that the collective bargaining agreement provided for compulsory binding arbitration of the dispute. The Company moved to dismiss the action on the ground that the agreement provided for only voluntary arbitration of any dispute between the parties that did not involve a disciplinary penalty. In support of its motion the Company introduced evidence of the parties' past collective bargaining history and even cited the Union's stance in the prior action in an attempt to demonstrate to the court that it had always been the parties' intent and common understanding that the agreement did not provide for mandatory arbitration of any disputes other than those which involved disciplinary penalties.
7
On September 5, 1975, the district court issued its order denying the Company's motion to dismiss the action and granting the Union's petition to compel arbitration of the dispute. It noted that in its earlier opinion it had analyzed the arbitration clause of the agreement in an attempt to "expedite the resolution of this case without the necessity of subsequent litigation." The court incorporated its earlier opinion by reference, which opinion stated that the court felt that the word "may" in the arbitration clause of the contract must be interpreted as a mandatory rather than a permissive verb and that the Union's earlier contention that the contract required "prior written mutual agreement" of the parties before arbitration was available was "too simplistic to escape the contractual obligation of arbitration." In the opinion in the present case, the district court further elaborated and stated that the "prior written mutual agreement" provision of the contract could be read "as an articulation of the principle that an individual grievant cannot force the parties, i. e., G.E. and the Union to arbitrate a dispute which neither wants to arbitrate." (emphasis in original). Alternatively, the court felt that the requirement "could be read to mean that compulsory arbitration can only be had after exhaustion of grievance procedures and the obligation that the parties come to some basic agreement on the issues, etc., in writing." In any event, the district court held that the provision's "true meaning . . . is penultimately for the arbitrator and only thereafter for a federal court." We disagree.
8
Initially, since the district court erroneously concluded that the interpretation of the contract and presumably the question of arbitrability of the dispute was itself "penultimately for the arbitrator," we find it necessary to repeat the well established principle of federal law that unless a collective bargaining agreement clearly manifests a contrary intent, it is for the courts, not the arbitrator, to decide whether the parties to that agreement have agreed to submit specific disputes to arbitration. Operating Engineers v. Flair Builders, Inc., 406 U.S. 487, 491, 92 S.Ct. 1710, 1712, 32 L.Ed.2d 248, 252 (1972); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462, 465 (1962); John Wiley & Sons v. Livingston, 376 U.S. 543, 546-47, 84 S.Ct. 909, 912, 11 L.Ed.2d 898, 902, 903 (1962); United Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). That requirement is, of course, based upon the fact that "(n)o obligation to arbitrate a labor dispute arises solely by operation of law. The law compels a party to submit his grievance to arbitration only if he has contracted to do so." Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 374, 94 S.Ct. 629, 635, 38 L.Ed.2d 583, 590 (1974). "(A)rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Atkinson v. Sinclair Refining Co., supra, 370 U.S. at 241, 82 S.Ct. at 1321, 8 L.Ed.2d at 466.
9
(2) Superimposed upon these traditional contract notions, however, is the clear national policy favoring resolution of labor disputes in private, extra-judicial fora.4 In keeping with this national policy the Supreme Court expressed its now well settled preference for arbitration of labor disputes in United Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at 582-83, 80 S.Ct. at 1353, 4 L.Ed.2d at 1417, by presuming that a broad arbitration clause applies "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." Stated another way, the courts have held that where an agreement contains a broad arbitration clause, in order to remove a specific dispute from arbitration the language of the agreement purporting to do so must be "clear and unambiguous" or "unmistakably clear." See, e. g., International Ass'n of Mach. & A. Wkrs. v. General Elec. Co., 406 F.2d 1046 (2 Cir. 1969); International U. of E., R. & M. Wkrs. v. General Electric Co., 407 F.2d 253 (2 Cir. 1969), cert. denied, 395 U.S. 904, 89 S.Ct. 1742, 23 L.Ed.2d 217.
10
It is within this general framework that we must interpret the disputed arbitration clause, which provides that "any individual grievance involving the interpretation of this Agreement may be submitted to arbitration only . . . with prior mutual consent of the (Union) and the Company as executed by their authorized representatives."5 The agreement here does not contain the "broad" or "standard" mandatory arbitration clause common to many collective bargaining agreements. See Id. at 256. The contract recognizes the distinction between grievances involving disciplinary penalties and the remaining grievances "involving the interpretation and application of a provision" of the agreement and provides for entirely separate treatment for each of the two categories. No one has argued, nor do we think anyone can successfully do so, that the concededly mandatory arbitration clause involving disciplinary penalties is wide enough to embrace the present controversy.6 If the parties agreed to submit to arbitration the remaining disputes only by consent, courts are powerless, absent such consent, to compel arbitration. See Vaca v. Sipes, 386 U.S. 171, 184, n. 9, 87 S.Ct. 903, 913, 17 L.Ed.2d 842, 854 (1967); Republic Steel Corp. v. Maddox, 379 U.S. 650, 657-58, 85 S.Ct. 614, 618-619, 13 L.Ed.2d 580, 585-586 (1965).
11
The district court recognized that the requirement of "prior written mutual agreement" could be read as a "permissive" arbitration provision, and thus not binding upon the Company.7 The court further found, however, that the "mutual agreement" provision could be read as an "articulation of the principle that an individual grievant cannot force the principal parties, i. e., (the Company) and the Union, to arbitrate a dispute which neither wants to arbitrate. See Black-Clawson Co. Inc. v. International Ass'n of Mach., 313 F.2d 179 (2 Cir. 1962)." (emphasis in original). Such an interpretation requires an unreasonable stretching of the plain meaning of the words contained in that provision to accommodate the concededly strong policy favoring the arbitration of labor disputes. While that policy requires that a provision excluding a dispute from arbitration be "clear and unambiguous" it does not require that a court adopt an unreasonable construction of a contract provision in order to find that a dispute is arbitrable.
12
Article III of the parties' bargaining agreement establishes the right of an individual to initiate, without the consent or participation of the Union, a grievance at Step I of the three-step grievance procedure. If settlement of the grievance is not reached at that stage, however, the Union must take up the individual's cause in order to complete the grievance procedure through Steps II and III to completion. Even if the Union does process an individual's complaint through the final grievance step, however, there is, of course, no guarantee that a settlement will be reached. In that event, there also appears to be no guarantee that the Union will find the grievance sufficiently meritorious to warrant the time and expense of proceeding to arbitration.8
13
At that point, according to the possible meaning of the contract suggested by the district court, an individual grievant whose complaint involved a disciplinary penalty would appear to have exhausted his personal remedies since a disciplinary grievance "may be submitted to arbitration by either party," that is, only by the Union or the Company. In the case of a non-disciplinary grievance, however, it would appear that an individual could initiate arbitration of the matter, there being no requirement that such a grievance be submitted by either party. The only requirements would appear to be that the matter have been processed completely through the contractual grievance procedure and that the grievant have received the "written mutual agreement" of the Union and the Company prior to submission.
14
We agree with the district court that one could read the provision in that manner. But that reading would require us to view the paragraph in question as if it were standing alone, without the remaining provisions of the contract, including the remaining provisions of the arbitration clause itself. When taken in context, it is clear that the disputed paragraph cannot be so interpreted.
15
First, Article IV provides that "(t)he award of an arbitrator upon any grievance subject to arbitration . . . shall be final and binding upon all parties to this Agreement." The only parties to the agreement are the Company and the Union. Should an individual process his own grievance through arbitration, the arbitrator's decision would not be binding upon him. It would be a rather disproportionate concession for the Company to agree to be bound by an arbitrator's decision without requiring that an individual grievant also agree to be bound by that decision.
16
Similarly, were we to adopt the construction of the agreement urged by the Union and apparently accepted by the district court as outlined above, the contract would be left devoid of any provision for arbitration of non-disciplinary grievances initiated by the Union itself, a result which would run afoul of the very policy to encourage private settlement of labor disputes which the district court was so zealously attempting to protect. The only arbitration provisions contained in the contract are the two paragraphs set forth in Article IV, the disputed paragraph and the separate paragraph covering disciplinary penalties. If, as the Union suggests, the disputed paragraph refers to grievances brought by individual grievants, there is then no remaining arbitration provision in the contract to cover non-disciplinary grievances initiated by the Union itself. Indeed, the present controversy, since it was initiated by the Union and is admittedly non-disciplinary, would be denied arbitration under such a construction of the disputed paragraph. We are convinced that the parties did not intend to foreclose all arbitration of non-disciplinary grievances initiated by the Union and therefore reject, as unreasonable, any construction which would mandate that result.
17
The Union and the district court suggest that Article XXI of the agreement, the so-called "no strike" provision, "lend(s) support" for the conclusion that the disputed paragraph calls for mandatory arbitration. The "no strike" provision, sometimes referred to judicially as the quid pro quo for the agreement to arbitrate labor disputes, see e. g., United Steelworkers v. American Mfg. Co., 363 U.S. 564, 567, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403, 1406 (1960), in the present case provides that "(t)here shall be no strike . . . unless and until all of the respective provisions of the successive steps of the grievance procedure . . . have been complied with by the Association or if the matter is submitted to arbitration as provided in Article IV." (emphasis supplied). It simply does not follow that the parties to a collective bargaining agreement have agreed to mandatory arbitration merely because the Union has agreed not to strike over a grievance if that grievance has been submitted to arbitration. Admittedly, an employer's willingness to tolerate a strike over a dispute does not relieve it of a contractual duty to arbitrate, Globe Seaways, Inc. v. National Marine Eng. Ben. Ass'n, 451 F.2d 1159, 1163 (2 Cir. 1971), but neither does the duty to arbitrate arise from a willingness to accept a strike over such disputes. We thus find no support in the "no strike" provision for the conclusion that the agreement called for mandatory arbitration.
18
Finally, the district court also suggested that the disputed paragraph, and more particularly the "mutual consent" provision, could be read as a procedural requirement that the parties must come to written agreement on the issues to be arbitrated before proceeding to mandatory arbitration. It concluded that if that were the intent of the parties, such a provision could not be used to circumvent mandatory arbitration. See Socony Vacuum Tanker Men's Ass'n v. Socony Mobil Oil Co., 369 F.2d 480 (2 Cir. 1966).9 Again, it would be unreasonable to read the provision so narrowly. Nowhere in the entire paragraph, indeed in all of Article IV, does there appear any mention of the concept of "issues to be arbitrated," as opposed to the general concept of arbitration. Clearly, the consent referred to in that paragraph refers to that entire general concept rather than to any unmentioned specific such as the particular issue to be arbitrated.
19
As mentioned at the outset, we recognize and reaffirm the oft repeated principle that where the interpretation of a contractual arbitration provision may lead to economic warfare rather than to mandatory arbitration, such an interpretation must be the result of "clear and unambiguous" language in the agreement. Carey v. General Electric Co., 315 F.2d 499 (2 Cir. 1963), cert. denied, 377 U.S. 908, 84 S.Ct. 1162, 12 L.Ed.2d 179 (1964). We hold in this case simply that the language in the present contract clearly and unambiguously provided for only voluntary or permissive arbitration of the dispute between the parties and that it was error for the district court to compel arbitration in such a case.10
20
Reversed and remanded to the district court with instructions to vacate the injunction and to dismiss the petition.
1
Similarly, in both the Union's verified complaint in the state court action and in another affidavit sworn to by Gangemi, he asserted that "there is no binding arbitration provision contained in the parties' collective bargaining agreement with respect to this matter."
2
FNARTICLE IV
ARBITRATION
Any individual grievance involving the interpretation and application of a provision of this Agreement may be submitted to arbitration only after it has been properly processed in accordance with the provisions of Article III and with prior written mutual agreement of the Association and the Company as executed by their authorized representatives.
Any individual grievance involving a disciplinary penalty (including discharge) imposed during the term of this Agreement upon an employee having more than one year of continuous service may be submitted to arbitration by either party if it remains unsettled after having been properly and fully processed in accordance with the provisions of Article III. In any such case, the standard to be applied by an arbitrator is that any such penalty shall be imposed only for just cause. In order to arbitrate such a case, the party seeking arbitration shall deliver a written request for arbitration to the other party within 30 days after the final decision of the Company has been given to the Association at Step 3 of the grievance procedure set forth in Article III. A copy of the request shall be sent to the American Arbitration Association. Thereafter, the case will be processed in accordance with the Voluntary Labor Arbitration Rules of the American Arbitration Association as amended and then in effect.
The award of an arbitrator upon any grievance subject to arbitration as herein provided shall be final and binding upon all parties to this Agreement, provided that no arbitrator shall have any authority or jurisdiction to add to, detract from, or in any way alter the provisions of this Agreement.
3
In its memorandum in support of its motion to dismiss the complaint, the Company conceded that the contract's arbitration clause was "permissive" but nevertheless argued that the aggrieved party must attempt to exhaust its contractual remedies before bringing an action for injunctive relief in the courts
4
See Sections 201(a) and 203(d) of the Labor Management Relations Act, 1947, 29 U.S.C. §§ 171(a), 173(d)
5
Both parties agree that the underlying dispute here involves the interpretation and application of a provision of their collective bargaining agreement. Similarly, there is no argument that the underlying dispute involves a disciplinary penalty of any kind. Consequently, it is clear that the arbitrability of the dispute between the parties falls within the first paragraph of the collective bargaining agreement's arbitration provision. See supra n. 2
6
The Union does argue that the disciplinary penalty section of Article IV is the "broad" mandatory arbitration provision of the contract and that the paragraph in question here, which paragraph appears before the penalty section in the contract, is a narrow exception. Such an argument stretches and twists the plain meaning of the words of the agreement further than even the most elastic of rational minds can accept
7
In its opinion in the first action the district court concluded that "the arbitration clause . . . will be presumed to be mandatory as its language expressly states." The court, in its opinion in the instant case, however, softened its stance finding that "(i)n terms of literal requirement of written authorization of Article IV which calls for arbitration, undoubtedly it can be read in different ways both as mandatory and permissive."
8
There is nothing in the record before this Court to indicate that the Union has obligated itself to its members to pursue their claims through the arbitration process once it has taken them through the grievance procedure
9
In Socony Vacuum the parties had agreed to submit to arbitration questions of fact arising out of interpretation of the agreement "at the request of either party," an obviously mandatory arbitration provision. The defendant company, however, argued that the parties' further agreement that "(t)he statement of the question to be arbitrated shall be mutually agreed on," would allow a party to avoid arbitration if there were no agreement on the statement of the question to be arbitrated. This Court rejected that argument and interpreted the provision to mean that the parties must make a reasonable effort to agree on the question to be arbitrated and that, failing such agreement, the court may determine the question to be arbitrated
10
Because we hold that the language of the agreement itself clearly did not bind the Company to arbitrate the instant dispute, there is no need to examine the extrinsic evidence submitted by the Company in its attempt to show the intent of the parties at the time of contracting. Compare Strauss v. Silvercup Bakers, Inc., 353 F.2d 555, 558 (2 Cir. 1965), with Affiliated Food Distributors, Inc. v. Local Union No. 229, 483 F.2d 418, 420 n. 4 (3 Cir. 1973), cert. denied, 415 U.S. 916, 94 S.Ct. 1412, 39 L.Ed.2d 470 (1974)
|
511 P.2d 1289 (1973)
Chris OPHEIM and Laila Opheim, husband and wife, Appellants (Plaintiffs below),
v.
UNITED MOBILE HOMES, INC., a Colorado Corporation, Appellee, (Defendant below), and
Champion Home Builders Co., a Michigan Corporation, (Defendant below).
No. 4162.
Supreme Court of Wyoming.
July 20, 1973.
William D. Bagley, Cheyenne, for appellants (plaintiffs below).
John A. Sundahl and Paul B. Godfrey, Cheyenne, for appellee (defendant below).
Before PARKER, C.J., and McEWAN, GUTHRIE and McINTYRE, JJ.
Mr. Chief Justice PARKER delivered the opinion of the court.
The Opheims sued Champion Home Builders Co., manufacturer, and United Mobile Homes, Inc., distributor, asking $1,153 for required repairs and $10,000 for embarrassment and inconvenience because of alleged imperfections in a mobile home purchased by plaintiffs from United. The suit was in two counts, one for negligent design, engineering, fabrication, assembly, and inspection of the product, and the other for breach of both express and implied warranties. The defendants denied generally; and the matter came on for hearing before the court without a jury,[1] resulting in a general finding for defendant, United, and a judgment that plaintiffs take nothing. The Opheims have appealed, urging error in the court's failure to find a breach of warranty both express and implied and negligence on the part of defendant United and in finding generally against plaintiffs, considering the admitted and undisputed evidence that defendant United's breach of warranties and negligence had damaged plaintiffs.
Although the parties devote considerable attention in the briefs to the facts, we see little necessity for delineating, other than *1290 generally, the occurrences spelled out by the testimony. Suffice to say that the plaintiffs in January 1970 bought a "double wide," sixty-foot mobile home from United for a base price of $10,000, $2,000 down, and the balance in 120 monthly installments of $126.87 each. Plaintiffs testified that soon after the purchase they made complaint about defects, including cabinet work, drawers, doors, nonoperating toilets, etc., some of which were later remedied, more or less to plaintiffs' satisfaction, by defendants. In May, during a rainstorm, a rather bad leak developed in the center seam (where the two portions of the mobile home were attached to constitute a "double wide") and after some difficulty this was repaired. The evidence is somewhat unclear as to dates, but it seems to be undisputed that plaintiffs were in arrears in their payments when they say they complained about the defects and that United agreed to make the repairs, provided the payments be brought up to date. At one time when plaintiffs were in arrears (according to their testimony they were trying to force repairs), United brought a replevin action which was settled by the Opheims' bringing their payments up to date, paying certain costs, and United's making certain repairs and adjustments. Later the Opheims sold the mobile home to purchasers for the amount of the payments remaining unpaid.
The burden of the appeal is that the evidence, admissions, and undisputed testimony showed both a breach of warranties under the provisions of §§ 34-2-314 and 34-2-315, W.S. 1957, 1973 Cum.Supp., and negligence of defendant United so that the decision should be reversed and the cause remanded for an assessment of damages. Defendant United responds that if the plaintiffs did actually have any complaint it was cured and corrected by a repairman from Champion before the trial actually started and that no damages were proved since the plaintiffs could not in all honesty really say during the trial that they did have damages, the evidence clearly showing that anything which did vary from the standard was corrected or cured by one of the defendants. Although United argues the additional point that in the replevin suit against the plaintiffs the Opheims did not raise the defects of which they now complain as a counterclaim, we note the apparent settlement of that action without its proceeding to judgment, hence plaintiffs' claim would not now be barred for that reason.
A careful review of the record shows that only minor matters occurred after the mobile home had been assembled on the buyers' lot in late January 1970[2] until the first rain of the spring in May 1970, when a leak in the center seam occurred for the full sixty-foot length of the home. At Mrs. Opheim's request Moore went up on the roof but made no repairs. Later, after plaintiffs hired an attorney, United did cause certain repairs to be made to the roof but no satisfactory repair was made until after the instigation of the present suit, Champion's repairman then finding well over a year after the initial problem with the roof that the stripping, the material which ran the full length of the trailer, had not had the protective paper on both sides removed and thus there had been no adherence to the metal.
Unfortunately we have before us only the general findings of the court for defendant United and are therefore unaware of whether the trial court found there had been no breach of warranties nor negligence of defendant United or whether it found there had been such breach or negligence but there was no proof of damages. While mere uncertainty as to the amount of damages does not preclude the right of recovery,[3] we have in this jurisdiction *1291 recognized the general principle that remote, uncertain, conjectural, or speculative damages are not allowed.[4] A thorough search of the record discloses no evidence demonstrating the amount of the damage which plaintiffs claim to have suffered by reason of either negligence or breach of warranty of United, and any amount which could be set either by the trial court or here would be wholly speculative. In that respect, we do not overlook an allusion made in the oral argument to a fee paid by plaintiffs to their attorney, but no authorities or cogent argument is presented substantiating this item as a valid basis for relief.
Affirmed.
NOTES
[1] Prior to the trial a settlement with plaintiffs was made by Champion, and the complaint against it was dismissed.
[2] Installation was made by Walter Moore, who worked for United, United's Cheyenne representative indicating Moore was not an independent contractor and that United would take liability on complaints of his work.
[3] Blakeman v. Gopp, Wyo., 364 P.2d 986, 991; 22 Am.Jur.2d Damages, § 25.
[4] Colorado Kenworth, Inc., v. Archie Meek Transportation Co., Wyo., 495 P.2d 1183, 1185.
|
223 F.Supp. 756 (1963)
John R. PFEFFER et al., Plaintiffs,
v.
George M. CRESSATY et al., Defendants.
United States District Court S. D. New York.
October 9, 1963.
Burke & Burke, New York City, for plaintiffs. Stuart W. Robinson, Jr., New York City, of counsel.
*757 Irwin Klein, New York City, for defendants.
McLEAN, District Judge.
Defendants move under Rule 12(b) to dismiss the complaint on the grounds that it fails to state a claim and that this court lacks jurisdiction of the subject matter and of the person of defendants. The action is one to recover damages for alleged fraud in the sale of securities. The complaint alleges in substance that defendant Cressaty, acting on behalf of the other defendants, pursuant to a conspiracy among them, and by use of interstate communication and the mails, sold to plaintiffs certain stock of Inventions Finance Corporation by means of false statements of material facts and omissions to state other material facts. Plaintiffs do not tender back the stock which they purchased nor do they allege that they no longer own it. They seek recovery of an amount claimed to be the difference between the purchase price and the actual value of the stock on the date of purchase. The complaint states that defendants' acts violated Sections 12 and 17 of the Securities Act of 1933 (15 U.S.C. §§ 77l and 77q) and Section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. § 78j) and regulations of the Securities and Exchange Commission thereunder (Rule 10b-5).
Section 12 of the 1933 Act provides that any person who "offers or sells a security * * * by the use of * * * communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, * * * not misleading * * * and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable to the person purchasing such security from him, who may sue * * * to recover the consideration paid for such security * * * upon the tender of such security, or for damages if he no longer owns the security." It is clear that if the defrauded buyer still owns the security, his only remedy under this section is rescission. He cannot sue for damages unless he has disposed of the stock. See Deckert v. Independence Corp., 311 U.S. 282, 288, 61 S.Ct. 229, 85 L.Ed. 189 (1940).
The present complaint, therefore, by failing to allege that plaintiffs no longer own the stock, fails to state a cause of action for damages under Section 12.
Plaintiffs do not seriously contend otherwise. But they assert that the complaint is nevertheless sufficient because it states a valid claim under Section 17 of the 1933 Act and Section 10(b) of the 1934 Act. Defendants, on the other hand, contend that these sections do not give rise to a private cause of action on behalf of the defrauded buyers.
The question thus raised is no longer an open one. It has consistently been held that a private cause of action may be maintained for a violatior of these sections. Osborne v. Mallory, 86 F.Supp. 869 (S.D.N.Y.1949); Thiele v. Shields, 131 F.Supp. 416 (S.D.N.Y. 1955).
The question remains, however, as to whether, granted that such a right of action exists, plaintiffs who have retained the securities may recover damages, or whether they are limited to rescission and recovery of the purchase price, as they would be under Section 12. Although I have found no decision which squarely decides this point, it is my opinion that plaintiffs are not so limited. Section 12 "created a special right to recover for misrepresentation which differs substantially from the common-law action in that the seller is made to assume the burden of proving lack of scienter." (Wilko v. Swan, 346 U.S. 427, 431, 74 S.Ct. 182, 184-185, 98 L.Ed. 168 (1953))
Section 17 does not contain this unusual feature. It merely makes it unlawful for any person in the offer or sale of securities by means of interstate communication or use of the mails, to *758 employ "any device, scheme, or artifice to defraud," or to obtain money by means of any untrue statement of a material fact or omission to state a material fact.
Similarly, Section 10(b) of the 1934 Act makes it unlawful for any person, by use of the instrumentalities of interstate commerce or the mails, to employ in connection with the sale of a security "any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe." By Rule 10b-5 the Commission has forbidden the making of an untrue statement of a material fact or the omission to state a material fact. Neither Section 17 nor Section 10(b) expressly creates or even refers to a private right of action for its violation and obviously, therefore, neither section creates any special rule as to the burden of proof of scienter or purports to limit the type of relief to which the plaintiff in such an action is entitled.
Under the authorities the existence of a private right of action is to be implied from the fact that these sections render the conduct unlawful. But there would seem to be no reason further to imply special rules and limitations which the sections do not contain. In an action based on these sections, therefore, a plaintiff would not have the advantage of the unusual rule as to burden of proof created by Section 12, but by the same token, he would not be under the disadvantage of being limited to a suit for rescission if he has not disposed of his stock. See Fischman v. Raytheon Manufacturing Co., 188 F.2d 783 (2d Cir. 1951).
I hold, therefore, that plaintiffs may maintain an action for damages under Section 17 of the 1933 Act and Section 10(b) of the 1934 Act even though they still own the stock. Of course, on this motion we are not concerned with whether or not the particular measure of damages alleged in the complaint is correct. It follows that defendants' motion to dismiss the complaint for failure to state a claim must be denied.
The motion to dismiss for lack of jurisdiction of the subject matter is also denied. Jurisdiction of actions under the 1933 Act is expressly conferred by 15 U.S.C. § 77v and of actions under the 1934 Act by 15 U.S.C. § 78aa.
The moving papers, which consist only of a notice of motion, contain nothing whatever in support of defendants' contention that there is no jurisdiction over the person of defendants. Accordingly, that branch of the motion is also denied.
So ordered.
|
10-1617
Lin v. Holder
BIA
Videla, IJ
A094 798 132
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 12th day of September, two thousand thirteen.
PRESENT:
ROSEMARY S. POOLER,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
YOU KUN LIN, AKA LIN YOU KUN,
Petitioner,
v. 10-1617
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, UNITED STATES
DEPARTMENT OF HOMELAND SECURITY, BOARD
OF IMMIGRATION APPEALS,
Respondents.
______________________________________
FOR PETITIONER: You Kun Lin, pro se, New York, NY.
FOR RESPONDENTS: Tony West, Assistant Attorney
General; Shelley R. Goad, Assistant
Director; Katharine E. Clark, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
1 Petitioner You Kun Lin, a native and citizen of the
2 People’s Republic of China, seeks review of a March 29,
3 2010, decision of the BIA affirming the August 5, 2008,
4 decision of Immigration Judge (“IJ”) Gabriel C. Videla,
5 denying his application for asylum, withholding of removal,
6 and relief under the Convention Against Torture (“CAT”). In
7 re You Kun Lin, No. A094 798 132 (B.I.A. Mar. 29, 2010),
8 aff’g No. A094 798 132 (Immig. Ct. N.Y. City Aug. 5, 2008).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 Under the circumstances of this case, we have reviewed
12 both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 514
13 F.3d 233, 237 (2d Cir. 2008). The applicable standards of
14 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
15 see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d
16 Cir. 2008). For asylum applications governed by the REAL ID
2
1 Act, such as the application in this case, the agency may,
2 considering the totality of the circumstances, base a
3 credibility finding on an asylum applicant’s demeanor, the
4 plausibility of his account, and inconsistencies in his
5 statements and other record evidence, without regard to
6 whether they go “to the heart of the applicant’s claim.”
7 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
8 64.
9 Substantial evidence supports the IJ’s adverse
10 credibility determination. In finding Lin not credible, the
11 IJ reasonably relied in part on the omission from both his
12 asylum application and his uncle’s letter that family
13 planning officials beat him on account of his resistance to
14 China’s family planning policy. Although, in summarizing
15 the IJ’s findings, the BIA appears to have misinterpreted
16 the IJ’s decision as indicating that Lin answered in the
17 “negative [a] . . . question in his asylum application (Form
18 I-589), as to whether he had ever been beaten or physically
19 mistreated by anyone in China,” it would be futile to remand
20 for the BIA to correct this erroneous interpretation of the
21 IJ’s omission finding. The IJ’s underlying finding did not
22 contain the same error, and we can confidently predict that
23 the BIA, after correcting its misstatement, would again
3
1 conclude that the IJ’s adverse credibility determination,
2 including his omission finding, was not clearly erroneous.
3 See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008).
4 Furthermore, a reasonable fact finder would not be
5 compelled to credit Lin’s explanations for the omissions
6 from his asylum application and his uncle’s letter. See
7 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). The
8 IJ also did not err in noting that Lin had “incentive to
9 embellish his claim” to include the omitted physical
10 altercation with family planning officials because, after he
11 filed his asylum application, but before his merits hearing,
12 we issued our decision in Shi Liang Lin v. U.S. Dep’t of
13 Justice, 494 F.3d 296 (2d Cir. 2007), under which Lin was no
14 longer per se eligible for relief solely based on his wife’s
15 forced abortion.
16 Having questioned Lin’s credibility, the IJ reasonably
17 relied further on Lin’s failure to provide evidence
18 corroborating his claim that he suffered economic harm
19 rising to the level of persecution when family planning
20 officials purportedly closed his store. See Biao Yang v.
21 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). In addition,
22 contrary to Lin’s contention, the IJ was not required to
23 first identify the particular pieces of missing, relevant
4
1 evidence, and show that this evidence was reasonably
2 available before relying on a lack of corroboration to
3 support the adverse credibility finding. See Maladho Djehe
4 Diallo v. Gonzales, 445 F.3d 624, 633-34 (2d Cir. 2006).
5 Nevertheless, in this case, the IJ identified the missing
6 corroborating evidence and explained why it was reasonably
7 available. Accordingly, because substantial evidence
8 supports the IJ’s determination that Lin was not credible as
9 to his claims of past persecution, the agency did not err in
10 denying him asylum or withholding of removal to that extent.
11 Lin does not challenge in his brief the agency’s
12 determination that he failed to demonstrate his eligibility
13 for relief based on a well-founded fear of future
14 persecution or a likelihood of torture. However, even
15 liberally construing Lin’s pro se brief as raising such a
16 challenge, see Triestman v. Fed. Bureau of Prisons, 470 F.3d
17 471, 474 (2d Cir. 2006), we conclude that the agency did not
18 err in deeming speculative Lin’s claimed fear of forced
19 sterilization based on his desire to have more than one
20 child in the future. See Jian Xing Huang v. INS, 421 F.3d
21 125, 129 (2d Cir. 2005) (holding that “[i]n the absence of
22 solid support in the record for [an applicant’s] assertion
23 that he will be [persecuted], his fear is speculative at
5
1 best”); see also Jian Hui Shao v. Mukasey, 546 F.3d 138,
2 159-62 (2d Cir. 2008) (finding no error in the BIA’s
3 conclusion that evidence of country conditions did not
4 demonstrate that a petitioner from Fujian Province with two
5 children born in China had an objectively reasonably fear of
6 forced sterilization).
7 For the foregoing reasons, the petition for review is
8 DENIED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
6
|
26 F.3d 139
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Flora L. LE MONTE, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 94-3064.
United States Court of Appeals, Federal Circuit.
April 29, 1994.
Before ARCHER, Chief Judge, MICHEL, and PLAGER, Circuit Judges.
DECISION
PER CURIAM.
1
Petitioner, Flora L. LeMonte, appeals the decision of the Merit Systems Protection Board (MSPB), Docket No. AT0831930716-I-1, affirming the decision of the Office of Personnel Management (OPM), which denied her application for a survivor annuity. Because petitioner filed her application with OPM after the statutory deadline, we affirm.
DISCUSSION
2
On March 17, 1993, petitioner applied for a former spouse's survivor annuity under section 4(b) of the Civil Service Retirement Spouse Equity Act of 1984 (Spouse Equity Act), Pub.L. No. 98-615, 98 Stat. 3195, as amended, based on the federal service of her former husband, Arver D. Hoover. Under section 4(b), a former spouse of a civil service annuitant is entitled to receive a survivor annuity, provided the applicant satisfies the statutory criteria. The criterion that controls this case is section 4(b)(1)(B)(iv), which states that entitlement to the annuity is limited to cases in which the former spouse filed an application for the survivor annuity with the OPM on or before May 7, 1989.
3
In its reconsideration decision dated June 29, 1993, the OPM denied petitioner's application on the ground that she failed to comply with the foregoing statutory requirement. Petitioner appealed the denial to the MSPB. In a decision of October 27, 1993, which became final when time to appeal to the full Board expired on December 1, 1993, the Administrative Judge (AJ) affirmed the OPM's denial of a survivor annuity because petitioner failed to comply with the statutory deadline.
4
Petitioner asserts no errors of law. Her sole basis for appeal is that she was not notified as to the May 7, 1989, deadline for filing her application under the Spouse Equity Act.
5
In Iacono v. Office of Personnel Management, 974 F.2d 1326 (Fed.Cir.1992), this court was confronted with a factual situation very similar to the present case. In Iacono, the former spouse failed to meet the statutory deadline but argued that the time requirement should be waived because she was unaware of it and was mentally disabled during the entire time she could have filed her application. In her appeal to this court, we held that the filing deadline in the Spouse Equity Act is not a statute of limitations that can be tolled on equitable grounds. Instead, we decided that compliance with the statutory time limit is a condition that must be met to establish eligibility for the annuity.
6
Accordingly, adherence to our decision in Iacono requires us to affirm the decision of the MSPB.
|
72 F.Supp. 812 (1947)
UNITED STATES
v.
WILSON et al.
No. 16745.
District Court, W. D. Missouri, W. D.
August 9, 1947.
*813 Richard K. Phelps, Sp. Asst. Atty. Gen., of Kansas City, Mo., L. E. Broome and William A. Paisley, Asst. Attys. Gen., both of Washington, D. C., for plaintiff.
T. V. Conrad, of Kansas City, Mo., for defendant William D. Wilson.
Ira B. McLaughlin, of Kansas City, Mo., for defendants Melham, Klein, Burke and Holmes.
RIDGE, District Judge.
Defendants, officials and precinct workers at a primary election held in the State of Missouri, at which candidates for the United States Senate and Representatives of the House of Congress were nominated, are under indictment returned pursuant to Section 19 of the Criminal Code, Title 18, U. S.C.A. § 51, charged with conspiracy to injure and oppress certain voters in the Tenth Precinct of the First Ward, in Kansas City, Missouri, of rights and privileges secured to them "by the Constitution and laws of the United States." Specifically, defendants are charged with having conspired to prevent and cause to be prevented certain voters of said precinct from exercising *814 their right to vote; with permitting and causing unqualified and fictitious persons to vote at said election; and, to falsely, fraudulently and fictitiously certify the total number of votes received for Representatives in Congress and United States Senators at said primary election.
Defendants move to dismiss the indictment so returned against them on five separate grounds. The first point so raised by defendants challenges the applicability and pertinency of Section 19, supra, to a primary election held pursuant to the laws of the State of Missouri. Defendants contend that the state of facts alleged in the indictment pertaining to a primary election held under the laws of the State of Missouri for the nomination of party candidates for the offices mentioned are such that said party primary does not affect the right of the people involved "to choose a Representative in Congress from the Fifth District of Missouri, or to elect a Senator in Congress from Missouri, as to bring the matters and things charged in said indictment within (Federal) Constitutional protection so as to render applicable the provisions of said section (§ 19) of the Criminal Code." In other words, defendants' claim is; that the primary election laws of the State of Missouri are not an "integral part of the election machinery", for electing members of the Congress of the United States; that if any rights of the legal voters of the precinct and ward above referred to were violated by them as charged in the indictment herein they were not rights secured to such voters by the Constitution and laws of the United States, but rights wholly derived from local laws of the State of Missouri; consequently, they assert, "no Federal offense" has been committed by them and the indictment herein should be dismissed.
In support of such contention, defendants undertake to distinguish the decision of the Supreme Court of the United States, in the case of United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 1040, 85 L.Ed. 1368, where the primary election laws of the State of Louisiana were considered and held to be "an election within the meaning of the constitutional provision (Sections 2, and 4, Article I, U.S.Const.) and * * * subject to congressional regulation as to the manner of holding it", from the party primary system as in vogue in the State of Missouri. Defendants contend that the case of United States v. Gradwell, 243 U.S. 476, 37 S.Ct. 407, 61 L.Ed. 857, is determinative of the issue here involved.
As to the Classic case supra, defendants assert that the Supreme Court there ruled that certain distinctions found in the Louisiana party primary law rendered the conduct of the election officials involved in the Classic case to be an "interference with rights of voters participating in a primary" election in that State, because the conduct of such election officials was, under Louisiana party primary law, an "interference with the effective choice of the voters (participating in said primary) at the only stage of the election procedure (in the State of Louisiana) when their choice is of significance", because nomination at primary elections in Louisiana is equivalent to election. They say Missouri being a "border State" no such situation exists. Consequently, the Classic case, supra, is, according to defendants' contention, no authority for holding that a primary election conducted under the laws of the State of Missouri is an election within the meaning of Secs. 2 and 4, Art. I, of the Constitution of the United States.
We think defendants read the opinion in the Classic case with "stultifying narrowness". Without undertaking a complete analysis of the background and the facts involved in the Classic case, we think it clear that the first question there considered by the Court was, "whether the right to choose, at a primary election, a candidate for election as representative, is embraced in the right to choose representatives secured by Article I, § 2" of the Constitution of the United States. See page 315 of that opinion in 313 U.S., 61 S.Ct. 1038, 85 L.Ed. 1368. The Court said, 313 U.S. at page 317, 61 S.Ct. at page 1039, 85 L.Ed 1368, the question so considered had "not been prejudged by any decision of (the) Court". After considering that proposition, the Court patently ruled, (313 U.S. at page 318, 61 S.Ct. at page 1039, 85 L.Ed. 1368): "Where the state law has made the primary *815 an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary, is likewise included in the right protected by Article I, § 2. And this right of participation is protected just as is the right to vote at the election, where the primary is by law made an integral part of the election machinery, whether the voter exercises his right in a party primary which invariably, sometimes or never determines the ultimate choice of the representative." (Italics supplied.)
True, as contended by defendants, the Classic case was concerned with a primary election law in a State where nomination at the primary was tantamount to election to office. That fact, however, does not limit or confine the rule announced in the Classic case, as above quoted, as only being applicable to primary elections held in States where similar consequences of a primary election are to be found. The specific rule announced in the Classic case is, that the constitutional provision there considered (Sec. 2, Art. I) was applicable to primary elections held in any State whose laws made such primaries an "integral part of the procedure of choice" of electing Representatives in Congress. As manifest from the opinion, such rule is applicable in a State where the "voter exercises his right in a party primary which invariably, sometimes or never determines the ultimate choice of the representative", if the primary election laws of the State are an "integral part of the election machinery" of the State. In deciding the specific issue involved in the Classic case, the Court had to apply the rule above announced to the particular facts there considered. In so doing, the Court stated that they were required "to hold that a primary election which involves a necessary step in the choice of candidates for election as representatives in Congress, and which in the circumstances of this case controls that choice, is an election within the meaning of the constitutional provision and is subject to congressional regulation * * *." In so applying the rule previously in said opinion announced by the Court, to the specific issue involved in the Classic case, the Court did not minimize, or compass, the rule first announced so as to make it applicable only to factual situations as considered in the Classic case. All that the Court did in deciding the factual issue involved in the Classic case was to apply the rule to one of the several variables to which it is applicable. In so doing, the Court did not delete from the rule of law the other variables to which it is also applicable, namely, to primary elections held in States where the "voter exercises his right in a party primary which * * * sometimes or never determines the ultimate choice of the representative", if such "primary is by law made an integral part of the election machinery" of a State.
We do not believe that the decision in the Classic case, supra, can be distinguished from the primary election laws of any State, regardless of the consequences of the result of holding a primary, if the election laws of a State make such primary an "integral part of the procedure of choice" of members of the Congress of the United States. When the Court in the Classic case stated that it was only those primary election laws that were "an integral part of the election machinery" of a State that are within the constitutional provisions here considered, the Court had in mind party primaries conducted by political parties, which were not State Governmental functions; and primary elections participated in by political parties which were in effect Governmental agencies and action taken by a State. See Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110; Grovey v. Townsend, 295 U.S. 45, 55 S.Ct. 622, 79 L.Ed. 1292, 97 A.L.R. 680; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458. In Smith v. Allwright, supra, at pages 659, 660 of 321 U.S. 649, page 763 of 64 S.Ct., 88 L.Ed. 987, 151 A.L.R. 1110, the Court said of its decision in the Classic case: "We there held that Section 4 of Article I of the Constitution authorized Congress to regulate primary as well as general elections * * * `where the primary is by law made an integral part of the election machinery.' * * * Consequently, in the Classic case, we upheld the applicability to frauds in a Louisiana primary of §§ 19 and 20 of the Criminal Code 18 U.S.C.A. §§ 51, 52. Thereby corrupt *816 acts of election officers were subjected to Congressional sanctions because that body had power to protect rights of Federal suffrage secured by the Constitution in primary as in general elections. * * * This decision depended, too, on the determination that under the Louisiana statutes the primary was a part of the procedure for choice of Federal officials. By this decision the doubt as to whether or not such primaries were a part of `elections' subject to Federal control, which had remained unanswered since Newberry v. United States, 256 U.S. 232, 41 S.Ct. 469, 65 L.Ed. 913, was erased. * * * The fusing by the Classic case of the primary and general elections into a single instrumentality for choice of officers has a definite bearing on the permissibility under the Constitution of excluding Negroes from primaries. * * * Classic bears upon Grovey v. Townsend." 295 U.S. 45, 55 S.Ct. 622, 79 L.Ed. 1292, 97 A.L.R. 680.
In light of the interpretation of the Classic case, made by the Court in Smith v. Allwright, supra, we believe the only matter for consideration by this Court in disposition of the first point raised by defendants in their motion to dismiss is, to determine whether the primary election laws of the State of Missouri are an "integral part of the election machinery" used in that State for the elections of members of Congress.
In the State of Missouri, nominations of candidates and primary elections are provided for in Chapter 76, Arts. IV, and V, R.S.Mo.1939, Mo.R.S.A. In determining whether the provisions there made by the legislature of the State of Missouri for the nomination of candidates and the holding of primary elections are an integral part of the procedure of choice, the first question to be answered is, whether the statutory regulations providing for primary elections in Missouri are sufficient to warrant the conclusion that the State has undertaken to conduct such elections as a necessary part of the whole electoral process, and as a matter of public policy has elected to treat the party primary as a legitimate part of the process of electing members of Congress. An analysis of the primary election laws of the State of Missouri reveals that, in common with other States, as for instance in Louisiana, Missouri has exercised the discretion of "setting up machinery for the effective choice of party candidates, for Representatives in Congress, by primary elections, and by its laws eliminates, or seriously restricts the candidacy at the general election of all those who are defeated at the primary". The primary in the State of Missouri is conducted by the State, at public expense. Sec. 11559, R.S. Mo.1939, Mo.R.S.A. All candidates for elective offices are nominated at such primaries. Sec. 11546, R.S.Mo.1939, Mo.R.S.A. The primary is held biennially. Sec. 11547, R.S.Mo.1939, Mo.R.S.A. "The primary, as is the general election, is subject to numerous statutory regulations as to the time, place and manner of conducting the election, including provisions to insure that the ballots cast at the primary are correctly counted, and the results of the count correctly recorded and certified to the Secretary of State." U. S. v. Classic, supra, 313 U.S. page 311, 61 S.Ct. page 1036, 85 L.Ed. 1368. Cf. Sec. 11584, R.S.Mo.1939, Mo.R.S. A. The results of such elections are published by the Secretary of State. Sec. 11570, R.S.Mo.1939, Mo.R.S.A. Only the names of persons receiving the greatest number of votes at the primary as a candidate of a party for an office are placed on the official ballot at the following election. Sec. 11569, and 11595, R.S.Mo.1939, Mo. R.S.A. All ballots cast in an election for public officers within the State are printed at public expense and prepared by the Clerks of the County Courts of the respective Counties of the State. Sec. 11593 and 11594, R.S.Mo.1939, Mo.R.S.A. A more "elaborate, fair and elegant analysis" of the primary laws of the State of Missouri may be found in the opinion of the Supreme Court of said State, in State ex rel. Dunn v. Coburn, 260 Mo. 177, 168 S.W. 956, 957, than is here attempted to be stated. The 1909 primary election laws there analyzed are still the law of the State of Missouri relating to primaries, with minor exceptions, not here pertinent. An analysis of said primary law reveals that it is a compulsory system forming a part of the general election laws of the State for the election of public officials, including members *817 of Congress. That such system "is an integral part of the procedure of choice" of members of Congress by the electors of said State is not debatable. At the outset, the law declares that all candidates for elective offices shall be nominated by a primary election, held in accordance with Art. V, Chap. 76, R.S.Mo.1939, Mo.R.S.A. There is at once perceived an express limitation upon the powers of all political parties of adopting their own rules for the selection of members of Congress. State ex rel. v. Thomas, 353 Mo. 345, 182 S.W.2d 584. A primary held in the State of Missouri is a part of the election machinery by which is determined who shall be permitted to have their names appear upon the official election ballot as candidates for public office. The right to participate in said primary and to choose candidates for public offices is as valuable as the right to vote for them after they are chosen. Both such rights are safeguarded to qualified registered electors in each voting precinct in the State by the Constitution and laws of the State of Missouri, and are not subject to limitation by any action of the political parties participating in such primary; except that a voter may be subject to challenge for "attempting to vote other than the ticket of the party for which he is known to be affiliated", but when so challenged such voter may make oath or affirmation administered by one of the judges of the election, that he will "vote for the party nominees of the party he is voting, in the general election." If such oath or affirmation is made then the elector offering to vote in such primary has the absolute right to cast a ballot at said primary. Under the primary system in vogue in the State of Missouri, there is no possible way that any person can be elected to office unless he be chosen at the primary or nominated by petition as provided in Art. IV of Chap. 76, supra. The several statutes of said State which provide the method by which nominations are effected prescribe and define the rights of voters and electors in the State of Missouri and must be regarded as an integral part of the process of choosing public officers and as a part of the election laws of said State. The legislature of the State of Missouri, providing for the conduct of primary elections and placing them under the same safeguards and protection which the Constitution and laws of the State of Missouri throws around elections for office clearly provided that the general primary for the nomination of candidates for office in said State was to be considered, and, in fact was, made an "integral part of the election machinery" for electing public officers in said State, and particularly members of the Congress of the United States. Cf. State v. Taylor, 220 Mo. 618, 119 S.W. 373.
From what has been said, it is not necessary to prolong this memorandum with a discussion of United States v. Gradwell, supra, relied on by defendants in support of their motion. Suffice it to say that in the Gradwell case [243 U.S. 476, 37 S.Ct. 411, 61 L.Ed. 857], the Court stated that it need not and did not undertake to decide whether "a primary should be treated as an election within the meaning of the Constitution" of the United States. The Gradwell case involving alleged rights of candidates at a primary is not authority for the consideration of "rights and privileges of voters secured to them by the Constitution and laws of the United States".
The second point raised by defendants is, that Section 19 of the Criminal Code, supra, "is so vague, indefinite and uncertain" that any person would not thereby be caused to know and be informed that the facts alleged in the indictment herein constituted an offense against and a violation of the laws of the United States. Fifty-three years ago, the Supreme Court of the United States in Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 162, 28 L.Ed. 274, construed Sec. 19 of the Criminal Code. Since then it has consistently held that the right of qualified voters to cast their ballots at Congressional elections and have them counted as cast, is a right secured by the Constitution of the United States. Wiley v. Sinkler, 179 U.S. 58, 21 S.Ct. 17, 45 L.Ed. 84; Swafford v. Templeton, 185 U.S. 487, 22 S.Ct. 783, 46 L.Ed. 1005; United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355; United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341; and United States v. Classic, supra. It is too late in the day to now contend that Sec. 19, *818 supra, is unconstitutional in the respects claimed in the second ground of defendants' motion to dismiss. "He who defies a decision interpreting the Constitution knows precisely what he is doing. If sane, he hardly may be heard to say that he knew not what he did." Screws v. United States, 325 U.S. 91, 105, 65 S.Ct. 1031, 1037, 89 L.Ed. 1495, 162 A.L.R. 1330. The same may be said with reference to an Act of Congress, construed many times by the Supreme Court of the United States.
The third, fourth and fifth grounds of attack on the indictment herein are to the effect that the facts alleged are insufficient to constitute an offense against the laws of the United States; that the indictment does not contain a charge in plain and concise language so as to inform defendants of the nature of the cause of accusation. Without analyzing the contents of the indictment, we think that it, in plain terms, apprises defendants of the specific offense with which they are charged, to-wit, "conspiracy to injure * * * citizens in the free exercise * * * of any right or privilege secured to (them) by the Constitution and laws of the United States". Said charge is alleged definitely enough to enable defendants to maintain a plea of double jeopardy. If any complaint may be made of the indictment herein, it is that it is not as concise as contemplated by Rule 7(c), Federal Rules of Criminal Procedure 18 U.S.C.A. following section 687.
In view of the foregoing, defendants' motion to dismiss the indictment herein is by the Court overruled.
Defendants have also filed a motion for a bill of particulars, stating eighteen instances in which they desire to obtain a more complete statement of the charge contained in the indictment returned against them. Most of the assignments contained in said motion for bill of particulars seek information relative to the names of the qualified voters in the precinct in question; and, the means by which it is alleged that defendants obstructed, hindered and prevented lawfully qualified voters from voting in said precinct.
Defendants are not entitled to be told the names of the witnesses who will appear at the trial on behalf of the Government. Gates v. United States, 10 Cir., 122 F.2d 571. The names and identity of the qualified voters of the precinct involved are equally available to the defendants as to the Government. The election records of said precinct are public records in the office of the Board of Election Commissioners of Kansas City, Missouri. The means employed by defendants in committing the offense with which they are charged are equally within the knowledge of the defendants and the Government, and the Government is not required to furnish by bill of particulars the means employed by defendants in committing such offense charged; United States v. Wexler, D.C., 6 F.Supp. 258; or the evidence which the Government will use to support such charge. United States v. Nat. Title Guaranty Co., D.C., 12 F.Supp. 473.
Defendants are charged in the indictment with having caused the names of certain qualified voters to be voted by fictitious persons. In their motion for bill of particulars, they seek the names and identity of the qualified voters in whose names and places defendants allegedly conspired to permit such a vote to be cast. We believe that defendants are entitled to that information. Defendants also seek the names, or identifying description of legal voters whom the defendants allegedly conspired to obstruct and prevent from casting their ballots. We believe defendants are likewise entitled to such information. Therefore, items five and six of the motion for bill of particulars are by the Court sustained, and the Government will furnish to defendants, within three days, the information therein requested.
In all other respects, the motion for bill of particulars is by the Court denied.
It is so ordered.
|
103 Cal.App.2d 776 (1951)
ELSIE V. MORGAN, Appellant,
v.
WILLIAM H. MORGAN, Respondent.
Civ. No. 4303.
California Court of Appeals. Fourth Dist.
Apr. 25, 1951.
T. R. Claflin for Appellant.
Hyman Gold and Harry Gold for Respondent.
GRIFFIN, J.
In an action by plaintiff for a divorce on the grounds of extreme cruelty the court granted her a divorce, awarded her custody of one minor child (then aged 3 1/2 years) and awarded custody of another child (Robert Morgan, then aged 2 1/2 years) to defendant. *777
The plaintiff appeals only from that portion of the judgment awarding custody of the child to defendant. She contends that since the trial court found that "both parties are at this time fit persons to have the custody of the minor children" it was obligated to award the custody of both children to her under section 138 of the Civil Code, subdivision 2, which section recites that neither party is entitled to the custody as of right; but "other things being equal" if the child is of tender years, it should be given to the mother. In support of this contention she cites Loomis v. Loomis, 89 Cal.App.2d 232 [201 P.2d 33].
We have carefully read the record before us. Plaintiff accused defendant of intoxication and infidelity. Defendant accused plaintiff of the same acts. Evidence was produced which might warrant such a finding as to either. [1] The question for the trial court to determine was not which one was "not a fit person" to have the custody of the children, but what was the best interest of the children. (Miller v. Higgins, 14 Cal.App. 156 [111 P. 403].) [2] The custody of a minor child may be awarded to the offending party notwithstanding the fact that a divorce has been granted against him on the grounds of his adultery or cruelty. (In re DeLeon, 70 Cal.App. 1 [232 P. 738].) [3] The expression "other things being equal" leaves a large measure of discretion with the trial court. It has been held that where a divorce has been denied and both parties were found fit persons to have custody, the award of the child to the father was not an abuse of discretion. (Priest v. Priest, 90 Cal.App.2d 185 [202 P.2d 561].) The court there stated, at page 187:
"In view of the finding of equal fitness of the parents herein to have custody of the three-year-old child and of the provisions of section 138 (Civ. Code) it would not have been amiss for the court to award exclusive custody to the mother. But a generous discretion is vested by the qualifying clause of subsection 2, to wit, 'other things being equal'. ... In the exercise of such discretion the court below has impliedly found that the best interests of the child will be served by dividing its custody between the parents. ... Since no showing is made of the court's abuse of its discretion, its conclusion cannot be disturbed."
This section leaves a large measure of discretion with the trial court. (Phillips v. Phillips, 48 Cal.App.2d 404 [119 *778 P.2d 736]; Booth v. Booth, 69 Cal.App.2d 496 [159 P.2d 93]; Runsvold v. Runsvold, 61 Cal.App.2d 731 [143 P.2d 746].)
[4] After hearing all of the conflicting evidence the trial court disapproved a separation agreement entered into between the parties respecting the custody of the minor children and ordered that custody be awarded as indicated "until the further order of the court" and allowed reasonable visitation privileges by the parents. There is substantial evidence in the record to support a rational inference that the order is for the best interests of the child and such evidence does not appear incredible. Since there is nothing to impeach the fairness or good faith of the decision it would be in excess of our authority to disturb the determination of the trial court. (Lefebvre v. Lefebvre, 48 Cal.App. 483 [192 P. 76]; Di Giorgio v. Di Giorgio, 87 Cal.App.2d 576 [197 P.2d 213]; Jones v. Jones, 49 Cal.App. 165 [192 P. 867]; Nave v. Nave, 35 Cal.App. 27 [169 P. 253].)
Judgment affirmed.
Barnard, P. J., and Mussell, J., concurred.
|
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 2, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-20185
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MILTON EARL CARBE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-337-ALL
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Milton Earl Carbe has appealed his convictions for conspiracy
to possess with intent to distribute cocaine and possession with
intent to distribute cocaine. He contends that the district court
should have suppressed evidence obtained pursuant to a search
warrant because the warrant was supported by a facially invalid
*
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.
affidavit. We review this question de novo.1
Under the good-faith exception to the exclusionary rule,
“[e]vidence obtained by officers in objectively reasonable good-
faith reliance upon a search warrant is admissible, even though the
affidavit on which the warrant was based was insufficient to
establish probable cause.”2 Officers may rely in good faith upon
the validity of a warrant “so long as the warrant is supported by
more than a ‘bare bones affidavit.’”3 An affidavit is bare bones
if “it so deficient in demonstrating probable cause that it renders
an officer’s belief in its existence completely unreasonable.”4
The affidavit in this case was based on the hearsay statements
of a confidential informant. “An affidavit may rely on hearsay –
information not within the personal knowledge of the affiant, such
as an informant’s statement – as long as the affidavit presents a
substantial basis for crediting the hearsay.”5 In considering
whether an informant’s tip is credible, we examine the informant’s
1
United States v. Cavazos, 288 F.3d 706, 709 (5th Cir.),
cert. denied, 123 S. Ct. 253 (2002).
2
United States v. Cisneros, 112 F.3d 1272, 1278 (5th Cir.
1997) (internal quotation marks omitted).
3
Id. (internal quotation marks omitted).
4
Id.
5
See United States v. Laury, 985 F.2d 1293, 1312 (5th Cir.
1993).
-2-
veracity and basis of knowledge.6 The officer’s statements in an
affidavit that the informant previously provided reliable
information sufficiently established the informant’s veracity.7
Similarly, the factual detail in the affidavit sufficiently
demonstrated the informant’s basis of knowledge.8 The affidavit
was thus not “so deficient in demonstrating probable cause” that it
rendered the officers’ belief in the existence of probable cause
“completely unreasonable.”9
AFFIRMED.
6
Id.
7
Id.
8
Id.
9
Cisneros, 112 F.3d at 1278.
-3-
|
FILED
NOT FOR PUBLICATION DEC 4 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN THORESON, No. 13-17026
Plaintiff - Appellant, D.C. No. 3:13-cv-01943-RS
v.
MEMORANDUM*
ZAHED AHMED, CTF Dr., Individual
Capacity; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Steven Thoreson, a California state prisoner, appeals pro se from the district
court’s order denying his request to proceed in forma pauperis (“IFP”) in his
42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical
*
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).
needs. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion, James v. Madison St. Jail, 122 F.3d 27, 27 (9th Cir. 1997) (per curiam),
and we affirm.
The district court did not abuse its discretion in denying Thoreson’s motion
to proceed IFP because Thoreson failed to submit a certified copy of his prisoner
trust fund account statements for the previous six months as required by 28 U.S.C.
§ 1915(a)(2). See Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir. 2000)
(“[P]risoner-plaintiffs seeking to proceed in forma pauperis [must] submit a
certified copy of their prisoner trust fund account statement for the previous six
months.”).
The district court did not abuse its discretion in denying Thoreson’s
postjudgment motion because Thoreson did not identify any new evidence, change
in law, clear error, or other basis for reconsideration. See Sch. Dist. No. 1J,
Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993)
(setting forth standard of review and factors for reconsideration under Fed. R. Civ.
P. 59(e) and 60(b)).
AFFIRMED.
2 13-17026
|
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