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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 18-2115
_______________
ELIO RUBEL SALGUERO-GALDAMEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of a Decision of the
United States Department of Justice
Board of Immigration Appeals
(Agency No. A206-010-468)
Immigration Judge: Charles M. Honeyman
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on January 22, 2019
Before: CHAGARES and BIBAS, Circuit Judges, and SÁNCHEZ,* Chief District Judge
(Filed: February 13, 2019)
_______________
OPINION**
_______________
*
The Honorable Juan R. Sánchez, Chief District Judge of the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
**
This disposition is not an opinion of the full Court and under I.O.P. 5.7 is not bind-
ing precedent.
BIBAS, Circuit Judge.
Aliens may try to reopen their removal proceedings. But there is a time limit, and Elio
Salguero-Galdamez missed it. So he must identify an exception to the time limit. He in-
vokes only one: that the conditions in his home country have changed since his prior pro-
ceeding. But he offers no evidence of this. And while Salguero-Galdamez challenges the
Board of Immigration Appeals’ refusal to exercise its discretion to reopen sua sponte, we
lack jurisdiction over that decision. So we will deny this petition in part and dismiss it in
part.
Salguero-Galdamez is a citizen of Guatemala and concedes that he is removable. To
prevent his removal, he applied for asylum, withholding of removal, and relief under the
Convention Against Torture. He claimed that he feared persecution because he is young
and he and his family own property. But an immigration judge denied that application, and
the Board affirmed.
Yet Salguero-Galdamez was not removed right away. More than a year later, he moved
to reopen the proceedings based on changed circumstances: he has now “disclos[ed] that
he is a homosexual and fear[s] . . . returning to” Guatemala because he has come out. AR
17. But the Board denied his motion as untimely. And it declined to exercise its discretion
to reopen sua sponte.
So Salguero-Galdamez petitioned for review of those decisions. To the extent that we
have jurisdiction, we review for abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562
(3d Cir. 2004).
2
Motions to reopen are disfavored. Id. at 561. As a rule, an alien may file only one such
motion and must do so within ninety days of the Board’s decision. 8 U.S.C.
§ 1229a(c)(7)(A) & (c)(7)(C)(i). Salguero-Galdamez filed his motion more than a year too
late.
But this time limit has a few exceptions. Salguero-Galdamez gestures at only one: that
the conditions in Guatemala have materially changed since his prior proceeding. Id.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). He bears the burden of proof on this ex-
ception. Pllumi v. Att’y Gen., 642 F.3d 155, 161 (3d Cir. 2011). He has not met that burden.
Salguero-Galdamez offers no evidence that conditions in Guatemala have grown worse
for him. While he claims that he came out only recently, that does not show a change in
Guatemala. See Khan v. Att’y Gen., 691 F.3d 488, 497-98 (3d Cir. 2012). We are conscious
that this process may have been difficult for him. But he has to show that country conditions
have changed. He has not. So the time limit applies, and his motion is time-barred.
Salguero-Galdamez raises one last claim: that the Board should have reopened his pro-
ceeding sua sponte. But the Board’s discretion to do so is typically unfettered, so as a rule
we lack jurisdiction over it. Sang Goo Park v. Att’y Gen., 846 F.3d 645, 651 (3d Cir. 2017).
To be sure, we would retain jurisdiction if the Board relied on an incorrect legal premise
or limited its discretion by a rule or a settled course of adjudication. Id. at 651-53. But
Salguero-Galdamez points to none of these grounds, and we see no support for them. So
we lack jurisdiction. We will thus deny the petition in part and dismiss it in part.
3
|
959 F.2d 967
Wilsonv.First Gibraltar Bank*
NO. 91-1401
United States Court of Appeals,Fifth Circuit.
Mar 27, 1992
1
Appeal From: N.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
|
FILED
TNCOURTOF
l\ ORKE.RS' CO:MFE.NSATION
'ClAI1!.lS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
Willis Ray Babb, ) Docket No.: 2016-03-0095
Employee, )
v. )
House Hasson Hardware Co., Inc., ) State File No.: 88593-2015
Employer, )
and )
American Zurich Insurance Co., ) Judge Pamela B. Johnson
Carrier. )
EXPEDITED HEARING ORDER
(Decision on the Record)
This matter came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by Willis Ray Babb pursuant to Tennessee Code
Annotated section 50-6-239 (2016). The parties submitted an Agreed Order Waiving In-
person Hearing and Allowing Court to Make Decision upon Review of the File. The
Court entered an Agreed Order and Docketing Notice on December 6, 2016, listing the
documents agreed upon by the parties to for consideration. 1
Upon review of this documentation, the Court finds it needs no additional
information to determine whether Mr. Babb is likely to prevail at a hearing on the merits
of the claim. Accordingly, pursuant to Tennessee Compilation Rules and Regulations
0800-02-21-.14(1)(c) (2016), the Court decides this matter upon review of the agreed
documents.
The central legal issue is whether Mr. Babb is likely to prevail at a hearing on the
merits in establishing that he suffered a left-knee injury arising primarily out of and in the
course and scope of his employment with House Hasson, entitling him to medical
benefits. For the reasons set forth below, the Court holds Mr. Babb came forward with
sufficient evidence demonstrating he is likely to prevail at a hearing on the merits. Thus,
1
Attached to this Order is a complete listing of the Technical Record and Exhibits agreed upon by the parties for
consideration by this Court.
this Court concludes Mr. Babb is entitled to a panel of physicians in accordance with
Tennessee Code Annotated section 50-6-204 (20 16) for evaluation and treatment of his
left-knee injury.
History of Claim
A review of the written materials revealed the following facts. Mr. Babb, a forty-
six-year-old resident of Knox County, Tennessee, worked for House Hasson as a truck
driver/deliveryman. (T.R. 1, 3; Ex. 1.) On October 12, 2015, Mr. Babb made a delivery
to Double J Supply in Lagrange, Georgia, and injured and broke two toes when a pallet-
jack fell on his left foot. (Ex. 1.; Ex. 2, pp. 15-19.) On the same day, he reported the foot
injury to his supervisor, Stacy Merrell. Id.
Upon his return home, Mr. Babb sought medical care at an urgent care facility.
(Ex. 1; Ex. 2, pp. 20-22.) The urgent care provider instructed Mr. Babb to stay off the
foot. !d. Mr. Babb took. a week off work to heal. !d. House Hasson accepted the left-
foot injury as compensable and provided authorized medical treatment. !d.
When Mr. Babb returned to work following his foot injury, he experienced pain in
his left knee on his first delivery that day. (Ex. 1; Ex. 2, pp. 22-24.) He initially
associated his knee pain with the change in his walk as he tried to avoid placing weight
on his left foot and hoped his knee pain would subside as his foot healed. (Ex. 1; Ex. 2,
pp. 76-77; Ex. 3, p. 7-8.) He mentioned pain in his knee to Mr. Merrell during the week
he returned following his toe injury. (Ex. 2, p. 53; Ex. 4, p. 5, 7.) During a Driver's
Meeting in December, Mr. Babb advised Mr. Merrell that his knee continued to bother
him. Id.
During this time, Mr. Babb was scheduled to see his primary care physician, Dr.
Brad Flaming, for unrelated health conditions. (Ex. 2, pp. 54-55.) On December 4, Dr.
Flaming noted that Mr. Babb complained of bilateral knee pain, with left-knee pain for
six to eight months and right knee pain for three to four months, and further noted no fall
2
or known injury. (Ex. 7.) Mr. Babb testified he told Dr. Flaming about the pallet-jack
incident and how he thought his gait following the toe injury may have caused his left-
knee pain, but he could not explain what Dr. Flaming meant by no fall or known injury.
(Ex. 2, pp. 55, 59.) Dr. Flaming obtained x-rays and diagnosed left-knee tendinitis. (Ex.
7.)
Mr. Babb returned to see Dr. Flaming on December 29 with continued knee pain
as well as other unrelated complaints. (Ex. 7.) During the office visit, Dr. Flaming
administered a cortisone injection into the knee. ld. Dr. Flaming diagnosed pain in both
2
Mr. Babb testified that he called Dr. Flaming's office and reported the discrepancy in the history concerning the
onset of his symptoms. (Ex. 2, p. 56-58.) He testified Dr. Flaming's office corrected the time line. The correction is
located at the end of the December 29, 2015 office note contained in Exhibit 7.
2
knees and osteoarthritis of the knee. 3 !d. Dr. Flaming further noted he reviewed an old
x-ray, which showed "degenerative changes in the knee." 4
Mr. Babb's left-knee pain failed to improve and he subsequently developed
buckling in his knee. In his affidavit, Mr. Babb stated, on January 8, 2016, he realized
that he seriously injured his left knee when it could no longer hold his bodyweight and
buckled underneath him. (Ex. 1.) In his deposition, Mr. Babb stated, on the Tuesday
night/Wednesday morning following a left-knee cortisone injection from Dr. Flaming, he
stepped up on a pallet at his first stop and his left knee buckled. (Ex. 2, pp. 30-40.)
By affidavit, he indicated he informed Mr. Merrell the following day that he
needed to see a doctor about his left-knee injury. (Ex. 1; Ex. 2, pp. 39-41.) By
deposition, he testified he talked to Mr. Merrell on the following Sunday to request
medical treatment for his knee. (Ex. 2, pp. 37-41.) Mr. Babb testified he did not discuss
specifics about his knee with Mr. Merrell during the Sunday telephone conversation
because "[Mr. Merrell] already knew I had something wrong with my knee." (Ex. 2, p.
44, 53.) Mr. Babb explained in his deposition that following the Tuesday
night/Wednesday morning left-knee buckling event, he was at home on Friday, seated in
the floor, and "It was just a lot of pain. Because I was just trying to get up and I actually
put weight on it." (Ex. 2, pp. 50-51.)
Dr. Flaming subsequently ordered a left-knee MRI, which Mr. Babb completed on
January 28. (Ex. 7.) Dr. Daniel A. Baker interpreted the MRI, which showed a medial
meniscus tear, moderate to severe chondromalacia, and moderate joint effusion with
numerous loose bodies present. !d.
Following the MRI, Mr. Babb returned to Dr. Flaming on February 8 for an
unrelated health condition. (Ex. 7.) During this visit, Mr. Babb requested a return to
work despite his left-knee meniscal tear found on the MRI. !d. Dr. Flaming agreed to
release Mr. Babb back to work despite the tear. !d.
On April 4, House Hasson's carrier issued a Notice of Denial of Claim for
CoJnpensation noting, "The right knee condition complaints are not causally related to
the comp nsable injuries sustained to the righl 2nd and 3 rd toes claim." 5 (Ex. 8.)
3
The December 29, 2015 office note does not specify the involved knee with the "osteoarthritis of knee" diagnosis.
4
The December 29, 2015 office note does not specify the involved knee when discussing the "old x-ray" and the
"degenerative changes in the knee" shown.
5
For purposes of this Order, the Court presumes House Hasson meant to reference a "left" knee condition, which is
the disputed issue in this case, when it mistakenly re ferenced a "righl knee condition" and "compensable injuries
sustained to the right 2"d and 3rd toes claim" in its Nolie of Denial of Compensation.
3
Findings of Fact and Conclusions of Law
The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Mr. Babb must come forward with sufficient evidence from
which this Court might determine he is likely to prevail at a hearing on the merits. !d.;
Tenn. Code Ann. § 50-6-239(d)(l) (2016). This lesser evidentiary standard does not
relieve Mr. Babb of the burden of producing evidence of an injury by accident that arose
primarily out of and in the course and scope of employment at an Expedited Hearing, but
"allows some relief to be granted if that evidence does not rise to the level of a
'preponderance of the evidence."' Buchanan v. Car/ex Glass Co., No. 2015-01-0012,
2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept.
29, 2015).
With the above principles in mind, an injury must arise primarily out of and occur
in the course and scope of the employment to be compensable under the Workers'
Compensation Law. See Tenn. Code Ann. § 50-6-102(14) (2016). The term "injury" is
defined as "an injury by accident ... arising primarily out of and in the course and scope
of employment, that causes death, disablement or the need for medical treatment of the
employee." !d. For an injury to be accidental, it must be "caused by a specific incident,
or set of incidents, arising primarily out of and in the course and scope of employment,
and is identifiable by time and place of occurrence." Tenn. Code Ann. § 50-6-
102(14)(A) (2016).
In the present case, Mr. Babb identified a specific incident, or set of incidents,
identifiable by time and place that occurred while he performed his job duties at House
Hasson. On October 12, 2015, Mr. Babb made a delivery to Double J Supply in
Lagrange, Georgia, and broke two toes when a pallet-jack fell on his left foot. When Mr.
Babb returned to work following his foot injury, he experienced pain in his left knee on
his first delivery that day. He initially associated his knee pain with the change in his
walk as he tried to avoid placing weight on his left foot and hoped his knee pain would
subside as his foot healed. Mr. Babb's knee pain failed to improve and he subsequently
developed buckling in his knee. On the Tuesday night/Wednesday morning following a
cortisone injection from Dr. Flaming, he stepped up on a pallet at his first stop in
Samson, Alabama, and his knee buckled. This Court finds Mr. Babb came forward with
sufficient evidence from which this Court can determine that he is likely to prevail at a
hearing on the merits on establishing a specific incident, or set of incidents, identifiable
by time and place.
The issue then turns to whether Mr. Babb's left-knee injury arose primarily out of
and in the course and scope of employment. In McCord, the Workers' Compensation
Appeals Board analyzed the burden of proof required at the Expedited Hearing stage and
concluded:
4
We find, therefore, that an employee need not prove each and every
element of his or her claim by a preponderance of the evidence at an
expedited hearing to be entitled to temporary disability or medical benefits,
but must instead present evidence sufficient for the trial court to conclude
that the employee would likely prevail at a hearing on the merits in
accordance with the express terms of section 50-6-239(d)(l). A contrary
rule would require many injured workers to seek out, obtain, and pay for a
medical evaluation or treatment before his or her employer would have any
obligation to provide medical benefits. The delays inherent in such an
approach, not to mention the cost barrier for many workers, would be
inconsistent with a fair, expeditious, and efficient workers' compensation
system. See Tenn. Code Ann. § 4-3-1409(b)(2)(A) (2014). Moreover, we
note that since an expedited hearing is interlocutory in nature, either party
may present additional evidence at the final compensation hearing and ask
the trial court to reverse or modify the interlocutory order.
!d. at *4.
In McCord, the Workers' Compensation Appeals Board further analyzed what act
or event triggers an employer's responsibility to provide a panel of physicians.
Specifically, the Workers' Compensation Appeals Board held, "[M]ere notice of an
alleged workplace accident, in and of itself, does not trigger an employer's duty to
provide medical benefits in every case, without regard to the particular circumstances
presented." !d. at *7. The employee offered testimony without contradiction that she felt
symptoms while lifting boxes, which resulted in two emergency room visits with similar
complaints, and a report of injury to the employer. !d. at * 15-17. The Appeals Board
concluded in McCord, "Employee's testimony, the exhibits, and the record as a whole
support[ed] the trial court's determination that Employee [was] entitled to a panel of
physicians."
Here, this Court must determine whether Mr. Babb is likely to prevail at a hearing
on the merits on the issue of entitlement to medical benefits, specifically a panel of
physicians. Mr. Babb testified he felt left-knee pain as soon as he returned to work
following his October 12, 2015 left foot incident. He further indicated he reported his
knee symptoms to his supervisor, Mr. Merrell, who confirmed learning of the knee pain
at that time. Both Mr. Babb and Mr. Merrell attributed Mr. Babb's knee pain to his
irregular gait due to his attempt to avoid or limit weight bearing on his injured foot. Mr.
Babb continued to experience knee pain and mentioned his knee complaints to Dr.
Flaming in December. Mr. Babb testified his knee buckled when he stepped on a pallet
the Tuesday night/Wednesday morning after Dr. Flaming administered a cortisone
InJection. Following this incident, Mr. Babb requested medical treatment from his
supervisor, Mr. Merrell, who again confirmed the report of a knee incident and request
for medical treatment. Considering the testimony of Mr. Babb and Mr. Merrell and the
5
evidence as a whole, this Court holds that Mr. Babb presented sufficient evidence
demonstrating that his is likely to prevail at a hearing on the merits on entitlement to a
panel of orthopedic physicians. Accordingly, his request for medical benefits is granted
at this time.
IT IS, THEREFORE, ORDERED as follows:
1. House Hasson shall provide Mr. Babb with medical treatment for his left foot and
left knee injuries made reasonably necessary by the October 12, 2015 injury and in
accordance with Tennessee Code Annotated section 50-6-204 (20 15). House
Hasson shall provide Mr. Babb with a panel of orthopedic physicians from which
he may select an authorized treating physician.
2. This matter is set for a Scheduling Hearing on February 17, 2017, at 9:30 a.m.
Eastern Time. The parties must call 865-594-0091or 855-543-5041 toll free to
participate in the Initial Hearing. Failure to appear by telephone may result in a
determination of the issues without your further participation.
3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
(2015). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau by email to
[email protected] no later than the seventh business day after
entry of this Order. Failure to submit the necessary confirmation within the period
of compliance may result in a penalty assessment for non-compliance. For
questions regarding compliance, please contact the Workers' Compensation
Compliance Unit by email at [email protected] or by telephone at
(615) 253-1471 or (615) 532-1309.
ENTERED this the 22nd day of December, 2016.
HON. PAMELA B. JOHNSON
Workers' Compensation Judge
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
6
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of Indigency
in accordance with this section shall result in dismissal of the appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal,
may request, from the Court Clerk, the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifYing the issues presented for review and including any
argument in support thereof. A party opposing the appeal ·shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: ( 1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
7
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.
APPENDIX
Technical Record:
• Petition for Benefit Determination, filed February 1, 2016;
• Petition for Benefit Determination, filed June 16, 2016;
• Dispute Certification Notice, filed September 28, 2016;
• Notice of Written Objection to Contents of Dispute Certification Notice and
Inclusion of Identification of Other Issues to be Addressed by the Judge, filed
September 28, 2016;
• Request for Expedited Hearing, filed October 3, 2016;
• Brief in Support of Employee's Request for Expedited Hearing, filed October 3,
2016;
• Position Statement in Opposition to Employee's Request for Expedited Hearing,
filed October 4, 2016;
• Subpoena, filed November 10, 2016; and
• Agreed Order Waiving Inperson Hearing and Allowing Court to Make Review-of-
the-File Determination, filed November 21, 2016;
• Agreed Order, entered December 5, 2016;
• Agreed Order and Docketing Notice for a Review-of-the-File Determination,
entered December 6, 20 16; and
• Agreed Order, entered December 8, 2016.
The Court did not consider attachments to Technical Record filings unless the
parties or their counsel stipulated to their admissibility and listed them below as an
Exhibit. The Court considered factual statements in these filings or any attachments to
them as allegations unless established by the evidence.
Exhibits:
• EXHIBIT 1: Affidavit of Willis Ray Babb;
• EXHIBIT 2: Deposition and attached Exhibits of Willis Ray Babb;
• EXHIBIT 3: Declaration and attached Exhibits of Stacy Merrell;
• EXHIBIT 4: Deposition of Stacy Merrell;
• EXHIBIT 5: Affidavit and attached Exhibits of Barbara Martinez;
• EXHIBIT 6: Declaration and attached Exhibits of Betty Kidd;
• EXHIBIT 7: Medical Records of Dr. Brad Flaming, Emory Family Practice, for
dates of service: December 4, 2015; December 29, 2015; MRI of January 28,
2016; and February 8, 2016; and
• EXHIBIT 8: Notice ofDenial of Claim for Compensation, Form C-23.
8
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 22nd day
of December, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Timothy Roberto, Esq., X [email protected]
Employee's Counsel
Brett Burrow, Esq., X [email protected]
Employer's Counsel
NY SHRUM, Court Clerk
WC.CourtClerl<@tn .gov
9
|
Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
7-2-1999
USA v Medford
Precedential or Non-Precedential:
Docket 98-1647,98-1648
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1999
Recommended Citation
"USA v Medford" (1999). 1999 Decisions. Paper 190.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/190
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1999 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
Filed July 2, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 98-1647 & 98-1648
UNITED STATES OF AMERICA
v.
ERNEST MEDFORD,
Appellant in 98-1647
UNITED STATES OF AMERICA
v.
GEORGE CSIZMAZIA,
Appellant in 98-1648
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(Nos. 98-cr-00045-01 & 98-cr-00045-02)
(District Judge: Honorable Clarence C. Newcomer)
Submitted Under Third Circuit LAR 34.1(a)
May 25, 1999
Before: GREENBERG and ALITO, Circuit Judges,
ACKERMAN, District Judge,1
(Opinion Filed: July 2, 1999)
_________________________________________________________________
1. The Honorable Harold A. Ackerman, Senior Judge of the United States
District Court for the District of New Jersey, sitting by designation.
Michael R. Stiles
United States Attorney
Walter S. Batty, Jr.
Chief of Appeals
Robert E. Goldman
Assistant U.S. Attorney
U.S. Attorney's Office
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee
George Henry Newman, Esq.
Newman & McGlaughlin
834 Chestnut Street
Suite 206
Philadelphia, PA 19107
Counsel for Appellant
Ernest Medford
Donald M. Moser, Esq.
Washington West Building
235 South 8th Street
Philadelphia, PA 19106
Counsel for Appellant
George Csizmazia
OPINION OF THE COURT
ALITO, Circuit Judge:
Ernest Medford and George Csizmazia ("defendants")
appeal their sentences after pleading guilty to conspiracy,
theft, and receipt of cultural objects from a museum in
Philadelphia. On appeal, defendants contend that the
government violated the plea agreement and that the
District Court misapplied the United States Sentencing
Guidelines. For the reasons explained below, we conclude
that the government satisfied its obligations under the plea
agreement but that the District Court erred in applying the
2
sentencing guidelines. We therefore vacate defendants'
sentences and remand for further proceedings.
I.
The Historical Society of Pennsylvania ("HSP"), founded in
1824 and located in Philadelphia, exhibits antiques and
other historical items to the public. Defendant Medford
worked as a custodian at the HSP for approximately 18
years. During that time, he met defendant Csizmazia, a
collector of antiques, who was working as a contractor at
the HSP. The defendants agreed that Medford would steal
items from the museum and sell them to Csizmazia.
Over a ten-year period, Medford pilfered approximately
200 valuable items from the museum, including a sword
presented to George G. Meade for his military
accomplishments during the Civil War, a 1735 gold snuff
box presented to Andrew Hamilton for successfully
defending J. Peter Zenger in his libel trial, a ring containing
a lock of George Washington's hair, an ivory tea caddy that
belonged to George Washington, a telescope used by Elisha
Kent Kane during his 1853 exploration of the arctic region,
lockets containing the hair of John Brown and Andrew
Jackson, the wedding band of Patrick Henry's wife, a silver
pitcher presented to a physician for his efforts during the
1848 smallpox epidemic in Philadelphia, and a Lancaster
County long rifle crafted in 1785 by Isaac Haines, one of
Philadelphia's finest gunsmiths. For a paltry sum, Medford
sold these items to Csizmazia, who concealed them at his
residence. All of the items have been recovered.
Defendants entered into a plea agreement under which
the government promised to "[m]ake a motion to allow the
District Court to depart from the Sentencing Guidelines
pursuant to Sentencing Guidelines S 5K1.1, if the
government in its sole discretion, determines that the
defendant has provided substantial assistance in the
investigation or prosecution of another person who has
committed an offense . . . ." Csizmazia App. at 24-25;
Medford App. at 9-10. Defendants pleaded guilty to
conspiracy, in violation of 18 U.S.C. S 371; theft of objects
of cultural heritage, in violation of 18 U.S.C.S 668(b)(1);
3
and receipt and concealment of stolen objects of cultural
heritage, in violation of 18 U.S.C. S 668(b)(2).2
At sentencing, the District Court applied U.S.S.G.
S 2B1.1, which provides a base offense level of four for a
variety of larceny offenses, including offenses committed
under 18 U.S.C. S 668. The Court then enhanced
defendants' base offense levels 15 points because the
amount of loss sustained by the HSP exceeded $2.5 million.
See U.S.S.G. S 2B1.1(b)(1)(P). In arriving at that figure, the
District Court considered the appraisals proffered by the
government. The experts who made the appraisals had
determined that the total monetary value of the stolen
items ranged between $2,452,471 and $2,579,500. Over
the defendants' objection, the District Court selected the
midpoint of the two estimates for a total loss of
$2,515,985.50. The Court reasoned: "[I]t is entirely
appropriate for the Court to accept a valuation . . . which
is based upon two expert appraisals . . . and to utiliz[e] the
midpoint range." Csizmazia App. at 72a; Medford App. at
24.
The Court next considered the government's section
5K1.1 motion for a downward departure. The government
declared that its section 5K1.1 motion merely granted the
District Court "permission" to depart downward, but that
the government "certainly [did not] recommend a downward
departure." See Csizmazia App. at 81a; Medford App. at 33.
Specifically, the government stated:
_________________________________________________________________
2. 18 U.S.C. S 668(b) provides, in pertinent part:
Any person who-
(1) steals or obtains by fraud from the care, custody, or control
of
a museum any object of cultural heritage; or
(2) knowing that an object of cultural heritage has been stolen or
obtained by fraud, if in fact the object was stolen or obtained
from
the care, custody, or control of a museum (whether or not that
fact is known to the person), receives, conceals, exhibits, or
disposes of the object,
shall be fined under this title, imprisoned not more than 10 years,
or both.
18 U.S.C. S 668(b)(1), (2).
4
[T]he motion for downward departure . . . permits the
Court to depart downward. . . . [T]hat's what the
Government is saying, you're permitted, I'm not
granting you permission, but under the rules it
provides that I'm giving you discretion [to depart
downward based on defendants' substantial assistance]
. . . . [W]e told both counsel that we wouldfile a weak
5K. And a weak 5K in our opinion is [one that] grants
discretion to depart downwards, but we certainly don't
recommend a downward departure.
Csizmazia App. at 83a; Medford App. at 35. The District
Court denied the motion.
The District Court heard victim impact testimony from
the President of the HSP, Susan Stiff ("Stiff "). See
Csizmazia App. at 106a-108a; Medford App. at 58-60. Stiff
explained that defendants' actions had damaged one of the
museum's most important assets -- its reputation as a
responsible steward of important national treasures-- "in
ways that cannot be quantified." Csizmazia App. at 107a;
Medford App. at 59. Stiff noted that the damage caused by
defendants could decrease financial contributions, reduce
donations of valuable historical objects, and diminish the
HSP's ability to attract qualified individuals to serve as
trustees and staff members. See Csizmazia App. at 106a-
107a; Medford App. at 58-59. Because of the harm caused
to the HSP and the public, Stiff implored the District Court
to "to impose the heaviest possible sentence on both
defendants." Csizmazia App. at 107a-108a; Medford App. at
59-60. The government concurred. Csizmazia App. at 108a;
Medford App. at 60.
Finding that the defendants' sentencing range of 27 to 33
months did not "sufficiently encompass[ ] the egregiousness
of the offenses that were involved," the District Court
departed upward four levels from the guidelines. Csizmazia
App. at 109a; Medford App. at 61. However, the Court did
not advise the defendants prior to the sentencing hearing
that it intended to depart upward.
The District Court sentenced the defendants to 48
months of imprisonment, and the defendants took this
appeal. Defendants claim that the government (1) violated
5
the plea agreement by filing a motion for downward
departure and then stating at the sentencing hearing that
it did not recommend departure and (2) acted in bad faith
by failing to make "a more concerted 5K1.1 downward
departure motion at the time of sentencing." Csizmazia Br.
at 15. Defendants also contend that the District Court
misapplied the Sentencing Guidelines by (1) arbitrarily
selecting the middle value of the high and low estimates of
the fair market value of the stolen items as the amount of
loss sustained by the HSP; (2) departing upward without
providing sufficient advance notice of its intentions; (3)
departing upward on a ground that had already been taken
into consideration by the Guidelines; and (4) departing
upward four levels without articulating its reason for the
extent of the departure. We address each argument in turn.
II.
Defendants contend that the government violated the
plea agreement by filing a downward departure motion and
then stating at the sentencing hearing that it did not
recommend a downward departure. Defendants also claim
that the government acted in bad faith by failing to make "a
more concerted 5K1.1 downward departure motion at the
time of sentencing." Csizmazia Br. at 15.3 As a remedy,
defendants seek a remand for resentencing before a
different judge. "Whether the Government violated a plea
agreement is a question of law subject to de novo review."
See United States v. Huang, 178 F.3d 184, 187 (3d Cir.
1999) (citing United States v. Roman, 121 F.3d 136, 142 (3d
Cir. 1997), cert. denied, 118 S. Ct. 722 (1998)). We reject
defendants' claims.
Section 5K1.1 of the Guidelines provides:
Upon motion of the government stating that the
_________________________________________________________________
3. Defendants' contention that the government violated the plea
agreement by requesting the court to impose the heaviest sentence
possible on the defendants is frivolous. In the plea agreement, the
government reserved the right to "[m]ake whatever sentencing
recommendation the government deems appropriate. . .." Csizmazia
App. at 25; Medford App. at 10.
6
defendant has provided substantial assistance in the
investigation or prosecution of another person who has
committed an offense, the court may depart from the
guidelines.
U.S.S.G. S 5K1.1. We have held that, in the absence of two
circumstances not present here, a District Court may not
depart below the guideline range based on a defendant's
substantial assistance unless the government makes a
motion to permit such a departure. See United States v.
Abuhouran, 161 F.3d 206, 211-212 (3d Cir. 1998), cert.
denied, 119 S. Ct. 1479 (1999).
In this case, the plea agreement required the government
"to mak[e] a motion to allow the Court to depart from the
Sentencing Guidelines pursuant to Sentencing Guidelines
S 5K1.1, if the government, in its sole discretion, determines
that the defendant has provided substantial assistance in
the investigation or prosecution of another person who has
committed an offense. . . ." Csizmazia App. at 24-25
(emphasis added); Medford App. at 9-10. We interpret the
plain terms of the plea agreement to require only that the
government file a S 5K1.1 motion in order to give the
District Court the power ("to allow the Court") to depart
downward under that provision. Contrary to defendants'
suggestions, the plea agreement did not require the
government to recommend a downward departure at the
sentencing hearing; nor did it prohibit the government from
stating at the sentencing hearing that it did not recommend
departure. Therefore, when the government filed the 5K1.1
motion, it complied with the terms of the plea agreement.4
In addition, we find no basis for the defendants'
contention that the government acted in bad faith by failing
to make "a more concerted 5K1.1 downward departure
motion at the time of sentencing." Csizmazia Br. at 15. In
making this contention, defendants cite United States v.
_________________________________________________________________
4. It is true that the plea agreement could have been more explicit in
stating that, while the government was obligated to make a S 5K1.1
motion, the government was reserving the right to take whatever
recommendation it chose as to whether a downward departure should be
granted. In future cases, it would be advisable for the government to
make this point explicit.
7
Isaac, 141 F.3d 477 (3d Cir. 1998), in which we held that
the government's failure to file a 5K1.1 motion as required
under the plea agreement must not result from bad faith.
Defendants' reliance on Isaac, however, is misplaced. Here,
the government filed a S 5K1.1 motion and in so doing
complied with its obligation under the plea agreement.
Accordingly, we fail to perceive any bad faith on the
government's part.
For these reasons, we conclude that the government
satisfied its obligation under the plea agreement and that
the government's actions were not in bad faith. We
therefore deny defendants' request for resentencing before a
different judge.
III.
Defendants also contend that the District Court erred in
enhancing their base offense levels because it arbitrarily
selected the midpoint between the high and low estimates
of the stolen items' fair market value as the amount of loss
sustained by the HSP and stated, without further
explanation, that doing so is "entirely appropriate."5 We
review the District Court's findings for clear error. See
United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993).
We agree with defendants.
U.S.S.G. S 2B1.1 establishes a defendant's base offense
level for offenses involving theft of property. See U.S.S.G.
S 2B1.1 (1997). For offenses under 18 U.S.C.S 668, the
defendant's base offense level begins at four and is
increased depending on the amount of the loss sustained
as a result of the illegal conduct. See U.S.S.G. S 2B1.1(a),
(b)(1). In determining the amount of loss sustained, courts
are instructed to ascertain the fair market value of the
stolen items. See U.S.S.G. S 2B1.1, commentary n.2. We
have held that in cases in which the fair market value
ranges between two estimates and either end of the range
is equally plausible, courts generally should adopt the lower
_________________________________________________________________
5. Had the District Court selected the lower estimate, the defendants
would have received a 14-level increase in their base offense levels,
rather than the 15-level increase that they received.
8
end of the estimated range. See Miele, 989 F.2d at 665-66
(citing United States v. Walton, 908 F.2d 1289, 1302 (6th
Cir. 1990). However, "where there is other evidence to
support the higher end of an estimated range, the court
may certainly rely on the higher estimate." Miele, 989 F.2d
at 665-66. Such other evidence must be supported by
"sufficient indicia of reliability," and the court must explain
on the record why it relied on the estimate at the higher
end. Id. at 668 ("We require that the district court articulate
more than a conclusory finding . . . . The district court may
not rest its decision upon facts until it determines that the
fact or facts have sufficient indicia of reliability to support
a conclusion that they are probably accurate.").
The decision of the District Court violates Miele. In
determining that the fair market value of the stolen items
exceeded $2.5 million, the District Court selected the
middle value of the high and low estimates without
assessing the reliability of the higher estimate. In addition,
the District Court did not articulate an adequate
evidentiary basis for selecting the middle value of the two
estimates, as opposed to selecting the low end of the range.
Accordingly, as the government requests, we vacate the
defendants' sentences and remand for resentencing in
accordance with Miele.
IV.
Defendants further maintain that remand is required
under Burns v. United States, 501 U.S. 129, 138 (1991),
because the District Court departed upward without
providing advance notice to the defendants of its intention
to upwardly depart. We agree. In Burns, the Supreme Court
held:
Before a district court can depart upward on a ground
not identified as a ground for upward departure either
in the presentence report or in a prehearing
submission by the Government, Rule 32 [of the Federal
Rules of Criminal Procedure] requires that the district
court give the parties reasonable notice that it is
contemplating such a ruling.
9
Id.; see also United States v. Barr, 963 F.2d 641, 655 (3d
Cir. 1992). The government recognizes that the District
Court "did not provide the defense with sufficient advance
notice of [its] intention to upwardly depart from the
guidelines," and therefore it concedes that the District
Court committed plain error. Appellee's Br. at 9. In light of
Burns and the position taken by the government, we vacate
the sentences imposed by the District Court and remand
for resentencing.
Although we are remanding to the District Court, we will
address one further issue relating to the upward departure
that was briefed to us here and that no doubt will be raised
on remand. Defendants contend that the District Court's
upward departure was improper because the cultural value
of the stolen objects is an element of 18 U.S.C.S 668
already taken into consideration by the Sentencing
Guidelines. We review the District Court's findings of fact
for clear error and its legal conclusions de novo. See United
States v. Hillstrom, 988 F.2d 448, 450 (3d Cir. 1993). We
reject defendants' argument.
As noted above, S 2B1.1 provides for increases in the
defendants' sentence depending upon the amount of loss
sustained by the victim of the offense. See U.S.S.G.
S 2B1.1, background commentary ("The value of property
stolen plays an important role in determining sentences for
theft and other offenses involving stolen property because it
is an indicator of both the harm to the victim and the
gain to the defendant."). In making this determination,
the Guidelines instruct the courts to ascertain the fair
market value of the stolen items. See U.S.S.G. S 2B1.1,
commentary n.2. The application notes recognize, however,
that in some cases, the monetary loss will not "fully capture
the harmfulness of the conduct." See U.S.S.G. S 2B1.1,
commentary n.15. In those cases, the application notes
provide that "an upward departure may be warranted." Id.
In this case, after enhancing the defendants' offense level
by 15 based on the fair market value of the stolen items,
the District Court departed upward four levels because the
applicable sentencing range did not "sufficiently encompass
the egregiousness of the offenses that were involved here."
10
Csizmazia App. at 109a; Medford App. at 61. The Court
explained:
[T]he conduct that [the defendants] engaged in is an
assault and affront to our culture, to our society, and
. . . must be dealt with accordingly. [T]he intangibles
. . . involved . . . and the effects that they have . . . had
upon the institution itself -- both here in Philadelphia
and . . . throughout the country -- mandate that the
court . . . issue an upward departure in this case.
Csizmazia App. at 109a-110a; Medford App. at 61-62.
We agree with the District Court. The price set by the
commercial market is insufficient to "fully capture the
harmfulness of the [defendants'] conduct." The antiques
stolen in this case unquestionably have historical and
cultural importance. Moreover, the thefts affected the HSP
in ways different in kind from a loss of money or other
easily replaceable property, for these thefts damaged the
HSP's reputation. In addition, the monetary value of these
objects does not adequately take into consideration the real
but intangible harm inflicted upon all of the other victims
of the offense, including the City of Philadelphia and the
general public. Because section 2B1.1 applies to thefts that
cause financial harm to the immediate victim of the offense,
the non-monetary damage caused here and the harm
inflicted upon the public at large justify the District Court's
upward departure.
The defendants contend that the upward departure was
impermissible because "the Sentencing Commission, in
setting the offense level . . . for theft of objects of cultural
heritage, took into account the very fact that the items
stolen were items of cultural heritage." Medford Br. at 13.
This argument, however, fails to take Application Note 15
into account and overlooks the fact that U.S.S.G.S 2B1.1
applies to a variety of theft offenses that do not involve
objects of cultural heritage. To take just one example,
U.S.S.G. S 2B1.1 applies to the offense of transporting
stolen motor vehicles in interstate or foreign commerce, in
violation of 18 U.S.C. S 2312. Thus, under U.S.S.G.
S 2B1.1, a defendant who transports stolen motor vehicles
valued at $x across state lines is treated the same as a
11
defendant who steals objects of cultural heritage having the
same fair market value. Because U.S.S.G. S 2B1.1 does not
take into account the non-monetary significance of objects
of cultural heritage, a departure may be warranted, as
Application Note 15 suggests.
Finally, defendants contend that the District Court erred
in failing to explain its reason for a four-level upward
departure. Because we are remanding to the District Court,
we note only that the District Court should state on the
record its reason for the extent of the departure. See United
States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990).
V.
Accordingly, we vacate the defendants' sentences and
remand for resentencing in accordance with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
12
|
Chief Justice Clerk
James T. Worthen Cathy S. Lusk
Twelfth Court of Appeals
Justices Chief Staff atti irney
Sam Griffith Margaret Hussey
Diane DeVasto
Wednesday, January 18, 2006
Mr. John F. Berry Mr. Randall J. Cook
John F. Berry, P.C. Hardy & Atherton
100 Independence Place One American Center, Suite 750
Suite 400 909 ESE Loop 323
Tyler, TX 75703 Tyler, TX 75701
RE: Case Number: 12-04-00020-CV
Trial Court Case Number: 46,800
Style: Alistair A. Tees and Nancy Tees
v.
East Lake Woods Homeowners Association
Enclosed is a copy of the Memorandum Opinion issued this date in the above styled and
numbered cause. Also enclosed is a copy of the court's judgment.
Very truly yours,
CATHY S. LUSK, CLERK
Bv: -KWjiA. MfiMl
Katrina McClenny, Chief Deputy Clerk
CC: Hon. John Ovard
Hon. Thomas A. Dunn
Ms. Judy Carnes
1517 West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193
Serving Anderson. Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches. Hains. Husk. Sabine, San Augustine, Shelby, Smith. Trinity, I pshur,
Van Zandt and Wood Counties
www.12thcoa.courts.state.tx.us
NO. 12-04-00020-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ALISTAIR A. TEES AND NANCY TEES, § APPEAL FROM THE
APPELLANTS
V. COUNTY COURT AT LA W
EAST LAKE WOODS HOMEOWNERS
ASSOCIATION,
APPELLEE SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Alistair and Nancy Tees appeal from an adverse judgment entered after a trial before the court
in a suit filed by East Lake Woods Homeowners Association in which the court found the Tees in
violation of a restrictive covenant. The Tees assert six issues concerning limitations, conditions
precedent, the sufficiency of the evidence, attorney's fees, and the trial court's denial of their request
for a declaratory judgment. We modify the trial court's judgment to delete the dates for performance
recited therein and affirm the trial court's judgment as modified.
Background
Mark Mahaffey, a real estate developer, established a residential subdivision called East Lake
Woods. All property in the subdivision is sold subject to deed restrictions that set the standards for
the community as described in a lengthy document entitled "Declaration of Covenants, Conditions,
Assessments, Charges, Servitudes, Liens, Reservations and Easements (Single Family) for East Lake
Woods Unit JX a part of the Nancy L. Mulkey Survey, Abstract 695, Smith County, Texas." Article
3.09 of that document provides: "With reasonable diligence, and in all events within nine (9) months
from the commencement of construction, unless completion is prevented by war, labor strike or by an
act of God, any dwelling unit or other structure commenced upon any lot shall be completed as to its
exterior and all temporary structures shall be removed."
On February 21,1997, the Tees purchased Lot 39 in that subdivision. The Tees and Mahaffey,
in the capacity of the subdivision's Architectural Review Committee, signed a document entitled
"Design Guideline" establishing the design requirements for Lot 39. Regarding prosecution of
construction, the Design Guideline included the following provision: "The restrictions listed in Article
JJI, Item 3.09 will be complied with. However, the Committee has agreed to allow Owner to build the
structures i n a p hased manner. Each of the three permanent structures (the main dwelling, the
detached garage and boathouse) will be built separately. Each phase of construction (each permanent
structure) shall be completed in a 9 month period."
The Tees had the boathouse built in 1997 and the garage built on Lot 39 in 1998. However,
on August 15, 2000, the Tees purchased the residence on Lot 38. They did not build a house on Lot
39. An attorney representing the Association sent the Tees a letter dated November 2, 2000,
requesting them to commence construction of the residence or demolition of the garage due to a
restriction violation. They were given thirty days from the date of the letter to comply. The letter
included a warning that litigation would be used to enforce the restrictions if necessary. More than
seven months later, the Association, through its attorneys, sent a second letter informing the Tees they
had the option of immediately commencing construction of a residence or immediately demolishing
the garage. The Association promised legal action within thirty days ofthe June 18,2001 letter ifthey
did not immediately pursue one of those options.
On May 29, 2002, the Association filed suit alleging the Tees were in violation of the
restrictive covenants because they failed to complete the construction of all improvements on Lot 39.
It requested a temporary injunction restraining the Tees from using the garage as a residence and a
permanent injunction requiring them to either complete the residence or remove the garage. In
response, the Tees asserted the affirmative defense of limitations and sought a declaratory judgment
that there is no time limitation for completion of construction and that neither the presence of the
garage nor their use ofthe property is in violation ofthe restrictive covenants. After a hearing, the trial
court ordered the Tees to commence construction of a residence on Lot 39 by January 2, 2004 or
remove the garage by February 27, 2004 and to pay the Association's attorney's fees.
2
Notice
In their first issue, the Tees assert that the Association failed to comply with statutory
conditions precedent to filing suit. Specifically, they contend the Association did not provide them
with written notice by certified mail informing them of their right to a reasonable time to cure the
alleged violation or of their right to request a hearing.
Section 209.006 of the Texas Property Code provides that before a property owners'
association may file a suit such as this one against an owner, it must give written notice to the owner
by certified mail, return receipt requested. The notice must describe the violation and inform the
owner that he is entitled to a reasonable period to cure the violation and may request a hearing. Tex.
Prop. CODE Ann. § 209.006 (Vernon Supp. 2005). However, the notice requirements do not apply
if the association files a suit seeking a temporary restraining order or temporary injunctive relief. Id.
§ 209.007(d).
Here, the Association's petition clearly stated that it sought a temporary injunction restraining
the Tees from using the garage on Lot 39 as a residence without proper approval. However, the Tees
further argue that the Association's failure to verify its pleading and obtain a hearing on the temporary
injunction indicates that it did not really seek a temporary injunction. The Tees assert that the
Association should not be allowed to avoid the notice requirements of the Property Code by merely
including a request for a temporary injunction in the petition.
We do not agree that the Association did not seek a temporary injunction. The Association
sent two letters to the Tees expressing its discontent, requesting compliance, and warning that
noncompliance would result in litigation. The Tees received notice ofthe suit and answered, pleading
an affirmative defense and a counterclaim. The parties attempted to resolve their differences through
mediation almost three years after the Association sent the first letter. Thereafter, the parties
participated in the discovery process. In ajoint motion for continuance, the Tees assured the court they
could be ready for trial on the merits by October 6,2003. Later, the Tees attended the hearing at which
the court heard testimony on the merits.
A verified petition for injunctive relief is not required to obtain an injunction when a full
evidentiary hearing on evidence has been held. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 298 (Tex.
App.-Houston [14th Dist.] 2002, no pet.). Further, the parties can agree to forego the separate hearing
on a temporary injunction or the trial court can choose to advance to the trial on the merits without a
3
hearing on a temporary injunction to eliminate time-consuming duplicate hearings and appeals. Iranian
Muslim Org. v. City ofSan Antonio, 615 SW.2d 202,208-09 (Tex. 1981). Based on the circumstances
as revealed by the record, we conclude that the Tees waived their right to a hearing on temporary relief
and agreed to proceed to a hearing on the merits. They cannot now use the lack of such a hearing to
argue that the Association was not truly seeking an injunction. Because the Association sought a
temporary injunction, the notice provision of Section 209.006 is not applicable. We overrule the Tees'
first issue.
Sufficiency of the Evidence
In their second issue, the Tees contend the evidence is legally and factually insufficient to support
the judgment. They argue that the written agreement they are bound by does not require the dwelling
to be built within nine months of commencement of the garage and, in fact, dictated no deadline for
commencement of construction of the residence. The Tees contend that Mahaffey authorized
construction ofimprovements on Lot 39 in a phased manner and there was no deadline for commencing
construction ofthe residence stated in the approved Design Guideline. They argue that the language in
the Design Guideline provided a "variance" to the restrictive covenants and assert that they and
Mahaffey agreed they would be bound by the language in the Design Guideline "instead ofthe restrictive
covenant 3.09." Further, they assert that their use and construction of improvements on Lot 39 was
within the provisions of their written agreement and the restrictive covenants.
Applicable Law
We review a trial court's interpretation of a restrictive covenant de novo. Buckner v. Lakes of
Somerset Homeowners Assoc, Inc., 133 S.W.3d 294, 297 (Tex. App—Fort Worth 2004, pet. denied).
In construing a restrictive covenant, a court's primary task is to determine the intent of the framers of
the restrictive covenant. Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex. 1987). In determining this
intent, the court must liberally construe the covenant's language and must ensure that every provision
is given effect. Tex. Prop. Code Ann. § 202.003(a) (Vernon 1995); Munson v. Milton, 948 S.W.2d
813,816 (Tex. App.-San Antonio 1997, pet. denied). Words used in a restrictive covenant may not be
enlarged, extended, stretched, or changed by construction, but will be given their commonly accepted
meanings. Buckner, 133 S.W.3dat297.
4
In addition, the trial court's findings of fact are reviewed under the same legal and factual
sufficiency standards as jury findings. Anderson v. City ofSeven Points, 806 S.W.2d 791, 794 (Tex.
1991). When no findings offact are filed, the reviewing court implies all necessary findings to support
the judgment. Pharo v. Chambers County, Texas, 922 S.W.2d 945, 948 (Tex. 1996). Where a
complete reporter's record is filed in the record, however, these implied findings are not conclusive,
and an appellant may challenge them by raising both legal and factual sufficiency of the evidence
complaints. Roberson v. Robinson, 768 S.W.2d280, 281 (Tex. 1989).
When attacking the legal sufficiency ofan adverse finding on an issue on which a party did not
have the burden of proof, that party must demonstrate there is no evidence to support the adverse
finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). To evaluate the legal sufficiency of
the evidence to support a finding, we must determine whether the proffered evidence as a whole rises
to a level that would enable reasonable and fair-minded people to differ in their conclusions. St.
Joseph Hosp. v. Wolff, 94 S.W.3d 513,519 (Tex. 2002). We sustain a no evidence point only ifthere
is no more than a scintilla of evidence proving the elements of the claim. Id. at 520. In making this
determination, we must view the evidence in the light favorable to the verdict, crediting favorable
evidence ifreasonable jurors could and disregarding contrary evidence unless reasonable jurors could
not. City ofKeller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005).
If a party is attacking the factual sufficiency of an adverse finding on an issue to which the
other party had the burden of proof, the attacking party must demonstrate that there is insufficient
evidence to support the adverse finding. See Croucher, 660 S.W.2d at 58. In addressing a factual
sufficiency of the evidence challenge, this Court must consider and weigh all of the evidence and set
aside the verdict only if it is 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). This Court is not a fact finder and
may not pass on the credibility of the witnesses or substitute our judgment for that of the trier of fact.
Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.-Dallas 1986, writ ref d n.r.e.).
Discussion
Article 3.09 provides that, with certain exceptions not applicable here, the exterior of each
structure shall be completed within nine months from the commencement of construction of "any
dwelling unit or other structure commenced upon any lot." By the terms ofthe Design Guideline, the
Tees agreed to comply with Article 3.09 of the East Lake Woods deed restrictions. However, the
5
Design Guideline also allowed the Tees "to build the structures in a phased manner" and to build each
structure separately. Finally, paragraph 9 of the Design Guideline provides: "Each phase of
construction (each permanent structure) shall be completed in a 9 month period." As the Tees point
out, the Design Guideline does not set a time limit for building the dwelling on Lot 39. They argue
that a court imposed deadline for commencing construction on a residence imposes a significant duty
on them contrary to their free use of their property. We disagree.
Where a contract does not provide a time for performance, the law will imply that performance
must occur within a reasonable time. Pearcy v. Environmental Conservancy ofAustin and Central
Texas, Inc., 814 S.W.2d 243, 246 (Tex. App.-Austin 1991, writ denied). What is a reasonable time
depends on the facts and circumstances as they existed when the contract was formed. Id. Factors
include the nature and character of the action and the difficulty of accomplishing it, as well as the
purpose of the agreement. Id. Where the material facts are undisputed, the question of what is a
reasonable time is a matter of law. Id.
The Tees wanted the "variance" because at the time, early 1997, they believed Mr. Tees was
about to go overseas for a work assignment that would last from three to five years. They bought Lot
39 in February 1997 apparently anticipating they would build a residence on the lot three to five years
later when Mr. Tees returned. The boathouse was completed in 1997, and the garage was completed
in June 1998. The overseas work assignment never materialized. The Tees purchased the house next
door in August 2000 after learning that Mr. Tees would not be working overseas. Apparently, by
August 2000, the reason for the "variance" no longer existed. Moreover, more than five years passed
between the time the Tees purchased the lot and the date the Association filed its suit. The Tees
actually had the extra time to build that they originally anticipated needing.
By the plain terms of the original deed restrictions, the residence was to be completed within
nine months of the date construction began on the garage. Because it was not, the Tees were not in
compliance with the original deed restrictions. Assuming that the Design Guideline created a
"variance" so the Tees did not have to complete construction of the residence within nine months of
beginning construction of the garage, the Design Guideline inappropriately lacked a deadline for
commencing construction on the residence. Even though, in 1997, the Tees had anticipated a three
to five year delay before needing a residence, the Tees' argument is necessarily interpreted to mean
they believe the Design Guideline allows them to build a residence on Lot 39 at any time in the future.
6
Under the circumstances, such an open ended time for performance is not reasonable as a matter of
law. See Pearcy, 814 S.W.2d at 246. Thus, there is legally and factually sufficient evidence to support
the trial court's judgment. See Croucher, 660 S.W.2d at 58. We overrule the Tees' second issue.
Attorney's Fees
In their third issue, the Tees assert the trial court erred in awarding the Association its
attorney's fees. T hey argue that t he P roperty C ode r equires n otice u nder S ection 2 09.006 a s a
condition precedent to the award of attorney's fees. Further, they argue the Association provided no
evidence of how its fees were calculated or whether the fees were incurred before or after the date of
the hearing, or the date it could have been held, as required by Section 209.008(b) of the Property
Code.
As a general rule, attorney's fees are not recoverable in Texas unless allowed by contract or
by statute. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex. 1992). Whether
attorney's fees are available under a particular statute is a question of law, which we review de novo.
See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999).
Section 209.008 of the Property Code provides as follows:
(a) A property owners' association may collect reimbursement of reasonable attorney's
fees and other reasonable costs incurred by the association relating to collecting
amounts, including damages, due the association for enforcing restrictions or the
bylaws or rules of the association only if the owner is provided a written notice that
attorney's fees and costs will be charged to the owner if the delinquency or violation
continues after a date certain.
(b) An owner is not liable for attorney's fees incurred by the association relating to a
matter described by the notice under Section 209.006 if the attorney's fees are
incurred before the conclusion of the hearing under 209.007 or, if the owner does not
request a hearing under that section, before the date by which the owner must request
a hearing. The owner's presence is not required to hold a hearing under Section
209.007.
Tex. Prop. Code Ann. § 209.008 (Vernon Supp. 2005).
A plain reading ofSection 209.008 reveals that it applies to collection matters. The case before
us is not a collection suit. Therefore, Section 209.008 is inapplicable. However, the Association did
provide notice in a letter dated November 2,2000. The letter was sent to the Tees by the Association's
legal counsel. It informed the Tees that if they did not commence construction on a residence or
commence demolition of the existing structure within thirty days of the date of the letter, the
Association would commence litigation. It also stated that, if successful, the Association would be
entitled to recover its attorney's fees and court costs. In a breach of restrictive covenant action, "the
court shall allow to a prevailing party who asserted the action reasonable attorney's fees." Tex. Prop.
Code Ann. § 5.006 (Vernon 2004). Therefore, the trial court did not err in awarding attorney's fees
to the Association. We overrule the Tees' third issue.
Declaratory Judgment Claim
In issues four and five, the Tees assert that the trial court erroneously denied their request for
declaratory judgment that they were in compliance with the restrictions and erroneously denied their
request for attorney's fees in the declaratory judgment action.
The Declaratory Judgments Act provides that a person interested under a deed or other writing
constituting a contract may have the court determine any question of construction or validity arising
under the instrument and obtain a declaration of rights, status, or other legal relations under it. Tex.
Civ. Prac. & Rem. Code Ann. § 37.004(a) (Vernon 1997). It also provides that the court may award
costs and attorney's fees. Id. § 37.009. If a party's defensive declaratory action asserts relief having
greater ramifications than the original suit, it can be an appropriate mechanism under which to award
attorney's fees. Anderson v. New Property Owners' Ass'n ofNewport, Inc., 122 S.W.3d 378, 391
(Tex. App.-Texarkana 2003, pet. denied). However, declaratory relief is not available to settle
disputes already pending before the court. BHPPetroleum Co. v.Millard, 800 S.W.2d 838,841 (Tex.
1990) (orig. proceeding). A declaratory judgment may not be used solely as a vehicle to obtain
attorney's fees and is inappropriate if it will serve no useful purpose. Boatman v. Lites, 970 S.W.2d
41, 43 (Tex. App.-Tyler 1998, no pet.).
In their counterclaim, the Tees sought a declaratory judgment that there is no time limitation
for completion of improvements to Lot 39, their construction of the garage is not in violation of
restrictive covenants, and, alternatively, that their use of the property is not violative of restrictive
covenants. Their request presented no issues beyond those already raised by the Association, and their
counterclaim would have no greater ramifications than the original suit. See Anderson, 122 S.W.3d
at 391. Therefore, the trial court did not err in denying the Tees' request for declaratory relief or for
8
attorney's fees based on that action. We overrule the Tees' fourth and fifth issues.
Limitations
In their sixth issue, the Tees assert that the trial court erred in not finding that the Association's
suit was barred by limitations. They argue that, if they were required to complete all construction
within nine months of the start of construction, the date for completion of construction was nine
months after commencement of the boathouse. They estimate that nine month completion
date to have been sometime between the fall of 1997 and February 1998. This would make the
deadline for filing suit February 2002. Because the Association filed suit on May 29, 2002, the Tees
argue, the suit was barred by the four year statute of limitations.
Actions to enforce restrictive covenants are controlled by a four year statute oflimitations. Air
Park-Dallas Zoning Comm. v. Crow-Billingsley Airpark, Ltd., 109 S.W.3d 900, 911 (Tex.
App.-Dallas 2003, no pet.). A defendant urging the affirmative defense of the statute of limitations
must prove when the cause of action accrued. American Med. Elecs., Inc. v. Korn, 819 S.W.2d 573,
576 (Tex. App.-Dallas 1991, writ denied). An action for damages for breach of a written contract
accrues when the breach occurs or when the claimant has knowledge of facts sufficient to place him
on notice ofthe breach. Rose v. Baker &Botts, 816 SW.2d 805, 810 (Tex. App.-Houston [1st Dist.]
1991, writ denied). A breach occurs when a party to a contract fails to perform a duty required by the
contract. Hoover v. Gregory, 835 S.W.2d 668, 677 (Tex. App.-Dallas 1992, writ denied).
In their argument under this issue, the Tees have omitted any mention of the effect of the
language in the Design Guideline addressing prosecution of construction. Therefore, we will restrict
our discussion to the deed restrictions. Article 3.09 of the deed restrictions requires construction to
be completed within nine months from its commencement. The first structure the Tees built was their
boathouse. The Tees argue that the deed restriction's time frame for completion therefore refers to
construction of their boathouse. However, as the Association points out, Article 3.09 requires us to
reject this argument.
Article 3.09 states that, within nine months from the commencement of construction, "any
dwelling unit or other structure commenced upon any lot shall be completed." The record shows that
the City of Tyler owns the lake and that the Tees' boathouse is constructed over the water and not on
Lot 39. Therefore, the deed's timing requirement must be applied to commencement of construction
9
of the garage, the only structure on the lot. Mr. Tees testified that the garage was completed in June
1998. The record does not indicate when construction on the garage began. It is impossible to
determine when the nine month period ended in the absence of a start date. Therefore, the Tees did
not prove when the cause of action accrued or that the Association's suit is barred by limitations. See
Korn, 819 S.W.2d at 576. We overrule the Tees' sixth issue.
Conclusion
The Association's suit is not barred by limitations and it did not fail to comply with conditions
precedent to filing. The evidence is legally and factually sufficient to support the judgment. The trial
court properly denied the Tees' request for a declaratory judgment and properly determined the award
of attorney's fees.
However, to affirm the judgment in its entirety would require ofthe Tees an impossibility. Due
to the passage of time, the Tees cannot comply with the trial court's judgment by the dates specified
in that judgment. This court may make any appropriate order that the law and the nature of the case
require. Tex. R. App. P. 43.6. We therefore modify the judgment to delete the dates specified in the
judgment by which the Tees were to commence and complete construction of a residence or
commence and complete removal ofthe garage on Lot 39. We remand the cause to the trial court for
determination of a revised timetable for compliance and entry of an appropriate order. As modified,
we affirm the trial court's judgment.
SAM GRIFFITH
Justice
Opinion delivered Januaryl8, 2006.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(PUBLISH)
10
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 18, 2006
NO. 12-04-00020-CV
ALISTAIR A. TEES AND NANCY TEES,
Appellants
V.
EAST LAKE WOODS HOMEOWNERS ASSOCIATION,
Appellee
Appeal from the County Court at Law
of Smith County, Texas. (Tr.Ct.No. 46,800)
THIS CAUSE came on to be heard on the oral arguments, appellate record and
the briefs filed herein; and the same being inspected, it is the opinion of this court that the judgment
of the trial court below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be modified to delete the dates by which the Tees must either commence and
complete construction of a residence on Lot 39, or commence and complete removal of the garage on
Lot 39;
It is further ORDERED, ADJUDGED and DECREED that the cause is
remanded to the trial court for determination of a revised timetable for compliance and entry of an
appropriate order; and as modified, the judgment of the trial court is affirmed.
It is further ORDERED that Appellants, ALISTAIR A. TEES AND NANCY
TEES, pay all costs in this cause expended, both in this court and the court below for which let
execution issue; and that this decision be certified to the trial court below for observance.
Sam Griffith, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
|
426 F.2d 283
UNITED STATES of America, Appellee,v.Luciano Abreu MIRANDA, Appellant.
No. 25111.
United States Court of Appeals, Ninth Circuit.
April 24, 1970.
William M. Apgar (argued), San Diego, Cal., for appellant.
Harry D. Steward, U. S. Atty., Shelby R. Gott, Asst. U. S. Atty., San Diego, Cal., for appellee.
Before HAMLEY, KOELSCH and TRASK, Circuit Judges.
PER CURIAM:
1
Luciano Abreu Miranda appeals from his conviction, on a jury verdict, of smuggling 143 pounds of marihuana into the United States from Mexico on January 16, 1969, in violation of 21 U.S.C. § 176a.
2
Defendant's only point on appeal is that the trial court erred in denying his pretrial motion to suppress the marihuana seized as a result of a search of his automobile, and in thereafter receiving evidence pertaining to the marihuana.
3
An immigration and customs checkpoint is maintained about eighteen miles north of Oceanside, California. This checkpoint is therefore sixty or seventy miles north of the Mexican border and about one-half mile from the Pacific Ocean. On January 16, 1969, Bruce R. Stock, a border patrolman apparently operating out of that checkpoint, stopped defendant in his 1968 Chevrolet automobile on Interstate 5, not far from the checkpoint. Stock was searching for aliens not lawfully admitted into the United States.
4
Stock questioned defendant and the latter presented a form I-151, identifying himself as a lawfully-immigrated alien. For the purpose of determining whether an alien was hidden under the hood of the automobile, Stock requested Miranda to open the hood. Miranda appeared nervous; his hand shook violently as he was taking the key out of the ignition and trying to open the hood. Under the hood Stock found no aliens, but he did find twenty-four bricks of marihuana in the fender wells. Stock then searched other parts of the car, including the area behind the back seat rest and under the rear seat cushion. He found forty-one more bricks of marihuana in these places.
5
Under 8 U.S.C. § 1357(a) (3) a properly authorized officer of the Immigration and Naturalization Service, such as Stock, is empowered, without a warrant, to board and search any vehicle for aliens "within a reasonable distance from any external boundary of the United States * * *." According to the applicable regulation, the term "reasonable distance" means within one hundred air miles from any external boundary of the United States or any shorter distance which may be fixed by the district director. 8 C.F.R. § 287.1(a) (2). This regulation, and the statute upon which it is based, 8 U.S.C. § 1357, are not unconstitutional per se, or as applied in this case. Fernandez v. United States, 321 F.2d 283, 285-286 (9th Cir. 1963). See also, Barba-Reyes v. United States, 387 F.2d 91, 92-93 (9th Cir. 1967).
6
Thus the search here in question was made within a reasonable distance of both the American-Mexican boundary and the Pacific Ocean seashore boundary. This gave Stock authority under 8 U.S.C. § 1357 to search defendant's automobile without a warrant to determine if aliens were hidden therein. It was only after the car had been lawfully stopped and the hood lawfully opened for this purpose that Stock detected the marihuana. See Barba-Reyes v. United States, supra, at 93.
7
However, Miranda argues, in effect, that since Stock testified that the air filter on the carburetor in a 1968 Chevrolet and the hood approximately meet and that there are only a few inches between the radiator and the top of the hood, it is inconceivable that Stock was searching for aliens under the hood.
8
Stock testified that, in the past, he had found aliens under the hood of a vehicle and that he was searching for aliens on this occasion. In our opinion, the circumstances to which Miranda calls attention did not require the district court to disbelieve Stock.
9
Because we hold that Stock legally found a substantial quantity of marihuana under the hood, we need not determine the legality of Stock's search of other parts of the automobile, and the resulting seizure of additional marihuana. The quantity of marihuana found under the hood was sufficient to support the conviction, and the suppression of the remaining marihuana would not have weakened the Government's case against Miranda.
10
Affirmed.
|
378 F.Supp. 516 (1974)
The UNITED STATES
v.
Thomas Michael GOLON.
Crim. No. 73-345-C.
United States District Court, D. Massachusetts.
July 30, 1974.
*517 James N. Gabriel, U. S. Atty., Robert B. Collings, Asst. U. S. Atty., for plaintiff.
Norman S. Zalkind, Boston, Mass., for defendant.
MEMORANDUM and ORDER
CAFFREY, Chief Judge.
This matter came before the Court on defendant's pretrial motion to dismiss on the ground that the Government's delay in prosecuting the case violated the mandate of 50 U.S.C.A. App. § 462 (c) for an expeditious prosecution of Selective Service cases. Defendant was indicted on December 19, 1973, in a one-count indictment charging him with unlawfully, knowingly and wilfully failing and neglecting to perform a duty required of him under the Selective Service Act of 1967, i. e., performing civilian work contributing to the national health, safety or interest. The record before the Court and defendant's own testimony at the hearing on defendant's motion reveal that in 1970 defendant was classified as a conscientious objector by his local draft board and. pursuant to 50 U.S.C.A. App. § 456(j), was ordered to perform 24 months of civilian work contributing to the national health, safety or interest.
Defendant, through his own effort, found suitable alternative civilian work at the Metropolitan State Hospital in Waltham, Massachusetts. He commenced employment there on November 4, 1970, but did not obtain Selective Service approval of the job as being in the national health, safety or interest until December 14, 1970, from which date defendant was credited with meeting his Selective Service obligation.
On April 4, 1971, defendant terminated his employment at the Metropolitan State Hospital. On April 15, 1971, the Hospital notified the Massachusetts State Selective Service Headquarters of defendant's departure from this position. On April 19, 1971, the State Selective Service Headquarters sent a written inquiry to defendant concerning the reason for his terminating his civilian job without authorization. On May 19, 1971, defendant sent a written reply requesting reassignment. On May 25, 1971, and again on July 14, 1971, the State Selective Service Headquarters sent letters to defendant requesting information regarding his prospective civilian employment.
Defendant testified that after he left the Metropolitan State Hospital he went to the State Selective Service Headquarters at the JFK Federal Building in Boston and personally spoke to Edward Hill of the Selective Service Headquarters. During the conversation, the possibility of defendant's opening a non-profit community food store to meet his Selective Service obligation was raised. Hill told defendant, according to defendant's testimony, that he was aware of one conscientious objector who was meeting his civilian Selective Service obligation by working in a similar food store in New Hampshire. Defendant testified that Hill suggested that he start such a store *518 and apply to Selective Service for approval. Defendant also consulted the Cambridge Ministry of Higher Education, an organization which the Selective Service officially approved to supervise conscientious objectors. Defendant testified that he knew at this time that future contacts with the Selective Service would be necessary, although the record does not reveal any further efforts by defendant to clarify his status.
On July 2, 1971, defendant started a non-profit food store which, according to his testimony, he thought was a suitable job in which to fulfill his obligation, based on his conversation with Hill. Defendant stated that his income during the time he operated the store was $2,000 and that he sold his equity in a house in Hiram, Maine, to pay debts he was otherwise unable to meet due to a lack of sufficient income.
On August 23, 1972, the State Selective Service Board wrote to defendant assigning him to work at the Massachusetts General Hospital in Boston, commencing August 31, 1972, to complete his obligation. On October 5, 1972, the State Selective Service Headquarters was informed that defendant had not reported and on October 6, 1972 the United States Attorney was notified of the alleged violation, 18 months after the original notice to the State Selective Service Headquarters that defendant had terminated his employment with the Metropolitan State Hospital.
On March 20, 1973, the Assistant U. S. Attorney assigned to the case requested that the FBI investigate the case. On May 18, 1973, defendant was interviewed by FBI agents and informed them that he would not report to Massachusetts General Hospital to complete his obligation. Thereafter, defendant found regular civilian employment in the real estate business at a salary of approximately $10,000 a year.
On July 21, 1973, the Assistant U. S. Attorney requested copies of relevant Selective Service documents. The copies of the documents were received by the Assistant U. S. Attorney three months later, on October 11, 1973. On December 10, 1973, the Assistant U. S. Attorney spent one day reviewing the documents and decided that the case should be presented to the grand jury. On December 19, 1973, 14 months after the Assistant U. S. Attorney was notified by the State Selective Service Headquarters of defendant's alleged violation of the Selective Service laws and 32 months after the State Selective Service Headquarters was originally notified of the alleged violation, the case was presented to the grand jury and the indictment was returned.
The provision of the Selective Service Act of 1967 which is concerned with offenses and penalties and under which defendant was indicted unequivocally states:
"The Department of Justice shall proceed as expeditiously as possible with a prosecution under this section, or with an appeal, upon the request of the Director of Selective Service System or shall advise the House of Representatives and the Senate in writing the reasons for its failure to do so." (50 U.S.C.A. App. § 462(c).)
Additionally, § 462(a), in part, provides that:
"Precedence shall be given by courts to the trial of cases arising under this title, and such cases shall be advanced on the docket for immediate hearing, and an appeal from the decision or decree of any United States district court or United States court of appeals shall take precedence over all other cases pending before the court to which the case has been referred."
This statutory language has been construed as requiring defendants to be brought to trial thereunder faster than would be constitutionally mandated by the Sixth Amendment. United States v. Dyson, 469 F.2d 735, 738 (5 Cir. 1972); United States v. Daneals, 370 F.Supp. 1289, 1300 (W.D.N.Y.1974). Further, the time to measure the delay is not restricted to post-indictment delay as are *519 Sixth Amendment cases, United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), but begins with the referral of the case for prosecution to the United States Attorney by the State Selective Service Headquarters. United States v. Daneals, supra, 370 F. Supp. at 1299-1300.
Thus, the question for the Court is whether, considering that the case was referred to the United States Attorney by the State Selective Service Headquarters on October 6, 1972, the ensuing 14-month delay until the indictment was returned violated the mandate of § 462(c) that the Department of Justice proceed as expeditiously as possible with prosecution.
Sixth Amendment standards for a speedy trial are not controlling here, in light of the more stringent requirement of § 462(c) and the fact that the Sixth Amendment's right to a speedy trial does not attach to pre-indictment delay. Nevertheless, an analogy may be made to the constitutional standards in the absence of clear statutory guidelines, keeping in mind that the maximum delay allowable under the statute would fall short of the minimum delay which would raise a Sixth Amendment problem. United States v. Dyson, supra, 469 F.2d at 739. Additional reference may be made to Rule 48(b), F.R.Crim.P., which vests discretion in the Court to dismiss an indictment for unnecessary delay in presenting a charge to the grand jury and which imposes a more stringent standard than the Sixth Amendment. See United States v. DeLeo, 422 F.2d 487, 495 (1 Cir. 1970), cert. denied 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648; United States v. Cartano, 420 F.2d 362, 363 (1 Cir. 1970), cert. denied 397 U.S. 1054, 90 S.Ct. 1398, 25 L.Ed.2d 671. Since Rule 48(b) is addressed to "unnecessary delay," while § 462(c) affirmatively commands prosecution "as expeditiously as possible," the statutory standard must be considered stricter than the standard contained in Rule 48 (b).
In determining whether a defendant's Sixth Amendment right to a speedy trial has been violated, the Supreme Court has set down four factors to be considered: (1) the length of the delay; (2) the reason for the delay; (3) defendant's assertion of his right; and (4) prejudice to defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Similar considerations are to be weighed in deciding a Rule 48(b) motion, see Fleming v. United States, 378 F.2d 502, 504 (1 Cir. 1967); United States v. Frost, 431 F.2d 1249, 1251 (1 Cir. 1970), cert. denied 401 U.S. 916, 91 S.Ct. 896, 27 L.Ed.2d 817, although under Rule 48(b) the defendant is not required to carry as strong a burden as in a Sixth Amendment claim. United States v. Navarre, 310 F.Supp. 521, 522 (E.D.La.1971). Defendant clearly has asserted his right and, because of the nature of Selective Service cases and, additionally, his testimony regarding his economic difficulties during the period of Government inaction, he has established a prima facie case of prejudice. United States v. Dyson, supra, 469 F.2d at 741; United States v. Daneals, supra, 370 F.Supp. at 1300. Thus, this Court is left only to weigh the length of the delay and the reasons therefor. See generally, Dickey v. Florida, 398 U.S. 30, 51-52, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (Brennan, J., concurring).
An analysis of the 14-month delay reveals that it took five and one-half months after receipt of notification from State Selective Service Headquarters of defendant's alleged violation for the Assistant U. S. Attorney to request an FBI investigation on March 20, 1973. Two months elapsed before the FBI personally interviewed defendant. Nine months after the October 6, 1972 notification and two months after the FBI interview, the Assistant U. S. Attorney finally requested relevant documents from the State Selective Service Headquarters. Another four and one-half months passed until, on December 10, 1973, the Assistant U. S. Attorney conducted a oneday *520 review of the documents and decided to present the case to the grand jury. Nine days later, the case was presented and defendant was indicted.
Selective Service Act cases, such as the instant case, are generally simple and unsophisticated. United States v. Dyson, supra, 469 F.2d at 740; United States v. Daneals, supra, 370 F.Supp. at 1300; United States v. Rutkowski, 337 F.Supp. 340 (E.D.Pa.1971). Documentary evidence alone may often carry the Government's burden. United States v. Daneals, supra, 370 F.Supp. at 1300. See, e. g., United States v. Lavin, 480 F.2d 657 (2 Cir. 1973). The Assistant U. S. Attorney stated in his affidavit that he reviewed the case in one day in deciding to prosecute. A mere nine days thereafter, the instant case, and 39 other cases, were presented to the grand jury. The 14-month delay, in light of the simple nature of the case and without justification, violates the expeditiousness requirement of § 462(c). The additional 18 months that the State Selective Service Headquarters held the case after the notice of defendant's leaving the job at Metropolitan State Hospital and before referral of the case to the United States Attorney, while not specifically governed by § 462(c), certainly aggravates the situation and supports defendant's prima facie case of prejudice. It emphasizes the fact that the purpose of the statute, to bring Selective Service violators to the bar of justice as rapidly as possible, was violated. Cf., Sanchez v. United States, 341 F.2d 225, 228 n. 3 (9 Cir. 1965), cert. denied 382 U.S. 856, 86 S.Ct. 109, 15 L.Ed.2d 94; United States v. Blauner, 337 F.Supp. 1383, 1390 (S.D.N.Y.1971), which held that pre-indictment delays may have a bearing on whether a defendant's Sixth Amendment right to a speedy trial has been violated.
Thus, we are left to examine the Government's reasons for the delay. The Government, in the Affidavit of the Assistant U. S. Attorney who handled the case at the time of the delay in question, says that the delay was produced by a heavy case load, a crowded court docket in this district, and the careful and painstaking procedure followed in Selective Service cases. I find that such factors, while undeniably relevant, do not justify non-compliance with an express statutory directive. The Government has the resources to overcome such problems and its failure to do so should not be held against defendant Mr. Justice Brennan, concurring with the Supreme Court's opinion in Dickey v. Florida, supra, discussed permissible reasons for Government delay under Sixth Amendment standards:
"Perhaps the most important reason for the delay of one criminal prosecution is to permit the prosecution of other criminal cases that have been in process longer than the case delayed. But surely even this objective cannot justify interminable interruption of a prosecution."
Id. 398 U.S. at 52, 90 S.Ct. at 1576. Justice Brennan went on to quote the following language from King v. United States, 105 U.S.App.D.C. 193, 195, 265 F.2d 567, 569 (1959):
"[C]ases have to take their turn. The case on trial is entitled to deliberate consideration; the others on the calendar stack up. At the same time, too much heed to practicalities may encroach upon the individual's rights. If the legislature were to refuse to install sufficient judicial machinery to perform the judicial tasks, it might be necessary to turn some accused persons loose." (Emphasis added.)
Id., n. 18, 90 S.Ct. at 1576.
Under the more stringent requirement of § 462, whereunder the Justice Department and the Courts are commanded to give first priority to the expedition of Selective Service cases, Justice Brennan's limitation on amount of allowable delay due to a heavy prosecutorial caseload and crowded court dockets strongly undercuts the Government's argument in the instant case. It should be noted that the cases cited by the Government, some *521 of which involve longer delays than 14 months, are not controlling because all of them were decided under Sixth Amendment speedy trial standards and not § 462.
I therefore rule that the Government's prosecution of this case was not conducted as expeditiously as possible as mandated by § 462(c) and that defendant has been prejudiced thereby. Accordingly, it is
Ordered that defendant's motion to dismiss be, and it hereby is, granted.
|
47 F.3d 1172
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Carl WIRGAU, Nancy Vrooman, Defendants-Appellants.
Nos. 94-1206, 94-1258.
United States Court of Appeals, Sixth Circuit.
Feb. 14, 1995.
Before: ENGEL, KENNEDY and SUHRHEINRICH, Circuit Judges.
PER CURIAM.
1
Defendants, Carl Wirgau and Nancy Vrooman, both pled guilty to conspiracy to possess and distribute drugs in violation of 21 U.S.C. Sec. 846. On appeal, they both challenge their sentences. Wirgau argues that the District Court improperly computed the drug quantities personally attributable to him, while Vrooman argues that the District Court erred in assigning her a two-point enhancement for being a leader or organizer. We affirm.
I.
2
With the assistance of a confidential informant, the Michigan State Police investigated a drug conspiracy in Alpena, Michigan, involving, among others, Gary McDonald, Nancy Vrooman, and Carl Wirgau. McDonald was the apparent head of the conspiracy. Vrooman, McDonald's girlfriend, and Wirgau, a close friend of McDonald's, were both involved in some of the undercover and controlled buys made during the course of the investigation.
3
Between July 1992 and May 1993, Vrooman repeatedly sold drugs both to the confidential informant and to the undercover officer involved in the investigation. She also occasionally coordinated the flow of information between various co-conspirators and either the informant or the officer. On March 5, 1993, the officer went to Vrooman's house and sought to purchase a quantity of methamphetamine. Vrooman left the room, and, while the officer was waiting, a man identified as Todd Shafto entered the room. Vrooman returned holding a revolver and a towel behind her back. She demanded that the officer remove his clothes to prove he was not wearing a body wire. The officer asked Shafto about his role in the transaction, and Shafto responded that he was there to make sure the deal was completed in an acceptable manner. The officer refused to comply with Vrooman's demands and left without purchasing any drugs.
4
Wirgau's primary involvement in this case came in May 1993. On May 2, 1993, the confidential informant went to McDonald's motorcycle garage to discuss the possibility of purchasing one ounce of methamphetamine. McDonald indicated that he was going out of town and would not be able to deliver the drugs. At that point, McDonald involved Wirgau in the conversation and arranged for Wirgau to obtain and deliver the drugs.
5
During the conversation, the informant also raised the possibility of purchasing one half pound of methamphetamine. McDonald and Wirgau indicated that they would have no problems obtaining that quantity of the drug, but that the purchase price would be $10,000. The informant agreed to the price, and the men arranged the details of the transaction. Three days later, on May 5, the confidential informant made telephone contact with Wirgau. Wirgau reported that he had only two ounces of methamphetamine to sell. The informant told Wirgau that he only had enough money to purchase one ounce. The two men arranged to meet, but Wirgau never showed up, apparently due to car trouble.
6
On May 21, 1993, officers from the Presque Isle County Sheriff's Department arrested Wirgau pursuant to a federal warrant. At the time of his arrest, Wirgau had in his possession 1.231 grams of methamphetamine and 5.7 grams of marijuana.
II.
A. Wirgau
7
At sentencing, the District Court held Wirgau responsible for the one ounce and one half pound of methamphetamine discussed on May 2, for the "additional" one ounce of methamphetamine offered for sale on May 5,1 and for the drugs he possessed at the time of his arrest. On appeal, Wirgau contends that the District Court erred in calculating the quantity of drugs for which he can be held responsible.
8
In support of his contention, Wirgau first argues that the District Court did not address the scope of the activity he agreed to undertake with respect to the conspiracy. In calculating the sentencing guideline range applicable to a particular defendant "in the case of jointly undertaken criminal activity," a district court is to consider "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." U.S.S.G. Sec. 1B1.3(a)(1)(B). Here, Wirgau was personally involved with all the drug quantities for which he was held responsible. Thus, there was no need for the sentencing court to make explicit findings as to whether Wirgau could "reasonably foresee" these acts.
9
Wirgau next argues that the District Court should not have found him responsible for the one half pound of methamphetamine discussed on May 2. According to Wirgau, he was not part of that discussion and had no knowledge of the one half pound. It is "the sentencing judge [who] had the prerogative to make a determination of the quantity of drugs involved in the scheme and to sentence accordingly." United States v. Moreno, 899 F.2d 465, 473 (6th Cir.1990). A district court's finding on quantity is governed by a preponderance of the evidence standard. Id.
10
In response to Wirgau's written objection to the presentence report (PSR), and in response to the same objection at the sentencing hearing, the probation officer responsible for preparing the PSR stated that Wirgau had admitted responsibility to her for the one half pound of methamphetamine. After reviewing the evidence, the District Court found that the discussion regarding the one half pound did occur and that Wirgau participated in the conversation.
11
Wirgau first attacks this finding by pointing out that the one half pound is an abnormally large quantity of methamphetamine compared to the other quantities he possessed. He also argues that the confidential informant was not reliable for a variety of reasons. Both of these argument were presented to the District Court, which weighed the arguments and concluded that the quantities found were supported by a preponderance of the evidence. We cannot say that conclusion is clearly erroneous.
12
Wirgau next attacks the District Court's findings by arguing that the sale of one half pound never took place. This argument is irrelevant. It is clear from the context of the conversation on May 2 that McDonald and Wirgau were willing and able to procure and sell this quantity of methamphetamine. That is all the law requires.
B. Vrooman
13
The probation officer preparing Vrooman's PSR recommended that Vrooman be assessed a two point offense level enhancement based on her role as a leader or organizer in the conspiracy. In support of this recommendation, the probation officer pointed to Vrooman's role in negotiating various drug deals, her ability to arrange for others to deliver drugs on behalf of the conspiracy, and her use of Todd Shafto as an enforcer during the March 5 transaction. The District Court accepted the recommendation. Vrooman contends this decision was in error, as she did not possess the mental capacity to be a leader or organizer of the conspiracy.
14
The government contends that Vrooman should be barred from raising this issue now, as she did not raise it below. We need not decide this issue, as it is clear that the District Court's decision to assess the enhancement was not clearly erroneous. The Sentencing Guidelines provide that "[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity [involving less than five participants], increase [the offense level] by 2 levels." U.S.S.G. Sec. 3B1.1(c). The application notes following this provision state that
15
[t]o qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization.
16
U.S.S.G. Sec. 3B1.1, comment. (n. 2). The facts set forth in the PSR are sufficient to meet this standard. Vrooman's drug addiction and other mental impairments may have prevented her from playing an effective supervisory role, but they did not completely prevent her from operating in such a capacity.
III.
17
For the foregoing reasons, we AFFIRM the District Court with respect to both sentences.
1
The record contains no discussion of why the one half pound transaction never occurred. The presentence report and the District Court's findings seem to imply that the May 5 transaction was supposed to be the culmination of the deal arranged on May 2. If this is true, then it seems that the Court may have double-counted when it assigned Wirgau responsibility for both the one half pound and the "additional" one ounce offered on May 5. Nevertheless, this extra one ounce did not affect the sentence calculation, and Wirgau has not raised this issue on appeal, so we will not address it further
|
350 S.W.2d 47 (1961)
L. J. (El J.) WARE, Appellant,
v.
TEXBORO CABINET CORPORATION, Appellee.
No. 7338.
Court of Civil Appeals of Texas, Texarkana.
September 26, 1961.
Rehearing Denied October 17, 1961.
*48 J. Carroll McConnell, Fort Worth, for appellant.
Ungerman, Hill, Ungerman & Angrist, Dallas, for appellee.
FANNING, Justice.
Texboro Cabinet Corporation, as plaintiff, in the County Court at Law, No. 1, of Dallas County, Texas, sued L. J. Ware, as defendant, upon a sworn account in the amount of $408 and also sued for a reasonable attorney's fee. Defendant's plea of privilege was stricken on motion of plaintiff and summary judgment for the amount of the account ($408) and an attorney fee of $175, aggregating the sum of $583, was rendered by the trial court in favor of plaintiff against defendant. Defendant has appealed.
Appellant contends, among other things, that the trial court erred in not sustaining his plea of privilege and erred in rendering a summary judgment against him. Appellee counters contending that the plea of privilege was waived and that the trial court did not err in striking the plea on motion of appellee, and further contends that the trial court correctly rendered the summary judgment.
The suit was filed July 6, 1960, and defendant L. J. Ware was duly served with citation on August 6, 1960. On August 15, 1960, defendant L. J. Ware, through his attorney of record, filed in the cause an instrument denominated "Defendant's Original Answer", which, (omitting caption and attorney's signature) reads as follows:
"Now Comes L. J. Ware, the Defendant, in the above numbered and entitled cause and specially excepts to Plaintiff's Petition in said cause, and says same is insufficient and that same should be dismissed and will be necessary to file a Plea of Privilege.
For Further Answer the Defendant denies each and all of the allegations in said Petition."
On August 31, 1960, plaintiff filed a motion for summary judgment which the trial court set for hearing for September 16, 1960. On September 16, 1960, defendant, stating that his name was E. J. Ware, filed a plea of privilege in statutory form to be sued in Palo Pinto County, Texas, the county of his residence. (The plea was not controverted by plaintiff but plaintiff instead later filed a motion to strike the plea of privilege). Also on September 16, 1960, defendant, stating that his name was El J. Ware, filed another answer, insisting on his plea of privilege, denying the account and contending that he was entitled to at least a $250 offset for a drill. While this answer was sworn to it appears to us that the averments in the main are couched in rather general terms and constitute in some instances conclusions of the pleader. For *49 a fuller description of this pleading we respectfully refer to the transcript. Also on Sept. 30, 1960, defendant filed a motion that his plea of privilege be sustained.
On October 4, 1960, plaintiff filed a request for admissions under Rule 169, Texas Rules of Civil Procedure, which was properly and timely served upon the attorney of record for defendant. This request for admissions was not answered by defendant within the time provided by Rule 169, T.R.C.P.
On October 28, 1960 plaintiff filed an affidavit in support of its motion for summary judgment, which affidavit avers to the effect that the $408 account was just, correct, due and owing by defendant to plaintiff and that "said account is not entitled to any offsets, credits or allowances". Defendant did not respond to this affidavit by filing any counter-affidavit or affidavits denying said affidavit filed by plaintiff. Nor did defendant answer the request for admissions, the truth of which (if admitted) would amply make out a case for plaintiff against defendant. Defendant did not file any depositions or come forward with any character of evidentiary matter to support his pleadings in defense and in his claim for an offset to the account.
On October 31, 1960, the trial court granted plaintiff's motion to strike the plea of privilege, granted plaintiff's motion to deem the requests for admissions as admitted, granted plaintiff's motion for summary judgment for the $408 account and allowed the sum of $175 as a reasonable attorney's fee, and rendered judgment in favor of plaintiff and against defendant in the total sum of $583 and court costs with the judgment bearing 6% interest from date of judgment.
We hold that defendant by filing his above quoted original answer of August 15, 1960 waived his plea of privilege thereafter filed on September 16, 1960 and that the trial court did not err in striking the plea of privilege. In this connection see the following authorities: Rules 84 and 85, T.R.C.P.; Foster v. H. O. Wooten Grocer Company, Tex.Civ.App., 273 S.W. 2d 461; Collins v. Land, Tex.Civ.App., 213 S.W.2d 265; Kline v. Weaver, Tex.Civ. App., 348 S.W.2d 379; Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119. See also Texas Digest Complete, Vol. 37A, Venue 17.
We also hold that the trial court correctly sustained the motion of plaintiff for summary judgment on the account. Plaintiff's request for admissions (which made out a case if admitted) were not answered or denied and plaintiff's affidavit filed in connection with the motion for summary judgment (which also made out a case for plaintiff if not denied) was not denied or countered by any affidavit from defendant, or by any deposition. Nor was any other evidentiary matter brought forward by defendant in the hearing on the motion for summary judgment. See the following authorities: Kilsby v. Aero-Test Equipment Co., Tex.Civ.App., 301 S.W.2d 703 err. ref. N.R.E.; Pure Oil Co. v. Fowler, Tex.Civ.App., 302 S.W.2d 461, wr. ref, N.R.E.; Sparkman v. McWhirter, Tex.Civ. App., 263 S.W.2d 832, wr. ref.; Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492; Kuper v. Schmidt, Tex., 338 S.W.2d 948; LeMond & Kreager, The Scope of Pleading in Summary Judgment, 30 Tex.Law Review, pp. 613-622. Also in this connection see McDonald, Texas Civil Practice, Vol. 4, Cumulative Supplement, p. 43, wherein it is stated:
"* * * Where a party's motion for summary judgment has support in extrinsic evidence which will sustain his contention that there is no genuine issue of fact, the opponent should be required to come forward with more than a mere pleading denial, even a sworn one, in order to overcome the force of the motion. * * *"
*50 Appellant's other points and contentions have been carefully considered, are deemed as not presenting error under the record in this case and are overruled.
The judgment of the trial court is affirmed.
|
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-88,357-01
IN RE GONZALO ROBLES CESENA, Relator
ON PETITION FOR A WRIT OF MANDAMUS
IN CAUSE NOS. 00475441 & 00475442
IN THE MUNICIPAL COURT FOR THE CITY OF CARROLLTON
FROM DALLAS COUNTY
Per curiam.
ORDER
Relator filed a petition for a writ of mandamus, pursuant to the original jurisdiction of this
Court. The petition requests that we issue a writ of mandamus in the underlying cases, ordering the
district court to order the city attorney’s office to provide electronic duplicates of videos in the above
actions.
This Court held the application in abeyance, ordered a stay in the underlying proceedings,
and ordered the respondent to file a response. Relator has now filed a motion to dismiss the
application, stating that the City has provided the videos in these cases. Relator also asks this Court
2
to award him attorney’s fees.
The stay in these cases is lifted and the motion for leave to file a petition for a writ of
mandamus is denied. All other relief is also denied.
Filed: June 27, 2018
Do Not Publish
|
Citation Nr: 1725270
Decision Date: 06/26/17 Archive Date: 07/18/17
DOCKET NO. 12-30 402 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia
THE ISSUES
1. Whether new and material evidence has been received to reopen the Veteran's claim for service connection for tonsillectomy residuals and, if so, whether service connection is warranted.
2. Whether new and material evidence has been received to reopen the Veteran's claim for service connection for an upper respiratory infection, rhinitis, and/or pneumonia and, if so, whether service connection is warranted.
3. Entitlement to service connection for a heart disorder.
4. Whether new and material evidence has been received to reopen the Veteran's claim for service connection for palatal gingiva pseudo-epitheliomatous hyperplasia and, if so, whether service connection is warranted.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
J. E. Miller, Associate Counsel
INTRODUCTION
The Veteran served in the U.S. Army from October 1974 to October 1994.
A total rating based on individual unemployability is effective January 2011.
This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2012 decision of the Roanoke, Virginia, Regional Office (RO). In July 2016, the Veteran was afforded a hearing at the VA Central Office before the undersigned Veterans Law Judge. A hearing transcript is in the record.
The Veteran filed a motion to advance his case on the docket in April 2017. Because the Board is deciding this case at the present time, a decision on the Veteran's motion is moot.
As to the issue of whether new and material evidence has been received to reopen the Veteran's claims, the Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claims without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
The issue of service connection for diabetes mellitus has been raised by the record in the July 2016 Board hearing transcript, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016).
The issues of service connection for a heart disorder and whether new and material evidence has been received to reopen the Veteran's claim for service connection for palatal gingiva pseudo-epitheliomatous hyperplasia and, if so, whether service connection is warranted are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.
FINDINGS OF FACT
1. At the July 2016 Board hearing, the Veteran expressly withdrew his substantive appeal as to the issue of whether new and material evidence has been received to reopen his claim for service connection for tonsillectomy residuals and, if so, whether service connection is warranted.
2. At the July 2016 Board hearing, the Veteran expressly withdrew his substantive appeal as to the issue of whether new and material evidence has been received to reopen his claim for service connection for an upper respiratory infection, rhinitis, and/or pneumonia and, if so, whether service connection is warranted.
3. In August 2004, VA denied service connection for palatal gingiva pseudo-epitheliomatous hyperplasia. The Veteran was informed in writing of the adverse determination and his appellate rights at that time. The Veteran did not subsequently submit a notice of disagreement (NOD) with the decision.
4. The August 2004 rating decision is final.
5. The additional documentation submitted since the August 2004 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the appeal by the Veteran as to the issue of whether new and material evidence has been received to reopen the Veteran's claim for service connection for tonsillectomy residuals and, if so, whether service connection is warranted have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016).
2. The criteria for withdrawal of the appeal by the Veteran as to the issue of whether new and material evidence has been received to reopen the Veteran's claim for service connection for an upper respiratory infection, rhinitis, and/or pneumonia and, if so, whether service connection is warranted have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016).
3. The August 2004 rating decision denying service connection for palatal gingiva pseudo-epitheliomatous hyperplasia is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2016).
4. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for palatal gingiva pseudo-epitheliomatous hyperplasia has been presented. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Issues Withdrawn
At the July 2016 Board hearing, the Veteran expressly withdrew his substantive appeal as to the issues of whether new and material evidence has been received to reopen his claims for service connection for tonsillectomy residuals and for an upper respiratory infection, rhinitis, and/or pneumonia and, if so, whether service connection is warranted.
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2016). Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran withdrew these issues on appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claims and they are dismissed.
II. Palatal Gingiva Pseudo-Epitheliomatous Hyperplasia
Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103.
A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
In August 2004, VA denied service connection for palatal gingiva pseudo-epitheliomatous hyperplasia because "treatable carious teeth, replaceable missing teeth, and normal dental work such as you have claimed are not conditions for which service connection for compensation purposes may be granted." The Veteran was informed in writing of the adverse decision and did not submit an NOD.
New and material evidence pertaining to the issue of service connection for palatal gingiva pseudo-epitheliomatous hyperplasia was not received by VA or constructively in its possession within one year of written notice to the Veteran of the August 2004 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b).
The additional documentation received since the August 2004 rating decision includes the Veteran's July 2016 Board hearing testimony where the Veteran stated that he has had ongoing dental treatment for his disorder, which has included bone loss.
When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet.App. 510 (1992). Here, without examination of any other evidence of record, the newly-submitted evidence is of such significance that, when considered for the limited purpose of reopening the Veteran's claim, it raises a reasonable possibility of substantiating his claim for service connection when considered with the previous evidence of record. As new and material evidence has been received, the Veteran's claim is reopened.
ORDER
The appeal of the issue of whether new and material evidence has been received to reopen the Veteran's claim for service connection for tonsillectomy residuals and, if so, whether service connection is warranted is dismissed.
The appeal of the issue of whether new and material evidence has been received to reopen the Veteran's claim for service connection for an upper respiratory infection, rhinitis, and/or pneumonia is dismissed.
The Veteran's application to reopen his claim of entitlement to service connection for palatal gingiva pseudo-epitheliomatous hyperplasia is, and to this extent only, the appeal is granted.
REMAND
Remand is necessary to obtain VA treatment records and Social Security Administration (SSA) records. The case is REMANDED for the following action:
1. Associate with the record any VA clinical documentation not already of record pertaining to the treatment of the Veteran for a heart disorder and for palatal gingiva pseudo-epitheliomatous hyperplasia, including any records from Dr. J. Bruzzese and any dental treatment records from McGuire VA Medical Center.
3. Contact the SSA and request that it provide documentation of the Veteran's award of disability benefits and copies of all records developed in association with the decision for incorporation into the record.
4. After the above records have been associate with the Veteran's file, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
|
658 F.2d 480
Carolyn J. SHARP, Plaintiff-Appellant,v.Calvin E. EGLER and Bill Hanka Auto Sales, Inc., d/b/aClarksville Auto Mart, Defendants-Appellees.
No. 80-2650.
United States Court of Appeals,Seventh Circuit.
Argued May 13, 1981.Decided Aug. 25, 1981.
David V. Scott, New Albany, Ind., for plaintiff-appellant.
Richard T. Mullineaux, New Albany, Ind., for defendants-appellees.
Before SWYGERT, Senior Circuit Judge, BAUER, Circuit Judge, and NICHOLS, Judge.*
SWYGERT, Senior Circuit Judge.
1
Plaintiff-appellant Carolyn J. Sharp appeals from an order of the United States District Court for the Southern District of Indiana, which dismissed upon summary judgment her personal injury action against defendants-appellees Calvin E. Egler and Bill Hanka Auto Sales, Inc., d/b/a Clarksville Auto Mart. We reverse the judgment of the district court.
2
* This tort action arises out of a one-automobile collision that occurred on October 15, 1978 in New Albany, Indiana. At the time of the accident, Sharp was traveling as a passenger in the front seat of an automobile driven by Egler. Sharp, a resident of Kentucky, and Egler, a resident of Indiana, had been seeing each other socially for a few months prior to the accident. On the night of the accident, the two had been attending a party in Louisville, Kentucky. After spending several hours at the party, at which both drank alcohol the two left the party. Sharp and Egler differ as to what their plans were on leaving the party. Sharp stated that they were going to go downtown and then return to the party, as she was spending the night with her hosts. Egler stated that they planned to go to his parents' home in Indiana to spend the night.
3
Egler's recollection of the evening after leaving the party with Sharp was that they drove to downtown Louisville, stopped at a bar, had a drink, then left for his parents' home in Indiana around 4:00 a. m. Egler took his usual route back from Kentucky to Indiana. As the car traveled down Spring Street in New Albany, it left the traveled portion of the roadway, sideswiped a utility pole, and proceeded to run head-on into a tree. This portion of Spring Street was straight and level, and there were no physical obstructions to the view of the tree. Neither Egler nor Sharp remember the accident or the circumstances leading up to it, except that Egler does remember that just before the accident Sharp gave him a kiss.
4
The car was totally destroyed. Sharp and Egler were pinned inside the car, and both were severely injured in the crash. Sharp alleges that she sustained the following injuries: crushed and shattered facial bones, both jaws broken, a pelvic fracture, and a hip broken in three places. As of December 1979, her medical expenses were in excess of $13,000, and she has had additional surgery since that time. She has not been able to work since the accident.
5
In her original complaint filed on March 29, 1979, Sharp sought damages for the personal injuries, which totalled $750,000. The complaint alleged that defendant Egler had been negligent and ran the car into the tree causing her injuries. Sharp later amended her complaint to include Bill Hanka Auto Sales, Inc. (Hanka Auto Sales) as a party-defendant under the theory of respondeat superior. The amended complaint alleged that the car driven by Egler, a 1977 Trans Am Pontiac, was owned by defendant Hanka Auto Sales and that Egler as an employee of Hanka Auto Sales was acting within the course and scope of his employment while driving its car the night of the crash.
6
On November 15, 1979, Egler filed the first of two motions for summary judgment. In his first motion Egler argued that Indiana law and not Kentucky law should be applied, and that plaintiff's allegations of negligence were insufficient under the Indiana guest statute.1 The district court agreed and dismissed Sharp's motion without prejudice for failure to state a claim upon which relief may be granted. Thereafter, plaintiff filed a second amended complaint against the defendants alleging that the accident was the result of Egler's wilful or wanton misconduct.
7
The defendants filed a second motion for summary judgment. This motion argued that defendant Hanka Auto Sales was not liable for the acts of Egler, as he was not acting as its agent or employee at the time of the accident, and also that there was no proof that the actions of Egler were wilful or wanton as required under the Indiana guest statute. Granting the defendants' motion on October 22, 1980, the district court found that Sharp was a "guest" passenger within the meaning of the Indiana guest statute, and that she was unable to present sufficient evidence to show that Egler's activities amounted to wanton or wilful misconduct as defined by the statute. The court also held that Hanka Auto Sales, Egler's employer, would not be liable for Egler's actions, if they were tortious, as Egler was not acting within the scope of his employment at the time of the accident.
8
Sharp has appealed from both summary judgments of the district court. She first contends that the district court in its order of March 4, 1980 wrongfully concluded that Indiana law, which has a guest statute, and not Kentucky law, which has no guest statute, is applicable. She concedes that if Indiana law is applicable, her cause of action falls within Indiana's guest statute. Sharp also contends that it was error for the district court to find that she had not offered sufficient proof of Egler's wanton or wilful misconduct and that Hanka Auto Sales was free of liability under the theory of respondeat superior.
9
We hold that Indiana law is the applicable law in this case and that Sharp's cause of action falls within the Indiana guest statute. In addition, we agree with the district court that Hanka Auto Sales is not liable under the theory of respondeat superior. We believe, however, that Sharp has shown sufficient evidence of Egler's alleged wilful or wanton misconduct that a jury could reasonably find her entitled to damages even under the guest statute.
II
10
The district court applied the most significant contacts choice of law rule in deciding whether to apply Indiana or Kentucky substantive law.2 In so doing, the court relied on our decision in Watts v. Pioneer Corn Co., 342 F.2d 617 (7th Cir. 1965), in which we held Indiana's choice of law rule in the area of multistate torts to be the most significant contacts rule, even though prior to Watts every Indiana court had applied the rule of lex loci delicti, or "the place of the tort."
11
Although appellant only challenges the district court's choice of Indiana law and not the use of the most significant contacts rule, we note that there has been some confusion regarding Indiana's choice of law since our decision in Watts. Shortly after Watts, an Indiana appellate court did adopt the most significant contacts rule in a multistate tort case, Witherspoon v. Salm, 142 Ind.App. 655, 237 N.E.2d 116 (1968). Witherspoon was later reversed on other grounds, however, by the Supreme Court of Indiana, Witherspoon v. Salm, 251 Ind. 575, 243 N.E.2d 876 (1969). In reversing, the Indiana Supreme Court made the following disclaimer of the appellate court's choice of law holding: "Under our holding in this case, the question of what statute of limitations applies and which state's Indiana or Kentucky (sic), substantive law applies, are not involved in this case." Witherspoon, supra, at 878. This disclaimer resulted in confusion over the effect of the appellate court's decision in Witherspoon. One Indiana appellate court afforded no authority to the appellate court's decision to adopt the most significant contacts rule because of the Indiana Supreme Court's disclaimer. Horvath v. Davidson, 148 Ind.App. 203, 209, 264 N.E.2d 328, 337 (1970). Another Indiana appellate court, in a more recent opinion, completely ignored the Witherspoon decision, as it stated that Indiana has long followed the place of the tort rule in the area of multistate torts.3 Maroon v. State Dept. of Mental Health, Ind.App., 411 N.E.2d 404 (1980).
12
Even after the Indiana Supreme Court's disclaimer in Witherspoon, this court has continued to apply Watts. Motteler v. J. A. Jones Constr. Co., 457 F.2d 917 (7th Cir. 1972). In Bowen v. United States, 570 F.2d 1131 (7th Cir. 1978), we noted that the district court's application of the place of the tort rule was contrary to our decision in Watts but that the result would be the same even if the most significant contacts rule had been applied.
13
This case is not, however, the one to decide what continuing validity, if any, Watts has, for whether we apply the most significant contacts rule or lex loci delicti, the district court was correct in applying Indiana law. If the place of the tort rule had been used, Indiana law would still apply, since it is uncontested that the accident occurred in New Albany, Indiana.
14
Despite Sharp's contentions to the contrary, the same result applies if the most significant contacts rule is used. She argues that the district court failed to perform the proper evaluation of the state contacts involved, because it simply added up the "Indiana contacts without analyzing their relationship to the issue involved in the policies and interests of the states involved."4 She cites the appellate court decision in Witherspoon, supra, p. 124, which declared,
15
Neither should the mere numerical contacts with one state be balanced with those of another state. Each contact should be evaluated in light of collateral policy considerations and the particular state interests surrounding the rule of law.
16
Sharp is correct that the application of the most significant contacts rule involves more than simply adding up of contacts, but the district court did more than that here. In making its ruling, the court stated,
17
This court finds that Indiana substantive law applies in this case. It is undisputed that Egler is a resident of Indiana, that the accident occurred in Indiana, that the car was licensed in Indiana, that the car was owned by an Indiana corporation, and that the car was insured in Indiana. The State of Indiana clearly has the greater interest in establishing the rules by which this controversy is to be resolved.
18
These contacts with Indiana are significant.
19
Indiana has a great interest and concern in seeing that its guest statute is applied. The guest statute was designed in part to protect a resident host driver from guest passengers to whom he has shown his hospitality. Egler is a resident of Indiana and is a licensed driver in Indiana. The guest statute also seeks to protect insurance companies operating in Indiana from collusive lawsuits. Egler's car was insured in Indiana. In addition to these concerns directly related to the guest statute, Indiana has a direct interest in the operation of motor vehicles on its roads. The accident occurred on an Indiana road.
20
Indiana's interests in this litigation are not only significant but are overwhelming in comparison to Kentucky's interests. Sharp argues that Kentucky's interest in protecting its resident guest passengers is greater than Indiana's interest in protecting its resident host drivers, because it is Kentucky who may have to compensate and support the injured passenger if the host cannot be found liable of wanton or wilful misconduct.5 She also contends that her status as a guest passenger is more of a concern to Kentucky than Indiana, because the journey began in Kentucky and was to have ended there.6 Even if these interests can be considered concerns of Kentucky, they nonetheless are insufficient to outweigh Indiana's interests.
III
21
On appeal, Sharp also challenges the district court's ruling that she failed to come forward with sufficient evidence of wanton or wilful misconduct on the part of the appellee as required by the Indiana guest statute. The district court found that the only evidence Sharp presented that indicated wanton or wilful misconduct was the fact that appellee had been drinking prior to the accident. The district court concluded this was not enough evidence to show that Egler's conduct met the standards of wanton or wilful misconduct under Indiana law.
22
Indiana's courts have defined wanton or wilful misconduct as "the conscious and intentional doing of a wrongful act or omission of a duty, with reckless indifference to consequences, under circumstances which show that the doer has knowledge of existing conditions and that the injury will probably result." Brown v. Saucerman, 237 Ind. 598, 619, 145 N.E.2d 898, 907 (1957) (quoting Becker v. Strater, 117 Ind.App. 504, 506, 72 N.E.2d 580, 581 (1972)). The Indiana Supreme Court has held that
23
(T)he gravamen of an actionable guest act case that distinguishes it from actions not under its purview is the mental attitude of the host driver when the misconduct occurs. Such attitude with respect to both his driving and his guest must have been one adverse to the welfare of the guest.
24
Andert v. Fuchs, Ind., 394 N.E.2d 931 (1979). As the Indiana appellate courts note, "This does not mean that the wrongful conduct of the driver must be motivated by malice, ill will or intent to injure." Cheek v. Hamlin, 150 Ind.App. 681, 277 N.E.2d 620 (1972) (quoting Mazza v. Kelly, 147 Ind.App. 33, 258 N.E.2d 171 (1970)). Rather, it is sufficient that the appellee has been "motivated by a desire to assert himself or his interests above or beyond, or in reckless indifference for, the safety of his guests." Clouse v. Peden, 243 Ind. 390, 186 N.E.2d 1, 4 (1962) (quoting Judge Achon's concurring opinion in Brown v. Saucerman, 237 Ind. at 619). See also Fuller v. Wiles, 151 Ind.App. 417, 280 N.E.2d 59, 62 (1972).
25
The district court relied on the Indiana rule that "intoxication of a driver by itself is usually not evidence of 'wanton and wilful misconduct' within the meaning of the guest statute."7 Keck v. Kerbs, Ind.App., 395 N.E.2d 845, 849 (1979). But as the Indiana Supreme Court pointed out in Andert, supra,
26
(I)ntoxication, combined with evidence of other misconduct, such as speeding, driving on the wrong side of the road or violating other traffic regulations, heightens the inference of wilfullness or wantonness that may be drawn from such circumstances ....
27
394 N.E.2d at 934. Sharp has alleged enough evidence of other misconduct that, when combined with the fact that Egler had been drinking before leaving the party, a jury could reasonably infer wanton or wilful misconduct on the part of Egler.8
28
That evidence includes the following facts: Egler by his own admission was familiar with the route he was traveling that night; the car was traveling 35 to 40 miles per hour, according to him; the road was straight, level, and clearly marked; there were no obstructions to vision; and Egler had to drive off the road some distance to reach the tree he struck. These facts are similar to the facts found in Keck v. Kerbs, supra. In that case, an Indiana court of appeals reversed a circuit court's dismissal of a guest statute case. The court said,
29
(T)he evidence presented in the case at bar show a combination of factors possibly indicating wanton or wilful misconduct: consumption of alcohol shortly before the accident; underage drinking; excessive speed; familiarity with the blind section of the road; the short distance of approximately a mile between the Keck residence and the store; the guilty plea to driving while under the influence; and the police officers' observations. 395 N.E.2d at 850.
30
There is further probative evidence from the accident and the resulting injuries. In Morgan v. Reneer, 148 Ind.App. 90, 264 N.E.2d 71 (1971), an Indiana court wrote in a similar guest statute case,The extent of damage to the respective vehicles was evidence as to speed of appellant's automobile and also evidence of appellant's failing to keep a reasonable lookout and failing to have his automobile under reasonable control, such evidence and the inferences that a jury might reasonably draw therefrom are proper matters for the jury to consider in determining the acts of wanton misconduct as charged in appellee's complaint.
31
264 N.E.2d at 74. In the case at bar, there was a head-on collision with an immobile object, which only resulted after Egler had to drive the car off the road some distance and sideswipe a utility pole. Both parties were pinned inside the car and sustained severe injuries, from which Sharp continues to suffer.
32
All of these facts could lead a jury reasonably to find all three elements required to show wanton misconduct: first, that the driver was "conscious of his misconduct;" second, that he was "motivated by a desire to assert his interest above or beyond, or in reckless indifference for, the safety of his guests;" and third, that he did so "knowing that his conduct subjects them to a high degree of injury."9 Clouse v. Peden, 243 Ind. 390, 186 N.E.2d 1, 4 (1962).
IV
33
The district court also ruled that Hanka Auto Sales would not be liable for the acts of Egler, since he was not acting within the scope of his employment at the time of the accident. Indiana courts require that an employee involved in an accident must have been operating his car within the scope of his employment before his employer can be held liable under respondeat superior. Gibbs v. Miller, 152 Ind.App. 326, 329, 283 N.E.2d 592, 594 (1972). Sharp argues that there was enough evidence that Egler was acting within the scope of his employment to make the issue a factual one to be determined at trial. Egler was employed as a used-car salesman by Hanka Auto Sales, which did business as Clarksville Auto Mart, and the company owned the car Egler was driving the night of the accident. The car had on its back a small "Clarksville Auto Mart" sticker. The car was a used car, called a demonstrator, and Egler was allowed to drive it as such, but it showed no exterior sign it was for sale. Egler testified at his deposition that the company gave their salesmen cars for their own personal driving, until they were ready to be put on the lot. He said, "That's how we advertise our cars by driving it (sic), and we normally drive a fairly flashy car and it drew attention."
34
A central factor set out by Indiana courts for determining whether the servant was acting within the scope of his employment is whether the servant was "actuated to an appreciable extent by the purpose to serve the master." Gibbs, supra, 152 Ind.App. at 330, 283 N.E.2d at 595. In North Side Chevrolet, Inc. v. Clark, 107 Ind.App. 592, 25 N.E.2d 1011 (1940), a used-car salesman who was driving a demonstrator became involved in an accident. At the time of the accident the employee was using the car to reach a friend's home where he intended to spend the evening. The court held there that the drive was purely personal and in no way could be characterized as having been motivated by a purpose to serve the master. The similarity of North Side to the present case is obvious. Egler was using the car for his own purposes and was not attempting to sell or advertise the car for Hanka Auto Sales. In Indiana, it is not necessary that an employee's use of a car be exclusively for his employer's ends in order for that use to fall within the scope of his employment,10 but the mere placing of an ordinary dealer sticker on the back of the car did not amount to a sufficient benefit to the employer to make a drive home at 4:00 a. m. one within the scope of Egler's employment. All cars have such dealer stickers, and the public had no way of knowing the car was for sale.11 The district court was therefore correct in refusing to impose any vicarious liability on Egler's employer.
35
We remand this case to the district court for further proceedings consistent with this opinion.
36
Reversed And Remanded.
*
The Honorable Philip Nichols, Jr., Judge, United States Court of Claims, sitting by designation
1
The Indiana guest statute, I.C. 9-3-3-1, provides:
The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for a loss or damage arising from injuries to or death of a guest, while being transported without pay therefor, in or upon such motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle.
2
Under the Supreme Court's decision in Klaxton Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), federal courts in diversity of citizenship cases must follow the rules prevailing in the forum state when deciding choice of law questions
3
In a concurring opinion Judge Ratliff argues persuasively for the adoption of the "most significant contacts rule." In addition, he points out that while the appellate court's decision in Witherspoon may lack precedential value, "it clearly points the direction the appellate court wanted to go in rejecting lex loci delicti in favor of a more analytical approach." Maroon, supra, at 419
4
Appellant's Brief at p. 11
5
Kentucky law does not include a guest statute. In Kentucky a guest passenger is only required to prove the defendant's negligence, not his wilful or wanton misconduct as required by the Indiana guest statute
6
Egler's version of their plans for the evening are different. He said their plans were to go to his parents' home in Indiana for the evening
7
While we believe that drunk driving is so serious and dangerous an offense that it should amount to gross negligence, or wanton or wilful misconduct, we must accept the Indiana rule as it is
8
The rule in Indiana is that
the question as to whether the accident was caused by wanton or wilful misconduct of the defendant should be left to the jury in all cases where there is any conflict in the evidence or where different inferences from the testimony given (regarding the essential facts) might be reasonably drawn.
Clouse v. Peden, 243 Ind. 390, 186 N.E.2d 1, 5 (1972) (quoting Pierce v. Clemens, 113 Ind.App. 65, 46 N.E.2d 836, 839 (1943)).
9
In Sausaman v. Leininger, 237 Ind. 508, 146 N.E.2d 414 (1957), the Indiana Supreme Court said that the knowledge of the probability of injury is to be "measured by the standard with which reasonable men of ordinary intelligence are chargeable under the circumstances."
10
Great American Tea Co. v. Van Buren, 218 Ind. 462, 467, 33 N.E.2d 580, 581 (1941)
11
The district court held,
(A)lthough the advertising theory has appeal, Sharp has not come forward with proof of these allegations. There was no advertising on the TransAm, or on any of the Hanka cars Egler used, other than the normal Clarksville Auto Mart sticker on the back of the car. Anyone stopped behind Egler at a stoplight could have discovered that a demonstrator had come from Hanka's, but would not realize that the car was for sale unless he knew Egler was a Hanka salesman who was allowed to drive the unsold car.
Entry of District Court, dated October 22, 1980, p. 6.
|
Case: 12-12091 Date Filed: 11/19/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12091
Non-Argument Calendar
________________________
D.C. Docket No. 9:11-cv-81135-KLR
JUSSI K. KIVISTO,
Plaintiff-Appellant,
versus
ARMI KULMALA,
WELLS FARGO ADVISORS, LLC,
f.k.a. A.G. Edwards,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 19, 2012)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Jussi Kivisto, proceeding pro se, appeals the district court’s dismissal of his
Case: 12-12091 Date Filed: 11/19/2012 Page: 2 of 5
action to compel arbitration and stay state court proceedings and for declaratory
relief, for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a).
Kivisto filed a complaint in federal district court against Armi Kulmala and Wells
Fargo Advisors, LLC, seeking to compel arbitration related to a state court action
initiated by Kulmala against Kivisto and Wells Fargo to determine the proper
beneficiary of a Wells Fargo brokerage account that was owned by Leo Jaakola
prior to his death. Kulmala alleged in the state court action that she was the
intended beneficiary of the $61,957.84 held in the account, that Kivisto, as
Jaakola’s attorney, unduly influenced Jaakola to sign a transfer agreement directing
that the funds in the account be distributed to Kivisto, and that Wells Fargo
negligently turned over the funds to Kivisto and not Kulmala.
The district court dismissed Kivisto’s complaint for lack of subject matter
jurisdiction, finding that the only possible basis for federal jurisdiction was
diversity jurisdiction and that the amount in controversy in the underlying state
claim which Kivisto sought to arbitrate did not exceed the $75,000 threshold
necessary to establish federal diversity jurisdiction.
On appeal, Kivisto argues that the district court improperly dismissed his
federal complaint because the amount in controversy in the underlying state claim
included not only the $61,957.84 value of the Wells Fargo account, but also
attorney’s fees by operation of contract and state law, and a reasonable calculation
2
Case: 12-12091 Date Filed: 11/19/2012 Page: 3 of 5
of those fees showed, when added to the account value, that the $75,000
jurisdictional amount had been satisfied.
We review a district court’s rulings on subject matter jurisdiction de novo.
MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234, 1239 (11th Cir. 2005). A
federal court must dismiss an action if it determines, at any time, that it lacks
subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); Bochese v. Towne of Ponce
Inlet, 405 F.3d 964, 975 (11th Cir. 2005).
Federal courts exercise limited jurisdiction and generally can hear only
actions that either meet the requirements for diversity jurisdiction or that involve a
federal question. 28 U.S.C. §§ 1331, 1332; Taylor v. Appleton, 30 F.3d 1365, 1367
(11th Cir. 1994). Here, it is not disputed that diversity jurisdiction is the only
possible basis for federal jurisdiction over Kivisto’s complaint and that the
dispositive issue is whether Kivisto has met the $75,000 amount in controversy
requirement. “It is to be presumed that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests upon the party
asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.
375, 377 (1994) (citations omitted).
The district court rejected Kivisto’s argument regarding the attorney’s fees,
concluding that the contract governing the brokerage account would not entitle
Kulmala to attorney’s fees. See Smith v. GTE Corp., 236 F.3d 1292, 1305 (11th
3
Case: 12-12091 Date Filed: 11/19/2012 Page: 4 of 5
Cir. 2001) (holding that attorney’s fees are not included in determining the
jurisdictional amount in controversy unless the award of fees is authorized by a
statute or contract). Specifically, the district court noted that the contract between
Wells Fargo and Jaakala did not create a right to attorney’s fees to Kulmala from
Wells Fargo and that the attorney’s fees provision was inapplicable to the type of
claims asserted in the state court action. Alternatively, the district court concluded
that even if it assumed the contract would entitle Kulmala to attorney’s fees,
Kivisto’s allegation regarding the amount of fees was too conclusory. See
Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir.
2003) (quotations omitted) (stating that where jurisdiction is based on an
undetermined amount of damages, the party seeking to invoke federal jurisdiction
must prove that the claim meets the threshold jurisdictional amount by a
preponderance of the evidence).
Having considered the parties’ briefs and the record, we find no reversible
error in the district court’s conclusion that Kivisto failed to meet his burden of
establishing that the amount in controversy exceeded the $75,000 threshold and
thus the district court lacked subject matter jurisdiction over Kivisto’s complaint
against Kulmala and Wells Fargo. Additionally, regardless of the district court’s
findings as to the jurisdictional amount, it also properly found that it lacked
jurisdiction over Kivisto’s claims against Wells Fargo because there was no
4
Case: 12-12091 Date Filed: 11/19/2012 Page: 5 of 5
controversy between Kivisto and Wells Fargo to confer Article III standing before
the federal court. Accordingly, we affirm the district court’s dismissal for lack of
subject matter jurisdiction.
AFFIRMED.
5
|
41 So.3d 904 (2010)
WALKER
v.
STATE.
No. 2D10-3130.
District Court of Appeal of Florida, Second District.
August 17, 2010.
Decision Without Published Opinion Appeal dismissed.
|
125 Ariz. 294 (1980)
609 P.2d 564
STATE of Arizona, Appellee,
v.
Robert A. SCHILLEMAN, Appellant.
No. 4897.
Supreme Court of Arizona, In Banc.
March 25, 1980.
*295 Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Greg A. McCarthy, Asst. Atty. Gen., Phoenix, for appellee.
Friedlander & Friedlander, P.C., by Susan O. Friedlander, Scottsdale, for appellant.
GORDON, Justice:
Defendant Robert A. Schilleman was convicted, after a jury trial, of first degree rape and first degree burglary. He appeals from the judgments and from concurrent sentences of ten to fifteen years imprisonment for rape and three to six years imprisonment for burglary. Taking jurisdiction *296 pursuant to Rule 47(e)(5), Rules of Supreme Court, we affirm.
The victim testified at trial that she went to bed at about 11:30 p.m. on August 16, 1978, and that sometime thereafter she was awakened by a man placing a sheet over her head. The man then tied the victim's hands behind her back and raped her. The victim was unable to see her attacker. When the man left, the victim was able to untie her hands and call the police.
One of the investigating police officers testified that the glass on the back door of the victim's house had been broken from the outside and that he believed the rapist had entered the residence by this door. A police identification technician testified that he had found a latent palm print on the inside of the back door, and that the print was made by an arm reaching through the hole in the glass on the door. Two police experts identified the palm print as defendant's.
Julie Edwards, who lived on the same street as the victim, testified that at about 1:30 a.m. on August 17, 1978, she was seated in a van parked across from her apartment and near the victim's house. She saw a man jump out from behind some bushes located between the van and the victim's house. The man ran toward the van and continued running past the van down the street. Edwards identified the defendant as the man she had seen.
Defendant raises three issues on appeal:
(1) Whether Edwards' in-court identification should have been excluded, because it was tainted by an unduly suggestive pre-trial identification procedure;
(2) Whether the trial court incorrectly instructed the jury on the weight to be given Edwards' testimony;
(3) Whether the trial court should have dismissed the case, because the police destroyed certain fingerprint evidence.
EXCLUSION OF IN-COURT IDENTIFICATION
On January 23, 1979, immediately before defendant's first trial[1] was to begin, Julie Edwards made an identification of defendant when she observed him sitting at the defense table in the courtroom. Defendant, claiming that the pre-trial identification had been unduly suggestive, moved to have Edwards' in-court identification suppressed.[2] The trial court held a Dessureault[3] hearing at which it determined that an in-court identification would not be tainted by the pre-trial observation of defendant by Edwards.
Edwards testified at the Dessureault hearing that prior to trial the prosecutor asked her to look into the courtroom through the back door to see if she recognized anyone. This was the only identification procedure in which she had participated after the crime. She saw six people inside the courtroom, including defendant, but only defendant and his attorney had light colored hair like the person she had observed at the time of the crime. The trial court made no specific finding whether this procedure was unduly suggestive. Assuming, arguendo, that the pre-trial identification was unduly suggestive, Edwards' in-court identification was still properly admissible if the trial court was correct in its finding that the latter identification was not tainted by the former. See State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970).
*297 An in-court identification is not tainted by an unduly suggestive pre-trial identification if, in view of the totality of the circumstances, the in-court identification is reliable. See State v. Strickland, 113 Ariz. 445, 556 P.2d 320 (1976). The following factors are to be included in considering whether an in-court identification is reliable: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); see, e.g., State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979).
Edwards testified at the Dessureault hearing that a street lamp provided good lighting, that the man she saw passed within six feet of her, and that she got a good look at his face. She stated that her attention was drawn to him because he was running quickly, late at night. She watched him from the time he first appeared to be jumping out from some bushes until he disappeared from view, running down the street. Edwards initially described the man she saw to police as a white male with a mustache and light blonde, shoulder-length hair, between, five feet ten inches and six feet tall, with a very thin build. Although defendant claims he is somewhat taller and not as thin as Edwards described, the description was reasonably accurate. Julie Edwards testified that, when she first looked into the courtroom, she was not positive whether anyone inside was the man she had previously observed, but several minutes later, after Edwards had related her image of the running man to the individuals in the courtroom, she was certain that defendant was the man who had run by her van on August 17, 1978.
There are several factors which reflect unfavorably on the reliability of Edwards' in-court identification. Edwards testified that she saw the running man for only about ten seconds, and part of the time his back was to her as he ran down the street. The man was moving very quickly as she observed him. She initially told police she was not sure she would be able to identify the man if she saw him again. Finally, five months had elapsed between the crime and the time when she observed defendant in the courtroom.
We have repeatedly stated that the issue whether an in-court identification has been tainted by a pre-trial procedure is a preliminary matter for the trial court and that the trial court's finding will not be overturned on appeal absent clear and manifest error. See, e.g., State v. McGill, 119 Ariz. 329, 580 P.2d 1183 (1978). In this case, the trial court was justified in finding that Julie Edwards' in-court identification of defendant was not tainted.
INSTRUCTIONS CONCERNING EDWARDS' IN-COURT IDENTIFICATION
Defendant contends that the trial court committed error by rejecting his proposed instruction labeled (B) by substituting its own instruction. The rejected instruction was the following:
"Defendant's Requested Jury Instruction No. (B)
"Before returning a verdict of guilty you must be satisfied beyond a reasonable doubt that the in-court identification was independent of the pretrial identification. If it was not derived from an independent source, you must then determine from other evidence in the case beyond a reasonable doubt whether the defendant is the guilty person. In determining if the in-court identification was from an independent source you may consider whether the pretrial identification procedures were fair or unduly suggestive of the defendant. State v. Dessureault, 104 Ariz. 380, at 384, 453 P.2d 951 at 955 (1969)."
The trial court gave this instruction instead:
"In considering the correctness of the in-court identification of the defendant, you should consider whether such identification *298 is tainted by any identification made of the defendant by witnesses before testifying. If you believe that the circumstances under which such pre-testimonial identification was made were so suggestive as to prevent the witness from making an independent identification of the defendant in-court, then you should not give the witness' identification any weight in considering whether or not the defendant is guilty of either of the crimes charged."
Defendant's claim of error is based on the trial court's use, in its own instruction, of the phrase "so suggestive as to prevent the witness from making an independent identification" instead of the phrase "satisfied beyond a reasonable doubt that the in-court identification was independent of the pre-trial identification" in defendant's Instruction (B).
In State v. Dessureault, supra, we said:
"Third, if requested, the court must instruct the jury that before returning a verdict of guilty it must be satisfied beyond a reasonable doubt that the in-court identification was independent of the previous pretrial identification or if not derived from an independent source, it must find from other evidence in the case that the defendant is the guilty person beyond a reasonable doubt." State v. Dessureault, 104 Ariz. at 384, 453 P.2d at 955.
Whether the trial court's modified version of defendant's requested instruction is fatally defective in light of the requirements of Dessureault, cited above, we need not decide. Defendant may not claim on appeal that the trial court committed reversible error by giving its own instruction, because defense counsel's objection did not state "distinctly the matter to which he object[ed] and the grounds of his objection." Rule 21.3(c), Rules of Criminal Procedure, 17 A.R.S. See State v. Toney, 113 Ariz. 404, 555 P.2d 650 (1976); cf. State v. Kennedy, 122 Ariz. 22, 592 P.2d 1288 (App. 1979). The record shows that trial defense counsel's[4] only objection to the trial court's proposed modification was this: "I would just object for the record to all of [the instructions] that I did not request. Nothing, further, your honor."[5]
The purpose of requiring a specific objection is to afford the trial court an opportunity to pass upon the objection. See State v. Winter, 109 Ariz. 505, 513 P.2d 934 (1973). Although Instruction (B) cited State v. Dessureault, supra, as authority we do not believe that a reading of Dessureault would inform the trial judge of defendant's precise objection. It was not apparent that Dessureault mandates the giving of Instruction (B) exactly as requested. In this situation, defense counsel cannot make a general objection and then expect to preserve a claim of error based on any variation between the trial court's language and that of the requested instruction.
As the comment to Rule 21.3(c) indicates, the rule does not preclude appellate review of fundamental error. Cf. State v. Galbraith, 114 Ariz. 174, 559 P.2d 1089 (App. 1976). The trial court instructed the jury to disregard Edwards' in-court identification if it was tainted by her pre-trial identification. Other instructions made it clear to the jury that the state must prove its entire case against defendant, which would include defendant's identity, beyond a reasonable doubt. Any prejudice to defendant caused by the trial court's modification of the requested instructions did not undermine the foundation of his case or deprive him of a right essential to his defense. See State v. Galbraith, supra. We therefore find no fundamental error.
DESTRUCTION OF EVIDENCE
Soon after the crime was reported, a police identification technician, Hubert Dorsey, went to the victim's residence and dusted various items for fingerprints. Dorsey lifted approximately fifteen latent fingerprints from the crime scene. This was done by placing tape over the dusting powder *299 where a print appeared to be and then transferring the impression on the tape onto a card.
When he returned to the police station, Dorsey examined the cards and concluded that only one card contained a print which was sufficient for identification purposes. All of the cards were destroyed except the one containing a usable print. This last print was later identified as defendant's.
Prior to his first trial, defendant requested that the prosecution make available for his examination all of the latent prints which Dorsey had lifted at the scene of the crime. When the prosecutor informed him that all but one of the latent lifts had been discarded, defendant, claiming a deprivation of due process, moved for a dismissal. After a hearing, the trial court found that the destroyed prints had no evidentiary value and denied the motion.
A defendant has not been deprived of due process because the state has destroyed evidence, unless the state has acted in bad faith or the defendant has been prejudiced by the loss. See State v. Soloman, 125 Ariz. 18, 607 P.2d 1 (1980). It is clear in the present case that Dorsey did not destroy the latent lifts in bad faith. His uncontradicted testimony was that he was following standard police procedures both in determining which prints were usable and in destroying the worthless ones. We note that it would be in the state's own interest to preserve all prints which might be employed to identify a criminal.
We find no reasonable possibility that defendant was prejudiced by the destruction of the lifts which Dorsey determined were unusable. State v. Hannah, 120 Ariz. 1, 583 P.2d 888 (1978), which defendant claims requires dismissal in the instant case, is distinguishable. In Hannah, the police negligently destroyed certain items of evidence found at the scene of a crime before the evidence could be examined for fingerprints. We said:
"Because tests were not made which could have been made, and because it cannot now be determined whether exculpatory evidence would have been developed, we think the trial court could conclude that [defendant] had been denied due process by the negligent destruction of the seized evidence." State v. Hannah, 120 Ariz. at 2, 583 P.2d at 889.
Defendant has offered no evidence that the procedures followed by Dorsey were unreliable or that Dorsey performed his job negligently. Unlike the situation in Hannah, supra, the unavailable evidence in this case was examined by police and found to have no value before it was destroyed. Cf. State v. Garrison, 120 Ariz. 255, 585 P.2d 563 (1978). Defendant points to statements made by Dorsey and by another identification technician, Frank Rodgers, and infers that one of the discarded latent lifts might have had some exculpatory value. The testimony of both technicians, taken as a whole, shows that they believed, that even this one lift was worthless, either to establish whose print it was or to show that it was not defendant's. Proof that defendant did not make the print, moreover, would not lessen the probative value of the palm print identified as defendant's.
Defendant stresses in his brief that Dorsey's decision to discard certain latent lifts was not subject to review and that defendant had no opportunity to independently examine those lifts. We recognize the possibility that technical determinations may be subject to error. Cf. Scales v. City Court of Mesa, 122 Ariz. 231, 594 P.2d 97 (1979). We do not believe, however, that due process requires the police to indefinitely preserve evidence after a qualified technician has concluded that it has no probative value, so that an as yet unknown defendant may later make his own examination of the evidence. We conclude that defendant was not deprived of due process.
We have examined the entire record and find no fundamental error. See A.R.S. § 13-4035(B); State v. Rose, 121 Ariz. 131, 589 P.2d 5 (1978). The judgments and sentences are affirmed.
STRUCKMEYER, C.J., HOLOHAN, V.C.J., and HAYS and CAMERON, JJ., concur.
NOTES
[1] Defendant was originally charged with robbery and lewd and lascivious acts in addition to rape and burglary. The jury in an earlier trial acquitted him of the first two charges but was unable to reach a verdict on the other two. A mistrial was declared, and defendant was retried.
[2] Defendant also claimed that the state had violated discovery rules by not revealing that Edwards would make an in-court identification. The trial court found that this claim did not warrant suppression, and defendant has not raised the contention on appeal.
[3] State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970).
[4] We note that appellate counsel did not represent defendant at trial.
[5] Trial counsel made essentially the same statement to the same judge at the first trial.
|
663 N.E.2d 458 (1996)
278 Ill. App.3d 464
215 Ill.Dec. 447
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Scott A. CARROLL, Defendant-Appellant.
No. 4-94-0307.
Appellate Court of Illinois, Fourth District.
March 22, 1996.
Rehearing Denied April 22, 1996.
*459 Daniel D. Yuhas, Deputy Defender and Janieen R. Tarrance, Asst. Defender, Office of the State Appellate Defender, Springfield, for Scott A. Carroll.
Charles Colburn, State's Attorney, Jacksonville, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, and Denise M. Ambrose, Senior Staff Atty., State's Attorneys Appellate Prosecutor, Springfield, for the People.
Presiding Justice COOK delivered the opinion of the court:
Following a jury trial, defendant Scott A. Carroll was convicted of first degree murder (720 ILCS 5/9-1(a)(2), (a)(3) (West 1992)) and sentenced to 60 years' imprisonment. Defendant appeals, contending he was denied a fair trial because the prosecutor improperly defined reasonable doubt during closing argument. We affirm.
At trial, Keith Wilson testified that around 8:45 p.m. on August 28, 1993, he walked with defendant and Gary Dean Thomas to William Doug Scoggins' Jacksonville home. There, the group smoked some marijuana. Approximately 30 minutes after Scoggins invited them inside, defendant pulled out a .22-caliber H & R nine-shot revolver and fired two shots into Scoggins' head. Scoggins had his back to defendant and was bent over to place his pet snake into its cage. Wilson witnessed Scoggins fall to the floor. Wilson ran into the kitchen. He heard additional shots fired, but he did not see who fired them. Defendant and Thomas joined Wilson in the kitchen and the three of them left Scoggins' home through the back door at approximately 9 p.m.
Albert Lynn Charlesworth testified that he and Wilson attended a barbecue at defendant's trailer home on Sunday afternoon, August 29, 1993. After they finished eating, defendant told Charlesworth that he had shot and killed Scoggins. Defendant stated that he, Thomas, and Wilson went to Scoggins' home and when Scoggins turned his back, he shot Scoggins twice in the back of the head with his .22-caliber nine-shot revolver. Thomas then took the gun and shot Scoggins once in the forehead. Defendant retrieved the gun and shot out Scoggins' eyes. Defendant and Thomas searched the house for valuables, then left with Wilson through the back door.
Charlesworth testified that the police contacted him after he had told his family that defendant had admitted shooting Scoggins. Charlesworth agreed to be fitted with an eavesdropping device, and on September 7, 1993, Charlesworth arranged to visit defendant at his home. The taped conversation of Charlesworth and defendant was entered into evidence. Defendant told Charlesworth that he had not seen Wilson since the police had taken him in for questioning and that he needed to talk to him. Defendant stated that Thomas could not say anything to the police because Thomas had shot Scoggins once in the forehead after defendant shot Scoggins twice "back here." Scoggins was still breathing after Thomas fired, so defendant "shot his eyeballs out." Defendant stated he tried to dispose of the gun in Alton but he could not get rid of it. Defendant admonished Charlesworth not to say anything about what he had heard because "nobody's *460 going to jail [and] it's just going to be case closed."
Defendant was taken into custody shortly after the taped conversation. Defendant's cellmate, Jeff Sprague, testified that defendant told him an essentially identical account of the murder. However, defendant told Sprague that Jon Surratt drove Wilson, Thomas, and him to Scoggins' house. Surratt waited in the car while defendant, Wilson, and Thomas went inside to buy marijuana. When Scoggins produced a bag of marijuana, defendant and Thomas shot him in the manner previously described. After Sprague told the police about defendant's confession, Sprague's residential burglary charge was reduced to burglary. Sprague stated he was not offered the reduction in exchange for his testimony.
The physical evidence was consistent with Wilson's eyewitness account. Scoggins was found lying on his back next to his partially open snake cage. He had been shot five times with a .22-caliber weapon. There were two gunshot wounds to the back of Scoggins' head, one to the right side of his nose, one wound to his left lower eyelid, and one wound that actually pierced his right eyeball. The police did not release this information to the public. The police discovered a .22-caliber nine-shot H & R revolver hidden in a baby crib in defendant's trailer home. Grooves on the bullet fragments taken from Scoggins' skull were consistent with the rifling characteristics of this gun. Because of the mutilated condition of the bullet fragments, however, the gun could not be positively identified or eliminated as the weapon that fired the bullets into Scoggins' skull.
Defendant testified that he was only boasting when he claimed to have shot Scoggins. Defendant testified that on the night of the murder, he was with his girlfriend, Karrie Wilson, at Charlotte Wilson's Jacksonville house until 8 or 8:30 p.m. Around 8:30 p.m., Cathy Powell drove Karrie and defendant to defendant's home. Defendant's mother picked him up around 9:15 p.m. to take him to his brother's birthday party. Karrie's testimony agreed with defendant's account of the evening, and several witnesses testified they saw defendant arrive at the birthday party around 9:30 p.m. Cathy Powell, however, told the police that she did not drive defendant and Karrie home from Wilson's house until 9:30 or 10:30 p.m. She told police that Keith Wilson, Gary Dean Thomas, and defendant left Charlotte Wilson's home around 7:30 or 8 p.m.
In closing argument, the prosecutor stated:
"Now, we need to prove beyond a reasonable doubt that this Defendant committed the offenses of first degree murder. It's not beyond all doubt or any doubt, but beyond a reasonable doubt, a doubt that has reason behind it. That's not some mythical, unattainable standard that can't be met. That standard is met every day in courtrooms * * *."
After deliberating 2½ hours, the jury found defendant guilty of first degree murder.
On appeal, defendant argues that the prosecutor's remarks during closing argument improperly deemphasized the State's burden of proof. Defendant did not object during closing argument, and the State urges us to find the issue waived. However, this court has reviewed similar remarks under the plain error exception to the waiver doctrine because of their potential for undermining such fundamental concepts of justice as the defendant's presumption of innocence and the prosecution's burden of establishing beyond a reasonable doubt all elements of the charged offense. See People v. Thomas, 191 Ill.App.3d 187, 197, 138 Ill.Dec. 568, 574 547 N.E.2d 735, 741 (1989).
The concept of reasonable doubt needs no definition, and it is prejudicial error for the court to give an involved instruction on that concept. People v. Cagle, 41 Ill.2d 528, 536, 244 N.E.2d 200, 204 (1969); People v. Failor, 271 Ill.App.3d 968, 970, 208 Ill.Dec. 681, 682, 649 N.E.2d 1342, 1343 (1995). As with any instruction, it is for the court, not counsel, to explain the law to the jury. It is therefore improper for counsel to give an "instruction" on reasonable doubt during closing argument. United States v. Kramer, 711 F.2d 789, 794-95 (7th Cir.1983). Nevertheless, counsel are entitled to discuss reasonable doubt during closing argument. The prosecutor is entitled to present his or her *461 view of the evidence and to suggest that the evidence does not support any reasonable doubt; defense counsel is entitled to do the same and suggest there is a reasonable doubt. Kramer, 711 F.2d at 794-95; see also 75A Am.Jur.2d Trial § 645 (1991).
A prosecutor may argue that the State does not have the burden of proving the guilt of the defendant beyond any doubt, that the doubt must be a reasonable one. Such an argument does no more than discuss the grammatical fact that the word "reasonable" modifies the word "doubt." Cf. People v. Evans, 199 Ill.App.3d 330, 339, 145 Ill.Dec. 286, 291, 556 N.E.2d 904, 909 (1990) (mild impropriety). It is improper, however, to suggest to the jury that the State had no burden of proof or to attempt to shift the burden to the defendant, or to reduce the State's burden to a pro forma or minor detail. People v. Speight, 153 Ill.2d 365, 374, 180 Ill.Dec. 97, 100, 606 N.E.2d 1174, 1177 (1992). It is improper for the prosecution to imply that the State's evidence enjoys a presumption of veracity which defendant must defeat or negate if he is to be acquitted. Thomas, 191 Ill.App.3d at 196, 138 Ill.Dec. at 573-74, 547 N.E.2d at 740-41 ("`any doubt which you have which would defeat the State's theory I submit must be reasonable. It's got to fit together, it's got to make sense in light of all the other evidence in the case'"; remarks at least bordered on impropriety). It is improper for the prosecution to argue that the presumption of innocence does not remain with defendant throughout every stage of the trial and during the jury's deliberations on the verdict. See Illinois Pattern Jury Instructions, Criminal, No. 2.03 (3d ed. 1992); cf. People v. Eddington, 129 Ill.App.3d 745, 780, 84 Ill.Dec. 887, 912, 473 N.E.2d 103, 127 (1984).
It is not improper for a prosecutor to argue:
"`That is the same burden of proof in every case that is tried in this courtroom, every case that is tried in this county, and every case that is tried in this country. It is beyond a reasonable doubt. The penitentiary is full of people like Collins and Bracey who have been proved guilty beyond a reasonable doubt.'" People v. Collins, 106 Ill.2d 237, 277, 87 Ill.Dec. 910, 927-28, 478 N.E.2d 267, 284-85 (1985).
See also People v. Harris, 129 Ill.2d 123, 161, 135 Ill.Dec. 861, 877, 544 N.E.2d 357, 373 (1989). Nor is it error for a prosecutor to state that the standard is not "`an insurmountable burden, some mystical thing.'" People v. Trass, 136 Ill.App.3d 455, 467, 91 Ill.Dec. 221, 230-31, 483 N.E.2d 567, 576-77 (1985).
The prosecutor's remarks in this case were not improper, and it would not have been error for the court to have overruled an objection to them if an objection had been made.
For the foregoing reasons, the judgment of the circuit court of Morgan County is affirmed.
Affirmed.
GARMAN and KNECHT, JJ., concur.
|
938 F.2d 781
RELIANCE INSURANCE COMPANY, Plaintiff-Appellee/Cross-Appellant,v.William J. ZEIGLER, Defendant-Appellant/Cross-Appellee,andFrankie M. Zeigler, Defendant-Cross-Appellee.
Nos. 90-1628, 90-1799, 90-1913 and 90-2068.
United States Court of Appeals,Seventh Circuit.
Argued May 7, 1991.Decided July 31, 1991.
Edward M. Kay, James T. Ferrini, Randall Marmor, E. Christopher Caravette, Gilbert J. Schroeder, Clausen, Miller, Gorman, Caffrey & Witous, Chicago, Ill., for Reliance Ins. Co.
Michael W. Rathsack, Lawrence L. Kotin, Chicago, Ill., for William J. Zeigler.
Louis W. Brydges, Sr., Brydges, Riseborough, Morris, Franke & Miller, Waukegan, Ill., Kathleen Hendrickson, Marathon, Fla., for Frankie M. Zeigler.
Before WOOD, Jr. and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge.
1
William J. Zeigler owes Reliance Insurance Company ("Reliance") at least $1.6 million under an indemnity agreement. He appeals the District Court's judgment that the indemnity agreement requires him to post an additional $2.3 million as collateral against Reliance's further damages. Reliance cross-appeals because the District Court refused to allow Reliance to attach an annuity and an individual retirement account ("IRA") that William Zeigler and his wife own, respectively. We reverse and remand for recalculation the portion of the District Court's judgment requiring William Zeigler to post the $2.3 million in collateral, because the District Court double counted at least some of Reliance's damages in determining this amount. We affirm the District Court's judgment that the Zeiglers' annuity and IRA are exempt from attachment under Illinois law.Discussion
2
The District Court decided this case on summary judgment, so our review is de novo. See, e.g., Gilty v. Village of Oak Park, 919 F.2d 1247, 1250 (7th Cir.1990).
3
William Zeigler was an officer and shareholder in Wm. Zeigler & Son, Inc. ("Zeigler Construction"), which bought surety bonds from Reliance. Reliance, in turn, required Zeigler and his wife Frankie to sign an indemnity agreement making them personally liable for any amounts that Reliance would have to pay under the surety bonds. A few years passed, Zeigler Construction became a losing proposition, and the company abandoned a number of its projects in midstream.
4
As the bonds require, Reliance has been paying to finish the projects. Under the indemnity agreement, the Zeiglers are liable to Reliance for the amounts it has paid to finish the projects, and the Zeiglers must post collateral for the further expenses that Reliance may incur. Indemnity Agreement, pp 2, 7. The District Court ordered the Zeiglers to pay Reliance $1.6 million in damages for money that Reliance has already spent in finishing the construction projects, and to post collateral of $2.3 million. Memorandum Opinion and Order, p. 6 (February 9, 1990).
5
The Zeiglers do not challenge the $1.6 million in actual damages that the District Court awarded Reliance. William Zeigler, but not Frankie, challenges the $2.3 million collateral as excessive. The only source that Reliance claims for the $2.3 million figure is a report prepared by "Meridian Consulting Group, an organization retained by Reliance to analyze the extent of its obligation to Zeigler [Construction]'s creditors." Brief and Argument of Reliance, p. 9. According to Reliance, this report concludes that as of June 1989, before Reliance had spent any money on the construction projects, Reliance could anticipate $2.3 million in losses. Id., at 9-10. Reliance's numbers do not quite jibe,1 but even accepting its characterization of the report, Reliance is entitled to a total of $2.3 million, divided between actual damages and collateral for the future. With uncontested, actual damages of $1.6 million, this leaves about $700,000 in rounded dollars for William Zeigler to post as collateral. Anything more is double counting. We remand for the District Court to redetermine the amount of collateral that William Zeigler must post, which should not include any part of the uncontested $1.6 million that the District Court separately ordered as actual damages.2
6
Reliance cross-appeals the District Court's decision that Illinois law bars Reliance from attaching an annuity that William Zeigler owns and an IRA that belongs to Frankie Zeigler. Under Ill.Rev.Stat., ch. 110, p 12-1006, "A debtor's interest in ... payments under a retirement plan is exempt from seizure for the satisfaction of debts." To qualify for this protection, the retirement plan must be "intended in good faith to qualify as a retirement plan under applicable provisions of the Internal Revenue Code of 1986, as now or hereafter amended." Id. After a hearing, the District Court found that the Zeiglers' annuity and IRA met this good faith requirement, a finding that Reliance does not challenge.
7
Reliance's main argument is that federal law preempts the Illinois exemption.3 The federal provision at issue is Sec. 514(a) of the Employee Retirement Income Security Act of 1974 ("ERISA"), which states that ERISA preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." 29 U.S.C. Sec. 1144(a). The threshold question is whether the Zeiglers' annuity and IRA are "employee benefit plan[s]" for purposes of this section. An employee benefit plan is defined in part as a fund "established or maintained" by an employer. 29 U.S.C. Sec. 1003(a); see 29 U.S.C. Secs. 1002(1), (2)(A), (3). Without dispute, Frankie Zeigler purchased the IRA with her own money, and a securities broker maintains the account. Because the IRA was not established or maintained by Frankie Zeigler's employer, it cannot be an employee benefit plan and so cannot be the subject of preemption under ERISA Sec. 514(a).
8
William Zeigler's annuity presents a somewhat closer question. Having reached retirement age, he was entitled to a lump sum payment from Zeigler Construction's ERISA-covered retirement plan. Instead of receiving a cash payment, he arranged for Zeigler Construction to write a check payable to the insurance company that issued his annuity. Zeigler Construction also filled out certain paperwork in connection with the annuity. If these actions by Zeigler Construction "established" the annuity, then Reliance has at least made it to first base on its preemption argument.
9
The Department of Labor's implementing regulations, however, indicate that Zeigler Construction did not establish the annuity within the meaning of ERISA. Under 29 C.F.R. Sec. 2510.3-2(d), an employer may "collect contributions through payroll deductions ... and ... remit them to the sponsor of an [individual retirement] annuity" without establishing an employee benefit plan--provided that the employee's participation is voluntary, the employer does not endorse the annuity, and the employer receives no compensation other than reimbursement for administrative services. Similarly, in a slightly different context, 29 C.F.R. Sec. 2510.3-2(f) authorizes employers to "collect[ ] annuity or custodial account considerations ... remit[ ] such considerations to annuity contractors and maintain[ ] records of such considerations," without thereby establishing or maintaining an employee benefit plan.
10
These regulations show that an employer's acts of forwarding an employee's money for the purchase of an annuity and completing paperwork do not by themselves establish an employee benefit plan. This conclusion makes sense. Again, William Zeigler was entitled to a lump sum cash distribution. He could have taken his cash and bought the annuity at issue here himself, in which case no real argument could arise that the annuity had been established by Zeigler Construction. As long as he bought the annuity within 60 days of receiving his lump sum distribution, Zeigler's tax treatment would have remained the same.4 See 26 U.S.C. Sec. 402(a)(5) (allowing employees to "rollover" distributions from qualified trusts into other eligible retirement plans). It would be a needless elevation of form over substance to treat these transactions differently.
11
Our conclusion might be different if Reliance could show that Zeigler Construction selected the annuity at issue and presented it to William Zeigler as the company's preferred plan, or that Zeigler Construction received a commission for the sale of the annuity, or did some other act to take it out of the role of mere conduit. But Reliance has not alleged, much less shown, such facts. In short, William Zeigler's annuity is not an employee benefit plan within the meaning of ERISA Sec. 514(a) because it was not established by his employer. For this reason, ERISA Sec. 514(a) cannot preempt the Illinois statute in the present case.
12
Finally, Reliance contends that the Illinois statute violates due process because it applies to cases such as the present one that were "pending on" the statute's effective date. Ill.Rev.Stat., ch. 110, p 12-1006(d). But "a court should 'apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is a statutory direction or legislative history to the contrary.' " Schalk v. Reilly, 900 F.2d 1091, 1096 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 509, 112 L.Ed.2d 521 (1990), quoting Bradley v. School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). The statutory direction in this case leaves no doubt that the Illinois statute applies, and Reliance has not pointed to any manifest injustice from the statute's application--leaving Reliance with no basis for its due process challenge.
Conclusion
13
For the reasons stated above, the portion of the District Court's judgment ordering William Zeigler to post $2.3 million as collateral is REVERSED and REMANDED for recalculation. The District Court's judgment is AFFIRMED in all other respects.
1
Meridian Consulting Group's "Summary of Estimated Costs" appears in the record as Exhibit C to Reliance's Complaint. That document shows an estimated total cost of $5,542,191 for completion of the construction projects, from which it subtracts a $3,584,554 "contract balance" apparently due from the buyers of the projects, to produce a "grand total" cost of $1,977,637. This $1,977,637 figure is repeated in the affidavit of Lavane Creed, an accountant for Meridian Consulting Group, as Meridian's "estimate of costs which will be incurred by Reliance." It is unclear how Meridian derived its $2.3 million figure from this $1,977,637 estimate
2
In fairness to the District Court, we note that the language of its judgment does not compel the interpretation that Reliance may collect both the $1.6 million in actual damages and another $2.3 million as collateral. All of the parties have adopted this interpretation on appeal, however, and it is probably the most reasonable view of the District Court's language. If this interpretation reflects a misunderstanding by the parties and this Court, the District Court is free on remand to simply clarify its prior Order
We also note that William Zeigler made, but has withdrawn, an argument that the posting of collateral is an equitable remedy, and that district courts lack authority to grant equitable relief on summary judgment under Seaboard Surety v. Racine Screw Co., 203 F.2d 532, 533 (7th Cir.1953). Seaboard Surety has been little cited, and criticized when it has. Zeigler's withdrawal of the issue, however, precludes us from making any definitive statement about Seaboard Surety 's continued validity.
3
Reliance also argues that the Zeiglers waived any exemption that their property might have from attachment. The Indemnity Agreement states that the Zeiglers "hereby waive all right to claim any property ... as exempt from levy, execution, sale or other legal process." Indemnity Agreement, p 14. We do not decide the legal enforceability of this provision because Reliance failed to present this contract language to the District Court. Arguments may not be raised for the first time on appeal. See, e.g., Maciosek v. Blue Cross & Blue Shield United, 930 F.2d 536, 540 n. 2 (7th Cir.1991)
4
So why didn't Zeigler accept the lump sum distribution and buy the annuity himself? A direct transfer of money from one retirement fund to another may be good practice to prevent the possibility of an administrative mishap that would violate the 60 day window for rollovers. Perhaps Zeigler also viewed any time during which he had unfettered control of the money as a period when that money might be subject to attachment. Or perhaps he just thought it a needless inconvenience to take brief control of the money himself. The record does not disclose Zeigler's actual motivation, and Reliance has not alleged any facts in this regard. None of the likely reasons, however, provide a basis for treating Zeigler Construction's purchase of the annuity as establishment of an employee benefit fund
|
973 P.2d 315 (1998)
1998 OK CR 70
Maximo Lee SALAZAR, Appellant,
v.
STATE of Oklahoma, Appellee.
No. F-96-1496.
Court of Criminal Appeals of Oklahoma.
December 30, 1998.
Rehearing Denied February 10, 1999.
Mark Barrett and Steven Hess, OK Indigent Defense System, Captal Trial Division, Norman, Oklahoma, for defendant.
Robert Schulte, District Attorney, Lawton, Oklahoma, for the state.
William H. Luker, Division Chief, Capital Direct Appeals Division, Norman, OK, for appellant.
W.A. Drew Edmondson, Attorney General of Oklahoma, Williams L. Humes, Assistant Attorney General, Oklahoma City, OK, for appellee.
*320 OPINION
JOHNSON, Judge.
¶ 1 Maximo Lee Salazar was tried by a jury and convicted of one count of First Degree Murder (21 O.S.Supp.1982, § 701.7(A)) and one count of First Degree Burglary (21 O.S.1981, § 1431) in the District Court of Comanche County, Case No. CRF-87-460. The jury found the existence of three aggravating circumstances[1] and recommended death for the murder and ten (10) years imprisonment for the burglary. In Salazar v. State, 1993 OK CR 21, 852 P.2d 729, this Court affirmed Appellant's convictions for murder and burglary, but vacated the sentence of death and remanded the case for resentencing.[2]
¶ 2 In November of 1994, a new sentencing proceeding was conducted before the Honorable Allen McCall. See 21 O.S.Supp. 1993, § 701.10a. The jury again returned a sentence of death, but only found the existence of one aggravating circumstance the defendant knowingly created a great risk of death to more than one person. In Salazar v. State, 1996 OK CR 25, 919 P.2d 1120, this Court reversed and remanded the case for a third sentencing hearing finding the evidence was insufficient to support the sole aggravating factor on which the sentencer relied.
¶ 3 A third sentencing proceeding was conducted before the Honorable Allen McCall on October 28-31, 1996. Finding the existence of two aggravating circumstances the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and Salazar posed a continuing threat to society the jury again returned a sentence of death. From this Judgment and Sentence, Salazar appeals.
¶ 4 The facts of this case are set out in detail in Salazar, 852 P.2d at 731-32. In summary, this case involves the brutal stabbing murder of nine-year-old Jennifer Prill. *321 On August 24, 1987, Salazar was burglarizing the Prill residence in Cache, Oklahoma. Jennifer awoke and found Salazar in the living room. Salazar instructed Jennifer to return to her bedroom where he followed her and fatally stabbed her twice in the neck. Thereafter, Salazar fled the house taking approximately six to eight dollars in cash and a set of car keys. Salazar was subsequently arrested a few weeks later and confessed to the murder.
I. DOUBLE JEOPARDY
¶ 5 In his second proposition of error, Salazar contends his constitutional protections against double jeopardy and his rights to due process of law and a fair and reliable sentencing proceeding have been violated. Salazar maintains that all of the aggravating circumstances alleged against him in the first resentencing were rejected on the grounds of insufficient evidence. Under these circumstances, Salazar asserts his second resentencing violated his rights under the Fifth, Eighth and Fourteenth Amendments of the United States Constitution and Article II, Sections 7, 9 and 21 of the Oklahoma Constitution.
¶ 6 As previously discussed, the State alleged three aggravating circumstances at the first resentencing proceeding. The jury rejected two of the three aggravating circumstances, and based its verdict solely on the "great risk of death to more than one person" aggravator. On appeal, this Court found the evidence was insufficient to support this aggravator. In determining whether the matter could be remanded for yet another sentencing proceeding, this Court thoroughly addressed the Supreme Court's decision in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). The Court concluded:
[T]hat if either the trial court or a reviewing court finds that, after removal of any infirm factors, the residual evidence offered by the state at the sentencing proceeding will not support a death sentence, then the defendant has been acquitted of the death penalty and jeopardy precludes any further sentencing proceedings seeking a death verdict. However, if there is evidence which supports other statutory aggravating circumstances, the case may be remanded and a death verdict may be sought. Put simply, when there is evidence of aggravating circumstances in the record and error requires reversal, the slate is wiped clean and a defendant may be subjected to any punishment authorized by law including death.
Salazar, 919 P.2d at 1127 (footnote omitted). Finding evidence in the record to support both the "continuing threat" aggravator and the "avoid arrest or prosecution" aggravator, this Court remanded the case for a third sentencing proceeding.
¶ 7 While Salazar acknowledges this Court's ruling, he contends the Court's remand decision was contrary to our prior decisions in Crawford v. State, 1992 OK CR 62, 840 P.2d 627, 643; Cheney v. State, 1995 OK CR 72, 909 P.2d 74, 83; and Perry v. State, 1995 OK CR 20, 893 P.2d 521, 535-37. He further asserts the ruling violates his right to equal protection of the law. We disagree. The Court's analysis and application of Poland in Salazar, 919 P.2d at 1127, represents this Court's current position on this issue. Thus, Salazar's equal protection argument fails. See Stafford v. State, 1990 OK CR 74, 800 P.2d 738, 740-41, cert. denied, 499 U.S. 927, 111 S.Ct. 1328, 113 L.Ed.2d 260 (1991). Further review of Salazar's double jeopardy claim is barred by the doctrine of res judicata.
II. JURY SELECTION
¶ 8 In his eighth proposition of error, Salazar contends the trial court committed reversible error when it refused to excuse prospective juror Francois for cause. During voir dire, juror Francois indicted that she could not consider the sentence of life with the possibility of parole. Upon further questioning by both the State and Salazar, juror Francois unequivocally stated on numerous occasions that she could consider all three punishment options. She further stated that she was not predisposed to any one punishment. Thereafter, defense counsel *322 passed juror Francois for cause.[3] Under these circumstances, this issue has not been properly preserved for appellate review. Moreover, Salazar has failed to demonstrate that the trial court abused its discretion when it refused to excuse jury Francois for cause. See Lewis v. State, 1978 OK CR 123, 586 P.2d 81, 82.
¶ 9 Salazar argues in his ninth proposition of error that the prosecutor failed to sufficiently demonstrate a neutral reason for his peremptory challenge against a minority juror, Eric Gilder. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). To assert a Batson claim, a defendant must make a primia facie showing that the prosecutor exercised peremptory challenges on the basis of race. Neill v. State, 1994 OK CR 69, 896 P.2d 537, 546, cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740 (1996). After this requisite showing has been made, the burden shifts to the prosecutor to articulate a race neutral explanation related to the case for striking the juror in question. Neill, 896 P.2d at 546. The trial court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Id.
¶ 10 In response to juror Gilder's removal from the jury panel, defense counsel entered the following objection:
Your Honor, the State has used two of it's (sic) three challenges to excuse minorities on the panel, there are only three recognizable minorities. We allege that it appears to be a pattern of excusing minorities from the jury panel and this is a violation in violation of Mr. Salazar's rights....
The prosecutor responded to defense counsel's allegations by first explaining why he had removed juror Hines from the jury. He then explained that he had decided to remove juror Gilder because he was wearing "a gold tab earring in each ear," was approximately the same age as Salazar, and had been sleeping in the back of the courtroom during the morning session. The trial court found that no pattern of excluding minorities had been shown. He further found the prosecution had articulated "valid reasons" for the dismissal of juror Gilder.
¶ 11 There will seldom be much evidence bearing on the issue of whether the prosecutor's race-neutral explanation for a peremptory challenged should be believed. See Neill, 896 P.2d at 547. The best evidence often will be the demeanor of the attorney who exercises the challenge. "[E]valuation of the prosecutor's state of mind based on demeanor and credibility lies `peculiarly within a trial judge's province.'" Neill, 896 P.2d at 547 quoting Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395, 409 (1991). "The trial court's decision on the issue of discriminatory intent will not be overturned unless we are convinced that the determination is clearly erroneous." Id. Salazar has failed to demonstrate the trial court's ruling was erroneously made. Thus, this allegation of error is denied.
¶ 12 In his tenth proposition of error, Salazar submits he was denied a jury composed of a fair cross section of the community because of the operation of 38 O.S. 1991, § 28, which allows persons over the age of seventy to opt out of jury service. This Court has consistently rejected this argument. See Le v. State, 1997 OK CR 55, 947 P.2d 535, 545-46, cert. denied, ___ U.S. ___, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998); Bryan v. State, 1997 OK CR 15, 935 P.2d 338, 365, cert. denied, ___ U.S. ___, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997). Salazar has failed to provide any compelling reason for this Court to revisit its prior decisions. This proposition of error fails.
III. EVIDENCE
¶ 13 Salazar contends in his fourth proposition of error that his statements made to police on September 4, 6 and 8 of 1987 were *323 inadmissible as they were not the product of a knowing and intelligent waiver. While he acknowledges this Court addressed the voluntariness of his September 6th and 8th confessions in Salazar v. State, 852 P.2d at 733-34, Salazar asserts the Court's decision did not address whether the State sufficiently demonstrated he was able to understand and knowingly and intelligently waive his rights in spite of his borderline low intelligence and retardation. We disagree.
¶ 14 In his original appeal of his 1988 conviction, Salazar argued "that his age and I.Q., combined with the interrogators' techniques and the attendant stress, rendered his [September 6, 1997] confession inadmissible."[4]Salazar, 852 P.2d at 733. After reviewing Salazar's characteristics (i.e. his youth and mental capabilities) and the details of the interrogation, the Court found the State had met its burden of proving by a preponderance of the evidence that the confession was obtained voluntarily. Id. Thereafter, the Court addressed whether trial counsel was ineffective for failing "to investigate and adequately utilize evidence of appellant's `mental retardation' to attack the admissibility of his confessions." Id. at 734 (emphasis added). The Court found Salazar had failed "to prove the confessions would have been excluded had trial counsel presented evidence of the alleged mental retardation." Id.
¶ 15 Title 21, Section 701.10a(4) specifically provides "[a]ll exhibits and a transcript of all testimony and other evidence properly admitted in the prior trial and sentencing shall be admissible in the new sentencing proceeding...." See also Humphreys v. State, 1997 OK CR 59, 947 P.2d 565, 573, cert. denied, ___ U.S. ___, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998). Consequently, this issue has already been resolved. This Court previously determined that Salazar's September 6th and 8th confessions were properly admitted during the first trial. Thus, these confessions were properly admitted in the present sentencing proceeding.
¶ 16 We further find Salazar's September 4th statement was properly admitted in the present sentencing hearing. Salazar did not confess to any crimes on September 4, 1987. Rather, he spoke to the police about the circumstances surrounding the alleged theft of his car. Salazar's sole contention is that his September 4th statement was inadmissible because of his borderline low intelligence and retardation. Upon a thorough review of the current record, we find Salazar's September 4th statement was the product of a knowing and intelligent waiver. See Harjo v. State, 1994 OK CR 47, 882 P.2d 1067, 1071, cert. denied, 514 U.S. 1131, 115 S.Ct. 2007, 131 L.Ed.2d 1007 (1995). This proposition of error is denied.
¶ 17 In his fifth proposition of error, Salazar submits the trial court erred in allowing into evidence post-mortem photographs of the victim, crime scene photographs and the medical examiner's report. He specifically attacks State's Exhibits 5, 6, 7, 8, 9, 9a, 11, 15, 16 and 17. Except for exhibit number 16 which was never introduced into evidence, Salazar entered a timely objection to each of the now challenged exhibits.
¶ 18 State's Exhibit 5 is a photograph of the victim's bloody bed. Exhibits 15 and 16 are photographs of the victim's upper body showing the stab wounds to her neck. Salazar argues these photographs were improperly admitted because: (1) they were not needed to prove the corpus delicti of the offense; (2) they were not relevant to prove any of the aggravating circumstances; and (3) they were introduced merely to inflame the jury. We disagree. The challenged photographs were relevant and probative as they corroborated and shed light on the circumstances surrounding the murder. In a resentencing proceeding, the new jury must be educated regarding the circumstances of the crime in order to make a well reasoned punishment determination. In the instant case, the circumstances of the murder were relevant to whether Salazar posed a "continuing threat" to society. See Snow v. State, 1994 *324 OK CR 39, 876 P.2d 291, 298, cert. denied, 513 U.S. 1179, 115 S.Ct. 1165, 130 L.Ed.2d 1120 (1995) (callous nature of a crime is relevant to the determination of whether a capital defendant poses a continuing threat to society).
¶ 19 State's Exhibit 17 is a copy of the medical examiner's report. Salazar asserts the admission of this report was error as it was cumulative to Dr. Robert Dix's testimony. He further maintains the report was more prejudicial than probative because it contained a gynecological drawing which illustrated areas of light bruising around the victim's labia. Upon review, we find no error.
¶ 20 Dr. Robert Dix briefly testified during the sentencing proceeding regarding "very faint bruising to one side of the labia." Dr. Dix stated in the medical report that the "faint crescentic discoloration at the margin of each of the labia majora . . . appear[ed] to be a natural pigmentation." The report further states that the victim's hymen was intact. No evidence was presented of any sexual contact in this case. Consequently, we find the medical examiner's report did not improperly mislead or confuse the jury.[5]See 12 O.S.1991, § 2403. Although portions of the report were cumulative to the medical examiner's testimony, Salazar has failed to show how he was prejudiced or deprived of a substantial right. See 12 O.S.1991, § 2104(A). See also 20 O.S.1991, § 3001.1. Any error in the admission of this report was clearly harmless.
¶ 21 Salazar next challenges, on grounds of relevancy, the introduction of Mr. Prill's keys (State's Exhibit 6), the knife found in his car (State's Exhibit 7), the knife sheath found in his car (State's Exhibit 8), the gun found in his car (State's Exhibit 9A) and a photograph of the stolen items taken from the Huddleston residence (State's Exhibit 11). The admission of Mr. Prill's keys explained how Salazar was initially connected to the murder. Although Salazar's guilt was not at issue in this proceeding, this evidence was relevant to educate the resentencing jury regarding the crime. The remaining items were relevant to the determination of whether Salazar posed a "continuing threat" to society.
¶ 22 Finally, Salazar asserts State's Exhibit 9, a motor vehicle theft report filled out by Officer Larry LaFrance, was improperly admitted into evidence. He contends this evidence was cumulative and violated 12 O.S.1991, § 2803(8)(a), (b), (c) and (d). We agree. Exhibit 9 is an investigative report prepared by law enforcement and does not fall within the public records exception to the hearsay rule. See 12 O.S.1991, § 2803(8). However, we find this error harmless beyond a reasonable doubt in this case as the report was merely cumulative to Officer LaFrance's testimony regarding the theft report.
¶ 23 Salazar's fifth proposition of error is denied.
IV. VICTIM IMPACT EVIDENCE
¶ 24 Salazar maintains in his third proposition of error that the use of victim impact evidence at his sentencing proceeding violated his rights under the Eighth and Fourteenth Amendments of the United States Constitution and Article II, Sections 7 and 9 of the Oklahoma Constitution. Salazar first contends that much of the victim impact evidence fell outside the statutory guidelines. While arguably some of the victim impact testimony was admissible to show the emotional and psychological impact of the homicide on the family, and to show a brief glimpse of the life of the deceased, Salazar asserts the probative value of this evidence was outweighed by its prejudicial effect.
¶ 25 Title 22 O.S.Supp.1993, § 984 provides:
"Victim impact statements" means information about the financial, emotional, psychological, and physical effects of a violent crime on each victim and members of their immediate family, or person designated by the victim or by family members of the victim and includes information about the victim, circumstances surrounding the *325 crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence.
In Cargle v. State, 1995 OK CR 77, 909 P.2d 806, 828, cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996), this Court concluded that "victim impact evidence should be restricted to those unique characteristic which define the individual who has died, the contemporaneous and prospective circumstances surrounding that death, and how those circumstances have financially, emotionally, psychologically, and physically impacted on members of the victim's immediate family."
¶ 26 In the present case, the victim impact evidence was offered through the victim's parents, Gary and Linda Prill. Salazar challenges several portions of the Prills' testimony. At first glance, some portions of the challenged testimony appear problematic. However, when the victim impact testimony is read in its entirety and in context, it is clear no error occurred. The testimony demonstrated how the victim's death emotionally, psychologically and physically affected the victim's immediate family. See Cargle, 909 P.2d at 828. Moreover, the testimony properly provided the jury with a "quick glimpse" of the victim's personal characteristics. See Parker v. State, 1996 OK CR 19, 917 P.2d 980, 989, cert. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997) ("[V]ictim impact evidence relating to the personal characteristics of the victim and the emotional impact of the crime on the victim's family is a relevant consideration of Oklahoma's capital sentencing juries.").
¶ 27 Salazar further asserts error occurred when Mr. and Ms. Prill were permitted to make a recommendation regarding punishment. In Ledbetter v. State, 1997 OK CR 5, 933 P.2d 880, 890-91, this Court held that victim impact recommendations for a death sentence are admissible.[6] However, the Court cautioned that "this evidence will be viewed ... with a heightened degree of scrutiny as we apply the probative-value-versus-prejudicial-effect analysis." Ledbetter, 933 P.2d at 891. This evidence is limited to a simple and concise statement of the recommended sentence, without amplification. Id.
¶ 28 When given the opportunity to make a sentence recommendation, Mr. Prill simply stated, "I don't feel any remorse towards the defendant. I feel we should carry on with the death sentence." Ms. Prill stated, "I don't see that there's any other fitting end than death, the death sentence. The death sentence without benefit of judge and jury was what he gave freely to my child. I do not see that he can take from her and be entitled to keep his own." Applying the above analysis, we find nothing improper in Mr. Prill's brief sentence recommendation. We do find Ms. Prill's death penalty recommendation was over amplified. However, we find this error did not contribute to the sentence rendered in this case. The State's case in aggravation was strong. Moreover, the trial court properly instructed the jury on the use of victim impact evidence. Consequently, this allegation of error fails.
¶ 29 Salazar finally submits victim impact evidence operates as an irrelevant, improper, nonstatutory "superaggravator" that will always be present in every capital case. Salazar argues such evidence negates the narrowing function death penalty procedures are required to provide. This issue was addressed and rejected in Cargle, 909 P.2d at 826. See also Mollett v. State, 1997 OK CR 28, 939 P.2d 1, 12-13, cert. denied, ___ U.S. ___, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998). We are not persuaded to revisit this issue.
V. PROSECUTORIAL MISCONDUCT
¶ 30 In his seventh proposition of error, Salazar raises several specific allegations of prosecutorial misconduct. The majority of the challenged comments were not timely objected to at trial. Thus, as to these comments, Salazar has waived all but plain error. See Hunt v. State, 1990 OK CR 37, 793 P.2d 1366, 1368; Quilliams v. State, 1989 *326 OK CR 55, 779 P.2d 990, 992-93; Harris v. State, 1989 OK CR 34, 777 P.2d 1359, 1362. Upon careful review, we find no plain error occurred.
¶ 31 As to the remainder of this allegation, Salazar first contends the prosecutor improperly encroached upon the province of the jury by telling the jury that they had a duty to return a sentence of death. Salazar complains the prosecutor appealed to the "strengths" on the jury to work with those jurors who did not support the death penalty. This argument was met with an objection which was overruled by the trial court. Following Salazar's objection, the prosecutor continued:
Work with those jurors. Go over the evidence and work to a fitting end. And in this case, that fitting end is the death penalty.
When read in its entirety and in context, the prosecutor was merely asking the stronger members of the jury to assist the other jurors as they reviewed the evidence. The prosecutor was also making a proper recommendation as to punishment. See Paxton v. State, 1993 OK CR 59, 867 P.2d 1309, 1330, cert. denied, 513 U.S. 886, 115 S.Ct. 227, 130 L.Ed.2d 153 (1994).
¶ 32 Salazar submits next that the prosecutor misstated the law by arguing that Salazar's good conduct in prison was not relevant to whether he constituted a continuing threat to society. During closing arguments, Salazar limited the scope of the term "society" to mean prison society. During the State's final closing argument, the prosecutor responded by limiting the term's scope to the community at large if Salazar were released.
¶ 33 The term "society" as used in the "continuing threat" aggravating circumstance is not limited to any segment of the population. See Berget v. State, 1991 OK CR 121, 824 P.2d 364, 374, cert. denied, 506 U.S. 841, 113 S.Ct. 124, 121 L.Ed.2d 79 (1992). Therefore, both parties attempted to improperly limit the scope of the term "society." We note, however, that evidence of good prison behavior is relevant mitigation evidence. See Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986). Consequently, a prosecutor must be very cautious when responding to a defendant's argument that he does not constitute a continuing threat to society because he is a model prisoner and does not pose a threat to the prison population. The State must avoid any argument that a defendant's good prison behavior is irrelevant in a capital sentencing proceeding. Moreover, the State must itself avoid improperly limiting the term "society" by informing the jury that the term is not limited to any particular segment of the population.
¶ 34 Upon review of the instant case, we find the prosecutor did improperly attempt to limit the term "society" as used in the "continuing threat" aggravating circumstance. However, any error in this regard was harmless as it did not affect the jury's verdict. The prosecutor never argued Salazar's good prison conduct was not relevant mitigation evidence. Moreover, the jury was properly instructed on the "continuing threat" aggravating circumstance, and the evidence supporting this aggravating circumstance was more than sufficient.
¶ 35 Finally, Salazar contends his trial counsel was ineffective for failing to object to the challenged comments. For an ineffective assistance of trial counsel claim to be valid a defendant "must show (1) counsel's representation fell below an objective standard of reasonableness and (2) the reasonable probability that, but for counsel's errors, the results of the proceedings would have been different." Boyd v. State, 1996 OK CR 12, 915 P.2d 922, 925, cert. denied, 519 U.S. 881, 117 S.Ct. 207, 136 L.Ed.2d 142 (1996). See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Salazar has failed to demonstrate that any prejudice resulted. See Newsted v. State, 1995 OK CR 75, 908 P.2d 1388, 1393 ("[W]hen a claim of ineffective assistance of counsel can be disposed of through lack of prejudice this Court need not determine whether counsel's performance was deficient.").
¶ 36 Thus, having reviewed all the challenged comments, both individually and as a whole, we find no grounds for either reversal *327 or modification of Salazar's death sentence. This proposition of error is denied.
VI. JURY INSTRUCTIONS
¶ 37 In his first proposition of error, Salazar submits the trial court committed reversible error by refusing to specifically list mental retardation and good behavior in prison as mitigating circumstances. For the reasons stated in Smith v. State, 1996 OK CR 50, 932 P.2d 521, 534, cert. denied, ___ U.S. ___, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997),[7] this allegation of error fails. The trial court listed six mitigating factors for the jury's consideration. Salazar's "mental/emotional disturbance" was specifically listed as a mitigating circumstance. The jury was also instructed that it could find other mitigating circumstances existed and consider those circumstances as well. Moreover, defense counsel argued the mitigating value of Salazar's alleged mental retardation and good prison behavior during closing arguments.
¶ 38 Salazar contends in his sixth proposition of error that the trial court erred when it failed to instruct the jury further on the meaning of life without parole. During deliberations, the jury sent out a note to the trial court stating: "Life without Parole. Is there a chance or other reasons a person may get out of Prison?" The trial court brought the jurors back into the courtroom and responded, "The Court cannot answer that any further than what is already in the instructions. You have all the instructions that I can give you in this case, and you'll have to make your decision based solely on what you have at this point." Salazar submits the trial court's response rendered the sentencing proceeding unreliable. Without additional instructions or evidence, he contends defense could not correct or explain any misunderstanding or misapprehensions the jury may have had regarding the sentence of life without parole.
¶ 39 Although a jury may consider the possibility or absence of parole when determining what sentence to impose in a capital murder case, a trial judge is not required to explain the Oklahoma parole process to a jury. See Mollett, 939 P.2d at 11. See also Mayes v. State, 1994 OK CR 44, 887 P.2d 1288, 1318, cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995); McCracken v. State, 1994 OK CR 68, 887 P.2d 323, 334, cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995). "[T]he concept of parole is sufficiently clear to enable any rational juror to understand it without explaining it further." Mayes, 887 P.2d at 1318. Consequently, we find no error.[8]
¶ 40 In his twelfth proposition of error, Salazar submits the trial court issued contradictory instructions on whether the jury could consider sympathy for the defendant when deciding whether to impose the death sentence. In Jury Instruction Number 7, the court instructed the jury, "You should not let sympathy, sentiment, or prejudice enter your deliberations ...." Instruction Number 24 stated, "[E]xcept that in this part of the trial you may consider sympathy or sentiment for the defendant in deciding whether to impose the death sentence." Salazar contends the instructions may have confused the jury and precluded them from considering sympathy when determining if the death sentence should be invoked.
¶ 41 This Court has repeatedly rejected this issue in dual stage cases in which an "anti-sympathy" instruction has been incorporated into the penalty stage instructions. See Ledbetter, 933 P.2d at 899; Brown v. State, 1994 OK CR 12, 871 P.2d 56, 73, cert. denied, 513 U.S. 1003, 115 S.Ct. 517, 130 L.Ed.2d 423 (1994); Fox v. State, 1989 OK CR 51, 779 P.2d 562, cert. denied, 494 U.S. *328 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990). Although the instant case involves a single stage sentencing proceeding, we find the underlying rationale of the Court's prior rejections of this issue applicable to this case. See Fox, 779 P.2d at 574-75.
¶ 42 First, the jury was specifically instructed that "[m]itigating circumstances are those which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame. The determination of what circumstances are mitigating is for you to resolve under the facts and circumstances of this case." Second, the court listed six potentially mitigating factors for the jury's consideration. Some of these factors encompassed aspects of Salazar which could not be appreciated unless an element of sympathy was allowed. Finally, the jury was specifically instructed, "Even if you find that the aggravating circumstances outweigh the mitigating circumstances, you may impose a sentence of imprisonment for life or imprisonment for life without parole." Based on these instructions, a reasonable jury would clearly understand it could consider sympathy and sentiment when determining whether to impose the penalty of death. The instructions as a whole fairly and accurately stated the applicable law. See Cleary v. State, 1997 OK CR 35, 942 P.2d 736, 745, cert. denied, ___ U.S. ___, 118 S.Ct. 1528, 140 L.Ed.2d 679 (1998). This allegation of error fails.
¶ 43 Salazar asserts in his thirteenth proposition of error that the instructions given to the jury regarding mitigating circumstances were worded in permissive rather than mandatory language. Thus, he submits the jury could have completely ignored mitigating circumstances if they chose to do so. We have repeatedly rejected this same argument. See Mollett, 939 P.2d at 14-15; Ledbetter, 933 P.2d at 899; Pickens v. State, 1993 OK CR 15, 850 P.2d 328, 339, cert. denied, 510 U.S. 1100, 114 S.Ct. 942, 127 L.Ed.2d 232 (1994). We do so here again.
VII. GENERAL SENTENCING ISSUES
¶ 44 In his eleventh proposition of error, Salazar challenges the application of the "continuing threat" aggravating circumstance to this case. Salazar contends this Court's interpretation of this aggravator has been so subjective and undefined that as a result the applicable jury instructions are not sufficient to narrow the jury's discretion by objective criteria. This issue is well settled by stare decisis. See Toles v. State, 1997 OK CR 45, 947 P.2d 180, 192, cert. denied, ___ U.S. ___, 118 S.Ct. 2380, 141 L.Ed.2d 746 (1998); Al-Mosawi v. State, 1996 OK CR 59, 929 P.2d 270, 285, cert. denied, ___ U.S. ___, 118 S.Ct. 145, 139 L.Ed.2d 92 (1997); Malone v. State, 1994 OK CR 43, 876 P.2d 707, 717-18.
¶ 45 Salazar further maintains the trial court's instructions regarding this aggravator failed to require the State to prove beyond a reasonable doubt that he was a continuing threat. Contrary to this assertion, Jury Instruction No. 15 specifically instructed the jury that the State must prove beyond a reasonable doubt the existence of this aggravator. Salazar's contention, however, centers on the second prong of the instruction which required the State to prove a "probability" that Salazar would continue to pose a threat to society in the future. Salazar utilizes this language to support the true crux of his allegation, that the "continuing threat" aggravating circumstance is unconstitutionally vague. As previously discussed, this Court has consistently found that the "continuing threat" aggravator is neither vague nor overbroad. See Toles, 947 P.2d at 192. We find no reason to revisit this issue.
¶ 46 With regard to the "continuing threat" aggravator, Salazar finally contends the use of unadjudicated crimes in support of this aggravating circumstance violated due process and the prohibition against cruel and unusual punishments. In support of this aggravator, the State presented evidence of a Lawton convenience store burglary and the burglary of the Huddleston residence. This Court has upheld the use of unadjudicated crimes evidence to support the "continuing threat" aggravating circumstance. See Cannon v. State, 1998 OK CR 28, ¶ 5, 961 P.2d 838, 853; Hooper v. State, 1997 OK CR 64, 947 P.2d 1090, 1107, cert. denied, ___ U.S. ___, 118 S.Ct. 2353, 141 *329 L.Ed.2d 722 (1998). Moreover, we find the use of this evidence in this case was not unconstitutional.
¶ 47 Salazar submits in his fourteenth proposition of error that his sentence of death should be vacated as it constitutes cruel and unusual punishment. In support of this contention, Salazar contends there is a growing national consensus against the execution of the mentally retarded. He lists eleven states which have enacted laws prohibiting or restricting the execution of the retarded.[9] This Court is not persuaded by this argument at this time. In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the Supreme Court held that execution of the mentally retarded was not a per se violation of the Eighth Amendment. This issue is best left to the Legislature.
¶ 48 In his final proposition of error, Salazar asks this Court to consider the cumulative effect of the alleged errors and grant relief even if the individual errors do not, in themselves, justify such action. While a few irregularities did occur during this sentencing proceeding, even considered together, these errors were not so egregious or numerous as to have denied Salazar a fair sentencing trial. See Smith v. State, 1996 OK CR 50, 932 P.2d 521, 538, cert. denied, ___ U.S. ___, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997). This proposition of error is denied.
VIII. MANDATORY SENTENCE REVIEW
¶ 49 In accordance with 21 O.S.1991, § 701.13(C), we must determine (1) whether Salazar's sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and (2) whether the evidence supports the jury's finding of aggravating circumstances as enumerated in 21 O.S.1991, § 701.12.
¶ 50 After careful consideration and review of the evidence which supports the aggravating circumstances, as well as the evidence which may be considered mitigating, this Court finds the sentence of death was factually substantiated and appropriate. We further find the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor.
¶ 51 Therefore, finding no error warranting reversal or modification, the Judgment and Sentence of the District Court of Comanche County is AFFIRMED.
CHAPEL, P.J., concurs in result.
STRUBHAR, V.P.J., concurs in result.
LUMPKIN, J., specially concurs.
LANE, J., concurs in result.
STRUBHAR, Vice Presiding Judge: concurs in results.
¶ 1 I concur in results only for reason of stare decisis. I continue to believe that a trial court should provide a meaningful answer to questions from the jury when they ask about the meaning of life without parole.
LUMPKIN, Judge, specially concur.
¶ 1 I join in the Court's decision in this case and write to make a comment on two issues.
¶ 2 First, as to Proposition of Error XIV, the State in its brief correctly notes "that Defendant has failed in his argument to provide citations to caselaw of this Court or the United States Supreme Court in support of his contention that the execution of a retarded person is a per se violation of Oklahoma or federal law." (State's brief at 60-61). Rule 3.5(C)(5), Rules of The Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1998), provides "Failure to present relevant authority in compliance with these requirements will result in the issue being forfeited on appeal (citations omitted)". It should also be noted the record reveals the issue of whether or not Appellant is retarded is a disputed fact. It appears an evaluation in 1988 indicated Appellant has an I.Q. of 82, was of low but normal intelligence, and had no indication of neurological brain damage. (State's brief at Pg. 61). Appellant argues *330 he was functioning at a retarded level of intelligence at the time of the offense. (Appellant's brief at Pg. 93) (Appellant's reply brief at Pg. 15). The verdict of the jury is supported by the evidence in this case.
¶ 3 In addition, it should be noted the criteria set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for evaluating effectiveness of counsel has been further explained in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Applying the Lockhart standard, the record is void of any evidence the trial was rendered unfair and the verdict rendered suspect or unreliable.
LANE, J., concurs in results.
¶ 1 I concur in results because of the treatment of victim impact evidence for the same reasons I stated in Ledbetter v. State, 933 P.2d 880, 902 (Okl.Cr.1997).
NOTES
[1] (1) the defendant knowingly created a great risk of death to more than one person; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
[2] The Court found error occurred when the trial court failed to instruct the jury on the punishment option of life imprisonment without the possibility of parole.
[3] Some confusion later arose as to whether defense counsel had withdrawn his challenge for cause. As a result, defense counsel was given an opportunity to re-raise his challenge. The trial court denied counsel's challenge. The court stated, "Based on the Court's observations of the juror and the totality of her answers, I feel she can fairly consider all three punishment options."
[4] Salazar did not directly attack the September 8th confession, but claimed it was the product of the first interrogation.
[5] In fact, the medical examiner's report would have resolved any confusion which may have arisen due to Dr. Dix's brief and unexplained testimony regarding genital bruising.
[6] Salazar acknowledges this Court's decision in Ledbetter, but he requests that we reexamine this issue. We are not persuaded to revisit this issue.
[7] The Court in Smith found the jury was not precluded from considering the mitigating effect of Smith's brain dysfunction and borderline mental retardation as the jury was instructed "it could determine what it wanted to consider as mitigating evidence."
[8] In conjunction with this proposition of error, Salazar filed an "Application for Evidentiary Hearing on Extraneous Information Considered by Jury and Motion for New Trial" pursuant to Rule 2.1(A)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1995) and 12 O.S.1991, § 2606(B). Given the disposition of this issue, Salazar's motion for new trial and request for an evidentiary hearing are denied.
[9] These states include: Arkansas, Colorado, Georgia, Indiana, Kansas, Kentucky, Maryland, New Mexico, New York, Tennessee and Washington.
|
908 F.2d 974
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Harold TATE, Jr., Ronnie Tate, individually and doingbusiness as Tate Fabricating Company, Plaintiffs-Appellants,v.TRIALCO SCRAP, INC., CDM Holding Corporation, doing businessas Drossmet, Hartford Accident & IndemnityCompany, Defendants-Appellees.
No. 89-5834.
United States Court of Appeals, Sixth Circuit.
July 16, 1990.
Before NATHANIEL R. JONES, KRUPANSKY and DAVID A. NELSON, Circuit Judges.
PER CURIAM.
1
Plaintiff-appellants appeal the final judgment dismissing their complaint in this diversity action for damages to real estate.
I.
2
Trialco and CDM Holding Company ("CDM"), doing business as Drossmet, entered into a lease with Harold and Ronnie Tate ("Tate") to lease a building in Whitehouse, Tennessee for purposes of processing aluminium dross. Drossmet was first formed as a joint venture between Trialco and CDM. Subsequently, CDM withdrew from the joint venture. The lease required Drossmet to purchase general liability insurance, and Tate to maintain insurance coverage on the building itself. On June 12, 1987, fire caused substantial damage to the building (a total of $141,500.00). Under Tate insurance policy, $141,500.0 was paid by The Reliance Insurance Company (Tates' insurer) and the $1000.00 deductible paid by Tate. Throughout the six months it took to complete repairs, Trialco continued to pay rent under the lease.
3
The pertinent provisions of the lease dealing with building insurance, repair and maintenance, are as follows:
4
8. MAINTENANCE & OPERATIONS. Maintenance of the Building, grounds, and storage buildings shall be the responsibility of the Lessee. Any structural damage inflicted by the Lessee shall be repaired by and at the expense of the Lessee. The Lessor agrees to correct or repair defects in the building structure during the first year of this Agreement. Thereafter, repairs shall be the responsibility of the Lessee unless caused by faulty construction or defective design of the Building or the grounds.
5
10. LIABILITY OF LESSEE. The Lessee shall indemnify Lessor and hold Lessor harmless for all loss, damage, expense and/or penalty arising from any claim or allegations of personal injury or damage to property. In the event the Lessor sells or assigns this lease, the terms of this Agreement shall remain applicable and shall be applied and administered as written and signed by current Lessor.
6
11. DEFAULT. Lessee shall be in default if it fails to make monthly rental payment within ten (10) days of receiving notice of failure to pay from Lessor or if Lessee fails to maintain or insure the Building as herein provided. Upon default, Lessor shall have the right, in addition to any and all other rights it may have, to terminate this lease and take possession of the Building.
7
13. DESTRUCTION OF THE BUILDING. In the event the Building is damaged or destroyed through no fault or negligence of the Lessee and the Lessee's production is reduced by 30% as a result thereof, the Lessee shall be permitted to move and cease rental payments without being in default. In the event Lessee's production is not thereby reduced by 30% or Lessee elects to continue this Lease Agreement despite reduction in production by 30% or more, the rent payable under this lease shall be abated proportionately according to the floor area of the Building which is unusable by the Lessee. Such abatement shall continue for the period commencing with such damage or destruction and ending with the completion by the Lessor of such work or repair and/or construction to make the Building, or the damaged portion thereof, usable [sic] by the Lessee.
8
14. INSURANCE. Throughout the terms of this lease, the Lessor shall pay premiums for insurance coverage on the Building only. Any damage caused by the Lessee shall be paid for by the Lessee. The Lessee shall provide Certificate of General Liability Insurance up to $500,000.00 with one million dollar umbrella.
9
J.App. at 104. Final Lease, Exhibit 3 (emphasis added). This lease was adapted by Tate from a previous lease between the parties and approved by Trialco. Testimony from the parties on their intent upon entering the lease agreement is contradictory. Harold Tate, Jr. testified that his intent at the time the lease was executed was "to make sure that it was clear that anything that they tore up or anything that was destroyed by them, it was their baby." J.App. at 76. David Morris, who represented Drossmet during the lease transaction, testified that Drossmet was to provide the liability insurance and Tate was to provide insurance on the building itself, and that such insurance was for their mutual benefit. J.App. at 89-91. Tate and Reliance now seek to recover the amount expended on the building repairs.
10
Tate and Reliance originally filed their complaint in the Chancery Court for Robertson County, Tennessee against Trialco Scrap, CDM, and Hartford Accident and Indemnity Company ("Hartford"). At the time of the fire, Hartford provided certain insurance coverage to Trialco in connection with the Drossmet operation. On July 17, 1988, the complaint was removed to United States District Court for the Middle District of Tennessee. Trialco, CDM and Hartford filed motions for summary judgment upon completion of discovery. The district court granted only Hartford's motion for summary judgment. CDM was voluntarily dismissed by Tate and Reliance due to questions of diversity jurisdiction. Judge Morton conducted a bench trial on April 24, 1989 both on the original complaint and Trialco's counterclaim. On June 15, 1989, the court entered an order dismissing the complaint and counterclaim.
11
The district court held that in the absence of any controlling decision by Tennessee courts, Tennessee would follow the majority rule which states that if the lessor carries insurance on the building as provided for in the lease, there is a presumption that such insurance is for the benefit of both the lessor and the lessee. The court dismissed both the Tate complaint and Trialco's counterclaim. This timely appeal followed.
II.
12
Tate and Reliance argue that the district court erred in determining that there is no controlling Tennessee authority on the question of whether Tate's obligation to provide insurance for the building under the lease accrues both to the benefit of the lessor and lessee. They cite to Anderson v. Miller, 96 Tenn. 35, 33 S.W. 615 (1896) in which a landlord's fire insurance company was permitted to recover from a tenant responsible for a fire loss, and Miller v. Russell, 674 S.W.2d 290 (Tenn.App.1983) in which the court held that a named loss payee is an insured under the policy and that "no right of subrogation exists where the wrongdoer is also an insured under the same policy.' " Id. at 291 (citation omitted). The district court stated:
13
[T]he court certainly finds no fault with the general proposition that an insurance company may not seek subrogation against an insured.... [T]hat principle in itself, however, says nothing about whether under the facts of this case, the defendants may be considered an implied coinsured under Reliance's policy. If the defendants are implied coinsureds, then, of course judgment must be entered in their favor.
14
J.App. at 22. However, the district court correctly determined that neither Anderson nor Miller are on point as to the nature of Tate's obligation under the lease agreement, and whether Trialco is relieved of the responsibility for negligent destruction of the leased premises. J.App. at 21-22. The district court found that the lease in the instant case contained two critical components:
15
First, the lease on more than one occasion speaks of the lessee being responsible for damage inflicted by the lessee ... [T]his will be deemed generally as the repair obligation. Second, the lease requires the lessor to purchase insurance coverage on the building. Obviously, the first provision seems to hold the tenant responsible under the present situation, and the second seems to relieve the tenant of this burden.... [N]either Anderson nor Miller offer any guidance for resolving this kind of problem.
16
J.App. at 23.
17
Because the Tennessee Supreme Court has not addressed the issue in controversy in the instant case, the district court was forced discern what the Tennessee Supreme Court would do, and to make a decision from "all available data, including the decisional law of the state's lower courts, restatements of law, law review commentaries, and decisions from other jurisdictions on the majority rule." Grantham and Mann Inc. v. American Safety Products, Inc., 831 F.2d 596, 608 (6th Cir.1987). We overturn a district court's conclusions on questions of state law only if they are "clearly wrong". Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir.1980).
18
The district court discussed at length Evco Corp. v. Ross, 528 S.W.2d 20 (Tenn.1975) as the most relevant Tennessee division. In Evco, the Tennessee Supreme Court held that a lease rendered the lessor responsible for restoration of a structure damaged by fire, and noted that the lessor had "expressly covenanted with the tenant that [the lessor] would carry fire insurance for any damage to the building during the term of the lease, and simultaneously agreed to make all major repairs." Id. at 24. The district court reasoned that although the repair obligations in Evco were opposite those in the instant lease, the Evco court relied heavily on the provision obligating the lessor to carry fire insurance. The district court also examined St. Paul Surplus Lines v. Bishop's Gate Insurance Co., 725 S.W.2d 948 (Tenn.App.1986) in which the insurance and repair components of the lease were the opposite of Evco. In St. Paul Surplus Lines, the court held that where the lease agreement required the lessee to obtain and maintain fire insurance, the lessee must use the proceeds from such insurance to make repairs to the leased property caused by fire. As with Evco, the construction of the insurance provision in St. Paul was in conjunction with repair provisions which placed the burden on the same party. However, in instant case, the burden of the insurance provision is on the lessor while the burden of the repair provision is on the lessee. The district court concluded that while Evco and St. Paul "show that Tennessee courts recognize the exculpatory responsibility-shifting nature of lease provisions which require a certain party to purchase insurance," it was necessary to examine law from other jurisdictions in order to determine which provision--the insurance purchase clause or the repair provisions--should be given preeminence. J.App. at 30.
19
The district court examined case law from other jurisdictions and noted that the modern trend is to relieve the lessee from liability to the landlords' insurer for his own negligence, absent an express provision to the contrary. This excerpt from Alaska Insurance v. RCA Alaska Communications, Inc., 623 P.2d 1216, 1218 (Alaska Sup.Ct.1981) illustrates the majority rule:
20
In recent years a number of courts have denied a cause of action to landlords and the right of subrogation to their insurers, when the landlord covenants to carry fire insurance on the leased premises, and the fire damage is allegedly due to the negligence of the tenant. [Liberty Mut. Fire Ins. v. Auto Spring Supply Co., 59 Cal.App.3d 860, 131 Cal.Rptr. 211, 214-15 (1976); Cerny-Pickas & Co. v. C.R. Jahn Co., 7 Ill.2d 393, 131 N.E.2d 100, 103-04 (1956); New Hampshire Ins. Co. v. Fox Midwest Theaters, Inc. 203 Kan. 720, 457 P.2d 133, 140-141 (1969) Rock Springs Realty, Inc. v. Waid, 392 S.W.2d 270, 278 (Mo.1965); United States Fire Ins. Co. v. Phil-Mar Corp., 166 Ohio St. 85, 139 N.E.2d 330, 333 (1956); Sutton v. Jondahl, 532 P.2d 478, 482 (Okl.App.1975); Monterey Corp. v. Hart, 216 Va. 843, 224 S.E.2d 142, 146-47 (1976); Rizzuto v. Morris, 22 Wash.App. 951, 592 P.2d 688, 690-91 (1979). See also General Mills, Inc. v. Goldman, 184 F.2d 359, 365 (8th Cir.1950), cert. denied, 340 U.S. 947, 71 S.Ct. 532, 95 L.Ed. 683 (1951); Gordon v. J.C. Penney Co., 7 Cal.App.3d 280, 86 Cal.Rptr. 604, 606 (1979); Hardware Mut. Cas. Co. v. Bob White Oldsmobile-Cadillac, Inc., 46 Ill.App.3d 722, 5 Ill.Dec 186, 188, 3651 N.E.2d 325, 327 (1977).] Absent an express provision in the lease establishing the tenant's liability for loss from negligently started fires, the trend has been to find that the insurance obtained was for the mutual benefit of both parties, and that the tenant 'stands in the shoes of the insured landlord for the limited purpose of defeating a subrogation claim.'
21
The district court also determined that of the ten jurisdictions which have considered this issue in the 1980's, only one does not follow the majority rule.
22
Finally, the district court examined the public policy behind the majority rule. The court noted that sound business practice incorporates the cost of purchasing building insurance into the lease rate, and that "if the lessee pays for it, it is then only natural for him to expect to benefit." J.App. at 52. The district court determined that in the instant case, "the insurance policy itself leaves no room for the argument that the tenant did not pay for insurance coverage for his own negligence." J.App. at 51. The rates charged by Reliance reflected the increased coverage to allow for loss due to tenant's negligence, and the policy contained a provision which gave the lessor complete freedom to release the tenant from liability even after the loss had occurred. Id. It would be "an undue hardship to require a tenant to insure against his own negligence, when he is paying, through his rent, for the fire insurance which covers the premises," 'and then deny him the benefit of such insurance coverage. Safeco Ins. Co. v. Capri, 705 P.2d 659, 661 (Nev.1985). We therefore agree with the district court that the Tennessee courts would follow the majority rule.
III.
23
Tate and Reliance argue that even if the Tennessee Supreme Court were to adopt the majority rule, the district court applied it incorrectly in the instant case. They claim that the lease provision which requires Tate to purchase building insurance is unenforceable and that the repair provision determines that they should recover for Trialco's negligence in starting the fire. They also claim that the lease clearly expresses the parties' intent that the building insurance purchased by Tate was for the benefit of Tate only. They cite no authority for the proposition that the majority rule requires an enforceable obligation to buy insurance. However, the purpose of the majority rule is to supply a presumption, in the absence of clear expression to the contrary, that any insurance contemplated in a lease agreement inures to the mutual benefit of the lessor and lessee. In the instant case, if the landlord and tenant did not intend the insurance to be of mutual benefit, there would be no purpose for its inclusion in the lease. It would be illogical and unnecessary for the landlord to agree with the tenant to carry building insurance for the landlord's sole benefit. See Aetna Insurance Co. v. Craftwell, Inc., 757 F.2d 1030, 1031 (9th Cir.1985) (applying Idaho law and noting that "[t]o determine whether the tenant should be considered a co-insured, courts have looked to whether the insurance policy was obtained for the benefit of the tenant as well as the landlord."). Given that in the instant case the parties agreed, and Tate purchased, building insurance, the enforceability of that provision is not at issue. What is at issue, and what the district court determined, was that the parties intended the building insurance to be of mutual benefit. Certainly Trialco was required by the lease only to insure its own property, and to purchase general liability coverage to protect Tate against personal liability to third parties.
24
Only six paragraphs of the lease contain any language relevant to the parties' intent concerning the building insurance procured by Tate. Paragraph Six gives Drossmet the option of purchasing the property at the end of the lease term. Paragraph Eight provides for maintenance and repair and requires that any structural damage inflicted by the Lessee shall be repaired by and at the expense of the lessee. Paragraph Ten provides for indemnity of the lessor by the lessee or any claim of personal injury or damage to the property. Paragraph Eleven provides for the events of default which include failure by the lessee to maintain or insure the building as provided in the lease. Paragraph thirteen concerns the destruction of the building. Paragraph Fourteen concerns insurance. It reads:
25
INSURANCE. Throughout the terms of this lease, the Lessor shall pay premiums for insurance coverage on the Building. Any damage caused by the Lessee shall be paid for by the Lessee. The Lessee shall provide Certificate of General Liability Insurance up to $500,00.00 with a one million dollar umbrella.
26
J.App. at 113.
27
The district court determined that the statement that "[a]ny damage caused by the Lessee shall be paid for by the Lessee," is not a clear expression that the lessor's fire insurance is not for the benefit of the lessee, because it could simply refer to damage not covered by insurance, or it may have been intended as a preface to the following sentence regarding general liability. Likewise the general repair and maintenance obligations in the lease are not a sufficient manifestation of contrary intent. See, Alaska Insurance Co., 623 P.2d at 1219 n. 2 (Alaska 1981). Because the exculpatory effect of the insurance clause can be construed in harmony with all Trialco's repair and indemnity obligations, we hold that the district court correctly determined there was no clear expression of contrary intent in the lease.
IV.
28
Accordingly, the judgment of the district court is AFFIRMED.
29
DAVID A. NELSON, Circuit Judge, dissenting.
30
Under the modern majority rule, as I understand it, where a lease agreement obligates the landlord to buy fire insurance and "does not clearly establish the tenant's liability for fire loss caused by his own negligence, the tenant is, for the limited purpose of defeating an insurer's subrogation claim, an implied coinsured of the landlord." Safeco Insurance Co. v. Capri, 705 P.2d 659, 661 (Nev.1985). An insurance company cannot assert a subrogation claim against its own insured, see Miller v. Russell, 674 S.W.2d 290, 291 (Tenn.App.1983), so such a claim will not lie against the tenant insofar as the tenant is an "implied coinsured." And absent a lease provision making the tenant liable for his own negligence, the tenant is an implied coinsured insofar as the landlord has agreed to obtain fire insurance for the parties' mutual benefit. Cf. Alaska Insurance Co. v. RCA Alaska Communications, Inc., 623 P.2d 1216, 1218 (Alaska 1981):
31
"Absent an express provision in the lease establishing the tenant's liability for loss from negligently started fires, the trend has been to find that the insurance obtained was for the mutual benefit of both parties, and that the tenant 'stands in the shoes of the insured landlord for the limited purpose of defeating a subrogation claim.' " (Citations omitted.)
32
Although there is no Tennessee authority directly in point, the district court concluded, in the case at bar, that "the Tennessee Supreme Court would adopt the modern rule that an agreement for the lessor to purchase insurance will be presumed to be for the mutual benefit of both parties unless there is a clear expression of contrary intent." (Emphasis supplied.) I have no reason to quarrel with this conclusion. Unlike the district court, however, and unlike my colleagues here, I believe that there was "a clear expression of contrary intent" in this case. The insurance clause of the lease agreement clearly makes the tenant liable for loss from (among other things) negligently caused fires. Accordingly, in my view, the modern rule would not bar the landlord's fire insurance company from recovering on a subrogation claim brought against the tenant for negligence in starting the fire.
33
The pertinent provision of the lease is paragraph 14, captioned "INSURANCE." The first sentence of that paragraph obligates the lessor to pay premiums for insurance coverage on the building. If there were nothing more, this obligation could be presumed, under the modern rule, to have been for the mutual benefit of both parties not only in situations where the building might be damaged by the negligence of others, or by Act of God, but also in situations where damage might result from the lessee's negligence.
34
There is more, however. The very next sentence of the "INSURANCE" provision says, in the plainest of terms, that "[a]ny damage caused by the Lessee shall be paid for by the Lessee." (This is not a "surrender" or "re-delivery" clause, which is what the Alaska Supreme Court dealt with in Alaska Insurance, see 623 P.2d at 218 and 219 n2. This sentence is an integral part of the insurance clause itself, and as such it has no analogue in Alaska Insurance, Safeco Insurance, or Miller v. Russell.)
35
Tennessee law makes it reasonably clear, I think, that the phrase "any damage" is comprehensive enough to include damage caused by the tenant's negligence. See Chazen v. Trailmobile, Inc., 384 S.W.2d 1, 4 (Tenn.1964) (landlord's waiver of all right of recovery for "any loss resulting from fire" extends to fire loss caused by tenant's negligence). It is far from self-evident that a sentence saying the lessee shall pay for "any" lessee-caused damage can properly be read as suggesting that "any damage caused by the lessee shall not be paid for by the lessee except insofar as the damage exceeds the lessor's insurance coverage."
36
The district court thought that the second sentence of paragraph 14 "could very naturally have been included simply as an explanation that damage not covered by the insurance, whether to the building or to some other property, must be paid for by the lessee." Such a reading does not seem very natural to me, nor does it seem consistent with the Tennessee Supreme Court's holding in Chazen v. Trailmobile. The holding in Chazen, on the other hand, is entirely consistent with what the Tennessee Supreme Court said in Evco Corp. v. Rose, 528 S.W.2d 20, 23 (Tenn.1975), when it declared that "the words contained [in the lease] must be given their ordinary and customary usage, and not a strained or unnatural interpretation." Cf. St. Paul Surplus Lines Insurance Co. v. Bishops Gate Insurance Co., 725 S.W.2d 948, 951 (Tenn.App.1986) ("In construing contracts, the words expressing the parties' intention should be given their usual, natural and ordinary meaning [citation omitted], and neither party is to be favored in the construction").
37
The district court went on to suggest that "the provision could have been inserted as a preface to or explanation of the next requirement[,] which was for the Lessee to provide a certificate of general liability insurance." (The third and final sentence of paragraph 14 says that "[t]he Lessee shall provide Certificate of General Liability Insurance up to $500,000.00 with one million dollar umbrella.") But if the second sentence was inserted as a "preface" to the third, this would, if anything, buttress the conclusion that the parties meant what they said when they agreed that "any damage caused by the Lessee [including, per Chazen, damage caused negligently] shall be paid for by the Lessee." It makes the second sentence even "stronger," to borrow a term from Chazen, 384 S.W.2d at 4, if the parties contemplated not only that the lessee would be liable for lessee-caused damage, but also that the lessee would carry liability insurance for "up to $500,000.00 with one million dollar umbrella."1
38
I know of no persuasive public policy reason why the landlord's fire insurance company, after paying the landlord's claim, should not be permitted to recover from the negligent tenant, and why the negligent tenant, in turn, should not be permitted to recover from its own liability insurance carrier. It bears emphasis, in this connection, that it was not the courts that required the tenant to purchase insurance covering its own negligence; that was a requirement imposed by the parties themselves.
39
The parties having entered into a lawful contract, I should have thought the pertinent public policy consideration would be that the reasonable expectations of the contracting parties ought to be honored--that the lease contract ought to be enforced in accordance with its terms.2 And if the insurance clause of the lease contract says that the lessee shall pay for any damage caused by the lessee, I see no reason, under the law of Tennessee, why the lessee should not be required to do so.
1
The lessee apparently obtained the required liability coverage from the Hartford Accident and Indemnity Co., which company was joined as a defendant in the original subrogation action. The Hartford moved for summary judgment on the ground that "none of the plaintiffs has any standing to bring an action against Hartford directly." The plaintiffs--Reliance Insurance Co. and the landlord--then agreed to the dismissal of their claim against the Hartford. The voluntary dismissal by Reliance and its insured in no way suggests that the lessee does not have insurance protection in respect of damage caused by its own negligence. If it paid for such protection, the lessee is presumably entitled to receive it--and the practical result of the final judgment in this case appears to be a windfall for the Hartford, which gets to keep the lessee's liability insurance premiums without having to pay for the consequences of the lessee's negligence
2
The parties' testimony as to their intent in entering into the lease agreement, if such testimony is admissible, does not strike me as contradictory. That the landlord wanted "to make sure that it was clear that anything that they [the tenant] tore up or anything that was destroyed by them, it was their baby" is not inconsistent with the testimony of the tenant's representative that the tenant had an interest which he understood would be protected under a fire insurance policy provided by the landlord for their mutual benefit. Fires in leased premises are not always caused by the lessee, and it might well have been to the tenant's advantage for the landlord to have fire insurance coverage in place if the building had burned because of defective wiring, for example, or because of fire spreading from other premises, or because of the negligence or intentional misconduct of some third party
|
17 F.2d 15 (1927)
RADEMAKER
v.
E. D. FLYNN EXPORT CO., Inc.
No. 4921.
Circuit Court of Appeals, Fifth Circuit.
January 21, 1927.
Alex T. Howard and Gregory L. Smith, both of Mobile, Ala., for plaintiff in error.
Palmer Pillans and Alexis T. Gresham, both of Mobile, Ala. (Pillans, Cowley & Gresham, of Mobile, Ala., on the brief), for defendant in error.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
BRYAN, Circuit Judge.
John Rademaker, plaintiff, brought an action at law, under section 33 of the Merchant Marine Act of 1920, 41 Stat. 1007 (Comp. St. § 8337a), to recover damages for a personal injury sustained by him while he was employed as a seaman on the American schooner Resolute. The complaint alleges that the injury was caused by the negligence of the schooner's mate in the giving of an order which plaintiff was in duty bound to obey. It was originally brought only against the Whitney & *16 Bodden Shipping Company as owner of the schooner; but on May 27, 1925, within two years from the date of injury, plaintiff filed the following application:
"Comes the plaintiff and shows that, at the time he signed the articles of the schooner Resolute, the defendant was the owner, and so shown upon the articles of said schooner for the voyage; that he now learns that whilst said vessel was on the high seas, and before the injury complained of, a large share, to wit, twenty-eight and one-half sixty-fourths interest (28½/64) of the ownership of said vessel was transferred to the E. D. Flynn Export Company, Inc., a corporation having its principal office and place of business at Mobile, within the division and district aforesaid. Wherefore plaintiff moves the court to be allowed to amend his complaint by adding thereto as a party defendant the said E. D. Flynn Export Company, Inc., a corporation as aforesaid, and that the clerk be directed to issue to said E. D. Flynn Export Company, and deliver to the marshal for service, proper process to duly make said corporation a defendant hereto."
On the same day the District Judge signed an order "that the plaintiff is allowed to amend his complaint, and make the said E. D. Flynn Export Company a party defendant," and process was issued and served on it. After the expiration of two years from the date of injury, plaintiff formally amended his complaint by incorporating in it the E. D. Flynn Export Company as a party defendant, and alleging its interest as a part owner of the schooner, in accordance with the averments of fact contained in his previous application for leave to amend, and that company, hereinafter called defendant, thereafter pleaded the general issue of not guilty, and also filed a number of special pleas to the merits, including a plea of the statute of limitations of two years prescribed by section 6 of the federal Employers' Liability Act (Comp. St. § 8662), and adopted by the Merchant Marine Act, as amended. Another special plea is to the effect that defendant, at the time of plaintiff's injury, was the owner of 57/128 interest in the Resolute, and was therefore entitled to the benefits of the limitation of liability allowed by section 4283 of the Revised Statutes (Comp. St. § 8021).
The jury returned a verdict against the Whitney & Bodden Shipping Company, and assessed damages at $1,100, but were instructed by the court, over the objection and exception of plaintiff, that they could not find a verdict against the E. D. Flynn Export Company. Judgment was entered up against the shipping company for 57/128 of the verdict, but the suit was dismissed as against the defendant export company, for the reason, as appears from a written opinion of the District Judge, that, as suit was not brought against that defendant within two years from the time the cause of action accrued, it was barred by the statute of limitations. The evidence has not been brought up by a bill of exceptions, and is therefore not before us.
Whether the trial court erred in ruling that the cause of action against defendant was barred is the question which plaintiff seeks to present on this writ of error. Defendant insists that, as the evidence is not before us, it is impossible to determine that the direction of a verdict in its favor was not justified by reason of a lack of proof sufficient to sustain plaintiff's cause of action against it; that the District Judge's opinion cannot take the place of a bill of exceptions, and hence that it is not made to appear that the statute of limitations, which was specially pleaded, formed the basis of the instruction for a verdict and of the judgment for defendant.
The act of negligence complained of was that of the mate of the schooner. Liability was asserted against both defendants, upon the doctrine of respondeat superior, merely because, as owners of the schooner, they were chargeable with the negligence of the mate. If for any reason one defendant was not liable, it would seem that for the same reason the other was not. That defendant was a part owner is admitted by a special plea. Section 9470, Code of Alabama, provides that, in actions for injuries to the person, the general issue is not guilty, and puts in issue all the material allegations of the complaint. But the capacity in which one sues or is sued stands admitted in the absence of a special plea. Under that section the general issue in a tort action only denies the wrong and injury alleged in the complaint. Louisville & N. R. Co. v. Trammell, 93 Ala. 350, 9 So. 870; Espalla v. Richard, 94 Ala. 159, 10 So. 137; Fourth National Bank v. Portsmouth Cotton Oil Refining Corp. (C. C. A.) 284 F. 718.
The opinion of the trial court cannot take the place of a bill of exceptions. Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478. But we think such opinion may properly be examined by an appellate court for the purpose of ascertaining the grounds on which rulings in the course of a trial were made, and judgment entered. *17 Gross v. U. S. Mortgage Co., 108 U. S. 477, 486, 2 S. Ct. 940, 27 L. Ed. 795; Adams County v. Burlington R. R. Co., 112 U. S. 123, 129, 5 S. Ct. 77, 28 L. Ed. 678; Virginian Ry. Co. v. United States (Dec. 13, 1926) 47 S. Ct. 222, 71 L. Ed. ___. In this case, the opinion of the District Judge conclusively shows that a verdict was directed and judgment entered for defendant upon the sole ground that plaintiff's cause of action was barred by statute, because defendant was not proceeded against within two years from the date of plaintiff's injury. In our opinion, the error assigned is sufficiently presented for review.
Section 6 of the federal Employers' Liability Act provides that no action shall be maintained under it, unless it is begun within two years from the date the cause of action accrued, and is applicable to suits under the Merchant Marine Act. Panama R. R. Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 867. The limitation of that section is upon the right and not merely upon the remedy. Atlantic Coast Line R. R. Co. v. Burnette, 239 U. S. 199, 36 S. Ct. 75, 60 L. Ed. 226. It follows that, if plaintiff did not begin his action within two years from the time it accrued, the judgment of the court below was correct. But we are of opinion that the action was begun within the statutory period. Plaintiff's application was more than a mere motion for leave to amend. It was a complete amendment, when considered in the light of the original complaint.
Leave was not asked to change any averment of fact upon which liability was asserted, or the grounds upon which recovery was originally sought, but merely to make defendant a party because of its ownership of a stated interest in the schooner. In this state of the pleadings, process was issued and served upon defendant, before any right of action against it was barred. While there are cases to the contrary, we think the better rule, supported by the weight of authority, is that an application for leave to amend, as full and comprehensive as this one is in its averment of facts, stands in the place of an actual amendment. 31 Cyc. 387; Palmer v. Lesne, 3 Ala. 741; Carter v. Fischer, 127 Ala. 52, 28 So. 376; New York Central, etc., R. R. Co. v. Kinney, 260 U. S. 340, 43 S. Ct. 122, 67 L. Ed. 294.
As the applicable statute is a limitation upon the right of action, and does not affect the remedy only, our conclusion is not influenced by the theory that it can be waived by a defendant after it begins to run, either by treating a motion to amend as sufficient, or by failing to insist upon a formal amendment.
The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
|
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FREEDOM WATCH, INC.,
Plaintiff,
v. Civil Action No. 14-1832 (JEB)
UNITED STATES DEPARTMENT OF
STATE,
Defendant.
MEMORANDUM OPINION
Pursuant to a Freedom of Information Act request, Plaintiff Freedom Watch, Inc., seeks
documents relating to a type of sanctions waiver the U.S. State Department granted to certain
countries doing business with Iran. The Court previously granted summary judgment to State in
2015, concluding that it had adequately but unsuccessfully searched for such records. See
Freedom Watch, Inc. v. U.S. Dep’t of State (Freedom Watch I), 77 F. Supp. 3d 177 (D.D.C.
2015). During the pendency of Plaintiff’s appeal therefrom, it was publicly revealed that former
Secretary of State Hillary Clinton had used a personal email and server to conduct Department
business. Reopening the case, the Court subsequently oversaw State’s search of those emails for
responsive records and in April 2016 again granted its summary-judgment motion. See Freedom
Watch, Inc. v. U.S. Dep’t of State (Freedom Watch II), 2016 WL 1555672 (D.D.C. Apr. 15,
2016). When news broke a few months later that the Federal Bureau of Investigation had
recovered and given to State thousands of new documents related to Clinton’s personal email and
server, Freedom Watch filed the instant Motion for Relief from Judgment, which the Court will
now deny.
1
I. Background
On May 21, 2013, Plaintiff submitted the following FOIA request to the U.S. State and
Treasury Departments:
Any and all documents that refer or relate in any way to the final
decisions to grant waivers to all countries and other interests doing
business with the Islamic Republic of Iran pursuant to the
Comprehensive Iran Sanctions, Accountability, and Divestment Act
[CISADA], 22 U.S.C. § 8501 et[] seq. or Executive Order 13553.
ECF No. 57-2 (Declaration of John F. Hackett), Exh. 1 at 2. Upon receipt of this request, State
undertook several detailed steps, including the search of eleven separate offices or records
systems. See Freedom Watch I, 77 F. Supp. 3d at 179-80. No responsive documents were
located. Id. at 180. Unsatisfied with that result, Plaintiff brought suit and State (Treasury having
been dismissed) moved for summary judgment. Id. In granting judgment on the adequacy of the
search — the only issue Plaintiff had raised — the Court rejected several challenges, finding
that: (1) four press releases trumpeted by Freedom Watch as having not been produced were, in
actuality, not responsive to the request; (2) Defendant was not required to also search for
documents relating to waivers issued under the National Defense Authorization Act of 2012,
where the request had exclusively cited CISADA and Executive Order 13553; (3) State had
consulted with appropriate individuals in conducting the search; and (4) discovery regarding the
search process was not warranted. Id. at 182-83.
Plaintiff appealed, and fairly soon thereafter, news reports about Clinton’s private email
account and server appeared. Seizing on this development, Freedom Watch asked the Court of
Appeals to remand the matter for discovery and an order to show cause why Clinton should not
be held in contempt. The D.C. Circuit ultimately ordered that “the case be remanded for the
district court to manage record development and oversee the search of the former Secretary’s
2
emails for records responsive to Freedom Watch’s FOIA request.” ECF No. 54 (Mandate). The
Court of Appeals further ordered that “the motion for discovery and other relief be denied
without prejudice to Freedom Watch seeking the same relief from the district court on remand.”
Id.
This Court immediately set a status conference, at which it ordered the government to
search the emails in its possession and advise Plaintiff of the results. See Minute Orders of Nov.
3, 2015, and Nov. 24, 2015. State did so and then renewed its motion for summary judgment,
explaining that it had “conducted a supplemental search” of “approximately 30,000 e-mails,
comprising approximately 52,455 pages,” and located no responsive records. See Hackett Decl.,
¶¶ 10-11, 14 (footnote omitted). Freedom Watch believed Defendant’s efforts were insufficient
and opposed the motion on essentially the same grounds that the Court had previously found
wanting.
The Court concluded that State’s search for responsive materials contained in the new
Clinton emails was adequate, finding that: (1) State’s search was not deficient simply because it
found no responsive documents, and the myriad press releases and newspaper articles Plaintiff
cited did not suggest otherwise, as none mentioned CISADA or Executive Order 13553, the
subjects of Plaintiff’s FOIA request; (2) discovery was not warranted; and (3) Defendant was not
required to canvass offices within State for documents, as the search was limited to a fixed set of
emails. See Freedom Watch II, 2016 WL 1555672, at *4-5. The Court, accordingly, granted
State’s renewed motion for summary judgment. Id. at *5.
A few months after the Court again entered judgment in favor of Defendant, and while
Plaintiff’s appeal was pending, “the FBI delivered to State discs containing information
recovered by the FBI during the course of its investigation into former Secretary Clinton’s use of
3
a personal email account.” Opp. at 3-4. This Court, in fact, is overseeing in another matter the
review of approximately 14,900 emails on the first of those discs. See Judicial Watch, Inc. v.
U.S. Dep’t of State, No. 15-687, Minute Orders of Aug. 22, 2016, and Sept. 23, 2016. In light of
those new emails, Freedom Watch has now filed a Motion for Relief from Judgment under
Federal Rules of Civil Procedure 60(b)(2) and (3). See Mot. at 3.
II. Legal Standard
Federal Rule of Civil Procedure 60(b) governs the vacating of judgments. As relevant
here, it permits the Court to “relieve a party or its legal representative from a final judgment,
order, or proceeding for the following reasons: . . . (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to move for a new trial under Rule
59(b),” and “(3) fraud . . . , misrepresentation, or misconduct by an opposing party.”
To obtain relief from a judgment under Rule 60(b)(2), a movant must demonstrate that:
(1) the newly discovered evidence [is] of facts that existed at the
time of trial or other dispositive proceeding, (2) the [party seeking
relief] must have been justifiably ignorant of [the evidence] despite
due diligence, (3) the evidence must be admissible and of such
importance that it probably would have changed the outcome, and
(4) the evidence must not be merely cumulative or impeaching.
Lightfoot v. District of Columbia, 555 F. Supp. 2d 61, 68 (D.D.C. 2008) (quoting United States
v. Int’l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001)) (alterations in original).
To obtain relief under Rule 60(b)(3), a movant must demonstrate that the “fraud
prevented him or her from fully and fairly presenting his or her case, and that the fraud is
attributable to the party or, at least, to counsel.” Green v. Am. Fed. of Labor & Congress of
Indus. Orgs., 811 F. Supp. 2d 250, 253 (D.D.C. 2011) (citation and internal quotation marks
omitted).
4
III. Analysis
Given that Plaintiff seeks relief under both subsections of the Rule, the Court will look at
each separately. As to Rule 60(b)(2), Freedom Watch contends that the thousands of recovered
emails constitute newly discovered evidence. See Mot. at 3. State initially took the position that
Plaintiff was not entitled to relief under 60(b)(2) because it could not demonstrate that the new
emails “probably would have changed the outcome.” Opp. at 5 (quoting Epps v. Howes, 573 F.
Supp. 2d 180, 185 (D.D.C. 2008)). Its first two searches were so comprehensive, it argued, that
“the only reasonable inference” to be drawn was “that a search of the FBI materials” using the
same search terms “would yield the same result, that is, no responsive records.” Id. at 6.
The Court found this argument potentially problematic, given that State could not know
what the new emails contained absent a search, and communicated its skepticism to the parties at
a status hearing. See Minute Order of Oct. 6, 2016. State thus agreed to file a Supplemental
Opposition, see id., and did so on October 13, 2016. See ECF No. 69. In it, Defendant
explained that it had searched the new documents provided to it by the FBI and located no
responsive records. See id. at 2. According to Eric F. Stein, the Acting Co-Director of the
Office of Information Programs and Services at State, the Department’s search efforts involved
the following steps:
An A/GIS/IPS Analyst with knowledge of both the request and the relevant records
system conducted a full-text search of the documents provided to the Department
by the FBI. The analyst searched these electronic records using the search terms:
“Iran” or “Sanctions” or “13553” or “Comprehensive Iran Sanctions,
Accountability, and Divestment Act” or “CISADA” as separate search terms in
combination with “Grant Waivers” or “Business.” There was no date restriction.
ECF No. 69-1 (Declaration of Eric F. Stein), ¶ 6.
This search used the same terms employed in the two prior searches, each of which the
Court found adequate. See Freedom Watch II, 2016 WL 1555672, at *2; Freedom Watch I, 77
5
F. Supp. 3d at 181-83; Stein Decl. ¶ 6. This method continues to appear entirely reasonable to
the Court; indeed, Freedom Watch in its Reply does not even challenge the manner of the search.
Because Defendant’s adequate search revealed no responsive records, it is clear that the
documents given to State by the FBI after the Court’s April 2016 judgment would not “have
changed the outcome” of the prior proceedings. See Epps, 573 F. Supp. 2d at 185 (quoting
Lightfoot, 555 F. Supp. 2d at 66-67). Plaintiff thus is not entitled to relief under Rule 60(b)(2).
As to Rule 60(b)(3), Plaintiff has presented absolutely no evidence of fraudulent activity
related to State’s searches, let alone the requisite “clear and convincing evidence.” Shepherd v.
Am. Broadcasting Cos., Inc., 62 F.3d 1469, 1477 (D.C. Cir. 1995). In addition, there is no
evidence that State had possession of any of the emails recently provided to it by the FBI at the
time of its earlier searches. In fact, Freedom Watch’s sole argument in response to State’s
contention that Plaintiff is not entitled to 60(b)(3) relief is a request for discovery — specifically,
depositions of “the individuals who signed affidavits on behalf of the U.S. Department of State.”
Reply at 2. But as this Court has twice before explained, discovery is neither necessary nor
appropriate here. See Freedom Watch II, 2016 WL 1555672, at *4; Freedom Watch I, 77 F.
Supp. at 183. Perhaps the third time will be the charm. Again,
“[d]iscovery is generally inappropriate in a FOIA case.” Gov’t Accountability
Project v. U.S. Dep’t of Justice, 852 F. Supp. 2d 14, 27 n.5 (D.D.C. 2012) (citation
and quotation marks omitted). More important, Plaintiff here has offered no valid
reason to question the good faith or efficacy of State’s search. See Military Audit
Project v. Casey, 656 F.2d 724, 751 (D.C. Cir. 1981) (affirming denial of discovery
where appellants had not “succeeded in raising substantial questions . . . concerning
the substantive content of the affidavits relied upon by defendants”) (ellipsis in
original; internal quotation marks and footnote omitted).
Freedom Watch II, 2016 WL 1555672, at *4 (quoting Freedom Watch I, 77 F. Supp. at 183)
(emphasis added). Plaintiff is not entitled to relief under 60(b)(3) either.
6
IV. Conclusion
For the foregoing reasons, the Court will deny Plaintiff’s Motion for Relief from
Judgment. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 21, 2016
7
|
7 F.2d 603 (1925)
ELY-NORRIS SAFE CO.
v.
MOSLER SAFE CO.[*]
No. 264.
Circuit Court of Appeals, Second Circuit.
April 6, 1925.
Mayer, Warfield & Watson, of New York City (Julius M. Mayer, F. P. Warfield, and Lawrence Bristol, all of New York City, of counsel), for appellant.
Samuel Owen Edmonds, of New York City, for appellee.
Before HOUGH, MANTON, and HAND, Circuit Judges.
HAND, Circuit Judge (after stating the facts as above).
This case is not the same as that before Mr. Justice Bradley in New York & Rosendale Co. v. Coplay Cement Co. (C. C.) 44 F. 277, 10 L. R. A. 833. The plaintiffs there manufactured cement at Rosendale, N. Y., but it did not appear that they were the only persons making cement at that place. There was no reason, therefore, to assume that a customer of the defendant, deceived as to the place of origin of the defendant's cement, and desiring to buy only such cement, would have bought of the plaintiffs. It resulted that the plaintiffs did not show any necessary loss of trade through the defendant's fraud upon its own customers. We agree that some of the language of the opinion goes further, but it was not necessary for the disposition of the case.
American Washboard Co. v. Saginaw Mfg. Co., 103 F. 281 (C. C. A. 6), 43 C. C. A. 233, 50 L. R. A. 609, was, however, a case in substance like that at bar, because there the plaintiff alleged that it had acquired the entire output of sheet aluminum suitable for washboards. It necessarily followed *604 that the plaintiff had a practical monopoly of this metal for the articles in question, and from this it was a fair inference that any customer of the defendant, who was deceived into buying as an aluminum washboard one which was not such, was a presumptive customer of the plaintiff, who had therefore lost a bargain. This was held, however, not to constitute a private wrong, and so the bill was dismissed.
Furthermore, we do not agree with the plaintiff that cases like Federal Trade Commission v. Winsted Hosiery Co., 258 U. S. 483, 42 S. Ct. 384, 66 L. Ed. 729, and our decision in Royal Baking Powder Co. v. Federal Trade Commission, 281 F. 744, are in his favor. These arose under the Federal Trade Commission Act (Comp. St. §§ 8836a-8836k) where it is only necessary to show that the public interest has been affected. The defendant's customers in such cases had an undoubted grievance, and this was thought to be enough to justify the intervention of the Federal Trade Commission. It by no means follows from such decisions that a competing manufacturer has any cause of suit.
We must concede, therefore, that on the cases as they stand the law is with the defendant, and the especially high authority of the court which decided American Washboard Co. v. Saginaw Mfg. Co., supra, makes us hesitate to differ from their conclusion. Yet there is no part of the law which is more plastic than unfair competition, and what was not reckoned an actionable wrong 25 years ago may have become such today. We find it impossible to deny the strength of the plaintiff's case on the allegations of its bill. As we view it, the question is, as it always is in such cases, one of fact. While a competitor may, generally speaking, take away all the customers of another that he can, there are means which he must not use. One of these is deceit. The false use of another's name as maker or source of his own goods is deceit, of which the false use of geographical or descriptive terms is only one example. But we conceive that in the end the questions which arise are always two: Has the plaintiff in fact lost customers? And has he lost them by means which the law forbids? The false use of the plaintiff's name is only an instance in which each element is clearly shown.
In the case at bar the means are as plainly unlawful as in the usual case of palming off. It is as unlawful to lie about the quality of one's wares as about their maker; it equally subjects the seller to action by the buyer. Indeed, as to this the case of Federal Trade Commission v. Winsted Hosiery Co., supra, is flatly in point, if authority be needed. The reason, as we think, why such deceits have not been regarded as actionable by a competitor, depends only upon his inability to show any injury for which there is a known remedy. In an open market it is generally impossible to prove that a customer, whom the defendant has secured by falsely describing his goods, would have bought of the plaintiff, if the defendant had been truthful. Without that, the plaintiff, though aggrieved in company with other honest traders, cannot show any ascertainable loss. He may not recover at law, and the equitable remedy is concurrent. The law does not allow him to sue as a vicarious avenger of the defendant's customers.
But, if it be true that the plaintiff has a monopoly of the kind of wares concerned, and if to secure a customer the defendant must represent his own as of that kind, it is a fair inference that the customer wants those and those only. Had he not supposed that the defendant could supply him, presumably he would have gone to the plaintiff, who alone could. At least, if the plaintiff can prove that in fact he would, he shows a direct loss, measured by his profits on the putative sale. If a tradesman falsely foists on a customer a substitute for what the plaintiff alone can supply, it can scarcely be that the plaintiff is without remedy, if he can show that the customer would certainly have come to him, had the truth been told.
Yet that is in substance the situation which this bill presents. It says that the plaintiff alone could lawfully make such safes, and that the defendant has sold others to customers who asked for the patented kind. It can make no difference that the defendant sold them as its own. The sale by hypothesis depended upon the structure of the safes, not on their maker. To be satisfied, the customer must in fact have gone to the plaintiff, or the defendant must have infringed. Had he infringed, the plaintiff could have recovered his profit on the sale; had the customer gone to him, he would have made that profit. Any possibilities that the customers might not have gone to the plaintiff, had they been told the truth, are foreclosed by the allegation that the plaintiff in fact lost the sales. It seems to us merely a corollary of Federal Trade Commission v. Winsted Hosiery Co., supra, that, if this can be proved, a private suit will lie.
Decree reversed.
NOTES
[*] Certiorari granted 45 S. Ct. 515, 69 L. Ed. ___.
|
611 F.Supp. 9 (1984)
Jerry REED and T.S.C. Productions, Inc., Plaintiffs,
v.
AMOCO OIL COMPANY, Defendant.
No. 3-84-0576.
United States District Court, M.D. Tennessee, Nashville Division.
October 3, 1984.
*10 *11 Mark J. Patterson, Don L. Smith, Nashville, Tenn., for plaintiffs.
Robert J. Walker, R. Dale Grimes, Nashville, Tenn., Robert M. Newbury, Chicago, Ill., for defendant.
MEMORANDUM
WISEMAN, Chief Judge.
I. Introduction
Before this Court is a motion by plaintiffs, Jerry Reed and Thompson Station Congregation, Inc. [Jerry Reed], for a preliminary injunction to stop defendant Amoco Oil Company from using the advertising slogan "We go that extra mile" in its nationwide advertising campaign. Plaintiffs allege that defendant's use of this slogan infringes upon their own use of the phrase "Goin' the extra mile" in conjunction with an advertisement campaign that plaintiffs developed and have licensed to various independent tire dealers and distributors for use in promoting tires and automotive services. Plaintiffs maintain that the alleged infringement violates federal statutory trademark law, (15 U.S.C. § 1051 et seq.), the common law of trademark, and Tennessee statutory law concerning dilution of a trademark (T.C.A. § 47-25-433). The Court denies plaintiffs' motion for preliminary injunction because it finds that plaintiffs have failed to demonstrate a likelihood of success on the merits as to any of the three claims against defendant.
II. Facts
Plaintiffs own the rights to and license an advertising campaign package developed sometime in 1982 that features the voice and image of Jerry Reed and uses as its theme the phrase "Goin' the extra mile." Plaintiffs, however, have not registered the phrase with the Federal Patent and Trademark Office. The advertising campaign package was offered to independent tire dealers across the country, with some twenty-one tire retailers and distributors in fourteen states licensing the package. The phrase "Goin' the extra mile" functions both as a tag line for the entire advertisement package in offering the campaign to tire dealers and as a slogan for the tire dealer/licensee to use in selling his products to the general public.
Apparently, in November of 1983, defendant Amoco Oil Company began a nationwide advertising campaign that used the phrase "We go that extra mile" in conjunction with its well-known trademark/logo "AMOCO." Defendant's expenses in advertising its products using "We go that extra mile" as a tag line have been in excess of fourteen million dollars. The advertising campaign used by Amoco was to promote the sale of gasoline, motor oil, and automobile maintenance services as well as to promote the general image of Amoco as being an oil company that would make that extra effort to satisfy its customers.
Because of the appearance of the Amoco campaign, plaintiffs allege that they were and are unable to further market their "Goin' the extra mile" campaign. However, no fact before this Court indicates that Amoco had an evil motive in selecting the form of its advertisement campaign or that Amoco purposefully tried to frustrate the continued licensing of plaintiffs' campaign to independent tire dealerships. Furthermore, Amoco does not manufacture or sell tires nor does it require its dealers to carry a certain type of tire.
III. Federal Statutory Claim
Plaintiffs move this Court to issue a preliminary injunction under 15 U.S.C. § 1125(a) against Amoco's further use of the phrase "We go that extra mile." This Court in a recent trademark case stated the factors to consider in deciding whether to issue a preliminary injunction under the federal statute. The factors are "(a) whether the plaintiff has shown a strong or substantial likelihood of success on the merits, (b) whether the plaintiff has shown irreparable injury, (c) whether the issuance of a preliminary injunction would cause substantial harm to others, and (d) whether the public interest would be served by issuing a preliminary injunction." WLWC *12 Centers, Inc. v. Winners Corp., 563 F.Supp. 717, 726 (M.D.Tenn.1983).
a. Likelihood of Success on the Merits
In examining plaintiffs' likelihood of success on the merits this Court must proceed from a general propositioni.e., when dealing with an unfair competition/trademark infringement case, courts recognize that one's original use of a phrase should be protected if the phrase is distinctive. Nevertheless, courts are reluctant to allow one to obtain monopoly rights to the use of a common word or phrase. Jewel Companies, Inc. v. Westhall Co., 413 F.Supp. 994, 1000 (N.D.Ohio 1976) (citing Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 U.S. 446, 31 S.Ct. 456, 55 L.Ed. 536 (1911); see Amstar Corp. v. Domino's Pizza, Inc., 615 F.2d 252, 265 (5th Cir.1980). In order to be protectable under trademark law the term or phrase must identify the source of the product or service to its consuming public and also distinguish that product from others. See 1 J. Gilson, Trademark Protection and Practice § 2:01 (1974). The more common a phrase is, the more it appears in everyday parlance, less is the likelihood that the phrase identifies the source of a certain product, and less is the likelihood that it deserves trademark protection absent a strong showing of a protectable interest by the party who first used the phrase and claims trademark infringement. Compare Norm Thompson Outfitters, Inc. v. General Motors Corp., 448 F.2d 1293 (9th Cir. 1971) (prior use of phrase "Escape from the ordinary" not protectable); and B & L Sales Associates v. H. Daroff & Sons, Inc., 421 F.2d 352 (2d Cir.1970) (prior use of phrase "come on strong" not protectable) with Application of Marriott Corporation, 517 F.2d 1364 (C.C.P.A.1975) (prior use of phrase "We smile more" is deemed protectable in light of subsequent use of same phrase by a rival hotel chain).
At issue in the instant case is the use of some form of the phrase "to go the extra mile." In order for plaintiffs to show a likelihood of success on the merits they must illustrate that they have a protectable interest in the use of the phrase. Whether the phrase is protectable or not depends upon how the phrase is classified. Trademark law divides all terms/phrases into four categories: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful. See Winners Corp., 563 F.Supp. at 719. If the term is generic, it identifies the product (e.g., Band-Aid and aspirin) rather than the producer and thus is not protectable as a trademark. If a term is descriptive of a good or service, it describes to the purchasing public some characteristic, quality function, component or other property of the product (e.g., "Finger lickin' good"). J. Gilson, supra § 2.03. As such the term does not identify the source of the product, and therefore in order for a descriptive phrase to be protectable, it must have a "secondary meaning" which associates the product and its source to the consumer (e.g., in the mind of the consumer "Finger lickin' good" equals Kentucky Fried Chicken). If a phrase is suggestive it calls upon the consumer to use his imagination to associate the phrase with the source of the product or service and as such is protectable under trademark law (e.g., term "Metalock" would describe literally a lock made of metal, but as used it suggests to the consumer's imagination a process offered by a particular source to make cold repairs on cracked metal. Engineered Mechanical Services v. Applied Mechanical Technology, 584 F.Supp. 1149 (M.D.La.1984)). Finally, if the term is fanciful or arbitrary, it is considered inherently distinctive and thus protectable under trademark law because the term forces the consumer in a non-contextual, arbitrary manner to link a certain product with its source (e.g., "Kodak" or defendant's own "Amoco"). See Amoco Oil Company v. Amerco, Inc., 192 U.S.P.Q. 729 (CCPA 1976); see also 1 J. McCarthy, Trademarks and Unfair Competition, §§ 11:2-11:4 (1973). The Court finds that the phrase "Goin' the extra mile" is not generic. Aside from this finding, the Court encounters difficulty in further classifying what type of phrase "Goin' the extra mile" should be. Further, classification is difficult because of the dual use of *13 the phrasefirst as a thematic tag line used by plaintiffs to represent the entire advertisement package to tire dealers and distributors, and second as a slogan for the tire dealers to use in trying to sell their tires to the general public. To further categorize the phrase within the arbitrary suggestivedescriptive spectrum this Court must examine the associational ties that the relevant consuming public has developed with respect to each of the two uses of "Goin' the extra mile." On the one hand is the general consuming public which buys tires from the tire dealers that license the advertisement campaign from the plaintiffs. As to this consumer group the products sold are tires and the services associated with tire sales and maintenance. On the other hand is the group of independent tire dealers and distributors which may or may not license plaintiffs' advertising package. The product in this instance is an advertisement campaign.
This Court finds that as to the general consuming public the phrase "Goin' the extra mile" functions as an advertisement or slogan. In order to be protected under trademark law, the phrase at a minimum must identify the source of the product advertised. J. Gilson, supra at § 2:10. The Court finds that the tire dealers/licensees have licensed plaintiffs' advertisement package to convey a message about their product, i.e., that their tires and service are better, and not to create in the minds of the public some associational link between "Goin' the extra mile" and their particular tire dealership. See J. Gilson, supra at 2:02 p. 2-7, § 2:10. The phrase does not arbitrarily point to the product's source nor does it suggest in the minds of the general public any specific source; rather, it describes the type of quality and service the general consumer could expect from the particular tire dealership/licensee. Being descriptive, the phrase must have developed a secondary meaning within the relevant market in order to be a protectable mark. Winners Corp., 563 F.Supp. at 720. The Court holds that in relation to the general public, the plaintiffs are not likely to succeed in showing a secondary meaning for the phrase "Goin' the extra mile." The Court also finds that Amoco's subsequent use of a similar phrase has not caused the likelihood that the general public would confuse the products of Amoco with those of Jerry Reed and/or his licensees. Thus, as to the general public plaintiffs' phrase is a weak mark not deserving of trademark protection.
The second relevant market to examine is that consisting of tire dealers and distributorsthe potential licensees of plaintiffs' advertisement campaign. Plaintiffs claim that this group identifies the phrase "Goin' the extra mile" with Jerry Reed and his advertising package. Plaintiffs therefore maintain that the phrase may be "arbitrary" but if not, then certainly is a suggestive phrase and thus deserves trademark protection. Defendant argues that the phrase is descriptive without a secondary meaning, yet fails to state what characteristic, quality, or function of the advertisement campaign that "Goin' the extra mile" describes. Although not willing to classify the phrase as arbitrary, the Court is inclined to agree with plaintiffs that since the advertisement package is presented to the tire dealers as the "Goin' the extra mile" campaign, the phrase probably suggests the source of the product to the tire dealers and/or has a secondary meaning among this group that associates the phrase with Jerry Reed. Unfortunately, a showing of suggestiveness or descriptiveness with secondary meaning is not enough. In addition, plaintiffs must show "that defendant's actions cause a likelihood of confusion among the relevant buyer class." J. McCarthy, supra § 15.1. Absent a showing of a likelihood of confusion of products created by subsequent use of a mark, the Court will not issue an injunction against defendant's use of the same or similar mark. See Amstar Corp., 615 F.2d at 265 (issuance of injunction reversed upon finding that use of the word "Domino" by defendant pizza delivery service did not create confusion among consumers as to whether the pizzas were made by defendant or by the plaintiff which produced *14 sugar sold under the identical mark). Determining whether a likelihood of confusion exists is a question for the Court to decide in light of certain factors. Frisch's Restaurants, Inc. v. Elby's Big Boy, 670 F.2d 642, 651 (6th Cir.1982); see WSM, Inc. v. Tennessee Sales Co., 709 F.2d 1084, 1086 (M.D.Tenn.1983). The Court has reviewed the likelihood of confusion under the instant facts in relation to (1) the strength of the mark, finding "Goin' the extra mile" to be weak, (2) the relatedness of the goods, finding plaintiffs' advertisement campaign adequately dissimilar from Amoco's gas and automotive services, (3) the similarity of the mark, finding the marks adequately dissimilar in their respective appearances and uses, (4) any proof of actual confusion, finding no confusion as to the source of the products, (5) the marketing channels used, finding that both plaintiffs and defendant employed similar marketing channels such as radio, television, and point of sale materials like posters, banners, etc., (6) the likely degree of purchaser care, finding the independent tire dealer to be one who should exercise much care in knowing the source of the advertisement campaign he plans to license, (7) the intent behind Amoco's subsequent use of "We go that extra mile," finding no evil intent and finally (8) the likelihood of defendant expanding the product line, finding Amoco very unlikely to start producing advertisement packages to license to independent tire dealers. See Winners Corp., 563 F.Supp. at 721-26 (discussed the eight factors to be examined in determining the likelihood of product confusion) (citing Frisch's Restaurants, Inc., 670 F.2d at 648). Thus, while plaintiff may be able to illustrate that the "Goin' the extra mile" campaign is suggestive or has obtained a secondary meaning among independent tire dealers that identifies the campaign with Jerry Reed, this Court holds that plaintiffs probably will not succeed on the merits of showing that confusion of products and their sources likely will result due to Amoco's use of the "We go that extra mile" slogan.
Therefore, with regard to both relative markets, plaintiffs have not shown a likelihood of success on the merits. Plaintiffs' mark serves a descriptive function for the general public, yet has not obtained a secondary meaning in the minds of the general public that would identify the source of the product. Among independent tire dealers the phrase may be suggestive or may be descriptive with an acquired secondary meaning, yet no likelihood of confusion exists as a result of defendant's subsequent use of the same or similar mark. Thus, under federal trademark law, there is substantial doubt that plaintiffs can show a likelihood of success on the merits. See Wendy's International, Inc. v. Big Bite, Inc., 576 F.Supp. 816, 821 (S.D.Ohio 1983).
b. Other Factors for the Preliminary Injunction
Having decided that plaintiffs have not carried their burden in showing a likelihood of success on the merits, this Court finds it unnecessary to examine closely the remaining requirements for a preliminary injunction. Suffice it to say that no other factor (irreparable harm to the plaintiff, lack of hardship on defendant, or public interest concerns) weighs so much in favor of plaintiffs, if at all, so as to outweigh the effect of plaintiffs' inability to show a likelihood of success on the merits.
IV. Common Law Claim
Plaintiffs' common law claim presupposes the existence of a trademark valid under common law. Determining whether a mark is protectable under the common law is closely analogous to, if not identical with, the determination made under the federal trademark infringement laws. Winners Corp., 563 F.Supp. at 718 n. 1; see Jewel Companies, 413 F.Supp. at 999. The core question is whether the two uses of the mark by plaintiffs and defendant create a likelihood of product confusion among the relevant group of consumers. See Amstar Corp., 615 F.2d at 265. As indicated earlier, the Court finds no likelihood of confusion in this case. The independent tire dealer is not likely to think that Jerry Reed is "pushing" Amoco products in his advertisement package, nor is a member of the general public likely to confuse the source of the tires he carefully *15 purchases from Jerry Reed's licensee with that of the gas he casually buys from Amoco. Accordingly, plaintiffs' claim based on the common law is without merit and no injunction shall issue based upon that claim.
V. Tennessee Anti-Dilution Statute
Finally, plaintiffs request a preliminary injunction based on the alleged violation of T.C.A. § 47-25-433 (anti-dilution statute). Section 47-25-433 states: "Likelihood ... of dilution of the distinctive quality of ... a mark valid at common law ... shall be a ground for relief notwithstanding ... the absence of confusion as to the source of goods or services." Thus, in order to be protected under this statute, plaintiffs' mark must be "distinctive," or "unique." If plaintiffs' mark is not distinctive, there is nothing to be diluted by subsequent use of a similar mark. See Amstar Corporation, 615 F.2d at 265; Holiday Inns, Inc. v. Holiday Out In America, 481 F.2d 445, 450 (5th Cir.1973); Norm Thompson Outfitters, 448 F.2d at 1299. The Court finds that as to the phrase "Goin' the extra mile" plaintiffs are not likely to show the "distinctive quality" necessary to claim a cause of action under this statute. Therefore, plaintiffs' request for preliminary injunction based on this statute is denied.
|
197 F.2d 187
91 U.S.App.D.C. 3, 93 U.S.P.Q. 243
VANADIUM CORP. OF AMERICA,v.MARZALL.
No. 10928.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 21, 1951.Decided May 8, 1952.
William H. Webb, Pittsburgh, Pa., of the Bar of the Supreme Court of Pennsylvania, pro hac vice, by special leave of Court, with whom Donald A. Gardiner, Washington, D.C., and Bruce G. Mackey, Pittsburgh, Pa., were on the brief, for appellant.
S. William Cochran, United States Patent Office, Washington, D.C., with whom E. L. Reynolds, Solicitor, United States Patent Office, Washington, D.C., was on the brief, for appellee.
Before PRETTMAN, FAHY and WASHINGTON, Circuit Judges.
WASHINGTON, Circuit Judge.
1
This is a suit under R.S. § 4915, 35 U.S.C.A. § 63, seeking to patent a process for the manufacture of the metal manganese by electrolysis. To the established initial steps of the standard processes for producing the electrolytic solution, as disclosed in the patent to Hannay, et al., No. 2,259,418, and in a Bureau of Mines bulletin described as Report of Investigation No. 3406, plaintiff-appellant would add a final step. This involves the addition of iron, usually as ferrous sulphate, to the solution resulting from the initial stages of the standard processes, for purposes of further purification. Under the Bureau of Mines process, ferrous sulphate was added to the solution at a preceding stage, for the purpose of precipitating any arsenic present. Plaintiff-appellant's process thus involves the use of ferrous sulphate at two separate stages.
2
The question presented is whether the addition of the final step in the process amounts to patentable invention. According to the testimony of Mr. Woodman, one of the original applicants,1 electrolysis of the solution produced by the standard processes was commonly or at least frequently unsuccessful. No one in the industry knew the precise cause of the difficulty, but it was assumed to be due to some sort of impurity. In their specification the applicants state that 'We have not been able to establish the exact mechanism by which these impurities are removed, nor have we been able to identify even qualitatively the nature of the impurities.' But the process they discovered evidently removes the deleterious matter; it is a commercial success and a conceded improvement over past methods.
3
[91 U.S.App.D.C. 4] Appellant contends that nothing in the prior art pointed to a repetition of the ferrous sulphate treatment as a final step in the purification. Appellant says that after others had wrestled for years with a difficulty of unknown origin, its chemists came up with a successful answer. 'While it is true that invention may be the result of accident, and one seeking a patent thereon need not understand or be able to state the scientific principles underlying his claim, nevertheless, he is charged with knowledge of the state of the art * * * .' L. Sonneborn Sons, Inc. v. Coe, 70 App.D.C. 97, 98, 104 F.2d 230, 231. In their specification the applicants say that it was common knowledge that the minutest quantities of metallic impurities 'will lower or prevent cathodic deposition of manganese.'2 No way was found of detecting the nature of the impurities in the standard solutions or of determining in what form they were present. But according to both the specification and the testimony, the applicants suspected that these solutions might contain tiny residues of free sulphur and metal sulphides, the sulphides being formed during the last step of the standard process.
4
The specification further says that 'The tendency of metal sulphides to form colloids is well known * * * .' Although Mr. Woodman testified he believed that the impurities were not colloidal in form because they appeared to survive the most careful filtration, the specification notes the possibility that the function of the invention was the removal of colloids.3 With the possibility in mind that sulphide colloids might be present and the knowledge that such impurities would have a deleterious effect on electrolysis, what would a skilled industrial chemist have tried? According to the specification, 'There are many instances referred to in the technical literature where solids (colloids) have been absorbed by iron hydroxides4 and it appears that traces of impurities may be removed by this mechanism.'
5
We must weigh, in the light of these facts, appellant's contention that nothing in the prior art suggested the final ferrous sulphate treatment. While the matter is no doubt debatable, we think a reasonable mind could fairly conclude that this treatment was one which those skilled in the art would sooner or later have tried.5 Industrial chemistry is a science which to a large extend proceeds by empirical experimentation. 'Each step forward prepares the way for the next, and each is usually taken by spontaneous trials and attempts in a hundred different places.' Atlantic Works v. Brady, 1882, 107 U.S. 192, 199, 2 S.Ct. 225, 231, 27 L.Ed. 438. We do not say that the ferrous sulphate treatment would necessarily appear to be the obvious answer to the problem confronting the applicants, but simply that it would logically suggest itself as one of the possibilities calling for investigation as part of an intelligent experimental program seeking a purer electrolytic solution. Cf. L. Sonneborn Sons, [91 U.S.App.D.C. 5] Inc. v. Coe, supra; General Motors Corp. v. Preferred Electric & Wire Corp., 2 Cir., 109 F.2d 615. The District Court was thus not clearly in error when it concluded that the testing out of this possibility did not represent a 'flash of genius,' and hence was not inventive. Standard Oil Development Co. v. Marzall, 86 U.S.App.D.C. 210, 181 F.2d 280. Consequently, its judgment must be
6
Affirmed.
1
The applicants assigned to plaintiff-appellant
2
Mr. Woodman testified that 'an electrolytic cell is so sensitive, so sensitive to impurities, even impurities that the laboratory themselves cannot detect, that it will ruin deposition, it will ruin deposition entirely. We did not know at that time everything that was causing our trouble.' Jt. App. 52
3
'The tendency of metal sulphides to form colloids is well known and free sulphur may be postulated as present in the solutions. It is possible that the function of the treatment step which we employ may be the removal of such solids, probably in the form of microscopic particles.' Specification, Jt. App. 77. See also Mr. Woodman's testimony. Jt. App. 57-58
4
The ferrous sulphate is oxidized and converted into ferric hydroxide in the solution. Jt. App. 57; Pl. Ex. 6, Jt. App. 127
5
The District Court in effect so found. In addition to what we have noted above, the District Court found that the presence of residual arsenic was or should have been considered as a possible inhibitor of electrolysis, that treatment with ferrous sulphate to remove arsenic was old in the art, constituting in fact the first step in the standard purification process, and that consequently the additional ferrous sulphate treatment was indicated on this ground as well. Findings of Fact Nos. 10 and 11
|
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3206
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Adrian L. Hudson, *
* [UNPUBLISHED]
Defendant - Appellant. *
___________
Submitted: April 16, 2009
Filed: April 27, 2009
___________
Before MURPHY, BRIGHT, and BYE, Circuit Judges.
___________
PER CURIAM.
In 2006, Adrian Hudson pleaded guilty to possession with intent to distribute
more than five grams but less than twenty grams of cocaine base, commonly known
as "crack cocaine," in violation of 21 U.S.C. § 841. At sentencing, the district court1
found Hudson's advisory Guidelines range to be 92 to 115 months, and sentenced him
to 92 months imprisonment.
1
The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
In 2008, Hudson moved for a reduction in his sentence pursuant to 18 U.S.C.
§ 3582(c) and Amendment 706 to the Guidelines, which reduced the base offense
level for crack offenses by two levels. He also sought an evidentiary hearing to
present evidence in support of a reduction in his sentence by more than two levels.
The district court calculated an amended Guideline range of 77 to 96 months,
and resentenced Hudson to 77 months imprisonment. The court also denied Hudson's
request for an evidentiary hearing, stating "[w]ithout determining whether the court
has the authority to conduct a full resentencing, the court determines that a sentence
within the guidelines is appropriate and the court is not inclined to further reduce the
defendant’s sentence."
Hudson appeals, arguing that the district court had authority to reduce his
sentence below the amended Guidelines range and erred by not doing so. His
argument, however, is foreclosed by United States v. Starks, 551 F.3d 839 (8th Cir.
2009), in which we held a resentencing court does not have the authority to reduce a
defendant's sentence to a term below the amended Guidelines range. Id. at 843. The
district court thus did not err in refusing to consider a further reduction in Hudson's
sentence.
For these reasons, the judgment of the district court is affirmed.
BYE, Circuit Judge, with whom BRIGHT, Circuit Judge, joins, concurring.
As I noted in my concurrence in the judgment in United States v. Harris, No.
08-2774, slip op. at 4 (Feb. 26, 2009) (Bye, J., concurring in the judgment), I disagree
with the Starks court, and would hold a resentencing court has authority to reduce a
defendant's sentence to a term below the amended Guidelines range.
-2-
That said, even if the resentencing court had the authority to reduce Hudson's
sentence below the amended Guidelines range, it is unlikely the court would have. As
the district court stated:
The court agrees that the defendant is entitled to a two-level reduction in
his sentence and will enter a separate Order Regarding Motion for
Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2) containing the
new sentence. However, the court disagrees that the defendant is entitled
to a further reduction. Without determining whether the court has the
authority to conduct a full resentencing, the court determines that a
sentence within the guidelines is appropriate and the court is not inclined
to further reduce the defendant's sentence.
Clerk's R. at 53.
______________________________
-3-
|
225 U.S. 219 (1912)
UNITED STATES
v.
COLORADO ANTHRACITE CO.
No. 227.
Supreme Court of United States.
Argued April 25, 1912.
Decided May 27, 1912.
APPEAL FROM THE COURT OF CLAIMS.
*220 Mr. Assistant Attorney General John Q. Thompson for the United States.
Mr. Charles A. Keigwin, with whom Mr. E.W. Spalding was on the brief, for appellee.
MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
This was an action, under the act of June 16, 1880, 21 Stat. 287, c. 244, § 2, for the repayment of the purchase *221 price paid to the Government for 160 acres of public coal lands, the entry of which was subsequently canceled. The plaintiff prevailed in the Court of Claims, 45 C. Cl. 614, and the Government has appealed, claiming that on the findings the judgment should have been in its favor.
Briefly stated, the material facts shown by the findings are as follows: One Stoiber, who claimed a preference right of entry under Rev. Stat., § 2348, filed in the proper local land office the requisite declaratory statement, and thereafter made application to enter the land. Accompanying the application was an affidavit, made by his agent, stating that Stoiber was making the entry for his own use and benefit, and not directly or indirectly for another. Other applications for the same land resulted in a contest proceeding before the local land office, and after the hearing therein the register and receiver sustained Stoiber's application, accepted the purchase price of the land, which was $3,200, and issued to him the usual duplicate receipt. This, in the nomenclature of the public-land laws, was the allowance of an entry. The other parties to the contest appealed to the Commissioner of the General Land Office, who, upon the same evidence that was submitted to the local office, ruled that Stoiber's application ought not to have been sustained; that his entry had been erroneously allowed and could not be confirmed, and therefore that it must be canceled. That decision was affirmed by the Secretary of the Interior, and the entry was canceled accordingly. In filing the declaratory statement and making the entry Stoiber was not seeking to acquire the land for himself but for the Colorado Anthracite Company, the plaintiff here, to which he already had given a quitclaim deed. This was not denied or concealed at the hearing in the contest, but, on the contrary, was admitted and was affirmatively shown by the testimony of the witnesses for Stoiber, including the agent who made the affidavit before mentioned. The purchase price paid at the time of the *222 entry, which was after the hearing, was furnished by the company because the entry was being made for its benefit. No conveyance of the land was made by Stoiber other than the quitclaim deed just mentioned, and the purchase money so paid was covered into the Treasury and is still held by the Government. After the cancellation of the entry the company applied to the Secretary of the Interior for repayment to it of the purchase price, and Stoiber and the company executed a relinquishment of all claims to the land and surrendered the duplicate receipt; but the application was denied on the theory that the company was not an assign of the entryman within the meaning of the act. Stoiber then applied to the Secretary for repayment, and, the application being refused, brought suit in the Court of Claims, which gave judgment for the Government on the ground that the purchase price had been paid by the company and not by Stoiber. 41 Ct. Cl. 269, 275. Thereupon the company brought the present suit, with the result before stated.
As reasons for asking a reversal of the judgment the Government contends that the facts as found disclose, first, that the company is not an assign within the meaning of the act, and, second, that the entry was procured fraudulently, in contravention of the coal-land laws, and therefore that repayment cannot be allowed.
The act of 1880, in § 2, provides that where, from any cause, an entry of public land "has been erroneously allowed and cannot be confirmed," and is duly canceled by the Commissioner of the General Land Office, "the Secretary of the Interior shall cause to be repaid to the person who made such entry, or to his heirs or assigns, the fees and commissions, amount of purchase money, and excesses paid upon the same upon the surrender of the duplicate receipt and the execution of a proper relinquishment of all claims to said land."
As we think Stoiber is the person who made the entry in *223 the sense of this act, even although he made it for the benefit of the company and paid the purchase price with money furnished by it, we come at once to the question, whether on the findings the company is his assign within the meaning of the act. It is said that the answer must be in the negative, because there was no conveyance of the land from him to the company while the entry was in force, that is, after its allowance and before its cancellation. By the decisions of this court in Hoffeld v. United States, 186 U.S. 273, and United States v. Commonwealth Title Insurance & Trust Co., 193 U.S. 651, it is settled that an assign, within the meaning of the act, is one who becomes invested with the entryman's right in the land through some voluntary act of his; and it must be conceded that, generally speaking, a mere quitclaim deed passes only such interest as the grantor possesses at the time and does not reach an after-acquired title. But here there was something more than a mere quitclaim deed, executed in advance of the acquisition of any interest by the entryman. The entry was made at the instance of the company, with its money and for its benefit, and, unless the coal-land law forbade it, the entryman, by his voluntary action in that regard, became a trustee for the company and charged with an obligation to convey the land to it. Irvine v. Marshall, 20 How. 558; Ducie v. Ford, 138 U.S. 587, 592; Smithsonian Institution v. Meech, 169 U.S. 398, 406. Not only so, but equity, which usually looks upon that as done which ought to have been done, would regard such a conveyance as actually made, and therefore treat the company as an assign. We speak of the view which equity would take of the matter, because it is manifest that the act of 1880 proceeds upon equitable principles and is intended to be administered accordingly. Like other highly remedial statutes, it should be interpreted with appropriate regard to the spirit which prompted it. And, when it is so interpreted, we think the term "assigns" includes *224 one in the company's situation, if only the arrangement between it and Stoiber was not forbidden by law.
We are thus brought to the question, whether the facts found disclose that Stoiber and the company were engaged in an effort to acquire the land fraudulently, in contravention of the coal-land law, Rev. Stat., §§ 2347-2352. If they were, the company is not entitled to repayment, first, because it then would not be entitled to invoke the equitable maxim before stated, without the aid of which it could not be deemed an assign within the meaning of the act, and, second, because the right to repayment is restricted by the act to instances in which the entry has been "erroneously allowed," an expression which denotes some mistake or error on the part of the land officers whereby an entry is allowed when it should be disallowed, and not some fraud or false pretense practiced on them whereby an applicant appears to be entitled to the allowance of an entry when in truth he is not. Of this expression it is said, correctly, we think, in the regulations of the Land Department adopted under § 4 of the act soon after its enactment and ever since in force:
"This cannot be given an interpretation of such latitude as would countenance fraud. If the records of the Land Office, or the proofs furnished, should show that the entry ought not to be permitted, and yet it were permitted, then it would be `erroneously allowed.' But if a tract of land were subject to entry, and the proofs showed a compliance with law, and the entry should be canceled because the proofs were shown to be false, it could not be held that the entry was `erroneously allowed;' and in such case repayment would not be authorized."
While the coal-land law does not expressly prohibit an entry by one person for the benefit of another, it does limit the quantity of land that may be acquired thereunder by one person to 160 acres, and the quantity that may be acquired by an association of persons to 320 acres *225 and, in exceptional instances, 640 acres; and it declares that its sections "shall be held to authorize only one entry by the same person or association of persons; and no association of persons any member of which shall have taken the benefit of such sections, either as an individual or as a member of any other association, shall enter or hold any other lands under the provisions thereof; and no member of any association which shall have taken the benefit of such sections shall enter or hold any other lands under their provisions." These restrictions, as this court has held, forbid individuals and associations from acquiring public coal land in excess of the quantities prescribed, whether directly by entries in their own names or indirectly by entries made for their benefit in the names of others. And so, one person cannot lawfully make an entry in the interest of another who has had the benefit of the law, or in the interest of an association where it or any of its members has had the benefit thereof, or in the interest of a person or an association where he or it has not had such benefit but is seeking, through entries made or to be made by others in his or its interest, to acquire a greater quantity of land than is permitted by the law. United States v. Trinidad Coal and Coking Co., 137 U.S. 160; United States v. Keitel, 211 U.S. 370; United States v. Forrester, 211 U.S. 399; United States v. Munday, 222 U.S. 175. But there is no prohibition, express or implied, against an entry by a qualified person for the benefit of another person or association where he or it is fully qualified to make the entry in his or its own name, and is not seeking to evade the restrictions in respect of quantity.
A corporation is an association of persons within the meaning of the law, United States v. Trinidad Coal and Coking Co., supra, and therefore the company here, which was a Colorado corporation, lawfully could have made the entry in question in its own name, unless it or some member of it had had the benefit of the coal-land law or *226 was seeking, through this and other like entries, to acquire coal land in excess of the quantity prescribed. In other words, the fact that the entry was made in the name of Stoiber for the benefit of the company does not, without more, establish that it was forbidden or fraudulent. There is no finding that the company or any member of it had had the benefit of the law or was seeking to acquire more than this 160 acres. So, for aught that appears, there was no legal obstacle to the entry being made in the company's name, and the fact that it was not may have been due to matters not affecting its validity or integrity. We do not overlook the finding that the application was accompanied by an affidavit stating that Stoiber was making the entry for his own use and benefit, and not directly or indirectly for another. Of course, the other findings show that that statement was untrue. Had it remained uncorrected it probably would have deceived the officers of the land office and prevented any inquiry into the qualifications of the company. But, according to the findings, it did not remain uncorrected, and could not have deceived the officers, for at the hearing in the contest, which preceded the allowance of the entry, it was admitted and shown that Stoiber was not seeking to acquire the land for himself, but for the company, to which he already had given a quitclaim deed. The statement in the affidavit therefore became harmless, for it was upon the evidence given in the contest that the entry was allowed. It follows that upon the findings it cannot be said that the arrangement between Stoiber and the company was forbidden by law or that the entry was fraudulently procured.
But it is said that an affirmative finding that the entry was not fraudulently procured is essential to sustain the judgment. To this we cannot agree. Fraud is not presumed, and one who bases a right or defense upon it should allege and prove it. The Government's answer *227 contains no allegation of fraud, and the silence of the findings may rightly be taken as showing that none was proved. The findings fully respond to the issues presented by the pleadings, and, we think, sustain the judgment.
Judgment affirmed.
|
170 S.W.3d 437 (2005)
The EXECUTIVE BOARD OF the MISSOURI BAPTIST CONVENTION, et al., Appellants,
v.
Robin CARNAHAN, Secretary of State; The Baptist Home; Missouri Baptist College; Missouri Baptist Foundation; Windermere Baptist Conference Center; and Word and Way, Respondents.
No. WD 64069.
Missouri Court of Appeals, Western District.
May 31, 2005.
Motion for Rehearing and/or Transfer Denied August 2, 2005.
Application for Transfer Denied September 20, 2005.
*441 Michael Whitehead, James F. Freeman, III, and Glen S. Masters, Kansas City, MO, for Appellants.
Jim J. Shoemake, St. Louis, for Resp. Word & Way, Windermere and Mo. Bapt. Home, Clyde C. Farris, Jr. Clayton, for Resp. Mo. Bapt. College, Laurence R. Tucker, Kansas City, for Resp. Mo. Bapt. Foundation, Curtis F. Thompson, Jefferson City, for Resp. Robin Carnahan.
Before EDWIN H. SMITH, C.J., HAROLD L. LOWENSTEIN and ROBERT G. ULRICH, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied August 2, 2005.
ROBERT G. ULRICH, Judge.
The Missouri Baptist Convention, the Executive Board of the Missouri Baptist Convention, and six churches affiliated with the Convention (Appellants) appeal the rulings of the Cole County Circuit Court dismissing an action against four non-profit agencies, the Missouri Baptist College, and the Secretary of State (Respondents) for changes in corporate charters of the agencies and the college that deprived the Convention of the ability to control them. Appellants sued Respondents for breach of contract and sought declaratory judgment and injunctive relief. The Convention raises five points on appeal, each alleging error in the pre-trial procedures of the trial court. The Convention argues that the trial court erred (1) in dismissing the claim with prejudice for lack of subject matter jurisdiction because the court still had jurisdiction to permit an amendment of the petition; (2) in dismissing the claim on the grounds that the six churches are not members of the Convention and lack standing under Rule 52.10; (3) in dismissing the claims of the Executive Board for a lack of standing; (4) in sustaining the Missouri Baptist College's First Motion for Partial Summary Judgment; and (5) in dismissing claims against the Secretary of State for failure to state a claim.
Parties
Although the exact composition of the Missouri Baptist Convention ("Convention") presents one of the major sources of contention in this appeal, the first amended petition alleges that the Convention is "an unincorporated association of affiliated Southern Baptist churches in the State of Missouri, and functions as the state denomination of Southern Baptist churches in Missouri." The first amended petition further states that the Convention was organized in 1834 and was formerly known as the Missouri Baptist General Association before changing its name in 1958. According to the petition, "[a]pproximately *442 1,950 Baptist churches in Missouri are affiliated members of the Convention, pursuant to the requirements for membership contained in the constitution of the Convention."
The action was brought as a class action pursuant to Rule 52.10 by six Baptist churches, each alleged to be "a member in good standing of the Missouri Baptist Convention." The six named churches are First Baptist Church of Arnold, Missouri; First Baptist Church of Branson, Missouri; Concord Baptist Church of Jefferson City, Inc.; Oakwood Baptist Church of Kansas City, Missouri; and Springhill Baptist Church of Springfield, Missouri.[1]
The Executive Board of the Missouri Baptist Convention ("Executive Board" or "Board") is a Missouri nonprofit corporation that purports to act on behalf of the Convention in the periods between its annual meetings. The petition alleges that the Convention designated the Executive Board its agent and representative both generally and specifically for this action.[2] The petition further alleges that the Executive Board had "the full legal powers, rights, and duties of the Convention" and "the right and capacity to bring this action in its corporate name for itself and as the agent, [of] the Convention"; and that for the purposes of this action, "all legal rights relations and duties of the Convention" are "co-extensive and co equal with the legal rights, relations and duties of the Executive Board."
The respondents are The Baptist Home ("Home"), Missouri Baptist College ("College"), Missouri Baptist Foundation ("Foundation"), Windermere Baptist Conference Center ("Windermere"), and Word and Way. Each is a Missouri non-profit corporation, and each once had provisions in its articles of incorporation stating that the corporation's trustees were to be elected or appointed by the Convention.[3] In 2000 and 2001, each of the defendant corporations' boards voted to amend its respective corporation's articles to provide for self-perpetuating boards, and each filed amended articles of incorporation with the Missouri Secretary of State. The Secretary of State is named a party because that office is the legal repository of articles of incorporation and the Secretary accepted for filing the defendant corporations' amended articles.
Procedural History
The Convention brought an action seeking declaratory and injunctive relief and damages for breach of contract. Plaintiffs *443 filed their First Amended Petition on September 19, 2002, alleging that the amended articles of incorporation adopted by each of the defendant corporations is null and void ab initio because the amendments were not approved by the Missouri Baptist Convention. The first amended petition also included as a defendant former Missouri Secretary of State Matt Blunt in his official capacity.
As an unincorporated entity, the Convention sought to certify a class of members as provided by Rule 52.10. Plaintiffs First Amended Petition alleges that the Churches brought the action for and on behalf of the members of the Convention, "seeking redress for damages and injury suffered by the Convention and jointly by the members of the Convention," and that the plaintiff churches would fairly and adequately protect the interests of the Convention and its members. Early within the litigation, the question was raised whether the plaintiff Churches were proper parties to bring the action as "members" of the Convention, and whether the Executive Board was a proper party to bring an action on behalf of the Convention.
The Executive Board also alleges independent status as a plaintiff in the action, claiming in the first amended petition that it "has the right and capacity to bring this action in its corporate name for itself and as the agent, the Convention [sic]." The claims against the Foundation, the College, and the Home allege independent rights and privileges of the Executive Board as a corporate entity. The claims against Windermere and Word & Way, however, were brought solely by the plaintiff Churches and were not brought by the Executive Board as a plaintiff in its own right.
The Home, Windermere, and Word & Way denied in their Answers that Churches are members of the Convention and also denied that the Executive Board had the legal ability to bring the action on behalf of the Convention. On October 17, 2003, the Home, Windermere, and Word & Way filed a joint motion to dismiss plaintiffs' amended petition for lack of standing and subject matter jurisdiction. Rules 55.27(a)(1); 55.27(g)(3); 55.28. The Foundation joined in that motion and filed a separate motion for summary judgment asserting lack of standing. The College filed a similar motion to dismiss on October 29, 2003.
In July 2003, the College filed a motion for summary judgment alleging that it was a corporation without any corporate members. The trial court entered its summary judgment on November 13, 2003, ruling that when the college amended its charter in 2001, "the College was a Missouri not-for profit corporation without members, and that the Missouri Baptist Convention was not a member of Missouri Baptist College."
The College also filed a second motion for summary judgment and memorandum in support of that motion on October 20, 2003, stating that it was entitled to judgment as a matter of law on Counts IV, V, and VI, directed to it, because: (1) none of the seven plaintiffs were members of the Convention, and thus lack standing under Rule 52.10 to bring the action; and (2) the Executive Board did not have standing to assert any rights or interests of its own with respect to the claims made in the First Amended Petition because it did not have a legally cognizable interest under the College's 1997 articles, which stated that the Executive Board could merely make a "recommendation" to the Convention regarding charter amendments.
Plaintiffs filed their responses to the defendant corporations' motion to dismiss and to the College's Second Motion for Summary Judgment on January 23, 2004, *444 along with a Consolidated Memorandum Statement of Facts and Consolidated Memorandum of Law addressing not only the College's motion for summary judgment, but also the motions to dismiss filed by the defendant corporations. The College filed its reply to plaintiffs' Consolidated Statement of Facts and Consolidated Memorandum of Law on February 10, 2004.
The trial court took up the issue of the motion to dismiss on February 26, 2004. Believing that it could not decide the standing issue on the motions to dismiss because such a determination would entail reference to documents outside of the amended petition, the court heard argument on the College's Second Motion for Summary Judgment, which raised the same standing issue. The court took the matter under advisement.
The day after the hearing, The Baptist Home, Windermere, and Word & Way filed separate motions for summary judgment joining in and incorporating by reference the College's Second Motion for Summary Judgment and the corresponding Response and Reply.
Plaintiffs filed a motion for leave to file a second amended petition naming certain individual messengers (pastors of the plaintiff churches) as representatives of the Convention a week later. Plaintiffs filed a copy of a proposed second amended petition along with their motion. The proposed second amended petition named the plaintiff churches, along with the individual pastors of the churches, and the Executive Board as plaintiffs and named then-Secretary of State Matt Blunt as a defendant, even though the court had dismissed the Secretary of State as a defendant on February 3, 2003.
Plaintiffs filed a Motion for Reconsideration of Judgment of Dismissal, for Clarification of Order, and for Leave to File Second Amended Petition on March 25, 2004. The court heard argument on that motion on April 5, 2004, and on April 7, 2004, entered its order denying plaintiffs' motion. In so doing, the court reiterated that it did not have jurisdiction to grant plaintiffs leave to file a second amended petition. Plaintiffs filed their notice of Appeal on April 16, 2004.
When entering its Judgment of Dismissal on March 11, 2004, the court concluded that neither the Churches nor the Executive Board was a member of the Convention and that only individuals known as "messengers" were allowed to bring a class action pursuant to Rule 52.10. The court further ruled that neither the Churches nor the Executive Board possessed standing to pursue the case on behalf of the Convention, and the Convention did not have standing to prosecute the case on its own behalf. The court then ruled the Executive Board lacked standing because it had no legally protectable interest in the litigation. The court found that none of the plaintiffs had standing to bring the suit, which deprived it of subject matter jurisdiction over the claim.
I. Standing
The Convention's first three points on appeal all allege error within the trial court's Judgment of Dismissal. The first point alleges that the trial court erred in dismissing the claims for lack of subject matter jurisdiction because even if the member churches lacked standing, the Convention itself has standing. Consequently, it is argued, the trial court retained jurisdiction to allow the second amended petition, which would have cured the perceived standing issue. The second point alleges that the trial court improperly ruled that the Churches lack standing because it misread and misapplied the Convention Constitution and Bylaws. The *445 third point alleges that the trial court improperly dismissed the Executive Board from the action for a lack of standing.
Each of these points relates to the issue of standing. The trial court's judgment illustrates a central concern with who is the proper party to bring an action on behalf of the Convention. While the complexity of the underlying motions creates a rather precarious procedural posture, appellate review of whether a party has standing to sue is conducted de novo. Inman v. Mo. Dep't of Corr., 139 S.W.3d 180, 184 (Mo.App. W.D.2004). The question of standing is determined as a matter of law, based upon the petition "along with any other non-contested facts accepted as true by the parties at the time the motion to dismiss was argued." Id. (quoting Kinder v. Holden, 92 S.W.3d 793, 803 (Mo. App. W.D.2002)). The question of standing is a threshold issue. Cont'l Coal, Inc. v. Mo. Land Reclamation Comm'n, 150 S.W.3d 371, 378 (Mo.App. W.D.2004). "A party cannot obtain relief from a court if that party lacks standing." Id.
Consequently, the standing issues must be determined before any further allegations of error within the pre-trial proceedings are considered.
A. Applicability of Rule 52.10
The trial court struggled with the underlying question of who is the proper party to bring the asserted claims. The case presents a unique controversy in that the respondent agencies have each alleged that the Churches are not members of the Convention and are thus unable to utilize class action Rule 52.10. While who has standing to bring the action has proven confusing, Rule 52.10 indicates that someone has the ability to bring an action on behalf of the Missouri Baptist Convention.
The Convention is an unincorporated religious association and, as such, is not a legally cognizable entity. Farm & Home Sav. & Loan Ass'n of Mo. v. Armstrong, 337 Mo. 349, 85 S.W.2d 461, 466 (1935). Unincorporated associations have no entity status beyond the status of those persons who comprise the association. State ex. rel. Auto. Club Inter-Ins. Exch. v. Gaertner, 636 S.W.2d 68, 70 (Mo. banc 1982). As a consequence, an unincorporated association ordinarily lacks the legal capacity to sue or be sued in the name of the association. Forest City Mfg. Co. v. Int'l Ladies' Garment Workers' Union, Local No. 104, 233 Mo.App. 935, 111 S.W.2d 934, 936 (1938).
Supreme Court Rule 52.10 permits an action "by or against the members of an unincorporated association as a class," provided that the representative parties "fairly and adequately protect the interests of the association and its members." The rule provides class status for the members of an unincorporated association "to give `entity treatment' to the association when for formal reasons it cannot sue or be sued as a jural person...." State ex inf. Ashcroft v. Kansas City Firefighters Local No. 42, 672 S.W.2d 99, 118 (Mo.App. W.D.1984)(quoting 7A Wright & Miller, Federal Practice and Procedure § 1861 at 457 (1972)). The rule is an expression of the equitable doctrine of virtual representation. Id. The intent is to provide a means of litigating claims of common interest to many parties, where bringing all the parties before the court is impractical. Robinson v. Nick, 235 Mo. App. 461, 136 S.W.2d 374, 385 (1940).
An "association" is "a body of persons acting together, without a charter, but upon the methods and forms used by incorporated bodies, for the prosecution of some common enterprise." Clark v. Grand Lodge of Bhd. of R.R. Trainmen, *446 328 Mo. 1084, 43 S.W.2d 404, 408 (1931). An association ordinarily operates in a manner quite similar to a corporation. "[A] corporation is merely an incorporated association, that is, an association which, by complying with certain conditions prescribed by law, is clothed with corporate authority." Id. at 408-09. "The business carried on by the corporation and the form of the organization may be little, if any, changed by the fact of incorporation from that of the association." Id. at 409.
Without the formalities of incorporation, however, "[v]oluntary unincorporated associations exist under the common law right of contract and have no existence apart from the contract of association." State ex. rel. Auto. Club Inter-Ins. Exch., 636 S.W.2d at 70 (quoting Morris v. Willis, 338 S.W.2d 777, 779 (Mo.1960)). Such associations are "`purely a creature of convention.'" Forest City Mfg. Co., 111 S.W.2d at 936-37 (quoting Newton County Farmers' & Fruit-Growers' Exch. v. Kansas City S. Ry. Co., 326 Mo. 617, 31 S.W.2d 803, 804 (1930)). Consequently, the internal contractual relationship between the members and the organization provides the sole framework for understanding the dynamic of the group.
The trial court correctly analyzed the question of membership in accordance with the constitution and bylaws of the Convention. The constitution of an unincorporated entity provides a means of understanding the internal relationships of the organization. See Willoughby. v. Hildreth, 182 Mo.App. 80, 167 S.W. 639, 640 (1914). More importantly, however, the constitution, rules, and bylaws of an association establish an enforceable contract between the members. See Junkins v. Local Union No. 6313, Communication Workers of Am., 241 Mo.App. 1029, 271 S.W.2d 71, 76 (1954); Robinson v. Nick, 235 Mo.App. 461, 136 S.W.2d 374, 387 (1940). An association determines its own rules of conduct through its constitution and its bylaws and must abide by them to procure judicial redress. See Lake Arrowhead Prop. Owners Ass'n v. Bagwell, 100 S.W.3d 840, 844 (Mo.App. W.D.2003).
The trial court concluded that the constitution and bylaws of the Convention unambiguously provide that individuals known as "messengers" are the sole members of the Convention. The court made findings of fact that the only people who vote at an annual meeting of the Convention are the messengers and neither Churches nor the Executive Board vote. The court further found that messengers vote their conscience and cast their individual votes as they deem appropriate. Each of these rulings was theoretically based upon a reading of the constitution and bylaws as the court ruled that extrinsic evidence proffered by the Convention was not admissible.
B. Membership of Churches
Because the propriety of the trial court's decision of who is a proper member of the Convention influences the remainder of the standing analysis, this decision is addressed first. The Convention notes that courts ordinarily abstain from construing membership in a religious organization.[4]See Henson v. Payne, 302 S.W.2d 44, 51 (Mo.App.1956).
The Convention's second point on appeal alleges two distinct theories of error stemming *447 from the trial court's decision to analyze membership solely from the Convention's constitution and bylaws despite evidence proffered to prove the membership of Churches. The first alleges that the trial court erred by failing to make an express finding that the constitution and bylaws constitute an integrated contract and that the governing documents of the Conventionwhen read in their entiretyunambiguously demonstrate that churches are members of the Convention. The alternative theory is that proffered evidence demonstrates a latent ambiguity in the constitution and bylaws and that extrinsic evidence demonstrates the intent that affiliated churches are convention members.
The essence of both of the Convention's contentions is that the governing documents fail to properly articulate the ongoing practice of the Convention to construe affiliated Missouri Baptist churches as "members" of the Convention. The plaintiffs took similar alternative positions before the trial court, arguing that regardless whether the constitutional provisions are unambiguous, the clear intention of the Convention is to make churches members of the convention. Plaintiff's Consolidated Memorandum of Law, submitted to the trial court January 23, 2004, argued, "[w]hether ambiguous or unambiguous, before the Court can reasonably interpret the meaning of the Constitution's Membership provisions, it must consider the realities of Convention life." The Convention offered significant evidentiary support for the proposition, which included numerous examples of the Convention itself interpreting its governing documents to mean that churches were members of the Convention. The Convention argues that the trial court should have looked to the proffered extrinsic evidence to discern this intent.
The question of whether a contract is ambiguous and the interpretation of the contract itself are issues of law that are reviewed de novo on appeal. See Sonoma Mgmt. Co., Inc., v. Boessen, 70 S.W.3d 475, 479 (Mo.App. W.D.2002). The constitution and bylaws of an association, much like corporate articles and bylaws, are construed according to the general rules of contracts, and extrinsic evidence is not admissible to vary, add, or contradict the terms of an unambiguous and complete written document. See Ironite Products, Co., Inc., v. Samuels, 985 S.W.2d 858, 861-62 (Mo.App. E.D.1998).
The Convention first argues that the trial court committed reversible error by excluding parole evidence without a specific finding that the constitution and bylaws constituted a complete and integrated contract.[5] This argument fails to consider the contractual nature of an association's constitution. As discussed supra, the constitution, rules, and bylaws of an association define the contract between members. By joining the association, members agree to be bound by the terms of these governing documents. To both members and outsiders, these documents represent the expression of the contract that binds the group.
*448 A contract is integrated where it constitutes a complete statement of the bargain made between parties. Centerre Bank of Kansas City, N.A. v. Distribs., Inc. 705 S.W.2d 42, 51 (Mo.App. W.D.1985)(citing 4 Williston, Contracts, § 636 (3rd ed.1961)). If a written document appears on its face to be a complete agreement, it is conclusively presumed to be a final and complete agreement between the parties. Poelker v. Jamison, 4 S.W.3d 611, 613 (Mo.App. E.D.1999). The constitution and bylaws express the complete contractual relationship of the Convention, and the trial court committed no error in reviewing them as such.
Having concluded that the constitution and bylaws represent the integrated agreement of the Convention, the question remains whether the trial court erred in excluding the proffered extrinsic evidence. "The parole evidence rule bars extrinsic evidence, unless an integrated contract is ambiguous." Royal Banks of Mo. v. Fridkin, 819 S.W.2d 359, 361 (Mo. banc 1991).
The Constitution of the Missouri Baptist Convention delineates the purpose, organizational structure, duties, and leadership of the Convention. As stated within the constitution, individuals known as messengers meet annually during October or November. Through this annual meeting, messengers elect officers to serve throughout the year on the Executive Board, elect non-officer members from their assembly to the Executive Board, vote on resolutions, and vote on the membership of governing boards and charter changes to "educational, benevolent, or other agencies approved by the Convention." While messengers are sent from "affiliated churches," Article V, Section 1 of the constitution outlines that "[t]he relation between the Convention and the churches and associations shall be fraternal and cooperative." Affiliated Baptist churches operate with complete autonomy and independence, and "[t]he Convention shall never exercise any authority over the churches."
The Convention maintains that it is, first and foremost, an organization of Baptist churches. On appeal, the Convention describes the messenger and church relationship as comparable to that of representative governmentmessengers are sent as delegates or agents of their respective churches. Though the proffered extrinsic evidence includes numerous examples that seem to reflect this practice, particularly deposition testimony, this evidence has no bearing upon interpretations of the contract unless an ambiguity is found within the governing documents. "Where the language of a contract is unambiguous, the intent of the parties is to be gathered from the contract alone, and a court will not resort to construction where the intent of the parties is expressed in clear unambiguous language." Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428-29 (Mo. banc 2003). "A contract is ambiguous only if its terms are susceptible to fair and honest differences." Id. at 428.
The Convention argues that a patent ambiguity exists within the constitution and bylaws because the documents never state that "messengers are members" or that "churches are not members." Article IV of the constitution, which reads as follows, defines membership in the Convention:
This Convention shall consist of messengers named by affiliated churches under the following conditions:
Section 1. Any Baptist church in sympathy with the objects of the Convention and desiring to cooperate with the Convention in her program of single alignment with the Southern Baptist *449 Convention and any Baptist church meeting the qualifications stated in Section 2 shall be entitled to one messenger for every one hundred members or fractions thereof, provided that no church shall be entitled to have more than fifteen messengers.
Section 2. In accordance with the agreement in the year 1919, Missouri Baptists shall continue in fellowship with the multiple aligned churches who were affiliated with the Missouri Baptist Convention of 1961.
Section 3. Should the seating of any messenger or messengers from any church applying for membership in the Convention be challenged, the matter shall be referred to a credentials committee appointed by the Convention president. The committee shall report to the Convention at the next session after appointment and the Convention shall make the final decision about the challenged messenger or messengers.
As described more fully in Article II, section 1 of the bylaws, "[a]ll duly enrolled messengers shall constitute the convention."
On its face, the constitution clearly reflects that the Convention is an ongoing entity that meets annually.[6] Messengers, though selected by "affiliated" churches, are the component members of the organization. While the contract doesn't speak directly to the issue of who "members" are for the purposes of a class action based upon Rule 52.10, it sufficiently defines the character of the organization to allow an interpretation of this issue. Rule 52.10 is designed to give class status to an aggregate of persons, already bound by a jural relationship. State ex inf. Ashcroft, 672 S.W.2d at 123. The aggregate of the Convention is not individual churches, defined by the constitution as wholly autonomous, but is the messengers in attendance at the annual meetings.[7]
Finally, and in the alternative, the Convention argues that numerous latent ambiguities exist within the constitution. A latent ambiguity arises when writings that appear clear and unambiguous are made uncertain by collateral matters. Royal Banks of Mo., 819 S.W.2d at 362. The Convention argues that the proffered extrinsic evidence illustrates ambiguities within the documents, such as the fact that the word "convention" means both the organization and the annual meeting in denominational parlance. This does not render *450 the document ambiguous, however, as both of these meanings are clearly and harmoniously expressed in the governing documents. The more forceful argument made by the Convention is that there exists a clear "custom and practice" of interpreting the Convention as an association of churches, not merely of messengers.
As Royal Banks makes clear, Missouri does recognize instances in which the contractual intent of a party may not always be ascertained by the final written contract. However, "[p]arole evidence may not be used to create ambiguity in an otherwise unambiguous contract or to show that an obligation is other than that expressed in the written instrument." Poelker, 4 S.W.3d at 613. As defined by the Convention's constitution, the embodiment of the contract defining the association, messengers are the members of the Convention. While messengers are drawn from affiliated churches, the churches themselves are distinct and separate. Convention officers are drawn from attending messengers. Only messengers can enact constitutional amendments and bylaws changes. Messengers vote on resolutions proposed by the Convention. Committees are elected from messengers. While messengers have ties to churches, the Convention itself operates purely through the association of the messengers in attendance at the annual meeting.[8]
The trial court correctly concluded that messengers are the proper "members" of the Convention for purposes of Rule 52.10. The Convention's constitution and bylaws illustrate an integrated contract between the members of the convention and those documents unambiguously illustrate that messengers are the members of the Convention.
C. Executive Board As Member of Convention
The Convention's third point on appeal alleges trial court error in the dismissal of the Executive Board for lack of standing. In addition to finding that the Executive Board is not a member of the Convention for the purpose of applying Rule 52.10, the trial court found that the Executive Board lacks standing in that it has no legally protectable interest in the litigation.
The Convention's First Amended Petition posits that the Executive Board is the agent and "representative" of the Convention, possessing the legal status to prosecute the action on behalf of the Convention. The Convention's constitution defines the Executive Board, stating, "[t]he corporate powers of the Convention shall be reposed in the Executive Board of the Convention ... This Board shall have charge of the missionary, educational, and benevolent work of the Convention." Article VII, section 4 notes that "Convention officers shall serve as ex officio members of the Executive Board with all rights of members." Article VIII section 2 notes "the Executive Board shall be composed of Convention officers as at large members and three members from each of eight areas of the state." The initial question, however, is not whether the Executive Board has standing as an agent of the Convention, but whether the *451 composite members of the Executive Board are "members" of the Convention within the meaning of Rule 52.10 to survive the dictates of the rule.
While the Executive Board is an independent entity due to its corporate nature, it is also linked to the Convention for Rule 52.10 consideration by its membership. As this court observed in State ex. inf. Ashcroft:
A class action under voluntary unincorporated associates Rule 52.10 presupposes, as we note, subsistent jural relations among the membership, with shared interests and government and all but in legal capacity, a virtual corporate unit. The purpose of Rule 52.10 is to overcome this incapacity and to endow the association with entity status for suit. In the usual course, therefore, an officer of the association shares the interests of the membership, and hence serves as an adequate representative of that class.
672 S.W.2d at 121 n. 11 (internal citations omitted). The Executive Board consists of elected officials and other messengers drawn from the Convention membership. The cohesion of interests and the authority delegated by the Convention to the officers of the unincorporated association "virtually assurein the absence of other circumstancesthat the officers named as representatives of [the association] in a Rule 52.10 procedure will adequately protect the stakes of the absent members." Id. Not only are the officers of the Convention membership granted Executive Board position, three messengers from each of the eight regions comprising the geographic entity of Missouri are also selected by the Convention to represent it.
"[T]he Rules of Civil Procedure are to be liberally construed to promote justice and to minimize the number of cases disposed of on procedural questions.. . ." Commerce Bank of Kansas City, N.A. v. Conrad, 560 S.W.2d 388, 391 (Mo.App.1977). The Executive Board's independent corporate status neither divests it of the authority granted by the Convention's constitution and bylaws nor does it divest it of its membership link to the unincorporated association. The Executive Board constitutes identifiable members of the Convention elected by the membership. Consequently, the Executive Board of the Convention, by virtue of its members, provides a sufficient link to the members of the convention to give standing to the Convention.
Consequently, the trial court erred in dismissing the action of the Convention with prejudice. By naming the Executive Board in a representative capacity, the petition asserted sufficient identifiable members of the Convention for the trial court to make the determination of adequacy required by Rule 52.10. If the Board members were somehow deemed improper or inadequate representatives, a question this court does not address, the proper remedy would be to allow an amendment to the pleadings.
The Convention's first point on appeal attempts to argue that because Rule 52.10 is a rule of capacity rather than a rule of standing, the Convention possessed sufficient standing in its own right to allow the trial court to permit amendment. See Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618 (1891). The virtues of this argument need not be considered.
D. Executive Board as Corporation
Concluding that the Executive Board provides sufficient standing to file the action on behalf of the Convention does not reach the merits of the Convention's third point on appeal. Although the First Amended Petition asserts the Executive *452 Board has standing as an agent of the Convention, it also alleges injuries suffered by the corporation in its independent corporate capacity.
As previously stated, the trial court's judgment dismissed the Executive Board from the action after finding that the Board "does not have a legally cognizable or protectable interest in this litigation." On March 24, 2004, the Convention filed Plaintiff's Motion for Reconsideration of Judgment of Dismissal, for Clarification of Order and for Leave to File Second Amended Petition. In the trial court's April 7, 2004, order denying the motion, the court reiterated, "[t]his Court has reviewed the allegations asserted by the Executive Board in the amended petition and has reviewed defendant's corporate charters, and finds that the Executive Board of the Missouri Baptist Convention does not have standing to assert claims of the Missouri Baptist Convention and does not have a legally protectable interest in this litigation."
The Executive Board contends that the Convention has placed "broad corporate powers" in the Board, allowing it to assert rights of the Convention based upon the governing documents. Article VII, section 3(b) states "The Board shall have full power and authority to act for the Convention between annual meetings of the Convention in any and all matters pertaining to the Convention's business." While the convention documents articulate the Executive Board's ability to act on behalf of the Convention, they give no authority to the Board to pursue the action in its individual corporate status.
The petition claims that the Executive Board is two distinct entities. First, it is an agent of the Convention. Though perpetual in its existence, the Convention relies upon the Executive Board to oversee and implement the decisions of the Convention. Secondly, it is an independent corporation. Thus, the claim is that the Executive Board acts in its own capacity as a Missouri corporation and also as the day-to-day incarnation of the Convention itself. The Board's status is impacted by whether the Executive Board as a corporation has an identifiable injury or whether the Executive Board's involvement in the case is limited to injuries suffered by the Convention.
Each of the agency's charters, with the exception of Word and Way, grants some right or privilege to the Executive Board, and each of the rights and benefits established by the individual agency charters is a right or benefit belonging to the Convention. The Executive Board's ability to act in each instance is an allocation of authority to the Board as an agent of the Convention. The Convention's constitution and bylaws define the Executive Board as the agent of the Convention with granted authority to act in behalf of the Convention. Even thought the Convention's governing documents authorize the Executive Board to incorporate, representation of the Convention by the Executive Board for Rule 52.10 applicability is linked to the mutual membership of both the Convention and the Board and to the authority granted by the Convention's constitution and bylaws. The Executive Board as an incorporated entity separate and independent of the Convention suffered no injury. Representation by the Board is of the Convention as an unincorporated association. Standing is limited to the Convention itself, and the trial court properly dismissed the Board in its independent capacity.
II. Remaining Points
The two remaining points challenge judgments of the trial court. The Convention's fourth point on appeal alleges that the trial court incorrectly granted *453 partial summary judgment to the Missouri Baptist College in its November 13, 2003, judgment finding that the College's pre-amendment charter did not include "members." The Convention's fifth point on appeal alleges that the trial court incorrectly dismissed the Secretary of State in its February 3, 2003, order.
Having concluded that the Convention does have standing to continue the litigation and that the trial court improperly dismissed the action for lack of standing, neither of these decisions constitutes a final judgment. In the absence of a final judgment, an appellate court has no jurisdiction over the matter. Avidan v. Transit Cas. Co., 20 S.W.3d 521, 523 (Mo. banc 2000). "If an intended judgment does not dispose of all issues and all parties in the case or does not form a final disposition of the matter, it is not a final, appealable judgment and [this court lacks] jurisdiction to entertain an attempted appeal therefrom." Id. (quoting Wallace v. Hankins, 541 S.W.2d 82, 84 (Mo.App. 1976)). The exception is where the trial court expressly designates "there is no just reason for delay." Rule 74.01(b); Gateway Directory Pub. Group, Inc. v. Fischer, 84 S.W.3d 496, 497 (Mo.App. E.D. 2002). The trial court did not employ Rule 74.01(b) in this case. Each of these decisions remains an interlocutory ruling and remains within the jurisdiction of the circuit court. This court is unable to reach the merits of the Convention's remaining arguments.
Conclusion
The trial court erred in dismissing the claims of the Convention for lack of standing. The Executive Board, comprising the messenger officers of the Convention and other messenger members of the Convention (three messengers selected from each of the eight districts comprising the geographic area of Missouri), was sufficient for the trial court to determine whether the Board was a proper party under Rule 52.10 to represent the members of the Missouri Baptist Convention. The trial court correctly dismissed the Executive Board in its individual and independent corporate status. Consequently, the judgment of dismissal regarding the claims of the Convention is reversed, and the case is remanded for further proceedings.
SMITH, C.J. and LOWENSTEIN, J. concur.
NOTES
[1] For purposes of clarity, the six churches collectively will be referred to as "Churches" throughout the remainder of this opinion.
[2] The petition indicates that on or about November 1, 2001, the Convention specifically authorized the Executive Board to bring this action on its behalf.
[3] This information has been adapted from Windermere's statement of facts for context only: the Home's articles stated that the corporation's trustees were to be nominated and elected by the Convention at its annual meeting. Windermere's articles stated that the executive director and president of the Convention and the chairman of the Windermere Board of Advisors were to be permanent members of the board by virtue of their office, and that the corporation's remaining six trustees were to be presented by the Convention Nominating Committee for election by the Convention. Word & Way's articles stated that the corporation's twelve trustees were to be nominated by the Convention Nominating Committee and elected at the Convention's annual meeting. The College's articles stated that the corporation's board of trustees would consist of twenty-seven persons appointed by the Convention. The Foundation's articles stated that the Foundation's trustees were to be nominated and elected in accordance with the procedures and practices of the Nominating Committee of the Convention.
[4] Civil courts have no ecclesiastical jurisdiction, but will exercise jurisdiction to protect civil or property rights, even though a controversy emanates from an ecclesiastical issue. Reorganized Church of Jesus Christ of Latter Day Saints v. Thomas, 758 S.W.2d 726, 731 (Mo.App. W.D.1988). Whether the case presented is ecclesiastical in nature need not be determined because the ultimate issues involve civil or property rights.
[5] In support of this contention, the Convention cites this court's opinion in Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo.App. W.D.1992), which suggests that extrinsic evidence must always be heard to determine whether a contract is integrated. However, discrepancies in Missouri cases regarding the proper means of determining whether a contract is integrated are noted. This court is persuaded by the Eastern District's interpretation of Missouri law that calls for a presumption of integration when a document appears integrated on its face. See e.g. State ex rel. Mo. Highway & Transp. Comm'n v. Maryville Land P'ship, 62 S.W.3d 485, 490 (Mo.App. E.D.2001). To the extent that Wulfing contradicts the principles of this opinion, it is effectively overruled.
[6] An ongoing dispute among the parties to this issue is the Missouri Supreme Court's interpretation of the organization in Farm & Home Savings & Loan Ass'n of Missouri, 337 Mo. 349, 85 S.W.2d 461 (1935). In interpreting the earlier embodiment of the association, the Missouri Baptist General Association, the Court ruled that the organization was "phoenixlike" and could act "during only the period of a particular annual session." Id. at 466. This court's review of the governing documents reads the constitution in its present form to indicate a perpetual organization and does not find this earlier characterization a compelling analysis of the modern incarnation of the Convention.
[7] The Convention further argues that section 3 of Article IV contains a specific reference to churches as members when it states "[s]hould the seating of any messenger or messengers from any church applying for membership in the Convention be challenged." (Emphasis added). The Convention contends that reading the language to mean that messengers are the exclusive members of the Convention would render the phrase "from any church" meaningless surplusage. Sections 1 and 2 of the Article clarify the introductory language, however, stating, "This Convention shall consist of messengers." Because Sections 1 and 2 define two distinct types of "affiliated" churches, it would not be surplusage to assume the "from any church" language merely qualifies the description "any messenger or messengers ... applying for membership."
[8] Some of the findings of the trial court, such as the findings that messengers vote their conscience and are free to cast individual votes as they see appropriate, are not readily ascertainable from the governing documents. As the Convention points out, these findings are inappropriately drawn from extrinsic evidence even though the trial court correctly ruled that the evidence was not admissible. While these findings of fact may buttress the trial court's decision, they are not necessary to reach the same conclusions from the governing documents.
|
569 F.Supp.2d 862 (2008)
UNITED STATES of America, Plaintiff,
v.
Raymond PORTER, Individually and d/b/a Porter Livestock Products; Farmers and Merchants Savings Bank; Iowa Department of Revenue; and John Russell Porter, Defendants.
No. 4:05-cv-00464-JEG.
United States District Court, S.D. Iowa, Central Division.
August 4, 2008.
*863 Joan Stentiford Ulmer, Laquita Taylor-Phillips, U.S. Department of Justice, Washington, DC, for Plaintiff.
Jonathan F. Altman, The Altman Law Firm LLC, Malvern, PA, R. Todd Gaffney, Finley Alt Smith Scharnberg Craig Hilmes & Gaffney PC, William E. Robak, Robak Law Firm PC, Des Moines, IA, for Raymond Porter, John Russell Porter.
Hubert J. Pries, Steven J. Havercamp, Stanley, Lande & Hunter, Davenport, IA, for Farmers and Merchants Savings Bank.
Valencia V. McCown, AAG, Des Moines, IA, for Iowa Department of Revenue.
ORDER
JAMES E. GRITZNER, District Judge.
This matter is before the Court on the Government's Motion for Summary Judgment, which Defendant Raymond Porter (Defendant) has resisted, and Defendant's Motion to Dismiss, Defendant's Notice of Objection to Failure to Include an Essential Party, Defendant's Demand for Jury Trial, and Defendant's Motion for Judgment on the Pleadings. The Government has resisted each of these motions. Neither party has requested a hearing, and the Court concludes a hearing on the pending motions is not necessary. The matters are now fully submitted for review.
SUMMARY OF MATERIAL FACTS
Defendant operated Porter Livestock Products Company (Porter Livestock) from approximately 1982 until 1998 or 1999; Raymond Porter's son, John Russell Porter, continued the business thereafter. Porter Livestock was in the business of the manufacture and sale of nutritional products for swine and dairy and beef cattle, selling such nutritional products as Dairy Aid, Belly Buster, Iron Vite, and Culture Pac. During 1996 and 1997, the employment tax years at issue, Porter Livestock employed salesmen who sold Porter Livestock's products. The parties agree that James DenBoer (DenBoer), David Willard (Willard), Chad Mattes (Mattes), Thomas Brugman (Brugman), Donald Klostermann (Klostermann), Christopher Gottman (Gottman), and John Blickhan (Blickhan) were Porter Livestock's salesmen during the relevant time period. For tax reporting purposes, Defendant treated these salesmen as "independent contractors;" however, the Government asserts they were "employees." The distinction is important because Porter *864 Livestock would be responsible for withholding and remitting employment and unemployment taxes for those deemed "employees" but not those deemed "independent contractors."
IRS Agent Carolyn Hingst (Agent Hingst) began an audit of Defendant's taxes in 1997, including Porter Livestock's 1996 and 1997 federal employment taxes. Based upon the IRS's conclusion that the salesmen were in fact employees, and not independent contractors, on May 8, 2000, additional federal employment and unemployment taxes and interest against Defendant, doing business as Porter Livestock, were assessed. The IRS also audited Defendant and Letha Porter's personal income taxes for tax years 1994 through 1997 and on February 14, 2000, assessed additional federal income taxes and interest against Defendant and Letha Porter.[1] The additional assessed taxes were not remitted by the Porters for either the employment or income taxes. Due to the nonpayment of these taxes, on May 14, 2001, a notice of federal tax lien was filed on the Porters' real property with the Recorder of Deeds for Muscatine County, Iowa.
On August 12, 2005, the Government filed a complaint alleging indebtedness for federal taxes (count one) and lien foreclosure (count two). The complaint listed Defendant, Farmers and Merchants Savings Bank, the Iowa Department of Revenue, and John Russell Porter as defendants.[2] The Government requests the Court (1) enter judgment in the amount of $276,714.36 against Defendant for unpaid federal income tax with additional interest and additions accruing according to law after the dates assessed, (2) enter judgment against Defendant doing business as Porter Livestock products in the amount of $90,301.04 for unpaid, federal employment and unemployment taxes with additional interest and additions accruing according to law after the dates of the assessment, (3) order foreclosure of the Government's tax liens upon certain real property owned by Defendant, and (4) determine the respective interests and claims of the other named defendants in the real property that is subject to the tax liens.
Defendant generally denies all of the allegations contained in the complaint and has set forth the affirmative defenses that (1) the tax liabilities at issue were correctly calculated, (2) tax returns were filed, and taxes due were paid, (3) the Government is taking an unreasonable position in this case, (4) some or all of the claims of the Government are barred by statutes of limitations, and (5) the complaint fails to state a claim upon which relief may be granted.
On November 1, 2006, the Government filed an amended complaint to correct an error in the street address and include the legal description for a third parcel of real property owned by the Porters. On November 7, 2006, the Government filed a Motion for Summary Judgment. The Government contends the federal income tax assessments made against Defendant and Letha Porter for the 1994 through 1997 years should be reduced to judgment, and *865 the federal employment and unemployment taxes assessed against Defendant, individually and doing business as Porter Livestock, for the periods in 1996 and 1997 should be reduced to judgment. The Government asserts that as a result of the tax assessments, the Government has valid federal tax liens on certain parcels of real property belonging to the Porters and the Government is entitled to foreclose its liens on these parcels.
Defendant resists the motion for summary judgment. Defendant argues genuine issues of material fact exist with respect to whether (1) there is a statute of limitations issue, (2) he is entitled to relief under Section 530 of the Revenue Act of 1978, (3) he had a reasonable basis for treating the salesmen as independent contractors, (4) innocent spouse relief was factored into the IRS's calculations, and (5) he received the requisite annual notice of tax delinquency and/or garnishments.
In June of 2007, Defendant's original counsel withdrew, and present counsel appeared, and as a result, additional filings were made prior to the resolution of the pending summary judgment motion. Defendant has filed a Motion to Dismiss, a Notice of Objection to Failure to Include an Essential and Necessary Party, a Demand for Jury Trial, and a Motion for Judgment on the Pleadings. The Government has resisted each of these motions.
APPLICABLE LAW AND DISCUSSION
I. Summary Judgment Standard
"[C]laims lacking merit may be dealt with through summary judgment under Rule 56." Swierkiewicz v. Sorema, 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Summary judgment is a drastic remedy, and the Eighth Circuit has recognized that it "must be exercised with extreme care to prevent taking genuine issues of fact away from juries." Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1118 (8th Cir.2006) (quotation omitted). However, "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law," judgment should be rendered. Fed. R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); P & O Nedlloyd, Ltd. v. Sanderson Farms, Inc., 462 F.3d 1015, 1018 (8th Cir.2006).
The party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Heisler v. Metro. Council, 339 F.3d 622, 631 (8th Cir.2003) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548). "If the moving party has carried its burden, the nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial." Winthrop Resources Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir.2004). The Court gives the nonmoving party the benefit of all reasonable inferences and views the facts in the light most favorable to that party. Liberty Mut. Fire Ins. Co. v. Scott, 486 F.3d 418, 422 (8th Cir.2007); de Llano v. Berglund, 282 F.3d 1031, 1034 (8th Cir.2002).
"Summary judgment is proper if, after viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmovant, no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law." Hayek v. City of St. Paul, 488 F.3d 1049, 1054 (8th Cir.2007) (citing Pope v. ESA Servs., Inc., 406 F.3d 1001, 1006 (8th Cir. 2005)). Summary judgment should not be *866 granted if the Court can conclude that a reasonable trier of fact could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Turner v. Gonzales, 421 F.3d 688, 694 (8th Cir. 2005) ("If a reasonable jury could return a verdict for the non-moving party based on the evidence presented, summary judgment is inappropriate."). In light of these standards, the Court considers the Government's summary judgment motion.
II. The Government's Motion for Summary Judgment
A. Statute of Limitations
Defendant contends an issue exists regarding whether the IRS properly obtained extensions of the statute of limitations so as to allow for the late assessment of the taxes at issue. The Government argues it properly obtained extensions, and all assessments were made in a timely manner.
With limited exceptions, tax assessments must occur within three years after the tax return for the particular tax period was filed. 26 U.S.C. § 6501(a).
Where, before the expiration of the time prescribed in this section for the assessment of any tax imposed by this title ... both the Secretary and the taxpayer have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.
26 U.S.C. § 6501(c)(4)(A).
The Porters' 1040 tax return for 1994 was filed on April 15, 1995, thus the § 6501(a) assessment date for the 1994 taxes was April 15, 1998. The Porters' 1040 tax return for 1995 was filed on April 15, 1996; thus the § 6501(a) assessment date for the 1995 taxes was April 15, 1999. The Porters' 1040 tax return for 1996 was filed on April 15, 1997; thus the § 6501(a) assessment date for the 1996 taxes was April 15, 2000. The Porters' 1040 tax return for 1997 was filed on April 15, 1998; thus the § 6501(a) assessment date for the 1997 taxes was April 15, 2001.
On April 24, 1996, Letha Porter signed a General Power of Attorney, granting her husband the authority to act as her attorney-in-fact. On December 4, 1997, Defendant signed a consent to extend the time to assess tax with respect to the 1994 Form 1040 tax return, agreeing to an extension that allowed an assessment at any time on or before April 15, 1999. Defendant also signed the consent on Letha Porter's behalf in his capacity as her power of attorney. On January 12, 1999, Defendant signed a second consent to extend the time to assess tax with respect to the 1994 and 1995 Form 1040 tax returns, agreeing to an extension that allowed an assessment of those taxes at any time on or before April 15, 2000. Again, Defendant signed the consent on Letha Porter's behalf in his capacity as her power of attorney.
The Government has submitted a copy of a third consent to extend the time to assess tax with respect to the 1994, 1995, and 1996 Form 1040 tax returns, such extension granting until April 15, 2001, for the IRS to make an assessment. Unfortunately, the Government did not submit a copy of a signature page, thus there is no basis upon which the Court can conclude with certainty that Defendant signed this third consent and agreed to the extension. The Government relies on the following portion of Defendant's deposition testimony in support of its contention Defendant agreed to a third extension:
*867 Q: Let me show you Deposition Exhibit 12, which is another consent to extend the time to assess. If you look at the back, is that your signature?
A: Yes.
Q: And you also signed it on behalf of your wife as power of attorney?
A: Yes.
Q: And your tax representative at that time signed it as well?
A: Uh-huh.
Def.'s App. 208, Dep. 154. This deposition testimony to which the Government cites in support of its assertion that the third extension was granted does not specifically indicate what tax years are at issue or what time frame the consent being referenced purported to address. In any event, the existence of this particular consent is irrelevant, as the Form 1040 taxes for 1994, 1995, 1996, and 1997 were all assessed on February 14, 2000, well within the second extension period for the 1994 and 1995 Form 1040 taxes and within the § 6501(a) deadline for the 1996 and 1997 taxes. The record reveals no statute of limitations issue with regard to the 1994, 1995, 1996, or 1997 Form 1040 tax returns.
Porter Livestock's employment tax Form 941 (pertaining to FICA[3] tax) for the first, second, third, and fourth quarters of 1996 were filed on April 30, 1996, July 31, 1996, October 31, 1996, and January 31, 1997, respectively. These quarterly returns were all filed before April 15 of 1997 and thus shall be considered as having been filed on April 15, 1997. See 26 U.S.C. § 6501(b)(2) ("For purposes of this section, if a return of tax imposed by chapter 3, 21 [FICA], or 24 for any period ending with or within a calendar year is filed before April 15 of the succeeding calendar year, such return shall be considered filed on April 15 of such calendar year."). Porter Livestock's employment tax returns (Form 941) for the first, second, third, and fourth quarters of 1997 were filed on April 30, 1997, July 31, 1997, October 31, 1997, and January 31, 1998, respectively. These returns were filed before April 15 of 1998 and thus shall be considered as having been filed on April 15, 1998. Id. The § 6501(a) deadline for the 1996 employment tax assessment was April 15, 2000, and April 15, 2001, for the 1997 employment tax assessment.
The due date for filing unemployment tax Form 940 (pertaining to FUTA[4] tax) is January 31 of the year immediately following the pertinent tax year. See IRS Form 940. Porter Livestock's Form 940 for 1996 was filed on January 31, 1997. Porter Livestock's Form 940 for 1997 was filed on January 31, 1998. "For purposes of this section, a return of tax imposed by this title, except tax imposed by chapter 3, 21, or 24, filed before the last day prescribed by law or by regulations promulgated pursuant to law for the filing thereof, shall be considered as filed on such last day." 26 U.S.C. § 6501(b)(1). Thus, the § 6501(a) assessment date for the 1996 Form 940 taxes was January 31, 2000. The § 6501(a) assessment date for the 1997 Form 940 was January 31, 2001.
On August 13, 1999, Defendant signed a Form SS-10 consent to extend the time to assess employment taxes, extending the time to assess the tax year 1996 Form 940 taxes to April 15, 2001. Defendant signed a second Form SS-10 consent to extend the time to assess employment taxes with regard to the 1996 Form 940 and Form 941 taxes, which again permitted an extension *868 to any time on or before April 15, 2001.[5] Defendant asserts this Form SS-10 was not signed by Letha Porter in any capacity, thereby raising additional statute of limitations issues.[6] There is no assertion in this case by Defendant that Letha Porter had any legal interest in Porter Livestock, and the second Form SS-10 pertained only to Porter Livestock's Form 940 and 941 taxes. Defendant has asserted no facts or evidence in the record to indicate why Letha Porter's signature would be required for a Form SS-10 pertaining solely to Porter Livestock's employment and unemployment taxes, and the Court concludes the lack of Letha Porter's signature on the second Form SS-10 does not render the document faulty. The assessments of additional Form 940 and Form 941 taxes were made on May 8, 2000, within the extension period. The additional employment and unemployment tax assessments for tax years 1996 and 1997 were therefore timely.
A review of the relevant statutes and the record evidence in this case leads to the conclusion that no statute of limitations issue exists with regard to the 1994, 1995, 1996, and 1997 Form 1040 tax assessments, or the 1996 and 1997 Form 940 and Form 941 tax assessments.
B. Common Law Classification
Employers are required to withhold federal income tax from their employees' wages. 26 U.S.C. § 3102(1); Jordan v. United States, 490 F.3d 677, 679 (8th Cir. 2007).
Under the Internal Revenue Code, an employer is required to pay one-half of the total [Federal Insurance Contribution Act] taxes assessed against its employees, and withhold from paychecks those FICA taxes owed by the employees themselves. 26 U.S.C. §§ 3101, 3102(a), 3402(a). Also, the employer is obligated to pay [Federal Unemployment Tax Act] taxes for its employees. 26 U.S.C. § 3101 However, these obligations are incumbent upon an employer only if its workers are determined to be "employees" under the Tax Code.
Boles Trucking, Inc. v. United States, 77 F.3d 236, 238-39 (8th Cir.1996). The obligation to withhold these taxes, collectively referred to as "employment taxes," does not apply to those workers classified as "independent contractors." Hosp. Res. Pers., Inc. v. United States, 68 F.3d 421, 424 (11th Cir.1995) (recognizing that employers are only required to withhold and pay employment taxes in regard to "employees," and not to "independent contractors"); see also Inst. for Res. Mgmt., Inc. v. United States, 22 Cl.Ct. 114, 115 (1990) ("Employers are required to withhold and pay federal employment taxes in connection with payments made to employees, but not in connection with payments to independent contractors."); Dahl v. Ameri-Life Health Serv. of Sara-Bay, L.L.C., No. 8:05-cv-66-T-17TBM, 2006 WL 2884962, at *5 (M.D.Fla. Oct. 10, 2006) ("Under federal tax laws, employers must withhold federal income tax from their employees wages, but not for payments made to independent contractors.").
Defendant argues Porter Livestock correctly classified its salesmen as independent contractors. Common law governs whether an individual is an "employee" or *869 an "independent contractor" for federal tax purposes. Alford v. United States, 116 F.3d 334, 336 (8th Cir.1997). "For purposes of [the Internal Revenue Code], the term `employee' means ... any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee." 26 U.S.C. § 3121(d)(2); see also 26 C.F.R. § 3121(d)-1(c)(1) ("Every individual is an employee if under the usual common law rules the relationship between him and the person for whom he performs services is the legal relationship of employer and employee.").
Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is. accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee under the usual common law rules. Individuals such as physicians, lawyers, dentists, veterinarians, construction contractors, public stenographers, and auctioneers, engaged in the pursuit of an independent trade, business, or profession, in which they offer their services to the public, are independent contractors and not employees.
26 C.F.R. § 3121(d)-1(c)(2). In Revenue Ruling 87-41, the IRS set forth twenty factors to consider when examining whether sufficient control existed to establish an employer-employee relationship, noting that these factors have been designed only as guides in making the determination.
1. INSTRUCTIONS. A worker who is required to comply with other persons' instructions about when, where, and how he or she is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the RIGHT to require compliance with instructions.
2. TRAINING. Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods, indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner.
3. INTEGRATION. Integration of the worker's services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business.
4. SERVICES RENDERED PESONALLY. If the Services must be *870 rendered personally, presumably the person or persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results.
5. HIRING, SUPERVISING, AND PAYING ASSISTANTS. If the person or persons for whom the services are performed hire, supervise, and pay assistants, that factor generally shows control over the workers on the job. However, if one worker hires, supervises, and pays the other assistants pursuant to a contract under which the worker agrees to provide materials and labor and under which the worker is responsible only for the attainment of a result, this factor indicates an independent contractor status.
6. CONTINUING RELATIONSHIP. A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals.
7. SET HOURS OF WORK. The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control.
8. FULL TIME REQUIRED. If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, such person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor on the other hand, is free to work when and for whom he or she chooses.
9. DOING WORK ON EMPLOYER'S PREMISES. If the work is performed on the premises of the person or persons for whom the services are performed, that factor suggests control over the worker, especially if the work could be done elsewhere. Rev. Rul. 56-660, 1956-2 C.B. 693. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform such services on the employer's premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass a territory within a certain time, or to work at specific places as required.
10. ORDER OR SEQUENCE SET. If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, that factor shows that the worker is not free to follow the worker's own pattern of work but must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control, however, if such person or persons retain the right to do so.
11. ORAL OR WRITTEN REPORTS. A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control.
*871 12. PAYMENT BY HOUR, WEEK, MONTH. Payment by the hour, week, or month generally points to an employer-employee relationship, provided that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on straight commission generally indicates that the worker is an independent contractor.
13. PAYMENT OF BUSINESS AND/OR TRAVELING EXPENSES. If the person or persons for whom the services are performed ordinarily pay the worker's business and/or traveling expenses, the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker's business activities.
14. FURNISHING OF TOOLS AND MATERIALS. The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship.
15. SIGNIFICANT INVESTMENT. If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees (such as the maintenance of an office rented at fair value from an unrelated party), that factor tends to indicate that the worker is an independent contractor. On the other hand, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for such facilities and, accordingly, the existence of an employer-employee relationship. See Rev. Rul. 71-524. Special scrutiny is required with respect to certain types of facilities, such as home offices.
16. REALIZATION OF PROFIT OR LOSS. A worker who can realize a profit or suffer a loss as a result of the worker's services (in addition to the profit or loss ordinarily realized by employees) is generally an independent contractor, but the worker who cannot is an employee. See Rev. Rul. 70-309. For example, if the worker is subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses, such as salary payments to unrelated employees, that factor indicates that the worker is an independent contractor. The risk that a worker will not receive payment for his or her services, however, is common to both independent contractors and employees and thus does not constitute a sufficient economic risk to support treatment as an independent contractor.
17. WORKING FOR MORE THAN ONE FIRM AT A TIME. If a worker performs more than de minimis services for a multiple of unrelated persons or firms at the same time, that factor generally indicates that the worker is an independent contractor. See Rev. Rul. 70-572, 1970-2 C.B. 221. However, a worker who performs services for more than one person may be an employee of each of the persons, especially where such persons are part of the same service arrangement.
18. MAKING SERVICE AVAIABLE TO GENERAL PUBLIC. The fact that a worker makes his or her services available to the general public on a regular and consistent basis indicates an independent contractor relationship.
19. RIGHT TO DISCHARGE. The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, *872 which causes the worker to obey the employer's instructions. An independent contractor, on the other hand, cannot be fired so long as the independent contractor produces a result that meets the contract specifications.
20. RIGHT TO TERMINATE. If the worker has the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employeremployee relationship.
Rev. Rul. 87-41, 1987-1 C.B. 296. "Whether the relationship of employer and employee exists under the usual common law rules will in doubtful cases be determined upon an examination of the particular facts of each case." 26 C.F.R. § 3121(d)-1(c)(3). "The ultimate question of whether [the worker] is an employee or an independent contractor is one of law, and is answered by looking at the facts and applying the common law agency test." Alford, 116 F.3d at 336.
The Government asserts Porter Livestock set the ground rules for its salesmen, contending each salesman sold in a particular territory, and Porter Livestock required the salesmen to call on a certain number of customers each week. Defendant testified that salesmen were not assigned a set territory, and they could sell anywhere.
Q: So did you just say earlier your salesmen didn't have a territory?
A: No.
Q: You didn't say that or did they?
A: I said they didn't have, did not have.
Q: So they could sell anywhere?
A: Anywhere.
Q: But typically would they sell in the area where they lived?
A: Yes.
Q: Did anyone sell outside of the area where they lived?
A: Yes.
Q: Who did?
A: All of them. That's how we got scattered out to selling in seven states. They'd have relatives in another state.
Q: So if someone that didn't live near them wanted to purchase, they could go ahead and handle, that sale with that customer?
A: Yes.
Q: No matter where the customer was located?
A: That's right.
Def.'s App. 184, Dep. 56-57. Defendant further testified the salesmen could work on their own time, they did not have to take orders from Porter Livestock, and they were not required to tell Defendant what they did on a day-to-day basis. The salesmen similarly testified that there were no set hours of work, they set their own work schedules, and no one else had control over when they worked. The establishment of set hours of work is a factor indicating control over the worker, whereas an independent contractor is free to work where, when, and for whom he chooses. The fact that the salesmen had no set territory in which to sell and were able to set their own work schedules in relation to their work for Porter Livestock weighs in favor of the independent contractor status.
The salesmen received most of their training in the form of Defendant providing advice or riding along with them on sales calls. DenBoer testified he received no training, and if he had any questions about the product he would just call Defendant and ask him. Blickhan testified he received training in the form of Defendant *873 making cold calls with him, Defendant providing "little classes at his motel room or in the lobby of the motel," and by simply calling Defendant for advice. Blickhan Dep. 15. Brugman testified he received training in the form of Defendant going out on the road with him to demonstrate the correct way to sell to the customer. Gottman testified he received training from Defendant in the form of Defendant going with him and teaching him about the products and how to present the products to the customer. Klostermann testified he attended a seminar that lasted approximately three days, and he received training in the form of learning about Porter Livestock's products and how to sell them. Klostermann also stated he received training on how to sell and how to close a sale. Willard testified he received training in the form of either Defendant or John Porter coming down and riding around with him, helping him deliver the products, and talking to him about new products. While there is no evidence to suggest the salesmen were required to attend any type of company meetings, it does appear each salesman received some form of training. Revenue Ruling 87-41 suggests the receipt of training indicates the employer wants the services performed by the worker in a particular method or manner, thereby demonstrating a level of control associated with an employer-employee relationship. It is fundamental, however, that even an independent contractor engaged in the business of sales would receive some level of training with regard to the business systems of a client and the client's product, while still being allowed to meet sales requirements in his or her own individual way. While recognizing the guidance provided by Revenue Ruling 87-41, given the precise employment at issue, sales, and the inherent necessity that a salesmen receive some form of training or information regarding the product he or she has been tasked with selling, the Court concludes in this particular case, the fact that the salesmen received some training provides minimal guidance on the ultimate issue of whether they were misclassified as independent contractors, beyond a cumulative impression together with other factors.
The salesmen testified the work was typically done by making cold calls to potential customers from the salesman's home or driving around and talking with potential/current customers, thus the work was not performed on the premises of Porter Livestock. While work not performed on the premises ordinarily suggests a lack of control, this factor is afforded minimal weight because the nature of the services being rendered herein was essentially traveling sales.
There was apparently no requirement that the salesmen submit regular or written reports to Porter Livestock, although a few of the salesmen testified they did submit reports. Blickhan testified he turned in a sales report indicating what customers he called on. Mattes testified he prepared reports that he submitted to Porter Livestock that detailed the status of his inventory, how much he sold, what customer the product was sold to, and the date on which the sale took place. A requirement that a worker submit regular reports indicates a degree of control associated with an employer-employee relationship; however, the record in this case suggests the few salesmen who submitted reports to Porter Livestock did it voluntarily in the absence of a requirement for a written report.
The record indicates the salesmen were paid a draw on their commissions on a weekly basis. If the actual commissions for a particular salesman exceeded his monthly draw, he would receive additional compensation to reflect that additional amount he earned. If the actual commissions for a particular salesman fell below *874 his monthly draw, Porter Livestock would carry over that short amount on the books to the following month to allow the salesman an opportunity to make up the deficit through sales. While payment on a weekly basis generally indicates an employeremployee relationship, payment on straight commission suggests the worker is an independent contractor. Under the Porter Livestock pay structure, compensation was a combination of both. The salesmen were only entitled to compensation earned through commissions; however, Porter Livestock paid the salesmen an advance or "draw" on future commissions in the amount of approximately $500 on a weekly basis. Because the Porter Livestock compensation structure resembles that of both an independent contractor and that of an employee, this factor does not particularly weigh in favor of either employment classification.
The salesmen consistently testified they were reimbursed for their business expenses, such as copying fees, gas and hotel expenses, and advertising fees. The salesmen also testified Porter Livestock provided them with a vehicle to use while making sales calls and deliveries of product. The relevant factors contained in Revenue Ruling 87-41 indicate that if the employer pays for the worker's business expenses, the worker is ordinarily an employee. This factor weighs in favor of a finding of an employer-employee classification.
The record reflects the salesmen did not invest in facilities that were used in performing their work for Porter Livestock. In fact, Mattes testified he rented a storage unit in order to store the inventory of product he had on hand, and Porter Livestock reimbursed him for this expense. The lack of a significant investment in facilities is another factor that indicates the existence of an employer-employee relationship.
A few of the salesmen testified that while working for Porter Livestock, they also performed services for unrelated companies. DenBoer testified he worked for another feed company, taking care of the company's livestock. Brugman testified he worked on rebuilding houses during the same time period he was working for Porter Livestock, spending about equal amounts of time at each job. This factor generally indicates the worker is an independent contractor; however, because only two salesmen reported having additional employment, the factor is afforded minimal weight.
When questioned about the issue, salesmen testified they had the right to terminate their employment with Porter Livestock at any time, and that likewise, Porter Livestock could terminate the salesman's employment at any time. The right to discharge a worker indicates the worker is an employee, and an individual's right to end their own employment also indicates an employer-employee relationship.
Finally, the salesmen testified they were provided with no health benefits or other typical employee benefits.
Even viewing the facts in the light most favorable to Defendant, an examination of the facts in the record leads to the conclusion that a consideration of the relevant factors supports the IRS's finding that the salesmen were not properly classified as independent contractors, and, instead, an employer-employee relationship existed. This finding, however, does not end the inquiry or automatically lead to a grant of summary judgment in the Government's favor, due to the existence of the safe harbor of section 530 of the Revenue Act.
C. Revenue Act of 1978 § 530 Relief
Section 530 of the Revenue Act serves as a safe harbor for those employers who *875 have misclassified their workers and thus failed to properly withhold employment taxes. "Section 530 was enacted by Congress to alleviate what was perceived as overly zealous pursuit and assessment of taxes and penalties against employers who had, in good faith, misclassified their employees as independent contractors." Ahmed v. United States, 147 F.3d 791, 796 (8th Cir.1998) (quoting Boles Trucking, Inc., 77 F.3d at 239 (internal quotation marks omitted)).
By its very terms, section 530 is a relief provision available only to employers who erroneously classify their employees. Section 530 applies if (1) the taxpayer does not treat a worker as an employee for employment tax purpose during a particular period; (2) the taxpayer files all required federal employment tax returns on a basis consistent with this treatment; and (3) the taxpayer has a reasonable basis for not treating the worker as an employee.
Id. at 797 (citing Springfield v. United States, 88 F.3d 750, 753 (9th Cir.1996)). Section 530 is not codified but rather can be found as a note to 26 U.S.C. § 3401. Section 530 states as follows:
(a) Termination of certain employment tax liability
(1) In general.If(A) for purposes of employment taxes, the taxpayer did not treat an individual as an employee for any period, and (B) in the case of periods after December 31, 1978, all Federal tax returns (including information returns) required to be filed by the taxpayer with respect to such individual for such period are filed on a basis consistent with the taxpayer's treatment of such individual as not being an employee, then for purposes of applying such taxes for such period with respect to the taxpayer, the individual shall be deemed not to be an employee unless the taxpayer had no reasonable basis for not treating such individual as an employee.
(2) Statutory standards providing one method of satisfying the requirements of paragraph (1).For purposes of paragraph (1), a taxpayer shall in any case be treated as having a reasonable basis for not treating an individual as an employee for a period if the taxpayer's treatment of such individual for such period was in reasonable reliance on any of the following: (A) judicial precedent, published rulings, technical advice with respect to the taxpayer, or a letter ruling to the taxpayer; (B) a past Internal Revenue Service audit of the taxpayer in which there was no assessment attributable to the treatment (for employment tax purposes) of the individuals holding positions substantially similar to the position held by this individual; or (C) long-standing recognized practice of a significant segment of the industry in which such individual was engaged.
(3) Consistency required in the case of prior tax treatment.Paragraph (1) shall not apply with respect to the treatment of any individual for employment tax purposes for any period ending after December 31, 1978, if the taxpayer (or a predecessor) has treated any individual holding a substantially similar position as an employee for purposes of the employment taxes for any period beginning after December 31, 1977.
Section 530 is to be liberally construed in favor of the taxpayer. Boles Trucking, Inc., 77 F.3d at 240; see also Deja Vu-Lynnwood, Inc. v. United States, 21 Fed. Appx. 691, 693 (9th Cir.2001) (unpublished mem.); 303 West 42nd St. Enters., Inc. v. I.R.S., 181 F.3d 272, 276 (2nd Cir.1999); Springfield, 88 F.3d at 753; Greco v. United States, 380 F.Supp.2d 598, 615 (M.D.Pa. 2005); VTA Mgmt. Servs., Inc. v. United *876 States, No. 01CV0145ARRVVP, 2004 WL 3199677, at *9 (E.D.N.Y. Dec. 14, 2004).
Section 530 has three essential requirements: First, the taxpayer must have filed requisite federal tax returns (including information returns) on a basis consistent with the tax payer's treatment of the individuals in question as independent contractors (the reporting consistency requirement); second, the taxpayer must have treated all persons holding substantially similar positions as independent contractors (the substantive consistency requirement); and third, the taxpayer must have had a reasonable basis for treating the individuals in question as independent contractors (the reasonable basis requirement).
Greco, 380 F.Supp.2d at 615.
Defendant argues a genuine issue of material fact exists regarding whether he is entitled to section 530 relief from employment tax liability. The Government asserts Defendant cannot invoke section 530 protection because he has failed to show Porter Livestock filed all the required forms with the IRS for the 1996 and 1997 tax years, and even if Defendant could meet the prerequisites to invoke section 530 protection, he cannot provide a reasonable basis for Porter Livestock not treating its salesmen as employees.[7]
First, the Court examines the reporting consistency requirement. "In connection with payments to `independent contractors,' employers only have to send annual information returns, on Form 1099 to the workers and on Forms 1096 & 1099 to the IRS, indicating the income paid during the year." Hosp. Res. Pers., Inc., 68 F.3d at 424; see also 26 U.S.C. § 1.6041-1(a)(1)(i); Greco, 380 F.Supp.2d at 613. The treasury regulations only require employers to file Forms 1099 and 1096 where the "[s]alaries, wages, commissions fees, and other forms of compensation for services rendered aggregat[e] $600 or more." 26 C.F.R. § 1.6041-1(a)(1)(i)(A).
Internal Revenue Agent Jacquelyn Kessenich (Agent Kessenich) testified in her deposition that IRS records show Porter Livestock filed Form 1099s for 1997. Agent Kessenich specifically testified that these 1099s related to the compensation paid to the outside salesmen at issue, and she stated she found nothing in the IRS records to indicate Form 1099s were filed for 1996.
Defendant swore in a December 2006 affidavit that to the best of his knowledge and belief, 1099 tax forms were filed and mailed to all salesmen for all years that the salesmen sold for Porter Livestock, and he relied on his tax preparer to prepare, file, and mail all applicable tax forms.
Defendant has provided copies of Form 1099s that Defendant asserts Porter Livestock provided to its workers in 1996. The record contains copies of Form 1099s for 1996 for salesmen Gottman, Willard, Mattes, DenBoer, and Blickhan. The record also contains Form 1099s for salesmen Klostermann; however, because the copy provided to the Court is of poor quality, the year on the form is illegible and thus it remains unclear whether this Form 1099 pertains to 1996.
In addition to the Form 1099s for 1996 Defendant has provided, the record also contains Form 1099s for 1996 that were provided by the salesmen themselves. Brugman and DenBoer each provided copies of Form 1099s for 1996 they received *877 from Porter Livestock. Brugman and Blickhan also provided copies of their 1996 income tax returns. Each tax return submitted by these salesmen included a Schedule C detailing profit or loss from business. Line one of Schedule C requires the taxpayer to report gross receipts or sales and includes the following caution: "If this income was reported to you on Form W-2 and the `Statutory employee' box on that form was checked, see page C-2 and check [box] here." The box referenced was not checked on any of the Schedule Cs submitted by the salesmen. More notably, the amount Blickhan reported on line one of his 1996 Schedule C, $4,625.00, is identical to the amount identified as "non-employee compensation" on the 1996 Form 1099 Defendant asserts he provided to Blickhan. The amount Brugman reported on line one of his 1996 Schedule C, $17,019.00, is nearly identical to the amount identified as "non-employee compensation," $17,019.37, on the 1996 Form 1099 Brugman stated he received from Defendant.
DenBoer testified he was quite certain he received a Form 1099 from Porter Livestock for the years he worked there. Blickhan testified it was up to him to take the employment taxes out of his own wages and that he withheld the taxes and put them in a special savings account and paid the taxes quarterly. Gottman testified he believed the compensation he received from Porter Livestock was reported on a Form 1099 for the years he worked for the company; however, he was not 100 percent certain. Brugman testified his tax preparer provided a Form 1099 for 1996 from Porter Livestock that Brugman's tax preparer had retained in his file. Mattes testified he believed he received a Form 1099, because during the years he worked for Porter Livestock, he filed his income taxes as an independent contractor. Ultimately, Mattes could not remember if he received a Form 1099 or a W-2. The deposition testimony of Klostermann and Willard, submitted by the Government, does not address whether or not they received Form 1099s during their employment with Porter Livestock.
Agent Hingst testified during her deposition that during the course of her investigation in 1997, either Defendant or his power of attorney provided her with copies of Form 1099s for 1996. Agent Hingst testified that she could not recall if those 1996 Form 1099s were filed or not, and she did not actually check the IRS records during her 1997 investigation to determine if they had actually been filed. Agent Kessenich testified the IRS records indicated no Form 1099s were filed for 1996.
Defendant testified Form 1099s were provided to the salesmen as far as he knew, but ultimately the office manager, Dan Ruess, would have been responsible for handling the Form 1099s. Defendant testified that he was assured by Ruess that a Form 1099 was filed for any worker who earned any money on commission.[8]
Defendant has provided a copy of a Form 1096 for the 1996 employment taxes. Defendant has also provided a copy of a Form 1096 for the 1997 employment taxes. The Government has not addressed whether a Form 1096 was filed by Porter Livestock for 1996.
Agent Kessenich testified the IRS records indicate no Form 1099s were filed by Porter Livestock for 1996, while Agent Hingst testified she did not check whether the Form 1099s for 1996 had been filed. *878 Defendant has provided copies of Form 1099s and Form 1096 for 1996, and the salesmen consistently testified that either they did in fact receive a Form 1099, or at the very least, they believed they did but could not recall for certain. Examining the evidence in the light most favorable to Defendant, it is unclear whether Form 1099s were filed for the salesmen for 1996 and whether Form 1096s were filed for either 1996 or 1997. The Court concludes a genuine issue of material fact exists in regard to the reporting consistency requirement necessary for section 530 relief.
Second, the Court must examine the substantive consistency requirement to determine whether Porter Livestock consistently treated the salesmen as independent contractors. There is no evidence in the record to indicate Porter Livestock classified the salesmen differently from one another for employment tax reporting purposes. The Government makes no argument with respect to whether Porter Livestock consistently treated the relevant workers as independent contractors and has provided no evidence to establish Porter Livestock referred to workers it classified as independent contractors as employees. The record fails to establish Porter Livestock did not consistently treat the salesmen as independent contractors. The Court therefore concludes summary judgment in the Government's favor is not appropriate as to the substantive consistency requirement of section 530 relief.
Third, the Court must examine the reasonable basis requirement. Defendant argues he has a reasonable basis for treating his salesman as independent contractors. The Government argues that even if Defendant could meet the prerequisites to invoke section 530 protection, he cannot provide a reasonable basis for Porter Livestock not treating its salesmen as employees. As indicated above,
[A] taxpayer shall in any case be treated as having a reasonable basis for not treating an individual as an employee for a period if the taxpayer's treatment of such individual for such period was in reasonable reliance on any of the following: (A) judicial precedent, published rulings, technical advice with respect to the taxpayer, or a letter ruling to the taxpayer; (B) a past Internal Revenue Service audit of the taxpayer in which there was no assessment attributable to the treatment (for employment tax purposes) of the individuals holding positions substantially similar to the position held by this individual; or (C) longstanding recognized practice of a significant segment of the industry in which such individual was engaged.
Defendant asserts he relied on technical advice from Russell Newell (Newell) in the preparation of Porter Livestock's tax returns and for that reason should be treated as having a reasonable basis for treating the salesmen as independent contractors. Defendant testified that Newell was his long-time attorney who did all of his tax work, preparing all of his federal income tax returns for the years at issue in this suit. Defendant testified they would take their "checks and sales receipts and everything" to Newell's office on a monthly basis, and at the end of the year, Newell would tell them how much tax they owed. Def.'s App. 180, Dep. 38. "Advice of counsel and other professional advisors qualifies as technical advice." VTA Mgmt. Servs., Inc., 2004 WL 3199677, at *13; see also Select Rehab., Inc. v. United States, 205 F.Supp.2d 376, 383 (M.D.Pa.2002) (holding taxpayer could satisfy the reasonable basis requirement by establishing it reasonably relied on the advice of counsel); N. La. Rehab. Ctr., Inc. v. United States, 179 F.Supp.2d 658, 669 (W.D.La.2001) (finding reliance on the advice of in-house and outside counsel sufficient *879 to establish a reasonable basis for treating the workers as independent contractors).
The Government points out there is no testimony on the record from Newell regarding any advice and assistance he allegedly gave Defendant with respect to the classification of Porter Livestock's salesmen as employees or independent contractors. Unfortunately, that is because Newell is deceased.
Other than the deposition testimony of Defendant, there is little evidence in the record regarding the nature of advice Newell provided to Porter Livestock with regard to whether the salesmen should be treated as independent contractors or employees. While it appears Defendant relied on the technical advice of Newell, given the unclear record regarding actual advice and reliance on any such advice from Newell, summary judgment on the reasonable basis requirement of section 530 relief is not appropriate.
The Court concludes that viewing the record in the light most favorable to Defendant as the nonmoving party, genuine issues of material fact exist regarding whether there was reporting consistency, substantive consistency, and whether a reasonable basis exists based on reliance on technical advice from Newell. For those reasons, summary judgment must be denied with respect to the Government's argument that Defendant is not entitled to section 530 relief.
D. Innocent Spouse Relief
Defendant asserts Agent Hingst testified she was aware Letha Porter had been diagnosed with Alzheimer's disease and therefore Letha Porter would not have been aware of tax matters involving Porter Livestock. For that reason, Agent Hingst stated she was providing innocent spouse relief to Letha Porter. Defendant asserts none of the tax assessments provided in this case reflect an adjustment or reduction based on innocent spouse relief. Defendant claims an issue exists regarding whether innocent spouse relief was provided at all.
The Government maintains that whether Letha Porter was entitled to and granted innocent spouse relief is immaterial to the issues presented in this case, and even if she was entitled to such relief, Defendant has failed to show how her innocent spouse relief would affect the amount of the tax assessments at issue.
Under procedures prescribed by the Secretary, if
(A) a joint return has been made for a taxable year;
(B) on such return there is an understatement of tax attributable to erroneous items of one individual filing the joint return;
(C) the other individual filing the joint return establishes that in signing the return he or she did not know, and had no reason to know, that there was such understatement;
(D) taking into account all the facts and circumstances, it is inequitable to hold the other individual liable for the deficiency in tax for such taxable year attributable to such understatement; and
(E) the other individual elects (in such form as the Secretary may prescribe) the benefits of this subsection not later than the date which is 2 years after the date the Secretary has begun collection activities with respect to the individual making the election,
then the other individual shall be relieved of liability for tax (including interest, penalties, and other amounts) for such taxable year to the extent such liability is attributable to such under-statement. *880 26 U.S.C. § 6015(b)(1). Innocent spouse relief merely relieves the innocent spouse, in this case, Letha Porter, of tax liability for tax returns which the innocent spouse signed without knowing misrepresentations were included in the tax returns which reduced the tax liability. Due to Letha Porter's death and the joint and several nature of tax liability for joint returns, it is irrelevant whether she was granted innocent spouse relief.
Defendant argues that any additional tax assessments against Porter Livestock affected the tax rights of Letha Porter, because "it is simple mathematics" that any increase in adjusted gross income resulted in a decrease of the allowed medical expenses of Letha Porter as claimed on the Schedule A itemized deductions. The Government responds by stating this does not create a dispute of fact, because any decrease in the amount of the allowed medical expenses reflected on Defendant and Letha Porter's Schedule A for the income tax years at issue was due to an increase to Defendant's adjusted gross income. The Government states that Defendant's adjusted gross income was increased as a result of the additional employment and unemployment tax assessments at issue, and thus any decrease in allowed medical expenses is justified.
Innocent spouse relief merely relieves the innocent spouse of liability for the taxes at issue; it does not provide the innocent spouse with any type of credit or other benefit that would result in a adjustment or reduction of the tax liability owed by the noninnocent spouse. The Court finds there is no genuine issue of material fact regarding innocent spouse relief.
E. Annual Notice of Tax Delinquency
Finally, Defendant claims he does not recall receiving an annual notice of tax delinquency statement for the tax periods in question. The Government asserts Defendant's contentions regarding the IRS's collection actions do not raise an issue regarding his liability for assessed taxes; rather, they amount to a claim under 26 U.S.C. § 7433 for wrongful collection.
If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States.
26 U.S.C. § 7433(a). "A judgment for damages shall not be awarded ... unless the court determines that the [taxpayer] has exhausted the administrative remedies available to such [taxpayer] within the Internal Revenue Service." Id. § 7433(d)(1). "Before a taxpayer may recover under Section 7433, he must exhaust his administrative remedies." Eastman v. United States, No. 06-cv-1069, 2008 WL 899252, at *4 (W.D.Ark. Mar. 31, 2008); see also Merfeld v. Holmes, No. C03-2022, 2003 WL 23169796, at *2 (N.D.Iowa Oct. 29, 2003) (finding the court lacked subject matter jurisdiction over § 7433 claims because the taxpayer failed to exhaust his administrative remedies); Piciulo v. Brown, No. 4:05CV46, 2005 WL 1926688, at *4 (E.D.Mo. May 25, 2005) ("To sustain a cause of action under 26 U.S.C. § 7433, a plaintiff must first exhaust available administrative remedies."). Defendant has failed to demonstrate or even allege that administrative remedies have been exhausted; thus the Court cannot entertain any argument that is in essence a section 7433 claim.
*881 Defendant also contends IRS Agent Mary Jo Ratchford (Agent Ratchford) testified during her deposition that garnishments of Defendant's bank account were carried out but that no letter or other written notice had been provided to Defendant to detail the amounts garnished; and there is no reduction shown on the amount of taxes due to reflect the funds garnished. In support of this assertion, Defendant cites to the following portion of Agent Ratchford's deposition testimony:
A: ... taxpayer. The bank usuallyI won'tI don't know for sure, but usually the bank notifies or they find out from the bank exactly how much. I don't usually tell them. No.
Q: So you don't know if the IRS sends the taxpayer a letter on this issue?
A: I'm not
Q: After
A: I don't send a letter stating how much I received.
Q: Where do the funds go when they are levied?
A: When I receive them?
Q: Yes.
A. I apply them to the tax periods on the levy.
Q: But you don't send a letter to the taxpayer?
A: As far as to the amounts?
Q: Yes.
A: No. Not unless requested.
Q: You don't send a letter that notifies that this amount levied applied to tax, this is your tax balance due, that kind of
A: In general, no.
Q: So generally, from your understanding, it's up to the taxpayer to find out the number from the bank and go from there?
A: Well, they can ask me also. If I issued the levy they could call and ask me how much and where it was applied.
Def.'s App. 64, Dep. 25-6. To assert that Agent Ratchford testified garnishments were indeed made on Defendant's account misrepresents this testimony. Clearly, Agent Ratchford was testifying in general about how she sends notice out when a levy takes place. Defendant has failed to provide any evidence to demonstrate a garnishment was made on his bank account and has failed to demonstrate the IRS's collection actions create a genuine issue of material fact.
The record demonstrates there is no genuine issue of material fact with respect to the statute of limitations for the tax years at issue, whether Defendant received annual notice of tax delinquency, or innocent spouse relief, and Defendant's arguments as to those issues are insufficient to defeat summary judgment as to the income taxes for 1994, 1995, 1996, and 1997. The record does reveal a genuine issue of material fact regarding whether Defendant is entitled to section 530 relief from the employment tax liability. For that reason, summary judgment as to the 1996 and 1997 employment taxes must be denied.
III. Defendant's Motion to Dismiss
On June 18, 2007, Defendant filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing the Government's motion for summary judgment was filed on the original complaint, not the amended complaint, and therefore the Government's motion for summary judgment is void and the Court lacks subject matter jurisdiction to consider the Government's motion for summary judgment. Defendant also argues the *882 Government's amended complaint is void on its face due to "severe procedural defects in the filing of the complaint and motion for summary judgment." The Government maintains Defendant has failed to articulate any reason why the amended complaint is improper, and the motion for summary judgment was timely filed.
The original complaint was filed on August 12, 2005. The amended complaint was filed on November 1, 2006. The amended complaint did not add any new claims or substantive allegations to the action. Instead, it merely corrected an error in the street address of the real property labeled as Parcel 2 in the complaint and included the legal description for a third parcel of property on which the Government is seeking to foreclose the tax liens. The Government's motion for summary judgment was then filed on November 7, 2006.
First, Defendant claims the Government filed its motion for summary judgment "on the original complaint," and that because the amended complaint voided the original complaint, the summary judgment motion is void on its face. The Government's summary judgment motion does not contain any specific reference to the "original" complaint. A review of the Government's motion for summary judgment shows the Government simply requests the Court grant summary judgment against Defendant, individually and doing business as Porter Livestock, and John Porter on the grounds that there are no genuine issues as to any material fact and to find that the Government is entitled to judgment as a matter of law.
Second, Defendant has not alleged any defects exist in the amended complaint. Instead, Defendant appears to be arguing that the Government's motion for summary judgment is void because it was filed before the expiration of the ten days permitted under Federal Rule of Civil Procedure 15(a) to respond to the amended complaint. Federal Rule of Civil Procedure 15(a)(3) provides, "Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 10 days after service of the amended pleading, whichever is later." Rule 15(a)(3) imposes no requirement that a responsive pleading to an amended pleading must be filed before a summary judgment motion can be filed; it merely indicates the time in which the responsive pleading must be filed. "A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim. The motion may be filed at any time after ... 20 days have passed from commencement of the action." Fed.R.Civ.P. 56(a)(1). "An amendment of a pleading relates back to the date of the original pleading when ... the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c)(2). The amended complaint arose out of the same conduct set forth in the original complaint. The amended complaint therefore relates back to the date the original complaint was filed, August 12, 2005. The Government's motion for summary judgment, filed on November 7, 2006, was well over the 20-day period set forth in Rule 56(a). The Court concludes Defendant's motion to dismiss must be denied.
IV. Defendant's Notice of Objection to Government's Failure to Include an Essential and Necessary Party
Defendant claims Letha Porter, who is deceased, is an essential and necessary party in this case because the tax returns at issue were filed jointly. Defendant objects *883 to the Government's failure to include Letha Porter as a party in this suit and has submitted a written objection "to establish and preserve the record." The Government argues this objection is without merit because Letha Porter is not a necessary party to this action.
The returns at issue in this case were filed by Defendant and Letha Porter as joint returns. "[I]f a joint return is made ... the liability with respect to the tax shall be joint and several." 26 U.S.C. § 6013(d)(3). The United States may sue one or both spouses to collect income tax from a joint return. Tavery v. United States, 897 F.2d 1032, 1034 (10th Cir.1990) (citing Martin v. United States, 411 F.2d 1164 (8th Cir.1969)); In re Richmond, 456 F.2d 458, 462-63 (3d Cir.1972). Because the liability for the taxes at issue is joint and several between Defendant and Letha Porter, Letha Porter is not a necessary party to this action. Defendant's objection to the Government's failure to name Letha Porter as a party to this suit is therefore overruled.
V. Defendant's Demand for Jury Trial
On July 12, 2007, Defendant, for the first time, filed a demand for jury trial. Defendant contends he retained new counsel on June 4, 2007, and the newly obtained counsel discovered after reviewing the docket that no prior demand for a jury trial had been made.
The Government does not dispute Defendant had a right to a trial by jury in this case. The Government argues Defendant waited twenty months after filing the amended answer to request a jury trial, and consequently Defendant failed to make a timely demand for a jury trial and thus waived the right to one. The Government asserts that even if Defendant had requested a jury trial within ten days of the United States amending its complaint, the previously waived right would not have been revived because the amended complaint merely corrected an error in the street address for one of the properties described in the original complaint and included the legal description for another parcel of property, and the amendments did not raise any new triable issues. The Government argues Defendant has not offered any justifiable reason for not filing a jury demand within the required ten-day period and waiting for twenty months before filing one.
Rule 38(b) of the Federal Rules of Civil Procedure permits a party to demand a jury trial on any issue triable of right by jury. The demand must be made "no later than ten days after the service of the last pleading directed to such issue." Fed. R.Civ.P. 38(b)(1). "A party waives a jury trial unless its demand is properly served and filed." Fed.R.Civ.P. 38(d). An amended pleading that contains no new triable issues involving the party making the demand does not revive the right. Shelton v. Consumer Prod. Safety Comm'n, 277 F.3d 998, 1011-12 (8th Cir. 2002).
It is undisputed Defendant did not timely file a demand for a jury trial in accordance with Federal Rule of Civil Procedure 38(b). Where a jury trial is not properly demanded, the Court has the discretion, on its own motion, to "order a jury trial on any issue for which a jury might have been demanded." Fed.R.Civ.P. 39(b). Other than indicating there was a change in defense counsel in June 2007, Defendant has failed to offer any explanation why a demand for jury trial was not timely made, and Defendant has not indicated what prejudice would result from the denial of a jury trial. Under such circumstances, the Court will not exercise its discretion under Federal Rule of Civil Procedure 39(b) to order a jury trial on its *884 own motion. See Shelton, 277 F.3d at 1011 (affirming denial of jury trial where the parties offered no persuasive explanation for their failure to file a timely demand for a jury trial); Littlefield v. Fort Dodge Messenger, 614 F.2d 581, 585 (8th Cir. 1980) (affirming denial of belated request for a jury trial when the party offered "no justification for the failure to make an appropriate demand other than inexperience" and the party pointed to no prejudice resulting from the denial). The Court finds Defendant's demand for jury trial is untimely, fails to provide a basis for the exercise of this Court's discretion, and must be denied.
VI. Defendant's Motion for Judgment on the Pleadings
Finally, Defendant has filed a Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). Defendant argues he is entitled to a judgment on the pleadings because the Government (1) is asserting claims that are timebarred, (2) has failed to set forth evidence as to the steps taken to make assessments of the liability at issue, and the amended complaint does not establish the Government took the requisite steps to perfect an assessment of deficiency, (3) the liens at issue were not correctly obtained and executed, and (4) the inclusion of John Russell Porter as a party to this action is premature and therefore is in error.
The Government argues Defendant's motion is improper and raises meritless issues. The Government contends that because its opposition to Defendant's motion is supported by documents outside the pleadings, the Court should convert the motion into one for summary judgment.
"After the pleadings are closedbut early enough not to delay triala party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). "A grant of judgment on the pleadings is appropriate `where no material issue of fact remains to be resolved and the movant is entitled to judgment as a matter of law.'" Poehl v. Countrywide Home Loans, Inc., 528 F.3d 1093, 1096 (8th Cir.2008) (quoting Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir.2002)).
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
Fed.R.Civ.P. 12(d). In order to address Defendant's claim that the Government is time-barred from bringing this action, the Court necessarily must consider documents outside of the pleadings, because the Government has not alleged in the amended complaint that extensions were granted for the taxes at issue. The Court will therefore convert Defendant's motion for judgment on the pleadings to one for summary judgment.
A. Timeliness of Assessment
As previously discussed, the record reveals no statute of limitations issue with regard to the 1994, 1995, 1996, or 1997 Form 1040 tax returns, or the 1996 and 1997 employment taxes.
B. Steps Taken to Perfect Assessments
Defendant argues the Government has failed to set forth the evidence as to the steps that were taken to make the assessments of liability, asserting the Government has only provided summaries of alleged assessments made. Defendant asserts the Government has not set forth how Defendant was notified of the assessments or his right, to contest them, and *885 the amended complaint only refers to a notice and demand for payment of the assessments described but does not provide a copy of any notice sent to Defendant or how notice was accomplished. Defendant argues the amended complaint does not establish the Government took the requisite steps to perfect an assessment of deficiency, and it does not even show proof of signed or affirmed records of assessment by the Secretary of Treasury or a designated agent as required.
The Government argues (1) it is not required to send a deficiency notice to a taxpayer prior to assessing employment taxes, therefore it was not required to notify Defendant of his 1996 and 1997 employment tax deficiencies prior to assessing them, (2) Defendant signed Forms 4549-CG with respect to his 1994 through 1997 income taxes, and by signing those forms, Defendant waived his right to a deficiency notice regarding those taxes, (3) Defendant explicitly chose to waive his right to contest in Tax Court the assessment of those deficiencies and consented to the immediate assessment and collection of them, and (4) the certificates of assessments and payments establish that a proper assessment has been made, contain all of the necessary information, and demonstrate the tax assessments shown on the certificates were properly made.
The taxes at issue are Raymond and Letha Porter's income taxes and employment taxes from Porter Livestock. Employment taxes do not require the IRS to send a deficiency notice to the employer-taxpayer prior to making the assessment.
[I]n this case the underlying tax liabilities are for employment taxes, which are not contemplated by IRC §§ 6211 or 6213(a). Both IRC §§ 6211 and 6213(a) specifically apply to any tax imposed by subtitle A (concerning income tax) or subtitle B (concerning estate and gift tax), chapter 41 (public charities), 42 (private foundations and certain other tax-exempt organizations), 43 (qualified pension, etc., plans), or 44 (qualified investment entities). Employment tax liabilities are found under subtitle C, chapters 21 and 24 of the IRC and therefore do not fall under the IRC's definition of "deficiency."
Henderson v. United States, 95 F.Supp.2d 995, 1003 n. 22 (E.D.Wis.2000); see also Cutaiar v. United States, No. 91-3526, 1992 WL 198927, at *6 (E.D.Pa. Aug. 11, 1992) ("The normal deficiency procedures with respect to assessment of tax are inapplicable since the 100% penalty relates to withholding taxes."). The IRS was not required to send Defendant a deficiency notice prior to assessing the 1996 and 1997 employment taxes.
Also at issue are the 1994, 1995, 1996, and 1997 income taxes, which do require the IRS to send a deficiency notice to the taxpayer prior to assessing the taxes.
If the Secretary determines that there is a deficiency in respect of any tax imposed by subtitles A or B or chapter 41, 42, 43, or 44, he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail. Such notice shall include a notice to the taxpayer of the taxpayer's right to contact a local office of the taxpayer advocate and the location and phone number of the appropriate office.
26 U.S.C. § 6212(a). A taxpayer may waive the right to a deficiency notice by signing a notice and placing it on file with the Secretary of Treasury. 26 U.S.C. § 6213(d). "A duly executed IRS Form 4549 is a proper waiver of the deficiency notice requirements." Perez v. United States, 312 F.3d 191, 197 (5th Cir.2002). Defendant signed a Form 4549-CG on be-half *886 of himself, and as power of attorney for Letha Porter, for the 1994, 1995, and 1996 income taxes on January 5, 2000. Defendant similarly signed a Form 4549-CG for the 1997 income taxes, although his signature on this form is not dated.[9] Both forms signed by Defendant specifically state, "I give my consent to the immediate assessment and collection of any increase in tax and penalties." Defendant waived his right to a deficiency notice for the 1994, 1995, 1996, and 1997 income taxes when he signed the Form 4549-CGs.
Defendant also argues the Government has failed to set forth the evidence as to the steps that were taken to make the assessments of liability, asserting the Government has only provided summaries of alleged assessments made against the Porter defendants.
The record contains certificates of assessments (IRS Form 4340) for the 1994, 1995, 1996, and 1997 income taxes, and for the quarterly employment taxes for 1996 and 1997. These certificates of assessments establish the taxes at issue were properly assessed.
An assessment is made "by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary." I.R.C. § 6203. The IRS satisfies its obligations under this statute when an assessment officer signs a summary record of assessment, describing (1) the taxpayer's name and address; (2) the character of the assessed liability; (3) the taxable period (if any); and (4) the amount of the assessment. Treas. Reg. § 301.6203-1. Contrary to the [taxpayer's] assertion, the Certificates of Assessments and Payments offered by the government in support of its motion for summary judgment meet the requirements of Treas. Reg. § 301.6203-1, as they contain all of the necessary information. In addition, Certificates of Assessments and Payments establish the fact of assessment and carry with them a presumption of validity and that the assessments they reflect were properly made. United States v. Chila, 871 F.2d 1015, 1018 (11th Cir.1989), cert. denied, 493 U.S. 975, 110 S.Ct. 498, 107 L.Ed.2d 501 (1989); United States v. Strebler, 313 F.2d 402, 403-404 (8th Cir.1963); United States v. Dixon, 672 F.Supp. 503, 506 (M.D.Ala.1987), aff'd without published opinion, 849 F.2d 1478 (11th Cir.1988).
Hefti v. Internal Revenue Service, 8 F.3d 1169, 1172 (7th Cir.1993); see also Perez, 312 F.3d at 195 ("IRS Form 4340 constitutes valid evidence of a taxpayer's assessed liabilities and the IRS's notice thereof."). The Court concludes Defendant's argument that the Government has failed to set forth evidence as to the steps that were taken to make the assessments of liability is without merit.
C. Liens at issue
Defendant argues the amended complaint refers to the filing of notices of tax liens, but does not set forth whether the notices of the filing of tax liens were sent to Defendant, nor provide a copy of any such notices.
"The Secretary shall notify in writing the person described' in section 6321 of the filing of a notice of lien under section 6323." 26 U.S.C. § 6320(a)(1). James Driscoll (Driscoll), Supervisory Revenue Officer with the Small Business/Self Employed Operating Division of the Internal Revenue Service, wrote in a sworn declaration that he had reviewed the IRS collection *887 records pertaining to Defendant and Porter Livestock. Driscoll indicated that Revenue Officer Kathy Phipps sent Defendant, individually and doing business as Porter Livestock, notices of the federal tax liens for the income tax years 1994 through 1997 and the employment tax years 1996 and 1997 that were filed with the Muscatine County Recorder. Driscoll indicated those notices are dated May 15, 2001, and were sent by certified mail. The record contains copies of these notices. Further, although Defendant attempts to argue he did not receive notices of the federal tax liens, he wrote the IRS a letter asking them to release the tax liens, claiming he had expatriated from the United States. The IRS received the letter from Defendant and treated it as a request for a collection due process hearing and ultimately denied the request to have the liens released.
Defendant also argues the amended complaint does not specify upon which property tax liens were filed. The amended complaint specifically states the Government is entitled to foreclose the tax liens on "any property owned by Raymond R. Porter." Am. Compl. ¶ 17. The amended complaint goes on to specifically detail three parcels of property by their legal description. Am. Compl. ¶¶ 18, 19, 22.
If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.
26 U.S.C. § 6321 (emphasis added). "[T]he lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or becomes unenforceable by reason of lapse of time." Id. § 6322. Federal tax liens arose on all property belonging to Defendant at the time the assessments at issue were made and continue in effect.
The Court concludes the Government has set forth sufficient evidence to demonstrate the liens at issue were correctly obtained and executed, and Defendant has failed to produce any evidence to refute the Government's evidence in this regard. The record fails to disclose any genuine issue of material fact exists regarding the liens at issue.
D. Inclusion of John Russell Porter as a Party
Finally, Defendant argues John Russell Porter is not the holder of an interest in any of the property at issue; therefore, he should be dismissed from this action. The Government asserts it named John Russell Porter as a defendant in this action because of any interest he may have claimed to the property at issue in this case. Because John Russell Porter does not claim an interest, the Government does not oppose Defendant's request to dismiss John Russell Porter from this case. The Court will therefore dismiss John Russell Porter from the case.
CONCLUSION
For the reasons stated,
The Government's Motion for Summary Judgment (Clerk's No. 34) is granted in part and denied in part. The Government's Motion for Summary Judgment (Clerk's No. 34) is denied, with the exception that no genuine issue of material fact exists in regard to the 1994, 1995, 1996, and 1997 federal income taxes, as to which the motion is granted
*888 Defendant's Motion to Dismiss (Clerk's No. 61) is denied.
Defendant's Notice of Failure to Include an Essential Party (Clerk's No. 62) is denied.
Defendant's Demand for Jury Trial (Clerk's No. 71) is denied.
Defendant's Motion for Judgment on the Pleadings (Clerk's No. 74) is granted in part and denied in part. Defendant's Motion for Judgment on the Pleadings (Clerk's No. 74) is denied, with the exception that John Russell Porter should be dismissed from the case, as to which the motion is granted.
The parties are directed to contact the office of Magistrate Judge Bremer for the purpose of scheduling a status conference, at which time a date for the remaining bench trial will be established and any other pretrial matters addressed.
IT IS SO ORDERED.
NOTES
[1] Letha Porter, who is now deceased, was Defendant's wife.
[2] The Government states it included Farmers and Merchants Savings Bank, the Iowa Department of Revenue, and John Russell Porter as defendants in the event any of these parties had an interest in the real property on which the liens had been placed. The parties have since agreed, in a stipulation approved by the Court on January 8, 2007, that if the real property described as "Parcel 1" is sold pursuant to any order of this Court, the sale shall be subject to Farmers and Merchants' first mortgage on Parcel 1.
[3] Federal Insurance Contributions Act, 26 U.S.C. §§ 3101-3128.
[4] Federal Unemployment Tax Act, 26 U.S.C. §§ 3301-3311.
[5] Defendant's signature is dated 1999, although the exact month of the signature is illegible. The IRS representative's signature is dated November 10, 1999. This consent addressed both employment and unemployment taxes.
[6] Counsel does not elaborate on the specific nature of these "additional statute of limitations issues."
[7] The Government also initially claimed Defendant failed to raise section 530 protection as a defense in his answer to the complaint; however, the defense was raised in Defendant's December 4, 2006, answer to the amended complaint, rendering this argument from the Government moot.
[8] The deposition testimony of Ruess that has been submitted does not address the filing or preparation of Form 1099s.
[9] On this same form, immediately above Defendant's signature, the signature of IRS Revenue Agent Carolyn Hingst is dated January 10, 2000.
|
166 Pa. Commonwealth Ct. 232 (1994)
646 A.2d 611
Steven GATTUSO, Petitioner,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (McKEESPORT CANDY CO.), Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs June 24, 1994.
Decided July 22, 1994.
*233 Eric P. Betzner, for petitioner.
Edward D. Klym, for respondent.
Before PELLEGRINI and FRIEDMAN, JJ., and RODGERS, Senior Judge.
PELLEGRINI, Judge.
Steven Gattuso (Claimant) appeals the order of the Workmen's Compensation Appeal Board (Board) affirming a referee's refusal to compel McKeesport Candy Co. (Employer) to pay interest on a subrogation award made to Blue Cross of Western Pennsylvania (Blue Cross) and refusing to impose penalties for violation of the Pennsylvania Workmen's Compensation Act.[1]
Claimant suffered a myocardial infarction (heart attack) while at work on February 28, 1986. On April 16, 1986, he filed a claim for workmen's compensation benefits, contending that his heart attack was work-related. Employer denied the allegations of the claim. The matter proceeded to litigation and on December 15, 1988, the referee issued a decision awarding benefits to Claimant. In addition to the award of benefits, the referee ordered Employer to reimburse Blue Cross $10,102.00 for medical bills related to Claimant's work injury that the third-party insurer had paid while the matter was in litigation (subrogation award). The referee's order did not mention whether Employer was required to pay the *234 statutorily prescribed rate of interest on the subrogation award.[2]
Employer appealed to the Board, which affirmed both the award of benefits and the subrogation award by order of April 10, 1991. The question of whether the Employer was required to supplement the subrogation award with interest was neither raised before nor addressed by the Board. In compliance with the Board's order, Employer remitted the $10,102.00 subrogation award to Claimant's counsel. No further appeals were taken by either party.
On October 29, 1991, Claimant filed a petition before the referee seeking to compel Employer to pay interest on the subrogation award as prescribed by Section 406.1 of the Act, and requesting that a penalty be imposed upon Employer pursuant to Section 435(d) of the Act[3] for its failure to pay the interest. The referee denied the Claimant's request to compel Employer to pay interest on the subrogation award, reasoning that since no provision for the payment of interest was included in the referee's original order granting the subrogation award, now final, there was no basis for requiring interest to be paid. The referee likewise declined to impose a penalty because he found no violation of the Act. Claimant appealed to the Board, which affirmed for the same reasons. This appeal followed.[4]
*235 Claimant contends that under Section 406.1 of the Act, interest on a subrogation award is automatically payable to a third-party insurer and there is no need for a referee to specifically so order. Section 406.1 of the Act provides that:
Interest shall accrue on all due or unpaid compensation at the rate of ten per centum per annum.
77 P.S. § 717.1 (emphasis added). Under this provision, interest is automatic and does not depend on the reasonableness of the contest or any other factor other than whether the compensation was determined to be due. Kerns v. Workmen's Compensation Appeal Board (Colt Resources, Inc.), 149 Pa.Commonwealth 268, 613 A.2d 85 (1992); Becerra v. Workmen's Compensation Appeal Board (Leaseway Systems), 137 Pa.Commonwealth Ct. 362, 586 A.2d 485 (1991). Whether or not the referee ordered that interest be paid on the subrogation award is irrelevant; as soon as the referee determines the award to be valid, interest automatically becomes payable under Section 406.1.
In Good Shepherd Workshop v. Workmen's Compensation Appeal Board (Caffrey), 148 Pa.Commonwealth Ct. 164, 609 A.2d 915 (1992), a case indistinguishable from this, a referee ordered payment of a subrogation claim held by Blue Cross for the claimant's work-related medical bills it had paid while litigation was pending. After the employer exhausted its appeals, it paid the amount of the subrogation claim, but did not include any interest in the payment. Id. at 166, 609 A.2d at 915. The claimant filed a petition seeking to compel the employer to pay interest as well as penalties for its failure to do so. Id. The referee ordered payment of interest on the subrogation claim, but declined to impose penalties. Id. We affirmed, holding that interest under Section 406.1 is payable on a subrogation award made to a third-party insurer that paid a claimant's work-related medical bills during litigation. Id. at 167-168, 609 A.2d at 916.[5] Because interest is automatically *236 payable on a subrogation award under Section 406.1, the Board erred in refusing to compel the payment of interest to Blue Cross on its subrogation award.
The only question left open by our decision in Good Shepherd is whether the Employer's failure to pay the interest automatically payable on the subrogation award under Section 406.1 warrants the imposition of a penalty under Section 435(d) of the Act. Under Section 435(d) an employer is liable for a 10% penalty when it violates the Act. Chalmers v. Workmen's Compensation Appeal Board (City of Philadelphia), 161 Pa.Commonwealth Ct. 285, 636 A.2d 1260 (1994). Contrary to the reasoning of the referee, the Employer's failure to pay the interest mandated by Section 406.1 is clearly a violation of the Act and penalties should have been awarded.
ORDER
AND NOW, this 22nd day of July, 1994, the order of the Workmen's Compensation Appeal Board, No. A92-1226, dated February 16, 1994, is reversed. The matter is remanded to the Board to remand to the referee for the calculation of interest and imposition of penalties.
Jurisdiction relinquished.
NOTES
[1] Act of June 2, 1915, P.L. No. 736, as amended, 77 P.S. §§ 1-1066.
[2] Section 406.1 of the Act, 77 P.S. § 717.1, imposes 10% annual interest on compensation due but not paid by an employer.
[3] Section 435(d) of the Act provides:
The department, the board, or any court which may hear any proceedings brought under this act shall have the power to impose penalties provided herein for violations of the provisions of this act or such rules and regulations or rules of procedure:
(i) Employers and insurers may be penalized a sum not exceeding ten percentum of the amount awarded. . . .
77 P.S. § 991(d). In order to impose a penalty under this Section, an employer's violation of the Act or the regulations of the Department must appear on the record. Spangler v. Workmen's Compensation Appeal Board (Ford), 145 Pa.Commonwealth Ct. 56, 602 A.2d 446 (1992).
[4] Our scope of review is limited by Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704, to determining whether the findings of fact are supported by substantial evidence, whether the Board committed an error of law, or whether constitutional rights were violated. Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988).
[5] The claimant in that case did not raise the issue of penalty on appeal.
|
[Cite as Marusa v. Erie Ins. Co., 2011-Ohio-6276.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96556
MARIA MARUSA, ET AL.
PLAINTIFFS-APPELLANTS
vs.
ERIE INSURANCE COMPANY
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-739818
BEFORE: Jones, J., Stewart, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: December 8, 2011
ATTORNEYS FOR APPELLANTS
Donald E. Caravona
Aaron P. Berg
1900 Terminal Tower
50 Public Square
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert L. Tucker
John R. Chlysta
Emily R. Yoder
Hanna, Campbell & Powell, LLP
3737 Embassy Parkway
P.O. Box 5521
Akron, Ohio 44334
LARRY A. JONES, J.:
{¶ 1} This cause came to be heard upon the accelerated calendar pursuant to
{¶ 2} App.R. 11.1 and Loc.R. 11.1, the trial court records and briefs of counsel.
{¶ 3} Plaintiffs-appellants, Maria and Melanie Marusa, appeal the trial court’s grant
of summary judgment in favor of defendant-appellee, Erie Insurance Company.
Reluctantly, we affirm.
I.
{¶ 4} The Marusas initiated this action in 2010 as a result of injuries they suffered
in a 2009 motor vehicle accident. Specifically, their vehicle was struck by a motor vehicle
operated by Michael Canda, a North Royalton police officer who was responding to an
emergency call. The Marusas filed a claim with their insurer, Erie Insurance Company.
Erie denied the claim.
{¶ 5} Erie filed a motion for summary judgment, and the Marusas filed a cross-
motion for partial summary judgment. For the limited purpose of the summary judgment
exercise, the parties entered into the following relevant stipulations: (1) “The accident
and the Marusas’ injuries were proximately caused by Officer Canda’s negligent operation
of his police cruiser”; (2) “The Marusas were not negligent and were not at fault for
causing the collision”; (3) “Officer Canda and the City of North Royalton are immune from
liability for the accident under the Ohio Political Subdivision Tort Liability Act, Ohio
Revised Code Chapter 2744”; and (4) “Because Officer Canda and his employer are
immune from suit under the Ohio Political Subdivision Tort Liability Act, Officer Canda
qualifies as an ‘uninsured motorist’ under the terms of the * * * Policy.”
{¶ 6} Relying on the Ohio Supreme Court’s decision in Snyder v. Am. Family Ins.
Co., 114 Ohio St.3d 239, 2007-Ohio-4004, 871 N.E.2d 574, the trial court granted Erie’s
motion for summary judgment and denied the Marusas’ cross-motion for partial summary
judgment. The Marusas present the following errors for our review, which will be
considered together:
“[I.] The trial court erred in granting summary judgment on behalf of Defendant Erie
Insurance Company and denying summary judgment on behalf of the Plaintiffs
Maria and Melanie Marusa by not applying the correct rules of construction and
interpretation when reviewing an insurance policy in order to determine whether an
insured is entitle[d] to coverage under an insurance policy.
“[II.] The insurance policy at bar is a contract of adhesion, that is prepared and phrased by
the insurer and, as such, the [ ] contract of insurance is to be liberally construed in
favor of the insured and strictly against the insurer where any ambiguous or
undefined terms are used in the insurance contract.”
II.
{¶ 7} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. The Ohio Supreme Court
stated the appropriate test in Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370,
1998-Ohio-389, 696 N.E.2d 201, as follows:
“Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine
issue of material fact, (2) the moving party is entitled to judgment as a matter of law,
and (3) reasonable minds can come to but one conclusion and that conclusion is
adverse to the nonmoving party, said party being entitled to have the evidence
construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73
Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The party
moving for summary judgment bears the burden of showing that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law. Dresher v.
Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.”
III.
{¶ 8} In Snyder, the insured, a police officer, was injured when she was hit by
another police officer’s cruiser during the chase of a suspect. Snyder sought coverage
under her personal motor vehicle liability insurance policy with American Family
Insurance, but the insurer denied coverage. The relevant language of the policy provided:
“‘[American Family] will pay compensatory damages for bodily injury which an insured
person is legally entitled to recover from the owner or operator of an uninsured motor
vehicle.’ (Boldface sic.)” Snyder at ¶5, quoting policy.
{¶ 9} Snyder sued American Family, arguing that she was entitled to coverage
because R.C. 3937.18 includes persons who have immunity under R.C. Chapter 2744
within its definition of uninsured motorists. Snyder also contended that under the 2001
amendments to R.C. 3937.18, Ohio’s uninsured- and underinsured-motorist coverage law,
there is no longer a requirement that the insured be “legally entitled to recover” from the
tortfeasor and, therefore, the term as used in American Family’s policy is void because it
contradicts the statute. Further, Snyder contended that the term “legally entitled to
recover,” which was undefined in the policy, was ambiguous and therefore must be
construed in her favor.
{¶ 10} The Ohio Supreme Court rejected Snyder’s contentions. The Court ruled
that:
“Removal of the ‘legally entitled to recover’ language from the statute does not mean that
insurance contracts may not require proof that the insured is legally entitled to
recover from the uninsured motorist. Absent a specific statutory or common-law
prohibition, parties are free to agree to the contract’s terms.” Snyder at ¶24.
{¶ 11} The Snyder Court further ruled that it was “not illogical” for the General
Assembly to include tortfeasors who have immunity under R.C. Chapter 2744 in the
definition of an uninsured motorist, but then also permit policy terms to exclude coverage
based on that same immunity. Id. at ¶27. The Court held that “a policy provision
limiting the insured’s recovery of uninsured- or underinsured-motorist benefits to amounts
which the insured is ‘legally entitled to recover’ is enforceable, and its effect will be to
preclude recovery when the tortfeasor is immune under R.C. Chapter 2744.” Id. at ¶29.
Additionally, the Snyder Court held that the phrase “legally entitled to recover” is “not
ambiguous and must be accorded its plain meaning.” Id. at ¶32.
{¶ 12} The relevant portions of the Marusas’ insurance policy provided as follows:
“‘Uninsured motor vehicle’ means a ‘motor vehicle:’
“***
“4. For which the owner or operator of the ‘motor vehicle’ has immunity under
the Ohio Political Subdivision Tort Liability or a diplomatic immunity.
“***
“OUR PROMISE
“‘We’ will pay for bodily injury that ‘anyone we protect’ or the legal representative of
‘anyone we protect’ are legally entitled to recover from the owner or operator of an
‘uninsured motor vehicle’ or ‘underinsured motor vehicle.’” (Emphasis sic.)
{¶ 13} The Marusas contend that Snyder is “significantly distinguishable” from this
case. Specifically, they contend that Snyder dealt with the statutory definition of
“uninsured motorist” under R.C. 3937.18(B)(5), as opposed to “uninsured motorist” as
defined in a policy. Although the coverage issue in Snyder arose from the 2001
amendments to R.C. 3937.18, the Snyder Court also addressed coverage exclusion based on
immunity as set forth in a policy. The Court held:
“We also conclude that policy language restricting uninsured-motorist coverage to those
amounts the insured is ‘legally entitled to recover’ from the tortfeasor owner or
operator of an uninsured motor vehicle unambiguously denies coverage for injuries
caused by uninsured motorists who are immune from liability under R.C. Chapter
2744 or R.C. 4123.741.” (Emphasis added.) Id. at ¶2.
{¶ 14} In light of the above, the Marusas’ contention that Snyder applies only to the
statutory definition of “uninsured motorist” is without merit.
{¶ 15} The Marusas further contend that when the definition of an “uninsured motor
vehicle” as set forth in their policy is read together with the policy’s “promise,” “it is
obvious that the clear intent of the policy is to provide uninsured/underinsured motorist
coverage to an insured when the owner and/or operator of motor vehicle, who would
otherwise be immune from liability by virtue of ‘the Ohio Political Subdivision Tort
Liability,’ is negligent.” But the “promise” portion of the policy requires that the insured
be “legally entitled to recover” from the operator of the uninsured vehicle. Snyder
addressed the “legally entitled to recover” requirement and held that although the 2001
amendments to R.C. 3937.18 eliminated the phrase, that “does not mean that insurance
contracts may not require proof that the insured is legally entitled to recover from the
uninsured motorist.” Id. at ¶24.
{¶ 16} The Marusas were not legally entitled to recover from Officer Canda because
of his immunity. Thus, when the definition and promise sections of the policy are read
together, the Marusas were not entitled to coverage under the policy.
{¶ 17} We do not believe that Snyder advances the public policy that the
“predominate social purpose of liability insurance is to compensate injured persons.”
Stickovich v. Cleveland, 143 Ohio App.3d 13, 25, 2001-Ohio-4117, 757 N.E.2d 50. But
we are duty-bound to follow it. Reluctantly, therefore, in light of Snyder, the Marusas’
two assignments of error are without merit and the trial court’s judgment is affirmed.
It is ordered that appellee recover of appellants its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
LARRY A. JONES, JUDGE
COLLEEN CONWAY COONEY, J., CONCURS;
MELODY J. STEWART, P.J., DISSENTS WITH
SEPARATE OPINION
MELODY J. STEWART, P.J., DISSENTING:
{¶ 18} The introduction to the Erie policy states that “[t]he protection provided by
this policy is in keeping with the single purpose of our Founders which is, ‘To provide
YOU with as near PERFECT PROTECTION, as near PERFECT SERVICE, as is humanly
possible, and to do so at the LOWEST POSSIBLE COST.” (Emphasis sic.) The UM
provisions of the Marusas’ policy specifically give coverage, but then generally take it
away — and do so in the definitions and promise sections of the policy, notwithstanding the
fact that those sections are immediately followed by sections entitled, “Exclusions — What
We Do Not Cover” and “Limitations of Protection,” both of which are completely devoid
of any exclusion related to governmental immunity. This is a complete failure of the
promise to provide “near PERFECT PROTECTION” and deprives the Marusas of the
benefit of their bargain. I vehemently dissent from the decision reached in this case.
{¶ 19} The majority “reluctantly” holds that the Marusas are not entitled to
uninsured motorist (UM) coverage under their insurance policy “when the definition and
promise sections of the policy are read together.” In reaching its decision, the majority
relies on a tortured interpretation and analysis of the phrase “legally entitled to recover” set
forth in Snyder v. Am. Family Ins., supra. This case is distinguishable from Snyder
because the supreme court’s decision in that case was firmly rooted in resolving what the
court perceived to be a conflict between the general statement, “legally entitled to recover,”
contained in the insurance policy, and provisions in Chapter 3937 of the Revised Code.
The Snyder court rejected the insured’s argument that R.C. 3937.17, which included those
immune under Chapter 2744 of the Revised Code in its definition of uninsured motorist,
should prevail over the interpretation of the phrase “legally entitled to recover” to find UM
coverage. Key to the court’s analysis was its belief that provisions in Chapter 3937 of the
Revised Code did not prohibit parties from setting forth the terms of their contract and the
interpretation of those terms will supersede statutory language (a proposition rejected by
the dissent). The court noted that, “[a]bsent a specific statutory or common-law
prohibition, parties are free to agree to the contract’s terms. Martin v. Midwestern Group
Ins. Co. (1994), 70 Ohio St.3d 478, 480, 639 N.E.2d 438 (noting that R.C. 3937.18 does not
displace principles of contract law), superseded by statute on other grounds, as noted in
Baughman v. State Farm Mut. Auto. Ins. Co. (2000), 88 Ohio St.3d 480, 484, 727 N.E.2d
1265.” Snyder at ¶24.
{¶ 20} The majority in this case has, in essence, interpreted Snyder to say that, even
if an insurance policy specifically promises to pay for injuries sustained from “a motor
vehicle for which the owner or operator of the motor vehicle has immunity under the Ohio
Political Subdivision Tort Liability Law***” — as the UM definition and promise sections
of the policy do in this case — the insurance company can, nonetheless, negate that
specific coverage by arguing to a court of law that its inclusion of the phrase “legally
entitled to recover” in the “Promise” section of the policy should be interpreted to exclude
that very coverage.1 No court should condone such chicanery.
This interpretation would also have to necessarily assume that Erie has no idea what the term
1
“immunity” means: a wholly unbelievable proposition.
{¶ 21} In Payton v. Peskins, 12th Dist. No. CA2010-10-022, 2011-Ohio-3905, the
court of appeals found that a UM policy exclusion, worded similarly to the one used in this
case, did not effectively exclude UM coverage despite the policy using the “legally entitled
to recover” language noted in Snyder. Payton’s policy stated that, the insurer, Progressive,
“will pay for damages that an insured person is legally entitled to recover from an
uninsured motorist or underinsured motorist because of bodily injury.” The Twelfth
District noted that, “unlike Snyder, the Progressive policy at issue goes on to state, ‘an
“uninsured motorist” does not include an owner or operator of a motor vehicle: (c) that is
owned by any governmental unit or agency unless the operator of the motor vehicle has
immunity under Chapter 2744 of the Ohio Revised Code (relating to certain political
subdivisions operating a fire department, police department, or emergency medical
service).’” Id. at ¶11 (emphasis sic.) The court of appeals went on to state:
{¶ 22} “The court in Snyder found that the general term ‘legally entitled to recover’
was an additional condition for coverage that unambiguously excluded coverage for
injuries caused by a driver who is immune from liability under R.C. Chapter 2744.
Payton’s Progressive policy, however, specifically took the general preamble to Section
III’s uninsured/underinsured section and made a more specific coverage condition, mainly
that vehicles owned by any governmental unit or agency were not covered unless the
operator of the vehicle has immunity under R.C. Chapter 2744. ‘It is well-established under
the generally applicable rules governing contract interpretation that specific provisions take
precedence over more general provisions.’ Smith v. Littrell, Preble App. No.
CA2001–02–004, 6, 2001-Ohio-8642.
{¶ 23} “The Ohio Supreme Court made it clear in Snyder that insurance companies
and their customers have the right to agree to uninsured-motorist coverage without
precluding recovery because of a tortfeasor’s immunity. The Progressive policy did just
that. It carved out an exception to the ‘legally entitled to recover’ language listed in
Snyder by stating that the policy holder could not recover for uninsured motorist protection
when bodily injury was caused by a government-owned vehicle unless that vehicle was
driven by an operator who has immunity under R.C. Chapter 2744. The parties stipulated
that Peskins and the village of Georgetown are immune under R.C. Chapter 2744, and
Progressive cannot now claim that the general statement made in the preamble to its
uninsured motorist section subjugates the more specific statement granting coverage when
the driver has immunity, as Peskins did in this case.” Id. at ¶14-15.
{¶ 24} Although Erie couched its coverage in terms of what the insured was “legally
obligated to recover,” it created an exception to that in the UM portion of the policy by
defining an “uninsured motor vehicle” as a motor vehicle “for which the owner or operator
of the ‘motor vehicle’ has immunity under the Ohio Political Subdivision Tort Liability
Law or a diplomatic immunity.” As in Payton, the specific inclusion of language defining
an uninsured motor vehicle as one in which the operator has immunity under R.C. 2744.02
was enough to overcome the more general “legally obligated to recover” language. To
read the policy differently would elevate general language over the specific and undermine
the well-established legal proposition that Ohio law presumes insurance coverage, so an
exclusion to coverage must be clearly expressed. See, e.g., Sharonville v. Am. Emps. Ins.
Co., 109 Ohio St.3d 186, 2006-Ohio-2180, 846 N.E.2d 833, ¶6. If Erie wished to ride on
the coattails of governmental immunity to deny UM coverage to its unsuspecting and
oblivious customers, the law requires that it clearly do so. This can be done in a number
of ways: vehicles owned and operated by those who are immune can be removed from the
definition of uninsured motor vehicles, or Erie can include such an exclusion in the
“Exclusions — What We Do Not Cover” section of the policy.
{¶ 25} The broader principle at issue here, and the one that apparently troubles the
majority, too, is the prospect that an insured who specifically pays for UM coverage could
be denied that coverage simply because the tortfeasor happened to be immune from
liability, despite being fully at fault as is the case here. UM coverage is designed just for
these types of situations, yet court decisions have effectively denied a significant number of
people insurance coverage that they pay for, and think that they have, but do not. This is
an intolerable state of the law and one I hope is quickly rectified.
|
198 F.2d 235
OSENBACHv.COMMISSIONER OF INTERNAL REVENUE.
No. 6413.
United States Court of Appeals Fourth Circuit.
Argued June 19, 1952.
Decided July 24, 1952.
James Mullen, Richmond, Va. (Williams, Mullen, Pollard & Rogers, Richmond, Va., on brief), for petitioner.
I. Henry Kutz, Special Asst. to Atty. Gen. (Ellis N. Slack, Acting Asst. Atty. Gen., on brief), for respondent.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
1
This is a petition filed by Mace Osenbach (hereinafter called petitioner) for the review of a decision of the Tax Court of the United States which found a deficiency against the petitioner in his income tax for the year 1944 in the amount of $1,717.05.
2
The facts, which were stipulated, may be briefly summarized. Federal Service Bureau, Incorporated, on December 1, 1941, purchased the remaining assets of American Bank and Trust Company of Richmond, which had been placed in receivership on January 9, 1933. During 1944 and for more than six months prior thereto petitioner owned one-half of the outstanding capital stock of the corporation.
3
On November 29, 1944, the directors of Federal Service adopted, and the stockholders approved, a plan of complete liquidation under the provisions of Section 112(b) (7) of the Internal Revenue Code, 26 U.S. C.A. § 112(b) (7). Pursuant to said plan all of the assets of the corporation were distributed in kind pro rata to the stockholders in cancellation of, and in exchange for, the stock of the corporation held by them. The corporation was forthwith dissolved.
4
All requirements of Section 112(b) (7) of the Internal Revenue Code were complied with and all shareholders, including petitioner, elected to have the gain resulting from such liquidation treated as provided by Section 112(b) (7) of the Code. The necessary elections and information returns prescribed by the Treasury Department were timely filed.
5
The assets distributed in liquidation on December 1, 1944, consisted primarily of loans, discounts, real estate mortgages, securities, life insurance policies, claims and other like items. During 1944, collections were made upon sundry of these items resulting in net gain of $6,847.41, of which petitioner received one-half, or $3,423.71. Petitioner reported this item as long term capital gain. The Commissioner disallowed this treatment and treated this income as ordinary income realized "in the disposition of assets received upon liquidation of the Federal Service Bureau, Incorporated." The result of the Commissioner's determination was the deficiency in petitioner's income tax previously mentioned.
6
A single question is presented by this appeal: Was the gain received by the petitioner capital gain, taxable as such, or ordinary income, where, upon liquidation of a corporation under Section 112(b) (7) of the Internal Revenue Code, petitioner elected not to have the gain recognized, as provided in the statute, and where the assets received in kind by petitioner, in exchange for his stock, and upon surrender thereof for cancellation, consisted of loans, discounts, real estate mortgages, securities, life insurance policies and claims subsequently collected by petitioner? The decision of the Tax Court in this case is discussed at some length in Eaton, "Liquidation under Section 112(b) (7)," 38 Va.L. Rev. 1. See, also, Krekstein, "Section 112 (b) (7) Liquidations," 55 Dickinson L.Rev. 189, 201.
7
Petitioner contends that Section 112(b) (7) merely postpones the recognition and taxation of the gain that would otherwise be recognized on liquidation; that the gain which would otherwise be recognized, except for an election under 112(b) (7), would be capital gain, and that consequently, Section 112(b) (7) does not convert a capital gain into ordinary income, but merely defers the recognition and taxation of the capital gain. Petitioner further insists that Section 112(b) (7) was intended as a relief provision and should therefore be liberally construed and that postponement of gain under Section 112(b) (7) is essentially comparable to and should follow the established principles of such cases as Commissioner v. Carter, 2 Cir., 170 F.2d 911, affirming 9 T.C. 364, and Westover v. Smith, 9 Cir., 173 F.2d 90.
8
To state the problem differently, the question is whether under Section 112(b) (7) the liquidation without recognition is to be considered a closed transaction, separate and unrelated to the subsequent realization on the assets distributed in such liquidation, or whether such liquidation is not to be considered a closed transaction but merely the first step in an integrated series of which subsequent realization is the culmination. The Commissioner treats the liquidation as a closed transaction. Petitioner considers the liquidation as an open transaction until realization on the liquidated assets. The liquidation, petitioner asserts, stamps the character of the transaction as a capital one and the subsequent realization measures the gain, and gives the cue for tax incidence.
9
It is quite clear that ordinarily (apart from special statutes such as Section 112(b) (7), which we are now considering,) when a taxpayer makes a gain from the sale or exchange of a claim or chose in action, this is taxable as a capital gain; while if the gain results from the collection of the claim or chose in action, this is taxable as ordinary income. Fairbanks v. United States, 306 U.S. 436, 59 S.Ct. 607, 83 L.Ed. 855; Herbert's Estate v. Commissioner, 3 Cir., 139 F.2d 756, 758; Lee v. Commissioner, 7 Cir., 119 F.2d 946; Helvering v. Roth, 2 Cir., 115 F.2d 239, 241; Bingham v. Commissioner, 2 Cir., 105 F.2d 971, 972; Hale v. Helvering, 66 App. D.C. 242, 85 F.2d 819. See, also, Cooper v. Commissioner, 4 Cir., 197 F.2d 951.
10
Petitioner meets this by asserting that the corporate liquidation, under which the claims or choses in action were received in return for his stock in the corporation, provides the requisite exchange which makes his gain here capital gain. This argument is met by the Commissioner, under the closed transaction theory as to the corporate liquidation, by the contention that the tax category into which petitioner's gain falls is determined by the method he adopts to realize on the claims or choses in action, here by collection; and that, consequently, the collection stamps the income not as capital gain but as ordinary income, taxable as such.
11
We think the position of the Commissioner, followed by the Tax Court, is sound. The decision of the Tax Court must, therefore, be affirmed.
12
It is true, as petitioner asserts, that Section 112(b) (7) was designed as a relief measure which would encourage the dissolution of holding corporations. This is quite clear in the light of the statute's legislative history. Yet we think that this history also shows that the statute was enacted primarily for holding corporations whose assets consisted for the most part of stock in other corporations rather than for corporations of the type now before us. Again, liquidation under Section 112(b) (7) was expressly made elective by Congress. The responsibility of choice was completely that of the taxpayer, who may not fairly complain if, having made the election, the results are not as advantageous as he had hoped. Congress did not try to provide a panacea for all the ills to which shareholders in holding corporations might be heir.
13
If Congress intended that the transaction should not in its entirety be regarded as closed, we think there would have been express specific provisions in the statute for future taxation of such part as was not regarded as closed. Subsequent transactions must stand on their own feet and be taxable at ordinary or at capital rates depending upon whether or not they fall within the terms of Section 117 which limits "capital gain" to "gain from the sale or exchange of a capital asset". Here taxpayer's subsequent dealings with the loans, discounts, and other claims, did not involve a sale or exchange but collection, and hence, could not qualify as capital transactions, even though his title to the assets had originated in the closed, completed liquidation under Section 112(b) (7).
14
This brings us to the cases of Westover v. Smith, 9 Cir., 173 F.2d 90, and Commissioner v. Carter, 2 Cir., 170 F.2d 911, upon which petitioner heavily relies. Judge Disney, writing the majority opinion of the Tax Court in the instant case, distinguished those cases on the ground that there (which is not true in our case) the assets received by the taxpayer had no readily ascertainable market value. In the Carter case, these assets were personal service contracts where the personal services had been performed; in the Smith case, the amounts later received were royalty payments under a contract. Judge Turner, concurring in the result, held that the Carter and Smith cases were incorrectly decided.
15
We do not think it necessary to choose between the divergent views of Judges Disney and Turner as to the Smith and Carter cases. We content ourselves with holding that we do not regard those cases as controlling the disposition of the instant case before us.
16
To summarize, we hold that the corporate dissolution, with the acquisition of claims or choses in action, by the taxpayer in return for his corporate stock, was a closed transaction; and that the nature of the subsequent gain of taxpayer, from a tax standpoint, is to be determined by the method adopted by taxpayer in realizing on those claims or choses in action, not by the nature of the prior transaction (the corporate dissolution) whereby taxpayer acquired these items. Since the taxpayer did not sell or exchange these items, but on the contrary collected them, the gain thereby realized constituted not capital gain but ordinary income and was taxable as such.
17
The decision of the Tax Court of the United States is, accordingly, affirmed.
18
Affirmed.
|
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1294
Filed: 17 December 2019
Guilford County, No. 15 CRS 34345
STATE OF NORTH CAROLINA
v.
BULENT BEDIZ
Appeal by Defendant from judgment entered 13 June 2018 by Judge Stanley
L. Allen in Guilford County Superior Court. Heard in the Court of Appeals 23 May
2019.
Attorney General Joshua H. Stein, by Assistant Attorney General A. Mercedes
Restucha-Klem, for the State-Appellee.
Yoder Law PLLC, by Jason Christopher Yoder, for Defendant-Appellant.
COLLINS, Judge.
Defendant Bulent Bediz appeals from judgment entered upon a jury verdict of
guilty of misdemeanor simple assault. Defendant argues that the trial court (1) erred
in denying his motion to dismiss because there was insufficient evidence that
Defendant intentionally touched Mr. Mark Wayman with the passenger side-view
mirror while parking his car, and (2) erred in denying his request for a jury
instruction on the defense of accident because Defendant presented substantial
evidence that he was parking and did not intend to touch Wayman with the passenger
STATE V. BEDIZ
Opinion of the Court
side-view mirror of his car. We affirm in part and reverse in part, ordering a new
trial.
I. Procedural History
On 3 December 2015, Defendant was arrested and charged with misdemeanor
assault with a deadly weapon pursuant to N.C. Gen. Stat. § 14-33(c)(1) (2015). On
15 November 2016, at a bench trial in district court, Defendant was found guilty as
charged. Defendant appealed to superior court. On 29 May 2018, Defendant’s case
came on for a jury trial de novo.
At the close of the State’s evidence, and again at the close of all the evidence,
Defendant moved to dismiss for insufficient evidence; the trial court denied both
motions. At the jury charge conference, Defendant’s request for a jury instruction on
the lesser-included offense of misdemeanor simple assault was granted; his request
for an instruction on the defense of accident under N.C.P.I.–Crim. 307.11 was denied.
The jury acquitted Defendant of assault with a deadly weapon, but found
Defendant guilty of misdemeanor simple assault. The trial court entered judgment
upon the jury’s verdict, sentencing Defendant to 45 days’ imprisonment, suspending
the sentence, and placing Defendant on 12 months’ unsupervised probation. On
5 June 2018, Defendant gave proper written notice of appeal to this Court.
II. Factual Background
-2-
STATE V. BEDIZ
Opinion of the Court
The evidence at trial tended to show the following: Defendant owned a rental
property at 808 Haywood Street in the city of Greensboro (the “Property”). The city
had notified Defendant that salvaged building materials on the Property were a
nuisance and needed to be removed. Defendant hired workers to clean up the
property and believed that he had complied with the notice. At approximately
8:30 a.m. on 3 December 2015, Defendant was working at the Property when he saw
a Greensboro city contractor sifting through the remaining salvaged materials.
Defendant told the contractor to leave, and the contractor complied.
Later that morning, Code Enforcement Supervisor Mark Wayman, who had
previously interacted with Defendant, sought and executed an administrative
warrant to remove the salvaged materials from the Property. Wayman requested the
assistance of law enforcement in executing the warrant. Officers Watson and Wilson
of the Greensboro Police Department accompanied Wayman to the scene.
Upon arriving at the Property, the officers activated their respective body
cameras; both body cameras captured footage of the subsequent events. At
approximately 10:00 a.m., while Wayman, Watson, Wilson, and another city inspector
were standing in the street in front of the Property, Defendant drove up in his car.
As Defendant drove by the three men, Defendant’s passenger side-view mirror struck
Wayman in the hip. Both officers shouted at Defendant to stop and instructed him
to get out of the car. Defendant stopped in the middle of the road and rolled down his
-3-
STATE V. BEDIZ
Opinion of the Court
window to listen to Watson. Defendant then looked away from Watson and toward
the front windshield. As this happened, Wayman walked in front of Defendant’s car
to join the officer on the opposite side of the street. Defendant’s car moved forward,
striking Wayman in the knee.
Defendant yelled at Wayman from inside his car while the officers repeatedly
demanded that Defendant get out of his car. Defendant got out his car, walked
toward Wayman pointing his finger, and stated that Wayman “wanted to be hit.”
Watson took Defendant’s keys and immediately called for backup. Defendant was
arrested and charged via Uniform Citation with one count of misdemeanor assault
with a deadly weapon as follows: “Did assault Mark Wayman with a deadly weapon
(vehicle) to wit Mr. Wayman received injury to his right hip, left knee & lower leg.
G.S. 14-33(c)(1)[.]”
III. Discussion
1. Motion to Dismiss
Defendant first argues that the trial court erred in denying his motion to
dismiss, because the State did not present sufficient evidence that Defendant
intentionally touched Wayman with the passenger side-view mirror while parking
his car. We disagree.
This court reviews a trial court’s denial of a motion to dismiss for insufficient
evidence de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).
-4-
STATE V. BEDIZ
Opinion of the Court
When a defendant moves to dismiss for insufficient evidence, the trial court
must determine “whether there is substantial evidence of each essential element of
the offense charged and of the defendant being the perpetrator of the offense.
Substantial evidence is relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.” State v. Worley, 198 N.C. App. 329, 333, 679 S.E.2d
857, 861 (2009) (quotation marks and citations omitted). “[T]he trial court must
consider the record evidence in the light most favorable to the State . . . .” Id.
The criminal offense of assault is generally defined as an overt act or attempt,
with force and violence, to do immediate physical injury to the body of another or to
put a person of reasonable firmness in fear of immediate bodily harm. State v.
Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). An assault requires “the
intent to cause apprehension of an imminent offensive or harmful contact . . . .” Britt
v. Hayes, 142 N.C. App. 190, 192, 541 S.E.2d 761, 762 (2001) (citing Ormond v.
Crampton, 16 N.C. App. 88, 94, 191 S.E.2d 405, 409–10 (1972)). “A defendant’s intent
is seldom provable by direct evidence and must usually be proved through
circumstantial evidence.” State v. Liggons, 194 N.C. App. 734, 739, 670 S.E.2d 333,
338 (2009) (citation omitted). “[T]he nature of the assault, the manner in which it
was made, the weapon, if any, used, and the surrounding circumstances are all
matters from which [] intent . . . may be inferred.” State v. White, 307 N.C. 42, 49,
296 S.E.2d 267, 271 (1982). “The surrounding circumstances include the foreseeable
-5-
STATE V. BEDIZ
Opinion of the Court
consequences of a defendant’s deliberate actions as a defendant must be held to
intend the normal and natural results of his deliberate act.” Liggons, 194 N.C. App.
at 739, 670 S.E.2d at 338 (quotation marks and citation omitted).
Wayman testified that he was standing in the street with Watson when
Defendant “swerved towards” them and hit Wayman with the passenger side-view
mirror of his car, even though there was “ample room for [Defendant] to maneuver
around” them. Wayman also testified that after exiting the car, Defendant was
visibly upset and “[i]mmediately came towards me pointing his finger at me.”
Watson testified that he watched Defendant hit Wayman with the passenger
side-view mirror of his car. He also testified that after the hit, both officers directed
Defendant to exit the car, but Defendant “did not get out of the car when I asked him
to do that” and Defendant “was not listening.” After Defendant exited the car, he
“began to go towards Mr. Wayman” and was upset. Video from Watson’s body camera
shows Defendant getting out of the car and walking toward Wayman while pointing
his finger at him.
The testimony and video footage show that Defendant drove toward Wayman,
hit him with the passenger side-view mirror of the car, exited the vehicle, and walked
toward Wayman while visibly upset. These circumstances could allow a reasonable
person to believe that Defendant intended to hit Wayman, or at least intended to put
Wayman in fear of immediate bodily harm. Roberts, 270 N.C. at 658, 155 S.E.2d at
-6-
STATE V. BEDIZ
Opinion of the Court
305. Additionally, Defendant’s act of driving within inches of where Wayman stood
in the road, in an attempt to “squeeze around” Wayman to park his car, could
foreseeably lead to Defendant’s car hitting Wayman. As the trial court was permitted
to consider these “foreseeable consequences” of Defendant’s actions as evidence of
Defendant’s intent, the State provided substantial evidence of each element of
assault. Liggons, 194 N.C. App. at 739, 670 S.E.2d at 338. Thus, the trial court did
not err by denying Defendant’s motion to dismiss.
2. Jury Instruction
Defendant next argues that the trial court committed reversible error in
denying his request for a jury instruction on the defense of accident. We agree.
Whether sufficient evidence exists to warrant a jury instruction is a question
of law, reviewed de novo on appeal. State v. Smith, 832 S.E.2d 678, 684 (N.C. Ct.
App. 2019).
“The trial court has a duty to instruct the jury on all substantial features of
the case arising on the evidence.” State v. Garrett, 93 N.C. App. 79, 82, 376 S.E.2d
465, 467 (1989) (citation omitted). “All defenses arising from the evidence presented
during trial, including the defense of accident, are substantial features of a case and
therefore warrant instructions.” Id. (citation omitted).
For a jury instruction to be required on a particular
defense, there must be substantial evidence of each
element of the defense when the evidence is viewed in the
light most favorable to the defendant. Substantial evidence
-7-
STATE V. BEDIZ
Opinion of the Court
is evidence that a reasonable person would find sufficient
to support a conclusion. Whether the evidence presented
constitutes substantial evidence is a question of law.
State v. Bice, 821 S.E.2d 259, 266-67 (N.C. Ct. App. 2018) (quotation marks, brackets,
and citations omitted).
Thus, in this case, the trial court was required to instruct the jury regarding
the defense of accident if substantial evidence had been introduced showing that
Defendant struck Wayman (1) “unintentional[ly],” (2) “during the course of lawful
conduct,” and (3) in a manner that did “not involve culpable negligence.” N.C.P.I.—
Crim. 307.11. “Culpable negligence is such recklessness or carelessness . . . as
imports a thoughtless disregard of consequences or a heedless indifference to the
safety and rights of others.” State v. Cope, 204 N.C. 28, 167 S.E. 456, 458 (1933).
Defendant testified,
[A]s best as I can remember, my sole intent was to park the
car and talk to the police and tell them what was going on
because I felt like I was the victim and I wanted to talk to
the police.
....
I’m coming down Haywood Street and I’m just trying to
park in front of 808 Haywood Street to talk to the police.
And Mark Wayman was standing there in the middle of the
street. There was another police officer. I squeezed by
them. And just then the police stopped me. And I didn’t
even realize I had hit him like he alleges.
When asked whether he could see Wayman walk around the front of the vehicle,
Defendant testified that he could not. He explained,
-8-
STATE V. BEDIZ
Opinion of the Court
Well, I understood from [the officer] to go and park my car
by the curb. That’s what I was intending to do because in
the video it’s very evident that the car is in direction to go
and park by the curbside. So I was just continuing to park
my car there so that I can talk to the police. So I lifted my
foot off the brake. And then, as you see in the video, the
police then afterwards tell me to get out of the car, etcetera.
On cross-examination, Defendant testified, “I was driving my car to park it by
the curbside. I was not driving my car to hit Mr. Wayman.” Defendant explained
that everything happened very fast, it was a “chaotic and confusing situation,” and
that he asked Wilson “I hit him?” afterwards because he did not realize that he had
hit Wayman.
This evidence was sufficient evidence from which a jury could find that
Defendant hit Wayman accidentally–that is, unintentionally, while acting lawfully,
and not acting with thoughtless disregard of consequences or a heedless indifference
to the safety and rights of others. Cope, 204 N.C. at 28, 167 S.E. at 458. Accordingly,
the trial court erred in not instructing the jury on the defense of accident. As a result,
Defendant is entitled to a new trial.
IV. Conclusion
The trial court did not err by denying Defendant’s motion to dismiss for
insufficient evidence. The trial court did err by refusing to instruct the jury on the
defense of accident. We reverse and remand for a new trial.
NEW TRIAL.
Judges DIETZ and MURPHY concur.
-9-
|
538 U.S. 986
BOWLINGv.OHIO.
No. 02-9105.
Supreme Court of United States.
April 21, 2003.
1
CERTIORARI TO THE COURT OF APPEALS OF OHIO, SANDUSKY COUNTY.
2
Ct. App. Ohio, Sandusky County. Certiorari denied.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7093
NICHOLAS N. CAULEY,
Petitioner - Appellant,
v.
SUPERINTENDENT JOYCE KORNEGAY,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11-hc-02083-D)
Submitted: September 11, 2012 Decided: September 18, 2012
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Nicholas N. Cauley, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicholas N. Cauley seeks to appeal the district
court’s orders dismissing as untimely his 28 U.S.C. § 2254
(2006) petition and denying his subsequent motion for
reconsideration. The orders are not appealable unless a circuit
justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1)(A) (2006). A certificate of appealability
will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the petition states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Cauley has not made the requisite showing. Accordingly, we
deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
2
presented in the materials before the court and argument would
not aid the decisional process.
DISMISSED
3
|
57 F.2d 62 (1932)
BROWNE
v.
NEW YORK LIFE INS. CO.
No. 9293.
Circuit Court of Appeals, Eighth Circuit.
March 7, 1932.
E. H. Gamble and Allan R. Browne, both of Kansas City, Mo., for appellant.
George J. Mersereau, Richard S. Righter, Claude A. Ferguson, and Lathrop, Crane, Reynolds, Sawyer & Mersereau, all of Kansas City, Mo., for appellee.
Before KENYON, VAN VALKENBURGH, and GARDNER, Circuit Judges.
GARDNER, Circuit Judge.
In this action appellant, as assignee of Carrie Garst, administratrix of the estate of Charles H. Garst, deceased, seeks to recover on a policy of life insurance. The parties will be referred to as they appeared in the lower court.
It is alleged in the petition that the defendant issued and delivered the life insurance policy in question on March 11, 1921, whereby it agreed to pay the executors, administrators, or assigns, of the insured, Charles H. Garst, the amount of $5,000, upon receipt of due proof of his death, and double that amount upon receipt of due proof of his death resulting directly and independently of all other causes from bodily injury effected solely through external, violent, and accidental cause; that on or about May 14, 1921, the insured left his home at Palco, Kan., where he was then residing with his wife and family, with Salina, Kan., as his primary destination, en route to Kansas City, Mo.; that he thereupon disappeared and has not since reappeared, nor has anything since been heard of him; that there was no known cause for his nonreturn, or reason for his disappearance, except his death, which it is alleged occurred May 15, 1921, while the policy was in full force and effect. An assignment of the policy to the plaintiff is alleged, the sufficiency of which is not questioned in this case.
The answer admitted the issuance of the policy, put in issue the other allegations of the petition, and pleaded specially the Kansas statute of limitations, alleging that the policy was a Kansas contract, and hence should be governed by the laws of that state.
At the close of plaintiff's testimony, on motion of defendant, the court directed a *63 verdict in favor of the defendant and against the plaintiff, and from the judgment entered on that verdict so directed the plaintiff prosecutes this appeal.
Counsel on either side have elaborately briefed the question of the statute of limitations, but, in our view of the case, there is but one ultimate question for determination, and that is whether or not there was substantial evidence from which the jury might reasonably have determined that the insured died during the life of the policy. The first annual premium only was paid, so that the policy remained in force to and including the 11th day of March, 1922. Attached to the insurance policy is an application signed by the insured, in which he states that he had never suffered from any disease of the brain, nervous system, heart, lungs, stomach, intestines, liver, kidneys, bladder, skin, middle ear, or eye, and various other named diseases. He also states that he had not consulted, nor been treated by, any physician or surgeon within five years immediately prior to the signing of his application.
At the time of the issuance of the insurance policy, and at the time of insured's departure, he was employed in running a Standard Oil station, and at some previous time had been employed in a grain elevator. He was married in 1900, and at the time of his disappearance was living with his wife and family of seven children. On the date of his departure, which was Saturday. he left a letter at the railway station at Palco, addressed to his son George. The letter bore no date but was received by his wife on May 15, 1921. It was inclosed in a stamped United States envelope, and was addressed to George Garst, at Palco, but was not postmarked, and had not been mailed. The letter, as well as the address on the envelope, however, was in the handwriting of the insured. This letter reads as follows:
"George, there is nothing that there is no ticket made for. I am going to Salina to see a specialist.
"[Signed] C. H. Garst."
The next that was heard from the insured was a letter mailed at Salina, Kan., May 15, 1921, bearing no date, and reading as follows:
"Dear wife & all I am going to Kansas City to knight. I guess it will mean an operation on my head. O I do dread it. If any thing should hapen Bruce can have the station if he wants it. I don't think the boys can handle it. I have some papers at the bank, insurance.
"By By all
"[Signed] C. H. Garst.
"I will try and write when I get down there."
He had not told his wife that he was going away, and the first she learned of it was through the letters, and the letter of May 15, 1921, was the last word she has ever received from him. On receipt of the Salina letter on May 16, 1921, she went to Kansas City, Mo., and there inquired for her husband at different hospitals, and enlisted the aid of the Kansas City police. Finding no trace of her husband, she went to Salina, Kan., and made inquiry at the hospital there and at nearby rooming places, and enlisted the aid of the Salina chief of police. She notified and made inquiry of all his immediate relatives, and had postcards printed containing a picture of her husband and describing him, and mailed these to a list of sheriffs, whose names she had secured from the Standard Oil Company. She made further inquiry and search at various points in Kansas during the month of May, 1921, but discovered no clue as to his whereabouts. Three years subsequent to insured's disappearance, Mrs. Garst heard that a man named Willie Bissell, living at Loveland, Colo., claimed to have seen her husband there. She immediately went to Loveland, and there met Bissell. She remained in Loveland with the Bissell family for two weeks, enlisted the aid of the Loveland police, and visited various industrial establishments, but could learn nothing regarding her husband's whereabouts. Prior to his departure, his wife observed that he complained of his eyes, and at times was seemingly blind.
Plaintiff relies upon the presumption of death arising from a continuous unexplained absence for a period of seven years. The law presumes that a person shown to be alive at a given time remains alive until the contrary is shown by proof, or, in the absence of proof, until a different presumption arises. At the close of a continuous unexplained absence from his last or usual place of residence for a period of seven years, without having been heard of during such time, the presumption of continuance of life is overcome, and a presumption of death arises. Greenwood v. Frick (C. C. A.) 233 F. 629; Haddock v. Meagher, 180 Iowa, 264, 163 N. W. 417. This presumption *64 is not one of law, but is a mixed presumption of law and fact which may be rebutted, and, in fact, does not arise if the circumstances are such as to account for the absence of the person without assuming his death. Davie v. Briggs, 97 U. S. 628, 634, 24 L. Ed. 1086; Duff v. Duff, 156 Mo. App. 247, 137 S. W. 909.
The evidence in the instant case is clearly sufficient to give rise to the presumption of death of the insured. To entitle plaintiff to recover, however, it was incumbent upon him to prove that death occurred during the life of the policy, and he has alleged that it occurred on or about the 15th of May, 1921. The presumption is not a presumption of the time of death. That must be determined by the facts and circumstances in the case. Death might be proven by circumstantial evidence, as any other fact, but the party alleging death before the expiration of seven years must prove such facts and circumstances connected with the absence of the person as, when submitted to the test of reason and experience, would warrant a reasonable conclusion of death within a shorter period. As said by Justice Harlan in Davie v. Briggs, supra: "If it appears in evidence that the absent person, within the seven years, encountered some specific peril, or within that period came within the range of some impending or immediate danger, which might reasonably be expected to destroy life, the court or jury may infer that life ceased before the expiration of the seven years."
This court, in Northwestern Mutual Life Insurance Co. v. Stevens, 71 F. 258, 261, in an opinion by the late Judge Sanborn, after referring to the established presumption of death, upon the disappearance of an individual under ordinary circumstances, from whom his relatives and acquaintances had not afterward heard during a continuous period of seven years after his disappearance, said that: "* * * The fact of continued life or previous death at the important date should be determined by the jury if there is sufficient evidence in the case to warrant a finding that the established presumption has been varied, and by the court if there is no such evidence."
Again this court, in Folk v. United States, 233 F. 177, 189, said: "* * * In the absence of any direct evidence before the Commission that he had died, or that he had been in such a dangerous situation that men of reasonable prudence would infer that he had died, prior to April 1, 1899, the conclusive legal presumption was that he continued to live for at least seven years after the making of the Creek roll in 1895, and hence that he was living on April 1, 1899. In the absence of proof of earlier death, or of evidence of unusual danger of such earlier death, the legal presumption is that a live person continues to live for at least seven years."
See, also, Continental Life Ins. Co. v. Searing (C. C. A.) 240 F. 653; United States v. Robertson (C. C. A.) 44 F.(2d) 317; Fidelity Mutual Life Ass'n v. Mettler, 185 U. S. 308, 22 S. Ct. 662, 46 L. Ed. 922.
In the final analysis, plaintiff is not materially aided by the presumption of death. Independent of that presumption, it was incumbent upon him to prove that the insured died prior to March 11, 1922. Insured was a man, according to his own statements contained in the application for insurance, of excellent health, and the only evidence showing any possible change in that condition was the evidence to the effect that he was suffering from some eye trouble or defect. He departed from home, leaving word that he was going to Salina to see a specialist. This, however, he did not do. The next word from him was that he was going to Kansas City, and in that communication he said, "I guess it will mean an operation on my head." The hospitals in Kansas City and at Salina were visited, and there is nothing from which the court or a jury could infer that he had died on the operating table. There was no evidence of any accident, or that he met with any violence en route to Salina or Kansas City; no dead body seems to have been found; there was no newspaper record of any casualty; and apparently no knowledge of anything of the sort reached the police department of either of these cities.
The facts and circumstances fall far short of that proof which would lead unprejudiced minds, exercising their best judgment, to conclude that the insured died on May 15, 1921, or at any other particular time during the life of the policy. The jury could not, except by guess or surmise, have determined that insured's death occurred during the life of the policy, and hence it was the duty of the court to direct a verdict for the defendant. The judgment appealed from is therefore affirmed.
|
144 Ill. App.3d 1057 (1986)
496 N.E.2d 10
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ROBIN CAPSEL, Defendant-Appellant.
No. 3-85-0510.
Illinois Appellate Court Third District.
Opinion filed July 8, 1986.
Rehearing denied August 12, 1986.
Robert Agostinelli and Pamela A. Peters, both of State Appellate Defender's Office, of Ottawa, for appellant.
Gary L. Peterlin, State's Attorney, of Ottawa (John X. Breslin and Gerry R. Arnold, both of State's Attorneys Appellate Service Commission, of counsel), for the People.
Judgment affirmed.
*1058 JUSTICE STOUDER delivered the opinion of the court:
Following a bench trial, the defendant, Robin Capsel, was convicted of four counts of unlawful use of firearms by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1), and sentenced to concurrent four-year terms of imprisonment. He appeals his convictions. We affirm.
The instant charges were based upon the defendant's knowing possession of a shotgun, a sawed-off baseball-bat bludgeon, and three pool-cue sections. In 1982, the defendant was convicted of the felony of unlawful possession of a controlled substance.
The defendant first argues that his convictions should be reversed as section 24-1.1 of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1), under which he was convicted, is so unreasonable as to violate both Federal and State due process. The State argues initially that the issue is waived. We address the merits, as the issue was preserved for appeal by the post-trial motion's assertion of due process failings of section 24-1.1.
Section 24-1.1 provides, in relevant part, that one who has been convicted of a felony and not granted relief from the section, commits a Class 3 felony if he knowingly possesses on or about his person or in his fixed place of business, inter alia, any bludgeon or any firearm or firearm ammunition. Ill. Rev. Stat. 1985, ch. 38, pars. 24-1.1, 24-1(a)(1).
The defendant's first argument comprises two subarguments. First, the defendant asserts that section 24-1.1 sweeps too broadly in including all individuals who have been convicted of a felony. Second, the defendant asserts that section 24-1.1 proscribes the possession of items, many of which are not inherently evil, without requiring a culpable mental state.
The State responds that the defendant has not shown that section 24-1.1 is unconstitutional as applied to him. Alternatively, the State argues that section 24-1.1 is not unconstitutional. We agree with the State's former position.
1, 2 To attack a statute as unconstitutional, one must bring himself within the class as to whom it is unconstitutional. (People v. Lenhart (1980), 90 Ill. App.3d 502, 413 N.E.2d 220.) A court will examine the validity of a statute only in light of the facts of record. 90 Ill. App.3d 502, 413 N.E.2d 220.
3 The instant facts do not support a finding that section 24-1.1 is unconstitutional. The defendant was convicted of a felony less than three years before the instant offenses. The items which he, a recent former felon, knowingly possessed in violation of section 24-1.1 were a shotgun and four bludgeons, items useful only as weapons. Even if *1059 the statute were considered overbroad, as applied under these circumstances it is not unconstitutional. Rather, here it is a reasonable method for protecting the reasonable public interest in prohibiting at least certain convicted felons from knowingly possessing a weapon. See People v. Wick (1985), 107 Ill.2d 62, 481 N.E.2d 676.
4 The defendant's second argument is that he was denied equal protection and due process as his possession of a shot gun was prosecuted under section 24-1.1 rather than under section 24-3.1 of the Code. Additionally, the defendant claims that the statutory scheme comprising those two sections was an improper legislative delegation violating the doctrine of separation of powers by giving the prosecutor unlimited discretion to choose between the two sections.
Section 24-3.1, unlawful possession of firearms and firearms ammunition, provides, in relevant part, that one who has been convicted of a felony commits a Class A misdemeanor when he has any firearm or firearm ammunition in his possession. Ill. Rev. Stat. 1985, ch. 38, par. 24-3.1(3).
Proof that the defendant's firearm possession was a violation of section 24-1.1, or of section 24-3.1, required satisfaction of identical elements of proof. However, violation of section 24-1.1 was punishable as a Class 3 felony while violation of section 24-3.1 was punishable as only a Class A misdemeanor.
We choose to address the defendant's arguments raised for the first time on appeal. People v. Blackwood (1985), 131 Ill. App.3d 1018, 476 N.E.2d 742.
The defendant presents no direct authority that due process and separation of powers violations invalidate the instant statutory scheme or that prosecution of the instant firearms count under section 24-1.1 was a constitutional violation. Rather, he relies first on cases where, in approving the prosecutor's discretion to elect between statutes with different punishments, the court noted that opposing statutes in question require different elements of proof. (People v. Barlow (1974), 58 Ill.2d 41, 317 N.E.2d 49; People v. Gordon (1976), 64 Ill.2d 166, 355 N.E.2d 3; People v. Brooks (1976), 65 Ill.2d 343, 357 N.E.2d 1169.) Second, he relies upon the dissenting opinion in People v. McCollough (1974), 57 Ill.2d 440, 313 N.E.2d 462.
In McCollough, the court examined a statute which allowed that a homicide caused by reckless driving could be charged, on one set of allegations, either as involuntary manslaughter punishable by a maximum of 10 years' imprisonment, or as reckless homicide punishable by fine or a maximum of 5 years' imprisonment. The court rejected arguments that the statutory scheme granted undue discretion to the prosecutor *1060 and that it was invalid for its delegation of authority to the jury or trial judge. The court held that the statutory scheme included no due process or equal protection violations.
The State relies on United States v. Batchelder (1979), 442 U.S. 114, 60 L.Ed.2d 755, 99 S.Ct. 2198, in arguing that the instant statutory scheme represents no violation of due process, equal protection, or separation of powers. In Batchelder, the United States Supreme Court constitutionally approved the defendant's conviction under the more harshly punished of two statutes which prohibited identical conduct.
We find Batchelder applicable to this case, and we find no reason to deviate from the supreme court majority's reasoning in McCollough. Furthermore, we find no reason to restate the reasoning of those cases at length. Under Batchelder and McCollough, the instant statutory scheme does not violate equal protection, provides no undue discretion to the prosecution, and does not invalidly delegate authority. Likewise, the defendant's firearms prosecution involved no deprivation of due process or equal protection.
Accordingly, the judgment of the circuit court of La Salle County is affirmed.
Affirmed.
BARRY and WOMBACHER, JJ., concur.
|
455 So.2d 244 (1984)
Eddie Edward MASTIN
v.
STATE of Alabama.
8 Div. 888.
Court of Criminal Appeals of Alabama.
May 22, 1984.
Rehearing Denied June 26, 1984.
Certiorari Denied August 31, 1984.
*245 William R. Hovater and Gary W. Alverson, Tuscumbia, for appellant.
Charles A. Graddick, Atty. Gen. and T.A. Harding Fendley, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 83-1138.
TYSON, Judge.
Eddie Edward Mastin was indicted for the murder of his mother, Cleo Mastin, in violation of § 13A-6-2, Code of Alabama, 1975. The jury found the appellant guilty as charged and the trial judge set sentence at 99 years' imprisonment in the penitentiary.
The facts in this case are not in dispute and will therefore be briefly stated. On the evening of December 12, 1981, the appellant was at home with his mother, his brother, Steve, and his grandmother, Ida Carter. At some point, the appellant began rubbing his head and complained to his mother about a headache. His mother told *246 him to take some medicine. The appellant then went and got a shotgun and shot and killed his mother.
When the appellant's brother, Steve, heard the shot he came into the den from the bedroom. The appellant was in the process of loading the gun. When Steve saw what had happened, he told the appellant he was going to kill him. The appellant then shot at his brother, who managed to avoid the shot and get away.
A short time later, the appellant was stopped for a routine traffic violation by Officer Ron Alexander of the Lauderdale Sheriff's Department. When Alexander asked for the appellant's driver's license, he noticed a shotgun on the back seat of the appellant's vehicle. Alexander and the appellant then got in the patrol car so that Alexander could write the appellant a ticket, while running a check for outstanding warrants. At this time, Alexander asked the appellant about the shotgun and he replied he had just shot someone. Alexander then received a dispatch that the appellant was wanted for questioning in connection with a shooting in Colbert County. The appellant was then turned over to the Colbert County authorities.
I
The appellant filed a plea of not guilty by reason of insanity in this case and the majority of the evidence presented at trial pertained to this issue.
The law of insanity is summarized in Cunningham v. State, 426 So.2d 484 (Ala. Crim.App.1982), cert. denied, (Ala., February 11, 1983). In that opinion, authored by Judge Bowen, we find that:
"`A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.' Alabama Code 1975, Section 13A-3-1(a). The legal principles governing the burden and sufficiency of proof of insanity were collected in Christian v. State, 351 So.2d 623 (Ala.1977).
"`Those principles may be summarized as follows:
"`1. By statute, there is a presumption of sanity extending to all persons over the age of 14.
"`2. The defense of insanity is an affirmative defense. The burden of proving this defense rests upon the defendant and never shifts to the state.
"`3. The burden upon the defendant is to establish the issue of legal insanity by a preponderance of the evidence and to the reasonable satisfaction of the jury.
"`4. The question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence.
"`5. In making its determination, the jury may reject all expert testimony though it is without conflict.
"`6. However, opinion testimony, even of experts must be weighed by the jury and may not be arbitrarily ignored.
"`Authority for each of these principles may be found in Christian, supra, at 351 So.2d 624.
"`The one exception to these rules is found in those cases where the proof of insanity is overwhelming and uncontradicted.
"`Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form.' Boyle v. State, 229 Ala. 212, 222, 154 So. 575, 583 (1934).
"Herbert v. State, 357 So.2d 683, 688-89 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978). Generally, see Anno. 17 A.L. R.3d 146 (1968)." Cunningham, supra, at 486.
Defense counsel argues that this case is one of the few in which the exception has been found to apply. He contends that the evidence of the appellant's insanity was so overwhelming that it overcame the presumption of sanity.
The defense called a number of witnesses who testified as to appellant's insanity. Numerous members of the community in which the appellant lived, including friends, *247 neighbors, his father and stepmother, testified that they had observed a change in the appellant over the several years prior to the murder at issue. They testified the appellant exhibited unusual behavior like sleeping in cars and in the rafters of buildings. He was withdrawn, seemed depressed and would be "off" in another world for long periods of time.
The one expert witness for the defense was Dr. Joseph Glaister, a psychiatrist and Medical Director of the Riverbend Mental Health Center. Dr. Glaister said he had been in contact with the appellant since 1976 and over the years the appellant had a history of mental illness. His records indicated that the appellant had complained of hallucinations and delusions and his condition was diagnosed as chronic, undifferentiated schizophrenia. Antipsychotic medication had been prescribed for the appellant and the evaluations of the appellant indicated his condition would likely deteriorate over the years. Dr. Glaister stated the appellant had been involuntarily committed to the Department of Mental Health by his mother. He testified that the observations of the appellant by the other defense witnesses are symptoms of schizophrenia.
Some eight months after the murder at issue, an evaluation was again performed on the appellant. He was found to be a paranoid schizophrenic. Dr. Glaister testified that the appellant's killing of his mother most likely was caused by his mental illness. He did not believe the appellant could fake his mental illness.
Even though evidence of an accused's insanity is overwhelming, it must also be undisputed for this court to find that the jury's verdict was contrary to the evidence presented at trial. Cunningham, supra. While the evidence of the appellant's insanity was strong, it was not undisputed.
The State presented three members of the appellant's family who testified as to his sanity. His two brothers and sister, who had close contact with this appellant, testified the appellant would act certain ways to get sympathy and attention from the others. His brother, Steve, who saw the appellant immediately before and after the shooting, testified that on one occasion the appellant threatened to kill his sister over some moonpies. The appellant said that if he killed her he could "go to the retreat and stay three weeks, six months and get out on the street ... because he had papers saying he was crazy." (R. 312). All three of these witnesses testified they believed the appellant was sane.
Since there was conflicting evidence as to the appellant's insanity, the question was properly submitted to the jury. Cunningham, supra, and authorities cited therein. After a thorough review of the evidence, we find there was evidence which would have supported the jury's finding that the appellant was, in fact, sane. Therefore, we hold the issue of the appellant's sanity was a question for the jury, which they properly resolved against the appellant.
II
During the closing argument of the prosecution, the following dialogue took place:
"MR. HOVATER: Your Honor, could we approach the bench?
"BY THE COURT: Yes.
"(At this time the attorneys approach bench outside the hearing of the jury at which time the following was said.)
"MR. HOVATER: I'd like to make an objection to the prosecutorial misconduct by Mr. Patton in referring to the Defendant not taking the stand to testify in his behalf.
"BY THE COURT: Which remark are you referring to?
"MR. HOVATER: Both remarks. All right, I'll say I didn't object to the first one, but my objection maybe wasn't timely, but I'm objecting to this last one. Let me make a showing also in his closing argument Mr. Patton has referred to how the Defendant has sat over there and has not said anything. Defense counsel feels that this is a comment on *248 the Defendant not taking the stand. I move for a mistrial at this time.
"MR. PATTON: Let me put a statement in. As I recall my statement it was he sat over there with his head down. I haven't said anything about him not talking.
"BY THE COURT: O.K., I'm going to overrule
"MR. HOVATER: Your Honor, I think it will show that he sat over there not talking also.
"BY THE COURT: I want to put in the record that I've had the Court of Criminal Appeals one time reverse me because Mr. Patton said the same thing about somebody else that sat over there that couldn't do anything that was asleep because he was on drugs and they reversed me because I didn't instruct the jury immediately that they are to disregard that remark and I want ya'll to tell me something if I remember correctly you asked several witnesses if he looked then like he did over there and if I remember correctly one time Mr. Hovater, you asked and has he said anything during this whole trial.
"MR. HOVATER: Who did I ask that to?
"BY THE COURT: I remember thinkingI remember thinking that he didn't have to say anything and I wondered why you were asking him. Dr. Glaister.
"MR. HOVATER: Well, I am noting my objection at this time. I've asked about appearances, about his physical appearance and I'm noting my objection.
"BY THE COURT: O.K., well, I'm going to say this I'm not going to grant the motion for mistrial, but I am going to say this I'm instructing you that you not to say anything about him not saying anything.
"MR. PATTON: I don't think I said that Judge
"BY THE COURT: Not in the last remark you didn't." (R. 365-367).
As the appellant points out in his brief, it is reversible error for the prosecution to comment on the accused's failure to take the stand unless the appropriate curative instructions are given to the jury.
"Where the prosecutor's argument passed beyond the bounds of legal propriety, it is the appellant's duty to specifically object and to preserve for the record substantially the language deemed improper. Flowers v. State, 269 Ala. 395, 113 So.2d 344 (1959). The record must disclose with reasonable certainty what was said by the prosecutor in order for this court to attempt an informed review of the challenged comments. Only when this is done, can this court know with reasonable certainty what was said in the court below which influenced the trial judge to rule as he did. Otherwise, the great presumption in favor of the correctness of the ruling of the trial judge will prevail. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973)."
Huffman v. State, 360 So.2d 1038 (Ala. Crim.App.1977), affirmed 360 So.2d 1045 (Ala.1978). See also Earley v. State, 358 So.2d 494 (Ala.Crim.App.), cert. denied, 358 So.2d 501 (Ala.1978); Carden v. State, 382 So.2d 1158 (Ala.Crim.App.), cert. denied, 382 So.2d 1162 (Ala.1980).
As can be seen from the above quoted portion of the record, it is not clear exactly what was said by the prosecutor. Defense counsel seemed to have one impression of what was said while the prosecutor and the trial judge seemed to have another. Since we cannot determine whether or not the prosecutor made any direct reference to the appellant's failure to testify, we must affirm on this issue, since there is nothing properly preserved for our review. Huffman, supra.
III
The appellant asserts reversible error occurred because the trial judge failed to give curative instructions to the jury after the prosecutor used the word "murder" during the examination of one of the State's witnesses. Defense counsel objected to the prosecutor's use of the term and *249 the trial judge immediately sustained the objection. Defense counsel failed to request curative instructions and none were given. Therefore, there is nothing preserved for our review. Proctor v. State, 391 So.2d 1092 (Ala.Crim.App.1980).
Moreover, any prejudicial effect of the prosecutor's remark was eradicated by the trial judge's prompt action in sustaining the objection. Sales v. State, 435 So.2d 242 (Ala.Crim.App.1983).
IV
The following discussion occurred during the closing argument of the prosecutor:
"MR. HOVATER: Your Honor, could I ask Mr. Patton to speak up, I just can't hear. I can't tell whether I need to object to something or not.
"BY THE COURT: Can you speak up a little bit please.
"MR. PATTON: Judge, I want to talk to the jury. That's the ones I'm interested in talking to and if he wants to get somewhere else, I
"MR. HOVATER: Well, Your Honor, I respectfully request that and I would hope that the Court would see that to represent my client, an occasion might arise where I need to object to something he might say and I would respectfully ask that.
"BY THE COURT: I have already done it.
"MR. PATTON: I'm sorry?
"BY THE COURT: I said, I've already asked you to speak up a little bit please. I can't hear it either.
"MR. PATTON: Well, I'm not talking to you either, Judge
"MR. HOVATER: Your Honor, I'm sorry that he doesn't want me or you to hear what he's saying, but I
"BY THE COURT: Ya'll stop it, just speak up a little bit. I have a hard time hearing, we had hearing problems last week." (R. 370).
Defense counsel contends the remarks of the prosecutor were prejudicial to the interests of his client. While we do not condone the attitude of the prosecutor toward the trial judge or his opposing counsel in the preceding discussion, we do not find such to be reversible error. The trial judge asked the prosecutor to speak louder as requested by defense counsel. There were no further objections to or references made concerning the prosecutor's level or tone of speech in the record. Therefore, nothing is before this court to review on this issue.
V
The appellant objects to the admission of the portion of Officer Alexander's testimony concerning the statement the appellant made that he had just shot someone when asked about the shotgun. The appellant contends this statement was made before the appellant was given his Miranda rights and, therefore, the statement was admitted in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965).
"Before law enforcement officers can subject a citizen to custodial interrogation, he must first have been given the Miranda warnings. In Miranda `custodial interrogation' was defined as `questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' This court has yet to formulate a general rule for distinguishing custodial from non-custodial interrogation but instead has preferred to take a case-by-case approach.... In making the distinction between custodial and non-custodial interrogation this court has singled out certain criteria as having special significance; these include probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation. Although none of these factors is alone determinative, we have recently indicated that the most compelling is whether or not the focus of the investigation has finally centered on the defendant." (Footnotes omitted).
Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972). See also Hall v. State, 399 So.2d 348 (Ala.Crim.App.1981).
*250 At the time Alexander asked the appellant about the shotgun, he was unaware that this murder had occurred or more importantly, that the appellant was wanted for questioning in connection with the murder. It was not until after the appellant made this statement that Alexander learned the appellant was wanted in connection with the murder. Since Alexander did not know about the murder or the appellant's connection therewith, it would be inaccurate to say the focus of the investigation of the murder was on this appellant. Alexander did not have probable cause to arrest the appellant and he was not interrogating the appellant with this murder in mind. Alexander was merely inquiring about the shotgun he had seen.
In the instant case, the questioning of the appellant about the gun is not the type of in-custody investigation addressed by the United States Supreme Court's opinion in Miranda, supra. Alexander was making a general investigation while detaining the appellant for the purpose of writing a ticket and while he was unaware of the murder in question. This is consistent with good police work.
We hold Alexander's testimony concerning the appellant's statement did not violate Miranda, supra, and such statement was, therefore, admissible.
VI
During the cross-examination of one of the defense witnesses, the prosecutor made reference to the appellant's actions after he left the courtroom. Defense counsel objected to this statement on the grounds that it wsa not supported by the evidence. The trial judge ultimately sustained the objection. Therefore, there is no adverse ruling for us to review. Proctor, supra.
For the reasons stated above, the judgment of the trial court is due to be and is hereby affirmed.
AFFIRMED.
All the Judges concur.
|
2 P.3d 663 (1999)
196 Ariz. 573
PARADIGM INSURANCE COMPANY, a foreign insurance company, Defendant Counter claimant-Appellant,
v.
The LANGERMAN LAW OFFICES, P.A., a professional association, Plaintiff Counter defendant-Appellee.
No. 1 CA-CV 98-0509.
Court of Appeals of Arizona, Division 1, Department D.
August 31, 1999.
Review Granted May 23, 2000.
*665 Jones, Skelton & Hochuli by Robert R. Berk and Eileen J. Dennis, Phoenix, Attorneys for Defendant/Counterclaimant-Appellant.
Junker Shiaras & Harrington, P.C. by Larry J. Cohen and Neil J. Harrington, Phoenix, Attorneys for Plaintiff/Counterdefendant-Appellee.
OPINION
RYAN, Presiding Judge.
¶ 1 In this appeal, we must decide whether an attorney-client relationship can be created between an insurer and the attorney it hires to represent its insured. We hold that one can be created, and thus the insurer may sue the attorney for malpractice. We also hold that the insurer may not withhold payment of fees owed to the attorney pending resolution of its malpractice claim against that attorney.
I. BACKGROUND
¶ 2 Paradigm Insurance Company hired The Langerman Law Offices ("Langerman") to represent its insured doctors.[1] Paradigm asserts that Langerman agreed that if Paradigm hired Langerman to defend its insureds, Langerman would not accept cases against other Paradigm insureds. Soon thereafter, Langerman began to represent Dr. Vanderwerf, a Paradigm insured, in a medical malpractice case. After Langerman had performed some legal work in the matter, Paradigm concluded that Langerman violated the alleged agreement not to take cases against Paradigm insureds, and hired new counsel to handle the Vanderwerf matter.
¶ 3 The new attorney told Paradigm that the defense should be tendered to Samaritan Insurance Funding because Samaritan Insurance was likely the doctor's primary insurer. Langerman previously had told Paradigm that there was "no viable theory" against Samaritan Health Service, the doctor's employer. But when Paradigm tendered the defense to Samaritan Insurance, Samaritan Insurance argued that the tender was untimely. Paradigm believed that Langerman's actions caused the untimely tender. As a result, Paradigm alleged that costs it incurred in unnecessarily defending and indemnifying Dr. Vanderwerf should have instead been incurred by Samaritan Insurance.
¶ 4 Paradigm then refused to pay attorneys' fees billed by Langerman. Langerman sued Paradigm to collect the fees, and Paradigm counterclaimed for breach of contract, malpractice, breach of fiduciary duty, and breach of Langerman's ethical obligations to Paradigm. Both parties filed motions for summary judgment on various grounds.
¶ 5 The trial court granted summary judgment for Langerman on the malpractice claim, finding that there was no attorney-client relationship between Langerman and Paradigm. The trial court later granted summary judgment for Langerman on its claim for fees. Also, the trial court granted summary judgment in favor of Langerman on Paradigm's remaining counterclaims. Although the court found a question of fact regarding whether Langerman breached an oral promise not to take cases against Paradigm's insureds, the court granted Langerman's motion in limine to preclude Paradigm from presenting evidence of damages on this issue because Paradigm had failed to disclose such evidence to Langerman. The parties stipulated to entry of judgment in favor of Langerman.
¶ 6 Paradigm appealed, raising five issues. We need only discuss the following issues: whether Paradigm had an attorney-client relationship *666 with Langerman; whether Paradigm could bring a malpractice action against Langerman; and whether Paradigm could withhold payment of fees Langerman incurred pending resolution of Paradigm's malpractice claim against Langerman. We discuss these issues in turn below.
II. DISCUSSION
A. Standard of Review
¶ 7 "On appeal from a summary judgment we determine de novo whether there are any genuine issues of material fact and whether the trial court erred in its application of the law." Gonzalez v. Satrustegui, 178 Ariz. 92, 97, 870 P.2d 1188, 1193 (App. 1993). The party with the burden of proof for the claim or defense must respond to a motion for summary judgment by showing evidence creating a genuine issue of fact for each element of the claim in question. See Orme School v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990). Summary judgment is appropriate where "the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Id. at 309, 802 P.2d at 1008. Thus, with respect to each claim, if Paradigm failed to present sufficient evidence to support any of the elements of the claim, such that reasonable persons could find in favor of Paradigm, then the trial court properly granted summary judgment.
B. Attorney-Client Relationship
¶ 8 Paradigm first argues that the trial court erred when it ruled that, absent an express agreement, an attorney hired by an insurance company has no attorney-client relationship with the company. We hold that, if there is no conflict, an attorney-client relationship can be created between an insurer hiring an attorney to represent its insured, despite the lack of an express agreement.
¶ 9 The trial court ruled that no attorney-client relationship existed between Paradigm and Langerman because of the absence of an express agreement that Langerman would jointly represent Paradigm and Dr. Vanderwerf. To support its ruling the court cited Parsons v. Continental National American Group, 113 Ariz. 223, 550 P.2d 94 (1976), and Barmat v. John and Jane Doe Partners A-D, 155 Ariz. 515, 747 P.2d 1214 (App.1986), aff'd in part, vacated in part, 155 Ariz. 519, 747 P.2d 1218 (1987). These cases, however, do not address the specific issue whether an attorney-client relationship can be created between an insurer and the attorney it hires to represent its insured. Instead, they stand for the proposition that an attorney hired to represent an insured owes a primary duty to the insured and may not provide adverse confidential information to the insurer to be used against the insured in a coverage dispute.
¶ 10 In Parsons, an attorney disclosed to the insurer confidential information he learned in the course of representing the insured, which indicated that the policy's intentional act exclusion applied and precluded coverage. The Arizona Supreme Court stated that an "attorney who represents an insured owes him `undeviating and single allegiance' whether the attorney is compensated by the insurer or the insured." Parsons, 113 Ariz. at 227, 550 P.2d at 98. The court went on to hold that when an attorney hired by an insurance company "uses the confidential relationship" to obtain information detrimental to the insured, any policy defenses are waived and the company, as a matter of law, is estopped "from disclaiming liability under an exclusionary clause in the policy." Id. at 228, 550 P.2d at 99; see also Lake Havasu Comm. Hosp., Inc. v. Arizona Title Ins., 141 Ariz. 363, 377, 687 P.2d 371, 385 (App.1984) overruled on other grounds by Barmat, 155 Ariz. at 517, 747 P.2d at 1216 (holding insurer estopped from denying that it would have paid the policy limits, because attorney for insured divulged confidential information to insurer).
¶ 11 While Parsons did not specifically address whether an attorney-client relationship can be created between an insurer and the attorney it hires to represent its insured, it seems to imply that such a relationship does exist. The court held that when a conflict *667 arises such that an attorney obtains information that could possibly be detrimental to the insured's interests, the attorney should inform the insurer that he or she can no longer represent the insurer. See Parsons, 113 Ariz. at 227, 550 P.2d at 98. This holding implies that the attorney did represent the insurer before the conflict arose; otherwise it would be unnecessary for the attorney to inform the insurer that its representation could not continue.
¶ 12 In Barmat, an attorney representing the Arizona Guaranty Fund ("Fund"), which took over the Barmats' defense when their insurer became insolvent, disclosed confidential information to the Fund. The attorney also gave the Fund advice contrary to the Barmats' best interests. When the Barmats sued the attorney, he claimed immunity from suit under a statute providing the Fund and its agents with immunity. This court held that "when the Fund retains an attorney to represent an insolvent company's insured in a claim against that insured, the attorney is the agent of the insured and not the agent of the Fund for purposes of the immunity statute." Barmat, 155 Ariz. at 518, 747 P.2d at 1217. Thus, the immunity statute did not protect the attorney from liability for malpractice.
¶ 13 Neither Parsons nor Barmat requires an "express agreement" for an attorney-client relationship to exist. Rather, they hold that if an attorney provides adverse confidential information to the insurer, the insurer may be estopped from denying coverage or the insured may sue the attorney for malpractice. Here, there is no allegation that Paradigm sought, or Langerman provided, confidential information adverse to Dr. Vanderwerf's interests. Therefore, Parsons and Barmat are inapplicable to the question of whether an attorney-client relationship can be created between an insurer and the attorney it hires to defend its insured.
¶ 14 While we find no Arizona cases on point, numerous other jurisdictions have addressed this issue. The majority rule is that, in the absence of a conflict, the attorney has two clients, the insurer and the insured. See, e.g., Home Indem. Co. v. Lane Powell Moss and Miller, 43 F.3d 1322, 1330-31 (9th Cir. 1995) ("In a typical insurer-insured relationship, where there is no reservation of rights, there is no actual conflict of interest that would preclude an attorney from representing both the insurer and insured."); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986) ("A `client' is the person or entity on whose behalf a lawyer acts. [The attorneys] were acting for the insurer as well as for the insured."); Unigard Ins. Group v. O'Flaherty & Belgum, 38 Cal.App.4th 1229, 45 Cal.Rptr.2d 565, 568-69 (1995) (holding when no actual or apparent conflict exists, the attorney has a dual attorney-client relationship with both the insurer and the insured); Nandorf, Inc. v. CNA Ins. Cos., 134 Ill.App.3d 134, 88 Ill.Dec. 968, 479 N.E.2d 988, 991 (1985) ("The attorney hired by the insurance company to defend in an action against the insured owes fiduciary duties to two clients: the insurer and the insured."); see also Richard L. Neumeier, Serving Two Masters: Problems Facing Insurance Defense Counsel and Some Proposed Solutions, 77 Mass. L.Rev. 66, 69 (1992) ("the law firm is attorney for the insured as well as the insurer." (quoting McCourt Co. v. FPC Properties, Inc., 386 Mass. 145, 434 N.E.2d 1234, 1235 (1982))).
¶ 15 On the other hand, a minority of jurisdictions hold that an attorney hired by an insurer to represent its insured has one clientthe insured. See, e.g., Continental Cas. Co. v. Pullman, Comley, Bradley & Reeves, 929 F.2d 103 (2d Cir.1991); In re A.H. Robins Co., 880 F.2d 709 (4th Cir.1989), abrogated on other grounds by Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Point Pleasant Canoe Rental, Inc. v. Tinicum Township, 110 F.R.D. 166 (E.D.Pa.1986); Novella v. Hartford Accident and Indem. Co., 163 Conn. 552, 316 A.2d 394 (1972); Jackson v. Trapier, 42 Misc.2d 139, 247 N.Y.S.2d 315 (N.Y.Sup.Ct.1964). The premise of these cases appears to be that "[c]onflicts of interest are inherent in the relationship between insurers and insured." John K. Morris, Conflicts of Interest in Defending Under Liability Insurance Policies: A Proposed Solution, 1981 Utah L.Rev. 457, 459.
*668 ¶ 16 We believe that the majority rule is the better rule for three reasons. First, to hold that an insurer cannot maintain a malpractice action against an attorney it hired to represent its insured would immunize that attorney's malpractice. See Atlanta Int'l Ins. Co. v. Bell, 438 Mich. 512, 475 N.W.2d 294, 298 (1991) ("[D]efense counsel's immunity from suit by the insurer would place the loss for the attorney's misconduct on the insurer.").[2] Requiring an attorney "to adhere to basic norms of duty of care," serves the best interests of both insurer and the insured. Id. Second, our ethical rules do not absolutely prohibit an attorney from representing more than one client in a single matter. See Ethical Rule 1.7(b), Rules of Professional Conduct, Rule 42, Rules of the Arizona Supreme Court. In the insurance context, such an "arrangement is valid ... under the law of professional responsibility because that body of law permits a lawyer to take on a company and an insured as joint clients when the interests of the parties are not fundamentally antagonistic." Charles Silver, Does Insurance Defense Counsel Represent the Company or the Insured?, 72 Tex. L.Rev. 1583, 1614 (1994). Third, as long as the interests of the insured and the insurer overlap, one attorney representing both makes economic and practical sense. Most insureds are not familiar with litigation and would have difficulty distinguishing between a bad lawyer and an unavoidable bad outcome. See id. at 1597. In contrast, insurance companies are "repeat players in litigation. They see the same kinds of claims over and over. They form long-term relationships with lawyers that encourage lawyers to act responsively, cooperatively, and economically." Id. (footnotes omitted).
¶ 17 Therefore, we hold that absent an actual or apparent conflict of interest between the insurer and the insured, an attorney may represent both. We find support for this approach in two recent decisions of the California Court of Appeal. In Unigard, the court held that "where the insurer hires counsel to defend its insured and does not raise or reserve any coverage dispute, and where there is otherwise no actual or apparent conflict of interest between the insurer and the insured that would preclude an attorney from representing both, the attorney has a dual attorney-client relationship with both insurer and insured." 45 Cal.Rptr.2d at 569. In American Casualty Co. v. O'Flaherty, 57 Cal.App.4th 1070, 67 Cal.Rptr.2d 539, 542 (1997), the court, following Unigard, concluded that "[b]arring a conflict ... it makes sense to allow an insurance carrier who has retained counsel to defend the interests of its insured ... to sue that attorney for malpractice."
¶ 18 A conflict is likely to occur "where coverage under the policy is disputed [or] where the claim against the insured is likely to result in a recovery in excess of the policy limits unless the insurer accepts a settlement offer within the policy limits." Bogard v. Employers Cas. Co., 164 Cal. App.3d 602, 210 Cal.Rptr. 578, 583 (1985) (citations omitted). Obviously, if a conflict between the interests of the insured and the insurer exists, then "the attorney's primary loyalty must be to the insured it was retained to defend." American Cas. Co., 67 Cal. Rptr.2d at 542-43; see also Parsons, 113 Ariz. at 227, 550 P.2d at 98. But if there is no conflict, we conclude that an insurer can also have an attorney-client relationship with the attorney it hires to represent its insured.
¶ 19 Here, Langerman presented no evidence of any coverage dispute or other conflict of interest between Dr. Vanderwerf and Paradigm. Regarding any potential coverage dispute, the only evidence presented showed that Paradigm asserted that other coverage might be primary, but no evidence suggests that Paradigm ever disputed that its policy provided coverage or stated that it would refuse to pay the claim.
*669 ¶ 20 Langerman asserts an actual conflict because Dr. Vanderwerf wished to settle the case while Paradigm wished to litigate. The evidence presented does not support this assertion. The letter Langerman cites as support states that "Dr. Vanderwerf has made his position very clear ... he would like to defend this case if it does not result in his being exposed to excess liability. He has requested that Paradigm either waive the policy limits or settle within the policy limits. . . ." Langerman, however, provided no evidence that Paradigm refused any demand by Dr. Vanderwerf to settle the case, and in fact the case ultimately settled within policy limits. Nor was there any evidence presented that the claim against Dr. Vanderwerf could have potentially resulted in an excess verdict. Thus, no conflict existed regarding settlement. See Bogard, 210 Cal.Rptr. at 583 ("there could be no conflict of interest until such time as there was a claim against the insureds over [the policy limits].").
¶ 21 Langerman also argues that an attorney may not undertake "dual representation" absent informed consent of both clients, citing Ethical Rule 1.7(b). Langerman maintains that, absent such informed consent, the dual representation cannot exist. Consequently, because there was no disclosure and consent in this case, Langerman could not have represented both Paradigm and Dr. Vanderwerf. We need not decide whether an attorney hired by an insurance company to represent an insured must obtain informed consent from both the insured and the insurer. Assuming that Langerman was required to obtain informed consent from both the insurer and the insured but failed to do so, then it may have violated an ethical rule, but that violation does not mandate a finding that Langerman did not, in fact, represent both clients. Simply put, the absence of informed consent does not negate the existence of a dual attorney-client relationship.
¶ 22 The trial court erred in granting summary judgment in favor of Langerman on the issue of whether Paradigm had an attorney-client relationship with Langerman.
C. Malpractice
¶ 23 Paradigm asserted that Langerman committed malpractice and breached its ethical duty to Paradigm by failing to tender the defense of the lawsuit to Samaritan Insurance, and by breaching its alleged oral agreement not to represent plaintiffs against other Paradigm insureds. The trial court ruled that, because there was no "express agreement" no attorney-client relationship existed, and Paradigm was not entitled to sue Langerman for malpractice. Although this reasoning is incorrect, we will affirm the trial court's summary judgment if it is correct for any reason. See Gonzalez, 178 Ariz. at 97, 870 P.2d at 1193. We therefore consider whether the trial court properly granted summary judgment in favor of Langerman on the malpractice claim.
¶ 24 Generally, the relationship between attorney and client is contractual, and the "contract may be express or implied from the conduct of the parties." Franko v. Mitchell, 158 Ariz. 391, 397, 762 P.2d 1345, 1351 (App.1988). "The relationship is proved by showing that the party sought and received advice and assistance from the attorney in matters pertinent to the legal profession." Id. (quoting In re Petrie, 154 Ariz. 295, 299, 742 P.2d 796, 800 (1987)). Whether an attorney-client relationship exists is normally an issue for the trier of fact. See id.
¶ 25 With respect to this issue, the parties agree on the following facts. Paradigm hired Langerman to handle the malpractice lawsuit filed against Dr. Vanderwerf, and a successful defense would benefit both Paradigm and Dr. Vanderwerf. Langerman advised Paradigm extensively regarding the progress of the case, including the likelihood of success, and Langerman consulted with Paradigm on matters such as settlement and expert witnesses. Thus, Langerman in fact provided legal services to both Paradigm and Dr. Vanderwerf.
¶ 26 Because there is no evidence of any conflict between Paradigm and its insured, a dual attorney-client relationship existed, and Paradigm is entitled to bring a malpractice action against Langerman. The trial court therefore erred in finding that Paradigm *670 could not maintain a malpractice action against Langerman.[3]
D. Langerman's Claim for Fees
¶ 27 Finally, Paradigm argues that the trial court erred in granting summary judgment in favor of Langerman on its claim for fees. It rejected Paradigm's argument that it was entitled to withhold the fees pending the resolution of the malpractice and breach of contract claims. Paradigm does not dispute that Langerman's requested fees were reasonable. Rather, it contends that pending the resolution of Paradigm's counterclaims against Langerman for malpractice, it was entitled to withhold the fees to offset them against any malpractice damages ultimately assessed. In support of this theory, Paradigm cites Andrews v. Wade & De Young, Inc., P.C., 950 P.2d 574 (Alaska 1997). Paradigm argues that the Alaska Supreme Court "never questioned the propriety of the clients' offsetting or withholding fees." We disagree because Andrews does not hold that a former client may withhold payment of attorneys' fees pending resolution of a malpractice claim against the attorney.
¶ 28 The court in Andrews cited Rowland v. Harrison, 320 Md. 223, 577 A.2d 51, 57-58 (1990), which held that if a client were successful in a malpractice action against a veterinarian, she would be entitled to damages if successful but would not be entitled to restitution of the fees paid for treatment of her horse. The court in Andrews also noted that "[i]t is conceivable that the attorney's malpractice caused less injury to the client than the cost of the services rendered." Andrews, 950 P.2d at 579.
¶ 29 Thus, the one case cited by Paradigm in support of its claim indicates that courts tend to separate malpractice awards from fee payment disputes, rather than allowing parties to withhold fees to offset a potential damage award. We therefore affirm the trial court's decision on this issue.
III. CONCLUSION
¶ 30 We reverse the trial court's summary judgment in favor of Langerman on the malpractice claim, affirm the trial court's judgment in favor of Langerman on its claim for attorneys' fees, and remand to the trial court for proceedings consistent with this decision.
CONCURRING: RUDOLPH J. GERBER, Judge, and THOMAS C. KLEINSCHMIDT, Judge.
NOTES
[1] Because this is an appeal from a summary judgment, we must view the evidence in the light most favorable to the party against whom judgment was entered. See Pioneer Annuity Life Ins. Co. v. Rich, 179 Ariz. 462, 464, 880 P.2d 682, 684 (App.1994). Many of the facts are undisputed; when the evidence conflicts, any inferences are drawn in favor of Paradigm.
[2] Although the court in Atlanta International held that no attorney-client relationship exists between an insurer and the attorney it hires to represent its insured, a plurality of the court did allow the insurance company to bring a malpractice action against the attorney under an equitable subrogation theory. The court's holding that no attorney-client relationship exists in this situation has been called an anomaly and a deviation from the majority view. See 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice, § 28.3, at 492 (4th ed.1996); Neumeier, 77 Mass. L.Rev. at 69 & n. 26.
[3] Paradigm further argues that the trial court erred in ruling that it was not a third-party beneficiary entitled to sue, that it could not sue under an equitable subrogation theory, and that as a matter of law no negligent misrepresentation occurred. Paradigm presented these issues merely as alternative theories of recovery, arguing that we should consider them only if we hold that Paradigm cannot sue Langerman for malpractice. In light of our resolution of the malpractice issue, we need not address Paradigm's alternative theories.
|
47 Cal.Rptr.3d 121 (2006)
141 Cal.App.4th 1388
SMALL PROPERTY OWNERS OF SAN FRANCISCO et al., Plaintiffs and Appellants,
v.
CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.
No. A108924.
Court of Appeal of California, First District, Division Five.
August 9, 2006.
*122 Zacks Utrecht & Leadbetter, Paul F. Utrecht, Andrew M. Zacks, San Francisco, Eric D. McFarland, Salvatore C. Timpano, Novato, Kemnitzer, Anderson, Barron & Ogilvie, Mark F. Anderson, San Francisco, Counsel for Plaintiffs and Appellants.
Dennis J. Herrera, City Attorney, Kristen A. Jensen, Deputy City Attorney, Rafal Ofierski, Deputy City Attorney, Counsel for Defendant and Respondent.
Certified for Partial Publication.[*]
REARDON (THOMAS), J.[**]
Small Property Owners of San Francisco, Jess Pacias, Dan A. Evans, and John Lockley, on behalf of themselves and a class of San Francisco landlords, appeal from a judgment entered after trial. The trial court ruled that an ordinance of respondent City and County of San Francisco (City), which required landlords to pay tenants interest on security deposits at a rate of 5 percent, did not effect a taking under the California Constitution or the United States Constitution. Appellants contend that the court erred in this conclusion and, in reaching its decision, erred in taking judicial notice of credit card interest rates. In addition, appellants argue that the court abused its discretion in requiring them to provide notice of the adverse judgment to class members by mail.
In the published portion of this opinion, we conclude that the ordinance did not effect a taking. In the unpublished portion, we determine that the judgment should be modified in regard to the notice of the judgment to the class. As so modified, the judgment will be affirmed.
I. FACTS AND PROCEDURAL HISTORY
Beginning in September 1983, San Francisco Administrative Code section 49.2 (Ordinance) required landlords to pay 5 percent interest to their tenants on tenant security deposits held for more than one year. After interest rates on money market accounts dipped below 5 percent, appellants sued the City.
A. THE COMPLAINT
Appellants filed their complaint on April 15, 2002, as a class action on behalf of the *123 owners of one to six residential rental units who, pursuant to the Ordinance, were required to pay tenants 5 percent annual interest on their security deposits. They alleged that, due to state law requiring them to return security deposits within three weeks after termination of the tenancy, landlords had to keep the deposits in money market accounts. The interest rate paid by money market accounts beginning in April 2001 was less than 5 percent. On this basis, appellants contended, the Ordinance worked a taking within the meaning of article I, section 19 of the California Constitution and the Fifth Amendment to the United States Constitution. Specifically, appellants alleged: "The difference between the mandated 5% and the money market account yield is a taking without compensation within the meaning of the state and federal constitutions and the plaintiffs and class members have been damaged by having to pay this difference from their own funds." Appellants sought declaratory relief, damages, and an injunction.
B. PRETRIAL
The trial court overruled the City's demurrer to the complaint and denied its motion for summary judgment. Appellants' motion to certify the class was granted.
The matter proceeded to trial, which was bifurcated by stipulation of the parties. The parties presented four questions for resolution:
1. "Could the difference between what landlords could have earned by investing their tenants' security deposits in money market accounts from April 2001 through July 2002 (`the 16-month period'), and the 5% simple annual interest landlords were required to pay for the 16-month period (`the 16-month difference'), amount to a taking under applicable law?"
2. "If the 16-month difference alone could be a taking, must the takings analysis also consider interest rates that were available to landlords in money market accounts before the 16-month period to determine whether the Ordinance effected a taking under applicable law?" (Underscoring in original.)
3. "If interest rates from before the 16-month period must be considered in the takings analysis, what is the time period that must be considered, e.g., (1) since the effective date of the Ordinance in September 1983, (2) since the landlord purchased the rental property for which the interest rate shortfall is being asserted, or (3) since the tenancy began for the security deposit at issue?"
4. "In the takings analysis, should landlords' transaction costs arising from their handling of tenant security deposits and paying 5% interest to their tenants be considered in determining liability or damages in this action, and if so, what costs incurred by landlords may be included in the calculation of transaction costs?"
C. EVIDENCE AT TRIAL
Evidence was provided to the court by way of declarations and stipulated facts, which included the following.
The Ordinance requiring landlords to pay to tenants 5 percent on security deposits was in effect from September 1983 through August 4, 2002. Effective August 4, 2002, the Ordinance was amended to require landlords to pay interest at the Federal Reserve discount rate, rather than a fixed rate of 5 percent.
The Ordinance did not require landlords to hold the security deposits in any particular type of account. To the contrary, section 49.2(e) of the San Francisco Administrative Code stated: "`Nothing in this Chapter shall preclude a landlord *124 from exercising his or her discretion in investing security deposits.'" According to a declaration submitted by appellants' economics expert, however, the "relatively small sums of money typically involved in residential rental security deposits, together with provisions of the City's Administrative Code and provisions of California [s]tate law [requiring prompt return of the deposit to a vacating tenant], effectively limit a prudent small property owner's options for investing residential rental security deposits to deposit accounts and money market funds whose proceeds generally are available on demand."
During the 16-month period (roughly April 2001 through July 2002), the interest rate that could be obtained on money-market accounts was less than 5 percent. Because the highest rate in bank or money market accounts during the period was 2.2 percent, landlords were required to pay at least 2.8 percent interest on the security deposits from their own funds. The landlord's contribution, therefore, was around 60 percent in the 16-month period.
As to the actual dollar amount of shortfall covered by landlords during the period, appellants' expert estimated $125 on average per landlord, and specifically $281 for appellant Lockley and his two buildings, $51 for appellant Pacias, and $33 for appellant Evans. The City produced evidence, however, that many landlords did not pay tenants any of the required interest on tenant security deposits.
Evidence was also produced as to the significance of these out-of-pocket costs in the broader context of appellants' residential rental enterprises. The parties stipulated that, for landlords who held the maximum permitted security deposit (two months' rent), the amount of the interest difference during the 16-month period was 0.47 percent or less of the landlord's annual gross rental income; and for landlords who held less than the legal maximum, the difference was less than 0.47 percent of their gross annual rental income. Furthermore, the parties stipulated, this difference did not prevent class members from earning a fair return on their investment in residential rental properties and had no economic impact on the fair market value of those properties.
The City submitted evidence that the average annual rate of interest on uninsured money market funds from 1983 through July 2002 roughly the effective period of the Ordinance was greater than 5 percent. Appellants countered this evidence with declarations from its expert economist, who estimated that the landlords' administrative and transactional costs in selecting and maintaining their investment accounts amounted to .25 percent to 1 percent of the security deposit, thereby reducing the effective rate of return on money market accounts below 5 percent.
D. TENTATIVE STATEMENT OF DECISION
After oral argument by counsel, the trial court issued a tentative statement of decision which answered the first question in the City's favor: the difference between what landlords could have earned by investing their tenants' security deposits in money market accounts from April 2001 through July 2002, and the 5 percent simple annual interest landlords were required to pay for the 16-month period, did not constitute a taking. With this conclusion, the court found no need to decide the remaining questions. The court did ask the parties to comment on whether it could take judicial notice of the fact that credit card interest rates were higher than 5 percent during the 16-month period.
The parties responded to the tentative statement of decision. Among other *125 things, appellants objected to the court taking judicial notice.
E. FINAL STATEMENT OF DECISION
In its final statement of decision, the trial court determined that the Ordinance was not a taking under any of the tests proposed by appellants. In connection with one aspect of its reasoning, the court took judicial notice of credit card interest rates. The court also concluded it was not bound by the appellate court decision in Action Apartment Assn. v. Santa Monica Rent Control Bd. (2001) 94 Cal.App.4th 587, 114 Cal.Rptr.2d 412 (Action Apartment) which held that allegations concerning a Santa Monica ordinance requiring landlords to pay 3 percent on tenant security deposits stated a takings claim because the Santa Monica ordinance was distinguishable.
Judgment was entered in favor of the City. In response to the City's proposal and over appellants' objection, the court required appellants to provide notice of the adverse judgment to class members by standard mail as well as by a posting on appellants' website.
This appeal followed.
II. DISCUSSION
As mentioned, appellants contend the trial court erred in: (1) concluding that the City's Ordinance was not a taking; (2) taking judicial notice of credit card interest rates; and (3) requiring appellants to provide notice of the adverse judgment to class members by standard mail. We address each contention in turn.
A. APPELLANTS' TAKINGS CLAIM
Appellants challenge the Ordinance as a taking under the Fifth Amendment to the United States Constitution and article I, section 19 of the California Constitution. Specifically, they complain that the Ordinance requires landlords to pay a 5 percent rate of interest on security deposits during a 16-month period when money market funds were paying less than 5 percent, thus forcing property owners to use their own funds to pay the difference.
The Takings Clause of the Fifth Amendment to the United States Constitution (Takings Clause) reads: "nor shall private property be taken for public use, without just compensation." It applies against the states through the Fourteenth Amendment. (Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 122, 98 S.Ct. 2646, 57 L.Ed.2d 631 (Penn Central).) The takings clause of the California Constitution article I, section 19, provides: "Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into a court for, the owner." California courts generally construe the federal and California takings clauses congruently. (San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 664, 117 Cal.Rptr.2d 269, 41 P.3d 87 (San Remo); see San Remo Hotel v. City and County of San Francisco (2005) 545 U.S. 323, 125 S.Ct. 2491, 2501, fn. 18, 162 L.Ed.2d 315 [assuming "that the California Supreme Court was correct in its determination that California takings law is coextensive with federal law"].) The parties do not contend there is any material difference between federal and California takings jurisprudence.
The Takings Clause is intended to provide private citizens with just compensation when the government takes their private property for public use. It most obviously applies to the government confiscation of an individual's real property, as by eminent domain. Such a "classic" or per se taking includes governmental appropriation *126 of property and the "`practical ouster'" of the owner from the property. (Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 125 S.Ct. 2074, 2082, 161 L.Ed.2d 876 (Lingle); Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (Lucas), citing Transportation Co. v. Chicago (1879) 99 U.S. 635, 642, 25 L.Ed. 336.) The Takings Clause applies as well to government enactments that, while not direct appropriations or ousters, are equivalent thereto. These enactments have been called regulatory takings and fall into three categories. (Lingle, supra, at p. 2081.) The first are those involving a physical invasion of property, such as in Loretto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868, in which state law required landlords to permit the installation of cable television facilities. (Lingle, supra, at p. 2081.) The second are those in which an enactment burdens real property to such an extent that the property has no economically beneficial use, such as in Lucas, supra, 505 U.S. at page 1007, 112 S.Ct. 2886, in which beachfront property was rendered valueless when a state law prohibited the building of any structures thereon.[1] (Ibid.) Finally, a regulatory taking arises if the adverse economic impact, the property owner's investment-backed expectations, and the nature of the governmental action reflect the functional equivalent of a traditional taking. (Lingle, supra, at pp. 2081-2082, citing Penn Central, supra, 438 U.S. at p. 124, 98 S.Ct. 2646.)
Because the Takings Clause forbids that private property be taken for public use without just compensation, the first step in a takings analysis is to determine what "private property" has been "taken for public use" by means of the government regulation. We begin our discussion with that determination. We then examine whether a Takings Clause analysis is appropriate where, as here, the governmental regulation requires the payment of money by one private party to another. Lastly, we conclude that the trial court did not err in ruling that appellants failed to prove a taking.
1. Appellants' Asserted Property Interest
Appellants do not claim that the City is physically appropriating their real property. Nor do they claim that the Ordinance is so burdensome that they cannot maintain their rental business or derive any other economically beneficial use from their real property.
Appellants also do not claim that the Ordinance effects a taking of the security deposits that they may hold by contract pursuant to Civil Code section 1950.5.[2] Nor could they. The security deposits belong to the tenants. (Action Apartment, supra, 94 Cal.App.4th at p. 599, 114 Cal. *127 Rptr.2d 412.) Additionally, the corpus of the deposits is not invaded in order to make the payments required by the Ordinance.[3]
Appellants do not argue that the City is taking all the interest generated by the security deposits. Such an argument would also fail, because interest earned on a tenant's security deposit belongs to the landlord only in the absence of an applicable legislative enactment to the contrary. (Korens v. R.W. Zukin Corp. (1989) 212 Cal.App.3d 1054, 1058-1059, 261 Cal.Rptr. 137 (Korens); see also Brown v. Legal Foundation of Wash. (2003) 538 U.S. 216, 240, 123 S.Ct. 1406, 155 L.Ed.2d 376 (Brown) [interest belongs to owner of principal].) The court in Korens, noting there was no state or local law requiring landlords to pay interest that applied in that case, declined to create such a duty by implication, particularly since the California Legislature had repeatedly rejected attempts to create one by statute. (Korens, supra, at p. 1054, 261 Cal.Rptr. 137; see also Overland v. Superior Court (2005) 126 Cal.App.4th 131, 140, 23 Cal.Rptr.3d 676 [bail depositors could not state a takings claim for interest on bail, because their deposit of bail was akin to a contract whose terms did not include payment of interest on the deposit].) But in reaching this conclusion, Korens implicitly assumed that, in fact, a local government could require landlords to pay tenants the interest they obtained on security deposits. And the court in Action Apartment, supra, 94 Cal.App.4th at page 608, 114 Cal. Rptr.2d 412, reached this same conclusion explicitly: "No doubt, the [city] can compel landlords to give tenants the interest paid by the bank."[4]
What appellants are really arguing, therefore, is that the City should have to compensate them for the amounts they had to pay tenants from their own funds in satisfying the requirement that tenants receive 5 percent interest on their security deposits. We discuss next whether a governmental regulation that merely requires appellants to pay money, such as the Ordinance, can be a taking as a matter of law.
2. Does the Takings Clause Apply To Appellants' Asserted Property Interest?
The government's appropriation of money itself may be the subject of a taking, as *128 where the government seizes currency or levies upon a bank account. (See Kitt v. U.S. (Fed.Cir.2002) 277 F.3d 1330, 1336 (Kitt).) Here, however, the City did not seize any currency or levy upon appellants' bank accounts. It merely required the payment from landlords to tenants of a certain amount of interest on the monies landlords were holding on the tenants' behalf.
Appellants provide no persuasive authority that this type of payment can constitute a taking. The cases on which they rely on this point dealt with property interests distinguishable from the one appellants assert in this case, and Action Apartment, supra, 94 Cal.App.4th 587, 114 Cal. Rptr.2d 412 which appellants discuss extensively and we address post did not expressly decide the matter. Other decisions, as well as the purpose of the Takings Clause, cast doubt on whether a monetary obligation such as the one at issue can form the basis of a takings claim.
In Eastern Enterprises v. Apfel (1998) 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (Eastern Enterprises), the United States Supreme Court considered the retroactive application of a provision in the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act), 26 United States Code sections 9701-9722, which in relevant part provided a new mechanism for funding retirement benefits to coal industry employees. (Eastern Enterprises, supra, at pp. 503-504, 515, 118 S.Ct. 2131.) Plaintiff, a former coal mining company, was required by the Coal Act to pay additional medical benefits to its employees that had not previously been required. The plaintiff contended that the retroactive application of the provision violated both the due process clause and the Takings Clause of the Fifth Amendment. (Eastern Enterprises, supra, at p. 517, 118 S.Ct. 2131.)
Five members of the court concluded that the application of the provision to the plaintiff was unconstitutional, but they did not agree on the rationale. Four of them Justice O'Connor, joined by Rehnquist, Scalia, and Thomas decided that the provision of the Coal Act amounted to an unconstitutional taking as applied, and did not address the due process challenge. (Eastern Enterprises, supra, 524 U.S. at pp. 537-538, 118 S.Ct. 2131.) Justice Kennedy provided the fifth vote necessary for the judgment but based his concurrence on the view that retroactive application of the Coal Act violated due process, rejecting any application of the Takings Clause because there was no "specific property right or interest . . . at stake." (Id. at pp. 540, 541-543, 547-550, 118 S.Ct. 2131.) Four other justices Breyer, joined by Stevens, Souter, Ginsburg dissented, reasoning that the Takings Clause did not apply because the case involved "not an interest in physical or intellectual property, but an ordinary liability to pay money, and not to the Government, but to third parties." (Id. at p. 554, 118 S.Ct. 2131.) Further, they concluded, the plaintiff had failed to prove any due process violation. (Id. at pp. 553, 556, 118 S.Ct. 2131.) Because five of the nine justices in Eastern Enterprises decided that the Takings Clause did not apply to a regulation requiring payment of money, some courts have held this principle must be followed. (See, e.g., Commonwealth Edison Co. v. U.S. (Fed.Cir.2001) 271 F.3d 1327, 1339 (Commonwealth Edison) ["[F]ive justices of the Supreme Court in Eastern Enterprises agreed that regulatory actions requiring the payment of money are not takings. We agree with the prevailing view that we are obligated to follow the views of that majority."].) The City would have us adopt this view.[5]
*129 Appellants urge that Eastern Enterprises does not govern this case. Of the five justices in Eastern Enterprises who concluded that the Takings Clause was inapplicable, they note, Justice Kennedy confined his objection to a more limited basis, by explaining that Takings Clause scrutiny is inapplicable to a monetary obligation that was not imposed with respect to or on a particular property. Justice Kennedy observed that the Coal Act "regulates the former mine owner without regard to property" and does not "operate upon or alter an identified property interest, and it is not applicable to or measured by a property interest" or "appropriate, transfer, or encumber an estate in land . . ., a valuable interest in an intangible . . ., or even a bank account or accrued interest." (Eastern Enterprises, supra, 524 U.S. at p. 540, 118 S.Ct. 2131.) Further, he remarked, "[t]he Coal Act neither targets a specific property interest nor depends upon any particular property for the operation of its statutory mechanisms." (Id. at p. 543, 118 S.Ct. 2131.)
Thus, appellants argue, to the extent the view of the five justices in Eastern Enterprises has any precedential value, it is necessarily limited by the scope of Justice Kennedy's concurrence, whereby a monetary obligation is subject to the Takings Clause if the obligation operates upon, alters, or is measured by an identified property interest. Appellants urge that the Ordinance here is measured by the security deposits; this argument is meritless, since the security deposits are owned by the tenants, not the landlords.
It could be argued that the payment required by the Ordinance is "measured" by the landlord's real property: the payment is a percentage of the security deposit; the deposit is ordinarily gauged by the initial monthly rent and, indeed, may not exceed twice that figure; and the initial rent in turn depends upon the property's value in the rental market. We recognize as well that the Ordinance applies only to landlords, and in that sense bears some relation to appellants' use of their real property. While such arguments are quite attenuated, Eastern Enterprises does not expressly rule that this sort of regulation, although mandating only the payment of money, cannot be subject to a takings clause analysis.[6] Because the trial court *130 here engaged in a Takings Clause analysis, we will assume such an analysis is appropriate and proceed to address whether appellants established that the Ordinance effected a taking.
We also embark on this analysis because we think it likely that the proper characterization of appellants' protectible property interest under the takings clause is not the money they might have to pay tenants from their own pockets, but a broader interest such as their residential rental enterprise or their ownership of the real property. (See, e.g., Penn Central, supra, 438 U.S. at pp. 130-131, 98 S.Ct. 2646 [in defining the affected property interest, plaintiff's parcel must be considered as a whole].) Appellants' out-of-pocket loss is merely part of the economic impact of the Ordinance, which in light of appellants' stipulations, and as we show post, was not so great as to "take" a property interest recognized by the Takings Clause.
3. Takings Clause Analysis
In the matter before us, the Ordinance did not effect a permanent appropriation of real property or an ouster therefrom. Nor did it involve a physical invasion of real property. Furthermore, as appellants stipulated, the Ordinance did not deprive them of all beneficial economic use of their residential rental properties.[7] Appellants *131 have not established a per se taking. (See Lingle, supra, 125 S.Ct. at p.2081.)
Thus, we turn to the multifactor test as set forth in Penn Central, supra, 438 U.S. 104, 98 S.Ct. 2646. Under that test, three primary factors determine whether a regulation has effected a taking: (1) the economic impact of the regulation on the plaintiff; (2) the extent to which the regulation has interfered with the plaintiff's investment-backed expectations; and (3) the character of the governmental action, including whether there has been a physical invasion or merely an adjustment of the benefits and burdens of economic life to promote the common good. (Id. at p. 124, 98 S.Ct. 2646.)
a. Economic impact
Appellants' evidence of the Ordinance's economic impact was that, during a 16-month period, the bank and money market accounts in which they placed their tenants' security deposits paid interest at a rate of less than 5 percent. Despite this evidence, the trial court found that the Ordinance did not result in a net negative economic impact for appellants, because "there is no inexorable loss to the landlord from having to deposit the security deposit in a losing arrangement." (Italics added.) In other words, landlords would not necessarily have to pay out more interest than they earned on the security deposits, because the Ordinance did not compel them to invest the deposits in accounts paying less than 5 percent interest. Indeed, as the trial court noted, landlords could invest the security deposit "in a higher risk venture, use it as working capital for the rental business, or use it for general personal or business cash flow purposes," constrained only by the obligation that, within a statutory period after the termination of the tenancy, the landlord had to pay the tenant an amount equal to the security deposit and interest, less permissible deductions.
It is undisputed that the Ordinance did not by its terms require landlords to invest the security deposits in the accounts that bore less than 5 percent interest for 16 months. Appellants argue that landlords were in reality forced to use those types of accounts, because only short-term, liquid investments permitted them to meet their statutory obligation to return security deposits within three weeks after the tenancy is terminated and the rental unit is vacated. (See Civ.Code, § 1950.5, subd. (g).) The trial court rejected this argument, stating: "Money is money. So long as the landlord has sufficient funds available to return the amount of the deposit, he or she can use the deposits as set forth above. There was no evidence that San Francisco landlords, or any meaningful portion of them, are so cash poor that they cannot return rental deposit amounts upon short notice without access to the precise funds originally deposited."
The court did not err. While appellants argue that the reason landlords keep sufficient funds in liquid, non-volatile investments is to make sure they can comply with their obligation to return security deposits to tenants, there was insufficient evidence to establish that assumption. The assertion by appellants' economic expert that landlords should keep the deposits in liquid accounts (and reference to a survey indicating they do) did not prove the underlying supposition that landlords had no other funds from which to satisfy the obligation to return tenant deposits *132 promptly. Similarly, while the individual, named plaintiffs invested the funds in deposit or money market accounts, it was not proven that this was compelled by the need to meet their legal obligations, much less by the Ordinance itself. Based on the record in this matter, the Ordinance did not condemn appellants to a loss of money even during the 16-month period appellants select.
Furthermore, in focusing on the 16-month period in which short-term, liquid investment vehicles paid less than 5 percent, appellants failed to show that landlords experienced a net economic loss over the time they rented out the real property, or over the 19 years the Ordinance was in effect.[8] To the contrary, the trial court found: "From the date of the enactment of the Ordinance and continuing for approximately 19 years, the prevailing rate on interest[-]bearing deposit accounts at traditional financial institutions available to landlords in San Francisco was in excess of 5%. During this period, a landlord could, but was not required to, place the security deposit in a deposit account at a market rate and earn enough interest to pay the tenant 5% and make a profit."
Substantial evidence supported this conclusion, as the City produced evidence that the overall average yield for taxable, retail, money-market funds was 5.14 percent for the period from January 1985 through July 2002. Even considering the transactional costs associated with maintaining an interest-generating account, as appellants urge us to do, there is no evidence that landlords experienced a net economic loss from the holding of the deposits.
Moreover, even if landlords were effectively forced to invest in bank or money market accounts, and we considered only the 16-month period when those accounts paid less than 5 percent interest, the landlords' loss was minimal. As the parties stipulated, for landlords who held the maximum permitted security deposit, the amount of the interest difference claimed by appellants for the 16-month period was no more than 0.47 percent of the landlord's annual gross rental income. Each affected landlord had to cover on average a shortfall of approximately $125. For appellant *133 Lockley, the shortfall for the 16-month period amounted to $281 for two buildings, while appellants Pacias and Evans "lost" just $51 and $33 respectively. While the parties debate whether this loss should be considered in the broader context of the landlord's gross rental revenue and other business expenses, these sums are small by either measure.
Offsetting this minimal out-of-pocket loss were economic benefits to the landlord in being able to hold the security deposit. As the trial court found: "By holding [the tenant's security deposit], the landlord secures certain obligations of the tenant, thereby avoiding potential costs of collection should such obligations be breached. Indeed, it is common sense to conclude that without such a deposit, many times landlords would have no hope of collecting from their tenants for the breach of obligations secured by the deposit. This gives the landlord an important potential economic benefit that also offsets the 5% interest cost to the tenant. Clearly, the fact that tenants get interest facilitates the taking of security deposits by landlords." The trial court was not unreasonable in drawing this conclusion.[9] Indeed, any landlord who viewed the burdens of the Ordinance to outweigh the benefits of holding the tenant's security deposit could simply return the deposit to the tenant and have no further obligation to pay the interest.
Appellants nevertheless contend that the Ordinance effects a taking according to the decision in Action Apartment, supra, 94 Cal.App.4th 587, 114 Cal.Rptr.2d 412. There, Santa Monica landlords were required to place tenant security deposits in an interest-bearing account at a federally-insured, financial institution, which paid between 0.5 percent and 1.5 percent interest. (Id. at pp. 595, 605, 114 Cal.Rptr.2d 412.) A 1999 ordinance required landlords to pay 3 percent on security deposits held for at least one year. (Id. at p. 595, 114 Cal.Rptr.2d 412.) Landlords sued, complaining inter alia that the ordinance was invalid under the takings clauses. The defendant's demurrer was sustained. (Id. at p. 597, 114 Cal.Rptr.2d 412.) On appeal, the court held that the demurrer should have been overruled, because the allegations stated a takings claim. (Id. at p. 621, 114 Cal.Rptr.2d 412.)[10]
In applying the economic impact factor of Penn Central, the appellate court in Action Apartment considered the landlords' allegation that banks had been paying up to 1.5 percent on tenant security deposits, so the requirement that landlords pay tenants 3 percent interest meant that, out of their own pockets, landlords were furnishing 50 percent to 83 percent of the *134 interest owed to tenants. (Action Apartment, supra, 94 Cal.App.4th at p. 605, 114 Cal.Rptr.2d 412.) Each landlord, on average, would pay $82.50 more for each rental unit over three years, for a loss of about $718 per landlord. (Id. at p. 606, 114 Cal.Rptr.2d 412.) By comparison, appellants argue, the Ordinance resulted in San Francisco landlords paying more than 60 percent of the interest due to tenants in the 16-month period where interest rates on liquid accounts dipped below 5 percent.
Action Apartment is distinguishable from the matter before us. Here, landlords were not required to place their tenants' security deposits into an account that bore interest below the rate which they had to pay the tenants. Accordingly, while the allegations in Action Apartment suggested that every moment of the three-year life of the Santa Monica ordinance (i.e., before the 3 percent rate might be adjusted under the terms of the ordinance) would result in an economic loss for Santa Monica landlords, there was no evidentiary showing in the instant case that the Ordinance compelled San Francisco landlords to lose any money at all. Based on that critical distinction, Action Apartment is not controlling.[11]
Appellants point out that the court in Action Apartment construed a loss of $718 per landlord as not de minimis, since "[a] small taking is still a taking." (Action Apartment, supra, 94 Cal.App.4th at p. 606, 114 Cal.Rptr.2d 412.) However, while a small taking is still a taking, a small loss is less likely to be a taking. Obviously, the size of the amount diverted by the regulation must be considered when determining the regulation's "economic impact." Here, the average loss per landlord was about $125 roughly one-sixth of the amount in Action Apartment. Moreover, where as here the economic impact is small or nonexistent, it becomes more difficult for appellants to demonstrate a taking based on the other two Penn Central factors to which we turn next.
b. Investment-backed expectations
The trial court ruled that the Ordinance did not interfere with appellants' investment-backed expectations as landlords, for two reasons. First, as to their expectations for the residential rental enterprise overall, the parties stipulated that the difference between 5 percent and prevailing money market rates during the 16-month period was not so great as to prevent appellants from earning a fair return or maintaining the fair market value of their property. Second, as to any investment expectations they might have had in regard to their tenants' security deposits, appellants presented no evidence of any investment-backed expectation that landlords would be able to keep the interest they might earn on the deposits. As the trial court observed: "given that the security deposits belong to the tenants, there can be no reasonable landlord expectation of a continued investment opportunity for this money."
Appellants respond with a passage from Action Apartment, in which the court asserted: "Landlords might have expected that, some day, they would have to pay security deposit interest to their tenants . . ., but they surely did not expect that the payments would exceed the interest paid by banks." (Action Apartment, supra, 94 Cal.App.4th at p. 606, 114 Cal. Rptr.2d 412, italics added.) As mentioned, *135 however, Action Apartment is distinguishable. There, the ordinance required landlords to invest tenant security deposits into funds that, since the inception of the ordinance, would pay landlords less interest than landlords had to pay to the tenants. Here, by contrast, nearly two decades passed under the Ordinance before the landlords' return on security deposits, even in money market accounts, was less than the 5 percent fixed rate. It is reasonable for landlords to foresee that some time in the course of their ownership of their residential rental property, at some point during the effective period of the Ordinance, the 5 percent they had to pay to tenants would exceed the return they would get on those funds if they placed the funds in a money market account.
In any event, Action Apartment was decided at the demurrer stage, where the allegations of the amended complaint were necessarily assumed to be true. Here, we review the decision of the court after a trial. Appellants in this matter failed to present evidence that the landlords' reasonable investment-backed expectations, under the circumstances, did not contemplate the possibility that they would have to make up the shortfall if they chose to keep tenant security deposits in money market accounts. Accordingly, appellants failed to establish that the Ordinance operated contrary to their investment-backed expectations.
c. Character of governmental action
Lastly, we turn to the nature of the Ordinance. "A `taking' may more readily be found when the interference with property can be characterized as a physical invasion by government . . . than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good." (Penn Central, supra, 438 U.S. at p. 124, 98 S.Ct. 2646.)
The Ordinance obviously does not physically invade appellants' property. To the extent it touches upon appellants' property interests, it operates as part of a regulatory scheme adjusting the benefits and burdens of economic life between landlords and tenants.
The trial court noted "the following adjustments to economic life" meted out by the Ordinance within the context of the broader statutory and regulatory arrangement for security deposits: "the tenant gives his or her money to the landlord as a deposit to secure tenancy obligations. The landlord gets to use this money as he or she sees fit. The landlord pays a reasonable cost of funds for that privilege, which costs do not impact the value of the rental business. The tenant gets a reasonable rate of return on this deposit [as suggested by the average return on money market funds between January 1985 to July 2002 being in excess of 5 percent], which eases the burden of giving the money to the landlord and effectively lowers rent in San Francisco by giving tenants some return on their security deposits which if not deposited with the landlord, might be available to earn income. This scheme must be seen as a regulatory adjustment of the benefits and burdens of the economic life of landlords and tenants that rationally promotes the common good of both." We add that the common good of landlords and tenants in San Francisco also provides a benefit for the public, enjoyed by appellants as members of the public as well. (See San Remo, supra, 27 Cal.4th at pp. 675-676, 117 Cal.Rptr.2d 269, 41 P.3d 87 [advantage hotel owners receive from ordinance requiring fee for hotel conversion "lies not in a precise balance of burdens and benefits accruing to property from a single law, or in an exact equality of burdens *136 among all property owners, but in the interlocking system of benefits, economic and noneconomic, that all the participants in a democratic society may expect to receive, each also being called upon from time to time to sacrifice some advantage, economic or noneconomic, for the common good"].)
Appellants again refer us to Action Apartment, which in this regard found that the Santa Monica ordinance, in requiring landlords to pay interest to tenants at a fixed rate regardless of market conditions, was remote from the public welfare and was apparently designed only "`to transfer wealth from landlords . . . to tenants.'" (Action Apartment, supra, 94 Cal. App.4th at p. 606, 114 Cal.Rptr.2d 412.) The Santa Monica ordinance was "quite unusual," the court opined, because it treated "private landlords like banks" but did not allow them to lower interest rates during an economic downturn. (Id. at pp. 606-607, 114 Cal.Rptr.2d 412.) Furthermore, the ordinance took "an investment opportunity provided by banks the payment of interest on deposited funds and imposed it on private landlords." (Id. at p. 607, 114 Cal.Rptr.2d 412.) For these reasons, the character of the city's action in implementing the ordinance contributed to the court's conclusion that the landlords had stated a takings claim. (Id. at pp. 606-608, 114 Cal.Rptr.2d 412.)
While appellants contend that San Francisco's Ordinance is "obviously" the same as the Santa Monica ordinance, it obviously is not. As we have discussed, the Santa Monica ordinance required landlords to place security deposits into funds that paid interest at a rate less than what landlords had to pay to their tenants, while the San Francisco Ordinance did not. Thus, the ordinance in Santa Monica might be said to have forced individual landlords to bear more than their fair share of a supposed public obligation to assure that tenants obtain a reasonable rate of interest on their security deposits. The same conclusion cannot be drawn in the matter before us, in light of the freedom San Francisco landlords had to invest the funds in accounts with a higher return, as well as the evidence that the fixed 5 percent rate was less than the historic rate of return available to landlords even on money market accounts.
Moreover, perhaps because of the demurrer context of Action Apartment, the court in Action Apartment focused on the burden of the ordinance to landlords and its benefit to tenants, and whether it thought this adjustment of economic benefit and burden was fair. The appropriate question for the third prong of a regulatory takings analysis, however, is the nature rather than the merit of the governmental action, and particularly whether the regulation is closer to a governmental adjustment of economic benefits and burdens for the public good when viewed in the broader context of economic life than to a physical invasion of property. At the trial in the matter before us, appellants failed to establish that the nature of the Ordinance was offensive to the Takings Clause, or that it placed an undue burden upon landlords in order to promote a public purpose.
Given the small or nonexistent economic loss occasioned by the Ordinance, appellants' failure to prove that this loss was inconsistent with reasonable investment-backed expectations of San Francisco landlords, and the nature of the Ordinance as part of a broader scheme of allocating economic benefits and burdens between landlords and tenants for the public good, the trial court did not err in concluding that the Ordinance did not effect a regulatory taking under Penn Central.
*137 B.-C.[***]
III. DISPOSITION
The judgment is modified to require appellants to provide notice of the judgment on their website. The requirement of notice by standard mail is stricken. As so modified, the judgment is affirmed. Each party shall bear its own costs on appeal.
We concur. JONES, P.J., and GEMELLO, J.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II.B. and II.C.
[**] Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] The Lucas court acknowledged the difficulty of employing this test in other factual circumstances. For instance, what of a regulation depriving an owner of beneficial use of 90 percent of his property? Has the owner lost all beneficial use of a portion of the property or merely experienced a diminution in the value of the entire parcel? (Lucas, supra, 505 U.S. at pp. 1016-1017, fn. 7, 112 S.Ct. 2886.)
[2] Civil Code section 1950.5 implicitly authorizes security deposits by explicitly placing limitations on them. A security deposit "shall be held by the landlord for the tenant who is party to the lease or agreement." (Civ.Code, § 1950.5, subd. (d).) If the tenancy is terminated, the security deposit must be returned within three weeks after the tenant vacates the premises. (Civ.Code, § 1950.5, subd. (g).) The landlord may claim amounts from the deposits that are reasonably necessary for certain purposes, including compensation for a tenant's default in payment of rent or damages to the premises. (Civ.Code, § 1950.5, subds.(b), (e).)
[3] It could be said that landlords have a property interest in the security deposit, in the sense that they may have a contractual right to hold the funds during the tenancy as security against tenant default and may use the deposit to defray costs of tenant damages. (Civ.Code, § 1950.5, subds.(b), (d).) This property interest, however, is not alleged by appellants to be affected by the Ordinance, and is therefore immaterial to our analysis.
[4] Thus, the cases on which appellants rely Brown, supra, 538 U.S. 216, 123 S.Ct. 1406, Webb's Fabulous Pharmacies, Inc. v. Beckwith (1980) 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358 (Webb's), and Schneider v. California Dept. of Corrections (9th Cir.2003) 345 F.3d 716 (Schneider) are not helpful to their cause. Those cases indicate that governmental diversion of the interest accruing on a fund or account can be a taking for which just compensation may be due to the one who owns the interest as a result of his or her ownership of the principal in the fund or account. (Brown, supra, at p. 240, 123 S.Ct. 1406["[a] law that requires that the interest on . . . funds be transferred to a different owner for a legitimate public use . . . could be a per se [(italics omitted)] taking requiring the payment of `just compensation' to the client [owner of the funds]" (Italics added.)]; Webb's, supra, at p. 162, 101 S.Ct. 446 [government appropriation of interest on interpleader fund was a taking of the private property of the owner of the principal]; Schneider, supra, at pp. 719-720 [government appropriation of interest on funds owned by prison inmates in inmate trust accounts was a per se taking where inmates owned the principal and the interest].) Here, appellants do not own the principal security deposit (Civ.Code, § 1950.5) or the interest.
[5] The parties debate the precedential effect of Eastern Enterprises. Because the five justices finding the regulation unconstitutional did not agree on a single rationale, the majority generated no binding precedent. (Franklin Cty. Conv. Facilities v. American Premier (6th Cir.2001) 240 F.3d 534, 552 [in deciding whether retroactivity of CERCLA violates due process, "Eastern Enterprises has no precedential effect . . . because no single rationale was agreed upon by the Court."].) On the other hand, another set of five justices agreed that the takings claim lacked merit because the Takings Clause did not apply, a view subsequently perceived by some courts as binding precedent. (Commonwealth Edison, supra, 271 F.3d at p. 1339; see also Kitt, supra, 277 F.3d at pp. 1336-1337 [liability to pay tax is not a taking because it is the mere imposition of an obligation to pay money].) While appellants argue that the Ninth Circuit Court of Appeals rejected this conclusion in Esplanade Properties, LLC v. City of Seattle (9th Cir.2002) 307 F.3d 978, 980-981 (Esplanade) and Madison v. Graham (9th Cir.2002) 316 F.3d 867, 870 (Madison), their argument is misplaced. Esplanade and Madison concerned the rule that a substantive due process claim cannot exist if the right allegedly infringed is protected by the Takings Clause. The Ninth Circuit concluded that Eastern Enterprises did not undermine this rule, because Justice Kennedy's fifth vote found that the right asserted was not protected by the Takings Clause. In any event, neither Esplanade nor Madison considered whether the Takings Clause applies to a regulation that only requires payment of money.
[6] We note that the application of the Takings Clause to regulations mandating only the payment of money leads to odd results. The Takings Clause does not prohibit government from taking property, but merely requires the government to pay a just price for doing so. (Brown, supra, 538 U.S. at p. 235, 123 S.Ct. 1406.) Applying the Takings Clause to regulations that merely require the payment of money is like saying the government can take money, but only if it pays it back. It is far more logical to conclude that a regulation of this sort might be declared invalid as violative of due process, than that the government should give back the money it legitimately took. (See Homebuilders Assn. v. Tualatin Hills Park (2003) 185 Or.App. 729, 62 P.3d 404, 411.) To similar effect is United States v. Sperry Corp. (1989) 493 U.S. 52, 110 S.Ct. 387, 107 L.Ed.2d 290 (Sperry), in which the court concluded that a deduction of a percentage of an award plaintiff received from the Iran-United States Claims Tribunal was not a taking, but merely a reasonable user fee designed to reimburse the United States for expenses incurred in connection with the arbitration of claims before the tribunal. (Id. at pp. 60-61, 110 S.Ct. 387.) The court rejected the plaintiff's argument that the fee was akin to a permanent physical occupation of its property and therefore a per se taking: "It is artificial to view deductions of a percentage of a monetary award as physical appropriation of property. Unlike real or personal property, money is fungible. No special constitutional importance attaches to the fact that the Government deducted its charge directly from the award rather than requiring [plaintiff] to pay it separately. If the deduction in this case were a physical occupation requiring just compensation, so would be any fee for services, including a filing fee that must be paid in advance. Such a rule would be an extravagant extension of [the physical takings doctrine established in] Loretto [v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868]." (Sperry, supra, at p. 62, fn. 9, 110 S.Ct. 387.) Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 876, 50 Cal.Rptr.2d 242, 911 P.2d 429 (Ehrlich), on which appellants rely, applied a takings analysis to a requirement that a landowner pay a one-time exaction fee as a condition for the development of real property. An exaction fee is not at issue here. Nor have appellants shown that the Ordinance would fail the standard set forth in Ehrlich.
[7] Nor did it deprive them of all beneficial economic use of any other property within the meaning of the Takings Clause. While Brown and Schneider, on which appellants rely, invoked a per se analysis as to the diversion of all interest from an identified account, those cases are inapposite for reasons already discussed. (See fn. 4, ante.) Of course, the mandatory payment of money by appellants out of their own pocket does constitute an appropriation of that property. Thus, we see the somewhat absurd result of applying a Takings Clause analysis to the payment of money: all payments of money eliminate the payor's interest in the property. In order for the application of the Takings Clause to payments of money to make sense, we must remember Justice Kennedy's reservation in Eastern Enterprises that the payment must be in some way linked to real or personal property. As a result, our analysis focuses on how the payment affects the payor's real property interest. (See fn. 7, ante.)
[8] The City contends we must consider interest rates over the entire 19-year history of the Ordinance to evaluate its economic impact, because looking solely at the 16-month period in which interest rates on short-term, liquid accounts were less than 5 percent violates the "parcel as a whole" doctrine, as applied in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (Tahoe-Sierra). The City misreads Tahoe-Sierra somewhat in this regard. The parcel as a whole doctrine requires the court to examine the entirety of the subject parcel and its potential uses in determining the effect of the regulation. (See Tahoe-Sierra, supra, at pp. 326-327, 122 S.Ct. 1465.) In Tahoe-Sierra, owners of undeveloped parcels challenged a 32-month building moratorium, arguing that it deprived them of all economic use of their property for 32 months. (Id. at pp. 314, 320, 331, 122 S.Ct. 1465.) The court rejected the landowners' attempt to define their property interest by severing the 32-month period from their fee simple estate, because defining their property interest "in terms of the very regulation being challenged is circular" as "every delay would become a total ban." (Id. at p. 331, 122 S.Ct. 1465.) In line with the "parcel as a whole doctrine," the court observed, the landowner's property interest must be defined by its true temporal aspect as well as its geographic dimensions, and a temporary prohibition on economic use does not render valueless a fee simple estate. (Ibid.) The holding in Tahoe-Sierra does not directly support the City's argument that appellants cannot sever the 16-month period from the 19-year history of the Ordinance; although it does confirm that appellants cannot sever the 16-month period from the amount of time they have owned their property. Tahoe-Sierra may also support the City's argument that appellants' out-of-pocket loss must be viewed in the context of their rental business as a whole.
[9] The trial court also considered the cost to a landlord of having to borrow money for the purposes to which landlords could put tenant security funds, taking judicial notice that landlords would have to pay more than 5 percent interest if they borrowed such funds on credit cards. Appellants contend the landlord's cost of borrowing funds is immaterial and, besides, landlords could borrow money on more favorable rates than those offered by credit cards. For this and other reasons discussed post, appellants argue that the court erred in taking judicial notice of credit card rates. We need not consider these issues, since we uphold the judgment for reasons other than the cost of funds.
[10] Action Apartment held that the Santa Monica ordinance was a taking under both the Penn-Central multi-factor test and a test by which government action was deemed a taking if it failed to substantially advance a legitimate government interest (Agins v. Tiburon (1980) 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106). We do not address this latter theory, since the United States Supreme Court subsequently rejected the substantial advancement test in Lingle, supra, 125 S.Ct. at page 2085.
[11] Because of the distinction between Action Apartment and the matter at hand, the trial court, contrary to appellants' assertions, was not obligated to follow Action Apartment under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.
[***] See footnote *, ante.
|
877 F.2d 1114
William MARIANI-GIRON, et al., Plaintiffs, Appellees,v.Heriberto ACEVEDO-RUIZ, etc., et al., Defendants, Appellants.
No. 88-1588.
United States Court of Appeals,First Circuit.
Heard Oct. 31, 1988.Decided June 23, 1989.
Paul B. Smith, Jr., San Juan, P.R., with whom Hector Rivera Cruz, Secretary of Justice, Rafael Ortiz Carrion, Sol. Gen., Jose Hamid Rivera and Saldana, Rey, Moran & Alvarado, Hato Rey, P.R., were on brief, for defendants, appellants.
Frank Rodriguez Garcia, Ponce, P.R., for plaintiffs, appellees.
Before CAMPBELL, Chief Judge, COFFIN and TORRUELLA, Circuit Judges.
LEVIN H. CAMPBELL, Chief Judge.
1
Plaintiff William Mariani Giron brought this action under 42 U.S.C. Sec. 1983 (1982) alleging that the defendant, Heriberto Acevedo Ruiz, the director of Puerto Rico's Commonwealth Civil Defense Agency ("CDA"), violated his rights under the First and Fourteenth Amendments in discharging him from his position as a zone coordinator for the CDA. After the district court denied Acevedo Ruiz's motion for summary judgment on the ground of qualified immunity, Acevedo Ruiz filed this interlocutory appeal. See Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985); Unwin v. Campbell, 863 F.2d 124, 130-33 (1st Cir.1988). We hold that Acevedo Ruiz is entitled to qualified immunity and reverse the district court.
2
On April 18, 1980, Mariani Giron, an active member of Puerto Rico's New Progressive Party ("NPP"), was appointed zone coordinator of the Ponce region for the CDA which encompasses 16 municipalities. In the November 1984 gubernatorial election in Puerto Rico, the Popular Democratic Party ("PDP") defeated the NPP. Shortly thereafter, the newly elected Governor appointed Acevedo Ruiz, a member of the PDP, as director of the CDA. In a letter dated March 28, 1985, Acevedo Ruiz discharged Mariani Giron, stating as the reason for the discharge only that the position of CDA zone coordinator was classified as a "trust or confidence" position under P.R.Laws Ann. tit. 3, Secs. 1349-1351 (1978). On April 11, 1985, Mariani Giron's former position was filled by a member of the PDP.
3
Mariani Giron subsequently brought this action alleging that Acevedo Ruiz violated his rights under the First and Fourteenth Amendments in discharging him from his position.1 Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). See generally Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236 (1st Cir.1986) (en banc), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987). Seeking damages and reinstatement to his former position, Mariani Giron alleged he was terminated because of his affiliation with the NPP. After a hearing, the district court granted Mariani Giron's motion for a preliminary injunction of reinstatement. This court affirmed the issuance of the preliminary injunction. Mariani Giron v. Acevedo Ruiz, 834 F.2d 238 (1st Cir.1987).2 Acevedo Ruiz then moved in the district court for summary judgment, arguing that he was entitled to qualified immunity from Mariani Giron's claim for damages. The district court denied this motion, and Acevedo Ruiz filed this interlocutory appeal.
I.
4
A threshold issue is whether this appeal is within our appellate jurisdiction. A court of appeals lacks power to entertain an appeal from a party who is not specified in the notice of appeal. Torres v. Oakland Scavenger Co., --- U.S. ----, 108 S.Ct. 2405, 2408-09, 101 L.Ed.2d 285 (1988); Kaiser v. Armstrong World Industries, Inc., 872 F.2d 512 (1st Cir.1989); Gonzalez Vega v. Hernandez Colon, 866 F.2d 519, 519 (1st Cir.1989); Santos Martinez v. Soto Santiago, 863 F.2d 174, 175 (1st Cir.1988). See Fed.R.App.P. 3(c). In this case, the caption of the notice of appeal dated May 18, 1988, identified defendants as follows:
HERIBERTO ACEVEDO-RUIZ, ET AL
Defendants
5
The body of the notice provided in pertinent part,
6
Notice is given that defendants hereby appeal to the United States Circuit Court of Appeals for the First Circuit from the order entered in this action on April 19, 1988, denying a motion for summary judgment filed by defendants on February 22, 1988. Said summary judgment motion is based on defendants' assertion of the qualified immunity of public officials, Mitchell v. Forsyth, 472 U.S. 511 [105 S.Ct. 2806, 86 L.Ed.2d 411] (1985).
7
There were a total of three defendants in the action below: Heriberte Acevedo Ruiz; his wife, Mabel Perez Acevedo; and "their Conjugal Partnership." Neither the caption nor the body of the notice of appeal mentioned the wife or the partnership.
8
Because of this lack of specificity, Mariani Giron has moved to dismiss the appeal for lack of appellate jurisdiction. While we apparently lack jurisdiction over his wife and their conjugal partnership, as they are nowhere specified in the notice of appeal,3 we do have jurisdiction over Acevedo Ruiz. The presence of his name in the caption, coupled with the statement in the body of the notice of appeal that "defendants hereby appeal," which incorporated by reference those defendants named in the caption, satisfied as to him the specificity requirement of Rule 3(c); we cannot say that Acevedo Ruiz "was never named or otherwise designated, however inartfully, in the notice of appeal" even though the "ET AL" and the plural use of "defendants" left us in doubt as to the remaining defendants seeking to appeal. Torres, 108 S.Ct. at 2409. This court has implicitly held on previous occasions that it has appellate jurisdiction over a party named in the caption of the notice of appeal. Marin-Piazza v. Aponte-Roque, 873 F.2d 432 (1st Cir.1989); Santos Martinez v. Hernandez Colon, 863 F.2d 174 (1st Cir.1988); Kaiser v. Armstrong World Industries, Inc., 872 F.2d 512, 514 (1st Cir.1989). In these three cases, the intent to appeal of the party named in the caption was manifest from a reading of the body of the notice of appeal and the caption. See also Ford v. Nicks, 866 F.2d 865, 869-70 (6th Cir.1989) (ruling, without discussion, that a party named only in the caption had been specified as a party taking an appeal); Cotton v. U.S. Pipe & Foundry Co., 856 F.2d 158, 160-63 (11th Cir.1988) (court has jurisdiction over parties "named on face of the appeal"). While each situation must be looked at separately, we disagree with the blanket generalization in Allen Archery, Inc. v. Precision Shooting Equipment, Inc., 857 F.2d 1176, 1177 (7th Cir.1988), that "naming [appellant] in the caption ... will not do." The caption should be looked at as a part of the entire notice. Since the present notice, including its caption, names as appellant the principal defendant, Acevedo Ruiz, we hold that we have jurisdiction over Acevedo Ruiz's appeal.
II.
9
As a general rule, government officials performing discretionary functions are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (citations omitted). A court must look to the "objective legal reasonableness of an official's conduct, as measured by reference to clearly established law," to determine whether the doctrine of qualified immunity applies. Id. See also Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Mariani Giron's section 1983 action arises under the First Amendment which prohibits the patronage discharge of public employees except where "party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, 445 U.S. at 518, 100 S.Ct. at 1294. See also Elrod, 427 U.S. at 367-68, 96 S.Ct. at 2686-87. Acevedo Ruiz argues that he is entitled to qualified immunity because, at the time of Mariani Giron's discharge in March 1985, the law was not clearly established that political affiliation was not an appropriate requirement for the effective performance of the position of CDA zone coordinator for the Ponce region.
10
This court has recently described the qualified immunity inquiry in the context of political firings which occurred in 1985:the question ... is "whether [at the time of dismissal] it was clearly established that employees in the particular positions at issue, in light of the responsibilities inherent in those positions, were protected from patronage dismissal." ... [A] defendant enjoys "qualified immunity" as long as the job in question "potentially concerned matters of partisan political interest and involved at least a modicum of policymaking responsibility, access to confidential information, or official communication." ... And, we have said that "defendants will normally enjoy qualified immunity from damage liability in upper-level, managerial-type job dismissal cases, cases where the jobs in question are not purely technical or scientific in nature."
11
Figueroa-Rodriguez v. Lopez-Rivera, 878 F.2d 1478, 1480 (1st Cir. 1989) (en banc) (emphasis in original) (quoting Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1259 (1st Cir.1987), and Juarbe-Angueira v. Arias, 831 F.2d 11, 14 (1st Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1222, 99 L.Ed.2d 423 (1988)). See also Figueroa-Rodriguez v. Aquino, 863 F.2d 1037 (1st Cir.1988).
12
Applying these criteria to the instant case, we do not think it was clearly established in March 1985 that political affiliation was not a requirement for Mariani Giron's job. The Puerto Rico Civil Defense Act states that it is the public policy of the Commonwealth to provide
13
all necessary measures for the protection and safety of the Puerto Rican people in any situation of emergency or disaster that may affect them. To such ends, the Government of the Commonwealth of Puerto Rico contemplates to keep in constant preparation a well-trained and orientated organization which, in case of a grave abnormality in our Island, knows how to and can act rapidly and effectively to ward off evil.
14
P.R.Laws Ann. tit. 25, Sec. 171a (1979). To accomplish this vital task, the Act created the CDA which is attached to the Governor's Office. P.R.Laws Ann. tit. 25, Sec. 171c. The CDA is headed by the Commonwealth Director who is appointed by and serves at the pleasure of the Governor. P.R.Laws Ann. tit. 25, Sec. 171d. The Commonwealth Director is empowered to prescribe regulations and adopt contingency plans in order to protect lives and property in the event of natural or man-made disasters. P.R.Laws Ann. tit. 25, Secs. 171e, 171f, 171n. Under the Act as well as these regulations and plans, the CDA is given wide-ranging powers to allow it to respond quickly and effectively to disasters and in coordinating rescue operations. P.R.Laws Ann. tit. 25, Secs. 171e(G), 171j, 171k, 171l 171m. The Act also grants the Governor sweeping powers "in situations of emergency or disaster" which "[h]e may delegate to the Commonwealth Director and establish subsequent delegations of any authority conferred upon him by this chapter." P.R.Laws Ann. tit. 25, Secs. 171q, 171s, 171t.
15
As a zone coordinator for the Ponce region, Mariani Giron was at the fifth level of CDA's organizational structure.4 According to Mariani Giron's testimony at the preliminary injunction hearing, his duties as a zone coordinator were as follows:5
16
A. Administrative Functions. Mariani Giron basically directed, organized and developed Civil Defense programs for the municipalities in his zone. This included 1) taking part in developing and executing "emergency plans pursuant to needs;" 2) dealing in "communications;" 3) submitting reports regarding a program for radiological defense; 4) coordinating the attendance of educational programs by local directors, volunteers and other personnel; 5) possibly supervising indirectly the municipalities of the zone in the context of directing, organizing and developing Civil Defense programs.
17
B. Natural and Nuclear Disasters. Mariani Giron prepared, coordinated and evaluated "operational plans at the zone level." He organized and developed practice rehearsals and drills to test the effectiveness and adequacy of the plans and resources. He also held meetings with the Zone Emergency Committees and the municipalities "in order to hand out instructions and counseling in accordance with the established norms."
18
C. Operations. Mariani Giron organized, directed and coordinated operations at the zone level pursuant to established policies adapted to specific situations. He coordinated the assignment, delegation and distribution of jobs, tasks, and assignments to agencies, individuals, associations and institutions in emergency operations, and also coordinated the utilization of human, fiscal and material resources. He organized and coordinated the participation of state and local agencies in order to provide essential services and lessen the loss of life and property and uneasiness.
19
D. Communications. Mariani Giron recommended and promoted studies of communication facilities and promoted the installation of radiotelephone systems, or microwave and other means to be used in critical situations and emergencies. He also prepared and submitted communications plans.
20
In addition, under P.R. Laws Ann. tit. 25, Sec. 171p, Mariani Giron, as a zone coordinator, supervised and advised the municipal civil defense directors in his region regarding their responsibility to organize and administer the Voluntary Civil Defense Corps for each municipality.
21
In our view, the CDA's zone coordinator for the Ponce region holds a job that "potentially concern[s] matters of partisan political interest...." Figueroa-Rodriguez v. Lopez-Rivera, 878 F.2d at 1480 (emphasis in original). It is an upper management level position in an agency required to discharge vital responsibilities in concert with state and local municipalities and agencies, and whose performance during emergencies will attract great public attention and scrutiny. Rather than being "purely technical or scientific in nature," the job involves "at least a modicum of policymaking responsibility, access to confidential information, or official communication." Id. (emphasis in original). As a zone coordinator, Mariani Giron was the Commonwealth Director's representative in the Ponce region. According to his own testimony, he was the "voice" of the CDA's Commonwealth Director in the Ponce region. Mariani Giron also testified that his inherent duties in some part involved developing and executing emergency plans, as well as preparing, coordinating and evaluating "operational plans at the zone level." Although his duties were in large measure limited to coordinating and executing previously established regulations and policies, he had the authority to organize, direct and coordinate operations at the zone level pursuant to established policies adapted to specific situations, thus potentially giving him leeway when confronted with unforeseen emergencies. Finally, while not determinative in deciding whether Acevedo Ruiz is entitled to qualified immunity, we give "some deference" to the fact that the position of zone coordinator was one of "trust or confidence" under the Puerto Rico Public Service Personnel Act, P.R. Laws Ann. tit. 3, Secs. 1349-1351. Figueroa-Rodriguez v. Lopez-Rivera, 878 F.2d at 1481; Jimenez Fuentes, 807 F.2d at 246.
22
To be sure, the CDA is a public safety agency and presumably not "political" in the traditional sense of the word.6 Plaintiff, however, had been an active member of the NPP when the previous Governor, a member of the NPP also, had appointed him. The job of CDA zone coordinator "potentially concern[s] matters of partisan political interest" in the same sense that the zone fire chiefs in Figueroa-Rodriguez v. Lopez-Rivera, 878 F.2d at 1484, held such jobs:
23
High level officials of major service-oriented departments in municipal and state government must adequately take into account competing public needs, matching them with available resources. They must react with sensitivity to anticipated, or actual, public criticisms of their decisions--all of which is to say that they have politically sensitive jobs. As the court in Tomczack v. City of Chicago, 765 F.2d 633 (7th Cir.1985) recognized, to believe that a high official in a (technical-sounding) water department, or sewer authority, parks department, or similar activity need not possess these qualities is to fail to understand the realities of local political life. Of course, we recognize that a fire department, like a police department, is an agency that is mostly concerned with public safety and law enforcement. But, we do not believe that fact alone a sufficient distinction to make a difference, at least not in respect to quite high officials who must respond sensitively to the public, and therefore take account of the public's perceptions of the manner in which the department fulfills its responsibilities.
24
Because this reasoning applies with equal force to the CDA's zone coordinators, we cannot say it was clearly established at the time of Mariani Giron's discharge that the position of CDA zone coordinator was not one of "those upper level management positions that a newly elected governor must constitutionally be allowed the option of filling with like-minded colleagues if meaning is to be given to the electoral mandate." Figueroa-Rodriguez v. Aquino, 863 F.2d at 1041. See also Juarbe-Angueira, 831 F.2d at 13-14.
25
Our view that the law did not clearly prohibit Mariani Giron's discharge is strongly supported by this court's opinion in Cordero v. De Jesus-Mendez, 867 F.2d 1 (1st Cir.1989).7 In Cordero, we held that the defendant, the Mayor of the Municipality of Moca, Puerto Rico, did not violate the plaintiff's First Amendment rights in discharging him from his job as the municipality's civil defense director given the policymaking nature of the job.8 Id. at 12-13. This ruling, regarding a position that is comparable to the one at issue in the instant case,9 bolsters Acevedo Ruiz's claim to qualified immunity. If the discharge of a municipal civil defense director is not prohibited under current legal standards, it cannot be said that under the legal standards existing in March 1985 Mariani Giron's discharge was clearly prohibited. See also Juarbe-Angueira, 831 F.2d at 16 (collecting cases holding defendant to be entitled to qualified immunity).
26
We consequently hold that the district court erred in not granting Acevedo Ruiz's motion for summary judgment on the ground that he was entitled to qualified immunity from damages in Mariani Giron's section 1983 action.
27
Reversed.
28
TORRUELLA, Circuit Judge (concurring in part; dissenting in part).10
29
I concur in Part I of this decision but respectfully dissent as to the balance of the opinion.
30
I am forced to dissent not only because I am of the view that no reasonable person could conclude that "party affiliation is an appropriate requirement for the effective performance of the public office [here] involved," Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980), that of a fifth level employee engaged in non-partisan civil defense activities, but more specifically because no reasonable person would have concluded that discharging this office holder "does not violate clearly established statutory or constitutional rights." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
31
As the majority acknowledges in a footnote, ante at p. 1118 n. 6, it is a crime under the law of Puerto Rico for any person who, "[b]eing an employee of any civil defense organization participates in politico-partisan activities and exerts political pressure while in the discharge of his work." 25 L.P.R.A. Sec. 171y(d). If appellee's position is subject to such specific partisan prohibitions, how could one conclude that party affiliation is an appropriate requirement for the effective performance of his office? How can partisan considerations even be of potential concern under these circumstances?
32
By its decision today, this court has politicized a position which was deliberately intended by the Legislature of Puerto Rico to be non-partisan.
33
I dissent.
1
Joining Mariani Giron as plaintiffs were his wife, Iris Myrta Saes, and "their Conjugal Partnership." In addition, the complaint named not only Acevedo Ruiz as a defendant but also named Acevedo Ruiz's wife, Mabel Perez Acevedo, and "their Conjugal Partnership" as defendants
2
Our opinion affirming the issuance of the preliminary injunction does not control our resolution of the issue of qualified immunity raised on this appeal. Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1042 n. 6 (1st Cir.1988); Goyco de Maldonado v. Rivera, 849 F.2d 683, 686 (1st Cir.1988)
3
Whether we have jurisdiction over Acevedo Ruiz's wife and the conjugal partnership is immaterial since they had no personal involvement in the alleged illegal conduct; they were purportedly named as defendants because, according to the complaint, "[a]ny judgment handed down by [the district court] for plaintiffs will have to be executed on the property belonging to the Conjugal Society Acevedo-Perez...." Their liability for damages is thus wholly derivative of an award of damages being entered against Acevedo Ruiz
4
The record indicates that the chain of command above Mariani Giron was 1) the Governor; 2) the Commonwealth Director of the CDA; 3) the Assistant Commonwealth Director; and 4) the Assistant Director of Operations
5
Unlike many of the political firing cases which have reached this court, see, e.g., Mendez-Palou, 813 F.2d at 1260, the record does not contain the plaintiff's official job description, although the record does contain the official job description of plaintiff's predecessor. At the hearing on plaintiff's motion for a preliminary injunction, Mariani Giron testified as to how the duties he performed as zone coordinator compared to the duties described in his predecessor's job description. In our analysis of the qualified immunity question in this case, we adopt Mariani Giron's version of his inherent job duties, resolving any ambiguity regarding those duties in his favor. See Figueroa-Rodriguez v. Aquino, 863 F.2d at 1041 (although some facts in dispute regarding plaintiff's job responsibilities, defendant was entitled to qualified immunity under any version of the evidence)
6
Indeed, the Puerto Rico Civil Defense Act makes it a misdemeanor for any person who, "[b]eing an employee of any civil defense organization, participates in politico-partisan activities and exerts political pressure while in the discharge of his work." P.R.Laws Ann. tit.25, Sec. 171y(d)
7
In his brief, Mariani Giron cites several decisions of the Supreme Court of Puerto Rico to support his argument that the federal Constitution clearly prohibited his discharge. While we will consider these decisions for their persuasive effect, "they are not conclusive as to the state of the law when [plaintiff] was fired" as they "go further than do most circuit and district court interpretations of Elrod-Branti in refusing to allow political firings at the higher levels of government." Rodriguez Rodriguez v. Munoz Munoz, 808 F.2d 138, 142 (1st Cir.1986). See also Juarbe-Angueira, 831 F.2d at 14
8
Under the Puerto Rico Civil Defense Act, each municipality in the Commonwealth is to establish a "Municipal Civil Defense Agency" administered by a municipal director appointed by the Mayor "in consultation with the Commonwealth Director." Each municipal agency is to prepare contingency plans in the event of a disaster, assuring that such plans are in accordance with the CDA's contingency plans. The municipal agencies may also prescribe, subject to approval by the Commonwealth Director, regulations necessary for the civil defense of the municipality. P.R.Laws Ann. tit. 25, Sec. 171o
9
Although Mariani Giron testified at the preliminary injunction hearing that he had no direct authority over municipal civil defense directors, at least in one respect the zone coordinator has supervisory authority over municipal directors: "It shall be the responsibility of the Municipal Defense Director to organize and administer the Voluntary Civil Defense Corps subject to the supervision and advice of the Zone Director of the Commonwealth Agency." P.R.Laws Ann. tit. 25, Sec. 171p (emphasis added). (Accordingly to Mariani Giron's brief, "[t]he position was designated 'Zone Director' before 1977, when it was changed to 'Zone Coordinator'....")
10
I take note of the fact that this is the second interlocutory appeal of this case to this court. See Mariani Giron v. Acevedo Ruiz, 834 F.2d 238 (1st Cir.1987). I believe this practice of piece-meal interlocutory appeals should be discouraged, not only because it is an unnecessary drain on our limited judicial resources, but also because it places an undue burden upon an economically unequal litigant
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Case: 12-30630 Document: 00512101753 Page: 1 Date Filed: 01/04/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2013
No. 12-30630 Lyle W. Cayce
Summary Calendar Clerk
SHAWN MONAGHAN, Individually and on behalf of their minor children, on
behalf of G. R., on behalf of C. R., on behalf of K. M.; MELISSA MONAGHAN,
Individually and on behalf of their minor children, on behalf of G. R., on
behalf of C. R., on behalf of K. M.,
Plaintiffs-Appellants
v.
UNITED RENTALS (NORTH AMERICA), INC.,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:09-CV-00627
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiffs appeal from a summary judgment rendered in favor of
Defendant United Rentals (North America), Inc. (“United Rentals”) dismissing
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-30630 Document: 00512101753 Page: 2 Date Filed: 01/04/2013
No. 12-30630
Plaintiffs’ suit for personal injury arising out of a fall sustained on equipment
rented from United Rentals. Finding no error, we affirm.
Plaintiff Shawn Monaghan’s employer, Mechanical Insulation, Inc., rented
a scissor-lift from Defendant United Rentals. While using the scissor-lift to
install insulation materials, Plaintiff fell when a handrail failed, apparently
because of missing bolts. Scott Miley (“Miley”), the lead foreman and Plaintiff’s
supervisor, stated that he had inspected the lift on March 11, 2009, when it was
received from the Defendant, that it was in good condition, and that he found no
missing bolts in the handrail. Upon inspection, he signed a “Quality Condition
Report” to that effect.
Plaintiff’s accident happened on April 6, 2009, almost a month after the
employer received the lift. Miley testified that iron workers borrowed the lift for
“practically a month” and “apparently they altered it.”
The district court granted summary judgment for Defendant United
Rentals because no summary judgment evidence was produced indicating the lift
had defects when it left Defendant’s hands, and Defendant produced affirmative
evidence that it had no defects when delivered. As the lift was used by other
parties for nearly a month after Defendant relinquished control, no inference
arises that it was defective when delivered.
Further, while Plaintiff contends that the district court erred in granting
summary judgment based on the testimony of Miley because Miley is not
credible, the issue presented is not one of credibility, but rather of proof. No
evidence presented by Plaintiff contradicted the sworn testimony of Miley or the
Quality Condition Report signed by Miley at the time of delivery.
We agree with the district court that no genuine issue of material fact was
presented and summary judgment was proper. For the above reasons and the
reasons stated by the district court in its careful memorandum ruling of May 10,
2012, the district court’s judgment is AFFIRMED.
2
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54 F.3d 782
Zane B. Edgingtonv.Charles Megerman
NO. 94-3868
United States Court of Appeals,Eighth Circuit.
Jan 19, 1995
Appeal From: W.D.Mo., No. 93-CV-365
1
AFFIRMED.
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448 So.2d 435 (1983)
Barry Darnell WYSINGER, alias Barry Wysinger
v.
STATE.
6 Div. 838.
Court of Criminal Appeals of Alabama.
November 29, 1983.
Rehearing Denied January 31, 1984.
Certiorari Denied April 20, 1984.
*437 J.D. Terry and Michael C. Cornwell, Tuscaloosa, for appellant.
Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 83-515.
BOWEN, Presiding Judge.
On the night of the 21st of April, 1981, Walter Thomas was shot in the back while standing in a crowd of people. Barry Darnell Wysinger, the appellant, was indicted and convicted for his murder. Sentence was life imprisonment. Three issues are presented on appeal.
I
Wysinger asserts that the trial judge erred in not granting a mistrial based on the improper conduct of the prosecutor in cross examining defense witnesses. He argues that the prosecutor improperly questioned defense witness Cassandra Webb about a prior inconsistent statement which, in fact, did not exist and that the prosecutor improperly questioned defense witnesses about prior shooting incidents not supported by evidence.
A
The Inconsistent Statement
The record shows that Mrs. Webb never made any prior inconsistent statement. However, during his cross examination of Mrs. Webb, the prosecutor asked her if she had told the police that she heard Adell Abrams telling Wysinger not to shoot because there were too many people out there and that Wysinger was yelling that he did not give a damn. Mrs. Webb admitted that she talked to the police the night of the shooting but denied making any statement and denied making the specific statement the prosecutor attributed to her in his question. Mrs. Webb's testimony was elicited without objection.
State witness Adell Abrams did testify that she told Wysinger to "put the gun down. You will hurt somebody" and that he replied, "I am going to kill all those mother-_______." On cross examination by defense counsel she testified that she did not hear Wysinger say that he did not give a damn. Two other state witnesses corroborated Mrs. Abrams' testimony.
As part of his defense, Wysinger called a former Tuscaloosa police officer who stated on cross examination by the State that he investigated the homicide. He testified that Mrs. Abrams told him that she told Wysinger "to put the gun up. There was too many people around" and that Wysinger replied, "I don't give a damn" and started shooting.
B
The Other Shooting Incidents
The first witness for the defense was Shirley Wysinger, Wysinger's sister. On cross examination, Ms. Wysinger testified, without objection by defense counsel, that she had never seen Wysinger with a pistol and that she had never seen him shooting at street lights or signs, or carrying a pistol around the neighborhood or in his automobile. The prosecutor also questioned defense witness Cassandra Webb about this same matter and she also denied ever having seen Wysinger with a pistol.
On direct examination Wysinger denied owning a pistol or having one in his possession at the time of the homicide. On cross examination, Wysinger denied ever owning a pistol and testified in response to the prosecutor's questions that Otis Tubbs, his brother-in-law, had never talked to him about shooting at signs or shooting in front of his mother-in-law's house.
In rebuttal, the prosecution proved that, about one week prior to the killing, Curtis *438 Carpenter saw Wysinger in the area with a pistol shooting at a bus sign. To this testimony defense counsel interposed a general objection. This was the only objection to any of the testimony about the "prior shooting incidents." Mr. Carpenter testified that he stopped Wysinger from shooting and told him "that it was kind of dangerous for him to be firing firearms in front of kids like that."
The issue argued on appeal was first raised at trial when defense counsel requested a mistrial after both parties had rested their case. Defense counsel argued that, since the State had not introduced any evidence that Mrs. Webb had made a prior inconsistent statement and had proven only one prior shooting incident, the prosecutor's questions were without any factual basis and were not made in good faith.
After the trial judge denied the mistrial, defense counsel requested he instruct the jury that Mrs. Webb did not make any statement to the police. The judge found that defense counsel "should have objected to it at the time" and refused to instruct the jury that Mrs. Webb did not make any statement as that would constitute a "comment on a particular part of the evidentiary proceedings."
We find that, even if the prosecutor's conduct was improper, the extreme remedy of a mistrial was not required. "It is unprofessional conduct to ask a question which implies the existence of a factual predicate which the examiner knows he cannot support by the evidence." Young v. State, 363 So.2d 1007, 1012 (Ala.Cr.App. 1978); Bezotte v. State, 358 So.2d 521, 525 (Ala.Cr.App.1978). Both of those cases involved questions about prior convictions. Young involved the use of prior convictions about which the prosecutor continued to question the defendant when he had no legal evidence of such convictions, knew he could not support them by evidence, and had been instructed by the trial court on several occasions to cease going into the area of prior convictions. In Bezotte, the youthful offender conviction was inadmissible and the prosecutor had been warned to avoid its use. In both of those cases, the prosecutor's conduct was in violation of the trial judge's instructions.
Laying prejudicial allegations before the jury "by dint of cross-examination without being prepared to prove them is generally regarded as reversible error." United States v. Brown, 519 F.2d 1368, 1370 (6th Cir.1975). It is improper for the prosecutor "to ask a question which implies a factual predicate which the examiner knows he cannot support by evidence or for which he has no reason to believe that there is a foundation of truth." United States v. Harris, 542 F.2d 1283, 1307 (7th Cir.1976); 6 J. Wigmore, Evidence Section 1808 (Chadbourn rev. 1976). "Where the State, in laying a foundation for impeachment, insinuates the existence of prior inconsistent statements by the witness and the witness denies making the statement, the State must produce evidence that the prior inconsistent statement was made." People v. Sprouse, 94 Ill.App.3d 665, 50 Ill.Dec. 76, 418 N.E.2d 1070, 1077 (1981); see also United States v. Bohle, 445 F.2d 54, 73-74 (7th Cir.1971). In such cases, the State may have a duty to complete its impeachment of the witness or show that the prosecutor had "evidence of or reasonable ground to believe the truth of its implication." Lee Won Sing v. United States, 215 F.2d 680, 681 (D.C.Cir.1954); see United States v. Mackey, 571 F.2d 376, 386 (7th Cir.1978).
However, not every violation of these rules is "so grossly prejudicial as to require the trial court to declare a mistrial as a matter of law." United States v. Kelly, 459 F.2d 10, 11 (9th Cir.1972). In reviewing allegedly improper prosecutorial comments, conduct, and questioning of witnesses "(o)ur task is to consider their impact in the context of this particular trial", and "not view the group of allegedly improper questions and comments in the abstract." United States v. Davis, 546 F.2d 583, 593 (5th Cir.1977). "(W)e must assess the impact of the questions in the context of the entire trial." United States v. Bosby, 675 F.2d 1174, 1185 (11th Cir.1982).
*439 Within the confines of this case, the prosecutor's conduct does not amount to reversible error. First of all, there was a reasonable basis for the questions concerning the prior shooting incidents even though that basis was not as broad as the prosecutor's questions. "While the prosecuting attorney should not endeavor to introduce legally inadmissible evidence, or testimony known to be untrue, he should be allowed full range within the law to bring out all the material evidence he has good reason to believe will shed light on the commission of an alleged offense." 23A C.J.S. Criminal Law § 1087 (1961).
In regard to the alleged prior inconsistent statement of Mrs. Webb, the record reflects nothing that would indicate any intentional misconduct by the prosecutor to mislead the jury. The record does reflect that the prosecutor learned that Mrs. Webb did not make the statement he attributed to her only after the defense had rested its case. Defense counsel made this clear in his motion for a mistrial: "Also at the bench conference this afternoon the Defense rested. I think Mr. Summerford (prosecutor) indicated for the Record he has subsequently learned that the statement which he was using to question Mrs. Webb was not in fact made by her but some other witness."
By his questions, the prosecutor added no substantive evidence which was not properly before the jury when the trial ended. Bradford v. Stone, 594 F.2d 1294, 1296 (9th Cir.1979). Other defense witnesses corroborated Mrs. Webb's version of the manner in which the shooting occurred. Viewed within the context of the entire trial and the evidence against Wysinger, the prejudicial effect of the prosecutor's conduct must be deemed insignificant. United States v. Cardarella, 570 F.2d 264, 268 (8th Cir.1978). "The prosecutor's naughty words were in effect a flyspeck on this record, not a blot." United States v. Natale, 526 F.2d 1160, 1172 (2nd Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976).
The trial judge is allowed the exercise of broad discretion in determining whether or not to grant a mistrial. Woods v. State, 367 So.2d 982, 983-84 (Ala.1978). "No iron-clad rule exists by which the prejudicial qualities of improper questions or remarks or arguments of counsel can be ascertained in all cases: much depends upon the issues, parties and general circumstances of the particular case." Williams v. State, 245 Ala. 32, 36, 15 So.2d 572 (1943). In determining whether the accused was prejudiced by prosecutorial misconduct, "we must ordinarily give great deference to the ... judge's handling of the alleged misconduct during the trial. The ... judge is ordinarily in a much better position to understand the circumstances surrounding the alleged misconduct and to evaluate its impact." United States v. Tham, 665 F.2d 855, 860 (9th Cir.1981). We find that the prosecutor's conduct did not result in "ineradicable prejudicial error" as Wysinger argues and further find no abuse of discretion by the trial judge in refusing to grant the mistrial.
II
The trial judge properly denied Wysinger's requested charge on criminally negligent homicide. The State's evidence shows that Wysinger deliberately fired his pistol after having been warned of the danger he was creating. Wysinger denied ever having or firing any pistol. At trial, there was no defense presented that Wysinger was attempting to break up an argument and scatter the crowd and in the process a shot was fired accidentally or prematurely as is argued on appeal.
As we stated in Phelps v. State, 435 So.2d 158, 165 (Ala.Cr.App.1983): "A killing is not accidental when the act causing death is done intentionally. Lewis v. State, 96 Ala. 6, 10, 11 So. 259 (1891). Any contention that the death was accidental `ignores the nature of the enterprise that the defendant ... (was) engaged in.' Sanders v. State, 16 Ala.App. 511, 513, 79 So. 504 (1918)." Here, there was no rational basis *440 for a verdict of criminally negligent homicide.
III
Count I of the indictment charged reckless murder under Alabama Code Section 13A-6-2(a)(2). Count III charged intentional murder as defined in Section 13A-6-2(a)(1). The jury found Wysinger "guilty of Murder as charged in Count I of the indictment." The trial judge granted defense counsel's motion to strike Count II of the indictment, which charged that Wysinger caused the death of Walter Thomas while intending to cause the death of William Granger. The trial judge denied the request to strike either the count for reckless murder or the count for intentional murder. On appeal, Wysinger argues that there is no evidence to show that he intended to kill Walter Thomas and that a jury verdict finding him guilty of such an intentional killing would not have been sustained by the evidence.
We agree that the evidence in this case would not have supported a verdict finding Wysinger guilty of intentionally killing Walter Thomas and therefore Count III of the indictment should have been stricken. However, the error was only harmless. Any error in refusing to direct an acquittal as to one count is harmless where the jury acquits the accused on that count or finds him guilty under another count. Treadwell v. State, 168 Ala. 96, 53 So. 290, 292 (1910); Segars v. State, 409 So.2d 1003, 1005 (Ala.Cr.App.1982).
Wysinger's conduct is a classic example of a dangerous act evincing a depraved mind regardless of human life, F. Wharton, The Law of Homicide, Section 130 (3rd ed. 1907), which, when that conduct causes the death of another person, constitutes murder in this state. Northington v. State, 413 So.2d 1169 (Ala.Cr.App.1981), cert. quashed, 413 So.2d 1172 (Ala.1982).
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.
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31 Cal.App.2d 290 (1939)
In the Matter of the Application of E. H. MEANS for a Writ of Habeas Corpus.
Crim. No. 1652.
California Court of Appeals. Third Appellate District.
March 1, 1939.
Earl Warren, Attorney-General, Ralph H. Cowing, Deputy Attorney-General, and John J. Hamlyn for Petitioner.
C. C. Carlton, Frank B. Durkee, C. R. Montgomery and Robert E. Reed, as Amici Curiae, on Behalf of Petitioner.
Hugh B. Bradford, City Attorney, and B. F. Van Dyke for Respondent.
The Court.
A rehearing was granted in this matter in order to give further consideration to the questions presented, and particularly to permit the department of public works an opportunity to be heard.
After reargument and the study of additional briefs we still adhere to our original conclusions, keeping in mind that we are considering primarily the right given to a municipality, to make and enforce within its limits all necessary police and sanitary regulations not in conflict with general law.
As we heretofore stated petitioner was charged with a violation of Ordinance No. 496, fourth series, section 3, and was convicted and imprisoned therefor.
This ordinance is entitled "An ordinance regulating plumbing in the City of Sacramento; providing for the examination of and issuance of certificates of registration to qualified plumbers; ..."
It defines "plumbing work" as including "all water and sewer pipes, drainage and water pipes and vent pipes in or pertaining to any building or lot upon which same is situated, ...; also all material and work used in new construction or reconstruction ...; also all pipes in connection with the vapor or waste of any kind which may be discharged into the sewers or drains or vent pipes". It makes it unlawful for any person to engage in the plumbing business without first procuring from the health officer a certificate of registration authorizing such acts; and then declares it unlawful for any person to perform such labor without first obtaining such certificate and prescribing a penalty therefor.
In the instant case petitioner was a civil service state employee, assigned to and engaged in the work of a plumber by the state of California at the state fair grounds in Sacramento. *292 The fair grounds lie within the corporate limits of the city of Sacramento. He earned his status by virtue of having passed the necessary examinations required by the provisions of article XXIV of the state Constitution, the Civil Service Act (Stats. 1937, chap. 753) and the rules and regulations of the state personnel board. He did not have a registration certificate as required by the foregoing ordinances of Sacramento, hence his arrest and imprisonment.
Sacramento is a charter city, and is given the power therein "to regulate the construction of and the materials used in all buildings ...; to regulate the manner of construction and location of drains and sewers ...; the materials and methods used for piping buildings for water; ... to regulate and prescribe all methods and materials used for the plumbing of all buildings, ... and to provide for the examination and licensing of all persons ... who shall engage in or work at the business of plumbing ..." Sacramento Charter, section 9.
In addition to this express charter provision, Sacramento is given the power by section 11 of article XI of the state Constitution, "to make and enforce within its limits all such local police, sanitary, or other regulations as are not in conflict with general laws". Acting, therefore, under its general police power and under its specifically given charter powers Sacramento adopted the ordinance in question. Having in mind the nature of the work and its possible effect upon the health and well being of its citizens, it would appear that such requirements, both as to material and workmanship were a necessity and the failure to so protect its citizens would be a dereliction of duty upon the part of any city.
[1] It is the contention of petitioner that the ordinance in question is in conflict with the general Civil Service Act, and to that extent is unconstitutional. We are unable to find such conflict. Ordinance No. 496 deals exclusively with the regulation of plumbing within the city of Sacramento, how it shall be done, and those who may do it. Neither in the Constitution nor in the Civil Service Act is this question mentioned, and obviously those provisions were not intended to occupy that field. Nor do we find in the rules and regulations of the personnel board any provisions pertaining to the regulation of plumbing, but even if such conflict did exist, *293 the provisions of the charter, being a legislative act, must be held to prevail over a rule or regulation of an appointive board, which is no more than a state agency created to perform certain governmental functions for the state in a very restricted field.
In Pasadena School Dist. v. City of Pasadena, 166 Cal. 7 [134 P. 985, Ann. Cas. 1915B, 1039, 47 L.R.A. (N. S.) 892], the school district, embracing all of the territory within the limits of the city, was proceeding to erect a school building without having first complied with an ordinance of the city providing for the issuance of a building permit and the payment of certain fees, and the submission of the proposed plans to the city. The city threatened to arrest the school trustees and the contractor, and the controversy was submitted to the court under section 1138 of the Code of Civil Procedure. The question, as found by the court, was, "Has the city ... the power to subject the school district ... to its regulating building ordinances and building code in the exercise of its police power?" In brief, the court held that unless there was some positive and general law upon the same subject which could be said to create a conflict, the charter provisions must govern, and that while the state had the power to provide for a complete and exclusive system of regulation in respect to the erection of school buildings, if it had not exercised that power the city was within its right in exacting conformity with its building laws. So, here, while the state could, if it desired, provide regulations for the installation of plumbing, it has not done so. The fact the Constitution provides for civil service and gave authority to a board to set up a system of rules and regulations in furtherance of that purpose, does not constitute a general law regulating plumbing. Even if the board did set up a system of qualifying examinations for plumbers, it would not abrogate the city's ordinance in respect to the same matter. As said in Ex parte Campbell, 74 Cal. 20 [15 P. 318, 5 Am.St.Rep. 418], "nothing less than a positive and general law upon the same subject can be said to create a conflict within the meaning of that section".
Whether or not a general law would in the present situation affect the outcome of this case we are not here called upon to decide. The charter grants the city the right and *294 power to make and enforce laws and regulations in respect to municipal affairs.
In Civic Center Assn. v. Railroad Com., 175 Cal. 441 [166 P. 351], and quoted with approval in Bank v. Bell, 62 Cal.App. 320 [217 P. 538], it is said: "... The result is that the city has become independent of general laws upon municipal affairs. Upon such affairs a general law is of no force with respect to Los Angeles. If its charter gives it powers concerning them, it has those powers; if its charter is silent as to any such power, no general law can confer it. ..."
In the Matter of Nowak, 184 Cal. 701 [195 P. 402], the court said: "The net result of this situation is that, as to municipal affairs, the charter, instead of being a grant of power, is, in effect, a limitation of powers, and, the imposition of the tax for revenue purposes being strictly a municipal affair, the city has the power to impose that tax unless the power was taken from it by the charter itself."
That the supplying of water, and the removal of water borne waste is a municipal affair is clearly established in Metropolitan Water Dist. v. Superior Court, 2 Cal.2d 4 [37 PaCal.2d 1041]; Smith v. City of Glendale, 1 Cal.App.2d 463 [36 PaCal.2d 1083]; City of Pasadena v. Charleville, 215 Cal. 384 [10 PaCal.2d 745]; Wehrle v. Board of Water & Power Commrs., 211 Cal. 70 [293 P. 67].
In City of Pasadena v. Charleville, supra, the court held that the city was not bound by state law or regulation in respect to municipal affairs. In that case a contract had been let by the city for the erection of a wire fence around its municipal reservoir. A general state law required that any contract for the doing of any public work should contain certain provisions as to the payment of the prevailing per diem wage. The city manager refused to sign a contract for the erection of the fence which did not contain such provisions; the city taking the position that the maintenance and operation of a water distribution system was a municipal affair and not bound by general state law opposed the position taken by its manager, which contention the court upheld, declaring that the city was not controlled by any legislative enactment regarding its municipal affairs, and that the construction of the fence around the reservoir, which was *295 a part of the city's municipal water system was a municipal affair.
Regardless, however, of that point we believe that neither the constitutional provision providing for civil service nor the Civil Service Act applied to the situation here presented, and that the city was acting within its authority in making it a misdemeanor for anyone to do plumbing work within its limits without obtaining a license so to do. That being true, the writ sought should be discharged, and the petitioner remanded. It is so ordered.
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351 F.Supp.2d 329 (2004)
FINANCIAL TRUST COMPANY, INC. and Jeffrey E. Epstein, Plaintiffs,
v.
CITIBANK, N.A. and Citigroup, Inc. d/b/a "Citigroup," Defendants.
No. CIV.2002-108.
District Court of the Virgin Islands, Appellate Division. D. St. Thomas and St. John,
December 30, 2004.
*330 Maria Tankenson Hodge, Esq., Hodge & Francois, St. Thomas, VI, for plaintiffs.
Gregory H. Hodges, Esq., Dudley, Topper and Feuerzeig, LLP, St. Thomas, VI, for defendants.
MEMORANDUM OPINION
MOORE, District Judge.
Defendants have moved to dismiss the second amended complaint for failure to meet Federal Rule of Civil Procedure 9(b)'s heightened pleading requirement for fraud and for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
I. Factual and Procedural History
In their second amended complaint, Jeffrey E. Epstein and Financial Trust Company, Inc. ["FTC"] allege that Citibank, N.A. and Citigroup, Inc. [collectively "Citibank"] misrepresented facts and fraudulently induced them to borrow $ 10 million to invest in a venture managed by AIG Global Investment Corporation ["AIG"] and another $10 million to invest in a venture managed by Mass Mutual. The plaintiffs allege that the defendants failed to disclose information and negligently and fraudulently misrepresented facts concerning their relationship with AIG, that the plaintiffs detrimentally relied on these misrepresentations and omission, and that the defendants breached their fiduciary duty to the plaintiffs. The plaintiffs seek rescission of the promissory notes and punitive damages.
Previously, I ruled that this court has personal jurisdiction over Citibank and Citigroup, venue in this court is proper under 28 U.S.C. § 1391(a), this case need not be transferred to New York, the amended complaint adequately states claims upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6) for the breach of fiduciary duty and negligent misrepresentation claims, and counts I, II, III and VI of the first amended complaint failed to meet Federal Rule of Civil Procedure 9(b)'s heightened pleading standard. I did, however, grant the plaintiffs leave to amend the complaint. Financial Trust Co. v. Citibank, 268 F.Supp.2d 561 (D.Virgin Islands 2003).
II. LEGAL ANALYSIS
A. Federal Rule of Civil Procedure 9(b)
In order to state a viable fraud claim, Rule 9(b) requires a plaintiff to *331 plead (1) a specific false representation or omission of material fact; (2) knowledge by the person who made it of its falsity; (3) ignorance of its falsity by the person to whom it was made; (4) the intention that it should be acted upon; and (5) that the plaintiff acted upon it to his damages." In re Rockefeller Ctr. Props., Inc., 311 F.3d 198, 215 (3d Cir.2002). Courts should apply Rule 9(b) with some flexibility and should not require plaintiffs to plead issues that may have been concealed by the defendants. Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644 (3d Cir.1998). Although the rule does not require a recitation of "every material detail" of the alleged fraud, it does require "that plaintiffs support their allegations of fraud with all of the essential factual background that would accompany `the first paragraph of any newspaper story' that is the `who, what, when, where and how' of the events at issue.'" In re Rockefeller Ctr. Props., Inc., 311 F.3d at 217 (quoting In re Burlington, 114 F.3d at 1422). However, the Third Circuit Court of Appeals has held that the "requirements of Rule 9(b) may be satisfied if the complaint describes the circumstances of the alleged fraud with `precise allegations of date, time or place' or by using some means of `injecting precision and some means of substantiation into their allegations of fraud.'" Board of Trustees of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 173 n. 10 (3d Cir.2002) (internal citations omitted).
Plaintiffs allege that false statements or statements where material facts were omitted were made pursuant to a course of conduct to fraudulently induce plaintiffs into a series of investments and related loans. Plaintiffs allege that Citibank's actions did not conform to the representations in the statements, that defendants were acting in plaintiffs' best interests. For example, it is alleged that in conversations between April 29, 1999 and May 2, 1999, Dayle Davison, a Vice President of Citibank in the Private Banking Division, called Epstein to introduce him to an "exceptional investment opportunity." (Compl.¶ 13.) In follow-up telephone conversations during that same two week period, Davison and her associates made additional specific representations about the AIG Investment, without disclosing Citibank and AIG's relationship. Davison also during that period represented that Citibank had "done their due diligence" and would remain actively involved in the deal. (Compl.¶ 14.) In August 2001, in an effort to dissuade Epstein from seeking to remove AIG as the manager of the AIG Investment, John Purcell, a Citibank representative, told Jeffrey Schantz, a lawyer for Epstein, that Citibank was acting in Epstein's interests and that Epstein should trust Citibank rather than talk about actions which would run counter to Citibank's undisclosed interests. (Compl.¶ 37.) These facts all allege that defendants failed to state or disclose "additional or qualifying information regarding" their relationship with AIG.
These specific facts are enough to plead fraud with the particularity required by Rule 9(b). The plaintiffs have alleged that Davison, Epstein's primary contact at Citibank, made specific false representation and omissions of material facts of the relationship between AIG and Citibank in April and May of 1999. The complaint has also alleged that Davison, and others at Citibank, knew of the relationship between Citibank and AIG and that they knew Epstein was unaware of this relationship. Finally, as I had previously ruled, the complaint also alleges that Epstein acted upon this information and but for Citibank's actions he would not have been injured.
*332 The basic purpose of Rule 9(b) has been fulfilled plaintiff has alleged enough information, including specific names and dates, to put Citibank on notice of the fraudulent actions it has alleged to have committed. Moreover, since some of the misrepresentations were alleged to be omissions, Rule 9 does not require specification of time, place, and nature of misrepresentation for these statements; rather, it requires only that the plaintiff identify the facts not communicated. See Golden Trade, S.r.L. v. Jordache, 143 F.R.D. 504 (S.D.N.Y.1992); Cottman Transmission Sys. Inc. v. Dubinsky, 95 F.R.D. 351, 353 (E.D.Pa.1982) ("Conduct which never occurred cannot be described with greater particularity other than to state that it did not occur.")
The information contained in the second amended complaint is enough for counts I, II, III, and VI to survive this motion to dismiss for failure to plead fraud with particularity pursuant to Federal Rule of Civil Procedure 9(b).
B. Federal Rule of Civil Procedure 12(b)(6)
The defendants also argue that 12(b)(6) mandates dismissal of the complaint for failure to state a claim upon which relief can be granted. To the extent that plaintiffs are attempting to reargue their previous motion to dismiss, I reiterate my ruling that Virgin Islands law governs this case, that the complaint adequately alleges that the defendants' wrongful conduct caused the plaintiffs' loses, and that plaintiffs' claims of breach of fiduciary duty and negligent misrepresentation should not be dismissed. Financial Trust Co., 268 F.Supp.2d at 576. The only claims left to be decided are the fraud claims.
In order to state a claim for fraud, the plaintiff must prove "(1) a specific false representation of material fact; (2) knowledge by the person who made it that it was false; (3) ignorance of its falsity by the person to whom it was made; (4) the intention that it should be acted upon; and (5) that the plaintiff acted upon it to his damage.'" Financial Trust Co., 268 F.Supp.2d at 575 (quoting Shapiro v. UJB Fin. Corp., 964 F.2d 272, 284 (3d Cir.1992)).
The defendants base their argument that plaintiffs have failed to state a claim upon which relief can be granted for fraud on their allegation that the alleged omission of the relationship between AIG and defendants was disclosed and thus the "bespeaks caution" doctrine applies to the case. Under this theory, when some risks are disclosed in documents, the documents "bespeak caution" to the investor and the investor cannot later premise a fraud claim on the events of which he has been warned. Kline v. First Western Gov't Sec., Inc., 24 F.3d 480, 482 (3d Cir.1994). The defendants' claim that the Preliminary Offering Circular [the "pitch book"], which was allegedly given to Epstein, disclosed ongoing business relationships between Citibank and AIG and should invoke the "bespeaks caution" doctrine.
I have previously ruled that whether the "pitch book" referenced in the amended complaint is the document that plaintiffs rely on is a disputed fact that precludes a Rule 12(b)(6) dismissal. Financial Trust Co., 268 F.Supp.2d at 572. Nothing in any of the briefs have convinced me that the parties do not dispute which pitch book Epstein received, what disclosures were made in any such pitch book, and whether those disclosures revealed the alleged conflict. As such, a ruling on the "bespeaks caution" doctrine is not appropriate at this juncture in the case because it involves deciding issues of disputed fact.
*333 Plaintiffs have alleged all necessary elements of fraud. They have alleged that defendants intentionally misrepresented material facts, through omissions and statements assuring the plaintiffs that they were acting in Epstein's personal best interest. They have also alleged that the person who made these misrepresentations, Davison, knew of the relationship between AIG and Citibank and that Epstein and FTC did not know of this relationship. Finally, plaintiffs have also alleged that "but for" defendants misleading statements and omissions, plaintiff would not have proceeded with their loan and investment programs and would not have suffered these damages. Plaintiffs have thus alleged enough information to survive a Rule 12(b)(6) motion on their fraud claims.
C. The Mass Mutual Investment Claims
Although it is unclear from the second amended complaint which counts concern the Mass Mutual Fund, it is clear that at least some of the causes of actions allege that Citibank defrauded Epstein in relation to his loans and investment in the Mass Mutual Fund. Separately, defendants argue that the court should dismiss the claims alleging fraud relating to the Mass Mutual Fund for failure to plead fraud specifically under Rule 9(b) and failure to state a claim upon which relief can be granted under Rule 12(b)(6). The plaintiff's basic allegation is that "because of Defendants' false assurances and omissions of true statements concerning their relationship with AIG and the AIG Investment, Plaintiffs made the investment in the Mass Mutual Fund and suffered significant losses." (Compl.¶ 65.)
Defendants essentially argue that plaintiff's loans and investment in the AIG and Mass Mutual funds should be viewed as two separate transactions. This view, however, belies the alleged conduct of Citibank. The underlying conduct alleged in the second amended complaint is that Citibank fraudulently induced plaintiffs into believing they had a preferred relationship with Citibank where Citibank was acting in Epstein's best interest in all of their transactions, including investing in the AIG and the Mass Mutual funds. Essentially, plaintiffs argue they were induced into a high stakes relationship with Citibank based on fraudulent statements and omissions, and but for these statements, they would not have enjoyed the type of relationship with Citibank to be in the position either for Citibank to present them an offer to loan them large sums of money to invest in the Mass Mutual fund or for plaintiff's to trust Citibank's investment advice. I believe that whether the underlying complained about conduct was two separate transactions or whether the conduct should be viewed as Citibank's relationship as a whole with Epstein is a matter of fact that goes to the issue of damages and is not appropriate for a Rule 12(b)(6) motion.[1] Therefore, I rule that the fraud claims should not be separated into two different types AIG and Mass Mutual and thus my previous analysis of the applicability of Rule 9(b) and Rule 12(b)(6) apply equally to all claims for damages alleged to occur because of Epstein's investments in the AIG and Mass Mutual funds.
III. CONCLUSION
For the foregoing reasons, I will deny defendants' motion to dismiss.
*334 ORDER
For the reasons given in the accompanying memorandum of even date, it is hereby
ORDERED that the defendant's motion to dismiss is hereby DENIED.
NOTES
[1] This opinion is supported by the structure of the second amended complaint which does not differentiate the counts between the Mass Mutual and AIG funds as defendant attempts to do.
|
673 P.2d 807 (1983)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Thomas J. CERA, Defendant-Appellant.
No. 82CA0976.
Colorado Court of Appeals, Div. I.
November 17, 1983.
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Virginia Byrnes, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Joseph Saint-Veltri, Emerson B. Semple, Denver, for defendant-appellant.
BERMAN, Judge.
Defendant, Thomas Cera, was charged by information with one count of sale of a narcotic drug. He later pled guilty to the charge of obtaining narcotic drugs by fraud, and the first count of sale of a narcotic drug was dismissed. On August 13, 1981, defendant was sentenced to a two-year term of probation, at which time the court stated: "If there is restitution due, we can take it up at a later date and I will add that as a condition of probation." On November 18, 1981, the court did condition defendant's probation upon defendant's payment of restitution in the amount of $1,925 to the United States Department of Justice, Drug Enforcement Administration (DEA), which agency had furnished the money with which a Denver undercover police officer purchased the narcotics from defendant.
In May 1982, defendant filed a motion to amend probation to exclude restitution, which motion the trial court denied.
Defendant appeals, alleging that the trial court erred in ordering defendant to pay restitution to the DEA and in denying his motion to amend probation to exclude restitution. We affirm.
I.
The first issue we address on appeal is whether we have jurisdiction under § 16-11-101(1)(a), C.R.S.1973 (1978 Repl.Vol. 8) to review the conditions of defendant's probation. Although this is not the first time this court has reviewed the conditions of a defendant's probation, we have not before now explicitly dealt with the jurisdiction issue presented by cases such as the one at bar.
Section 16-11-101(1)(a), C.R.S.1973 (1978 Repl.Vol. 8) provides:
"The defendant may be granted probation unless the offense of which he is *808 convicted makes him ineligible for probation. The granting or denial of probation and the conditions of probation shall not be subject to appellate review, unless probation is granted contrary to the provisions of this title." (emphasis added)
Here the defendant argues that the conditions of probation are contrary to a "provision of this title," specifically § 16-11-204.5(1), C.R.S.1973 (1978 Repl.Vol. 8) (1982 Cum.Supp.). Where, as here, the argument is that the conditions of probation are contrary to provisions of § 16-11-101, et seq., C.R.S.1973 (1978 Repl.Vol. 8), we necessarily imply an allegation that probation itself was granted contrary to the provisions of that title and, therefore, hold that we have jurisdiction to review the conditions of probation.
II.
Defendant's only argument on appeal is that under our opinion in People v. King, 648 P.2d 173 (Colo.App.1982), the trial court's denial of his motion to amend probation to exclude restitution violated § 16-11-204.5(1), C.R.S.1973 (1978 Repl.Vol. 8) (1982 Cum.Supp.). That statute provides in pertinent part:
"As a condition of every sentence to probation, the court shall provide that the defendant make restitution to the victim of his conduct for the actual damages which were sustained." (emphasis added)
In King, we held that the term "victim" as it appears in § 16-11-204.5, C.R.S.1973 (1978 Repl.Vol. 8) (1981 Cum.Supp.) refers to the party immediately and directly aggrieved by the criminal act, and not to others who suffer loss because of some relationship, contractual or otherwise, to the directly aggrieved party. On that basis, we did not modify the defendant's sentence to exclude restitution, as defendant in the instant case asks us to do with his sentence. Rather, in King, we merely substituted the immediate theft victim for the insurance company as the party to whom restitution was to be paid.
The sole question on appeal then is not whether restitution is to be paid, but to whom such restitution is properly payable under the statute. We held in King that the payment of restitution should be strictly limited to the "party whose rights, personal or property, were invaded by the defendant as a result of which criminal proceedings were successfully concluded."
Here, the trial court ordered defendant to pay restitution to the DEA who "fronted" the money for the purchase of controlled substances from defendant, rather than to the Denver police officer who actually handed the money to defendant in exchange for the drugs. We hold that, in so doing, the trial court acted correctly because the property rights in the buy money which were invaded by the defendant belonged to the DEA. That is, the money was the property of the DEA on loan to the Denver police.
Although neither § 16-11-204.5(1), C.R.S.1973 (1978 Repl.Vol. 8) (1982 Cum.Supp.) nor King specifically states that a governmental entity may qualify as a victim to whom restitution is payable, we note that there are a number of instances where it is appropriate that the state be classified as such. For example, in a welfare fraud case, it may be appropriate that the defendant be ordered to make restitution to the state. See People v. Ybarra, 190 Colo. 409, 547 P.2d 925 (1976). Our drunk driving laws provide a second example of the recognition that the state may be viewed as a victim for purposes of restitution. See § 42-4-1202(4), C.R.S.1973 (1982 Cum.Supp.) (requiring every person who is convicted of certain alcohol-related driving offenses to perform between 48 and 96 hours of useful public service).
Since the property rights in the $1,925 belonged to the DEA, we hold, in accordance with our decision in King, that the DEA is the proper party to whom restitution is to be paid, and in so holding, affirm.
Judgment affirmed.
PIERCE and METZGER, JJ., concur.
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582 P.2d 346 (1978)
The STATE of Montana, Plaintiff and Respondent,
v.
Frank D. LEWIS, Defendant and Appellant.
No. 14078.
Supreme Court of Montana.
Submitted June 6, 1978.
Decided July 31, 1978.
*348 Peterson & Hunt, Billings, Kenneth D. Peterson, argued, Billings, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Sheri K. Sprigg, Asst. Atty. Gen., argued, Helena, James J. Masar, argued, County Atty., Deer Lodge, for plaintiff and respondent.
SHEEHY, Justice.
This is an appeal by defendant-appellant, Frank D. Lewis, from adverse rulings by the District Court of the Third Judicial District, Powell County, denying his motion for a new trial in one cause, and his motion to withdraw his plea of guilty in another cause. The cases have been consolidated for appeal.
Here are the facts with respect to each cause:
Cause No. 2023
Defendant was superintendent of schools in School District No. 1, Deer Lodge, from 1964 to April 1970. On December 22, 1970, an information was filed in Cause No. 2023, in the District Court, charging defendant with 32 counts of embezzlement by a public officer under former section 94-1501, R.C.M. 1947, relating to certain checks written by the defendant while he was superintendent on an activity fund bank account, the property of the school district.
Because of a statute of limitations all but seven counts of the information were dismissed and trial with a jury was had on those seven counts. Defendant was convicted on three counts, relating to checks written by him on the school district activity fund. After denial of motions for judgment notwithstanding the verdict and for a new trial, the District Court, Honorable Nat Allen, District Judge presiding, sentenced defendant to one year in prison on each count, with the sentences suspended.
Defendant appealed his judgment of conviction on the three count raising three issues on appeal; one, that the evidence was insufficient to sustain his conviction; two, that he did not have the requisite intent to commit the crime of embezzlement by a public officer; and three, the District Court abused its discretion when it refused to grant the defendant a change of place of trial. This Court considered those issues, found no merit in the same and affirmed the judgment of conviction. State v. Lewis (1976), 169 Mont. 290, 546 P.2d 518.
On August 11, 1977, the defendant filed a petition in Cause No. 2023 in the District Court to vacate and set aside the judgment against him, apparently proceeding under the authority of section 95-2601, R.C.M. 1947, relating to post-conviction relief. The petition was grounded on allegations that the defendant had been denied due process of law in that newly discovered evidence contained in the minutes of the school board of trustees which were not produced at the trial; the minutes did not become available and were not discovered by him until after the trial and appeal were completed; and that because thereof defendant has been denied due process of law. Attached to the petition are copies of special meetings of the school board dated March 7, 1966, March 31, 1966, April 11, 1966, and of a regular monthly meeting dated March 14, 1966. There were further attached additional monthly or special meetings' minutes of various dates and a copy of a deposition of one William King, taken in proceedings before the United States Tax Court, wherein Frank D. Lewis was the taxpayer-petitioner. (This is presumably the Internal Revenue Service proceedings where defendant claims he was exonerated of liability for income taxes). The District Court, having considered the petition and the supporting material on October 13, 1977, denied the petition to vacate or set aside the judgment of conviction. Appeal is taken from that denial.
Cause No. 2024
On December 31, 1970, information was filed in Cause No. 2024 against the defendant Frank D. Lewis charging him with 25 counts of forgery under former section 94-2001, R.C.M. 1947. Defendant entered his plea of not guilty to these counts. However, on June 4, 1971, he appeared before *349 the District Court, again with District Judge Nat Allen presiding and informed the Court that he wished to change his plea to guilty. Before accepting the change of plea, the District Judge stated he wanted to examine the defendant and thereupon examined him closely and at length with his counsel present, covering the following subjects: (1) defendant had previously pleaded not guilty but now wanted to change his plea; (2) his true name was Frank D. Lewis; (3) he was not suffering from any physical or mental disability; (4) he was not an alcoholic, had nothing to drink that day, had never taken drugs, and was not then under the influence of drugs; (5) he understood the questions that were being asked of him and he understood his right to remain silent during those proceedings and; (6) before a plea of guilty would be accepted, the Court wanted to know that there was a factual basis upon which the plea of guilty would be entered. The Court specifically asked him about the charges in Counts 7, 6, 2, and 4, and with respect to each, examined the exhibits and obtained from defendant the admission that he had forged those instruments; likewise, with respect to each of the other 25 counts and each instrument there involved, his responses would be the same; he had received a copy of the information and had gone over it; was advised of the minimum punishment of one year and the maximum punishment of 14 years and realized he had further time to plead if he desired it; wished to plead immediately and fully understood the charges.
Thereafter the defendant specifically pleaded guilty to Counts 1 and 2, and then generally pleaded guilty to every other count, and stated to the Court that he did not want to plead not guilty to any of those counts, even though he understood he had that right. The Court then went into the question of whether or not his wish to change his plea was voluntary and determined from defendant that he entered his plea of guilty because he was in fact guilty of the crimes charged; knew he was entitled to a trial by jury; knew by pleading guilty he would not be entitled to confront the witnesses; had not received any promises as to what the Court would do if his plea of guilty were accepted. He admitted that in his presence, his counsel and the Court had discussed plea bargaining and the Court had stated to him that it would impose a certain sentence if a guilty plea were entered, but the defendant stated that such statement by the Court was not what made him plead guilty; he had not been threatened by any peace officer, county attorney or other person nor induced by them to plead guilty and had not received any promise of leniency other than what he had heard from the District Judge. He also stated he had ample time to discuss the case with his attorney, was entirely satisfied with the services of his attorney and thought his attorney was competent.
Defendant stated he had no accomplices with respect to the charges, the county attorney had not suppressed any evidence of his innocence that he knew of, no misrepresentations had been made to him in order to get him to plead guilty, nobody had lied to him to get him to plead guilty and that he had not been interrogated with respect to the charges by the arresting officers. Finally, upon one further assurance from the defendant that he felt he was absolutely guilty of the crimes charged against him, the Court accepted his plea of guilty.
Thereafter, the District Court entered judgment of conviction on his plea of guilty and sentenced him to imprisonment for a term of five years with the provision that four years and 11 months of the term be suspended and that defendant comply with certain parole provisions. Sentence was imposed on June 4, 1971.
On July 10, 1972, defendant, with new counsel, filed a motion to withdraw his plea of guilty to the 25 counts, stating (1) defendant was persuaded, upon misinformation and misunderstanding, to plead guilty although he was not guilty; (2) defendant's former attorney had failed to interview the State's witnesses or conduct any investigation yet informed the defendant that the State's evidence was not subject to successful dispute and the consequences would be extremely severe unless the defendant *350 entered a plea of guilty; (3) that defendant had entered his plea of guilty out of fear; and (4) that defendant had told his attorney he was not guilty, and had told the Court he had not received any of the money referred to in the information, and had not been properly advised.
On March 26, 1974, the District Court entered an order granting defendant's motion to withdraw the plea of guilty except as to Counts 1, 2, 3, and 4. That order also confirmed the sentence previously imposed, to apply to Counts 1, 2, 3 and 4.
On October 12, 1976, an order was filed discharging the defendant from probation. On August 11, 1977, the defendant filed his motion for an order authorizing withdrawal of his guilty plea to Counts 1, 2, 3 and 4. The grounds of his newest motion were that he had entered his plea of guilty to all 25 counts on the advice of his then counsel; his then counsel had put extreme pressure on him and on his wife to get him to plead guilty to the charges; he had pleaded guilty because of the extreme coercion by his counsel although he was innocent and had been innocent all along; his counsel had advised him if evidence was available at a later date he could always withdraw his plea of guilty and present the evidence in trial; subsequent to the guilty plea he had been investigated by the Postal Department of the United States and by the Internal Revenue Service and each of these agencies had exonerated him in their investigations. He also referred to the deposition taken in the Internal Revenue Service proceedings of a William King, in Tennessee, said King being the owner of a firm "KINCO", that was connected with the alleged forged instruments. Defendant claims in the deposition William King had exonerated the defendant.
Again the District Court, this time with Honorable Robert J. Boyd presiding, denied the motion on October 19, 1977, and from denial of motion, the defendant appeals.
No appeal had been taken by defendant from the order allowing him to withdraw his guilty plea to all counts except 1, 2, 3, and 4.
Determination as to Cause No. 2023
The principal issue under this phase of the appeal is whether the newly discovered evidence claimed by the defendant requires an order setting aside the judgment of conviction founded on jury verdicts and the granting of a new trial to the defendant, Lewis. In this connection, Lewis contends that he has found minutes of special and regular meetings of the school board which were not available to him at the time of his trial; that he has also found a "red notebook" in which he kept personal notes with respect to the proceedings before the school board, which notebook was not available to him at the time of his trial; and in the light of this new evidence to deny him a new trial is to deny him due process and equal protection of the law.
The State contends in essence with respect to this phase of the appeal the newly discovered evidence, even if considered material, would not compel a different result before a new jury; the trial court did not abuse its discretion in refusing a new trial; and in any event the motion of the defendant, Lewis, is governed by the rules laid down in State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052.
It is true that the holding State v. Greeno, supra, does govern in Montana in cases where new trials are petitioned for on the ground of newly discovered evidence. Of the several requisites set down by that case which the movant for a new trial must meet, we find here defendant Lewis fails in at least three of those requisites: (1) the newly discovered evidence is not so material that it would probably produce a different result upon another trial; (2) it is not shown the movant was diligent in not discovering the evidence at or prior to his trial; and (3) newly discovered evidence appears to be merely cumulative.
Lewis set out in his Affidavit filed with the District Court, in support of his motion for new trial, the following items: The minutes of July 7, 1964 would reveal that when Lewis took over as Superintendent *351 there was a surplus of $8,000 in the budget. The minutes of April 12, 1966 would show that the County Superintendent had written a letter to the Board extremely critical of the accounting and checkwriting in School District No. 1, and the School Board was aware of the accounting and checkwriting procedure and supported it; the minutes of May 9, 1966 were revealed and the Board gave the Superintendent a large increase in pay and was not displeased with the services. The Board minutes of September 13, 1965 would show that the invoices should be attached to the claim blanks wherever possible and the Board used that same policy until September 13, 1965. Under the September 13, 1965 policy, the School Board allowed one claim blank to be used for several invoices and checks but this policy was changed in 1968 so only one claim blank could be used per invoice; the minutes of October 12, 1964 and December 10, 1964 which showed the Board was very conscious of the bill and closely inspected the same; and in conclusion the defendant argues that the introduction of these minutes and sample claim blanks would make a difference to the jury and the verdict in this case.
Lewis also claims in his Affidavit that he kept a red minutebook thought to have been destroyed or lost, and which was not obtained until after the appeal was adverse to the movant.
If we accept all those claims at face value, it still does not appear the jury would reach a different result with respect to his conviction. The minutes do not show the specific claims upon which Lewis was convicted had, in fact, been approved or inspected by the school board. No real effort is made in the affidavit or otherwise to account for the absence of the missing minutes of the school board, or the absence and subsequent finding of the red notebook. In fact the District Court, in denying the motion for a new trial, noted that nothing appeared from the record that Lewis made any effort to subpoena the records of the minutes of the school board at anytime either before or during the trial. Due diligence in securing such evidence and preparing for trial has not been shown by Lewis. In fact, on March 23, 1972, his counsel wrote him a letter stating if need be they could go through the school records to try to find information which would be helpful to his cause.
We have ourselves examined the minutes which the defendant has produced and which he claims entitle him to a new trial, and find there is nothing in those minutes which specifically refer to the counts upon which the defendant is convicted. We can only conclude such evidence would merely be cumulative. We do not find such evidence would bring about a different result if the defendant were retried. See Roberts et al. v. Oechsli et al. (1918), 54 Mont. 589, 172 P. 1037; Ebaugh v. Burns (1922), 65 Mont. 15, 210 P. 892; Kartes v. Kartes (1977), Mont., 573 P.2d 191, 34 St.Rep. 1576.
Moreover, the matter of granting or refusing a new trial for newly discovered evidence rests largely in the discretion of the District Court, Butler v. Paradise Valley Irr. District (1945), 117 Mont. 563, 160 P.2d 481. It does not appear to us that the District Court in any way abused its discretion here.
Accordingly, we affirm the order of the District Court denying a new trial as to Cause no. 2023.
Determination as to Cause No. 2024
In this cause, as to Counts no. 1, 2, 3 and 4 of the information, the guilty plea of defendant remains. As to those, defendant claims he entered his plea of guilty upon the representations of his then attorney that he had no chance in trial, his punishment would be severe and it was not possible to get a deposition of William King outside of the State of Montana. Defendant claims there was no attempt to obtain depositions, although later the Internal Revenue Service obtained a deposition of King. He claims William King's deposition exonerates him and he was exonerated by the Postal Service and Internal Revenue Service. Based on these claims, defendant wants to "withdraw his guilty pleas and proceed to trial."
*352 The State counters, with respect to this argument, that the matter of withdrawal of the plea of guilty and a subsequent plea of not guilty rests in the discretion of the trial court and here the trial court did not abuse its discretion in denying the same; and because of the lapse of time involved, his motion to withdraw his plea is now barred by laches.
Each of the contentions raised by the State has great merit. There is no set rule or standard which can be relied on in any given case where a motion is made to withdraw a guilty plea. State v. Morgan (1957), 131 Mont. 58, 307 P.2d 244. For that reason we must rely to a great extent on the discretion of the trial court. That discretion is subject to review only upon the showing of an abuse of discretion. State v. Doty (1977), Mont., 566 P.2d 1388, 1390, 34 St.Rep. 731. Here we do not find any abuse of discretion on the part of the trial court.
Moreover, the claim of laches is good against the defendant here because it is quite probable the records upon which the pleas of guilty were entered are now missing or their whereabouts unknown and the availability of witnesses would of course be a question. See State v. Sattler (1976), Mont., 549 P.2d 1080, 33 St.Rep. 475.
There is however another stronger reason upon which we rely to determine here that defendant, Lewis, is not entitled to withdraw his plea of guilty to Counts 1, 2, 3 and 4 in this case. At the time he appeared before the District Court in order to change his plea from not guilty to guilty and at a time when he was represented by his own private counsel, the District Court went to great pains to determine the defendant knew what he was doing and his plea of guilty was being voluntarily offered. Judge Allen made a thorough interrogation of the defendant at that time. The District Court ascertained particularly that the defendant was satisfied with his counsel, and he thought his counsel was competent. If we were now to agree, upon the mere representations of the defendant at this stage, and this late in the game, that he had been coerced by his counsel to enter the guilty pleas, and all of the responses made by him to the interrogation of Judge Allen were false, we would in effect be permitting some kind of fraud to be perpetrated either upon the District Court or this Court. We are not dealing in this instance with an uneducated man, innocent of the ways of the business world.
Where a District Court has done all that it can to determine, from the defendant or otherwise, that the proposed plea of guilty is voluntarily made, the defendant understands what he is doing and is advised of the consequences of his plea, including the nature and extent of his punishment, has been adequately advised by counsel, and has been treated fairly at all stages of the prosecution against him, and that in fact the defendant states he is guilty of the charges made, then this Court has a duty to support the District Court when it allows a plea of guilty to be entered in place of a plea of not guilty.
We hold that when in the sentencing procedure, the District Court carefully, as here, examines the defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, he understands the charge and his possible punishment, he is not acting under the influence of drugs or alcohol, he admits his counsel is competent and he has been well advised, and he declares in open court the facts upon which his guilt is based, then a plea of guilty accepted by the District Court on the basis of that examination will be upheld; and a motion later made by the defendant, as here, to gainsay in effect what the defendant earlier represented to the District Court, apparently to receive a lighter sentence, can not be given any degree of credence.
It has become common place in recent times for defendants seeking post conviction relief to assail their representation by counsel during the criminal proceedings as inadequate or deficient. Such an attack however must be grounded upon facts which appear in or are easily deduced *353 from the record and which go beyond the mere conclusory allegations in the defendant's affidavit. There must be a showing of actual ineffectiveness on the part of the counsel. Digiallonardo v. Betzer (1973), 163 Mont. 104, 515 P.2d 705.
Nor do we agree with the contention of the defendant that he has been "exonerated" by the Postal Department and by the Internal Revenue Service of the United States Government. Nothing beyond the defendant's affidavit has been presented with respect to the Postal Service investigation of the defendant.
As to the Internal Revenue Service, we find only a copy of a deposition taken in a proceeding before the United States Tax Court where Frank D. Lewis was petitioner and Commission of Internal Revenue was respondent. The deposition was taken on August 30, 1976 in Memphis, Tennessee. In the deposition, deponent denied having any information or knowledge that would involve defendant in the matters which were apparently the source of the charges against him. However, the whole examination of deponent gives one the impression of a very evasive witness with a vague memory and it is as likely that the Internal Revenue Service proceedings were dropped because of lack of sufficient evidence as because of any "exoneration" of defendant. If anything, deposition is adverse to defendant, because it seems incredible any person with experience and education would get involved in business with William King. He operated with only a telephone and a mailing address, using the firm name "KINCO", and he took orders for any kind of merchandise. He filled each order by going out on the market to purchase the items, after which he added his profit and a "premium" for the purchaser and billed accordingly. The premium consisted of goods or cash. Whether in the long run he actually shipped the items ordered is open to conjecture. No matter, his customers were on the hook. He disclosed his modus operandi to his interrogator when in a revealing passage, he testified:
"Q. Everybody is on the take. A. Yes.
"Q. As I understand it, this business dealings with the schools and school districts was much like you characterized politicians, being on the take, and these people? A. There ain't no proof on that.
"Q. I understand. You characterized it. You don't have any proof. Each of these schools wants to receive something in order for you to get their sale? There was a little give and take? A. In other words, I made them that way.
"Q. That is how you made the sales? A. That is a salesman's gimmick. Do you know any Jewish words?
"Q. Yes. A. I made goniffi out of them, a thief, that's right."
A motion to withdraw a plea of guilty and to substitute therefore a plea of not guilty is addressed to the sound discretion of the District Court. State ex rel. Foot v. District Court (1928), 81 Mont. 495, 503, 263 P.2d 979. We find no abuse of discretion on the part of the District Court in refusing to allow defendant to withdraw his plea of guilty.
Accordingly, with respect to both Causes 2023 and 2024 in the District Court, the orders of the District Court denying defendant's motions are affirmed.
HARRISON and SHEA, JJ., concur.
HASWELL, C.J., deeming himself disqualified, did not participate in this case.
|
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 2, 2005
Decided May 16, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-2164
NOEL U. UDARBE, Petition for Review of
Petitioner, an Order of the Board of
Immigration Appeals
v.
No. A38-052-399
ALBERTO R. GONZALES,
Respondent.
ORDER
Noel Udarbe, a native and citizen of the Philippines, has been a lawful permanent resident
of the United States since his arrival in 1982. In 2001, Udarbe pled guilty and was convicted of
battery in Indiana and sentenced to one year in jail. Finding that to be a conviction for an
aggravated felony, the INS charged him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii). In the
course of the removal proceedings, Udarbe admitted that he had been convicted but claimed that
his conviction should not qualify as an aggravated felony. He argued that removing him under
that provision violated his Fifth Amendment rights because if he had been convicted of the same
crime in Illinois, the maximum sentence would have been 364 days, meaning that he would not
have been convicted of a felony.
The immigration judge found Udarbe removable. Udarbe appealed, again admitting his
conviction and sentence but repeating his equal protection argument. The Board of Immigration
Appeals dismissed Udarbe’s appeal, stating that it did not “have the authority to rule on the
No. 04-2164 2
constitutionality of the Act . . . .” Udarbe filed a motion to reconsider, which the Board also
denied. Udarbe appeals that decision, arguing again that his constitutional rights were violated
and that the Board erred in determining that it did not have the authority to rule on his
constitutional claims.
Unfortunately for Udarbe, we don’t have the authority to examine the merits of his
constitutional argument, either. On July 19, 2004, we issued an order explaining that, because
Udarbe did not file a timely petition for review of the Board’s initial decision, this appeal is limited
to review of the Board’s April 6, 2004, denial of Udarbe’s motion to reconsider. In that order,
the Board stated simply that Udarbe “failed to show any particular errors of fact or law in our
prior decision,” noting that Udarbe instead simply repeated constitutional arguments the Board
had previously considered.
In this appeal, Udarbe does not dispute the Board’s contention that he failed to present
any new facts or evidence in his motion for reconsideration. Therefore, we find no error in the
Board’s order denying Udarbe’s motion for reconsideration. And, as we explained in our July 19
order, our review is limited to that decision, so we do not have jurisdiction to consider Udarbe’s
claim that the Board erred in its initial decision not to consider Udarbe’s constitutional arguments.
The petition to review the denial of the petition for reconsideration is therefore DENIED.
|
Order Michigan Supreme Court
Lansing, Michigan
October 2, 2013 Robert P. Young, Jr.,
Chief Justice
146850 Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano,
Plaintiff-Appellee, Justices
v SC: 146850
COA: 303717
Wayne CC: 08-001533-FC
TION TERRELL,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the January 31, 2013
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we REVERSE the Wayne Circuit Court’s determination
that the defendant’s trial attorney testified credibly at the hearing held pursuant to People
v Ginther, 390 Mich 436 (1973), specifically, the Wayne Circuit Court’s holding that the
defendant’s trial attorney made a valid strategic decision not to present expert testimony
regarding the number of times that the complainant was shot. To establish ineffective
assistance of counsel, a defendant must show: (1) that the attorney’s performance was
not based on strategic decisions, but was objectively unreasonable in light of prevailing
professional norms; and (2) that, but for the attorney’s error, a different outcome was
reasonably probable. This is a mixed question of law and fact. Findings of fact are
reviewed for clear error; questions of law are reviewed de novo. People v Armstrong,
490 Mich 281 (2011). The trial court clearly erred in finding that the defendant’s trial
attorney was credible. We therefore VACATE those portions of the Court of Appeals
opinion relying on the trial court’s credibility determination to affirm the defendant’s
conviction in the face of his claims of ineffective assistance of counsel, including the
holding that the decision not to present expert testimony was a legitimate trial strategy.
We REMAND this case to the Court of Appeals for reconsideration of the defendant’s
ineffective assistance claims in light of this order. In all other respects, leave to appeal is
DENIED, because we are not persuaded that the remaining questions presented should be
reviewed by this Court.
We do not retain jurisdiction.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
October 2, 2013
s0925
Clerk
|
[Cite as Thomas v. Bauschlinger, 2015-Ohio-281.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
SEAN A. THOMAS, et al. C.A. No. 27240
Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JIM BAUSCHLINGER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CV-2011-11-6168
DECISION AND JOURNAL ENTRY
Dated: January 28, 2015
BELFANCE, Presiding Judge.
{¶1} Plaintiffs-Appellants Sean Thomas and David Thomas (collectively,
“Appellants”) appeal the judgment of the Summit County Court of Common Pleas awarding
summary judgment to Jim Bauschlinger, the Building Commissioner for the City of Barberton.
For the reasons set forth below, we affirm in part and reverse in part.
I.
{¶2} In 2009, Sean Thomas was living in the home that had belonged to his mother,
Ruth Kiefer, at the time of her death. The building consisted of two apartments: a lower
apartment where Sean Thomas resided and an upper apartment that Sean Thomas leased to a
friend. Sometime in early 2009, squatters moved into the upper apartment while Sean Thomas’s
friend was in the hospital. At Sean Thomas’s request, police came to take pictures of the upper
apartment but did not remove the squatters. Eventually, the squatters left, and Sean Thomas and
his father David Thomas began to repair the upper apartment.
2
{¶3} On November 19, 2009, Tammy Frost, a property maintenance inspector for the
city of Barberton, sent a certified letter addressed to “Ruth Kiefer, deceased[,] C/O Sean
Thomas” to the property, which was signed for on November 23, 2009. In the letter, Ms. Frost
indicated that the structure had been found to be “‘Unsafe for Human Occupancy’” pursuant to
Section 108.1.3 of the ICC International Property Maintenance Code based on information
passed along by Barberton police officers and been condemned. Ms. Frost also indicated that the
city planned to demolish the structure. However, on November 22, 2009, a day prior to the letter
being delivered, Barberton police officers arrested Sean Thomas for trespassing in the structure.
{¶4} Sean Thomas was eventually convicted of criminal trespass, which was affirmed
on appeal due to his failure to include a transcript of the proceedings. State v. Thomas, 9th Dist.
Summit No. 25244, 2011-Ohio-912, ¶ 8 (“Thomas I”). Appellants attempted to appeal the
condemnation decision, but the common pleas court dismissed their appeal for lack of standing.
On appeal, this Court affirmed the decision of the lower court, concluding the record did not
contain sufficient evidence to establish that Sean Thomas was an heir to the property. Thomas v.
Bldg. Dept. of Barberton, 9th Dist. Summit No. 25628, 2011-Ohio-4493, ¶ 9 (“Thomas II”).
{¶5} Following this Court’s decision in Thomas II, Appellants filed the complaint in
this action, alleging claims against the mayor of Barberton, the prosecutor who had prosecuted
the case against Sean Thomas, and Mr. Bauschlinger. The defendants filed a motion to dismiss
the complaint for failure to state a claim, which the trial court granted. On appeal, this Court
affirmed the dismissals of the mayor and the prosecutor but reversed the dismissal with regard to
Mr. Bauschlinger, concluding “[t]aking as true the allegations of the complaint, we cannot say
that there exists no set of facts by which the Thomases could establish that Mr. Bauschlinger
acted manifestly outside the scope of his employment or with malicious purpose, in bad faith, or
3
in a wanton or reckless manner.” (Internal quotations and citations omitted.) Thomas v.
Bauschlinger, 9th Dist. Summit No. 26485, 2013-Ohio-1164, ¶ 23 (“Thomas III”).
{¶6} On remand, the trial court set a period for discovery; after the time for discovery
had expired, however, Appellants moved for an extension of time and for the trial court to
compel Mr. Bauschlinger to answer interrogatories Appellants had submitted to him. Mr.
Bauschlinger moved in opposition to Appellants’ motions and also moved for summary
judgment, arguing that Appellants lacked standing to bring the complaint, that their claims were
barred by res judicata, and that he was immune pursuant to R.C. 2744.03(A)(6). Appellants filed
a reply in opposition to the motion for summary judgment, and the trial court granted Mr.
Bauschlinger’s motion, determining that there was no genuine dispute of fact that Mr.
Bauschlinger was immune pursuant to R.C. 2744.03(A)(6). The trial court also determined that
Appellants lacked standing to seek damages related to the demolition of the structure itself, and
overruled Appellants’ motions to compel and to extend discovery.
{¶7} Appellants have appealed, raising eight assignments of error for our review. For
ease of discussion, we have rearranged their assignments of error and address some of the
assignments of error together.
II.
{¶8} Before addressing, the assignments of error, we initially note that Appellants have
been acting pro se throughout these proceedings. It is well established that pro se litigants
should be granted reasonable leeway, and their motions and pleadings should be construed
liberally so as to decide the issues on the merits as opposed to technicalities. See, e.g., Pascual v.
Pascual, 9th Dist. Medina No. 12CA0036-M, 2012-Ohio-5819, ¶ 5. “However, a pro se litigant
is presumed to have knowledge of the law and correct legal procedures so that he remains subject
4
to the same rules and procedures to which represented litigants are bound. He is not given
greater rights than represented parties, and must bear the consequences of his mistakes.”
(Internal quotations and citations omitted.) Id. It is not this Court’s duty to create an appellant’s
argument for him. See Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8
(May 6, 1998); App.R. 16(A)(7).
ASSIGNMENT OF ERROR II
THE COURT ERR[ED] IN NOT AD[D]RESSING PLAINTIFFS THOMAS’
[(SIC)] DEFENSE OF LACK OF DISCOVERY.
{¶9} Appellants argue in their second assignment of error that the trial court failed to
address their argument pursuant to Civ.R. 56(F) that, due to Mr. Bauschlinger’s actions during
discovery, they could not set forth facts to oppose his motion for summary judgment.
{¶10} “Initially, we note that courts have broad discretion over discovery matters.”
(Internal quotations and citations omitted.) Haley v. Nomad Preservation, Inc., 9th Dist. Summit
No. 26341, 2013-Ohio-86, ¶ 12. Civ.R. 56(F) provides that
[s]hould it appear from the affidavits of a party opposing the motion for summary
judgment that the party cannot for sufficient reasons stated present by affidavit
facts essential to justify the party’s opposition, the court may refuse the
application for judgment or may order a continuance to permit affidavits to be
obtained or discovery to be had or may make such other order as is just.
“A party seeking a Civ.R. 56(F) continuance has the burden of stating a factual basis and reasons
why the party cannot present sufficient documentary evidence without a continuance.” (Internal
quotations and citations omitted.) McPherson v. Goodyear Tire & Rubber Co., 9th Dist. Summit
No. 21499, 2003-Ohio-7190, ¶ 15. “Further, the party must do more than assert a general
request; it must demonstrate that a continuance is warranted.” (Internal quotations and citations
omitted.) Id. “This Court has stated that [t]he affidavit requirement is no mere trifle. To obtain a
continuance under Civ.R. 56(F), a party must file an affidavit that sets forth why it is unable to
5
present sufficient facts to rebut a motion for summary judgment.” (Internal quotations and
citations omitted.) King v. Rubber City Arches, L.L.C., 9th Dist. Summit No. 25498, 2011-Ohio-
2240, ¶ 35. In addition, we note that, generally, a trial court has discretion to grant a stay of
discovery pending resolution of a dispositive motion. See State ex rel. Ebbing v. Ricketts, 133
Ohio St.3d 339, 2012-Ohio-4699, ¶ 21.
{¶11} Although Appellants argue on appeal that the trial court failed to address their
Civ.R. 56(F) arguments, the trial court did address this issue below in its order overruling
Appellants’ motion for an extension of discovery and a motion to compel Mr. Bauschlinger to
amend his answers to their interrogatories. In the portion of the order denying Appellants’
Civ.R. 56(F) request, the trial court noted,
[Appellants] assert in their Objections to Defendant’s Motion for Summary
Judgment that they have been denied discovery and thus cannot submit affidavits
to oppose [Mr. Bauschlinger’s] Motion for Summary Judgment. Despite this
unsworn statement in the body of their Objections, [Appellants] produce[d] three
affidavits concerning the facts and events to refute [Mr. Bauschlinger’s] Motion
for Summary Judgment. * * * Furthermore, none of these affidavits contain
averments that [Appellants] are unable [to] present by affidavit the facts essential
to oppose the motion for summary judgment. * * * Moreover, the Court found *
* * that [Mr. Bauschlinger’s] discovery responses in this case were completed
prior to the discovery deadline and within sufficient time to prepare an opposition
to a summary judgment motion.
Appellants do not challenge any of the trial court’s findings or conclusions. See App.R.
16(A)(7). Nor do they point to any portion of their affidavits which “sets forth why it is unable
to present sufficient facts to rebut a motion for summary judgment[,]” and our own review of the
summary judgment materials has not uncovered any such averment. (Internal quotations and
citations omitted.) King at ¶ 35.
{¶12} While we must liberally construe a pro se litigant’s arguments, it is not this
Court’s duty to create those arguments for them. See Pascual, 2012-Ohio-5819, at ¶ 5; Cardone,
6
1998 WL 224934, at *8. Thus, in light of the limited argument, the Appellants’ failure to
comply with the affidavit requirement of Civ.R. 56(F), and our own review of the record, we
cannot conclude that the trial court erred when it denied Appellants’ Civ.R. 56(F) request.
Accordingly, Appellants’ second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE COURT ERR[ED] IN GRANTING SUMMARY JUDGMENT[] WHEN
DEFENDANT BAUSCHLINGER DID NOT MEET ITS BURDEN OF
PROOF[.]
ASSIGNMENT OF ERROR III
THE COURT ERR[ED] IN FINDING PRO[P]ER NOTICE WAS GIVEN
BEFOR[E] CONDEMNATION OF PROPERTY.
ASSIGNMENT OF ERROR IV
THE COURT ERR[ED] IN FINDING THAT PLAINTIFFS WERE AFFORDED
TIME TO MAKE REPAIRS[] OR THAT DEMOLITION WAS NECESSARY[.]
ASSIGNMENT OF ERROR V
COURT ERR[ED] IN FINDING THAT NO INSPECTION WAS
REQUESTED[] AND IN ITS FAILURE TO ADDRESS THAT NO
INSPECTION WAS MADE OF THE PROPERTY BEFORE
CONDEMNATION[.]
ASSIGNMENT OF ERROR VI
THE COURT ERR[ED] IN FINDING BAUSCHLINGER HAD NO DUTY TO
PROTECT PERSONAL PROPERTY HE HAD TAKEN CUSTODY OF[] OR
TO RETURN SAID PROPERTY TO ITS OWNERS[] OR[ ]TO PROTECT
REAL PROPERTY[] ALSO TAKEN INTO HIS CUSTODY[.]
ASSIGNMENT OF ERROR VII
THE COURT ERR[ED] IN FINDING THAT SEAN DID NOT HAVE AT
LEAST PARTIAL OWNERSHIP OF THE PROPERTY, THAT OWNERSHIP
WAS REQUIRED, AND THAT HE DID NOT PRESENT EVIDENCE[.]
7
ASSIGNMENT OF ERROR VIII
THE COURT ERR[ED] IN GOING BEYOND THE PLEADING IN MAKING
ITS DECI[S]ION.
{¶13} In their remaining assignments of error, Appellants argue that the trial court erred
in awarding summary judgment to Mr. Bauschlinger.
{¶14} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court,
viewing the facts in the case in the light most favorable to the non-moving party and resolving
any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. Summit No. 25427,
2011-Ohio-1519, ¶ 8. Pursuant to Civ.R. 56(C), summary judgment is appropriate when:
(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from
the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a summary
judgment motion, the movant bears the initial burden of demonstrating that there are no genuine
issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt,
75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “‘must
set forth specific facts showing that there is a genuine issue for trial.’” Id. at 293, quoting Civ.R.
56(E).
{¶15} In their complaint, Appellants alleged that Mr. Bauschlinger had acted in a
wanton or reckless manner in condemning and demolishing the house where Sean Thomas
resided in 2009. Appellants sought to recover the value of the home, the value of the personal
property left in the home when the house was destroyed, and for the infliction of emotional
8
distress. In Mr. Bauschlinger’s amended answer, he denied Appellants’ averments set forth in
their claims and raised several affirmative defenses, including that Appellants’ claims were
barred by res judicata and collateral estoppel.
{¶16} Following a period of discovery, Mr. Bauschlinger moved for summary judgment.
In his motion for summary judgment, he argued that he was entitled to summary judgment
because he was immune from liability, because Appellants lacked standing to assert their claims,
and because their claims were barred by collateral estoppel. The trial court concluded that
Appellants lacked standing to recover any damages from the demolition of the structure itself but
did have standing to seek damages for the loss of personal property in the home. However, the
trial court also concluded that Mr. Bauschlinger was immune from liability because he acted
within the course of his employment and did not act in a wanton or willful manner. The trial
court went on to conclude that Mr. Bauschlinger waived the affirmative defense of res judicata
and collateral estoppel by not raising it in his answer and that, even if he had not waived the
defense of collateral estoppel, collateral estoppel would not apply in this case.1
Standing
{¶17} “It is an elementary concept of law that a party lacks standing to invoke the
jurisdiction of the court unless he has, in an individual or representative capacity, some real
interest in the subject matter of the action.” (Internal quotations and citations omitted.) Fed.
Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 22. “Where
the party does not rely on any specific statute authorizing invocation of the judicial process, the
question of standing depends on whether the party has alleged * * * a personal stake in the
1
We note that the applicability of res judicata or collateral estoppel is not before us in
this appeal because Mr. Bauschlinger has not challenged the trial court’s determination on this
issue.
9
outcome of the controversy.” (Internal quotations and citations omitted.) Id. at ¶ 21. Thus, the
question in this case is whether Sean Thomas had a personal stake in the 315 Lucas Street
property prior to its demolishment.2
{¶18} Mr. Bauschlinger argued in his motion for summary judgment that Sean Thomas
lacked standing to seek damages related to the demolition because he was not the titled owner of
the property. In support, Mr. Bauschlinger submitted a copy of a deed that listed Ms. Kiefer as
the owner of 315 Lucas Street. He also submitted copies of the decisions from the common
pleas court and this Court in Sean Thomas’s administrative appeal of the condemnation order. In
response, Sean Thomas submitted an affidavit asserting that he was the son of Ms. Kiefer.
{¶19} In its entry granting Mr. Bauschlinger’s motion for summary judgment, the trial
court discussed this Court’s holding in Thomas II and then made the following determinations:
Plaintiff Sean Thomas encounters the same evidentiary hurdles in this case to
establish standing to seek damages for the demolition of the real property [as in
Thomas II]. He simply states that he is an heir of Ruth Kiefer. Similar to the
administrative appeal, Plaintiff Sean Thomas has failed to present evidence that
he is an heir entitled to inherit the house at 315 Lucas. See [Thomas II at ¶ 9].
Nor has Sean presented any other evidence proving he was the titled owner of the
real property. [] As a matter of law, Plaintiff Sean Thomas does not have
standing to seek damages for the demolition of the real property or the loss of use
of the real property.
{¶20} From its statements in its journal entry, it appears that the trial court believed that
Sean Thomas, in order to avoid the dismissal of his claims, had to demonstrate that he had
standing to pursue them. However, this is a misapplication of the summary judgment standard.
While Sean Thomas must ultimately demonstrate standing in order to be entitled to relief, it was
Mr. Bauschlinger’s burden on summary judgment to demonstrate that there was no dispute as a
2
Appellants have not challenged the trial court’s conclusion that David Thomas did not
have standing to assert a claim regarding the real property in this case. See App.R. 16(A)(7).
We confine our analysis accordingly.
10
matter of law that Sean Thomas lacked any real interest in the property.3 Therefore, before
addressing the question of what evidence Sean Thomas had presented to demonstrate that he was
an heir, the trial court should have examined the evidence presented by Mr. Bauschlinger.
{¶21} There is no dispute that Ms. Kiefer had passed away without a will prior to the
events at issue in this case, nor is there any dispute that she was the owner of 315 Lucas Street at
the time that she died. Therefore, at the time of the condemnation proceeding, legal title to 315
Lucas Street had passed to an heir or possibly heirs. See Kirshner v. Fannie Mae, 6th Dist.
Lucas No. L-11-1027, 2012-Ohio-286, ¶ 15, quoting Overturf v. Dugan, 29 Ohio St. 230 (1876),
paragraph one of the syllabus (“Ordinarily, lands of an intestate descend at once to the intestate’s
heirs, and legal title vests in such heirs, ‘subject to the right of the administrator to sell the same
for the payment of the debts of the intestate.’”). See also Winters Natl. Bank & Trust Co. v.
Riffe, 2 Ohio St.2d 72, 76 (1965) (“The rule is and has long been that in intestate estates, where
heirs take by way of inheritance, they take title to the real estate immediately upon the death of
the intestate, and the heirs, rather than the administrator, are directly entitled to real estate rents
from the date of death.”).
{¶22} However, Mr. Bauschlinger did not present any evidence regarding Sean
Thomas’s absence of any right to inherit from Ms. Kiefer. See R.C. 2105.06 (setting forth
intestate inheritance).4 Nor did he make any such argument in his motion for summary
3
By contrast, Thomas II was not an appeal from a motion for summary judgment but,
rather, an administrative appeal. In that case, Sean Thomas appeared pro se, and the record was
devoid of evidence that established Sean Thomas’s standing to appeal. Thomas II, 2011-Ohio-
4493, at ¶ 8-9. In this case, Sean Thomas’ burden only arises if Mr. Bauschlinger met his
burden. Thus, Thomas II, which decided the narrow issue of whether the common pleas court
erred in its dismissal of an administrative appeal from the BZA’s determination is not dispositive
of this case.
4
For example, it is possible that Sean Thomas is not a biological child of Ruth Kiefer,
despite being referred to as her “son.”
11
judgment. See Hunting Natl. Bank v. Calvert, 9th Dist. Summit No. 25684, 2012-Ohio-2883, ¶
20 (A trial court may not grant summary judgment on grounds not raised.). Instead, he focused
solely upon Ms. Kiefer’s name being on the deed at the time of condemnation, which occurred
after her death. Given Mr. Bauschlinger’s argument in his summary judgment motion and his
failure to present any evidence that would call into doubt Sean Thomas’s right to inherit the
property, the trial court erred when it awarded summary judgment to Mr. Bauschlinger on the
issue of standing.
Sovereign Immunity
{¶23} Having concluded that there is at least a dispute of material fact as to whether
Sean Thomas was entitled to pursue a complaint for damages related to the demolished structure
at 315 Lucas Street, we next turn to the question of whether Mr. Bauschlinger was immune
pursuant to R.C. 2744.03(A)(6). R.C. 2744.03(A)(6) provides,
In a civil action brought against * * * an employee of a political subdivision to
recover damages for injury, death, or loss to person or property allegedly caused
by any act or omission in connection with a governmental or proprietary function,
* * * the employee is immune from liability unless one of the following applies:
(a) The employee’s acts or omissions were manifestly outside the scope of the
employee’s employment or official responsibilities;
(b) The employee’s acts or omissions were with malicious purpose, in bad faith,
or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the
Revised Code. Civil liability shall not be construed to exist under another section
of the Revised Code merely because that section imposes a responsibility or
mandatory duty upon an employee, because that section provides for a criminal
penalty, because of a general authorization in that section that an employee may
sue and be sued, or because the section uses the term “shall” in a provision
pertaining to an employee.
{¶24} We initially note that the parties do not dispute that Mr. Bauschlinger is an
employee of a political subdivision. See R.C. 2744.03(A)(6); R.C. 2744.01(B) (“‘Employee’
12
means an officer, agent, employee, or servant, whether or not compensated or full-time or part-
time, who is authorized to act and is acting within the scope of the officer’s, agent’s, employee’s,
or servant’s employment for a political subdivision. * * * ‘Employee’ includes any elected or
appointed official of a political subdivision.”). Rather, the dispute in this case is whether Mr.
Bauschlinger’s actions fell manifestly outside the scope of his employment as the Building
Commissioner for the City of Barberton or whether he acted with a malicious purpose, in bad
faith, or in a wanton or willful matter.5 See R.C. 2744.03(A)(6)(a)-(b).
Manifestly Outside the Scope of Employment
{¶25} R.C. Chapter 2744 does not define what conduct is “manifestly outside the scope
of the employee’s employment or official responsibilities.” R.C. 2744.03(A)(6)(a). However,
Ohio courts have generally held that “‘conduct is within the scope of employment if it is
initiated, in part, to further or promote the master’s business.’” Curry v. Blanchester, 12th Dist.
Clinton Nos. CA2009-08-010, CA2009-08-012, 2010-Ohio-3368, ¶ 30, quoting Jackson v.
McDonald, 144 Ohio App.3d 301, 307 (5th Dist.2001). “For an act to fall within the scope of
employment, it must be ‘calculated to facilitate or promote the business for which the [employee
or agent] was employed.’” Johnson v. Godsey, 2d Dist. Clark No. 2012 CA 80, 2013-Ohio-
3277, ¶ 32, quoting Osborne v. Lyles, 63 Ohio St.3d 326, 329 (1992). “In general, if an act is
committed within the scope of employment, it will be authorized, either expressly or impliedly,
by the employer.” Johnson at ¶ 32. “‘It is only where the acts of state employees are motivated
by actual malice or other [situations] giving rise to punitive damages that their conduct may be
outside the scope of their state employment.’” Curry at ¶ 30, quoting Jackson at 307. “The act
5
Appellants do not argue that civil liability is expressly imposed on him by the Revised
Code. R.C. 2744.03(A)(6)(c). Thus, we limit our discussion to the first two immunity
exceptions.
13
must be so divergent that it severs the employer-employee relationship.” (Internal quotations
and citations omitted.) Wee Care Child Ctr., Inc. v. Ohio Dept. of Job & Family Servs., 10th
Dist. Franklin No. 13AP-1004, 2014-Ohio-2913, ¶ 28. “One acts with a malicious purpose if
one willfully and intentionally acts with a purpose to cause harm.” Moss v. Lorain Cty. Bd. of
Mental Retardation, 185 Ohio App.3d 395, 2009-Ohio-6931, ¶ 19 (9th Dist.).
{¶26} On appeal, Appellants argue that the trial court improperly concluded that Mr.
Bauschlinger did not act manifestly outside his employment when he condemned the house in
this case and ordered it demolished. In support, they point to the Barberton Municipal Code
sections concerning the enforcement of the city’s maintenance code. Specifically, Appellants
point to Barberton Municipal Code 1462.04 and 1350.03(b)(3). Barberton Municipal Code
1462.04 provides that “[t]he ICC International Property Maintenance Code, as adopted in
Section 1462.01, shall be enforced by the Building Commissioner in accordance with Section
1350.03 of the Barberton Development Code * * *.” Pursuant to Barberton Municipal Code
1350.03(b)(3), “the Commissioner shall request the Director of Law to file an action in court to
correct the violation[]” if a violator has not taken steps to correct the violation or to challenge the
validity of the violation. According to Appellants, when read in tandem, Barberton Municipal
Code 1462.04 and 1350.03(b)(3) do not permit the Building Commissioner to condemn and
demolish a structure under his own authority; instead, Barberton Municipal Code 1350.03(b)(3)
implicitly requires the Commissioner to request that the law director file an action in court to
have a property condemned and demolished.
{¶27} However, assuming for the sake of argument that Appellants’ interpretation of the
Barberton Municipal Code is correct, we are unconvinced that the Mr. Bauschlinger’s failure to
follow the proper demolition procedure would render his actions “manifestly outside the scope of
14
[his] employment” as Building Commissioner. R.C. 2744.03(A)(6)(a). As the trial court noted
in its entry granting summary judgment, the ICC International Property Maintenance Code,
which the City of Barberton had adopted as its Maintenance Code in Barberton Municipal Code
1462.01, authorized the Building Commissioner to order the condemnation and demolition of a
structure. Furthermore, multiple sections of the Barberton Municipal Code explicitly set forth
the enforcement of the Maintenance Code as one of the Building Commissioner’s duties. There
is no evidence in the record that could support the conclusion that Mr. Bauschlinger acted to
further his own personal agenda rather than that of the city of Barberton, his employer, when he
ordered the house condemned and demolished. See Curry at ¶ 30; Wee Care Child Ctr., Inc. at ¶
28. Thus, in light of the evidence in the record and the limited arguments on appeal, we cannot
conclude that there is a genuine dispute of fact on this question or that the trial court erred as a
matter of law in its determination that Mr. Bauschlinger’s actions were not manifestly outside the
scope of his employment. See R.C. 2744.03(A)(6)(a).
Malicious Purpose, Bad Faith, or Willful or Wanton Manner
{¶28} We turn to the other potential exception to general grant of immunity in R.C.
2744.03(A)(6). Pursuant to R.C. 2744.03(A)(6)(b), an employee of a political subdivision is not
immune from civil liability if “[t]he employee’s acts or omissions were with malicious purpose,
in bad faith, or in a wanton or reckless manner.” As noted above, “[o]ne acts with a malicious
purpose if one willfully and intentionally acts with a purpose to cause harm.” Moss, 185 Ohio
App.3d 395, 2009-Ohio-6931, at ¶ 19. “Bad faith is defined as a dishonest purpose, moral
obliquity, conscious wrongdoing, [or] breach of a known duty through some ulterior motive or ill
will.” (Internal quotations and citations omitted.) Id. “Willful misconduct implies an
intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose
15
not to discharge some duty necessary to safety, or purposefully doing wrongful acts with
knowledge or appreciation of the likelihood of resulting injury.” Anderson v. Massillon, 134
Ohio St.3d 380, 2012-Ohio-5711, paragraph two of the syllabus. “Wanton misconduct is the
failure to exercise any care toward those to whom a duty of care is owed in circumstances in
which there is great probability that harm will result.” Id. at paragraph three of the syllabus.
{¶29} In Mr. Bauschlinger’s motion for summary judgment, he argued that there was no
evidence that he had acted in a willful or wanton manner in his actions towards Appellants and
the property at issue in this case. Appellants responded, arguing that Mr. Bauschlinger had
condemned the property without conducting an interior inspection and without giving the proper
notice of the condemnation. They also argued that the notice they did receive failed to list the
repairs that the property allegedly needed and that Appellants did not have an opportunity to
make the repairs. Finally, Appellants argued that Mr. Bauschlinger improperly prohibited them
from entering the property to secure it or to retrieve their personal property despite repeated
requests.
The House
{¶30} In Mr. Bauschlinger’s motion for summary judgment, his argument about whether
Appellants could prevail on the question of willful or wanton misconduct focused solely on the
issue of the personal property. Thus, Mr. Bauschlinger never addressed Appellants’ allegation
that no interior inspection had occurred or otherwise argue that condemning and demolishing a
house without conducting such an inspection could not constitute willful or wanton misconduct
on his part. See Thomas III, 2013-Ohio-1164, at ¶ 23 (noting that the facts alleged by
Appellants, including the allegation that the house had been condemned without an interior
inspection occurring, could support a finding of willful or wanton misconduct by Mr.
16
Bauschlinger). Given the limited basis articulated for summary judgment in Mr. Bauschlinger’s
motion, we conclude that he failed to meet his initial Dresher burden of demonstrating that there
was no material dispute that he was entitled to immunity regarding the condemnation and
demolition of the house. See Smith v. Ray Esser & Sons, Inc., 9th Dist. Lorain No.
10CA009798, 2011-Ohio-1529, ¶ 12-14.
The Personal Property
{¶31} During his deposition, David Thomas testified that he had requested permission
on his behalf and for Sean Thomas to enter the property to retrieve their personal belongings.
David Thomas also testified that Mr. Bauschlinger repeatedly told him that “he had no authority
to allow [Appellants] to return to the property. * * * He seemed to revel in the fact that he
did[.]” However, Mr. Bauschlinger averred in his affidavit that, “[i]f [he] or the Building
Inspection Division receive[] a request to remove personal property, our procedure is to allow
removal of personal property provided no one occupies the structure until the condemnation
notice is lifted.” Inherent in Mr. Bauschlinger’s averment is his apparent authority to allow
access to a condemned structure, contradicting his alleged statements to David Thomas that he
lacked the authority to do so. Thus, when viewed in the light most favorable to Appellants, a
trier of fact could conclude from this that Mr. Bauschlinger was intentionally misleading the
Appellants. Furthermore, it is clear that, if he refused access under the circumstances of this
case, Mr. Bauschlinger was violating the policies of his department without cause. 6
{¶32} Viewing all of this evidence in the light most favorable to Appellants, there is a
genuine dispute of fact as to whether Mr. Bauschlinger purposefully behaved in a wrongful
6
Out of an abundance of caution, we note that there may be situations where refusing
entry to a structure would be reasonable or even necessary. For example, it could be justifiable
to not allow entry into a structure if it was in danger of imminent collapse or if it was full of
toxic mold. However, no party is arguing that those situations are present in this case.
17
manner with knowledge of the likelihood of resulting injury. See Anderson, 134 Ohio St.3d 380,
2012-Ohio-5711, at paragraph two of the syllabus. Mr. Bauschlinger averred that the
department’s policy was to permit the recovery of personal property, implicitly conceding his
authority and obligation to grant access to the house; nevertheless, according to Appellants, Mr.
Bauschlinger refused to permit them to recover their personal property from inside the structure
in contravention to department policy.7 Given that the City planned to demolish the house, and
eventually did, it would be reasonable to conclude that Mr. Bauschlinger was aware that not
permitting or providing a meaningful opportunity for Appellants to retrieve their personal
property would result in the destruction of the property, i.e. result in harm to appellants.
{¶33} Accordingly, we conclude that the trial court erred when it granted summary
judgment to Mr. Bauschlinger on the basis of sovereign immunity.
Lack of Notice
{¶34} In their third assignment of error, Appellants argue that the trial court improperly
concluded that they had received notice of the condemnation of the property. Their argument is
entirely based around the assertion that there was no evidence that the notice was sent via
certified mail or received by Sean Thomas. However, the record contains a copy of the dated
letter as well as a receipt signed by Sean Thomas. Thus, based on their limited argument, we
cannot conclude that the trial court erred when it determined that Appellants had received notice
of the condemnation. See App.R. 16(A)(7).
Conclusion
7
Although Appellants concede that they were permitted to enter the home on two
occasions, they testified during their depositions and averred in their affidavits that they were
only permitted to remain in the home for a short period of time that was insufficient to actually
retrieve their personal belongings.
18
{¶35} To the extent Appellants argue that they did not receive proper notice of the
condemnation, that argument is without merit. However, to the extent they argue that the trial
court erred in granting summary judgment on the basis of sovereign immunity and Sean Thomas’
lack of standing, their assignments of error are sustained.
III.
{¶36} Appellants’ second and third assignments of error are overruled. Their remaining
assignments of error are sustained. The judgment of the Summit County Court of Common
Pleas is affirmed in part and reversed in part, and the matter is remanded for further proceedings
consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
19
EVE V. BELFANCE
FOR THE COURT
CARR, J.
WHITMORE, J.
CONCUR.
APPEARANCES:
SEAN A. THOMAS and DAVID C. THOMAS, pro se, Appellants.
ROBERT P. LYNCH, JR., Attorney at Law, for Appellee.
|
73 P.3d 215 (2003)
134 N.M. 77
2003-NMCA-085
Gilbert and Barbara APODACA; and Jeffrey and Larissa Velasquez, Plaintiffs-Appellants/Cross-Appellees,
v.
AAA GAS COMPANY, a New Mexico corporation, LP Gas Equipment Inc., a New Mexico corporation, Defendants-Appellees/Cross-Appellants.
Nos. 22,087, 21,946.
Court of Appeals of New Mexico.
March 11, 2003.
Certiorari Granted May 28, 2003.
*221 Ron Morgan, Rowena Averion-Mahloch, Mark Goodman, Morgan Law Office, Ltd., Michael B. Browde, Albuquerque, for Appellants/Cross-Appellees.
H. Brook Laskey, Gary L. Gordon, Alice Tomlinson Lorenz, Miller, Stratvert & Torgerson, P.A., Charles A. Pharris, Thomas C. Bird, Robert J. Perovich, Keleher & McLeod, P.A., Albuquerque, for Appellees/Cross-Appellants.
Certiorari Granted, No. 28,046, May 28, 2003.
OPINION
BUSTAMANTE, J.
{1} This is an appeal from a civil jury verdict in favor of Defendants denying Plaintiffs damages for personal injury and property loss. Plaintiffs raise seven points of error: (1) refusing a jury instruction for ultrahazardous activity; (2) instructing the jury that the Liquefied Petroleum Gases Handbook of the National Fire Protection Association No. 58 (NFPA 58) applied to Plaintiffs and their employer, Cañada, Inc. (Cañada); (3) allowing the admission of a hospital statement; (4) denying their motions to amend complaint against LP Gas Equipment, Inc. (LPGE); (5) denying separate peremptory challenges for Plaintiff-spouses; (6) excluding expert testimony pertaining to loss of enjoyment of life; and (7) dismissing punitive damages claim against LPGE.
{2} On cross-appeal, Defendant AAA Gas Company (AAA Gas) objects to the trial court's rulings: (1) allowing the jury to consider punitive damages, (2) allowing the jury to consider strict liability for nondelegable duty, and (3) denying them costs.[1]
{3} We affirm the judgment of the trial court as to Plaintiffs' points one through five, as well as its denial of costs. Because we affirm, we do not reach Plaintiffs' expert testimony and punitive damages issues or the jury instruction issues raised by AAA Gas.
FACTS
{4} On July 29, 1997, Plaintiffs Gilbert Apodaca and Jeffrey Velasquez suffered serious personal injuries when a propane tank they were repairing leaked liquid propane and exploded. A third mechanic, Joe Salazar, suffered severe injuries which led to his death on August 14, 1997. Apodaca, Velasquez, *222 and Salazar were employed as mechanics by Cañada, a repair shop that advertised itself as specializing in the repair of utility equipment, including liquid propane delivery trucks. AAA Gas, a seller of propane, owned the liquid propane gas and delivery truck involved in the explosion. LPGE, a distributor of liquid propane gas equipment, sold the internal cargo tank valve at issue, as a distributor of Fisher Controls, Inc. (Fisher Controls).
{5} On July 14, 1997, AAA Gas delivered one of its delivery trucks to Cañada for repair of a belly valve that would not close. Cañada requested AAA Gas to pick up the truck to empty the propane from the tank so the valve and pump could be replaced. After retrieving and emptying the truck, it was returned to Cañada, and Cañada performed certain repairs. AAA Gas retrieved the truck on July 25 and after testing the system, discovered that the tank still would not pump propane. After several attempts to troubleshoot the problem, AAA Gas called Cañada, which instructed AAA Gas to bring the truck back to the shop a third time.
{6} At trial the parties disputed whether AAA Gas informed Cañada that there was propane in the truck when it arrived at Cañada's garage the third time. However, it was undisputed that the truck was about eighty percent full of propane. Salazar moved the loaded truck into the garage for repair. When Salazar loosened the bolts under the pump, there was a sudden release of liquid propane. The propane reached an ignition source after Salazar and Apodaca made their way to the back of the truck. Salazar died of his injuries, Apodaca suffered severe third degree burns to twenty percent of his body, and Velasquez suffered second degree "flash" burns to over thirteen percent of his body.
PROCEEDINGS
{7} Salazar's estate filed a complaint for wrongful death in Valencia County. Jarner ex rel. Salazar v. AAA Gas Co., No. VA-97-1403-CV. Plaintiffs intervened in the Valencia County suit on May 25, 1999. However, Plaintiffs' claims were dismissed without prejudice for improper venue on February 21, 2000, after Salazar's claims were settled and his suit against Defendants was dismissed.
{8} Plaintiffs filed the present action in Bernalillo County. The complaint alleged negligence and products liability against AAA Gas, LPGE, and Fisher Controls. Specifically, Plaintiffs alleged AAA Gas was directly and vicariously liable under theories of common law negligence, negligence per se, and products liability for failing to remove propane from the truck before delivering it for repair. Plaintiffs alleged LPGE and Fisher Controls were negligent or strictly liable for providing a defective valve. In addition to compensatory and punitive damages sought by Apodaca and Velasquez, their wives sought damages for loss of consortium and spousal services.
{9} Some three months later, on May 15, 2000, Plaintiffs moved to amend their complaint against LPGE after discovering that Fisher Controls had not supplied the valve involved in the explosion. The amended complaint alleged LPGE had violated the Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -22 (1967, as amended through 1999), by misrepresenting the valve actually involved as new and unused. The amended complaint also alleged AAA Gas had created an ultrahazardous condition by delivering the truck for repair loaded with propane in violation of the Albuquerque Fire Code, which prohibits the repair of a cargo tank system inside a building unless all liquid propane gas is removed and the system purged. A supplemental motion to amend complaint was filed on May 22, 2000, to detail claims against LPGE and withdraw allegations against Fisher Controls.
{10} The trial court dismissed Fisher Controls with prejudice on May 26, 2000, as a result of a settlement agreement with Plaintiffs and, on June 6, 2000, the trial court then denied Plaintiffs' motions to amend. Plaintiffs in turn filed a second complaint against LPGE in the Bernalillo County District Court on June 28, 2000, essentially restating the allegations contained in their motions to amendthat LPGE misrepresented the valve involved as new and unused, and charging LPGE with one count for the UPA violation and one count of misrepresentation. On *223 February 6, 2001, the trial court dismissed this second complaint on summary judgment in favor of LPGE on res judicata and/or collateral estoppel grounds. Plaintiffs timely appealed that decision.
{11} The first complaint was tried before a jury of twelve. At the conclusion, the jury answered special interrogatories in favor of Defendants on all theories of liability. The jury answered "no" to whether AAA Gas was negligent and "no" to whether AAA Gas failed to take reasonable precautions necessary to avoid harm. The jury also answered "no" to whether LPGE was negligent and "no" to whether LPGE was liable under products liability. The trial court entered a judgment on the verdict and denied Plaintiffs' motion for a new trial. Plaintiffs timely filed this appeal, which is a consolidation of the two cases filed in Bernalillo County District Court.
{12} We review each of the above issues in the order presented on appeal.
I. Ultrahazardous Activity
{13} Plaintiffs contend that the trial court erred in refusing to instruct the jury on strict liability for ultrahazardous activity. See UJI 13-1627 NMRA 2003. Instead of submitting Plaintiffs' requested instruction 13-1627, the court instructed the jury under UJI 13-1601 NMRA 2003 (negligence) and UJI 13-1634 NMRA 2003 (strict liability for nondelegable duties). These instructions, Plaintiffs argue, were inadequate and confusing because they are theories based in negligence rather than strict liability.
{14} Plaintiffs argue that AAA Gas alone had special responsibilities for any hazard arising from the extremely volatile and explosive nature of the propane. Whereas AAA Gas was licensed, trained in the safe handling and storage of propane gas, and specifically knowledgeable in the safety requirements for having their trucks repaired in a mechanics garage, Plaintiffs correctly note that they were not required to be licensed and assert they had no special training in the safe handling of propane gas. Plaintiffs characterize the ultrahazardous activity as the "delivery of a loaded truck for [mechanical] repairs to those not expert and trained in handling l.p. gas . . . [at a repair shop located in the heart of Albuquerque]."
Standard of Review
{15} The question whether an activity is ultrahazardous or "abnormally dangerous" is determined by the court. Restatement (Second) of Torts § 520 cmt. 1 (1977) (hereinafter Restatement). Abnormally dangerous activity as referred to in Restatement (Second) of Torts §§ 519-20 (1977) is recognized to be the same as what was previously referred to as "ultrahazardous activity" in the first edition of Restatement of Torts §§ 519-20 (1938). Saiz v. Belen Sch. Dist., 113 N.M. 387, 397 n. 8, 827 P.2d 102, 112 n. 8 (1992). This inquiry is different from questions of negligence, or the failure to use reasonable care, which is a question for the jury. Restatement cmt. 1. "[S]trict liability . . . involves a characterization of the defendant's activity or enterprise itself, and a decision as to whether he is free to conduct it at all without becoming subject to liability for the harm that ensues even though he has used all reasonable care." Id. Thus, the determination of whether an activity is abnormally dangerous is a question of law for a court to decide. See Fernandez v. Walgreen Hastings Co., 1998-NMSC-039, ¶ 1, 126 N.M. 263, 968 P.2d 774 (determining whether plaintiff alleges a valid theory upon which relief may be granted is a pure question of law); see also Saiz, 113 N.M. at 395-96, 827 P.2d at 110-11 (comparing abnormally dangerous activity to inherently dangerous activity which is a question of law). Questions of law require de novo review. Gabaldon v. Erisa Mortgage Co., 1999-NMSC-039, ¶ 7, 128 N.M. 84, 990 P.2d 197.
Analysis
{16} The doctrine of strict liability for an abnormally dangerous activity derives from the notion that "`one who conducts [the activity] should prepare in advance to bear the financial burden of harm proximately caused to others by such activity.'" Arlington Forest Assocs. v. Exxon Corp., 774 F.Supp. 387, 389 (E.D.Va.1991) (mem.) (quoting C. Morris & C.R. Morris on Torts, Ch. IX at 231 (2d ed.1980)). It is a "social policy *224 [that] requires the defendant to make good the harm which results to others from abnormal risks which are inherent in activities that are not considered blameworthy because they are reasonably incident to desirable industrial activity." McLane v. Northwest Natural Gas Co., 255 Or. 324, 467 P.2d 635, 637 (1970). "The basis of the liability is the intentional behavior [that exposes] the community to the abnormal risk[s]." Id. Abnormal risks "will be tolerated by the law, but [the company] must pay its way by insuring the public against the injury it causes." Arlington Forest Assocs., 774 F.Supp. at 389-90 (internal quotation marks and citation omitted). In short, the company is the insurer of the activity because it is impossible to eliminate the abnormal risk of the activity. The doctrine is not to be imposed where negligence law provides an adequate remedy.
{17} Strict liability was developed "to govern accidents that negligence liability cannot adequately control." Indiana Harbor Belt R.R. Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1177 (7th Cir.1990). The doctrine provides a remedy for uncommon and extraordinarily dangerous activities where negligence liability is an inadequate deterrent or remedy. See, e.g., Brooks v. Beech Aircraft Corp., 120 N.M. 372, 375-77, 902 P.2d 54, 57-59 (1995). And, it "imposes responsibility upon persons engaged in such activities for any resulting harm even though all reasonable precautions have been taken against the risk of harm the activity creates." Saiz, 113 N.M. at 397, 827 P.2d at 112. But where the "hazards of an activity can be avoided by being careful . . ., there is no need to switch to strict liability." Indiana Harbor Belt R.R. Co., 916 F.2d at 1177.
{18} New Mexico first recognized the doctrine of strict liability for ultrahazardous activities in Thigpen v. Skousen & Hise, 64 N.M. 290, 293, 327 P.2d 802, 805 (1958). In that case, the Court adopted Sections 519 and 520 of the Restatement. First Nat'l Bank v. Nor-Am Agric. Prods., Inc., 88 N.M. 74, 79, 537 P.2d 682, 687 (Ct.App.1975); see also Saiz, 113 N.M. at 397 & n. 8, 827 P.2d at 112 & n. 8 (indicating that the court now follows Section 519 of the Restatement). Since Thigpen, our courts have measured a number of activities against the ultrahazardous standard, refusing to apply the theory to any. See, e.g., Saiz, 113 N.M. at 397, 827 P.2d at 112 (installing high voltage lighting system is not ultrahazardous); Gutierrez v. Rio Rancho Estates, Inc., 93 N.M. 755, 757, 605 P.2d 1154, 1156 (1980) (declining to impose strict liability for artificial collection and channeling of large quantities of water in rural area); Rodgers v. City of Loving, 91 N.M. 306, 310, 573 P.2d 240, 244 (Ct.App. 1977) (burning weeds in open field within city limits and near buildings is not ultrahazardous); First Nat'l Bank, 88 N.M. at 79, 537 P.2d at 687 (marketing highly toxic chemical commonly used as a seed disinfectant is not ultrahazardous); Otero v. Burgess, 84 N.M. 575, 577, 505 P.2d 1251, 1253 (Ct.App.1973) (storing dynamite is not ultrahazardous).
{19} Defendants argue that ultrahazardous activity should be limited to dynamite blasting, asserting that because our courts have refused to extend the doctrine beyond such cases, we should not do so here. However, this Court is not foreclosed from such a finding, if the facts warrant. See Thigpen, 64 N.M. at 294, 327 P.2d at 805 (adopting Restatement Sections 519 and 520 and noting blasting is one type of ultrahazardous activity); see also Schwartzman, Inc. v. Atchison, Topeka & Santa Fe Ry. Co., 842 F.Supp. 475, 477-78 (D.N.M.1993) (mem. & order) (noting that the doctrine has not been extended beyond blasting is only an "historical observation"). Thus, an analysis of the Restatement factors is appropriate.
{20} Section 519 of the Restatement sets forth the general rule regarding strict liability in tort for abnormally dangerous activities as follows:
(1) [o]ne who carries on an abnormally dangerous activity is subject to liability for harm . . . resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
{21} Section 520 of the Restatement defines "abnormally dangerous" as "abnormal dangers [that] arise from activities that are *225 in themselves unusual, or from unusual risks created by more usual activities under particular circumstances." Restatement § 520 cmt. f. The Restatement then sets out six factors that a court must consider in determining whether an activity is abnormally dangerous.
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Restatement § 520. The commentary explains that the court must consider each factor, apportioning weight to each in accordance with the evidence. See id. cmts. f & l. While each factor need not be present, "ordinarily several of them will be required for strict liability. . . . [although] it is not necessary that each of them be present, especially if others weigh heavily." Id. cmt. f. According to Restatement Section 520, "[t]he essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even . . . without the need of a finding of negligence." Id.
High Degree of Risk and Likelihood of Harm Will Be Great
{22} Defendants concede that factors (a) and (b) are satisfied because propane is a flammable gas that explodes when ignited by the smallest spark. Plaintiffs' recitation of the facts highlights these factors:
[A]ny escape of propane . . . has a virtual certainty of exploding because the tiniest spark will ignite it. It expands from its liquid state 270 times its volume into a gaseous state the instant it is released into the atmosphere. It is heavier than air and therefore develops vapor clouds from the ground up . . . Once it is in an unconfined gas form, l.p. gas is no longer controllable and can easily be ignited by any number of unsuspicious ignition sources, including static electricity produced by clothing or a dropped tool; indeed, "l.p. gas seeks an ignition source."
Given these facts and Plaintiffs' injuries, the likelihood of great harm from a propane explosion is obvious. Factors (a) and (b) have been satisfied.
Elimination of Risk by the Exercise of Reasonable Care
{23} Although the Restatement instructs courts to consider each factor, the question of whether reasonable care can eliminate the high degree of risk is often central to the determination of whether an activity is abnormally dangerous. Arlington Forest Assocs., 774 F.Supp. at 390; Koos v. Roth, 293 Or. 670, 652 P.2d 1255, 1263 (1982); McLane, 467 P.2d at 638; Erbrich Prods. Co. v. Wills, 509 N.E.2d 850, 857 n. 3 (Ind.Ct. App.1987). This is so because it is the inability to eliminate the risks by taking precautions that distinguishes strict liability from negligence. See Saiz, 113 N.M. at 396-97, 827 P.2d at 111-12.
{24} While some jurisdictions read Restatement § 520(c) to require a complete elimination of the risk, see, e.g., McLane, 467 P.2d at 638; Zero Wholesale Gas Co. v. Stroud, 264 Ark. 27, 571 S.W.2d 74, 76, 78 (1978), the elimination of any and all risks is virtually impossible in most cases. This Court finds the better rule is that subsection (c) refers to an inability to eliminate the high degree of risk, i.e., an inability to reduce the risk to reasonable levels. See Restatement § 520 cmt. h; Arlington Forest Assocs., 774 F.Supp. at 390 n. 4; New Meadows Holding Co. v. Washington Water Power Co., 102 Wash.2d 495, 687 P.2d 212, 216 (1984) (en banc). "[A]nything can happen. The question is, how likely is this type of accident if the actor uses due care?" Indiana Harbor Belt R.R. Co., 916 F.2d at 1179.
{25} Undeniably, propane is a dangerous substance, but reasonable precautions can *226 reasonably reduce the risk of, if not prevent, explosions. See generally NFPA 58; Searle v. Suburban Propane Div. of Quantum Chem. Corp., 263 A.D.2d 335, 700 N.Y.S.2d 588, 591 (App.Div.2000) (finding installation and maintenance of a propane gas storage tank did not constitute an ultrahazardous activity since reasonable precautions can be taken to prevent explosion); Travelers Ins. Co. v. Chrysler Corp., 845 F.Supp. 1122, 1125 (M.D.N.C.1994) (mem. & order) (declining to extend strict liability to propane powered vehicles because of the low risk of harm with the exercise of reasonable care); Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 587-89 (Colo.1984) (en banc) (instructing on degree of care required of propane suppliers in negligence claim). Moreover, Plaintiffs and Defendant AAA Gas agree the accident could have been avoided if the tank and its delivery system had been purged of propane or the repair had been performed outside the garage.
{26} To avoid the necessary consequences of these facts, Plaintiffs define the activity subject to strict liability to include characteristics of the Plaintiffs that made the situation more dangerous handing over a fully loaded propane truck for repair to mechanics, who are unlicensed and inexperienced in the safe handling of propane, at a repair shop located in the heart of Albuquerque. In short, Plaintiffs' position is that no amount of reasonable care can make the repair safe when the truck is fully loaded and handed over to inexperienced mechanics. However, Plaintiffs' characterization would swallow the rule.
For strict liability purposes, the danger cannot be predicated on mere causal or collateral negligence of others with respect to [the activity] under the particular circumstances. . . . [Plaintiff's] particularized approach to defining the nature of an activity would, in effect, enable plaintiffs to invoke strict liability for all negligently-conducted activity.
Arlington Forest Assocs., 774 F.Supp. at 392 (internal quotation marks and citation omitted). "Any plaintiff in a negligence action could simply characterize the offending behavior as incapable of being safely performed even with due care, thus bringing it within the scope of strict liability." Id.
{27} The fact remains that if Defendants had delivered the tank unloaded and purged of gas, or if Plaintiffs had repaired the truck outside the garage, the risk of an explosion would likely have been greatly reduced. See NFPA 58, §§ 6-6.2.2(a), 6-6.2.3(c). This is not a case where the risk of harm is impossible to predict because serious injuries may result despite every reasonable precaution. See Thigpen, 64 N.M. at 294, 327 P.2d at 805 ("Blasting is ultrahazardous because high explosives are used and it is impossible to predict with certainty the extent or severity of its consequences.") (quoting Restatement § 520(c)) (emphasis added); see also Philip Morris Inc. v. Emerson, 235 Va. 380, 368 S.E.2d 268, 282 (1988) (denying strict liability for negligent release of pentaborane gas since, unlike blasting which is impossible to predict, all parties had the ability to eliminate the risk of injury by exercising reasonable care). But see Siegler v. Kuhlman, 81 Wash.2d 448, 502 P.2d 1181, 1187 (1972) (en banc) (transporting gasoline by truck on highway involved high degree of risk that could not be eliminatedreasonable care could not ensure against "concealed or latent mechanical or metallurgical defects in the carrier's equipment, . . . negligence of third parties, . . . latent defects in the highways and streets, and . . . all of the other hazards not generally disclosed or guarded against by reasonable care").
{28} The high degree of risk inherent in an activity can be reduced to a minimum by compliance with adequate regulations. The handling of liquid propane is heavily regulated by a nationally recognized regulatory code that was adopted by state law and city ordinance at the time of the accident. See NFPA 58; State Liquefied Petroleum Gas and Compressed Natural Gas Act ("LPG & CNG Act"), NMSA 1978, §§ 70-5-1 to -23 (1947, as amended through 1999); Albuquerque Fire Code, § 14-2-1(B)(3) (1993). As discussed below, the national standard, as adopted by New Mexico, applies to the general public within the state, and, as adopted by the City of Albuquerque, it applies to all commercial businesses within the city. Propane *227 is relatively safe if it is handled in accordance with these regulations. It is when the precautions prescribed by NFPA 58 are not taken that handling propane becomes extremely dangerous.
{29} Moreover, Plaintiffs have offered no reason why the negligence regime is inadequate to remedy or deter accidental explosions resulting from the repair of a loaded propane truck. Propane is highly flammable, but there is no evidence it is so corrosive or otherwise destructive that it will unpredictably damage or weaken a tanker's valve or delivery system. The cause of the explosion in this case was carelessnesswhether it was a defective valve supplied by LPGE, or the delivery of a loaded propane tank by AAA Gas, or the mechanics' decision to pull the truck into the garage for repair, or any combination of these factors. "Accidents that are due to a lack of care can be prevented by taking care; and when a lack of care can . . . be shown in court, such accidents are adequately deterred by the threat of liability for negligence." See Indiana Harbor Belt R.R. Co., 916 F.2d at 1179; see also Arlington Forest Assocs., 774 F.Supp. at 390. Strict liability is appropriate only where the activity remains dangerous despite all reasonable precautions. Id. at 391. Since some precautions could have reasonably reduced the danger of repairing the propane truck, this factor has not been satisfied.
Uncommon Usage
{30} The Restatement defines common usage as an activity "customarily carried on by the great mass of mankind or by many people in the community." Restatement § 520 cmt. i. It is the activity, not the substance, that must be of common usage. Indiana Harbor Belt R.R. Co., 916 F.2d at 1181. The fact that an activity is not carried on by the "great mass of mankind," however, is not decisive. What is customary activity in the community has come to encompass customary industrial activity throughout the country. See, e.g., New Meadows Holding Co., 687 P.2d at 216 (concluding underground transmission of gas by large utility companies is matter of common usage); Johnson & Johnson v. First Nat'l Bank, 268 Ark. 726, 594 S.W.2d 870, 872 (1980) (stating that while "CS2 may be an uncommon gas, . . . it [is] more important that it be uncommon for industrial operations to store and use potentially dangerous gases in pipes in factories in industrial areas"); First Nat'l Bank, 88 N.M. at 79, 537 P.2d at 687 (marketing of Panogen was matter of common usage where "grain treatment had wide acceptance and use throughout the country at the time of the . . . incident"); Arlington Forest Assocs., 774 F.Supp. at 391 (storing and removing gas from commercial underground storage tanks is not "carried on by the great mass of mankind . . . [but] filling stations with underground storage tanks are commonplace in most communities throughout the country") (internal quotation marks omitted). Thus, in order to satisfy this Restatement factor, "the activity . . . [must be] uncommon in the circumstances in which it causes injury." Johnson & Johnson, 594 S.W.2d at 872.
{31} AAA Gas cites to the widespread use of propane in every town, home, and business, noting that anyone can buy propane at the convenience store. However, the focus of factor (d) is not on the substance but on whether the activity is commonplace. Thus, Plaintiffs' argument that repairing a loaded propane truck is uncommon to the mass of our citizenry is appropriate. The more accurate question here, however, is whether delivering loaded propane trucks for repair is uncommon industrial activity across the country. Plaintiffs have offered no such evidence. To the contrary, at least two witnesses testified that delivering a propane truck for repair with propane in the tank and delivery system to assist in troubleshooting is common in the industry. Therefore, on balance, this factor is not satisfied.
Appropriateness of Locale
{32} Restatement Section 520(e) considers the appropriateness of an activity to its location. According to the Restatement, this factor is sometimes referred to as strict liability for a "`non-natural' use of the defendant's land." Restatement § 520 cmt. j. In other words, the activity "must be . . . inappropriate to the place where it is maintained, *228 in the light of the character of that place and its surroundings." Otero, 84 N.M. at 579, 505 P.2d at 1255 (internal quotation marks and citation omitted).
{33} Plaintiffs, in effect, argue that their own employer's business was situated in a locale that was inappropriate for working on propane tanks, yet two to five percent of their business, about six trucks in the six months prior to the accident, involved such work. The remaining business involved heavy industrial equipment. At the time of the accident, Cañada was located a few hundred feet from the Wyoming gate of Kirtland Airforce Base, surrounded by residential and commercial property. An Albuquerque Fire Department investigator testified that he believed there were some repair shops like Cañada around town but he was unsure of the number.
{34} Given that the property was surrounded by commercial property and that Plaintiffs do not argue otherwise, we assume the property was zoned for commercial use. Thus, Cañada was not improperly located from that standpoint. The record reveals no information either about the location of Cañada's customers or other shops providing the same services as Cañada. It can reasonably be said that Defendants have no choice but to take their trucks to locations where there are shops to service them. It would be unrealistic to hinge imposition of strict liability on the existence of a hypothetical mechanic in the countryside or to expect mechanics to move their businesses out of town and away from other customers. The simple proximity of residences to Cañada's garage is not enough to meet the requirements of this factor.
Value to the Community
{35} "Even though the activity involves a serious risk of harm that cannot be eliminated with reasonable care and it is not a matter of common usage, its value to the community may be such that the danger will not be regarded as an abnormal one." Restatement § 520 cmt. k. Propane has clear value to the community given its prevalent use in industry, residential heating, and recreation. See New Meadows Holding Co., 687 P.2d at 216. It seems to us that to have propane safely delivered, it is desirable that the delivery trucks be in good working order. Thus, repairing propane trucks is inherently valuable to the community. Moreover, despite the danger, the state and city allow the handling of propane by imposing regulations to minimize the risk. The value to the community is clear.
Conclusion
{36} We are compelled by our precedent and the policy behind the doctrine of strict liability for abnormally dangerous activities to hold that the repair of propane trucks is not an ultrahazardous activity in New Mexico.
II. Application of NFPA 58 to Plaintiffs
{37} The second issue on appeal is whether the trial court erred by instructing the jury that NFPA 58 applied to "any person or company," which included Plaintiffs or their employer. At trial, Plaintiffs tendered two negligence per se instructions relating to an asserted violation of the Albuquerque Fire Code, § 14-2-1(B)(3) and NFPA 58, § 6-6.2.3 by "defendant" AAA Gas. Modifying Plaintiffs' instructions, the trial court created one instruction, added another section of NFPA § 6-6.2.2 and made the instruction applicable to "any person or company" to whom the law could apply. The instruction as given to the jury read as follows:
There was an ordinance in force in the city of Albuquerque, at the time of the occurrence in question, which provided as follows:
For the purpose of prescribing minimum standards regulating conditions hazardous to life and property from fire and explosion within the city, the following code is adopted:
The N.F.P.A. Fire Codes and Supplements. . .
Additionally there were two New Mexico statutes in force adopting the N.F.P.A.Code and supplements. These provisions of the N.F.P.A.Code state:
6-6.2.2 Vehicles parked indoors shall comply with the following:
*229 (a) Cargo vehicles parked in any public garage or building shall have LP-Gas liquid removed from the cargo container, piping, pump, meter, hoses, and related equipment, and the pressure in the delivery hoses, and related equipment shall be reduced to approximately atmospheric, and all valves shall be closed before the vehicle is moved indoors. Delivery hose or valve shall be plugged or capped before the vehicle is moved indoors.
(b) Vehicles used to carry portable containers shall not be moved into any public garage or building for parking until all portable containers have been removed from the vehicle.
(c) Vehicles carrying or containing LP-Gas shall be permitted to be parked in buildings complying with Chapter 7 and located on premises owned or under the control of the operator of such vehicles, provided:
1. The public is excluded from such buildings.
2. There is adequate floor level ventilation in all parts of the building where such vehicles are parked.
3. Leaks in the vehicle LP-Gas systems are repaired before the vehicle is moved indoors.
4. Primary shutoff valves on cargo tanks and other LP-Gas containers on the vehicle (except propulsion engine fuel containers) are closed and delivery hose outlets plugged or capped to contain system pressure before the vehicle is moved indoors. Primary shutoff valves on LP-Gas propulsion engine fuel containers shall be closed while the vehicle is parked.
5. No LP-Gas container is located near a source of heat or within the direct path of hot air being blown from blower-type heater.
6. LP-Gas containers are gauged or weighed to determine that they are not filled beyond the maximum filling limit according to Section 4-4.
6-6.2.3 Vehicles shall be permitted to be serviced or repaired indoors as follows:
(a) when it is necessary to move a vehicle into any building located on premises owned or operated by the operator of such vehicle for service on engine or chassis, the provisions of 6-6.2.2(a) or (c) shall apply.
(b) When it is necessary to move a vehicle carrying or containing LP-Gas into any public garage or repair facility for service on the engine or chassis, the provisions of 6-6.2.2(a) or (b) shall apply, unless the driver or a qualified representative of an LP-Gas operator is in attendance at all times while the vehicle is indoors. In this case, the following provisions shall apply under the supervision of such qualified persons:
1. Leaks in the vehicle LP-Gas system shall be repaired before the vehicle is moved indoors.
2. Primary shutoff valves on cargo tanks, portable containers, and other LP-Gas containers installed on the vehicle (except propulsion engine fuel containers) shall be closed. LP-Gas liquid shall be removed form [sic] the piping, pump, meter, delivery hose, and related equipment and the pressure therein reduced to approximately atmospheric before the vehicle is moved inside. Delivery hose or valve outlets shall be plugged or capped before the vehicle is moved indoors.
3. No container shall be located near a source of heat or within the direct path of hot air blown from a blower or from a blower-type heater.
4. LP-Gas containers shall be gauged or weighed to determine that they are not filled beyond the *230 maximum filling capacity according to Section 4.4.
(c) If repair work or servicing is to be performed on a cargo tank system, all LP-gas shall be removed from the cargo tank and piping, and the system shall be thoroughly purged before the vehicle is moved indoors.
If you find from the evidence that any person or company violated this ordinance, then you are instructed that such conduct constituted negligence as a matter of law.
{38} Plaintiffs' position is that the NFPA standard does not apply to them as a matter of law, so that allowing the jury to consider Plaintiffs' alleged violation of it was improper and prejudicial. According to Plaintiffs, the jury was misled and confused by the testimony about their alleged violation of the standard. Plaintiffs' argument in support of their position is twofold. First, Plaintiffs were not required to be licensed under NFPA 58. Since they were not tested on the handling, transfer, and storage of propane, they were less knowledgeable about the safe handling of propane than AAA Gas which was required to be licensed. Second, Plaintiffs argue that the standard applies to persons and companies in the propane industry who regularly handle, transfer, and store propane, not incidental users of propane in the performance of job requirements. Plaintiffs point to the scope and application sections of each of the eleven chapters of NFPA 58, as well as Section 1-5, entitled "Qualification of Personnel," and a portion of the commentary contained in the handbook and attached to Plaintiffs' brief-in-chief as an appendix. Defendants correctly note that except for §§ 6-6.2.2 and 6-6.2.3, the NFPA material provided by Plaintiffs were not part of the record. However, we do not rely on those materials in reaching our decision.
{39} AAA Gas counters that the Albuquerque Fire Code incorporated NFPA 58, making the regulation applicable to Plaintiffs. Moreover, it argues, NFPA 58 applies to Plaintiffs on its face: Section 6-6.2.2(a) prohibits "[c]argo vehicles [from being] parked in any public garage or building [without first removing propane] from the cargo container, piping, pump, meter, hoses, and related equipment. . . ." And Section 6-6.2.3 specifically addresses repair and servicing of the cargo tank system indoors, prohibiting such activity unless the tank has been emptied and purged of propane. Plaintiffs violated these rules when they parked the truck in the garage and began to service the truck without first assuring all of the propane was removed. Both Defendants argue that the jury had sufficient evidence to find NFPA 58 applied to Plaintiffs.
Preservation
{40} We briefly address preservation. Plaintiffs claim they have preserved this matter by their tender of two instructions and their general pre-trial objections to the opinion testimony of witnesses regarding the applicability of NFPA 58 to Plaintiffs or their employer. Subject to certain exceptions, Rule 12-216(A) NMRA 2003 requires that the record reflect that a ruling by the trial court was fairly invoked. "The principal purpose of the rule . . . is to alert the mind of the trial judge to the claimed error and to accord the trial court an opportunity to correct the matter." Madrid v. Roybal, 112 N.M. 354, 356, 815 P.2d 650, 652 (Ct.App. 1991). The tender but refusal of an instruction is generally sufficient to preserve error. See, e.g., State v. Sarracino, 1998-NMSC-022, ¶¶ 8, 11, 125 N.M. 511, 964 P.2d 72; State v. Montano, 83 N.M. 523, 524, 494 P.2d 185, 186 (Ct.App.1972); State v. Gonzales, 82 N.M. 388, 392, 482 P.2d 252, 256 (Ct.App.1971). However, where one instruction is given rather than another, the party must draw the court's attention to the specific defect in the given instruction to preserve it for appellate review. Sonntag v. Shaw, 2001-NMSC-015, ¶ 17, 130 N.M. 238, 22 P.3d 1188; Lewis v. Rodriguez, 107 N.M. 430, 435, 759 P.2d 1012, 1017 (Ct.App.1988).
{41} From all appearances, the trial court did not refuse Plaintiffs' tendered instruction. Rather the trial court modified Plaintiffs' and Defendants' instructions by adding Section 6-6.2.2 and changing "if you find . . . defendant violated this ordinance *231. . . ." to "if you find . . . any person or entity violated this ordinance. . . ." The court gave one instruction, rather than another. Plaintiffs should have alerted the trial court, on the record, of their objections to the instruction given. We have not found any objection in the record to the instruction given. Rather, it appears the instructions were informally settled off the record. Although the parties were later given an opportunity to make formal objections on the record and Plaintiffs objected to other instructions, they did not specifically object to the "fatal" instruction, much less point out the defect it now argues. As a result, we are deprived of the court's rationale for instructing the jury that the regulation could apply to "any party or company."
{42} On the other hand, we note that neither Defendant has raised this issue. Moreover, the trial court indicated that the "tendered instructions [that were not given were] specifically rejected in spite of [Plaintiffs'] arguments to the contrary that sufficient evidence or the state of the law warrant[ed] the giving of said instructions." In light of these circumstances, and Plaintiffs' general pre-trial objections, we believe the trial court was alerted to Plaintiffs' position. We wish to point out, however, that the question of whether Plaintiffs preserved this matter is a close call. We believe it was barely adequate. We caution parties in the future to clearly specify their objections to a given instruction on the record to preserve the matter for appellate review.
Applicability of NFPA 58
{43} Our Supreme Court has adopted the following test to determine whether a negligence per se instruction is appropriate:
(1) [T]here must be a statute which prescribes certain actions or defines a standard of conduct, either explicitly or implicitly, (2) the defendant [or plaintiff] must violate the statute,[2] (3) the plaintiff must be in the class of persons sought to be protected by the statute, and (4) the harm or injury to the plaintiff must generally be of the type the legislature through the statute sought to prevent.
Archibeque v. Homrich, 88 N.M. 527, 532, 543 P.2d 820, 825 (1975). Plaintiffs' argument is essentially that the negligence per se instruction fails the first and second prong of this test because the regulation was not applicable to them. We must determine whether the NFPA 58 standard applied to Plaintiffs as a matter of state or municipal law. Questions of law are reviewed de novo. See Davis v. Bd. of County Comm'rs, 1999-NMCA-110, ¶ 11, 127 N.M. 785, 987 P.2d 1172 (ruling the existence of a legal duty is a question of law); see also Acosta v. City of Santa Fe, 2000-NMCA-092, ¶ 16, 129 N.M. 632, 11 P.3d 596 (interpreting ordinance to determine if legal duty exists is a question of law); Gabaldon v. Erisa Mortgage Co., 1997-NMCA-120, ¶ 6, 124 N.M. 296, 949 P.2d 1193, rev'd in part on other grounds by 1999-NMSC-039, ¶ 7, 128 N.M. 84, 990 P.2d 197 (reviewing courts apply de novo standard to determine questions of law).
{44} The LPG & CNG Act regulates the repair of vehicles used to deliver propane gas in compliance with NFPA standards. Id. §§ 70-5-3 and -4. A preliminary review of the NFPA 58 materials provided by Plaintiffs suggests the standard is applicable to the propane industry such as AAA Gas, rather than incidental handlers such as Plaintiffs. Plaintiffs also cite Trinity Universal Ins. Co. v. Streza, 8 P.3d 613, 617 (Colo.Ct.App.2000) which held incidental users of propane were outside the scope of NFPA 58. The Trinity court's conclusion that NFPA 58 did not apply to incidental users of propane was based on expert opinion and a finding that defendant was not within the scope of a state statute adopting the NFPA 58. Id. at 616.
{45} Plaintiffs argue that, like the defendant in Trinity, they are "incidental users" of propane and are not within the scope of our LPG & CNG Act. However, unlike Trinity, this Court has already held *232 that the state standards apply to members of the general public. Jaramillo v. Fisher Controls Co., 102 N.M. 614, 620, 698 P.2d 887, 893 (Ct.App.1985) (finding LPG Bureau, which adopted NFPA 58, imposed a standard and a duty to comply with the standard on plaintiff who purchased a propane regulator to test his home stove). "Legislatively authorized rules and regulations have the force of law," and the "[v]iolation of a properly adopted and filed rule or regulation is negligence per se." Id. at 619, 698 P.2d at 892; accord Brininstool v. N.M. State Bd. of Educ., 81 N.M. 319, 322, 466 P.2d 885, 888 (Ct.App.1970); see also F.D.I.C. v. Schuchmann, 235 F.3d 1217, 1223 (10th Cir.2000) (interpreting New Mexico law). Here there is no argument presented to suggest the regulation was not properly adopted and filed. We hold that pursuant to Jaramillo, the LPG & CNG Act created a legal duty in Plaintiffs to adhere to NFPA 58. As such, the trial court did not err in instructing the jury that the standard applied to Plaintiffs as a matter of state law.
{46} We are not persuaded Plaintiffs can escape the Albuquerque Fire Code, which served as the basis for the court's instruction on negligence per se. At the time of the explosion, the City of Albuquerque had a fire code in effect which adopted NFPA 58. Section 14-2-1(A)(3) (1994).[3] Specifically, Section 14-2-1 reads as follows:
(A) For the purpose of prescribing minimum standards regulating conditions hazardous to life and property from fire and explosion within the city, the following code is adopted.
(B) The following documents, as amended in § 14-2-2, are adopted as the Fire Code of the city, and from the date on which this article takes effect, shall be controlling within the boundaries of the city:
. . . .
(3) The N.F.P.A. Fire Codes and Supplements, as published by the National Fire Protection Association as a reference, except N.F.P.A. 101 will be adopted as it applies to existing buildings built prior to January 5, 1989. ('74 Code, § 7-27-1A) (Ord.22-1993).
(emphasis added). We are not aware of any cases that determine whether the Albuquerque Fire Code applies to Plaintiffs as Defendants contend. We, therefore, construe the ordinance as a matter of first impression. The same guides for construction used in interpreting statutes apply to construing an ordinance. Acosta, 2000-NMCA-092, ¶ 17, 129 N.M. 632, 11 P.3d 596. "[W]e must interpret the ordinance to mean what the City intended it to mean and to accomplish the ends sought to be accomplished." Id. The stated purpose of the Albuquerque Fire Code is to impose "minimum standards [to regulate] conditions [that create a risk] to life or property from fire and explosion within the city." Section 14-2-1(A). To accomplish this goal, the city adopted the NFPA 58 as it applies to all "existing buildings." Section 6-6.2.2(a) expressly prohibits the parking of a loaded propane truck in any public garage or building. Section 6-6.2.3(c) expressly prohibits repairing a loaded propane truck indoors.
*233 {47} The plain language of the statute does not exempt repair shops or their employees from the Albuquerque Fire Code, nor does it limit the effect of its reach to persons or businesses in the "propane industry." Rather, the Albuquerque Fire Code applies generally to all existing buildings in Albuquerque. "[O]rdinances enacted under the police power of a municipality for the protection of the public health and safety,. . . should be liberally construed." Srader v. Pecos Constr. Co., 71 N.M. 320, 325, 378 P.2d 364, 367-68 (1963). Reading the statute in light of its intended purpose and as a whole, we find Plaintiffs were subject to the Albuquerque Fire Code, including NFPA 58.
{48} Rules and regulations adopted by city ordinance have the force of law. City of Albuquerque v. Ryon, 106 N.M. 600, 602, 747 P.2d 246, 248 (1987). Having the force of law, municipal rules and regulations impose a standard and a duty to comply with that standard. Noncompliance is not excused by ignorance of the standard, nor is testimony regarding noncompliance inadmissible. Jaramillo, 102 N.M. at 620, 698 P.2d at 893.
{49} There is no dispute that the city adopted NFPA 58 in its Albuquerque Fire Code and there is no challenge to the validity of that ordinance. The ordinance applied to Plaintiffs and their employer Cañada. It imposed standards and a legal duty to comply with the standards on Plaintiffs. The fact that Plaintiffs were not licensed and pleaded ignorance of the rules and regulations does not excuse noncompliance with the standard. This is so, especially in light of the fact that the record shows Cañada was certified by the LP Gas Bureau to work on propane trucks, held itself out as proficient in this line of work, and its mechanics were experienced in the repair of propane trucks.
{50} In light of the foregoing, we hold the jury instruction on Plaintiffs' negligence per se was proper as a matter of law. It follows that the admission of evidence of Plaintiffs' violation was relevant and, if otherwise proper, not error. See Jaramillo, 102 N.M. at 620, 698 P.2d at 893.
III. OSHA Statement
{51} Following the explosion at Cañada on July 29, 1997, Velasquez was admitted to the University of New Mexico Burn Center in Albuquerque. Five hours prior to his discharge on July 31, an OSHA investigator conducted an interview of Velasquez. The interview began at 11:00 a.m., and a one and one-half page statement was prepared by the investigator which Velasquez subsequently signed. A second interview resumed at noon the same day and, at its conclusion, Velasquez signed a two and one-half page statement prepared by the investigator. According to Plaintiffs, the pertinent and damaging statements attributed to Velasquez were as follows:
(1) he and Joe Salazar were helping diagnos[e] the truck through procedures . . . on the back of the truck & there was no flow coming out; (2) Joseph had the bypass hose hooked up off the back into the tank to see if it would pump. . .; and (3) when we got the truck from AAA, they said they had just put some fuel in there, but I didn't know how much. (Internal quotation marks omitted.)
{52} Plaintiffs challenge the admission of these statements on three grounds: (1) the statement is prohibited by NMSA 1978, § 41-1-1 (1971); (2) the statement was not properly authenticated; and (3) as a result of medication and post traumatic shock, Velasquez was incompetent to give the statement at the time it was taken, making the statement unreliable.
Admissibility Under Section 41-1-1 (Release Act)
{53} The Release Act governs settlements, releases, and statements of injured patients. The Act excludes from evidence any statement for "use in negotiating a settlement or obtaining a release" taken by a "person whose interest is or may become adverse" to an injured patient during the patient's first fifteen days of confinement in a hospital, if it is disavowed fifteen days after discharge or not acknowledged before a notary. Section 41-1-1(A)(3). The provisions of the Act do not apply if the injured party prepares a written, notarized acknowledgment *234 of his or her willingness to give the statement at least five days before the statement is taken. NMSA 1978, Section 41-1-2 (1971)
{54} Although the statement was taken by OSHA, a government agency and a non-party to the suit, Plaintiffs argue OSHA was a potentially "adverse party" within the meaning of the statute, because the OSHA report blamed Cañada employees for the explosion. The trial court, however, found that OSHA was not an adverse party and that the statute was not applicable.
{55} We agree under the facts of this case that the statute is not applicable. On its face, the Release Act pertains only to adverse or potentially adverse parties and prevents those parties from obtaining statements from injured patients for the purpose of settlement or release. "[T]he statute was enacted to prevent injustice to [the insured by an insurer] while he is hospitalized or under the care of a doctor." Mitschelen v. State Farm Mut. Auto. Ins. Co., 89 N.M. 586, 589, 555 P.2d 707, 710 (Ct.App.1976); Ponce v. Butts, 104 N.M. 280, 283, 720 P.2d 315, 318 (Ct.App.1986) ("The Act requires fair and impartial conduct by the insurer.").
{56} Unlike an insurance investigator who may be profit motivated, an OSHA compliance officer conducting a routine interview in the normal course of business is not an adverse party within the meaning of the statute. The stated purpose of OSHA is "to assure every employee safe and healthful working conditions' at least in part by `the effective enforcement of the health and safety regulations.'" NMSA 1978, § 50-9-2(B) (1993). Specifically, the Act requires every employer to furnish a workplace free from hazards that cause or are likely to cause death or serious physical harm to its employees. NMSA 1978, § 50-9-5(A) (1975). To accomplish this goal, OSHA officers are authorized to question employees. NMSA 1978, § 50-9-10(A)(2) (1993). Moreover, the OSHA officer in this case was not interested in seeking a settlement or negotiating a release from the employee, even if the statement subsequently resulted in the issuance of a citation to the employer. Therefore, the subject matter of the statute, preventing adverse parties from securing the release or settlement of claims, was not an issue when the OSHA officer conducted the interviews.
Authentication
{57} Plaintiffs next contend that the statements were never authenticated and the failure of Defendants to call the OSHA investigator to authenticate the statements deprived them of their right to cross examine the interviewer regarding their accuracy. Although Plaintiffs stipulated to the authenticity of the OSHA file that contained the statements as part of OSHA's investigative report, they raise several points of concern regarding the statements. First and foremost, there was confusion as to the investigator's identity. AAA Gas filed two affidavits from two different investigators, both swearing that they took the statement and attesting to Velasquez's competence; however, it appears that all parties agree that only one investigator interviewed Velasquez. Second, Velasquez and the investigator were the only persons present during the interview, which was not recorded. Velasquez did not write the statement and, by the time of trial, Velasquez's memory of the interviews was vague. As a result, Plaintiffs argue, there is no foundation for the statement unless the investigators testified about who actually took the statement and affirmed that it was an accurate representation of what was said. Defendants counter that the failure to object to the OSHA file resulted in a waiver of any objection to the authenticity of the statements contained in the file. State v. Gallegos, 92 N.M. 336, 337-38, 587 P.2d 1347, 1348-49 (Ct.App.1978) (finding that absent timely objections or a motion to strike, objections to foundational requirements are not reviewed on appeal).
{58} The record clearly shows Plaintiffs made several objections to the authenticity of the statements, as well as a motion to strike at the conclusion of trial. On appeal, Plaintiffs cite only the general proposition that the proponent of documents, including public records, has the burden to authenticate those records. State v. Ramirez, 89 N.M. 635, 645-46, 556 P.2d 43, 53-54 (Ct.App.1976), overruled on other grounds by Sells v. State, *235 98 N.M. 786, 788, 653 P.2d 162, 164 (1982). This ignores the fact that Plaintiffs stipulated to the file's authenticity. They cite no authority to support their position that each document within a file must be separately authenticated. More important, Plaintiffs do not deny that the statements were taken by an OSHA investigator or that the statements were part of the OSHA file. Rule 11-901(A) NMRA 2003 merely requires "sufficient evidence to support a finding that the matter in question is what its proponent claims," which is a preliminary determination made by the trial judge. State v. Garcia, 110 N.M. 419, 425, 796 P.2d 1115, 1121 (Ct.App.1990). In this case, Plaintiffs do not really contest the underlying facts for the trial court's preliminary determination, and we therefore affirm on the issue of authenticity under Rule 11-901. Along with their general arguments about authenticity, Plaintiffs specifically argue that the author of the report was not established. To the extent that this raises foundational arguments distinct from authenticity, Rule 11-104 NMRA 2003 may apply. However, Plaintiffs fail to establish that the relevancy of the report was conditioned on the identity of the author. Rule 11-104(B). Cf. Plummer v. Devore, 114 N.M. 243, 245-46, 836 P.2d 1264, 1266-67 (Ct.App.1992) (holding that foundation was not established for admission of breathalyzer test where State failed to show that machine was capable of producing valid results). Accordingly, the trial court did not abuse its discretion, and Plaintiffs arguments fail.
{59} Plaintiffs' fundamental problem is that the contents of the statements cannot be verified, not that the statements themselves were not authenticated. Their objections on appeal go to the reliability and trustworthiness of these statements. The record reflects, however, that the trial court overruled all of Plaintiffs' objections by finding that the entire OSHA report was admissible as a public report under Rule 11-803(H) NMRA 2003. The trial court did not abuse its discretion in finding the report sufficiently trustworthy for the jury to consider. See Cent. Sec. & Alarm Co. v. Mehler, 1996-NMCA-060, ¶ 31, 121 N.M. 840, 918 P.2d 1340 (applying abuse of discretion standard to affirm trial court's decision to admit ledger book under business records exception). The question of a document's accuracy goes to the weight of the evidence, not its admissibility. Id. ¶ 30; see also Crabtree v. Measday, 85 N.M. 20, 23, 508 P.2d 1317, 1320 (Ct.App.1973) (stipulating to report did not estop plaintiff from explaining or denying validity or accuracy of it). Once Plaintiff waived any foundational objections to the authenticity of the OSHA file, the court correctly ruled Plaintiff could attack the validity and accuracy of the statements during cross examination or through other witnesses. Plaintiffs vigorously attacked the validity and accuracy of the statement in its examination of Velasquez and his wife. They waived the opportunity to attack the credibility of the investigators by failing to subpoena those witnesses. They cannot now complain they were prejudiced.
Competency
{60} Plaintiffs' final challenge is that the statements should have been excluded because Velasquez's heavily medicated state at the hospital rendered him incompetent at the time he gave the statement. Preliminary questions of fact concerning the competency of a witness are determined by the court. See Rule 11-104(A); Huff v. White Motor Corp., 609 F.2d 286, 293-94 (7th Cir.1979); see also State v. Hueglin, 2000-NMCA-106, ¶¶ 11, 21-22, 130 N.M. 54, 16 P.3d 1113 (limiting trial court's role to insuring witness meets minimum standard of competency under Rule 11-601 NMRA 2003). Trial courts have broad discretion to determine the competency of a witness, and that determination will be reversed only upon a showing that the court abused its discretion. See City of Santa Fe v. Komis, 114 N.M. 659, 663, 845 P.2d 753, 757 (1992) (vesting court with broad discretion to admit or exclude evidence); State v. Macias, 110 N.M. 246, 249, 794 P.2d 389, 392 (Ct.App.1990) An abuse of discretion occurs where the court's ruling is "clearly against the logic and effect of the facts and circumstances before the court." Komis, 114 N.M. at 663, 845 P.2d at 757. Where the court's discretion is fact-based, we must "look at the facts relied on by the trial court as a basis for the exercise of *236 its discretion, to determine if these facts are supported by substantial evidence." Lopez v. Wal-Mart Stores, Inc., 108 N.M. 259, 260, 771 P.2d 192, 193 (Ct.App.1989). "[I]f the facts essential to the trial court's judgment are not established by substantial evidence in the record, we will necessarily find an abuse of discretion." Id. at 261, 771 P.2d at 194; see also Baum v. Orosco, 106 N.M. 265, 269, 742 P.2d 1, 5 (Ct.App.1987) (holding that trial court resolves contested factual issues about whether to admit evidence and no abuse occurs when there is substantial evidence to support that decision).
{61} Plaintiffs' reply brief misstates the applicable standard as a question of law. However, the case cited, Dick v. City of Portales, 118 N.M. 541, 883 P.2d 127 (1994), is not applicable to the question of a witness's competency. Dick discusses the question of "competent evidence," which is any evidence that is admissible to prove a relevant fact. Id. at 544, 883 P.2d at 130. Relevancy is not at issue here.
{62} Under Rule 11-601, a witness is presumed competent to testify. See Hueglin, 2000-NMCA-106, ¶ 22, 130 N.M. 54, 16 P.3d 1113. Ordinarily the party challenging competency bears the burden to show the witness is incompetent. State v. Manlove, 79 N.M. 189, 190, 441 P.2d 229, 230 (Ct.App.1968). We have held that a determination of competency requires the trial court to inquire into the witness's capacities to observe, recollect, and communicate, as well as appreciate a duty to speak the truth at the meaningful time. Macias, 110 N.M. at 249-50, 794 P.2d at 392-93. More recently, however, this Court has recognized that "[t]he Rule represents the culmination of the trend that has converted questions of competency into questions of credibility." Hueglin, 2000-NMCA-106, ¶ 22, 130 N.M. 54, 16 P.3d 1113 (quoting 3 Weinstein's Federal Evidence § 601.02[1]) (2d ed.) (internal quotation marks omitted). Thus, the trial court ensures that witnesses meet a minimum standard of competency, and the jury resolves questions of the weight and credibility of the testimony. Id. A minimum standard of competency merely requires that a reasonable person could "put any credence in [the] testimony." Id. (quoting 3 Weinstein's, supra §§ 601.01[2] and 601.03[1][a]) (internal quotation marks and citations omitted).
{63} The trial court held a preliminary hearing to determine whether Velasquez was competent when he gave the statements. At the conclusion of the evidence, the trial court ruled that Velasquez's degree of competency at the time of his statement went to weight rather than admissibility. The trial court was "unmoved by the arguments in favor of denying the admissibility." While the trial court did not express its reasons for the ruling, which would have assisted our review of its exercise of discretion, we find that the court's ruling was supported by substantial evidence and, as such, not against the logic and effect of the facts and circumstances before the court. Thus, we find no abuse of discretion.
{64} The treating physician, Dr. Demarest, testified from the nurse's notes that the day after the accident and the day before the interview, Velasquez was "awake, social and friendly" at the hospital. Velasquez was taking Percocet and large doses of morphine for his pain throughout the course of his hospitalization; he took two tablets of Percocet at 1:00 a.m., ten hours before the interview, and sixteen milligrams of morphine at 5:30 a.m., five and one-half hours before the interview. The interview was conducted in two parts between 11:00 a.m. and 1:00 p.m. Just after the interview Velasquez was sitting up in his bed and eating lunch with no complaints of pain, although he conversed with the nurse who noted he was upset about the OSHA statements. Prior to his discharge, an occupational therapist noted Velasquez was "oriented times three," meaning he knew who he was, where he was, and what time it was. The therapist also noted Velasquez was a "good historian." Dr. Demarest opined that the therapist would have noted if Velasquez appeared confused at that time. Three hours after the interview, Velasquez was discharged. At that time, he was "verbalizing and understanding."
{65} While Dr. Demarest testified that the combined effect of the medications could "potentially have a significant effect in terms of judgment, insight and ability to decide. . . . *237 and recall," he could not conclusively say what effect they had on Velasquez since, in his words, "patients are variable." The fact that evidence does not reflect Velasquez's mental state at the exact time of the interview is not critical. The evidence did describe his condition in the immediate hours before and after the interview. Cf. Macias, 110 N.M. at 250, 794 P.2d at 393 (finding videotaped interview taken nine months before trial was not an adequate inquiry into the competency elements within the meaningful time).
{66} Plaintiffs argue that their witnessesVelasquez, his wife and his sistertestified about his mental state closer in time to the event, and their testimony paints a different picture of Velasquez's mental state. However, as the fact finder on this preliminary question, the trial court was not required to accept any of their testimony to the exclusion of other evidence.
{67} Although we do not ignore the strong pain medication Velasquez was taking during the course of his hospitalization or that he was recovering from a traumatic accident, the question before us is whether it was an abuse of discretion for the trial court to conclude that Velasquez met the "minimum standards" of competency. Based on the foregoing evidence, we find it was reasonable for the trial court to conclude Velasquez had the capacity to observe, recollect, and communicate. Plaintiffs never suggested Velasquez did not appreciate the duty to speak the truth. Any confusion Velasquez might have expressed in his recount of the events to the investigator, as well as his medicated state were issues of fact that went to credibility and not admissibility and were properly before the jury.
IV. Motion to Amend ComplaintUnfair Practices Act
{68} Plaintiffs' fourth issue on appeal is that the trial court erred in denying their motions to amend the complaint. On May 15, 2000, three months after filing the complaint in the first Bernalillo County District Court action, and almost three years after the filing of decedent Salazar's action in Valencia County District Court, Plaintiffs filed a motion to amend their complaint to add a new cause of action that alleged LPGE had violated the UPA. Plaintiffs filed a supplemental motion to amend on May 22, 2000. After hearing arguments on June 6, 2000, the court denied Plaintiffs' motions on the basis of unfair prejudice. The court explained that Plaintiffs should have anticipated the theory earlier on, the facts were not new, and an amendment would delay the trial two years due to the prospect of additional discovery and joining third parties which LPGE would need to defend against the claim. Plaintiffs renewed their motion at the end of trial pursuant to Rule 1-015(B) NMRA 2003 to amend the complaint to conform to the evidence presented at trial by adding the UPA claim, as well as a new intentional misrepresentation claim. This motion also was denied. Meanwhile, Plaintiffs filed a second complaint against LPGE, which alleged both UPA and misrepresentation claims. Apodaca v. LP Gas Equip., Inc., No. CV-2000-6621 (Bernalillo County District Court June 28, 2000).
{69} Plaintiffs protest that the court abused its discretion under Rule 1-015(A) and (B) by denying the amendments. Defendant LPGE counters that the denial was proper because the amendments were: (1) untimely and (2) legally insufficient because the UPA does not provide a remedy for personal injuries. See Viernow v. Euripides Dev. Corp., 157 F.3d 785, 799 (10th Cir.1998) (noting untimeliness alone is sufficient reason to deny leave to amend); see also State v. Elec. City Supply Co., 74 N.M. 295, 299, 393 P.2d 325, 328 (1964) (stating the court may deny motion to amend when insufficiency or futility of the motion is apparent on its face). We agree that denying the motion as untimely was not an abuse of discretion. We do not decide whether the UPA provides a remedy for personal injury claims.
Rules 1-015(A) and (B)
{70} Under Rule 1-015(A), once an answer has been filed, the decision to allow an amended complaint rests solely within the sound discretion of the trial court. Schmitz v. Smentowski, 109 N.M. 386, 390, 785 P.2d 726, 730 (1990); Vernon Co. v. Reed, 78 N.M. *238 554, 555, 434 P.2d 376, 377 (1967). Although the Rule expressly states that amendments should be given liberally, the "den[ial of] permission to amend is subject to review only for a clear abuse of discretion." Id.; Schmitz, 109 N.M. at 390, 785 P.2d at 730. "[A]n abuse of discretion is said to occur when the court exceeds the bounds of reason, all the circumstances before it being considered." Clancy v. Gooding, 98 N.M. 252, 255, 647 P.2d 885, 888 (Ct.App.1982) (internal quotation marks omitted) (quoting Acme Cigarette Servs., Inc. v. Gallegos, 91 N.M. 577, 577 P.2d 885 (Ct.App.1978)).
{71} The court ruled, without elaboration, that an amendment would prejudice the parties because it would cause an estimated two year delay in the resolution of the case. Considering the facts and circumstances before the court, we conclude that the decision was not unreasonable.
{72} The explosion occurred in July 1997, over three years before the scheduled trial date. While Plaintiffs officially intervened eighteen months after the Valencia County complaint was filed, the court was presented with evidence at the hearing that Plaintiffs' counsel were actually involved in representing their clients less than two weeks after the explosion. After Plaintiffs intervened, the Valencia trial was continued at least three times. During argument on the Rule 1-015(A) motion, Plaintiffs' counsel admitted to the court that the facts underlying the motion to amend were always therePlaintiffs were just "bundling them in a different theory." The three year delay in getting the case to trial combined with the arguments suggesting LPGE would need a continuance to assess its position, develop facts and a defense, and determine what claims could be asserted by way of a third-party complaint against Fisher Controls, as well as the prospective burden of additional costs and expenses to the parties, were proper reasons to deny the motion to amend. Accordingly, we hold that the court did not abuse its discretion in denying Plaintiffs leave to amend under Rule 1-015(A).
{73} We also find that the court did not abuse its discretion under Rule 1-015(B). Rule 1-015(B) allows "[a]mendments to conform the pleadings to the evidence . . . when the issues are tried by the express or implied consent of the parties." Schmitz, 109 N.M. at 390, 785 P.2d at 730. Implied consent to a new theory is generally absent when the evidence is relevant to other pleaded issues. Id.; Wynne v. Pino, 78 N.M. 520, 523, 433 P.2d 499, 502 (1967). Nonetheless, "[e]ven if the party has not consented to amendment, a trial court is required to allow it freely if the objecting party fails to show he will be prejudiced thereby." Schmitz, 109 N.M. at 390, 785 P.2d at 730 (emphasis added). "The test of prejudice is whether the [opposing] party had a fair opportunity to defend and whether [they] could offer additional evidence on the new theory." Id. at 391, 785 P.2d at 731; Wynne, 78 N.M. at 523, 433 P.2d at 502.
{74} LPGE argues, and the trial court agreed, that LPGE never consented to try the UPA claims. To the contrary, LPGE strenuously objected to trying this claim. The failure to object to the admission of the evidence which would support that claim cannot now be used to show consent since the evidence was relevant to other pleaded issues. Although LPGE clearly did not consent to try the theory, it never argued how it would be prejudiced if the amendment was allowed at that time. Plaintiffs had a duty to raise this issue to alert the trial court, as well as LPGE, of any error in denying the motion, to wit: a granting of the motion would not prejudice LPGE. Three Rivers Land Co. v. Maddoux, 98 N.M. 690, 693, 652 P.2d 240, 243 (1982) ("It is the duty of the appellant to see that the record is properly before us. We will not consider matters not contained in the record on appeal.") (citations omitted), overruled on other grounds by Universal Life Church v. Coxon, 105 N.M. 57, 728 P.2d 467 (1986); see also Reeves v. Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 80 (Ct.App.1988). "Upon a doubtful or deficient record, every presumption is indulged in favor of the correctness and regularity of the trial court's decision, and the appellate court will indulge in reasonable presumptions in support of the order entered." Id.
{75} The court's acknowledgment that the issue had been thoroughly briefed and *239 argued pretrial suggests LPGE's pretrial positionthat LPGE would need to do additional discovery to defend the claims and possibly add a third-party defendantwas the same at the end of the trial. Under these facts, there would have been a showing of prejudice: lack of an opportunity to defend and offer of additional evidence. We find the trial court did not abuse its discretion in denying Plaintiffs' Rule 1-015(B) motion.
Res Judicata and Collateral Estoppel
{76} Plaintiffs appeal from the dismissal of their second complaint on res judicata and collateral estoppel grounds because they were denied a full and fair opportunity to litigate the issues in the first action when the trial court denied their motions to amend their claims against LPGE. A decision to grant summary judgment on preclusion principles is reviewed under a de novo standard. Wolford v. Lasater, 1999-NMCA-024, ¶ 4, 126 N.M. 614, 973 P.2d 866; Anaya v. City of Albuquerque, 1996-NMCA-092, ¶ 5, 122 N.M. 326, 924 P.2d 735.
{77} Four elements must be present for res judicata to apply: "(1) the same parties or parties in privity; (2) the identity of capacity or character of persons for or against whom the claim is made; (3) the same subject matter; and (4) the same cause of action in both suits." Anaya, 1996-NMCA-092, ¶ 6, 122 N.M. 326, 924 P.2d 735; see also Wolford, 1999-NMCA-024, ¶ 5, 126 N.M. 614, 973 P.2d 866 (same); Three Rivers Land Co., 98 N.M. at 694, 652 P.2d at 244. The only disputed element in this case is whether the cause of action is the same. Plaintiffs argue that the initial lawsuit determined Defendant LPGE liability under negligence or products liability rather than its liability under the common law or the UPA for misrepresentations made regarding the valve. In Plaintiffs' view, these are separate and distinct claims.
{78} New Mexico has adopted the "transactional analysis" under the Restatement (Second) of Judgments Sections 24 and 25 (1982) (hereinafter Restatement) to determine what constitutes a cause of action for res judicata purposes. Anaya, 1996-NMCA-092, ¶ 7, 122 N.M. 326, 924 P.2d 735. Under that analysis, res judicata precludes relitigation of any claim that arises out of "all or any part of the transaction, or a series of connected transactions, out of which the action arose." Restatement § 24(1). "What . . . constitutes a `transaction'. . . [is] determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." Id. § 24(2); Ford v. N.M. Dep't of Pub. Safety, 119 N.M. 405, 413, 891 P.2d 546, 554 (Ct.App.1994). Under this approach, "a mere change in a legal theory does not create a new cause of action." Three Rivers Land Co., 98 N.M. at 695, 652 P.2d at 245. "This remains true although the several legal theories depend on different shadings of the facts, or would emphasize different elements of the facts, or would call for different measures of liability or different kinds of relief." Ford, 119 N.M. at 413, 891 P.2d at 554 (quoting Restatement § 24 cmt. c). Rather, "[t]he transactional test requires us . . . to examine the operative facts underlying the claims made in the two lawsuits." Anaya, 1996-NMCA-092, ¶ 8, 122 N.M. 326, 924 P.2d 735. To determine whether these facts form a convenient trial unit, we examine the overlap of the witnesses and evidence relevant to the claims in the two lawsuits. Id. ¶ 14.
{79} The thrust of both actions against LPGE is that it misrepresented the valve as new when in fact it supplied Cañada with the wrong model valve, that was used and substantially altered, creating a defective condition that ultimately injured Plaintiffs. The facts Plaintiffs would have relied on in the second lawsuit to prove misrepresentation and the UPA violation were the same as the facts relied on in the first lawsuit to prove negligence and products liability. In the first action, the jury was instructed that to find LPGE negligent, Plaintiffs had the burden to prove LPGE did not supply a newly manufactured Fisher Controls valve to Cañada or LPGE did not inspect the valve to verify it was new. To hold LPGE liable *240 under a products liability theory, the jury had to find LPGE provided a defective product. The jury answered "no" to the question of whether LPGE was negligent and "no" to the question of whether LPGE was liable for products liability. Similarly, Plaintiffs' complaint in the second action alleged Cañada ordered a new valve but LPGE supplied the wrong valve, and the valve supplied was used and altered. It further alleged that LPGE supplied a defective valve because of these conditions. In light of these similarities in fact, as well as proof, we find the claims in both suits were related in time, space, origin, and motivation, and the claims formed a convenient trial unit which provided Plaintiffs with a reason to expect that a verdict in favor of Plaintiffs in the second action would have been precluded by the judgment for LPGE in the first action.
{80} Having found that the requisite elements of res judicata are satisfied, we must now determine whether res judicata bars Plaintiffs' second complaint. Both below and on appeal, Plaintiffs' primary argument is that they were denied a full and fair opportunity to litigate the UPA and misrepresentation claims because the trial court denied their motions to amend in the first action. See Restatement § 24 cmt. a (explaining that transactional analysis of a claim "is justified only when the parties have ample procedural means for fully developing the entire transaction in the one action going to the merits to which the plaintiff is ordinarily confined"). As a result, Plaintiffs were unfairly forced to split their cause of action and file the second complaint to avoid the statute of limitations.
{81} This Court has held that full and fair opportunity to litigate is essential to the application of res judicata. See Moffat v. Branch, 2002-NMCA-067, ¶ 26, 132 N.M. 412, 49 P.3d 673 (finding full and fair opportunity to litigate is the essence of res judicata); Ford, 119 N.M. at 409, 891 P.2d at 550; Myers v. Olson, 100 N.M. 745, 747, 676 P.2d 822, 824 (1984). We have also held that Rule 1-015(A), which permits one amendment as of right before a responsive pleading is filed, promotes the policy of providing a full opportunity to litigate all claims in one trial. Moffat, 2002-NMCA-067, ¶ 27, 132 N.M. 412, 49 P.3d 673. Rule 1-015(B), permitting amendment to conform to the evidence, gives Plaintiffs another opportunity, so long as there is no prejudice to the Defendant. Because our modern procedural system permits considerable freedom to amend, "[t]he law of res judicata now reflects the expectation that parties who are given the capacity to present their `entire controversies' shall in fact do so." Restatement § 24 cmt. a.
{82} However, we have also held that res judicata applies not only where a claim was actually litigated in the first action but also where it could have been litigated. Bank of Santa Fe v. Marcy Plaza Assocs., 2002-NMCA-014, ¶ 14, 131 N.M. 537, 40 P.3d 442; see Wolford, 1999-NMCA-024, ¶¶ 17-18, 126 N.M. 614, 973 P.2d 866; Anaya, 1996-NMCA-092, ¶¶ 7-9, 122 N.M. 326, 924 P.2d 735; Ford, 119 N.M. at 414, 891 P.2d at 555. When a plaintiff fails to take advantage of this opportunity in a timely fashion, however, the claim is forever barred. See Moffat, 2002-NMCA-067, ¶ 26, 132 N.M. 412, 49 P.3d 673; See Restatement (Second) of Judgments § 26 cmt. b (1982). The proper recourse for a plaintiff is to appeal the denial, Three Rivers Land Co., 98 N.M. at 696, 652 P.2d at 246; Restatement § 26 cmt. b, and/or request the court to expressly reserve the plaintiff's right to maintain a second action.
{83} In this case the trial court denied Plaintiffs' amendment because it came too late, and we found no abuse of discretion in the trial court's ruling. Plaintiffs now attempt to avoid the trial court's ruling, which we found proper, by asking this Court to find error in the dismissal of the second complaint because they did not have a full and fair opportunity to litigate the claims in the first action. In essence, Plaintiffs argue they should be allowed to split their claims because the trial court forced that decision on them by denying the amendment. We disagree. The only applicable exception we find to the rule precluding claim splitting is where the court expressly reserves a plaintiff's right to maintain a second action. Restatement § 26(1)(b). We have previously held that "the trial court's refusal to grant leave to amend the complaint is not a reservation by the court." Three Rivers Land *241 Co., 98 N.M. at 696, 652 P.2d at 246 (internal quotation marks omitted). While we have found no New Mexico precedent on point, several federal jurisdictions have held that the "[d]enial of leave to amend does not negate an otherwise valid defense of res judicata, particularly when that denial is premised upon the party's own dilatory conduct." U.S. Truck Co. v. Nat'l Am. Ins. Co., 186 F.Supp.2d 1184, 1190 (W.D.Okla.2002); accord King v. Hoover Group, Inc., 958 F.2d 219, 222-23 (8th Cir.1992); Johnson v. SCA Disposal Servs., Inc., 931 F.2d 970, 975 (1st Cir.1991); Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329, 1334 (10th Cir.1988); Interstate Pipe Maint., Inc. v. FMC Corp., 775 F.2d 1495, 1497-98 (11th Cir.1985) (per curiam); Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 563 (5th Cir.1983); Poe v. John Deere Co., 695 F.2d 1103, 1107 (8th Cir.1982). Federal and New Mexico law rely on the Restatement for guidance in this matter, see Ford, 119 N.M. at 413, 891 P.2d at 553, and we agree with those federal courts. Plaintiffs availed themselves of the opportunity to litigate their claims too late in the first action. The denial of leave to amend does not negate an otherwise valid defense of res judicata.
{84} Plaintiffs invoke a plea for fairness and ask us to make an exception to preclusion principles because of the inflexible approach of the trial court in refusing to allow the amendment. However, mere assertion of error does not compel an exception to the rule precluding claim splitting. See Restatement (Second) of Judgments § 28 cmt. j (1982). There must be clear and convincing need of an extraordinary and compelling reason to overcome policies favoring preclusion of a second action. Id. § 28(5) & cmt. g. Such instances are the rare exception and typically involve cases where one of the parties conceals material information, labors under some physical or mental disability that impedes effective litigation, or where the different amounts in controversy between the two actions would render preclusion unfair. Id. cmt. j. None of these instances is present here and Plaintiffs have not made a sufficient showing of another extraordinary reason to make an exception to preclusion principles.
{85} We hold that where an appellate court finds the trial court did not abuse its discretion in denying an amendment under Rule 1-015(A) and/or (B) in the first action because the motions were untimely, a plaintiff may not avoid the preclusive effect of the trial court's ruling, absent an express reservation of the plaintiff's right to maintain a second action or another recognized exception. See Restatement § 26. Having determined that res judicata applies, we do not consider collateral estoppel. Jeanes v. Henderson, 688 S.W.2d 100, 103 (Tex.1985).
V. Peremptory Challenges
{86} The trial court initially ruled Defendants were each entitled to five peremptory challenges because of their diverse interests but Plaintiffs were only entitled to a total of five even though they sought separate relief. Ultimately, the court allowed five peremptory challenges per family, five to the Apodacas and five to the Velasquezes. Plaintiffs argue that each Plaintiff, Gilbert Apodaca, Barbara Apodaca, Jeffrey Velasquez, and Larissa Velasquez, was entitled to five challenges, for a total of twenty. Plaintiff relies on Rule 1-038(E) NMRA 2003, which states:
In cases tried before a jury of twelve, each party may challenge five jurors peremptorily. When there are two or more parties defendant, or parties plaintiff, they will exercise their peremptory challenges jointly. . . . However, if the relief sought by or against the parties on the same side of a civil case differs, or if their interests are diverse, or if cross-claims are to be tried, the court shall allow each such party on that side of the suit . . . five peremptory challenges if the case is to be tried before a jury of twelve.
(Emphasis added.) The Rule sets out three exceptions to the general rule that multiple parties, who are on the same side of the litigation, must exercise peremptory challenges jointly. In particular, Plaintiffs point to the first exception: "if the relief . . . differs. . . the court shall allow each party . . . five peremptory challenges." Id. In their view, Plaintiff-wives could have filed their own complaints for loss of consortium, apart from their husbands' claims for negligence *242 and products liability because loss of consortium is a separate and distinct claim for damages. Plaintiff-wives do not claim to have diverse interests and there were no cross-claims filed.
{87} The only question we consider is whether the wives seek "different relief" from the husbands within the meaning of Rule 1-038(E). Plaintiffs have not cited any case that defines "different relief" under the Rule and this Court has found none. A determination of what is meant by "different relief" in the context of Rule 1-038(E) is a question of law which we review de novo. In Re Daniel H., 2003-NMCA-063, ¶ 8, 133 N.M. 630, 68 P.3d 176.
{88} The rules pertaining to statutory construction apply when a court interprets procedural rules of the Supreme Court. In re Dominick Q., 113 N.M. 353, 354, 826 P.2d 574, 575 (Ct.App.1992). "We read the rule in accordance with its plain meaning. When the language of the Rule is not defined in the Rule, it is given its ordinary meaning. Our role is to discern and give effect to the author's intent." State v. Eden, 108 N.M. 737, 741, 779 P.2d 114, 118 (Ct.App.1989) (citation omitted). "This is accomplished by adopting a construction that will not render the Rule's application absurd, unreasonable, or unjust." In re Dominick Q., 113 N.M. at 354, 826 P.2d at 575. Rather, we consider the Rule as a whole, construing each part to achieve a harmonious result. See Key v. Chrysler Motors Corp., 1996-NMSC-038, 121 N.M. 764, 769, 918 P.2d 350, 355.
{89} "Different relief" is not defined in the Rule. Plaintiffs interpret the language to encompass different claims for relief, i.e. different causes of action that seek different money damages. We are not persuaded that this is what the drafters intended.
{90} The purpose of peremptory challenges is to "aid each party's interest in a fair and impartial jury." 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 2483 (Supp.2002). Under Rule 1-038(E), "opposing parties" are each given five peremptory challenges. The exceptions to that Rule demonstrate a concern by the drafters that multiple parties on the "same side" may actually be opposing each other. See Romero v. Felter, 83 N.M. 736, 738, 497 P.2d 738, 740 (1972) (recognizing "parties" to a lawsuit may be on the same side). Rule 1-038(E) provides the means to determine whether parties on the same side are in fact "opposing parties" by recognizing three situations where the parties are on the same side but in conflict with one another: (1) the relief sought differs, (2) diverse interests, or (3) cross-claims are to be tried. In doing so, the Rule seeks to provide opposing parties on the same side of the litigation the means to a fair and impartial jury. See Carraro v. Wells Fargo Mortgage & Equity, 106 N.M. 442, 444, 744 P.2d 915, 917 (Ct.App. 1987) (recognizing Rule 1-038(E) provides additional peremptory challenges to "diverse parties").
{91} Plaintiffs misapprehend the Rule by equating "different claims" with "different relief." Different relief is not always synonymous with different causes of action. Different actions may seek the same form of relief (money damages) or different forms of relief, such as mandamus, money damages, prospective injunction and declaratory judgment. See Khalsa v. Levinson, 1998-NMCA-110, ¶ 19, 125 N.M. 680, 964 P.2d 844 (distinguishing "claim" from different forms of legal "relief"). The relief sought may also be "different" where one plaintiff seeks a form of injunctive relief that is contrary to the injunctive relief sought by another plaintiff. Plaintiffs that request money damages are not asking for different relief. Even though plaintiffs may be competing over the same pot, "the relief soughtthat [Defendants] caused damage[does] not differ." Trotter v. Callens, 89 N.M. 19, 22, 546 P.2d 867, 870 (Ct.App.1976).
{92} We conclude that "different relief" within the meaning of Rule 1-038(E) refers to situations where the relief requested by one party conflicts with the relief sought by another party. This is consistent with the underlying tenor of the Rule which recognizes parties on the same side may be in conflict with each other. Here, where each Plaintiff sought money damages, the relief sought does not differ. We note Plaintiffs made no argument that they were pursuing *243 a limited fund, a situation that could potentially create a practical conflict between them.
{93} We next decide whether it was reasonable for the court to deny Plaintiff-wives an additional ten peremptory challenges under the facts before the court. The standard of review applicable to the allocation of peremptory challenges among multiple parties is an abuse of discretion standard. See Gallegos ex rel. Gallegos v. Southwest Cmty. Health Servs., 117 N.M. 481, 485, 872 P.2d 899, 903 (Ct.App.1994). To determine whether multiple parties are diverse under the Rule, courts apply a four factor test. Id. We find the first three factors useful to determine whether parties are diverse because of the relief requested and we adopt it with some modification. To determine whether the relief is different, courts may consider "(1) whether the parties employed the same attorneys; (2) whether separate answers [or complaints] were filed; [and] (3) whether the [relief sought by the parties is] antagonistic." See id. "[T]he trial court should [also] consider the extent to which the alleged diversity of [relief] will affect the choice of individual jurors when considered in light of the common interests of [one plaintiff as against another plaintiff] in the selection of jurors." Id.
{94} Applying these factors to the facts before the trial court, we find that the court's decision to deny additional peremptory challenges to Plaintiff-wives was not an abuse of discretion. Plaintiffs employed the same counsel who filed one complaint on their behalf. This indicates that counsel perceived no conflicts in representing all four Plaintiffs. Plaintiff-husbands sought money damages for personal injury, lost wages, pain and suffering, etc. Plaintiff-wives sought money damages for loss of consortium and attendant care services for their husbands. They shared a common interest in holding Defendants liable for their damages. We perceive no reason why Plaintiff-wives would have selected different jurors. Nor do we perceive any conflict in the relief sought. Rather, there is a unity of interest in holding Defendants liable. We find no abuse of discretion in denying extra peremptory challenges to Plaintiff-wives.
AAA Gas's Cross-Appeal
{95} AAA Gas raises three issues on cross-appeal: (1) the jury should not have been instructed that AAA Gas could be held strictly liable for a non-delegable duty, (2) the jury should not have been instructed on punitive damages, and (3) AAA Gas should have been awarded its costs pursuant to Rules 1-054 and 1-068 NMRA 2003. Because the judgment of the trial court in favor of Defendants remains undisturbed, we do not reach the issues of whether the jury instructions were proper. See Moody v. Stribling, 1999-NMCA-094, ¶ 47, 127 N.M. 630, 985 P.2d 1210 ("In order to appeal, a party must be aggrieved. To be aggrieved, a party must have a personal or pecuniary interest or property right adversely affected by the judgment.") (internal quotation marks omitted). We address only the issue of whether Defendants were entitled to costs under Rules 1-068 or 1-054(D).
{96} Following the entry of judgment, Defendant AAA Gas filed a cost bill in the amount of $43,492.92 as a prevailing party under Rule 1-054(D) and for post-offer costs under Rule 1-068. Following arguments, the trial court denied the cost bill and ordered that the parties bear their respective costs. AAA Gas contends that the court erred as a matter of law under Rule 1-068, which it argues required the trial court to award them post-offer costs. Moreover, Defendant asserts the court abused its discretion by refusing to award it costs as the prevailing party under Rule 1-054(D). We address each Rule separately.
Rule 1-068
{97} Rule 1-068 provides in relevant part:
At any time more than ten (10) days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. . . . An offer not accepted shall be deemed withdrawn
*244 . . . If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.
(Emphasis added.) AAA Gas made three offers of judgment. The first two were proffered while the case was pending in Valencia County on July 22, 1999, and January 19, 2000. The third offer was extended on March 30, 2000, after the Valencia County case was dismissed and Plaintiffs refiled their claims in Bernalillo County. AAA Gas requested an award of post-offer costs totaling $32,825.11. Although AAA Gas argued to the trial court that an award of costs under Rule 1-068 was mandatory, the court referred only to its discretionary authority to deny costs under Rule 1-054(D) and did not address the effect of the mandatory language of Rule 1-068 on its decision.
{98} AAA Gas argues that the award of costs is mandatory whenever the Rule 1-068 offer exceeds the judgment, whether the judgment is for or against Plaintiffs. Plaintiffs respond that the Rule should be harmonized with Rule 1-054 which grants the trial court discretion to award costs to a prevailing party. We agree with Plaintiffs, but that is not where our inquiry begins.
{99} The threshold question is whether Rule 1-068 applies where judgment is entered in favor of the defendant-offeror. Delta Air Lines, Inc. v. August, 450 U.S. 346, 350, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981). Our Supreme Court in Dunleavy v. Miller, 116 N.M. 353, 355, 862 P.2d 1212, 1214 (1993) recognized three outcomes when an offer of judgment is refused under Rule 1-068:(1) a judgment in favor of plaintiff exceeds the offer, (2) plaintiff does not receive an award, and (3) a judgment in favor of plaintiff is less than the offer. In Dunleavy, however, the Court addressed only the third scenariowhere plaintiff's judgment is less than the offer. Whether the Rule applies when a judgment is entered in favor of the defendant is a question of first impression. "The interpretation of a [rule] is an issue of law that is subject to de novo review." State v. Cleve, 1999-NMSC-017, ¶ 7, 127 N.M. 240, 980 P.2d 23 (internal quotation marks omitted).
{100} "In construing Rule 1-068, which is identical to its federal counterpart, this Court may look to federal law for guidance." Pope v. The Gap, Inc., 1998-NMCA-103, ¶ 10, 125 N.M. 376, 961 P.2d 1283; see also Shelton v. Sloan, 1999-NMCA-048, ¶ 24, 127 N.M. 92, 977 P.2d 1012. The Supreme Court has held that under the plain language of Rule 1-068, the Rule does not apply where the judgment is entered against plaintiff-offeree and in favor of a defendant-offeror. Delta Air Lines, Inc., 450 U.S. at 351, 101 S.Ct. 1146 (reading "judgment finally obtained by the offeree . . . not more favorable than the offer" to exclude situations where judgment is not obtained by the offeree) (internal quotation marks omitted). The Court went on to conclude that this reading was consistent with the Rule's purposeto encourage settlements. Id. at 352, 101 S.Ct. 1146. It was also consistent with Rule 1-054(D), which grants the court discretion to award costs to a prevailing defendant. If Rule 1-068 were mandatory in that situation, any offer by the defendant, no matter how small, would eliminate the trial court's discretion under Rule 1-054(D). Delta Air Lines, Inc., 450 U.S. at 352-53, 101 S.Ct. 1146. A literal reading of Rule 1-068, the Court concluded, is evenhanded in its effect. It allows the trial judge to retain its Rule 1-054(D) discretion where a defendant prevails or where a plaintiff prevails and the judgment is greater than the offer; the Rule is mandatory only where the judgment for plaintiff is less than the offer. Id.
{101} The Court's reasoning is consistent with our decisions that make Rule 1-068 mandatory where a judgment for a plaintiff is less than the offer. See, e.g., Dunleavy, 116 N.M. at 360-61, 862 P.2d at 1219-20 (indicating desire to harmonize Rules 1-054 and 1-068); Shelton, 1999-NMCA-048, ¶ 1, 127 N.M. 92, 977 P.2d 1012 (noting "Rule 1-068 provides an incentive for defendants to make reasonable settlement offers before trial"); Gilmore v. Duderstadt, 1998-NMCA-086, ¶ 41, 125 N.M. 330, 961 P.2d 175 (discussing tension between Rules 1-054 and 1-068 and holding even if plaintiff could not receive costs under 1-068, pre-offer costs could be awarded to plaintiff as prevailing party under Rule 1-054); Dickenson v. *245 Regent of Albuquerque, Ltd., 112 N.M. 362, 363, 815 P.2d 658, 659 (Ct.App.1991) (relying on federal law in construing Rule 1-068). We therefore adopt the Supreme Court's interpretation of Rule 1-068that the Rule does not apply where a judgment is entered in the defendant's favor. Although we recognize that the holding of Delta Air Lines, Inc. has been criticized in the past, the holding remains the law, despite attempts to expand its scope, and most federal courts, as well as many state courts have followed the Court's ruling. See, e.g., Fry v. Bd. of County Comm'rs, 7 F.3d 936, 944 (10th Cir.1993); Danese v. City of Roseville, 757 F.Supp. 827, 831 n. 4 (E.D.Mich.1991); Landon v. Hunt, 938 F.2d 450, 451-52 n. 1 (3rd Cir.1991) (per curiam); Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 293 (6th Cir.1989); but see Darragh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804, 805-06 (1988); Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268, 274 (1983). When a judgment is entered in the defendant's favor, the proper relief is found under Rule 1-054. Accordingly, we hold that the trial court did not err in denying post-offer costs to AAA Gas under Rule 1-068. Since we have held that the decision to award these costs should be analyzed under Rule 1-054(D), we must determine whether the trial court abused its discretion in denying AAA Gas its costs.
Rule 1-054(D)
{102} Plaintiffs' opposition to the award of these costs under Rule 1-054(D) was premised on their inability to pay. In AAA Gas's view, however, the court's ruling was impermissibly based on the financial disparity of the parties alone. AAA Gas also argues it was an abuse of discretion not to require Plaintiffs to disclose information relating to their indigence, specifically their workers' compensation benefits and Fisher Controls settlements. It does not appear from the record, however, that AAA Gas ever requested the court to have Plaintiffs disclose their workers' compensation settlement to substantiate a claim of financial hardship and we do not consider that contention. See State v. Silver, 83 N.M. 1, 2, 487 P.2d 910, 912 (Ct.App.1971) (declining to consider new contentions on appeal where record did not reflect it was presented to the trial court).
{103} As to the remaining charges, this Court reviews the trial court's assessment of costs in a civil action under an abuse of discretion standard. Key, 2000-NMSC-010, ¶ 7, 128 N.M. 739, 998 P.2d 575; Gallegos ex rel. Gallegos, 117 N.M. at 489, 872 P.2d at 907. Under Rule 1-054(D)(1), "costs . . . shall be allowed [as a matter of course] to the prevailing party unless the court otherwise directs." The Rule, therefore, creates a presumption that the prevailing party is entitled to costs. Key, 2000-NMSC-010, ¶ 6, 128 N.M. 739, 998 P.2d 575. The burden is on the losing party to "overcome this presumption by showing bad faith on [AAA Gas's] part, misconduct during the course of the litigation, that an award to [AAA Gas] would be unjust, or that other circumstances justify the denial or reduction of costs." Id. "[T]he losing party's ability to pay is a proper factor to consider in determining whether to award costs." Gallegos ex rel. Gallegos, 117 N.M. at 490, 872 P.2d at 908. Disparity in resources between the parties alone, however, "is not enough to justify a reduction in the cost award;" a court must also consider the losing party's ability to pay. Key, 2000-NMSC-010, ¶ 15, 128 N.M. 739, 998 P.2d 575. Nonetheless, "[i]f the trial court exercises its discretion not to award costs to the prevailing party it should articulate the reasons for its ruling, unless the basis for denying costs is readily apparent on the face of the record." Id. ¶ 9, 128 N.M. 739, 998 P.2d 575 (internal quotation marks and citation omitted).
{104} After hearing arguments from the parties, the trial court ruled:
I agree with you, Mr. Morgan, that on the basis of the facts known to this Court and on the basis of the Court's reading of Gallegos v. Southwest Community Health Systems and Key v. Chrysler, . . . it is my view that an award of costs against the unsuccessful plaintiffs in this matter, given the disparity of financial resources and for the other reasons advanced by plaintiffs' counsel, that the award of costs is denied.
*246 {105} While the record indicates that the court considered the disparity of resources between the parties, its reference to Gallegos and Key and "the other reasons advanced by Plaintiffs' counsel," indicates that this was not the court's sole consideration. We review the record to determine if there is a reasonable basis for the denial. Key, 2000-NMSC-010, ¶ 9, 128 N.M. 739, 998 P.2d 575.
{106} Both at the hearing on Defendants' cost bills and in Plaintiffs' objections to Defendants costs bill and supporting memorandum, Plaintiffs' argument focused on their financial inability to pay a cost award. Counsel represented that Plaintiffs owed $28,000 in legal fees which they were unable to pay and he did not expect to collect. Counsel also presented evidence that Mr. Apodaca had just returned to work, some three years after the accident. He worked on a part-time basis as a school bus driver for $8.30 per hour and earned a small salary of approximately $800 per month as a pastor. Mrs. Apodaca did not work outside the home. Together, their annual gross income was roughly $15,600, a monthly income of $1,450. Moreover, Mr. Apodaca expected to have hand surgery which would entail an eighteen to twenty-four month recovery period during which he would be unable to work as a bus driver. The Velasquezes were somewhat better off. Although they earned a combined annual gross income of $56,400, they supported two young children, and Mr. Velasquez was attempting to replace approximately $200,000 worth of tools lost in the explosion that were his livelihood. Counsel also presented an affidavit from Plaintiffs itemizing their expenses and assets. After bills, the Apodacas had about $100 "extra" money per month and the Velasquezes had about $200 per month.
{107} As for the income generated from the settlement with Fisher Controls, we find the trial court had ample knowledge of that agreement and its contents even though Plaintiffs were never required to disclose it to AAA Gas for purposes of assessing costs. The record shows that the trial court inspected the sealed agreement in camera after an earlier evidentiary hearing. At that time, the court indicated it had reviewed the amount of the award. Having had access to this information, we conclude that the court was not required to disclose the confidential agreement to the opposing parties. We find that Plaintiffs did disclose the settlement to the trial court and that the court could take that information into consideration in its assessment of the cost award.
{108} In light of the evidence above, we conclude that the trial court's decision to deny Defendant's costs was reasonable and not an abuse of discretion. Consistent with our case law, the court did not limit its consideration to the parties' disparity in wealth. Instead, the court properly considered the evidence relevant to the parties' ability to pay. The Apodacas clearly were not in a position to pay Defendant's costs. Although the Velasquezes had more resources than the Apodacas, there were other factors the trial court could have taken into consideration given the evidence presented.
CONCLUSION
{109} For the reasons stated above, we affirm the judgment below. Defendant AAA Gas's cross-appeal is denied.
{110} IT IS SO ORDERED.
FRY and KENNEDY, JJ., concur.
NOTES
[1] AAA Gas also requests sanctions under Rule 12-312(D) NMRA 2003 arguing that Plaintiffs' counsel referred to deposition statements that were not admitted as substantive evidence at trial. We deny the request.
[2] While most negligence per se claims are against defendants, plaintiffs can be found comparatively at fault on an instruction of negligence per se. See, e.g., Olguin v. Thygesen, 47 N.M. 377, 387-88, 143 P.2d 585, 592 (1943); Jaramillo v. Fisher Controls Co., 102 N.M. 614, 625-26, 698 P.2d 887, 898-99 (Ct.App.1985).
[3] Only portions of Section 14-2-1(A)(3) of the Albuquerque City Fire Code were pled below. The Code in its entirety was not made part of the record. While a line of cases prohibits this Court from taking judicial notice of an ordinance that is not part of the record, see Coe v. City of Albuquerque, 81 N.M. 361, 364, 467 P.2d 27, 30 (1970); Gen. Servs. Corp. v. Bd. of Comm'rs, 75 N.M. 550, 552, 408 P.2d 51, 52 (1965); City of Albuquerque v. Leatherman, 74 N.M. 780, 782, 399 P.2d 108, 110 (1965); Baptiste v. City of Las Cruces, 115 N.M. 178, 179 n. 1, 848 P.2d 1105, 1106 n. 1 (Ct.App.1993), we have found no sound reason to deny an appellate court access to the law when it is reviewing a case de novo. This Court must make its own independent finding of the law and in doing so, must have latitude in reviewing the applicable law in its entirety to determine whether the jury instructions fairly represent the law. Norman J. Singer, Sutherland Statutory Construction, § 38:1 (6th ed. 2001) ("Concerning questions of law, a judge is permitted to make use of any information which may come to his attention, whether it has been made a matter of record in the case or not."). Under the circumstances of the instant case, we find this Court may review the ordinance in its entirety because the existence of the Code was admitted by all parties and the relevant portions were pled in part out of context. See Srader v. Pecos Constr. Co., 71 N.M. 320, 322-25, 378 P.2d 364, 365-68 (1963); cf McKeough v. Ryan, 79 N.M. 520, 521, 445 P.2d 585, 586 (1968).
|
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-603V
UNPUBLISHED
PAULINE ANITA GUNNARSON, Chief Special Master Corcoran
Petitioner, Filed: November 13, 2019
v.
SECRETARY OF HEALTH AND Special Processing Unit (SPU); Joint
HUMAN SERVICES, Stipulation on Damages; Influenza
(Flu) Vaccine; Shoulder Injury
Respondent. Related to Vaccine Administration
(SIRVA)
Douglas Lee Burdette, Burdette Law, PLLC, North Bend, WA, for petitioner.
Alexis B. Babcock, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On April 26, 2018, Pauline Anita Gunnarson filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et
seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related
to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine
administered on October 16, 2017. Petition at 1; Stipulation, filed November 13, 2019,
at ¶¶ 2, 4. Petitioner further alleges the flu vaccine was administered within the United
States, that she experienced the residual effects of her injury for more than six months,
and that there has been no prior award or settlement of a civil action on her behalf as a
result of her alleged injury. Petition at 1-2; Stipulation at ¶¶ 3-5. “Respondent denies
that petitioner sustained a SIRVA Table injury, and denies that the flu vaccine is the
cause of petitioner’s alleged SIRVA, or any other injury or condition. ” Stipulation at ¶ 6.
1
Because this unpublished ruling contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). This means the ruling will be available to anyone with access to
the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to
redact medical or other information, the disclosure of which would constitute an unwarranted invasion of
privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such
material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Nevertheless, on November 13, 2019, the parties filed the attached joint
stipulation, stating that a decision should be entered awarding compensation. I find the
stipulation reasonable and adopt it as my decision awarding damages, on the terms set
forth therein.
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
A lump sum of $25,000.00 in the form of a check payable to Petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of
damages that would be available under § 15(a). Id.
I approve the requested amount for Petitioner’s compensation. In the absence of
a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed
to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
PAULINE ANITA GUNNARSON, )
)
Petitioner, )
) No. 18-603V
V. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEAL TH AND HUMAN )
SERVICES, )
)
Respondent. )
)
)
__________________ )
STIPULATION
The parties hereby stipulate to the following matters:
1. Petitioner, Paulette Gunnarson, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S .C. § 300aa-10 to -34 (the "Vaccine
Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt
of the influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the
"Table"), 42 C.F.R. § 100.3(a).
2. Petitioner received the flu vaccine on October 16, 2017.
3. The flu vaccine was administered within the United States.
4. Petitioner alleges that she suffered a Shoulder Injury Related to Vaccination
("SIRVA") as the result of the flu vaccine and that she experienced the residual effects of this
condition for more than six months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on her behalf as a result of her alleged injuries.
6. Respondent denies that petitioner sustained a SIRVA Table injury, and denies that the
flu vaccine is the cause of petitioner's alleged SIRVA, or any other injury or condition.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the
issues between them shall be settled and that a decision should be entered awarding the
compensation described in paragraph 8 of this Stipulation.
8. As soon as practicable after an entry of judgment reflecting a decision consistent with
the terms of this Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 U .S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $25,000.00, in the form of a check payable to petitioner. This
amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a).
9. As soon as practicable after the entry of judgment on entitlement in this case, and after
petitioner has filed both a proper and timely election to receive compensation pursuant to 42
U.S .C. § 300aa-2l(a){l), and an application, the parties will submit to further proceedings before
the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this
petition.
10. Petitioner and her attorney represent that compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable
under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be
expected to be made under any State compensation programs, insurance policies, Federal or
State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C.
§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.
2
11. Payment made pursuant to paragraph 8 of this Stipulation, and any amounts awarded
pursuant to paragraph 9 of this Stipulation, will be made in accordance with 42 U.S.C. § 300aa-
15(i), subject to the availability of sufficient statutory funds.
12. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys' fees and litigation costs, the money provided pursuant to this Stipulation will be
used solely for the benefit of petitioner, as contemplated by a strict construction of 42 U.S.C.
§ 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. §§ 300aa-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in her
individual capacity and on behalf of her heirs, executors, administrators, successors or assigns,
does forever irrevocably and unconditionally release, acquit and discharge the United States and
the Secretary of Health and Human Services from any and all actions, causes of action (including
agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever
kind or nature) that have been brought, could have been brought, or could be timely brought in
the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or
unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or
alleged to have resulted from, the flu vaccine administered on or about October 16, 2017, as
alleged by petitioner in a petition for vaccine compensation filed on April 26, 2018, in the United
States Court of Federal Claims as petition No. 18-603V.
14. If petitioner should die prior to entry of judgment, this agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
15. If the special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a
3
decision that is in complete conformity with the terms of this Stipulation, then the parties'
settlement and this Stipulation shall be voidable at the sole discretion of either party.
16. This Stipulation expresses a full and complete negotiated settlement of liability and
damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except
as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the
parties hereto to make any payment or to do any act or thing other than is herein expressly stated
and clearly agreed to. The parties further agree and understand that the award described in this
stipulation may reflect a compromise of the parties' respective positions as to liability and/or
amount of damages, and further, that a change in the nature of the injury or condition or in the
items of compensation sought, is not grounds to modify or revise this agreement.
17. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the flu vaccine caused petitioner's alleged SIRVA,
or any other injury or her current condition.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
4
Respectfully submitted,
PETITIONER:
flL~ou.. ~ G ~
PAULINE ANITA GUNNARSON
ATTORNEY OF RECORD FOR AUTHORIZED REPRSENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
rdJb,/de ½t !Jl Et)Jdic
D. LEE BURDEWE -=---=-
~ -~L
ARINE E. REEVES
-
BURDETTE LAW, PLLC Deputy Director
249 Main Ave., S., Ste 107 #333 Torts Branch
North Bend, WA 98045 Civil Division
Tel: (206) 441-5544 U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEAL TH RESPONDENT:
AND HUMAN SERVICES:
TAMARA OVERBY
a.u~Ba~a:Jz.
ALEXIS B. BABCOCK
Acting Director, Division of Injury Assistant Director
Compensation Programs {DICP) Torts Branch
Healthcare Systems Bureau Civil Division
Health Resources and Services Administration U.S. Department of Justice
U.S. Department of Health and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 08Nl 468 Washington, DC 20044-0146
Rockville, MD 20857 Tel: (202) 616-7678
Dated: \\ l l ~ Il 1
5
|
849 F.2d 1525
270 U.S.App.D.C. 396
Rafael E. CHIRINO, Petitioner,v.NATIONAL TRANSPORTATION SAFETY BOARD and Secretary ofTransportation, et al., Respondents.
No. 87-1512.
United States Court of Appeals,District of Columbia Circuit.
Argued May 2, 1988.Decided July 1, 1988.As Amended July 7, 1988.
James W. Johnson, with whom Gary Green, Washington, D.C., was on the brief, for petitioner.
Karen R. Bury, Atty., F.A.A., with whom Peter J. Lynch, Manager, Enforcement Proceedings Branch, F.A.A., Washington, D.C., was on the brief, for respondents.
Before STARR and WILLIAMS, Circuit Judges, and WEIGEL*, Senior District Judge.
Opinion for the Court filed by Circuit Judge STARR.
STARR, Circuit Judge:
1
This is a petition for review of an order of the National Transportation Safety Board revoking a pilot's airman certificates for violations of the Federal Aviation Regulations and a subsequent order of the Board denying a petition for reconsideration or rehearing. For the reasons that follow, we uphold the Board's orders and deny the petition for review.
2
* Rafael Chirino, an Eastern Airlines pilot, was charged with violating the Federal Aviation Regulations ("FAR") by knowingly causing false statements to be made on his application for a Boeing 727 aircraft type rating.1 Chirino had presented a partially completed rating application to Eduardo Baro, then an FAA Inspector. Inspector Baro filled in the remaining portion, indicating that Pilot Chirino had successfully completed two separate tests to obtain the 727 type rating. Specifically, the completed application indicated that Chirino passed a check ride in a simulator on May 6, 1985 and a flight check in an actual Boeing 727 on May 10, 1985. According to the FAA, Inspector Baro had not in fact tested Chirino in either a flight simulator or a 727 aircraft.
3
The FAA alleged that the fraudulent application demonstrated that Chirino lacked good moral character, a bedrock requirement mandated by FAR sections 61.151(b) and 143.9; in consequence, the FAA asserted, Chirino lacked the qualifications to hold any type of airman certificate. In November 1986, the FAA Administrator issued an emergency order revoking all of Chirino's airman certificates by virtue of the alleged violations. See Secs. 609(a) and 1005(a) of the Federal Aviation Act, 49 U.S.C.App. Secs. 1429(a) and 1485(a) (1982).
4
Chirino appealed the Administrator's action to the National Transportation Safety Board. At an ensuing hearing before an Administrative Law Judge, the FAA alleged that Inspector Baro was engaged in a scheme to "sell" type ratings to several airmen. The FAA showed that, in view of Chirino's lack of prior training for the 727 aircraft, he could not be certified for a Boeing 727 type rating without an actual flight check, which Chirino had not received.2 To establish Chirino's complicity in the scheme, the FAA sought to show that the pilot knew he could not qualify for the rating without a flight check. See supra note 2. The FAA also introduced into evidence a check signed by Chirino in the amount of $2,000 made payable to Inspector Baro. On the check, Chirino had made the notation, "loan." The FAA, in addition, sought to show that no simulator check had ever taken place; specifically, the FAA established that Eastern had no record of simulator time being rented either by Inspector Baro or by Chirino during the relevant period.
5
Chirino defended against the charges on the basis that he had not "caused" any false entries to be made on the application. Chirino acknowledged that he could not be qualified for a Boeing 727 type rating without an actual flight check, but asserted that he reasonably believed at the time, based in part on his discussions with Inspector Baro, that he could obtain a type rating without such a check. According to his testimony, Chirino believed that pilots at Eastern had been able to obtain certification based on a simulator check alone. See supra note 2. Chirino thus maintained that he had been an innocent victim of Inspector Baro's scheme and that he had been duped into believing that he had lawfully secured the 727 certification.
6
In this regard, Chirino claimed that he did in fact receive a simulator check as indicated on his application. To buttress his contention, Chirino called as a witness Stuart Goldstein, an aviation attorney in Miami. Goldstein testified that he had observed Chirino and Inspector Baro in the flight simulator together, although he could not tell whether the Inspector was giving Chirino a check ride or simply training him. As to the tell-tale "loan" trumpeted by the FAA, Chirino acknowledged the payment to Baro, but stated that he believed the payment was to cover the cost of renting a simulator. As to the curious notation on the check, Chirino testified that he had entered the "loan" notation merely to accommodate Inspector Baro's request.
7
Finally, Chirino called Inspector Baro to testify. By this time, however, the latter had been fired by the FAA and was under federal criminal indictment in connection with fraudulently issuing ratings to three Eastern pilots, including Chirino. At Chirino's hearing Baro refused to testify, invoking his Fifth Amendment privilege against compelled self-incrimination.
8
At the conclusion of the hearing, the ALJ issued an oral decision reversing the FAA's emergency order of revocation. The heart of the case, as the ALJ saw it, was whether Inspector Baro's false statements on the application could be imputed to Chirino. J.A. at 19. By virtue of the burden of proof resting on the Administrator, the ALJ concluded that he could not find that Chirino was a knowing participant in the scheme. J.A. at 22. The ALJ reasoned that he could not "disbelieve both Mr. Goldstein and [Chirino] on the issue of whether or not the simulator check test was given" and found specifically that Inspector Baro administered the test to Chirino. The ALJ concluded as follows:
9
[Chirino] has been open and cadid [sic] and honest in his testimony here today.... [Chirino] relied, to his detriment, on the Inspector's word that he could get this type of rating for [Chirino].
10
In the final analysis, I do not see any evidence before me that imputes the actions of Inspector Baro to [Chirino].... The Inspector made a series of false statements. [Chirino] had no knowledge of those statements being false.
11
J.A. at 21-23.
12
On appeal, the NTSB unanimously reversed. NTSB Order No. EA-2457 (Jan. 27, 1987). First, the Board found that the ALJ erred in giving dispositive weight to the testimony of Messrs. Chirino and Goldstein as to the simulator check. Indeed, the Board concluded that the ALJ made a critical mistake in evaluating Goldstein's testimony; specifically, the NTSB found that "contrary to the law judge's apparent belief that [Goldstein] verified that a simulator check had been given to [Chirino], the witness clearly indicated that he did not know whether respondent was engaged in a simulator check ride or just training in the simulator." J.A. at 5 (footnote omitted). This error, the NTSB concluded, invalidated the ALJ's credibility determination and required the Board to weigh the evidence itself. Based on its own review, the Board concluded that no simulator check had in fact been given. J.A. at 6. The NTSB pointed in particular to Eastern's records which failed to show that its equipment had been rented for a simulator test, and to the testimony of a former FAA official that, based on Chirino's experience and training at the time, the pilot had a "zero" chance of passing a simulator check for a 727 rating. Id.3
13
Second, the Board condemned Chirino's pivotal testimony (that he believed that he could obtain 727 certification through a simulator test only) as "inherently incredible," J.A. at 8; indeed, in the Board's view, "any such belief would have to have been the product of purposeful ignorance," J.A. at 7, particularly when "even the most casual reading of [the relevant regulations] would have dispelled" any such belief. J.A. at 8. Accordingly, the Board concluded that "an airman with [Chirino]'s numerous certificates and long term aviation experience would be at least knowledgeable, if not intimately familiar, with a matter such as this bearing so directly and fundamentally on career advancement as an airline pilot." J.A. at 7. Although Chirino testified that he knew of Eastern captains who had qualified for certification without an actual flight check, the Board observed that only captains who had undergone a special Eastern training program were eligible for qualification through that method. Chirino, however, was far removed from that lofty position, as he was a second officer with at least six additional years of experience necessary before becoming eligible for promotion to captain. Under these circumstances, the Board concluded, Chirino could "reasonably be held to have knowingly caused the inspector to make those falsifications." J.A. at 9.
14
In the wake of the Board's order, Chirino filed a petition for reconsideration or rehearing. Chirino attached to his petition an affidavit of Inspector Baro, who was now willing to take the stand on Chirino's behalf. The apparent reason for this procedural volte face was that Baro had since pled guilty to charges arising out of the incidents recounted here. Inspector Baro's proffered affidavit largely substantiated Chirino's testimony. Accordingly, Chirino argued that, inasmuch as Baro's testimony had previously been unavailable and was of obvious significance to the case, the Board should deem this a "new matter" justifying reconsideration or rehearing pursuant to the Board's rules.4
15
The NTSB denied Chirino's petition. NTSB Order No. EA-2567 (Jul. 27, 1987). But this time, the Board was not of one mind. Two members, Messrs. Goldman and Kolstad, concluded that the proposed testimony of Inspector Baro did not constitute "new matter" within the meaning of the Board's rules. The stated reasoning of these members was as follows:
16
That rule was intended exclusively to allow for consideration of evidence of which the proponent was literally unaware before the case was submitted to the Board. Since [Chirino] testified in detail at the hearing on the circumstances surrounding [Inspector Baro's] issuance of a type rating to him. [Inspector Baro's] affirmation of [Chirino's] account of what took place between them does not qualify as "new matter" that was "discovered" after the hearing. The regulation does not provide for reconsideration or rehearing based on any other ground.
17
J.A. at 13.
18
Two Board members were of the contrary view. These members considered the prospective testimony of ex-Inspector Baro a "new matter" and would have remanded the case to the ALJ "for the limited purpose of taking his testimony and making a credibility assessment with respect to it." J.A. at 15.
19
Chairman Burnett cast what both sides characterize as the tie-breaking vote. Although the Chairman believed Inspector Baro's testimony was "new" in the sense that it had not previously been available, he did not believe that this circumstance required the Board to grant the petition. Rather, Chairman Burnett concluded that the NTSB "must evaluate the matter to determine if it at least meets a threshold which would warrant further consideration." J.A. at 14. The Chairman concluded that Inspector Baro's testimony did not rise to that threshold level.
20
Mr. Baro's involvement with [Chirino] in the incident at issue, which led to the loss of his FAA employment, the revocation of his airman certificate, and a criminal conviction, effectively discredits him as a witness. I do not believe the Board is obligated to exercise our discretion to reopen a matter to take testimony that under any objective standard should be entitled to little weight.
21
J.A. at 14.
II
22
Chirino claims that the NTSB erred in two respects. First, he contends that the Board's reversal of the ALJ's credibility finding was arbitrary and capricious. Second, he chastizes the Board for denying his petition for rehearing or reconsideration in the face of the prospective, highly probative testimony of the previously silent Inspector Baro.
23
* As the FAA itself articulates the applicable criteria, the "Board's policy is not to disturb a credibility finding 'unless there is a compelling reason or the finding was clearly erroneous.' " FAA Brief at 33 (quoting Administrator v. Timmons, 2 N.T.S.B. 1206, 1211 (1975) (dissenting statement)); see also Administrator v. McCraw, 3 N.T.S.B. 2345, 2347 (1980) ("the 'Board is most reluctant to disturb a credibility finding by a [law judge] unless the record reflects a compelling reason for such action' " (quoting Administrator v. Coleman, 1 N.T.S.B. 229, 230-31 (1968)); Administrator v. Bargen, NTSB Order No. EA-2248, at 9 (Dec. 23, 1985) (ALJ "credibility determinations are not to be disturbed absent clear error"), aff'd mem., 807 F.2d 177 (9th Cir.1986).5 In our view, the Board's determination that Chirino's testimony was "inherently incredible" supplied the requisite basis under the NTSB's applicable rules to overturn the contrary findings of the ALJ; in addition, the NTSB's decision in this respect is adequately buttressed by the record.6
24
In essence, the Board refused to credit Chirino's claim that he was an innocent dupe in Inspector Baro's nefarious scheme. As the Board noted in its unflattering assessment of the pilot's testimony, Chirino could offer no plausible explanation for the oddity of Inspector Baro's having Chirino inscribe the word "loan" on the check. The ALJ himself, the NTSB observed, had described Chirino's purported explanation (that this was in payment for the simulator rental) as "far-fetched." J.A. at 9 n. 13. The fact that industry custom apparently calls for the pilot, not the inspector, to arrange for aircraft or simulators further undermined Chirino's explanation.
25
Even more important, however, was the implausibility of a veteran pilot's believing that he could be certified on a Boeing 727 without ever having been tested on the aircraft (and, to make bad matters worse, after only a few hours behind the wheel of a simulator in preparation). See supra note 3. Pointing to Chirino's considerable piloting experience (and relying on its own expertise in these matters), the Board concluded that a veteran of the cockpit such as Chirino could reasonably be held to know that he could not obtain 727 certification without passing the appropriate tests. As recounted previously, one former FAA official testified that, by virtue of Chirino's inexperience with the aircraft, the probability that the pilot would be able to pass a simulator flight check for a Boeing 727 was zero. For Chirino to assume otherwise, the Board could reasonably conclude, was implausible to the point of incredulity.
26
For the foregoing reasons, we are unable to condemn the Board's reversal of the ALJ's credibility findings as arbitrary or capricious.7
B
27
The remaining issue has to do with the denial of Chirino's petition for reconsideration or rehearing. By virtue of the peculiar 2-1-2 split in the Board's voting, we are obliged to scrutinize both the explanation of Chairman Burnett and that of Members Goldman and Kolstad for denying the petition. We are satisfied that neither reason, standing alone as the basis of the Board's decision, constituted an abuse of discretion or was contrary to law.8
28
* The parties, understandably, have focused primarily on Chairman Burnett's concurring statement as the critical, tie-breaking vote. Petitioner argues that the Chairman erred in dismissing Inspector Baro's credibility without the benefit of the latter's testimony. As Chirino aptly puts it, "the time to test a witness' credibility arrives after he takes the stand, not before." Brief for Petitioner at 10. Chirino views Chairman Burnett's statement as erroneously giving dispositive weight to the undisputed fact of Inspector Baro's criminal conviction.
29
But we read the Chairman's statement differently. Despite the apparent oddity of refusing to credit testimony before even hearing it, Chairman Burnett's position is, under the circumstances of this case, not without foundation. The posture of the case before the Board, it must be remembered, was a petition for reconsideration or rehearing in which the Board had already rendered an adjudication on the merits, including an assessment of the plausibility of Chirino's version of the operative events (a version that Inspector Baro's testimony would presumably substantiate).
30
In reviewing petitions for reconsideration or rehearing, the Board has looked in the past to cases construing Rule 59 of the Federal Rules of Civil Procedure (governing new trials) for guidance in determining whether discovery of a "new matter" warrants reconsideration or rehearing within the meaning of the Board's rules. Informed by those federal court decisions, the NTSB cases have articulated a daunting requirement: in addition to the literal criteria of section 821.57(d) (set out at note 4 supra ), for a new matter to warrant the Board's reconsideration or rehearing, a petitioner must proffer noncumulative evidence that would probably change the result in the case. See Administrator v. Moore, 3 N.T.S.B. 55, 56 (1977) ("newly discovered evidence ... must be such as would probably produce a different result ") (emphasis added); Administrator v. Strock, NTSB Order No. EA-1794, at 5 (Jun. 8, 1982) ("rehearing request must generally be accompanied by the evidence ... that the requesting party believes would require a different conclusion on the ultimate issues in the proceeding"), reconsideration denied, NTSB Order No. EA-1834 (Oct. 6, 1982).
31
In this case, the burden of Chairman Burnett's statement was to assay whether the case should be reopened, not to evaluate the credibility of ex-Inspector Baro's proposed testimony. Having previously (and unanimously) dismissed Chirino's story as "inherently incredible," the NTSB reasonably could conclude that Inspector Baro's testimony would only be cumulative and thus not change the Board's ultimate determination. Indeed, the Board had already considered Inspector Baro's testimony in a companion case, Administrator v. Martinez, NTSB Order No. EA-2658 (Feb. 10, 1988). Like Chirino's proceeding, Martinez involved the revocation of the airman certificates of another Eastern Airlines pilot charged with fraudulently securing a 727 type rating from Inspector Baro. Again, Pilot Martinez, like Chirino, defended on the basis that he had been the innocent victim of the Inspector's scheme. Unlike the present case, however, the ALJ and the Board in Martinez did have the benefit of the Inspector's testimony, which substantially supported the pilot's position. The same ALJ who presided over the Chirino proceeding found once again in Martinez that the Administrator had failed to carry his burden of proof. Once again, the Board reversed. And, relevantly for our purposes, it did so even with the benefit of Inspector Baro's testimony; indeed, the Board concluded that Pilot Martinez's "reliance defense [is] singularly unconvincing and inherently incredible." Id. at 7.
32
In light of the Martinez proceeding, it bears recalling that under the Federal Aviation Act it is the Board which serves as the ultimate finder of fact, even with respect to credibility determinations. And, in carrying out its role, the Board enjoys wide discretion in determining whether new evidence warrants the reopening of agency proceedings. In our view, the Board could reasonably conclude that it made little (if any) sense to send the case back to the ALJ when it had already found Chirino's version of events "inherently incredible."
33
It is in this sense, we believe, that Chairman Burnett deemed Inspector Baro's testimony as "entitled to little weight." J.A. at 14. We understand the Chairman's concurrence to say, in effect, that Inspector Baro's testimony would only be cumulative and thus not warrant reconsideration or rehearing under applicable regulations.9
2
34
Although the parties have not favored us with specific argument on the point, we are also satisfied that the interpretation of section 821.57(d) embraced by the two other members who, along with Chairman Burnett, constituted the majority in denying Chirino's petition, represents a reasonable interpretation of the Board's own regulation. Members Goldman and Kolstad, the reader may recall, concluded that Inspector Baro's prospective testimony did not qualify as "newly discovered" evidence within the meaning of the Board's rule.
35
To assess the reasonableness of this interpretation, we pause to observe that, in an admittedly different but analogous context, cases construing Rule 33 of the Federal Rules of Criminal Procedure governing new trials are instructive on the question of what constitutes "newly discovered" evidence. In the Rule 33 setting, several courts have concluded that post-trial testimony of a co-defendant who initially asserted his or her Fifth Amendment privilege does not constitute "newly discovered" evidence within the meaning of the Rule. See, e.g., United States v. Metz, 652 F.2d 478 (5th Cir.1981) (drawing a distinction between "newly discovered" and "newly available" evidence); United States v. Diggs, 649 F.2d 731, 740 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981) ("[w]hen a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a co-defendant, the evidence is not 'newly discovered' "); United States v. Jacobs, 475 F.2d 270, 286 n. 33 (2d Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53 (1973).
36
These decisions from the criminal law setting provide a direct analogy to the situation before the Board in this case.10 In effect, the FAA alleged that Chirino and Inspector Baro were co-conspirators in an unlawful scheme to issue fraudulent ratings. Inasmuch as Inspector Baro chose to remain silent in the earlier proceedings, the Board could reasonably conclude that he should not now be allowed to come forward to exculpate his co-conspirator at a point when to do so was apparently "cost-free" (or at least no longer unacceptably costly) to him.
37
We do not read Messrs. Goldman's and Kolstad's statement to mean that, under its present rules, the Board could never reopen proceedings to consider testimony from a witness who had previously asserted a privilege, even if the proffered testimony were noncumulative or could change the result. We interpret their statement, rather, only to say that, under the particular circumstances of this case, Inspector Baro's proposed testimony fails to qualify as "newly discovered" evidence and does not justify the Board's exercising its discretion to reopen proceedings. That determination, we are persuaded, did not constitute an abuse of the Board's discretion.
38
Denied.
*
Of the U.S. District Court for the Northern District of California, sitting by designation pursuant to 28 U.S.C. Sec. 294(d)
1
14 C.F.R. Sec. 61.59(a) provides, in part, as follows:
(a) No person may make or cause to be made--
(1) Any fraudulent or intentionally false statement on any application for a certificate, rating, or duplicate thereof, issued under this part;
(2) Any fraudulent or intentionally false entry in any logbook, record, or report that is required to be kept, made, or used, to show compliance with any requirement for the issuance, or exercise of the privileges, or any certificate or rating under this part.
An aircraft type rating certifies an otherwise qualified crew member to operate a particular aircraft.
2
Although Appendix H to Part 121 of the FAR provides that a pilot may obtain a type rating in a simulator alone by receiving company training pursuant to those provisions, Chirino had received no such training at the time of his application. (The Administrator adduced evidence to the effect that it is common knowledge among pilots within the industry and at Eastern that such training is necessary to become certified without an actual flight check.)
3
Chirino testified that he had flown approximately 50 hours in the pilot position in a Boeing 727 or simulator. However, approximately 40 of those hours were accumulated over six years earlier as part of his second officer's training with Eastern. Chirino testified that, following this six-year hiatus, he spent a mere 10 hours in preparation for his flight check with Inspector Baro. R. 375-76, 382-83, 387-88. None of this latter time was recorded at Eastern
4
49 C.F.R. Sec. 821.57(d) provides:
(d) Petitions for reconsideration, rehearing, reargument, or modification of order. The only petitions for reconsideration, rehearing, reargument, or modification of an order which the Board will entertain are petitions based on the ground that new matter has been discovered. Such petitions must set forth the following:
(1) The new matter;
(2) Affidavits of prospective witnesses, authenticated documents, or both, or an explanation of why such substantiation is unavailable; and
(3) A statement that such new matter could not have been discovered by the exercise of due diligence prior to the date the case was submitted to the Board.
5
As noted in the text, the NTSB has chosen to erect a high threshold before it will overturn ALJ credibility determinations; as a result, we need not enter the debate over the precise contours of the Supreme Court's teaching in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951) that in assessing whether an agency's decision was supported by substantial evidence, reviewing courts must take into account the whole record, including "whatever in the record fairly detracts from its weight." Id. at 488, 71 S.Ct. at 464. See Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074 (9th Cir.1977)
6
On prior occasions, the NTSB has overturned ALJ credibility determinations found to be "inherently incredible" or "inconsistent with the overwhelming weight of the evidence." See, e.g., Administrator v. Klayer, 1 N.T.S.B. 982 (1970); Administrator v. Powell, NTSB Order No. EA-1919 (Jul. 15, 1983)
7
We are less edified by the second (and, fortunately for the Board, independent) reason advanced by NTSB for reversing the ALJ's credibility finding--that the ALJ misunderstood Goldstein's testimony. To complicate an already convoluted point, it would appear that the Board misunderstood the manner in which the ALJ understood Goldstein's testimony. The significance of Goldstein's testimony, as viewed by the ALJ, was not whether Chirino actually took a certifying "check ride," but rather whether Chirino believed that he did. Goldstein's testimony, if credible, would tend to corroborate Chirino's testimony that he did take a check ride (or at least believed that he took one) and was thus an innocent victim of Inspector Baro's money-making plot
8
The competing positions of the three members comprising the majority were, again, (1) that the testimony was not "new matter" under the Board's rules, and (2) that the testimony, although new, did not have enough chance of altering the outcome to justify the burden of reopening the proceeding. It can thus reasonably be inferred, from the statements by the various Board members, that there were 3-2 majorities against each of these propositions. Cf. National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949) (majority of justices against each of two propositions, either one of which supports the case's outcome). Assuming (as we indeed conclude below) that the Board could properly make each of these findings, we cannot reverse merely because of the presence of adverse majorities. Reversal on that ground would, in our view, unduly intrude on the authority of each Board member to make the judgments found permissible under law
9
Cf. United States v. Vergara, 714 F.2d 21 (5th Cir.1983) (upholding district court's determination, in a criminal law context, that a previously silent accomplice's post-conviction willingness to exculpate his co-conspirator did not warrant a new trial on grounds that the belated exculpation was not credible or would not be sufficient to produce a different result at a new trial); United States v. Carlin, 573 F.Supp. 44 (N.D.Ga.1983), aff'd mem., 734 F.2d 1480 (11th Cir.1984) (finding once-unavailable testimony of a witness who had asserted Fifth Amendment privilege both cumulative and unlikely to produce an acquittal (even if it constituted "newly discovered" evidence))
10
We by no means suggest that the Board looked to Rule 33 for guidance in this area. Indeed, Members Goldman and Kolstad made no reference at all to Rule 33, but relied instead on a textual interpretation of the Board's rule. Our discussion of Rule 33 is intended only to show, by the congruity of the results and analysis, that the Board's interpretation of its own rule was a reasonable one. We thus do not uphold the Board's position on a basis not advanced by the agency in violation of well-established Chenery principles, but more modestly look to this analogous body of law for guidance in assessing the reasonableness of the Board's interpretation
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-6419
JAMES OUTLAW,
Petitioner - Appellant,
versus
STATE OF SOUTH CAROLINA; CHARLES H. CONDON,
Attorney General of the State of South
Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph R. McCrorey, Magistrate Judge.
(CA-95-3827-3-22BC)
Submitted: June 20, 1996 Decided: July 2, 1996
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James Outlaw, Appellant Pro Se. Donald John Zelenka, Chief Deputy
Attorney General, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals the order of the magistrate judge granting
Respondents an extension of time in which to respond to Appellant's
28 U.S.C. § 2254 (1988) petition. We dismiss the appeal for lack of
jurisdiction because the order is not appealable. This court may
exercise jurisdiction only over final orders, 28 U.S.C. § 1291
(1988), and certain interlocutory and collateral orders, 28 U.S.C.
§ 1292 (1988); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541 (1949). The order here appealed is neither
a final order nor an appealable interlocutory or collateral order.
We deny a certificate of appealability and dismiss the appeal
as interlocutory. We deny as moot Appellant's motion for bail pend-
ing appeal. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
2
|
Affirmed as Modified; Opinion Filed October 30, 2013.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01486-CR
No. 05-12-01487-CR
LOUIS HANCOCK DAITCH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause Nos. F11-45639-J, F11-45640-J
MEMORANDUM OPINION
Before Justices Moseley, Lang, and Brown
Opinion by Justice Lang
A jury convicted Louis Hancock Daitch of intoxication manslaughter and intoxication
assault with a deadly weapon. See TEX. PENAL CODE ANN. §§ 49.07(a), 49.08(a) (West 2011).
The jury assessed punishment at fifteen years’ imprisonment and a $21 fine on the intoxication
manslaughter case and three years’ imprisonment and a $21 fine on the intoxication assault case.
The trial court’s judgments also include orders that appellant pay $399 in court costs. In a single
issue, appellant contends there is insufficient evidence in the records to support the trial court’s
orders that he pay court costs. In the intoxication manslaughter case, we affirm the trial court’s
judgment. In the intoxication assault case, we modify the trial court’s judgment and affirm as
modified.
Appellant asserts the evidence is insufficient to support the trial court’s judgment in each
case that appellant pay $399 in court costs because the clerk’s records do not contain bills of
costs. The State responds that the trial court did not err in assessing court costs in each case
despite the absence of bills of costs from the record.
If a criminal action is appealed, “an officer of the court shall certify and sign a bill of
costs stating the costs that have been accrued and send the bill of costs to the court to which the
action or proceeding is . . . appealed.” TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2006).
Costs may not be collected from the person charged with the costs until a written bill, containing
the items of cost, is produced and signed by the officer who charged the cost or the officer
entitled to receive payment for the cost. Id. art. 103.001.
The clerk’s records in these cases initially did not contain a copy of the bills of costs.
We, however, ordered the Dallas County District Clerk to file supplemental records containing
certified bills of costs associated with each case, and the clerk did so. See TEX. R. APP. P.
34.5(c)(1) (rules of appellate procedure allow supplementation of clerk’s record if relevant items
has been omitted). Appellant’s complaints that the evidence is insufficient to support the
imposition of costs because the clerk’s records did not contain bills of costs are now moot. See
Coronel v. State, No. 05-12-00493-CR, 2013 WL 3874446, at *4 (Tex. App.––Dallas July 29,
2013, no pet. h.); Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.). We
overrule his first and second issue.
In response to the Court’s order requiring supplementation of the records, appellant filed
an objection that the bills of costs in the supplemental records are not “proper bill[s] of costs”
-2-
and the bills of costs were not filed in the trial court or brought to the trial court’s attention
before costs were entered into the judgments. We reject both arguments.
Appellant first contends the bills of costs in the records are not “proper bill[s] of costs”
because they are “unsigned, unsworn computer printout[s].” Appellant acknowledges the district
clerk has certified that the documents constitute costs that have accrued to date,” but says this
does not “set out the costs as required by statute.” While the code of criminal procedure requires
a record to be kept, the code is silent on the form of such a record except to the extent it must be
certified and signed “by the officer who charged the costs or the officer who is entitled to receive
payment for the cost.” See TEX. CODE CRIM. PROC. ANN. art. 103.001, .006; Coronel, 2013 WL
3874446, at *4.
Here, in each case, the district clerk provided a “Bill of Costs Certification” containing
the costs that have accrued to date in the respective case, and the documents are certified and
signed by the district clerk. Because the documents meet the mandate of the code of criminal
procedure, we conclude appellant’s objection that the bills of costs are not “proper” lacks merit.
See Coronel, 2013 WL 3874446, at *4.
Appellant further argues there is no indication the bills of costs were filed in the trial
court or brought to the trial court’s attention before costs were entered in the judgments.
Nothing in the code of criminal procedure or the statutes addressing the assessment of costs
against defendants requires that a bill of costs be presented to the trial court at any time before
judgment. See id. at *5.
Article 42.16 provides that the judgment shall “adjudge the costs against the defendant,
and order the collection thereof as in other cases.” TEX. CODE CRIM. PROC. ANN. art. 42.16
(West 2006). Court costs, as reflected in a certified bill of costs, are not part of the sentence, do
-3-
not alter the range of punishment, and need not be orally pronounced or incorporated by
reference in the judgment to be effective. Armstrong v. State, 340 S.W.3d 759, 766 (Tex. Crim.
App. 2011); Coronel, 2013 WL 3874446, at *5. The code of criminal procedure does not require
the bill of costs be filed at the time the trial court signs the judgment of conviction; it only
requires a bill of costs be produced if a criminal case is appealed or costs are collected. See
Coronel, 2003 WL 3874446, at *5. Because there is no requirement that the costs be presented
to the trial court, we conclude appellant’s second objection to the supplemented record lacks
merit. See id. We overrule appellant’s objection to the supplemented records.
The records show the jury assessed a $21 fine in each case. However, the judgment in
cause no. 05-12-01487-CR states the fine is “N/A.” We modify the judgment to reflect the $21
fine. See TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27–28; Asberry, 813 S.W.2d at 529–
30.
In cause no. 05-12-01486-CR, we affirm the trial court’s judgment. In cause no. 05-12-
01487-CR, we affirmed the trial court’s judgment as modified.
/s/ Douglas Lang
DOUGLAS S. LANG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
121486F.U05
-4-
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LOUIS HANCOCK DAITCH, Appellant Appeal from the Criminal District Court
No. 3 of Dallas County, Texas (Tr.Ct.No.
No. 05-12-01486-CR V. F11-45639-J).
Opinion delivered by Justice Lang, Justices
THE STATE OF TEXAS, Appellee Moseley and Brown participating.
Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.
Judgment entered October 30, 2013.
/s/ Douglas Lang
DOUGLAS S. LANG
JUSTICE
-5-
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LOUIS HANCOCK DAITCH, Appellant Appeal from the Criminal District Court
No. 3 of Dallas County, Texas (Tr.Ct.No.
No. 05-12-01487-CR V. F11-45640-J).
Opinion delivered by Justice Lang, Justices
THE STATE OF TEXAS, Appellee Moseley and Brown participating.
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as
follows:
The section entitled “Fine” is modified to show “$21.”
As modified, we AFFIRM the trial court’s judgment.
Judgment entered October 30, 2013.
/s/ Douglas Lang
DOUGLAS S. LANG
JUSTICE
-6-
|
346 Mass. 444 (1963)
193 N.E.2d 683
THE FIRST SAFE DEPOSIT NATIONAL BANK OF NEW BEDFORD & another, trustees,
vs.
ROSE F. WESTGATE & others.
Supreme Judicial Court of Massachusetts, Bristol.
October 8, 1963.
November 8, 1963.
Present: WHITTEMORE, CUTTER, KIRK, SPIEGEL, & REARDON, JJ.
Maurice F. Downey stated the case.
Charles W. Deasy for Rose F. Westgate & others.
Edward J. Harrington, Jr. (Helen P. Brewer with him) for Mary M. Sullivan.
John D. Kenney for The First Safe Deposit National Bank of New Bedford & another, executors, & others.
Edward D. Hicks for New Bedford Men's Mission, Inc.
SPIEGEL, J.
The petitioners seek instructions regarding the distribution of certain assets which they hold as trustees under the fifth clause of the will of the testator, John V. O'Neil, late of New Bedford. The probate judge entered a final decree ordering the assets turned over to the executors of the will of John V. O'Neil, Jr., the only son of the testator; these executors and several beneficiaries under the will of the son are the appellees. The appellants are nieces and nephews of the testator who claim the trust assets and the executors of the will of the testator's deceased sister. The evidence is reported and the judge made a report of material facts.
Clause Fifth of the will, dated February 7, 1936, provides: "All the rest and residue of my estate, I give, bequeath and devise to The Safe Deposit National Bank of New Bedford and said William S. Downey jointly, in trust, nevertheless, for the following trust purposes: ... Second. *446 I direct my Trustees to pay over the net income of this trust to my wife, Florence L. O'Neil, so long as she shall live or remain my widow. Third. I direct my Trustees to pay over to my son, John V. O'Neil, Jr., the following sums out of the principal of this trust: 1. The sum of Twenty-five Hundred (2,500) Dollars at the time he marries. 2. The sum of One Thousand (1,000) Dollars when he reaches the age of thirty years. 3. The sum of One Thousand (1,000) Dollars when he reaches the age of thirty-five years. 4. The sum of One Thousand (1,000) Dollars when he reaches the age of forty years. Fourth. Upon the decease or remarriage of my said wife, I direct my Trustees, subject to the aforesaid payments of principal, to pay the net income of said trust to my said son, John V. O'Neil, Jr., for and during his life-time. Fifth. At the decease of my son, and after the decease or remarriage of my said wife, I direct my Trustees to pay over to my son's issue in equal shares, the net income from said trust until the youngest of my son's issue shall reach the age of twenty-one years, when my Trustees shall pay over the whole of said trust then remaining in equal shares to said issue, free of all trusts. Sixth. If by reason of death or remarriage or lack of issue living at my son's decease, the foregoing provisions cannot be carried out, I direct my Trustees to pay over the trust estate then remaining, free of all trusts, to my next of kin, according to the laws of descent and distribution in intestate estates in this Commonwealth. Seventh. Neither the income nor the principal of the legacies and trust estate herein created shall be assignable, or anticipated, or alienated in any manner by the beneficiaries, nor are they to be subject to the control or claims of creditors or subject to any process of law...."
We herewith summarize pertinent portions of the judge's findings taken from his report of material facts.
On January 6, 1937, John V. O'Neil (the testator) died. In 1946, Florence L. O'Neil, the testator's widow, died. Later that year, John V. O'Neil, Jr., married Anna G. Ring, who is an appellee in the present case. In 1947, the testator's *447 sister, Elizabeth Clark, died. On December 20, 1961, John V. O'Neil, Jr., died, testate, without leaving issue. It is agreed that pursuant to the sixth section of the fifth clause in the testator's will the time has arrived for final distribution of the principal of the trust created under that clause.
The paramount issue before us is whether the term "next of kin," as used in the sixth section, refers to those who had this status on January 6, 1937, the date of the testator's death, or to those who were his next of kin on December 20, 1961, the date on which his son died. The appellees argue, and the Probate Court ruled, that the 1937 date is applicable; the appellants contend that under a proper construction of the will the next of kin are to be determined as of December 20, 1961.
In Childs v. Russell, 11 Met. 16, 23, Chief Justice Shaw said: "We consider that when a bequest is made to one or more for life, and remainder to the testator's heirs, or next of kin, or relations, or such persons as would take his estate by the rules of law if he had died intestate, the bequest is to those who are such heirs or next of kin at the time of his decease, unless there are words indicating a clear intention that it shall go to those who may be his relations or next of kin at the time of the happening of the contingency upon which the estate is to be distributed." Although in that case so much of the court's opinion as applied to the term "next of kin" was dictum, the same rule was applied to the term "nearest of kin" in Keniston v. Mayhew, 169 Mass. 166, 169, and has been restated often enough to be regarded as a settled rule of construction in this Common-wealth. Whall v. Converse, 146 Mass. 345, 348-349. Tyler v. City Bank Farmers Trust Co. 314 Mass. 528, 531. Perkins v. New England Trust Co. 344 Mass. 287, 291. Old Colony Trust Co. v. Stephens, ante, 94, 96-97.
A rule of construction, however, should not be confused with a rule of substantive law. Agricultural Natl. Bank v. Miller, 316 Mass. 288, 291. We have repeatedly said that canons for the interpretation of wills are to be considered *448 only as aids for determining testamentary intent and should not be used to defeat that intent. Ware v. Minot, 202 Mass. 512, 516. Worcester County Trust Co. v. Marble, 316 Mass. 294, 297. McKay v. Audubon Soc. Inc. 318 Mass. 482, 486. The appellants contend that there is other language in the testator's will which tends to prove that he intended the term "next of kin" as used in the sixth section to refer to those who legally would occupy this status on the death of his son and not on his own death.
The appellants' strongest argument is that it is unlikely that the testator intended a contingent remainder to vest in his son (assuming his son to have been the "next of kin" in 1937) upon his son's death, where the express gifts in the will to the son were only a life interest in the trust and nominal payments of trust principal upon the happening of certain events during the son's lifetime. We see nothing unlikely in such a result. Perhaps a similar result would be more often accomplished by giving the life beneficiary a contingent power of appointment over the remainder, or a more restricted result accomplished by giving a contingent remainder to the life beneficiary's heirs. See Old Colony Trust Co. v. Richardson, 297 Mass. 147, 148-149. Cf. Bailey v. Smith, 222 Mass. 600, 602-603. Nevertheless, we have held in several cases that a gift of a life interest to an heir with a remainder in the testator's heirs does not prove that the heirs were to be determined at the time of the life beneficiary's death. Keating v. Smith, 5 Cush. 232, 235-236. Old Colony Trust Co. v. Clarke, 291 Mass. 17, 21. Gilman v. Congregational Home Missionary Soc. 276 Mass. 580, 584. We observe that the testator's will was drawn after these cases had been decided.
In another line of cases, however, we have held that where a testator gives a life interest to those who would have been his heirs in intestacy, and a contingent remainder to his "heirs," these heirs are to be determined at the end of the life interest. Fargo v. Miller, 150 Mass. 225, 229-231. Welch v. Brimmer, 169 Mass. 204, 211. Heard v. Read, 169 Mass. 216, 222. Brown v. Wright, 194 Mass. 540, *449 545. Welch v. Howard, 227 Mass. 242, 246. Boston Safe Deposit & Trust Co. v. Waite, 278 Mass. 244, 247. In most of these cases, the court found some language in the testamentary instrument or some other facts to take the case out of the general rule that heirs of the testator are to be determined at the time of his death.
In Fargo v. Miller, supra, 230, the court seemed to be of the opinion that the absence of any reference to statutes of descent gave the word "heirs" a less strict meaning. In Welch v. Brimmer, supra, 208, 213, the word "then," followed by other language, was significant. The proviso there in question read: "Provided, however, that in case my said son shall die having no issue him surviving, or such issue shall decease during minority, then, and in either of such cases, my will is that my sister Eliza Oliver shall have and take the said moiety of my estate ...; and if the said Eliza O. shall not then be living, I give said estate, with its accumulations, to the person or persons who shall be my heir or heirs at law." As the court construed the proviso, the word "then" modified not only "shall not be living" but also the verb "shall be" in the syntactical clause "who shall be my heir or heirs at law." In Heard v. Read, supra, 224, a case analagous to Welch v. Brimmer, supra, the court did not apply the general rule. The court reasoned that the contingent remainder was to the testator's "heirs" whereas his heir at law would have been only one person and that the testator's use of the words "as though I died intestate" described the manner in which the disputed half of the estate was to be distributed after the life beneficiary's death with no surviving issue.
In Brown v. Wright, 194 Mass. 540, 545, the general rule was not applied because, among other reasons, the heirs and life beneficiary, whose legatees were claiming under the rule, had been entitled only to a limited share of the trust income during her lifetime. In Boston Safe Deposit & Trust Co. v. Waite, 278 Mass. 244, 247, the court noted a manifest intent on the testator's part to keep the bulk of the property in his own family.
*450 Thus far, there is little in the case at bar to indicate a result similar to that reached in the cases just discussed. Although the testator does refer to the "laws of descent and distribution in intestate estates in this Commonwealth" to modify the term "next of kin" and although the will does use the word "then," it is not used in the same sense as it is in Welch v. Brimmer, supra. There is no adverb or adverbial phrase to indicate that the testator intended that his next of kin be determined at any time other than the time of his death. The term "next of kin" may, of course, be singular as well as plural. In the instant case, the net income from the trust created under the fifth clause was to be distributed to the son after the death or remarriage of the testator's wife. Furthermore, there is no apparent plan in the present will from which we can infer an intent on the part of the testator to keep his property in the possession of that portion of the "family" represented by the appellants.
In Welch v. Howard, 227 Mass. 242, 246, it was said: "That the intention was not to vest the remainder in the life tenants may be inferred from the fact that they were the sole heirs at law at the time the will was made, that they survived the testator, and that their interest could never vest in possession. Fargo v. Miller, 150 Mass. 225, 230. Welch v. Brimmer, 169 Mass. 204, 212. Heard v. Read, 169 Mass. 216, 223."
Since the above quoted paragraph appears to be the point upon which the decision rests, that case is in conflict with Gilman v. Congregational Home Missionary Soc. 276 Mass. 580, 584, and other cases cited, ante, in support of the general rule. However, subsequent cases show that the actual holding of Welch v. Howard, supra, was far less broad than the language therein would imply. In Brown v. Spring, 241 Mass. 565, 568, we cited Welch v. Howard, supra, as a case taken out of the general rule of construction because the contingency clause contained the word "then." (Such a reading would harmonize the holding of the case with that of Welch v. Brimmer, 169 Mass. 204, 211.) In Tyler v. City *451 Bank Farmers Trust Co. 314 Mass. 528, 532, we referred to "other circumstances" as taking Welch v. Howard, supra, out of the general rule. Similar distinctions were drawn in Thompson v. Bray, 313 Mass. 717, 720, and Old Colony Trust Co. v. Clarke, 291 Mass. 17, 22. In short, although the case at bar falls within the language of Welch v. Howard, supra, the facts thus far discussed do not by themselves take this case out of the general rule that next of kin are to be determined at the time of the testator's death. To the extent that Welch v. Howard, supra, may be authority for a contrary result, we choose not to follow that case.
The appellants also argue that if the testator intended by the sixth section of the fifth clause that the remainder of the trust should go to his son's estate, then the practical effect would be that creditors could attach the estate on the son's death and the purpose of the spendthrift clause would be to a great extent undone. In two cases, we adopted similar arguments and held that the heirs were to be determined at the time of the life beneficiary's death when the "scheme of distribution" in the will pointed to such a result. Boston Safe Deposit & Trust Co. v. Waite, 278 Mass. 244, 247-249. Thompson v. Bray, 313 Mass. 717, 722.
We rejected the above argument in a case in which the spendthrift clause was the only evidence that the testator had intended his heirs to be determined upon the death of the life beneficiary. Rotch v. Rotch, 173 Mass. 125, 131-133. Again, in Old Colony Trust Co. v. Clarke, supra, 21-22, we rejected that contention; in that case, as in the case at bar, it was coupled with the point that the life beneficiary was the testator's heir, in whose estate the testator would not have intended to leave the contingent remainder. Furthermore, as in the Rotch case, supra, 132-133, we note that the testator could have imposed the spendthrift clause in rule, had been entitled only to a limited share of the trust income during her lifetime. In Boston Safe Deposit & Trust Co. v. Waite, 278 Mass. 244, 247, the court noted a manifest intent on the testator's part to keep the bulk of the property in his own family. *452 main for their enjoyment. If this were his purpose, it hardly follows that he intended to keep the trust assets out of his son's estate should his son die childless.
We note also that the spendthrift clause seemed to govern not only that trust in which John V. O'Neil, Jr., had a life interest but all other trust interests established by the will including the trust established under the fourth clause,[1] in which the mother of four of the appellants, Elizabeth Clark, had an equitable life interest. It does not appear, therefore, that the testator was obsessed with the single purpose of restraining his son. Nor is there any reason to believe that the testator was particularly mindful of providing the largest possible estate for his nieces and nephews while restricting the estates of his wife, his sister, and his son.
The appellants introduced testimony showing the circumstances surrounding the relationship between the testator and the claimant appellants. They contend that it was error for the probate judge not to include in his report of material facts a finding based on this testimony. We are of the opinion that the testimony was of no probative value, and in any event, the judge was not required to advert to it. Building Inspector of Salem v. Gauthier, 259 Mass. 615, 616.
The only remaining issue concerns the determination of the persons who were the testator's next of kin on January 6, 1937, the date of his death. The judge held that only his son, John V. O'Neil, Jr., answered to this description and *453 ordered the petitioners to turn over the remaining principal to the son's estate. He specifically held that the testator's wife was not next of kin under a proper construction of the will. We agree with this disposition.
In this Commonwealth, the words next of kin are limited to blood relations and do not include spouses, unless there is a clear intention to the contrary; such an intention will not be inferred from mere reference to the law of descent and distribution. Haraden v. Larrabee, 113 Mass. 430, 431. See Bailey v. Smith, 222 Mass. 600, 602. Furthermore, the statute of descent and distribution, as it appeared at the time of the testator's death (G.L.c. 190, § 1), distinguishes between kindred and spouses. Likewise, c. 190, § 3, seems to distinguish between the share to which a spouse is entitled and rules governing descent to blood relations.
Accordingly, we hold that under c. 190, § 3 (1), the testator's next of kin at his death in 1937 was his son, John V. O'Neil, Jr. Costs and expenses of appeal are to be in the discretion of the Probate Court.
Decree affirmed.
NOTES
[1] "Fourth. I give to The Safe Deposit National Bank of New Bedford and William S. Downey, attorney of said New Bedford, jointly, the sum of Five Thousand (5,000) Dollars, to hold in trust and to pay over the net income to my sister, Elizabeth Clark, for and during her life-time; and upon her decease to pay over the sum of One Hundred (100) Dollars to Florence Clark, the sum of One Hundred (100) Dollars to Rose Westgate, and the sum of Two Hundred (200) Dollars to William Clark; and to turn over the balance of the said sum of Five Thousand (5,000) Dollars to the residue of my estate. In the event that the said Florence Clark, Rose Westgate or William Clark shall leave died before Elizabeth Clark, leaving issue, such issue shall take the parent's share by right of representation, but in case either shall have deceased leaving no issue the share of such deceased shall be paid to the survivors or survivor or to the issue by right of representation in equal shares. In the event that all shall have deceased before Elizabeth Clark without issue, then the said sum of Four Hundred (400) Dollars shall become part of the residue of my estate."
|
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
FLORENTINO JOSUE MILLAN ERIVEZ, Appellant.
No. 1 CA-CR 13-0858
FILED 1-13-2015
Appeal from the Superior Court in Maricopa County
No. CR2012-165742-001
The Honorable Pamela S. Gates, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
STATE v. ERIVEZ
Opinion of the Court
OPINION
Judge Andrew W. Gould delivered the opinion of the Court, in which
Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma
joined.
G O U L D, Judge:
¶1 This opinion answers the question of whether a defendant
can be convicted of multiple independent lesser-included offenses of a
greater charged offense.
FACTS AND PROCEDURAL BACKGROUND
¶2 On the night of December 30, 2012, Florentino Josue Millan
Erivez (“Erivez”) and his co-defendants, Federico Rodriguez and Alfonso
Quiroz Villalobos, forced their way into the home of victim Martha B. The
defendants allegedly entered the home because they were bail recovery
agents searching for a fugitive. In response, Martha and her children ran
out the back door and tried to escape by climbing over the fence.
¶3 Based on the testimony at trial, either Erivez or Rodriguez
confronted Martha and her children with a gun as they were climbing
over the fence. Erivez or Rodriguez then directed the victims back inside
the house.
¶4 The defendants confined the victims in the living room
while they purportedly searched the house for the fugitive. At one point,
Villalobos entered the living room, where the victims were being
restrained, while holding a shotgun.
¶5 The police arrived shortly after the defendants entered the
victims’ home. Rodriguez advised the police that he recruited Erivez and
Villalobos to assist him in searching for a fugitive in the home. Rodriguez
later testified at trial that he gave Erivez a gun on the way to the victims’
house.
¶6 Erivez, Rodriguez, and Villalobos were jointly charged in
one indictment. Erivez was charged with several offenses, including
count six, which alleged that he or an accomplice committed aggravated
2
STATE v. ERIVEZ
Opinion of the Court
assault by “intentionally plac[ing] [victim Martha B.] . . . in reasonable
apprehension of imminent physical injury . . . using a deadly weapon or
dangerous instrument” in violation of Arizona Revised Statutes (“A.R.S.”)
sections 13-1203(A)(2) and 13-1204(A)(2) (2014).1 See A.R.S. § 13-303(A)(3)
(stating that an “accomplice” is accountable for the criminal acts of
another).
¶7 The case proceeded to trial, and at the close of the evidence,
the court reviewed the final jury instructions with counsel. The court
proposed the following lesser-included offense instruction as to count six:
The crime of Aggravated Assault includes the lesser offenses
of Disorderly Conduct and Assault. You may consider the
lesser offense of Disorderly Conduct and/or Assault if
either:
1. You find the Defendant not guilty of Aggravated Assault;
or
2. After full and careful consideration of the facts you cannot
agree on whether to find the Defendant guilty or not guilty
of Aggravated Assault.
¶8 Erivez’s attorney did not object to the proposed jury
instruction. Rather, he agreed that disorderly conduct and assault were
both lesser-included offenses of aggravated assault, and that the jury
should be given instructions regarding both lesser-included offenses.
¶9 The court read the proposed instruction to the jury, and
provided the jury with three verdict forms:
We, the jury, duly empanelled and sworn, upon our
oaths, do find [Erivez], on the charge of Aggravated Assault
(Martha [B.]) as follows (check only one):
___ Not Guilty
___ Guilty
___ Cannot Agree
1 We cite the current version of the applicable statutes, unless
material revisions have since occurred.
3
STATE v. ERIVEZ
Opinion of the Court
To Be Completed only if Not Guilty or Cannot Agree on the
offense of Count 6: Aggravated Assault (Martha [B.]).
We, the jury, duly empanelled and sworn, upon our
oaths, do find [Erivez], on the lesser included charge of
Assault (Martha [B.]) as follows (check only one):
___ Not Guilty
___ Guilty
To Be Completed only if Not Guilty or Cannot Agree on the
offense of Count 6: Aggravated Assault (Martha [B.]).
We, the jury, duly empanelled and sworn, upon our
oaths, do find [Erivez], on the lesser included charge of
Disorderly Conduct (Martha [B.]) as follows (check only
one):
___ Not Guilty
___ Guilty
¶10 Based on these verdict forms, the jury found Erivez “not
guilty” of aggravated assault, but determined he was “guilty” of both
disorderly conduct and assault as lesser-included offenses.
¶11 At sentencing, the court determined that based on the jury
verdicts, Erivez was guilty of both disorderly conduct and assault. The
State moved to have Erivez sentenced only on the disorderly conduct
conviction. Erivez did not object, and, as to count six, the court sentenced
Erivez on the lesser-included offense of disorderly conduct. Erivez timely
appealed.
DISCUSSION
¶12 Erivez argues the court erred by instructing the jury on both
assault and disorderly conduct as independent, lesser-included offenses of
aggravated assault. Erivez contends “[t]he jury should have been
instructed to consider the (felony) disorderly conduct lesser first and, if it
could not decide unanimously on that charge, to consider the
(misdemeanor) assault lesser.”
¶13 Erivez did not object to the verdicts or jury instructions at
trial, and therefore our review is limited to fundamental error review.
4
STATE v. ERIVEZ
Opinion of the Court
Ariz. R. Crim. P. 21.3(c); State v. Miller, 234 Ariz. 31, 43, ¶ 45, 316 P.3d
1219, 1231 (2013). “To prevail under this standard of review, a defendant
must establish both that fundamental error exists and that the error in his
case caused him prejudice.” State v. Henderson, 210 Ariz. 561, 567, ¶ 20,
115 P.3d 601, 607 (2005).
¶14 A lesser-included offense is “one composed solely of some
but not all of the elements of the greater crime so that it is impossible to
have committed the [greater] crime charged without having committed
the lesser one.” State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, ¶ 11, 965 P.2d
94, 97 (1998) (citation omitted); see State v. Garcia, 235 Ariz. 627, 629-30, ¶ 6,
334 P.3d 1286, 1288-89 (App. 2014). “[A]n offense is ‘necessarily included,’
and so requires that a jury instruction be given, only when it is lesser
included and the evidence is sufficient to support giving the instruction.”
State v. Wall, 212 Ariz. 1, 3, ¶ 14, 126 P.3d 148, 150 (2006). A “jury may
deliberate on a lesser offense if it either (1) finds the defendant not guilty
on the greater charge, or (2) after reasonable efforts cannot agree whether
to acquit or convict on that charge.” State v. LeBlanc, 186 Ariz. 437, 438,
924 P.2d 441, 442 (1996).
¶15 Disorderly conduct by recklessly displaying or handling a
firearm is a lesser-included offense of aggravated assault as charged in
this case. State v. Miranda, 200 Ariz. 67, 68, ¶ 3, 22 P.3d 506, 507 (2001);
State v. Angle, 149 Ariz. 478, 479, 720 P.2d 79, 80 (1986); State v. Foster, 191
Ariz. 355, 357, ¶ 9, 955 P.2d 993, 995 (App. 1998). In addition, assault was
a lesser-included offense of aggravated assault because, based on the
evidence, the jury in this case could have determined that the
distinguishing element between assault and aggravated assault, the use or
threatened use of a deadly weapon, was not present. A.R.S. § 13-
1204(A)(2) (as applicable here, a person commits aggravated assault if he
“commits assault as prescribed by § 13-1203” and the additional element
of using a deadly weapon is proven); see State v. Jansing, 186 Ariz. 63, 68,
918 P.2d 1081, 1086 (App. 1996), overruled on other grounds, State v. Bass, 198
Ariz. 571, 576, ¶ 12, 12 P.3d 796, 801 (2000).
¶16 We conclude the court properly instructed the jury on both
disorderly conduct and assault as lesser-included offenses in this case.
The evidence showed that Erivez, or his accomplice Rodriguez, displayed
a gun in the presence of victim Martha B. The only disputed issue was
whether in so doing Erivez or Rodriguez intended to place the victim in
“reasonable apprehension of imminent physical injury” or merely to
“disturb” or frighten her. See State v. Angle, 149 Ariz. 499, 508-09, 720 P.2d
100, 109-10 (App. 1985) (Kleinschmidt, J., dissenting), adopted by, 149 Ariz.
5
STATE v. ERIVEZ
Opinion of the Court
478, 720 P.2d 79 (1986). That disputed issue was one for the jury to resolve
based upon its interpretation of the evidence and its evaluation of the
witnesses’ testimony. See State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d
987, 988-89 (1974) (holding “the credibility of the witnesses and the weight
and value to be given to their testimony are questions exclusively for the
jury”).
¶17 Although disorderly conduct and assault are lesser-included
offenses of the aggravated assault charge in this case, neither offense is a
lesser-included offense of the other. Disorderly conduct is not a lesser-
included offense of assault because it requires the reckless
display/handling of a firearm, an additional element not required for
assault. A.R.S. § 13-2904(A)(6); A.R.S. § 13-1203(A)(2); see Garcia, 235 Ariz.
at 629-30, ¶ 6, 334 P.3d at 1288-89 (stating “the greater offense must
require each element of the lesser offense plus one or more additional
elements not required by the lesser offense”).
¶18 Additionally, assault is not a lesser-included offense of
disorderly conduct. Erivez may have committed disorderly conduct by
intending to “disturb the peace or quiet” of the victim. However, such
conduct does not necessarily rise to the level of placing the victim in
reasonable apprehension of immediate physical injury, the conduct
required for an assault. Thus, under the facts of this case, it was possible
for Erivez to commit disorderly conduct without committing assault.
Chabolla-Hinojosa, 192 Ariz. at 363, ¶ 11, 965 P.2d at 97.
¶19 Because disorderly conduct and assault are independent
lesser-included offenses, and assault is not a lesser-included offense of
disorderly conduct, the jury was not required to consider the charge of
disorderly conduct before it could consider assault. See United States v.
Lacy, 446 F.3d 448, 450, 452 (3rd Cir. 2006) (jury may convict for more than
one lesser-included offense arising out of a single charge); People v. Eid, 59
Cal. 4th 650, 657-58, 328 P.3d 69, 74 (2014) (holding that court properly
instructed jury on two independent lesser-included offenses).
¶20 Erivez also argues that his due process rights were violated
because he was not given notice that he could be convicted of two lesser-
included offenses arising from one count. We disagree.
¶21 Jury verdict forms “shall be submitted to the jury for all
offenses necessarily included in the offense charged.” Ariz. R. Crim. P.
23.3. Additionally, Rule 13.2(c) provides “[s]pecification of an offense in
an indictment, information, or complaint shall constitute a charge of that
6
STATE v. ERIVEZ
Opinion of the Court
offense and of all offenses necessarily included therein.” Ariz. R. Crim. P.
13.2(c). As a result, a “defendant is on notice from the beginning of the
proceedings against him that the jury may be asked to consider any lesser-
included offenses supported by the trial evidence.” State v. Gipson, 229
Ariz. 484, 486-87, ¶ 14, 277 P.3d 189, 191-92 (2012).
¶22 Finally, Erivez contends the court erred by disregarding the
assault conviction and sentencing him solely on the disorderly conduct
conviction.
¶23 Erivez was originally charged in count six with one count of
aggravated assault; however, the jury ultimately convicted Erivez of two
independent lesser-included offenses as to this count. As a result, the
State requested the court to sentence Erivez on only one offense,
disorderly conduct, and, by implication, dismiss the assault conviction.
Erivez did not object, and the court sentenced Erivez only for disorderly
conduct. Based on these facts, we discern no error in the trial court
disregarding the misdemeanor assault conviction and sentencing Erivez
on the more serious felony offense of disorderly conduct. Cf. State v.
Brown, 191 Ariz. 102, 103, 952 P.2d 746, 747 (App. 1997) (holding there was
no fundamental error where jury returned guilty verdicts on both the
greater and lesser-included offenses and trial court vacated the verdict on
lesser-included offense).
¶24 However, the trial court failed to expressly dismiss Erivez’s
conviction for assault, which is now surplusage. We therefore exercise
our discretion and vacate the assault conviction. Cf. State v. Powers, 200
Ariz. 123, 127, ¶ 16, 23 P.3d 668, 672 (App. 2001) (where defendant was
charged and convicted of same offense twice, and convictions were
therefore multiplicitous, court of appeals properly vacated one of
defendant’s convictions).
7
STATE v. ERIVEZ
Opinion of the Court
CONCLUSION
¶25 For the foregoing reasons, we affirm Erivez’s conviction and
sentence as modified. Erivez’s conviction and sentence for disorderly
conduct, a lesser included offense of count six, is affirmed. However,
Erivez’s conviction for assault, a lesser included offense of count six, is
vacated.
:ama
8
|
356 B.R. 39 (2005)
In re JONES, Henry L. and Jones, Diane M., Debtors.
In re Motley, Rose, Debtor.
In re Risner, Gary and Risner, Mania, Debtors.
In re Lanning, Sharon Lee, Debtor.
In re Sigmond, Sergio V. and Sigmond, Elvira Z., Debtors.
Nos. 04-04267-TLM, 04-03116-TLM, 04-02310-TLM, 04-03215-TLM, 04-01326-TLM.
United States Bankruptcy Court, D. Idaho.
July 26, 2005.
*40 *41 Kelly I. Beeman, Boise, ID, for Debtors.
MEMORANDUM OF DECISION
TERRY L. MYERS, Chief Judge.
BACKGROUND
Attorney Kelly Beeman ("Counsel") represents the Debtors in the above captioned cases and, in each, he filed motions for sanctions against creditors who had allegedly violated § 362(a)'s automatic stay.[1] Many of those motions were settled for various and, usually, undisclosed amounts.
The Court noted this trend in Counsel's practice and reviewed the files to determine if Counsel had properly informed the Court of any new compensation agreements with his clients or any compensation received due to these settlements. After reviewing the records, the Court issued Orders to Show Cause (the "Orders") to Counsel regarding his disclosures and fees, and a hearing was held on May 10, 2005. *42 The matter was taken under advisement at the conclusion of that hearing. The following constitutes the Court's findings of fact and conclusions of law and resolves the Court's Orders.
FACTS
A. In re Jones, Case No. 04-04267-TLM
On January 6, 2005, Counsel filed a motion for sanctions against creditor Bank of America for violation of the automatic stay. Jones, Doc. No. 8. Counsel then amended the motion on February 17, 2005, alleging further collection efforts on the part of the creditor. Jones, Doc. No. 18.
Bank of America's counsel later submitted a stipulated judgment to resolve the motion. That judgment satisfied Debtors' obligation to Bank of America under the loan contract, released Bank of America's lien on Debtors' automobile and awarded $1,000.00 to Debtors. Jones, Doc. No. 25. A satisfaction of judgment was then provided to the Court. Jones, Doc. No. 30.
Counsel did not file a supplemental Rule 2016(b) statement. Counsel submitted a response to the Court's Orders, stating he received $1,000.00 in fees from the settlement of the motion for sanctions and he included an itemization of his time.[2] Counsel's itemization asserts 9.05 hours were spent dealing with this motion at Counsel's claimed hourly rate of $175.00, for a total possible cost of $1,583.75.
B. In re Motley, Case No. 04-03116-TLM
1. RMCB
On November 12, 2004, Counsel filed a motion for sanctions against creditor RMCB. Motley, Doc. No. 19. On December 8, 2004, Counsel withdrew the motion based on a settlement, but he did not provide any information regarding the structure or details of the settlement.
2. Scenic Falls Credit Union
On October 19, 2004, Counsel filed a motion for sanctions against creditor Scenic Falls Credit Union. Motley, Doc. No. 12. On November 1, 2004, he withdrew the motion based on a settlement, but he did not provide any specific information regarding the structure of the settlement or the allocation of any settlement amounts to him as fees. Motley, Doc. No. 17.
3. Nationwide Credit
On October 19, 2004, Counsel filed a motion for sanctions against creditor Nationwide Credit. Motley, Doc. No. 9. On October 26, 2004, Counsel withdrew the motion, again based on a nondescript settlement. Motley, Doc. No. 15.
Counsel filed a disclosure of attorney compensation under Rule 2016(b) on November 30, 2004, reflecting a payment from "creditor(s)" of $506.25 regarding services rendered on motion(s) for sanctions, and he filed another disclosure on January 24, 2005, reflecting a payment from Debtor of $93.75. Motley, Doc. Nos. 25, 29.
The November 30 disclosure noted that Debtor received "25% of all proceeds" from the prosecution of the motions for sanctions but does not identify any new fee agreement, nor does it state the actual amounts he received based on the settlement of each motion or identify the particular creditors providing those funds. While not expressly set forth in any *43 2016(b) disclosure, Counsel confirmed at hearing he retained 75% of settlement proceeds pursuant to a verbal agreement reached with Ms. Motley prior to initiating each motion.[3]
The 2016(b) disclosure of January 24 affirmatively represented that the source of the funds received was Debtor; it did not mention payment coming from any creditor. Motley, Doc. No. 29. At hearing, Counsel clarified that Debtor did not pay the $93.75, but the funds instead came from the proceeds of settlement with creditor RMCB, again based on a 75% contingency fee agreement reached with his client.
Counsel filed a response to the Court's Orders, stating he received $600.00 from settlement of the above identified motions. Motley, Doc. No. 35. He provided an itemization reflecting 6.5 hours spent on the above motions, which at his claimed hourly rate of $175.00 equates to $1,225.00 in possible attorney's fees.
C. In re Risner, Case No. 04-02310-TLM[4]
1. Saltzer Medical Group
On September 14, 2004, Counsel filed a motion for sanctions against creditor Saltzer Medical. Risner, Doc. No. 7. Counsel then amended the motion for sanctions on September 21, 2004. Risner, Doc. No. 19. On October 7, 2004, Counsel withdrew the motion based on a settlement for an undisclosed amount. Risner, Doc. No. 28.
2. Transworld Systems
Also on September 14, 2004, Counsel filed a motion for sanctions against creditor Transworld. Risner, Doc. No. 10. He withdrew that motion on October 25, 2004 based on a settlement, but did not disclose any specific facts regarding the settlement or his fees.
3. Shell Oil
On September 14, 2004, Counsel filed yet another motion for sanctions, this time against creditor Shell Oil. Risner, Doc. No. 16. He withdrew that motion on October 4, 2004 based on a settlement, but he did not provide any details regarding the settlement or his fees.
On November 30, 2004, Counsel filed a disclosure of attorney compensation which revealed Counsel was paid $800.00 to prosecute and settle the motions for sanctions. Risner, Doc. No. 39. Counsel did not specify which creditors provided the funds, how those fees were calculated or if there was any sort of agreement with Counsel's clients regarding the distribution of those funds. The disclosure did state that these Debtors' received 25% of the proceeds. At hearing, Counsel introduced a letter from his clients dated August 27, 2004 agreeing to a 75% contingency fee for his work on the motions for sanctions. See Ex. 1.
Counsel filed a response to the Court's Orders, stating he received $900.00 from settlement of the above identified motions. *44 Risner, Doc. No. 50. He provided an itemization reflecting 8.5 hours spent on several motions, some not identified above, which at his claimed hourly rate of $175.00 equates to $1,487.50 in possible attorney's fees.
D. In re Lanning, Case No. 04-3215-TLM
On November 30, 2004, Counsel filed a motion for sanctions against creditor Associated Recovery Systems. Lanning, Doc. No. 7. On December 10, 2004, he withdrew that motion based on a settlement, but he did not disclose the nature of the settlement or any payment of his fees. Lanning, Doc. No. 10. Nor did Counsel file a supplemental 2016(b) disclosure reflecting payment of fees from creditor Associated Recovery Systems in connection with the settlement of the motion for sanctions. The only supplemental 2016(b) statements filed in the case reflect full payment of Counsel's original $750.00 fee from Debtor; there is no mention of any payment by a creditor. Lanning, Doc. Nos. 2, 11, 14.
Counsel filed a response to the Court's Orders, stating he received $700.00 from a $1,000.00 settlement of the above identified motion. Lanning, Doc. No. 18. He provided an itemization reflecting 4.5 hours spent settling the above identified motion, which at his claimed hourly rate of $175.00 equates to $787.50 in possible attorney's fees.
E. In re Sigmond, Case No. 04-01326-TLM
On July 21, 2004, Counsel filed a motion for sanctions against Shell Processing Center. Sigmond, Doc. No. 9. On August 25, 2004, Counsel filed a notice of settlement without providing any details regarding that settlement or his fees. Sigmond, Doc. No. 17. On April 21, 2005, the same day this Court issued its Orders, Counsel filed a supplemental 2016(b) statement. Sigmond, Doc. No. 20. The supplemental 2016(b) statement reflects a $750.00 fee paid by creditor Citi Group, but it provides no explanation of how, or whether, the payment from Citi Group is connected with the settlement of the motion against creditor Shell Processing Center.
To further confound this issue, Counsel filed a response to the Court's Orders, stating he received $1,500.00 from creditors Shell Processing Center and Citi Group. Sigmond, Doc. No. 24. He provided an itemization reflecting 2.5 hours spent settling motions against Citi and Shell, which at his claimed hourly rate of $175.00 equates to $437.50 in possible attorney's fees. At the May 10 hearing, Counsel clarified that no motion was filed against Citi Group in this case and no settlement was received, and that he received $750.00 from a $1,000.00 settlement with Shell only.
DISCUSSION AND DISPOSITION
It is undoubtedly appropriate for a debtor's attorney to act to protect his or her client from collection activities that violate the automatic stay. In many ways, Counsel's apparent commitment to this goal is laudable. But Counsel's execution is far from perfect.
This Court previously addressed Counsel's zeal in prosecuting such matters, questioned whether Counsel was driven by his own interests rather than his clients' interests, and identified as problematic Counsel's approach of filing § 362(h) motions prior to making any attempt to resolve the stay violations without litigation. See Risner, 04.4 I.B.C.R. at 172-176. While some of the conduct in these five cases raises similar concerns, what the Court said in Risner need not be repeated here. It is simply reaffirmed.
*45 But Counsel's conduct raises additional issues that require analysis. These issues include lack of compliance with the disclosure obligations of § 329(a) and 2016(b), the reasonableness under § 329(b) of Counsel's collected fees, and related matters.
The Court will first address Counsel's submissions to the Court in attempted justification of the reasonableness of his fees related to the § 362(h) matters. Second, the Court will consider Counsel's use of contingency fees in connection with his motions for sanctions for stay violations. Third, the Court will determine what reasonable compensation is on the § 362(h) motions and settlements in the several cases given the record presented. Fourth and finally, the Court will consider the consequences of Counsel's failure to abide by and comply with Rule 2016(b)'s disclosure requirements.
A. Itemization of time and settlements
The Courts' Orders required Counsel to provide a "written itemization of all services rendered to debtors and all costs incurred in each of the above referenced cases." Orders at 3. The Court specifically ordered that the itemizations include "a detailed description of each individual item of service rendered, the name of the individual who rendered each service, the date such service was rendered, and the time expended in rendering such service." Id. at 3. In addition, the Court ordered Counsel to include within the itemization "an accounting of all billings to and all payments received from debtors and/or creditors." Id. at 4.
Counsel's submissions do not comply with the Court's Orders and fail to provide the necessary information to allow the Court to determine if Counsel's compensation represents reasonable compensation for actual, necessary services rendered in the case.[5]
A starting point for an evaluation of the reasonableness of Counsel's fees is an explanation that discloses what was done, when it was done, by whom it was done, and how long it took. See §§ 329(b), 330(a)(1)(A), 330(a)(3)(A). In this regard, Counsel's submissions suffer from the following inadequacies.
1. Incomplete descriptions and lumped services
In providing his itemization of time spent in each of the above cases, Counsel "lumped" entries, i.e., used a single entry listing (or, more accurately, intending to list) several different and distinct services with an aggregate time. This approach makes determining actual time spent on any individual task impossible.
For example, Counsel explained at hearing that his uniform 1.5 hour entry reading "Filed Motion for Sanctions, Affidavit and Notice of Hearing against [creditor]" included the time it took him to "dictate, *46 review, prepare and file" the motion, affidavit and notice of hearing. See, e.g., Risner, Doc. No. 50 at 2 (emphasis added).[6] In another case, Counsel explained his .5 hour entry for "2016(b) for [creditor]" was meant to include reviewing the file and preparing, dictating, reviewing and filing a 2016(b) statement. See Motley, Doc. No. 35 at 2. Counsel explained that another .5 hour entry for "faxing" an acceptance to a creditor's settlement offer was comprised of time spent to dictate, review, and oversee the faxing of the acceptance. See Sigmond, Doc. No. 24 at 2.
These are but a few examples plucked from a hearing replete with attempted explanations regarding Counsel's entries. Such lumping. express of tacit, is not appropriate. This Court has repeatedly identified the lumping of time entries as improper. See, e.g., In re Haskew, 01.2 I.B.C.R. 62, 65 (Bankr.D.Idaho 2001) ("Lumping compensable services together with noncompensable services makes it difficult if not impossible to determine the amount of time actually spent on the compensable services. In such situations, the Court may deny compensation requested in the lumped entry."); In re Jordan, 00.1 I.B.C.R. 46, 49 (Bankr.D.Idaho 2000) (citing Pfeiffer v. Couch (In re Xebec), 147 B.R. 518, 525 (9th Cir. BAP 1992)). Lumping impedes reasoned analysis. Here, Counsel's explanations provide little guidance to the Court as to how much time was spent on each task. This matters because some of the tasks he identified in his defense of the entries are clearly clerical in nature, or would appear to not require much professional time to complete.
2. Industry standards
Counsel also explained at hearing that he uses "industry standard" minimums when entering his billable hours. For example, according to Counsel, a telephone call is always billed at two tenths of an hour regardless of whether the call took two minutes or twelve minutes to complete. See, e.g., Sigmond, Doc. No. 24 at 2. Whether the legal profession actually has any such minimum "industry standard" billing increments and whether such a billing practice is ethical are topics the Court can leave for another day.[7] But the Court cannot allow attorneys to believe such "minimums" are acceptable when accounting for actual time spent on a bankruptcy case.
The Code provides for payment to professionals for "actual, necessary services rendered." See § 330(a)(1)(A); § 329(b) (referring to "services rendered or to be rendered" in the case). This Court has previously instructed Counsel he needs to account for the actual time spent representing clients. See Risner, 04.4 I.B.C.R. at 175 n. 16 (cautioning Counsel that "[t]he actual time spent must be established, through competent evidence in each case and viz each creditor alleged to have violated § 362(a), and that time and the fees charged must be shown to be reasonable.").
Moreover, this Court has analyzed billing increments and cautioned attorneys to use tenths of an hour; nowhere has the Court suggested or approved a standard two tenths of an hour minimum billing increment. See In re Voechting, 03.4 I.B.C.R. 237, 238 (Bankr.D.Idaho 2003); In re Combe Farms, Inc., 01.1 I.B.C.R. 7, *47 10 (Bankr.D.Idaho 2001); see also In re Pettibone Corp., 74 B.R. 293, 302 (Bankr. N.D.Ill.1987) (stating the actual time spent on any task must be recorded and "short telephone conversations should not routinely be recorded as .25 or .2 hours") (citing In re Four Star Terminals, Inc., 42 B.R. 419, 426-27 n. 1 (Bankr.D.Alaska 1984)). As Counsel admitting using minimum billing increments as opposed to actual time spent, the Court cannot confidently rely on the itemization Counsel provided.
3. Hourly rate and time spent
Counsel's claimed hourly rate is $175.00 per hour in each case.[8] In past dealings with Counsel on § 362(h) issues, the Court has expressed reservations over Counsel's high hourly rate given the form pleadings used and the services for which he is charging. Counsel denies that his pleadings are "form" pleadings, contending each pleading is dictated and drafted based on the facts and circumstances of the individual case and creditor. However, as this Court has already noted in Risner, 04.4 I.B.C.R. at 174, Counsel's motions "are essentially boiler plate forms, requiring little time to prepare." His motions use the same language and the same format, and vary only in reference to the creditor.[9]
Moreover, even if Counsel dictates the entire pleading from scratch, which the Court highly doubts, if the pleading emerges with the same format and the same wording on each and every occasion, he should cease preparing them this way and instead use a form. His failure to use such a form, and charge an appropriate and much reduced rate for the professional service actually required to adapt that form to the facts of the case, is inefficient. Inefficient lawyers should not charge or be compensated for unnecessary time expended, especially at a $175.00 per hour rate.
In addition to these problems regarding Counsel's hourly rate and time spent, several of Counsel's entries, on their face, are clerical in nature and must be absorbed into his firm's overhead rather than billed to his clients. For example, faxing[10] and filing[11] are not compensable tasks. See Missouri v. Jenkins, 491 U.S. 274, 288 n. 10, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (stating that "purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them"); In re Castorena, 270 B.R. 504, 515-16, 01.4 I.B.C.R. 153, 157-58 (Bankr.D.Idaho 2001) (stating that "Lawyers, or paralegals for that matter, may not charge professional rates for clerical functions") (citing In re Haskew, 01.2 I.B.C.R. at 65; Jordan, 00.1 I.B.C.R. at 48; In re Bank of New England Corp., 134 B.R. 450, 455 (Bankr.D.Mass.1991), aff'd, *48 142 B.K. 584 (D.Mass.1992) ("[I]f the service performed by a paraprofessional consists of typing, data entry, checking court dockets or court dates, manually assembling, collating, marking, processing, photocopying or mailing documents, the task is clerical in nature and not compensable.")).
Other of Counsel's entries state times that are unreasonably lengthy given the nature of the services provided. For example, billing 1.0 hours of attorney time to write a client a congratulatory letter is unreasonable and is not necessary. See Jones, Doc. No. 35 at 3. In addition, .5 hours to review a stipulated order entered by the Court, for which Counsel had already billed .75 hours to review when it was received from opposing counsel, is unreasonable. Id.
4. Inaccuracies
Beyond the problems addressed above, Counsel's submissions suffer from inaccuracies, many of which were identified at hearing.
For example, Counsel submitted itemized time entries in Sigmond for "filing" a disclosure of compensation regarding creditor "Citi" when Mr. Sigmond did not have any dispute with Citi. Sigmond, Doc. No. 24 at 2. In addition, Counsel represented that Mr. Sigmond received $1,000.00 in settlement from Citi, but again, there was no dispute with that creditor and no such settlement was received. Id.
In Motley, Counsel itemized time to prepare two 2016(b) disclosures regarding creditors SFCU and NCI but, in reality, drafted a 2016(b) statement regarding creditor RMCB and another regarding both SFCU and NCI. Motley, Doc. No. 35 at 2.
Counsel's itemization in Risner fails to disclose the amount of settlement of a motion for sanctions against creditor Saltzer Medical Group. Risner; Doc. No. 50 at 2.
In Jones, Counsel listed .5 hours for "Amended 2016(b)," presumably to draft a supplemental attorney disclosure, yet no amended 2016(b) statement was filed in that case. Jones, Doc. No. 35 at 3.
That itemizations prepared and submitted by Counsel in defense of his fees and conduct, and in response to express Court Orders, would contain so many errors is certainly disheartening.
Counsel's itemizations suffer from omissions as well as inaccuracies. Counsel failed to itemize time spent that was established through testimony at the hearing. For example, Counsel's clients, with the exception of the Risners who were not present at the May 10 hearing, testified that they phoned Counsel's office to discuss the creditor contacts. While it is unclear that all of the clients conversed with Counsel, it is clear that at least a few of them did. Other clients testified that they met with Counsel in person regarding the contacts. For example, Ms. Lanning testified that she spent approximately an hour with counsel, in addition to their phone conversations, discussing the stay violations and possible remedies. Such time is not listed in Counsel's itemization. Counsel also failed to include any time to draft the motion for sanctions against creditor Shell Processing Center in Sigmond, yet such a motion was filed.
In one sense, these omissions create no § 330 problem; Counsel is free to chose not to charge for services actually rendered. However, the context and the record in these matters does not support the idea that Counsel consciously elected to omit charges. Rather, the omissions bespeak carelessness in record keeping and cast further doubt on the accuracy and reliability of any of Counsel's itemizations.
*49 B. Contingency fee
Counsel represents to the Court that he entered into a 75% contingency fee agreement with his clients regarding stay violations and believes the fees generated under such agreements are reasonable compensation for his services on such matters.[12] Counsel would have the Court validate his contingency fees and the reasonableness of the sums he retained: $1,000.00 in Jones, $600.00 in Motley, $900.00 in Risner, $700.00 in Lanning, and $750.00 in Sigmond.[13]
Use of a contingency fee by a debtor and his or her attorney is not per se unreasonable. See Yermakov v. Fitzsimmons (In re Yermakov), 718 F.2d 1465, 1470 (9th Cir.1983) (noting that "nothing inherent in a contingency fee agreement between a debtor and his attorney prevents it from being enforceable in bankruptcy."). However, neither is a contingency fee per se reasonable. Instead, the fee paid to a debtor's attorney, whether through a contingency fee or a hourly fee, must reflect the reasonable value for the attorney's services. Id. at 1470-71; see also I.R.P.C. 1.5 cmt. 3; § 329(b). If the compensation exceeds the reasonable value of the services rendered, the Court may cancel the parties' agreement and order any excess, unreasonable payment disgorged. See § 329(b); In re Soderberg, 99.4 I.B.C.R. 152, 153 (Bankr.D.Idaho 1999).
If attorneys decide to use contingency fees in stay violation proceedings, as Counsel did in this case, they should obviously be aware of the Court's previously voiced concern over needless § 362(h) litigation. See Risner, 04.4 I.B.C.R. at 175 (expressing concern over a "cottage industry of precipitous section 362(h) litigation.") (quoting Eskanos & Adler, P.C. v. Roman (In re Roman), 283 B.R. 1, 11-12 (9th Cir. BAP 2002)); see also In re Robinson, 228 B.R. 75, 85-86 (Bankr.E.D.N.Y.1998) (expressing dismay at the notion of § 362 being used to generate legal fees for a debtor's attorney). Use of contingency fees might well be viewed as a factor in analyzing whether such litigation was necessary or improvident, or motivated more by the attorney's self interest than by the needs of the debtors.
In order to address those concerns, an attorney must identify factors that favor the use of a contingency fee agreement in the § 362(h) proceedings.[14] Factors might include the risk involved in pursuing the particular cause. Whether the violation is clear, or more arguable or tenuous, is relevant. Some motions might be hotly contested, requiring significant investments in time or resources. Relevant, too, is the question of damages suffered. There is the possibility that the Court might deny the motions without any compensation or grant a minimal damage award and minimal fee award. On the other hand, significant potential damages may be implicated.
In the present cases, Counsel has not adequately identified factors that would *50 allow the Court to validate the 75% contingency fee as reasonable on each of the motions. The situations in these Debtors' cases are not identical or fungible. In some, a creditor's erroneous mailing of a bill or initiation of a collection call is all that occurred. In others, creditors became persistent, repeatedly violating the automatic stay, ignoring Debtors' statements that they had filed for bankruptcy relief or their requests that the creditors contact Counsel. The size and sophistication of the creditors involved also varies.
The use of the 75% fee was not shown to be calculated in reference to the specific problems faced in each case or with each creditor. In fact, the use of such a high percentage across the board, in light of the number and size of settlements obtained, give support to the idea that the fee agreement itself promoted litigation and put Counsel's economic interests ahead of his clients' legal interests.
C. Reasonable time and hourly rate
In the absence of adequate support for Counsel's proposed 75% contingency fees in these cases, the Court must resort to a comparison between the amount of compensation retained by Counsel from the settlements and a "loadstar fee" based on a reasonable hourly rate and the actual number of hours reasonably expended. See Yermakov, 718 F.2d at 1471; Jordan, 00.1 I.B.C.R. at 48.[15]
Given the testimony at hearing, it is clear that Counsel pursued these several motions with the actual knowledge of his clients and in their interests. Many of the motions appear to be well taken, and they address apparent violations of the automatic stay, some evidently quite serious. However, some of the motions appear to address violations with little real impact on debtors or any actual damages.
Counsel should be commended for suing and vindicating his clients' rights in situations evidencing a creditor's objectively bad conduct. But also Counsel must be warned, and he has been warned in the past, that motions with thin or unproven merit, especially if aimed primarily if not exclusively at generating fees, have little likelihood of being blessed by this Court.
Due to the range of factual bases on which these motions were brought, and given Counsel's problematic itemizations, the analysis of Counsel's reasonable fees is difficult. Nonetheless, the Court has reviewed all the evidence, including the records in these cases, and is now familiar with the facts and events that led to the *51 § 362(h) allegations and the respective settlements.
Counsel did spend time pursuing these matters, and he did resolve the disputes in his clients' favor. Based on the Court's experience and the facts of these cases, the Court concludes a reasonable hourly rate for Counsel's services in these regards is $125.00 per hour.
The Court further concludes that Counsel's reasonable time spent on these motions and settlements, incorporating Counsel's itemizations of alleged actual time, and also incorporating all the findings and comments above, is as follows:
Jones: 7.0 hours @ $125.00/hr. =
$875.00;
Motley: 4.0 hours @ $125.00/hr. =
$500.00;
Risner: 3.2 hours @ $125.00/hr. =
$400.00;
Lanning: 2.8 hours @ $125.00/hr. =
$350.00; and
Sigmond: 2.0 hours @ $125.00/hr. =
$250.00.[16]
D. Timely and Adequate Disclosures
The Court has thus arrived at the reasonable compensation for Counsel in regard to his § 362(h) services. But this is not the amount Counsel will be allowed to retain.
Under § 329(a) and Rule 2016(b), a debtor's attorney is required to execute and file a supplemental statement concerning any payment received or any compensation agreement reached that was not previously disclosed, and the attorney must do so within fifteen days of receiving payment or making a new agreement. Counsel's lack of disclosure regarding his compensation must be addressed.
Counsel's initial Rule 2016(b) disclosures indicated that he agreed to accept $750.00[17] for representing Debtors in these case, that Debtors paid that fee prior to the bankruptcy petition being filed, and that he was owed nothing more.[18] This initial statement also asserted that Counsel's representation was limited to prepetition counseling, preparing and filing the necessary bankruptcy papers, and representing Debtors at the first meeting of creditors.
Counsel stated at the May 10 hearing that his initial fee agreements do not and were not intended to cover representation of his clients in the event a creditor violated the automatic stay.[19] Instead, if a stay *52 violation occurs, Counsel's clients face three options: (1) agree to a 75% contingency fee for Counsel's pursuit of relief regarding the violation,[20] (2) pay Counsel's hourly fee of $175.00, or (3) cope on their own with a creditor's illegal collection efforts with no assistance from their retained and previously paid bankruptcy attorney.
By and large, Debtors in the above captioned cases testified that they approved the contingency fee agreements with Counsel after discussion with him and prior to his filing any motions on their behalf[21] Debtors indicated they were content with the new agreement[22] and with the results achieved.[23]
It is thus clear that Counsel struck new fee agreements with his clients concerning prosecution and settlement of the stay violation motions. But it is equally clear from the record that Counsel did not timely or adequately file a supplemental disclosure statement based on those new agreements as required by Rule 2016(b).
In Jones, the timing of any new agreement with Counsel's clients is unclear. Mr. Jones testified that there was a lack of communication with Counsel, and he was unaware of any fee agreement with Counsel until the settlement was reached and he was informed by Counsel that the $1,000.00 monetary component to the settlement was to compensate Counsel. Given the lack of understanding between Counsel and his client, maybe it is not surprising that no supplemental 2016(b) disclosure was filed to reflect a new "agreement" regarding Counsel's compensation. However, once Counsel received the $1,000.00 fee and it was understood (at least by Counsel) that he would keep the same, it was incumbent upon Counsel to file a supplemental disclosure of attorney compensation within 15 days of that payment[24] No such disclosure was filed.
In Motley, Ms. Motley testified that she contacted Counsel regarding several creditors' collection efforts and that at that time she agreed to a 75% contingency fee. As such an agreement was made prior to any *53 motions being drafted or filed, the agreement must have been entered into prior to October 19, 2004. Yet no supplemental disclosure was filed identifying a new fee agreement between Ms. Motley and Counsel within 15 days of that agreement.
The Motley motions were withdrawn on October 26, 2004, November 1, 2004 and December 8, 2004 based on settlements. A supplemental disclosure was required within fifteen days of Counsel receiving those settlement proceeds. Ms. Motley testified that she received the agreed upon 25% of the three settlements in the case, amounting to $200.00. That settlements were reached and the motions withdrawn on these dates is not a precise indication of when payment was received, however, using these withdrawal dates as guidelines, it is clear that while supplemental disclosures were filed in this case, they were untimely. See Motley, Doc. Nos. 25, 29.
The Court also finds the supplemental disclosures inadequate as they failed to identify with specificity the source of compensation. See Motley, Doc. No. 25 (merely identifying "creditors" as the source of compensation but failing to identify which creditors or what amount was attributable to each creditor) and Doc. No. 29 (incorrectly identifying debtor as the source of compensation).
In Risner, Counsel provided the Court with an August 27, 2004 letter documenting a 75% contingency fee agreement with Counsel. See Ex. 1. No supplemental disclosure of attorney compensation was filed with 15 days of that agreement.
In addition, the motions filed in Risner were withdrawn by the end of October, 2004 based on settlements with the respective creditors, and Counsel represented that the Risners received 25% of those proceeds and he received his 75% fee. However, a supplemental disclosure of attorney compensation was not filed until November 30, 2004. Even then it failed to identify any specific creditor to whom the $800.00 payment referenced therein could be attributed.
In Lanning, Ms. Lanning testified that at the time she met with Counsel regarding a creditor's post-petition collection efforts, she and Counsel entered into a 75% contingency fee agreement because she could not afford his hourly rate. In addition, she testified she was paid pursuant to that agreement once the matter was settled.
However, no supplemental disclosure of compensation was filed in this case identifying any new fee agreement between Counsel and his client or any payment from any creditor. The only supplements that were filed were those identifying the payments completed by Ms. Lanning regarding the fees she had agreed to prior to bankruptcy. See Lanning, Doc. Nos. 2, 11, 14.
In Sigmond, Mr. Sigmond testified that he phoned Counsel after being contacted by creditor Shell Oil but did not meet with Counsel in person. Before initiating the motion for sanctions against creditor, Mr. Sigmond and Counsel agreed to split any recovery, with Counsel retaining 75% as a fee for his services. The motion in this case was filed on July 21, 2004; thus, the record reflects that Counsel entered into a new agreement with his clients on or before that date. Counsel had fifteen days to file a supplemental 2016(b) disclosure, and he failed to do so.
Mr. Sigmond further testified that he was paid pursuant to that agreement once the settlement was reached. Counsel withdrew the motion on August 25, 2004. While the exact timing of the receipt of funds from the creditor is unknown, it is clear that on or around August 25, Counsel received his $750.00 contingency fee and *54 no supplemental 2016(b) statement was filed.[25]
In the past, the Court has often reduced the fees of debtors' attorneys by 10% for noncompliance with Rule 2016(b). See, e.g., Combe Farms, 01.1 I.B.C.R. at 9. But a complete denial of compensation is also a permissible sanction in appropriate cases. See Law Offices of Nicholas A. Franke v. Tiffany (In re Lewis), 113 F.3d 1040, 1045 (9th Cir.1997); In re Larson, 04.1 I.B.C.R. 15, 16 (Bankr.D.Idaho 2004); Combe Farms, 01.1 I.B.C.R. at 9 n. 9.
Here, based on Counsel's repeated failure to timely disclose any new agreements and/or payments received or the source of those payments, notwithstanding the Court's warnings regarding the necessity for such disclosures and the clear requirements under the Code and Rules, the Court concludes a 25% reduction in Counsel's fees is appropriate. Therefore, applying that reduction to the reasonable amount of such fees, as determined above, Counsel will be allowed to retain the following amounts:
Jones: $656.25 (i.e., 75% of $875.00);
Motley: $375.00 (i.e., 75% of $500.00);
Risner: $300.00 (i.e., 75% of $400.00);
Lanning: $262.50 (i.e., 75% of $350.00); and
Sigmond: $187.50 (i.e., 75% of $250.00).[26]
Counsel must give the excess funds to the Debtors.[27]
CONCLUSION
Counsel has not justified the fees charged and retained in the above captioned cases. The Court has evaluated Counsel's contingency fee, his itemizations, and the evidence presented at hearing and has determined a reasonable compensation amount in each case. However, due to Counsel's failure to comply with the Code and Rules, that amount must be further reduced. Therefore, Counsel will return the excess fees, identified in column F of Ex. A attached to this Decision, to his clients within 15 days of the orders being entered in these cases. He will further provide proof of those payments within such 15 days to the trustees in the cases and to the U.S. Trustee. *55
Exhibit
(A) (B) (C) (D) (E) (F)
Previously Previously Reasonable Reduction in fees Amount Amount
retained by retained by compensation for violations of Counsel can Counsel must
Counsel Debtor(s) Code and Rules retain return to
Debtors
-- -- -- (C × 25%) (C - D) (A - E)
Jones $1,000.00 (relief from debt) $875.00 $218.75 $656.25 $343.75
Motley $600.00 $200.00 $500.00 $125.00 $375.00 $225.00
Risner $900.00 $300.00 $400.00 $100.00 $300.00 $600.00
Lanning $700.00 $300.03 $350.00 $87.50 $262.50 $437.50
Sigmund $750.00 $250.00 $62.50 $562.50 $187.50 $562.50
NOTES
[1] For ease of reference, the Court will identify pleadings in these cases by the last name of the debtors and applicable docket numbers, e.g., Jones, Doc. No. 8 or Motley, Doc. No. 19.
[2] The adequacy of the itemizations Counsel provided in each case will be discussed further below.
[3] At hearing, Counsel referred to the agreements with his clients as "fee splitting" agreements. They are in fact contingency fee agreements under which Counsel would retain 75% of any proceeds from settlements reached on motions for sanctions based on asserted stay violations. As discussed below, contingency fee agreements that are not in writing and signed by the client violate the Idaho Rules of Professional Conduct.
[4] In Risner, Counsel filed multiple motions for sanctions against a number of creditors. The court addressed one such motion in In re Risner, 04.4 I.B.C.R. 172 (Bankr.D.Idaho 2004). The Court's Orders presently under consideration focused only on those § 362(h) motions that were withdrawn based on settlements, thus only those motions are discussed in this Memorandum.
[5] The Orders required explanation of "all" services. Counsel's itemizations address only services related to some, but not all, of the § 362(h) motions filed in the above referenced cases. This handicaps the Court in evaluating, for example, whether other amounts paid Counsel (his "initial" fee) were sufficient to cover the § 362(h) issues as well as other bankruptcy services. The failure to comply with the directive of the Orders supports a summary denial of the suggested compensation. The Court has elected, however, to address the merits notwithstanding Counsel's lack of completeness in his itemizations. Counsel and his clients appear to treat the § 362(h) issues as "supplemental" services not covered by Counsel's initial fee. The Court today does so as well without ruling on the propriety of this "unbundled" approach to services so integrally connected with bankruptcy.
[6] See also Jones, Doc. No. 35 at 2 (1.5 hour charge reading "faxed Exhibits A and B of Amended Motion for Sanctions to B of A attorney, Trustee, U.S. Trustee" (emphasis added)).
[7] No proof of an "industry standard" was provided. It was simply something Counsel asserted.
[8] In Counsel's submissions, he represented to this Court that his standard fee is $175.00, but on prior occasions within the Risner case, Counsel represented to the Court that his hourly fee was $150.00. See Risner, 04.4 I.B.C.R. at 174 n. 13. In addition, a prior affidavit filed by Ms. Lanning states that Counsel had informed her that his hourly rate was $150.00 per hour. See Lanning, Doc. No. 8 at 2.
[9] At times, the creditor's name on or in the form is not even changed. See id.
[10] While Counsel explained that entries described only as "faxing" involved more than just sending a fax, his explanation at hearing still included the process of faxing as one of the many tasks that went into the entries and for which he wanted fees paid.
[11] At hearing, Counsel stated that he charged attorney time for filing documents as he is ultimately responsible for filings made in the case. He then corrected that statement and represented to the Court that the charges listed in his itemization do not include charges for filing at attorney time and rates.
[12] Given this representation, the Court is concerned that Counsel has not provided, with the exception of the Risner case, any documentation regarding these agreements. See Ex. 1. The Idaho Rules of Professional Conduct require all contingency fee agreements to be in writing, be signed by the client and state the method by which the fee is to be determined. See I.R.P.C. 1.5(c).
[13] See Ex. A attached to this Decision at column A.
[14] Attorneys must also clearly explain whether such § 362(h) services are included within the fees previously paid in the case and, if not, other inquires over the reasonableness of those prior payments may be warranted.
[15] A loadstar fee may be enhanced on an adequate showing by counsel. See Burgess v. Klenske (In re Manoa Fin. Co.), 853 F.2d 687, 691-92 (9th Cir.1988) (requiring an attorney to demonstrate why an upward adjustment is necessary to make the loadstar award commensurate with comparable nonbankruptcy services). To determine the appropriate loadstar figure and if the loadstar fee may be enhanced, courts often review: (I) the time and labor involved; (2) the preclusion of other employment by the attorney due to acceptance of the case; (3) the customary fee; (4) whether the fee is fixed or contingent; (5) time limitations imposed by the client or the circumstances; (6) the amount involved; (7) the "undesireability" of the case; (8) the nature and length of the professional relationship with the client; and (9) awards in similar cases. In re One City Ctr. Assocs., 111 B.R. 872, 876 (Bankr.E.D.Cal.1990) (citing Kerr v. Screen Extras Guild, 526 F.2d 67 (9th Cir. 1975)). Courts may also consider the risk of not prevailing, the risk of nonpayment, and the difficulty of finding counsel to litigate the case in determining if enhancing a reasonable fee is appropriate. First Nat'l Bank of Chicago v. Comm. of Creditors Holding Unsecured Claims (In re Powerine Oil Co.), 71 B.R. 767, 773 (9th Cir. BAP 1986); One City Centre, 111 B.R. at 877. Here, Counsel has not demonstrated that any upward adjustment should be made to a loadstar fee.
[16] See also attached Ex. A at column C.
[17] Counsel's fee is $750.00 in all cases except Sigmond, in which he agreed to represent Debtors for $650.00. See Jones, Doc. No. 2; Motley, Doc. No. 2; Risner, Doc. No. 2; Lanning, Doc. Nos. 2, 11, and 14; Sigmond, Doc. No. 2.
[18] Again, there is an exception to this general statement. It appears that the Debtor in Lanning, paid her $750.00 fee over time. See Lanning, Doc. Nos. 2, 11, 14.
[19] There are two problems with this. The first is the propriety of excluding legal services so fundamental to the bankruptcy process as ensuring that debtors receive the benefit of the automatic stay. Cf. Castorena, 270 B.R. at 530. The second is that it was not clear that Counsel's clients understood this limitation. Ms. Motley testified that the limited representation and exclusion of stay violations and the possibility of additional fees to redress such violations were not discussed when she entered into the first agreement. She said that it was only after she received creditor demands and contacted Counsel that they discussed Counsel's demand for additional compensation and his proposed contingency fee. The second problem is obviously related to the first: exclusions from the scope of representation without additional payment of fees, especially for something as core to the bankruptcy process as enforcing the automatic stay, must be adequately explained to and understood by the client. Id. at 525-31.
[20] Counsel advised the Court that at hearing he developed a scaled contingency fee agreement to be used in future cases, basing Counsel's fee on the amount of settlement, i.e. 75% on any settlement up to $1,000.00, 50% on any settlement between $1,001 and $5,000.00 and 25% on any settlements over $5,000.00. See Ex. 2. (Counsel submitted that this contingency fee approach would address only § 362(h) settlements and, if a motion for sanctions did not settle, Counsel would accept whatever hourly-based fee was awarded by the Court after hearing.) The merits or defects in Counsel's suggested, modified approach are not before the Court and no opinion is expressed on such an approach.
[21] As in Risner, 04.4 I.B.C.R. at 175, Counsel went straight to drafting and filing the § 362(h) motions and did not attempt to resolve the stay violations in an informal and potentially less expensive fashion.
[22] Their "consent" to the contingency fee agreement appears driven less by its inherent fairness and more by Debtors' lack of options. Debtors could little afford Counsel's high hourly fee, but they wanted the dunning stopped. Given a Hobson's choice, they elected the contingency fee even though it was tilted decidedly toward Counsel.
[23] Again, an exception exists. Mr. Jones expressed a lack of understanding concerning Counsel's fees and frustration at being left "in the dark." See, e.g., Jones, Doc. No. 38. However, Mr. Jones informed the Court at hearing that Counsel earned the $1,000.00 fee and that it was fair for him to keep that sum, though he was still disappointed with the lack of communication.
[24] Counsel did not timely file supplemental disclosures based upon the several payments received. The Rule requires the supplement "within 15 days after any payment or agreement not previously disclosed." Fed. R. Bankr.P.2016(b) (emphasis added).
[25] Counsel's 2016(b) statement filed on April 21, 2005 was not only untimely, it was inaccurate. Counsel stated at hearing that his statement in this submission was in error as Citi Group was not a creditor in the case and no payments were received from Citi Group.
[26] See also attached Ex. A at columns D and E.
[27] The Court recognizes that under § 329(b)(2) any compensation that exceeds reasonable value for services rendered is to be returned to the entity that made the payments. However, in these cases the creditors that provided the funds did so as a settlement with Counsel's clients for stay violations. The Court concludes any excess funds under § 329(b) may be properly returned to Debtors, and it has identified the amount of such refunds in column F of Ex. A which is attached to this Decision.
|
47 So.3d 366 (2010)
Jermaine Jerod FRANCIS, Appellant,
v.
STATE of Florida, Appellee.
No. 4D09-1075.
District Court of Appeal of Florida, Fourth District.
November 10, 2010.
Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
POLEN, J.
Appellant, Jermaine Francis, was charged by information with driving while his license was revoked as an habitual offender. Following a jury trial, Francis was found guilty and sentenced to eighteen months imprisonment.
The sole issue on appeal is whether the trial court erred in admitting into evidence *367 a certified copy of Francis' driving record in order to prove that Francis was an habitual traffic offender. During trial, the State showed the arresting officer a certified driving record from the Division of Driver's Licenses and asked whether the name and date of birth matched those of defendant, and the officer replied that they did. Defense counsel objected to the admission of the driving record on the ground that the State failed to lay the proper predicate because name and date of birth do not conclusively establish that the driving record belongs to a defendant. The court found the predicate sufficient and admitted the driving record into evidence.
The officer proceeded to testify that based on the driving record, Francis had been an habitual traffic offender in 1995, in 2000, and in 2004. Furthermore, Francis had never reinstated his license and did not have a valid license on the date of his arrest.
Section 322.201, Florida Statutes, provides in pertinent part:
A copy, computer copy, or transcript of all abstracts of crash reports and all abstracts of court records of convictions received by the department and the complete driving record of any individual certified by the department or by the clerk of a court shall be received as evidence in all courts of this state without further authentication, if the same is otherwise admissible in evidence. Further, any court or the office of the clerk of any court of this state which is electronically connected by a terminal device to the computer data center of the department may use as evidence in any case the information obtained by this device from the records of the department without need of such certification; however, if a genuine issue as to the authenticity of such information is raised by a party or by the court, the court may require that a record certified by the department be submitted for admission into evidence.
§ 322.201, Fla. Stat. (2008). This section allows the admission of a copy of a defendant's driving record to show both habitual traffic offender status and notice of revocation. Sorrell v. State, 855 So.2d 1253, 1254 (Fla. 4th DCA 2003).
We affirm Francis' judgment and sentence as the State complied with the statute in the present case. Although Francis argues that Cox v. State, 816 So.2d 160 (Fla. 2d DCA 2002), requires reversal, we find Cox distinguishable. In Cox, the defendant was faced with probation revocation proceedings after allegedly committing a traffic offense. Id. at 160. The officer who wrote the citation did not appear to testify so the only evidence presented was the probation officer's identification of a transcript of driver record from the Department of Highway Safety and Motor Vehicles and the probation officer's testimony that the name and date of birth listed on the driving record matched defendant's. Id. at 160-61. The Second District reversed the trial court's revocation of probation and remanded for further proceedings because the identity of name and date of birth was insufficient to prove that Cox had committed the subject offense. Id. at 161.
In Cox, the State admitted the driving record via a probation officer who was not the proper custodian of the record whereas in the present case the driving record was admitted via the arresting officer. Id. at 160. Moreover, in Cox, the only evidence of the violation of probation was a traffic citation on the driving record. Id. No witness could testify that they saw Cox commit an offense. Id. In fact, the court's opinion focuses on the State's failure to prove that Cox committed the new *368 offense. Id. at 160-61. In the present case, the officer testified that she saw Francis driving the truck and, upon running Francis' license, learned that his license was revoked.
Finally, Francis never claimed below that the driving record did not belong to him. On this record, we find no error in the trial court's admission of the driving record and affirm.
Affirmed.
WARNER and LEVINE, JJ., concur.
|
303 F.Supp.2d 1321 (2004)
GENERAL SECURITY NATIONAL INSURANCE COMPANY, as successor in interest to General Security Insurance Company, Plaintiff,
v.
Michele F. MARSH, Defendants.
No. 5:03-CV-77-0C-10GRJ.
United States District Court, M.D. Florida, Ocala Division.
February 10, 2004.
*1322 Ronald L. Kammer, Esq., Hinshaw & Culbertson, Miami.
Mitchell N. Silver, Esq., Meier, Lengauer, Bonner, Muszynski & Doyle, P.A., Orlando.
Kelvin Lloyd Averbuch, Esq., Law Office of Kelvin L. Averbuch, Lake Mary.
ORDER
HODGES, District Judge.
This declaratory judgment action is before the Court for consideration of the *1323 Plaintiffs "Motion for Summary Judgment" (Doc. 36) and the Defendant's "Cross-Motion for Summary Judgment" (Doc. 39).[1] These motions are ripe for review and the Court concludes that the Plaintiffs motion is due to be granted.
Background[2]
On April 21, 1998 a truck driven by Walter C. Taylor and owned by B & W Transport Incorporated collided with a vehicle driven by Michele Marsh and another vehicle driven by Christine Schaeffer. As a result of the accident Marsh suffered bodily injuries and Schaeffer died. Taylor and B & W were insured under a policy with the Plaintiff for a combined single accident liability limit in the amount of $300,000.
On May 12, 1998 Schaeffer's estate demanded the full $300,000 policy limit. On May 21, 1998 Marsh made the same demand. The Plaintiff, through its claims adjuster Claims Control Incorporated, requested and received information from Schaeffer's estate and Marsh's counsel as to each claimants age, marital status, survivors, employment, and health at the time of the accident.[3] The Plaintiff also requested and received information from Marsh's counsel with respect to Marsh's injuries.[4]
On June 11, 1998 the Plaintiff advised Schaeffer's estate and Marsh that its policy limit was available to both of the claimants on a "global basis." On June 11, 1998 Schaeffer's estate filed a lawsuit in state court against Taylor and B & W; and, on August 26, 1998 Marsh filed her state action. On October 29, 1998 the Plaintiff and the claimants attended an unsuccessful mediation scheduled by the Plaintiff.[5] Prior to the mediation the Plaintiff never offered the policy limit to any one claimant [6] and the claimants failed to agree on how to divide the tendered policy limit between themselves.[7]
"After all efforts to globally settle the claims had failed" the Plaintiff tendered its policy limit of $300,000 to Schaeffer's estate.[8] Schaeffer's estate signed a release of all claims on December 23, 1998.
The Plaintiff defended its insured in Marsh's state action. On February 10, 2000 Marsh obtained a jury verdict in its favor against Taylor and B & W for the total damages of Michele Marsh in the amount of $485,000.00 (Doc. 24). On September 6, 2000 the state court entered a "Second Amended Final Judgment" (Doc. 24) in favor of Marsh and against "B & W Transport, Inc., and Estate of Walter C. Taylor, deceased, the sum of $485,000.00, with costs in the sum of $7,300.00, and fees *1324 in the amount of $83,710.00, ... that shall bear interest," and in favor of Marsh and against "General Security Insurance Company, the same costs of $7,300.00, that shall bear interest." The Plaintiff satisfied the judgment for costs, with interest (Doc. 24).
Marsh has made a demand upon the Plaintiff to pay the remainder of the judgment for damages and attorney fees. The Plaintiff denied Marsh's demand and filed this action for declaratory relief, "requesting this court to find and declare that: (1) General Security has no obligation to indemnify B & W Transport, Inc. and Walter C. Taylor by virtue of exhausting its policy by payment of the policy limit to settle the wrongful death claim of Schaeffer and (2) that it has no duty to pay the attorney's fees award under the supplemental payment provision of the policy." (See Does. 1 & 36).
The Defendant has filed a counterclaim (Doc. 5) asserting claims for statutory and common law bad faith, and attorney fees.
Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(c), the entry of summary judgment is appropriate only when the Court is satisfied 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." In applying this standard, the Court must examine the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits and other evidence in the record "in the light most favorable to the non-moving party."[9] As the Supreme Court held in Celotex Corp. v. Catrett, the moving party bears the initial burden of establishing the nonexistence of a triable fact issue.[10] If the movant is successful on this score, the burden of production shifts to the non-moving party who must then come forward with "sufficient evidence of every element that he or she must prove."[11] The non-moving party may not simply rest on the pleadings, but must use affidavits, depositions, answers to interrogatories, or other admissible evidence to demonstrate that a material fact issue remains to be tried.[12]
Discussion
1. Contract Interpretation
The Florida Supreme Court has stated that "insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties."[13] The Court has also stated that if the policy language is ambiguous that is, susceptible to more than one interpretation them it should be construed against the drafter and in favor of the insured; and, that ambiguous exclusionary clauses are "construed even more strictly against the insurer than coverage clauses." [14] However, the Court has also recognized that courts cannot place limitations upon the plain language of a policy exclusion simply because the court thinks that the exclusionary clause should have been written a particular way.[15] Florida law also requires the Court to consider the policy as a whole, and to give meaning to all of its terms
The insurance agreement (Doc. 1) at issue contains the following provisions:
*1325 COVERAGE
We will pay all sums an `insured' legally must pay as damages because of `bodily injury' or `property damage' to which this insurance, applies, caused by an `accident' and resulting from the ownership, maintenance or use of a covered `auto.'
We have the right and duty to defend any `insured' against a `suit' asking for such damages...., However, we have no duty to defend any `insured' against a `suit' seeking damages for `bodily injury' or `property damage' to which this insurance does not apply. We may investigate and settle any claim or `suit' as we consider appropriate. Our duty to defend or settle ends when the Liability Coverage Limit of Insurance has been exhausted by, payment of judgments or settlements.
COVERAGE EXTENSIONS
In addition to the Limit of Insurance, we will pay for the `insured;' ... All costs taxed against the `insured' in any `suit' we defend .... All interest on the full amount of any judgment that accrues after entry of judgment in any `suit' we defend, but our duty to pay interest ends when we have paid ... the part of the judgment that is within our Limit of Insurance.
LIMIT OF INSURANCE
Regardless of the number of covered `autos,' `insureds,' premiums paid, claims made or vehicles involved in the `accident,' the most we will pay for the total of all damages ... combined, resulting from any one `accident' is the Limit of Insurance for Liability Coverage shown in the Declarations.
A plain reading of the contract reveals that once the Plaintiff settled with Schaefer's estate for the policy limit of $300,000, it satisfied its duty to indemnify the insured and owed its insured no obligation to pay any further damages or to settle any additional claims. A plain reading of the contract also reveals that the Plaintiff only owned its insured a duty to pay the costs as distinguished from attorney fees taxed against the insured. Thus, the only remaining issue for this Court to decide is whether the Plaintiff acted in good faith as required by Florida law with respect to its insured when it settled Schaeffer's wrongful death claim to the exclusion of Marsh's claim.
2. Good Faith Settlement
Florida law provides that where multiple claims arise out of one accident the liability insurer may exercise its discretion in how it elects to settle claims, "and may even choose to settle certain claims to the exclusion of others, provided [that] this decision is reasonable and in keeping with its good faith duty."[16] In order to satisfy these requirements the insurer must: (1) fully investigate all claims arising from a multiple claim accident; (2) seek to settle as many claims as possible within the policy limit; (3) minimize the magnitude of possible excess judgments against the insured by reasoned claim settlement; and (4) keep the insured informed of the claim resolution process.[17] The Plaintiff has met these requirements.
*1326 There is no dispute in the record that in order to assess each claim the Plaintiff requested and received specific information from each claimant[18] The Defendant's contention that the Plaintiff did not conduct a full investigation is baseless.
It is undisputed that the Plaintiff tendered its policy limits to both claimants on a "global basis." It is further undisputed that the Plaintiff allowed the claimants several months to negotiate an agreement as to how to divide the policy limit amongst themselves; arranged and attended a mediation conference in a further effort to effectuate a settlement of both claims within the policy limits; and, offered the full policy limit to Schaefer's estate only after settlement negotiations had failed. There is also no dispute that the Plaintiff settled with Schaeffer's estate in order to protect its insured from an excess judgment in the wrongful death action.[19]
The record is clear that after a full investigation and an effort to settle both claims the Plaintiff determined that the wrongful death claim posed the greater risk for an excess judgment against its insured. In light of this risk the Plaintiff settled with Schaeffer's estate in order to minimize the magnitude of possible excess judgments against its insured. The Defendant's contention that the Plaintiffs determination was unreasonable because a jury rendered a verdict for $485,000 in her favor, whereas the wrongful death claim was settled for $300,000, is without merit.[20]
Lastly, there is no dispute that the Plaintiff kept its insured informed as to the claims resolution process.
Accordingly, upon a review of the record the Court concludes that the Plaintiff acted reasonably and in good faith when it settled with Schaeffer's estate to the exclusion of Marsh, The Plaintiffs motion for summary judgment is due to be granted in all respects.
Counterclaims
The Court concludes, as a matter of law, that because the Plaintiff lawfully extinguished its duties under the insurance contract it cannot be held liable for the judgment entered against its insured or for any of Marsh's bad faith or attorney fee counterclaims alleged in this action (Doc. 5). Accordingly, all of the Plaintiffs counterclaims are due to be dismissed.
Conclusion
Upon due consideration and for the foregoing reasons, it is ordered that:
(1) the Plaintiff's "Motion for Summary Judgment" (Doc. 36) is GRANTED in all respects;
(2) the Defendant's "Cross-Motion for Summary Judgment" (Doc. 39) is DENIED in all respects;
(3) the Defendant's "Counterclaim" (Doc. 5) is DISMISSED in all respects;
(4) the Clerk is directed to enter judgment in favor of the Plaintiff and against the Defendant with fees and costs to be assessed according to law; and,
*1327 (5) the Clerk is further directed to terminate the Plaintiff's motion to dismiss (Doc. 8) and the Defendant's motion for judgment on the pleadings (Doc. 10) as moot and any other pending motions and close the file.
IT IS SO ORDERED.
NOTES
[1] The Court notes that the Defendant's "cross-motion" is limited to the issues regarding the Plaintiff's claim for declaratory relief (see Docs. 18, 34, 47, 54).
[2] As a preliminary matter the Court notes that pursuant to Federal Rule of Civil Procedure 41(a)(1)(i) the Plaintiff filed a notice of voluntary dismissal as to Shelby Marsh (see Doc. 9) and that such claims are therefore dismissed.
[3] See Doc. 36, Exhibit C, Deposition of Morgan, counsel for Marsh's state court action; Exhibit E, Deposition of Kelleher, counsel for Schaeffer's estate.
[4] See Doc. 36, Exhibit C, Deposition of Morgan.
[5] See Doc. 36, Exhibit F, Affidavit of Grunor, counsel retained to represent the insured; and, Exhibit G, Affidavit of Raphael, claims supervisor for Claims Control Incorporated.
[6] See Doc. 36, Exhibits F & G.
[7] The record reveals that prior to mediation Schaefer's estate consistently demanded the full policy limit. See Doc. 36, Exhibit E, Deposition of Kelleher, counsel for Schaeffer's estate.
[8] See Doc. 36, Exhibits F & G.
[9] Samples on Behalf of Samples v. Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988).
[10] 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
[11] Rollins v. TechSouth, 833 F.2d 1525, 1528 (11th Cir.1987).
[12] Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
[13] Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000).
[14] Id.
[15] Deni Associates v. State Farm Ins., 711 So.2d 1135, 1139 (Fla.1998).
[16] Farinas v. Florida Farm Bureau General Insurance Company, 850 So.2d 555, 560-561 (Fla. 4th DCA 2003); Harmon v. State Farm Mutual Automobile Insurance Company, 232 So.2d 206, 207-208 (Fla. 2d DCA 1970).
[17] Farinas, 850 So.2d at 560-561 (citing § 624.155, Fla. Stat., Boston Old Colony Insurance Company v. Gutierrez, 386 So.2d 783, 785-786 (Fla.1980), and Harmon, 232 So.2d at 207-208.).
[18] See Doc. 36, Exhibit C, Deposition of Morgan, counsel for Marsh's state court action; Exhibit E, Deposition of Kelleher, counsel for Schaeffer's estate. See also Doc. 24, Partial Stipulated Facts.
[19] See Doc. 24, Partial Stipulated Facts.
[20] The Plaintiff's expert opined that the probable range of damages for Schaefer wrongful death claim would be between $1,850,000-$3,500,000, and that the "Schaefer wrongful death claim had a greater reasonable value at the time it settled than the reasonable value of the personal injury claim of Michele F. Marsh and derivative claim of her husband, Shelby Marsh." See Doc. 27, Exhibit A, Plaintiff's Expert Report. The Court also notes that Marsh's counsel in the state court proceedings concedes that at the time that is, in 1998 he believed that the Schaeffer case had the greater value. See Doc. 36, Exhibit C.
|
219 F.2d 212
UNITED STATES of Americav.Marian FAILLA, Individually, and The National Newark and Essex Banking Company of Newark and Marian Failla, as Co-Executors Under The Last Will and Testament of Anthony Failla, Deceased, Appellants.
No. 11395.
United States Court of Appeals, Third Circuit.
Argued December 9, 1954.
Decided January 21, 1955.
Robert R. Daly, Newark, N. J., for appellants.
James C. Pitney, Newark, N. J. (Raymond Del Tufo, Jr., U. S. Atty., District of New Jersey, Newark, N. J., on the brief), for appellee.
Before MARIS, McLAUGHLIN and KALODNER, Circuit Judges.
MARIS, Circuit Judge.
1
The question presented on this appeal is whether, in an action brought by the United States in the district court for the refund of excessive profits made on a government contract, the district court has jurisdiction to consider a defense that the tax credit allowed by the Government by reason of the return of the excessive profits has been incorrectly computed and should be larger in amount. The question arises from the following facts:
2
Anthony Failla1 and Marian Failla, whom we shall call the Contractors, were partners doing business as the New Jersey Gear and Manufacturing Company at Hillside, New Jersey. The Contractors performed certain contracts for the United States Government which were subject to renegotiation under the Renegotiation Act.2 On April 26, 1948 the Contractors executed a renegotiation agreement with the RFC Price Adjustment Board acting on behalf of the War Contracts Price Adjustment Board in which it was stipulated that for the fiscal year ending September 30, 1943 excessive profits in the sum of $225,000 were realized and should be eliminated. Each Contractor had included his proportionate share of the excessive profits in his income in computing his federal income tax for the taxable year here involved. Article 3 of the renegotiation agreement provided as follows:
3
"3. * * * Each of such partners has applied or will promptly apply for a computation by the Bureau of Internal Revenue, based upon the assessments made to the date of such computation, of the amount by which his taxes for such taxable year under Chapter 1 of the Internal Revenue Code are decreased by reason of the application of Section 3806 of the Internal Revenue Code. The aggregate of the amounts, if any, so computed will be allowed as a credit against the amount of profits agreed in Article 1 to be eliminated."
4
Article 4 provided that the excessive profits of $225,000 should be repaid to the Government "(a) By the application on account of such payment of the aggregate amount of the tax credits, if any, to which the Contractor may be entitled, as stated in Article 3 hereof; and (b) By the delivery of * * * checks * * * in an aggregate amount equal to the balance of said $225,000 remaining due upon giving effect to the application of such tax credits, if any, * * *."
5
The Contractors filed formal requests with the Internal Revenue Agent in charge at Newark for a computation of the tax credit as defined by section 3806 of the Internal Revenue Code. Such computations were made, the tax credit in the case of Anthony Failla being $63,877.64 and in the case of Marian Failla $24,706.25, a total credit of $88,583.89. On the basis of these credits the balance of excessive profits to be repaid was $136,416.11. On June 11, 1948 the RFC Price Adjustment Board notified the Contractors that this balance was payable on July 1, 1948. The Contractors, however, disagreed with the computation of tax credits made by the Bureau of Internal Revenue, asserting that they were too small and that the credits, properly computed, should total $198,890.99, leaving only $26,109.01 as the balance of excessive profits repayable to the United States. They accordingly paid $26,194.85, being $26,109.01 plus interest of $85.84, on September 20, 1948, which was applied by the Board against the amount claimed to be due from them. Subsequent conferences with the Internal Revenue authorities seeking a recomputation of the tax credits came to nothing.
6
On March 31, 1950 the United States brought the present action in the District Court for the District of New Jersey against the defendants to recover the balance of the excessive profits realized by the Contractors during the fiscal year 1943. The defendants denied that anything was due and set up two affirmative defenses, first, that the Contractors were not given tax credit in accordance with the terms of paragraph 3 of the contract and, second, that the contract was void for mutual mistake in respect to the tax credit. The United States filed a motion asking the court to strike the first and second defenses and to enter summary judgment in its favor. The defendants filed a cross-motion seeking dismissal of the complaint on the ground that on the record before the court the United States had no cause of action.
7
The district court found that on the pleadings no material fact was in dispute, that the defendants were seeking a redetermination of the tax credit which was unavailable to them in this action and that the second defense was in fact a counter-claim in which the defendants sought rescission of the agreement, affirmative relief against the United States which was not within the court's jurisdiction. Accordingly, the district court dismissed the affirmative defenses, denied the defendants' motion to dismiss the complaint, and entered summary judgment in favor of the United States in the sum of $112,037.65, together with interest on $110,307.10 from September 21, 1948. 120 F.Supp. 797. This appeal followed.
8
On this appeal the only error urged is the action of the district court in dismissing the first affirmative defense and entering summary judgment without reviewing the correctness of the computation by the Bureau of Internal Revenue of the Contractors' tax credits. The defendants assert that the renegotiation agreement expressly provides for a tax credit to be computed "under Chapter 1 of the Internal Revenue Code," and that the correctness of the computation is a matter for judicial determination in a suit to recover the net amount due the Government under the agreement.
9
The renegotiation agreement, however, did not determine or fix the amount of the tax credit which was to be applied against the excessive profits as it did in respect of the excessive profits themselves. On the contrary it expressly stated that the computation of the tax credit was to be made by the Bureau of Internal Revenue at the request of the Contractors. Thus the agreement, which was made by the Contractors with the governmental agency empowered to renegotiate their excessive profits and which dealt specifically with the amount of the profits to be eliminated, delegated to another and more appropriate governmental agency, the Bureau of Internal Revenue, the task of determining the amount of decrease in their income taxes with which the Contractors were to be credited in the light of the elimination of the excessive profits from their taxable income for the year in question.
10
By the express terms of the agreement the computation was to be made by the application of section 3806 of the Internal Revenue Code of 1939, 26 U.S.C. That section in so far as pertinent here is as follows:
11
"(a) Reduction for prior taxable year
12
"(1) Excessive profits eliminated for prior taxable year. In the case of a contract with the United States or any agency thereof, or any subcontract thereunder, which is made by the taxpayer, if a renegotiation is made in respect of such contract or subcontract and an amount of excessive profits received or accrued under such contract or subcontract for a taxable year (hereinafter referred to as `prior taxable year') is eliminated and, in a taxable year ending after December 31, 1941, the taxpayer is required to pay or repay to the United States or any agency thereof the amount of excessive profits eliminated or the amount of excessive profits eliminated is applied as an offset against other amounts due the taxpayer, the part of the contract or subcontract price which was received or was accrued for the prior taxable year shall be reduced by the amount of excessive profits eliminated. * * *
13
* * * * * *
14
"(b) Credit against repayment on account of renegotiation or allowance
15
"(1) General rule. There shall be credited against the amount of excessive profits eliminated the amount by which the tax for the prior taxable year under Chapter 1, Chapter 2A, Chapter 2B, Chapter 2D, and Chapter 2E, is decreased by reason of the application of paragraph (1) of subsection (a); * *.
16
* * * * * *
17
"(c) Credit in lieu of other credit or refund. If a credit is allowed under subsection (b) with respect to a prior taxable year no other credit or refund under the internal-revenue laws founded on the application of subsection (a) shall be made on account of the amount allowed with respect to such taxable year. If the amount allowable as a credit under subsection (b) exceeds the amount allowed under such subsection, the excess shall, for the purposes of the internal-revenue laws relating to credit or refund of tax, be treated as an overpayment for the prior taxable year which was made at the time the payment, repayment, or offset was made."
18
We read these provisions of section 3806 as did Judge Learned Hand speaking for the Second Circuit in Stow Mfg. Co. v. Commissioner of Internal Revenue, 1951, 190 F.2d 723, certiorari denied 342 U.S. 904, 72 S.Ct. 295, 96 L.Ed. 677, to mean that the tax credit is to be computed by the Bureau of Internal Revenue under subsection (b) and that if the amount actually allowed by the Bureau as such credit is less than the amount properly allowable under that subsection the tax previously paid by the taxpayer for the taxable year involved shall be regarded as overpaid, to the extent of the difference, and shall be subject to refund as such. This means that the defendants, after they have paid the judgment here appealed from, may seek a refund from the Bureau of Internal Revenue under section 3770(a) of the Internal Revenue Code of 19393 of so much of the payment as represents the additional tax credit which they assert has been erroneously denied them and if the claim is denied, or not acted on within six months, may sue to recover back the amount thus claimed.4
19
The defendants urge, however, that they are entitled to litigate the proper amount of their tax credit by way of an affirmative defense in this suit, as they have sought to do, and that the district court erred in holding that it had no power to consider such a defense in this proceeding. We do not agree. On the contrary we think that section 3772(a) of the Internal Revenue Code of 1939,5 which requires the filing of a claim for refund as a prerequisite to a suit for the recovery of an erroneous or excessive tax, squarely bars the consideration by the court of such a defense in this suit. For a tax credit allowed under the Renegotiation Act is the legal equivalent of a tax refund to the contractor-taxpayer.6 Applying it as a setoff on his indebtedness to the United States instead of paying it to him in cash merely avoids the circumlocution of cross payments. Here the defendants have not exhausted their administrative remedy by filing the claim for refund which section 3772(a) requires as a prerequisite for judicial consideration of their contention. This being so we need not consider whether if the administrative remedy had been exhausted the defendants would have been entitled to assert the erroneous computation of the tax credit as an affirmative defense in this suit.
20
Vokal v. United States, 9 Cir., 1949, 177 F.2d 619, which is relied upon by the defendants, we regard as distinguishable on its facts. The issue which we regard as decisive here was not discussed in that case. We conclude that the district court did not err in dismissing the defense as being beyond its power to consider.
21
The judgment of the district court will be affirmed.
Notes:
1
After the events here related had occurred Anthony Failla died testate on November 18, 1949. Under his will Marian Failla and The National Newark and Essex Banking Company of Newark were designated as co-executors. The present action is, therefore, against Marian Failla individually and Marian Failla and the bank as co-executors
2
Section 403 of the Sixth Supplemental National Defense Appropriation Act, 1942, 56 Stat. 245, amended by section 801 of the Revenue Act of 1942, 56 Stat. 982, and by section 701 of the Revenue Act of 1943, 58 Stat. 78. 50 U.S.C.A.Appendix, § 1191
3
Now incorporated in Internal Revenue Code of 1954, § 6402
4
Internal Revenue Code of 1954, § 7422 (a); 28 U.S.C. § 1346(a) (1)
5
Now incorporated in Internal Revenue Code of 1954, §§ 6532(a), 7422(a)
6
Universal Oil Products Co. v. Campbell, 7 Cir., 1950, 181 F.2d 451, 478, certiorari denied 340 U.S. 850, 71 S.Ct. 78, 95 L. Ed. 623
|
Case: 14-40876 Document: 00513079402 Page: 1 Date Filed: 06/16/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40876
Conference Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 16, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
AGUSTINE SANCHEZ-HERNANDEZ, also known as Agustin Sanchez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-395-1
Before DAVIS, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Appealing the judgment in a criminal case, Agustine Sanchez-
Hernandez raises an argument that he concedes is foreclosed by United States
v. Rodriguez, 711 F.3d 541, 562-63 & n.28 (5th Cir. 2013) (en banc), in which
we held that the generic, contemporary definition of “sexual abuse of a minor”
does not require the age of consent to be below 17 years old and does not include
the asserted age-differential requirement. He also raises an argument that he
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-40876 Document: 00513079402 Page: 2 Date Filed: 06/16/2015
No. 14-40876
concedes is foreclosed by United States v. Elizondo-Hernandez, 755 F.3d 779,
782 (5th Cir. 2014), cert. denied, 135 S. Ct. 1011 (2015), which held that the
Texas offense of indecency with a child by contact satisfied the generic
definition of “sexual abuse of minor.” Accordingly, the unopposed motion for
summary disposition is GRANTED, and the judgment of the district court is
AFFIRMED.
2
|
NUMBER 13-16-00396-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JESUS RODRIGUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 450th District Court
of Travis County, Texas.
MEMORANDUM OPINION 1
Before Chief Justice Valdez and Justices Benavides and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Jesus Rodriguez appeals his conviction for murder, a first-degree felony.
See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through 2017 1st C.S.). A jury
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV’T CODE
ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
returned a guilty verdict, and the trial court assessed punishment at life imprisonment in
the Texas Department of Criminal Justice–Institutional Division. Appellant raises five
evidentiary issues, which primarily address the exclusion of evidence supporting
appellant’s belief or delusion that the decedent Michael Norwood was associated with a
drug cartel and was attempting to carry out a “hit.” By two additional issues, appellant
challenges the sufficiency of the evidence supporting his conviction and argues that the
trial court abused its discretion in denying his motion for new trial. We affirm.
I. BACKGROUND
Appellant was charged by indictment with intentionally or knowingly causing the
death of Norwood by shooting him with a firearm. See id. The record reflects that
appellant shot and killed Norwood at Brackenridge Hospital (the hospital) in Austin,
Texas, shortly before midnight on December 31, 2013. Appellant arrived at the hospital
earlier that evening complaining of back pain. He was prescribed medication and was
discharged around 7:20 p.m. However, appellant remained around the emergency room
waiting area for approximately four hours. A triage nurse asked hospital security to
escort appellant from the building around 11:00 p.m. Appellant exited the waiting room
area but remained just outside of the hospital.
Sonya Manning testified that she was waiting for a ride at the hospital. She
witnessed security personnel direct appellant to leave the premises and noticed that he
was carrying a backpack. While Manning was waiting inside the hospital, Norwood
approached her and asked to use her lighter. She later went outside to smoke a
cigarette and began conversing with Norwood. Manning noticed two police cars nearby.
2
After one of the officers drove away, appellant approached Norwood and Manning, asking
“What did you all say about me?” Norwood answered, “Ain’t nobody said nothing about
you dude.” Appellant walked away, and Manning continued talking with Norwood.
According to Manning, after the second officer drove away, appellant approached
them again and asked, “What did you all say about me?” Manning and Norwood again
denied saying anything about appellant. Manning stated that appellant then walked in
front of them, pulled out a gun, and said, “I was just waiting for the laws to leave.”
Manning described what happened next:
And he shot [Norwood.] It looked like—from my point of view, it looked like
a straight face shot. [Norwood] blocked it and—he blocked it. And then
[appellant] went up and grabbed [Norwood.] And I ran sideways like, you
know—I’m thinking I’m running sideways, I ran into the emergency room.
And that’s when two more shots went off and it was [Norwood.] And he
shot [Norwood] again.
Manning explained that when appellant approached them, Norwood was on the phone
“with his kinfolk.”
Several officers responded to the scene. According to their testimony, they
apprehended appellant nearby on hospital grounds. Officers discovered a firearm under
Norwood’s body. They also recovered appellant’s backpack and found two loaded
handgun magazines.
According to the autopsy, Norwood died from two gunshot wounds—to his left
upper chest and to the backside of his left shoulder. The muzzle imprint on the wounds
indicated that the gun was in contact with Norwood’s body when it was fired.
Appellant testified in his defense. He claimed that he believed Norwood was an
associate of a drug cartel and that he feared he was carrying out a “hit.” Appellant
3
believed he was being targeted by a drug cartel, and he claimed that cartel members had
previously shot and stabbed him. Appellant stated that he reached out to police on
multiple occasions concerning these incidents. Appellant went to the hospital that
evening “for protection and for the prescription.” He remained on the premises because
he felt the hospital was a safe location.
According to appellant, just prior to the shooting, he heard Norwood state “That
fool is in front of me right now. If you’re going to cap him, cap him.” Appellant then
began walking toward the parking garage when he heard a gunshot. He stated, “I start
freaking out. I start looking around. And then [Norwood is] right there. And it
happened all fast. We started fighting.” Appellant claimed that his gun was thrown from
his backpack during the struggle. He stated, “We both went after the gun, and we started
struggling over the gun.” Appellant admitted that he fired the gun that killed Norwood
and that the gun found under Norwood’s body was his.
The jury charge included instructions for murder, manslaughter, and self-defense.
The jury found appellant guilty of murder. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By his sixth issue, which we address first, appellant argues the evidence was
legally insufficient “to support the verdict.” Specifically, appellant argues that “the
evidence demonstrates it is reasonable to believe that self-defense was necessary.”
A. Standard of Review
“The standard for determining whether the evidence is legally sufficient to support
a conviction is ‘whether, after viewing the evidence in the light most favorable to the
4
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.
App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in
Jackson); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality
op.); see also Kirk v. State, 421 S.W.3d 772, 776–77 (Tex. App.—Fort Worth 2014, pet.
ref’d) (applying the Jackson standard to the jury’s rejection of a self-defense theory). The
fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be
given to their testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699,
707 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is within the fact-
finder’s exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).
We resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State,
767 S.W.2d 769, 776 (Tex. Crim. App. 1989) (en banc).
In reviewing the legal sufficiency of the evidence to support the fact-finder’s
rejection of the defensive issue of self-defense, we look not to whether the State
presented evidence which refuted appellant’s self-defense testimony, but rather we
determine whether any rational trier of fact would have found the essential elements of
murder beyond a reasonable doubt and also would have found against appellant on the
self-defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914
(Tex. Crim. App. 1991); see Gaona v. State, 498 S.W.3d 706, 709 (Tex. App.—Dallas
2016, pet. ref’d); Kirk, 421 S.W.3d at 777.
B. Applicable Law
A person commits murder if he intentionally or knowingly causes the death of an
5
individual or if he intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual. TEX. PENAL CODE ANN.
§ 19.02(b)(1)–(2). However, under certain circumstances, self-defense justifies the use
of deadly force. Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011). The Texas
Penal Code provides in part that a person is justified in using deadly force against another
when and to the degree he reasonably believes the deadly force is immediately necessary
to protect himself against the other’s use or attempted use of unlawful deadly force. TEX.
PENAL CODE ANN. §§ 9.31, 9.32(a) (West, Westlaw through 2017 1st C.S.).
The initial burden to produce evidence supporting self-defense rests with the
defendant. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton, 804
S.W.2d at 913. Once the defendant produces some evidence, the State bears the
ultimate burden of persuasion to disprove the raised defense. See Zuliani, 97 S.W.3d at
594; Saxton, 804 S.W.2d at 913–14. “The burden of persuasion is not one that requires
the production of evidence, rather it requires only that the State prove its case beyond a
reasonable doubt.” Zuliani, 97 S.W.3d at 594. The issue of self-defense is a fact issue
to be determined by the jury, which is free to accept or reject any defensive evidence on
the issue. Saxton, 804 S.W.2d at 913–14. If the jury finds the defendant guilty, then it
implicitly finds against the defensive theory. Id. at 914.
C. Analysis
The jury heard conflicting testimony concerning the moments preceding
Norwood’s death. Appellant claimed he feared Norwood was attacking him because he
was associated with a drug cartel. Appellant described hearing Norwood say, “That fool
6
is in front of me right now. If you’re going to cap him, cap him.” Appellant then heard a
gunshot and described a physical struggle with Norwood resulting in his firearm falling
from his backpack. Appellant claimed that he and Norwood both attempted to grab the
weapon but that he reached the gun first. He stated he fired the weapon at Norwood
because he feared for his life.
Manning’s testimony directly contradicts appellant’s version of events. According
to Manning, appellant approached Norwood, pulled out his weapon, and shot Norwood
without provocation. There was no evidence that Norwood was armed, and the only
weapon recovered from the scene belonged to appellant.
Manning’s testimony that appellant approached Norwood and shot him without
provocation is legally sufficient evidence to support the jury’s implied rejection of
appellant’s self-defense claim. As the exclusive judge of the credibility of the witnesses,
it was within the jury’s province to disbelieve appellant’s version of the deadly encounter.
See Brooks, 323 S.W.3d at 899. When viewing the evidence in the light most favorable
to the verdict, the jury could have rationally rejected appellant’s defense claims and found
each element of the charged offense was proven beyond a reasonable doubt. See
Johnson, 364 S.W.3d at 293–94; Saxton, 804 S.W.2d at 913–14. We overrule
appellant’s sixth issue.
III. EVIDENTIARY ISSUES
A. Standard of Review
We review a trial court’s ruling on evidentiary matters under an abuse of discretion
standard. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009). A trial court
7
abuses its discretion if its action is arbitrary or unreasonable. State v. Mechler, 153
S.W.3d 435, 439 (Tex. Crim. App. 2005). We consider the trial court’s ruling in light of
what was before it at the time the ruling was made and uphold the ruling if it lies within
the zone of reasonable disagreement. Billodeau, 277 S.W.3d at 39. We will uphold the
trial court’s ruling if it was correct under any theory of law applicable to the case. Bowley
v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010).
B. Mental Health Evidence
By his first issue, appellant argues that the trial court abused its discretion when it
excluded the testimony of Marisa Mauro, Psy.D., a court-appointed psychologist.
Appellant argues that Dr. Mauro should have been permitted to testify that appellant
suffered from a delusional disorder because such evidence “pertained to [appellant’s]
reasonable belief that self-defense was necessary.”
1. Pertinent Testimony
Dr. Mauro testified outside the presence of the jury regarding her examination of
appellant. Dr. Mauro examined appellant to evaluate his competency to stand trial and
whether he was legally sane. Dr. Mauro concluded that appellant was both competent
and sane. She detailed that appellant believed certain individuals or groups were “out
to get him.” Dr. Mauro stated that appellant reported hearing people talking and walking
around in his attic. She believed that appellant’s reports were consistent with auditory
hallucinations and a delusional disorder constituting a mental disease or defect. She
described the mental disease varyingly as a persecutory delusion or a paranoid delusion.
Dr. Mauro opined that at the time of the murder, appellant believed people were stalking
8
him and had “basically put a hit out on him.” According to Dr. Mauro, appellant believed
that Norwood might have been a hitman. However, Dr. Mauro could not say whether or
not appellant was able to “form intent” for the offense of murder. The trial court sustained
the State’s objections that, among other things, Dr. Mauro’s testimony did not negate the
mens rea for the offense of murder.
2. Applicable Law
Appellant did not raise insanity as an affirmative defense. Other than insanity
there is no affirmative defense of “diminished capacity” in Texas. Ruffin v. State, 270
S.W.3d 586, 593 (Tex. Crim. App. 2008); Jackson v. State, 160 S.W.3d 568, 573 (Tex.
Crim. App. 2005). Rather, diminished capacity is recognized as a “failure-of-proof
defense in which the defendant claims that the State failed to prove that the defendant
had the required state of mind at the time of the offense.” Jackson, 160 S.W.3d at 573.
As with other elements of the offense, the defendant may present relevant evidence
negating the requisite mens rea. Ruffin, 270 S.W.3d at 594; Jackson, 160 S.W.3d at
574. This evidence may include evidence of a defendant’s history of mental illness or
evidence of a defendant’s physical or mental diseases or defects. Ruffin, 270 S.W.3d at
593–94; Jackson, 160 S.W.3d at 574. But the evidence still must meet generally
applicable requirements for admission of evidence, and it may be excluded if it does not
truly negate the required mens rea. Mays v. State, 318 S.W.3d 368, 381–82 (Tex. Crim.
App. 2010); Ruffin, 270 S.W.3d at 595–96.
A person commits murder if he intentionally or knowingly causes the death of an
individual or when he, with the intent to cause serious bodily injury, commits an act clearly
9
dangerous to human life and thereby causes death. TEX. PENAL CODE ANN. §
19.02(b)(1)–(2). A person acts intentionally when it is his conscious objective or desire
to engage in the conduct or cause the result. Id. § 6.03(a) (West, Westlaw through 2017
1st C.S.). A person acts knowingly when he is aware that his conduct is reasonably
certain to cause the result. Id. § 6.03(b).
3. Analysis
In the absence of an insanity defense, Dr. Mauro’s testimony concerning
appellant’s delusional disorder was admissible only if such evidence negated the
necessary mens rea for murder. See Ruffin, 270 S.W.3d at 596. Ruffin illustrates when
evidence of mental disease or defect is admissible to negate the mens rea for an offense.
The defendant in that case shot at approaching police officers because, due to his
delusional state, he believed the officers were Muslims who were “waiting to kill [him] with
a knife.” Id. at 590. The trial court excluded testimony of appellant’s psychologist
regarding the existence and severity of his mental disease and delusions, ruling that such
testimony is admissible only if a defendant pleads insanity. Id. The court of criminal
appeals reversed, concluding that the defendant’s mistaken perception, caused by a
mental defect, was relevant to mens rea because it proved that he did not intend to shoot
at police officers, an element of aggravated assault of a public servant. Id. at 594; see
TEX. PENAL CODE ANN. § 22.02(b)(2)(B) (West, Westlaw through 2017 1st C.S.)
(enhancing punishment for aggravated assault if assailant intentionally attacked public
servant in discharge of duties). The court noted that the psychologist’s testimony, if
believed, would have lessened the offenses from first-degree aggravated assaults of
10
police officers to second-degree aggravated assaults (an intentional shooting at a
“trespasser” or at “Muslims”). Ruffin, 270 S.W.3d at 594.
In Jackson, the court of criminal appeals concluded that evidence of the
defendant’s mental illness did not negate mens rea for the offense of murder:
Rather, the evidence presented an excuse for the crime, i.e., that Appellant
killed his brother because he was so paranoid that he thought his brother
was out to get him. In fact, this evidence makes it even more apparent that
Appellant intended to cause serious bodily injury or death to his brother.
The evidence of appellant’s paranoia simply provides a motive for the
intentional act. The evidence presented was the type of excuse-based
evidence that would be raised as an affirmative defense. As even
Appellant acknowledges, Texas law does not recognize a lesser form of the
insanity affirmative defense.
160 S.W.3d 568, 572 (Tex. Crim. App. 2005).
Unlike Ruffin, the charged offense is murder, not aggravated assault of a public
servant, and the proffered evidence does not negate the mens rea. The State was
required to prove that appellant intended to shoot at a person, not a specific individual
such as a public servant. The excluded evidence establishes that appellant intended to
kill Norwood and his motive for doing so—a paranoid delusion that Norwood was a hitman
for a drug cartel. Nothing in Dr. Mauro’s testimony suggests that appellant did not have
the ability to form or did not form the culpable mens rea for committing murder.
Therefore, her testimony would only be relevant to support a “lesser form of the insanity
affirmative defense” which has been rejected by Texas courts. See Mays, 318 S.W.3d
at 381 (holding that the trial court “was not required to admit any expert testimony
concerning appellant’s mental illness during the guilt stage because it did not directly
rebut his culpable mens rea” and distinguishing Ruffin in part on the basis that “[a]ppellant
11
offered no evidence to suggest that he did not intend to shoot a person”); Jackson, 160
S.W.3d at 572.
Appellant claims alternatively that the evidence is admissible to support his claim
of self-defense. On that point, we find Mays instructive:
Appellant fails to acknowledge that each of these justification defenses
requires that the defendant reasonably believe that his conduct is
immediately necessary to avoid a greater harm. As with the statutory
mistake-of-fact defense, a “reasonable belief” is one that would be held by
an ordinary and prudent person, not by a paranoid psychotic. Appellant’s
repeated claim that “his paranoid ideations and active psychosis” raise a
“reasonable belief” that his actions were justified is supported neither by law
nor common sense.
Texas law does not recognize the “ordinary and prudent” paranoid psychotic
for purposes of Penal Code justification defenses. The only affirmative
defense available under Texas law for those who commit crimes while
suffering from an abnormal mental disease or defect is insanity under
Section 8.01. Appellant did not assert an insanity defense at trial, and he
cannot now claim entitlement to some other statutory defense based upon
his mental disease or defect.
318 S.W.3d at 385–86 (internal citations omitted). As indicated in Mays, self-defense
supported by a paranoid delusion is not a recognized defense in Texas.
Finally, appellant argues that Dr. Mauro’s testimony is admissible under article
38.36(a) of the code of criminal procedure. That provision states that:
In all prosecutions for murder, the state or the defendant shall be permitted
to offer testimony as to all relevant facts and circumstances surrounding the
killing and the previous relationship existing between the accused and the
deceased, together with all relevant facts and circumstances going to show
the condition of the mind of the accused at the time of the offense.
TEX. CODE CRIM. PROC. ANN. art. 38.36(a) (West, Westlaw through 2017 1st C.S.). The
court in Ruffin explained article 38.36’s significance as follows:
We quoted article 38.36 in Jackson for the unremarkable proposition that
12
both the State and defendant may offer testimony as to “all relevant facts
and circumstances going to show the condition of the mind of the accused
at the time of the offense.” This is one of the few Texas statutes that
explicitly states the obvious: evidence offered by either the defense or
prosecution is relevant (and presumptively admissible) to prove or disprove
the pertinent mens rea at the time of the offense.
Ruffin, 270 S.W.3d at 596 (internal citations and footnote omitted). To be admissible
under article 38.36, evidence of mental illness must still meet general evidentiary
requirements and may be excluded if it does not truly negate the mens rea. Id. In this
case, as previously explained, evidence of appellant’s delusional disorder does not
negate the mens rea for murder. Therefore, the trial court did not abuse its discretion in
excluding Dr. Mauro’s testimony. See Billodeau, 277 S.W.3d at 39. We overrule
appellant’s first issue.
C. Private Investigator’s Testimony
By his second issue, appellant argues that the trial court abused its discretion when
it excluded the testimony of Paul Brick, a private investigator retained by appellant.
1. Pertinent Facts
Brick testified that he is a retired police officer with twenty-eight years’ experience
in law enforcement. Brick stated that he spoke to various law enforcement agents to
confirm whether appellant cooperated in drug investigations. When appellant inquired
as to the substance of those conversations, the State urged a hearsay objection.
Appellant responded that the hearsay was admissible because it formed the basis for
Brick’s expert opinion. The trial court excused the jury and conducted a hearing
concerning the admissibility of Brick’s testimony.
Outside the presence of the jury, Brick testified that his area of expertise was
13
“organized crime, drug-smuggling networks.” Brick stated that he intended to offer the
following opinion to the jury: “Whether or not I was able to verify that [appellant] did in
fact make contact with members of law enforcement and turn over information to them[.]”
Brick stated that he intended to offer an opinion as to whether appellant was telling the
truth in that regard. He stated that the basis for his opinion was a summary of
conversations he had with law enforcement personnel.
Appellant’s counsel argued that Brick was being offered “just to verify [appellant]
had these meetings [with law enforcement] and did turn over information.” The State
responded that Brick was not qualified to render an expert opinion and that his opinion
was not reliable. Regarding reliability, the State argued that Brick was not relying on or
utilizing any principles in the field of his expertise but was simply testifying as to what
other people told him. The State further argued that Brick was not drawing any
conclusions “other than [appellant] is a truth teller.” Because he was not offering an
expert opinion, the State maintained that Brick’s testimony was inadmissible hearsay.
The trial court sustained the State’s objection to Brick’s testimony.
2. Applicable Law
The admissibility of expert testimony is governed by Texas Rule of Evidence 702,
which provides that “[a] witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or otherwise if the
expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702. In addition,
Rule 705 provides that, if the court determines that “the underlying facts or data do not
14
provide a sufficient basis” for the expert’s opinion under Rule 702, the opinion is
inadmissible. Id. R. 705(c).
In determining the admissibility of expert testimony, a trial judge must make three
separate inquiries, whether: “(1) the witness qualifies as an expert by reason of his
knowledge, skill, experience, training, or education; (2) the subject matter of the testimony
is an appropriate one for expert testimony; and (3) admitting the expert testimony will
actually assist the fact-finder in deciding the case.” Rodgers v. State, 205 S.W.3d 525,
527 (Tex. Crim. App. 2006). These conditions are commonly referred to as qualification,
reliability, and relevance. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006).
Here, the opinion testimony of the officer concerned a soft science. See Weatherred v.
State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (distinguishing “hard” from “soft”
sciences). The reliability of soft science evidence may be established by showing that
the field of expertise involved is legitimate, the subject matter of the expert’s testimony is
within the scope of that field, and the expert’s testimony properly relies on or utilizes the
principals involved in that field. Id. To show that an expert properly relied on the
principles of his field, the expert’s proposed testimony must be derived from the expert’s
“knowledge, skill, experience, training, or education . . . .” TEX. R. EVID. 702.
3. Analysis
Brick testified that his area of expertise was “organized crime, drug-smuggling
networks.” However, Brick’s verification of appellant’s cooperation with law enforcement
did not constitute an opinion derived from his expertise. See id.; Weatherred, 15 S.W.3d
at 542. Rather, Brick was simply sharing a summary of his contacts with law
15
enforcement officials. Further, Brick acknowledged that his conclusions constituted an
opinion regarding whether appellant was telling the truth when he claimed to have made
such contacts. “It is generally improper for a witness to offer a direct opinion as to the
truthfulness of another witness and such opinion is therefore inadmissible evidence.”
Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)
(citing Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997)); see Reynolds v. State,
227 S.W.3d 355, 365–66 (Tex. App.—Texarkana 2007, no pet.). This rule applies to
expert and lay witness testimony alike. Fisher v. State, 121 S.W.3d 38, 41 (Tex. App.—
San Antonio 2003, pet. ref’d); Arzaga v. State, 86 S.W.3d 767, 776 (Tex. App.—El Paso
2002, no pet.). We conclude that the trial court did not abuse its discretion in concluding
that Brick’s testimony was not reliable expert evidence.
Appellant argues in the alternative that Brick’s testimony was admissible as a lay
opinion. Admission of lay-opinion testimony is controlled by Texas Rule of Evidence
701. When conducting a rule 701 evaluation, the trial court must decide: (1) whether
the opinion is rationally based on perceptions of the witness; and (2) whether it is helpful
to a clear understanding of the witness’s testimony or to a determination of a fact in issue.
TEX. R. EVID. 701; see Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997).
Rule 701 requires the proponent of lay-opinion testimony to establish, as a predicate, that
the witness has personal knowledge of the events upon which his opinion is based. See
Fairow, 943 S.W.2d at 898. Personal knowledge will generally come directly from the
witness’s senses. Id.; see Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984).
Brick’s opinion testimony was not based on personal knowledge. Rather, his opinion
16
that appellant cooperated with law enforcement officers was based on the hearsay
statements of those very officers. See TEX. R. EVID. 801(d), 802. A lay-witness opinion
based on hearsay is inadmissible. McMillan v. State, 754 S.W.2d 422, 425 (Tex. App.—
Eastland 1988, pet. ref’d); see Fairow, 943 S.W.2d at 898.
We conclude that Brick’s testimony was not proper expert or lay opinion testimony.
Therefore, the trial court did not abuse its discretion in excluding the evidence. See
Billodeau, 277 S.W.3d at 39.
D. Norwood’s Drug Use
By his third and fourth issues, appellant argues the trial court erred in excluding
references to Norwood’s drug use in the moments preceding his death. Appellant sought
to question Manning concerning Norwood’s statement that he had used drugs the day
before and that he was attempting to buy more. Appellant also sought to introduce a
toxicology report showing that Norwood had cocaine in his system at the time of his death.
The State objected that the evidence was not relevant, constituted improper character
evidence, and was overly prejudicial. The trial court sustained the State’s relevance
objection. Appellant maintains on appeal that the evidence was offered for a non-
character purpose and was relevant to his claim of self-defense. 2
1. Applicable Law
Relevant evidence is evidence which has any tendency to make the existence of
2 Appellant also argues in conclusory fashion that the testimony was admissible to impeach
Manning’s credibility. However, appellant does not support this contention with argument or authority.
See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.”). Therefore, the issue is inadequately
briefed and presents nothing for our review. See McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim.
App. 2001).
17
any fact of consequence more or less probable than it would be without the evidence.
TEX. R. EVID. 401. Relevant evidence is generally admissible, unless it is prohibited by
law or an evidentiary rule. Id. R. 402. For instance, when the probative value of relevant
evidence is substantially outweighed by the danger of unfair prejudice, the evidence is
inadmissible under Rule 403. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim.
App. 1991) (citing TEX. R. EVID. 403). In addition, evidence of a person’s other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show that
he acted in conformity with that character. TEX. R. EVID. 404(a)(1); see Tate v. State,
981 S.W.2d 189, 192 (Tex. Crim. App. 1998) (explaining that evidence of a person’s
character may not be used to prove that the person “behaved in a particular way at a
given time”). On the other hand, a defendant may be allowed to offer evidence of a
victim’s character for violence to show that a victim was the first aggressor in a violent
encounter, regardless of whether the defendant was aware of that evidence. Ex parte
Miller, 330 S.W.3d 610, 619 (Tex. Crim. App. 2009). Such evidence must be in the form
of opinion or reputation, and not specific instances of violent behavior. Id.; TEX. R. EVID.
404(a)(3), 405(a).
Further, a defendant may offer reputation or opinion testimony or evidence of
specific prior acts of violence by the victim to show the “reasonableness of [the]
defendant’s claim of apprehension of danger” from the victim. Ex parte Miller, 330
S.W.3d at 618 (citing Torres v State, 71 S.W.3d 758, 760 & n.4 (Tex. Crim. App. 2002)).
This purpose invokes Rule 404(b) because the evidence is offered to show the
defendant’s own self-defensive state of mind and the reasonableness of that state of
18
mind. Id. at 618-19; Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999).
However, the defendant must show that he was aware of the victim’s specific acts for the
evidence to be admissible for this purpose. Torres, 71 S.W.3d at 760 n.4.
Finally, a defendant may also introduce evidence under Rule 404(b) of a “victim’s
prior specific acts of violence when offered for a non-character purpose—such as his
specific intent, motive for an attack on the defendant, or hostility—in the particular case.”
Ex parte Miller, 330 S.W.3d at 620; see TEX. R. EVID. 404(b)(2). “As long as the proffered
violent acts explain the outward aggressive conduct of the deceased at the time of the
killing, and in a manner other than demonstrating character conformity only, prior specific
acts of violence may be admitted even though those acts were not directed against the
defendant.” Torres, 71 S.W.3d at 762. “The proper predicate for the specific violent
prior act by the deceased is some act of aggression that tends to raise the issue of self-
defense, which the violent act may then help clarify.” Torres v. State, 117 S.W.3d 891,
895 (Tex. Crim. App. 2003) (emphasis in the original).
2. Analysis
We first note that the evidence was not in the form of reputation or opinion
testimony concerning Norwood’s violent character. See Ex parte Miller, 330 S.W.3d at
619. Therefore, the evidence is not admissible to show that Norwood was the first
aggressor in the encounter. See id. Next, appellant did not establish that he was aware
that Norwood had recently used cocaine. Therefore, the evidence would not be
admissible to show the reasonableness of appellant’s apprehension of danger. See
Torres, 71 S.W.3d at 760 n.4. Finally, appellant has not shown that Norwood’s cocaine
19
use demonstrated any specific intent, motive to attack appellant, or hostility that Norwood
may have had. For instance, there is nothing in the record connecting Norwood’s drug
use to the alleged violent acts or to any propensity of Norwood to act violently. See
Torres, 117 S.W.3d at 895; see also Moore v. State, No. 10-06-00319-CR, 2007 WL
4260446, at *3 (Tex. App.—Waco Dec. 5, 2007, pet. ref’d) (mem. op., not designated for
publication) (holding that evidence of murder victim’s drug use was not relevant apart
from showing character conformity). We conclude that the trial court did not abuse its
discretion in concluding that Norwood’s drug use was not relevant apart from showing
character conformity. See Billodeau, 277 S.W.3d at 39.
We also conclude that the evidence would have been properly excluded under
Rule 403. See Bowley, 310 S.W.3d at 434 (explaining that an appellate court must
uphold a trial court’s evidentiary ruling on any theory of law applicable to the case).
When conducting a Rule 403 analysis, the trial court must balance: (1) the inherent
probative force of the proffered item of evidence along with (2) the proponent's need for
that evidence against (3) any tendency of the evidence to suggest decision on an
improper basis, (4) any tendency of the evidence to confuse or distract the jury from the
main issues, (5) any tendency of the evidence to be given undue weight by a jury that has
not been equipped to evaluate the probative force of the evidence, and (6) the likelihood
that presentation of the evidence will consume an inordinate amount of time or merely
repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex.
Crim. App. 2006).
The probative value of evidence concerning intoxication “necessarily depends
20
upon the ability to infer intoxicating effects from the fact of consumption of the controlled
substance.” Gonzalez v. State, ___ S.W.3d. ___, __, No. PD-0181-17, 2018 WL
1736689, at *6 (Tex. Crim. App. Apr. 11, 2018). Here, the record is silent as to precisely
when Norwood used cocaine, the drug’s intoxicating effects, and how long those effects
lasted. Assuming the evidence was of minimal relevance, the probative force of the
evidence rested entirely upon the ability to draw an inference of intoxication at the time of
the offense. Without additional evidence regarding the cocaine’s intoxicating effects and
its relation to Norwood’s behavior, such evidence had little probative value. See id. at
*7; see also TEX. R. EVID. 104(b) (“When the relevance of evidence depends on whether
a fact exists, proof must be introduced sufficient to support a finding that the fact does
exist.”).
Further, appellant had little need for the evidence. Appellant’s theory at trial was
that he feared for his life because he believed Norwood was carrying out a hit for a drug
cartel. In support of that defense, appellant presented evidence that he was previously
targeted by cartel members and that Norwood stated he was going to “cap” appellant
moments before the shooting. Appellant also claimed that he and Norwood engaged in
a struggle over appellant’s firearm. Norwood’s use of cocaine does nothing to further
appellant’s defensive theory.
On the other hand, Norwood’s drug use had the potential to impress the jury in
some irrational and indelible way. The evidence had the potential to lure the jury to
reaching a conclusion based on a decedent’s cocaine use, and the stigma attached to
such behavior, without the aid of any evidence concerning the drug’s effect.
21
We conclude that the Rule 403 balancing factors support the trial court’s
evidentiary ruling. See Gonzalez, 2018 WL 1736689, at *7–8 (holding that evidence of
defendant’s use of the drug ecstasy was inadmissible under Rule 403 without additional
evidence concerning the effects of the drug or its relation to defendant’s behavior).
Therefore, the trial court did not abuse its discretion in excluding evidence of Norwood’s
cocaine use. See Billodeau, 277 S.W.3d at 39. We overrule appellant’s third and fourth
issues.
E. Impeachment Evidence
By his fifth issue, appellant argues the trial court abused its discretion when it
excluded evidence that Manning’s brother, Otis Pearce, visited appellant in jail.
Appellant argues such evidence was relevant because it demonstrates potential witness
bias and it impeaches Manning’s testimony that she did not know appellant.
1. Pertinent Facts
During the cross-examination of Manning, appellant elicited that Manning had a
brother named Otis Pearce. Appellant later testified that he was long-time friends with
Pearce. Appellant explained that he knew Manning was Pearce’s sister but that he had
never spoken to Manning before the night of the shooting. Appellant could not say
whether Manning knew appellant.
During a hearing outside the presence of the jury, appellant’s counsel argued for
the introduction of evidence that Pearce visited appellant in jail following his arrest.
Appellant intended to establish this through his own testimony and a video of the jail visit.
The State argued that the evidence was not relevant in that it did not impeach Manning’s
22
testimony. The State noted that appellant testified he had never spoken to Manning,
which was consistent with Manning’s claim that she did not know appellant. The trial
court sustained the State’s objection.
2. Applicable Law
A defendant may cross-examine a witness on any subject “reasonably calculated
to expose a motive, bias or interest for the witness to testify.” Carroll v. State, 916
S.W.2d 494, 497 (Tex. Crim. App. 1996). Texas Rule of Evidence 613(b) allows an
opponent to impeach a witness by proof of bias or interest by first questioning the witness,
and if the witness denies the bias or motive, “the opponent may introduce extrinsic
evidence to prove the motive or bias.” Hammer v. State, 296 S.W.3d 555, 563 (Tex.
Crim. App. 2009) (citing TEX. R. EVID. 613(b)). “[G]enerally speaking, the Texas Rules
of Evidence permit the defendant to cross-examine a witness for his purported bias,
interest, and motive without undue limitation or arbitrary prohibition.” Id. The trial court,
however, has broad discretion to impose reasonable limitations on cross-examination to
avoid harassment, prejudice, confusion of the issues, endangering the witness, and the
injection of cumulative or collateral evidence. Carroll, 916 S.W.2d at 498 (citing
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
3. Analysis
Appellant was not prevented from presenting evidence of Manning’s potential bias.
Appellant testified that he was long-time friends with Pearce. Appellant also elicited from
Manning that Pearce was her brother. Appellant however acknowledged that he had
never spoken to Manning, and he was unable to say whether or not Manning knew him
23
through his association with Pearce. The fact that Pearce visited appellant in jail
following his arrest does not further demonstrate any bias or motive on the part of
Manning. If anything, the evidence is merely cumulative of appellant’s earlier testimony.
We are unable to conclude that the trial court’s ruling was an abuse of its broad discretion
to avoid injection of cumulative or collateral evidence. See Carroll, 916 S.W.2d at 498.
IV. MOTION FOR NEW TRIAL
By his seventh and final issue, appellant argues that the trial court abused its
discretion in denying his motion for new trial. Appellant maintains that he was entitled to
a new trial based on newly discovered evidence. 3
A motion for new trial must be filed within thirty days after sentence is imposed or
suspended in open court. TEX. R. APP. P. 21.4(a); see State v. Arizmendi, 519 S.W.3d
143, 150 (Tex. Crim. App. 2017); State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App.
2013). The motion can be amended at any time during that thirty–day period, but the
trial court is barred from considering a ground raised outside the thirty–day period if the
State properly objects. Arizmendi, 519 S.W.3d at 150; Zalman, 400 S.W.3d at 593; see
TEX. R. APP. P. 21.4(b). The trial court must rule on a motion for new trial within 75 days
after imposing or suspending sentence in open court. TEX. R. APP. P. 21.8(a).
3 Article 40.001 of the Texas Code of Criminal Procedure provides, “A new trial shall be granted
an accused where material evidence favorable to the accused has been discovered since trial.” TEX. CODE
CRIM. PROC. ANN. art. 40.001 (West, Westlaw through 2017 1st C.S.). To obtain relief under this provision,
the defendant must satisfy the following four-prong test: (1) the newly discovered evidence was unknown
or unavailable to the defendant at the time of trial; (2) the defendant’s failure to discover or obtain the new
evidence was not due to the defendant’s lack of due diligence; (3) the new evidence is admissible and not
merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and
will probably bring about a different result in a new trial. State v. Arizmendi, 519 S.W.3d 143, 149 (Tex.
Crim. App. 2017); Carsner v. State, 444 S.W.3d 1, 2–3 (Tex. Crim. App. 2014).
24
Generally, a trial court has plenary jurisdiction over a case for the first thirty days after
sentencing because it has the authority to receive a motion for new trial (or motion in
arrest of judgment) within that time period and to resolve the merits of that motion within
seventy-five days of sentencing. See id. R. 21.8; State v. Moore, 225 S.W.3d 556, 569
(Tex. Crim. App. 2007); McClinton v. State, 121 S.W.3d 768, 778 n.1 (Tex. Crim. App.
2003) (Cochran, J., concurring); State v. Holloway, 329 S.W.3d 247, 252 (Tex. App.—
Texarkana 2010), aff’d, 360 S.W.3d 480 (Tex. Crim. App. 2012).
Appellant timely filed his first motion for new trial on June 10, 2016, which was
within thirty days of the May 24 sentencing. That motion was overruled by operation of
law on August 8, 2016. However, appellant’s amended motion for new trial, which
asserted newly-discovered evidence as its basis, was not filed until September 20, 2016,
approximately four months later. Because the amended motion was not filed within
seventy-five days of sentencing, the trial court was deprived of any authority to rule on
the motion. See Moore, 225 S.W.3d at 569.
We overrule appellant’s seventh issue.
V. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
17th day of May, 2018.
25
|
918 So.2d 942 (2005)
Leigh Ann BARRETT
v.
STATE of Alabama.
CR-03-1310.
Court of Criminal Appeals of Alabama.
February 25, 2005.
Rehearing Denied May 13, 2005.
Certiorari Denied July 8, 2005.
*943 Talitha Powers Bailey, Birmingham, for appellant.
Troy King, atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
Alabama Supreme Court 1041255.
COBB, Judge.
Leigh Ann Barrett was charged with attempted murder after she stabbed a neighbor, Ricky Cobb, with a kitchen knife. See §§ 13A-6-2, 13A-4-2, Ala.Code 1975. Following a jury trial, Barrett was convicted of assault in the second degree. § 13A-6-21, Ala.Code 1975. The trial court sentenced her to 10 years' imprisonment; that sentence was suspended and the trial court placed her on 5 years' supervised probation. The court also ordered Barrett to pay restitution, court costs, and $100 to the Alabama crime victims compensation fund. Finally, the court ordered Barrett to obtain mental-health counseling. This appeal follows.
The evidence tended to show that 41-year-old Barrett and 44-year-old Ricky *944 Cobb had been acquainted since childhood. On August 16, 2002, Barrett telephoned Cobb and asked him to bring her some vegetables from his garden. Cobb walked to Barrett's house with the vegetables. Cobb then walked a two-mile round-trip to a liquor store to purchase alcohol for him and Barrett. Cobb and Barrett went to a nearby house during the evening. The evidence about whether Barrett and/or Cobb were intoxicated was disputed, but there was no dispute that both parties consumed alcohol while they were together. A neighbor testified that Cobb and Barrett were "bickering back and forth for two hours straight." (R. 346.) She said that, at one point during the evening, Cobb called Barrett "a crazy bitch," and Barrett "got up and punched him in the face." (R. 346.) The neighbor further testified that Barrett, while referring to Cobb, told her that evening that if that "mother fucker ever messes" with her, she would kill him. (R. 347.)
Barrett and Cobb returned to Barrett's house after midnight. Cobb testified that Barrett was extremely intoxicated. In Barrett's statement to the police, she claimed that Cobb was intoxicated and that he attempted to rape her. Barrett also told police that Cobb lunged at her with a knife that he always carried on his person. Barrett took a kitchen knife from a drawer and stabbed Cobb in the upper abdomen. Barrett telephoned the police, and Cobb left her house and walked or stumbled home. Photographs presented at trial indicate that Barrett had a bloody wound on the back of her arm. Cobb was hospitalized; his stab wound required surgical repair.
I.
Barrett first argues that the trial court erred when it disregarded undisputed expert testimony and found that Barrett does not suffer from battered woman syndrome ("BWS") and when it "disallowed any mention of BWS as an aspect of self-defense." (Appellant's brief at p. 8.) The State argues that the trial court did not abuse its discretion when it determined, based on evidence presented at a pretrial hearing, that the foundation for the BWS had not been presented and that testimony about abuse Barrett suffered from men other than Cobb was irrelevant. We agree with the State.
The State filed a pretrial motion in limine alleging that, because Barrett had not entered a plea of not guilty by reason of mental disease or defect, she should be precluded from referring to any alleged diminished capacity or mental disease or to her subjective state of mind at the time of the crime. The court held extensive hearings on the motion. The State argued that, to the extent Barrett intended to present evidence about BWS, the evidence should be limited to evidence about interactions between her and Cobb and should not include details of the abuse Barrett allegedly suffered as a child or during the time she was homeless or was involved with other men. Defense counsel argued that the entirety of Barrett's traumatic life was vital to her case. The trial court initially stated that it had reviewed many of the cases on BWS and had determined that testimony about Barrett's abusive father, an alleged gang rape, and prior abusive relationships would not be relevant to the facts of this case. The court also determined that the prejudicial effect would outweigh the probative value of the evidence. (R. 14-15.) The State conceded that past interactions between Cobb and Barrett would be admissible, but that testimony about other parties and Barrett should not be admitted. (R. 32, 34.)
The parties conducted additional research and argued to the trial court on the *945 following day. The prosecutor argued that the cases involving BWS discussed cycles of abuse by the battering spouse and involved a history of intensifying threats and abuse from that person toward the abused spouse. (R. 43-44.) The trial court stated that it would allow defense counsel to present testimony at the hearing from his expert and any other witnesses. The court stated it had to be satisfied, first, that BWS existed in this case. The court noted that the report submitted by the defense expert, Dr. Alan Shealy, did not refer to any existing relationship between Cobb and Barrett. (R. 76.) The court stated that it had to determine whether the proffered evidence was relevant, and that it was inclined to rule that evidence of abuse inflicted by anyone other than Cobb would not be relevant or admissible. The court further stated that it believed that the prejudicial value would outweigh any probative value of such evidence. (R. 93-94.)
Barrett testified at the pretrial hearing regarding sexual abuse by her older brother, which she alleged she suffered between the ages of 6 and 12 years; she said that her mother was aware of the abuse but that she did nothing to stop it. She testified that her father was physically abusive to her. She said that she had been married to or involved with several other men who had physically abused her and raped her. Barrett testified that during a period when she was homeless, she was beaten and robbed, and that she was once kidnapped and gang-raped by six men.
Barrett described her relationship with Cobb as "drinking buddies." (R. 118.) She claimed that, when they were drunk, Cobb often was aggressive toward her sexually and when she rejected his advances, he threatened her and hollered at her. Barrett also testified about her version of events on the night she stabbed Cobb.
Dr. Shealy testified that he was a psychologist with extensive training and experience. He testified that BWS was popularized by Dr. Lenore Walker. Dr. Walker described three or phases to BWS. Dr. Shealy explained:
"The first aspect would be the tension phase where there would be the male partner would be building up to violence. And the second stage would be the actual battering or the violence. And the third stage would be the, what [Dr. Walker] called, the honeymoon phase or the making up phase. So that's the classical sort of description of battered woman's syndrome."
(R. 141.)
Dr. Shealy stated that a woman's childhood and adolescence and past relationships factor into whether she suffers from BWS; he further stated, "Just because a woman has had situations where she's been abused or has been powerless in the past doesn't mean necessarily that she would be a battered woman in the future." (R. 145.) Dr. Shealy explained that BWS "can be used to describe a woman's situation where there is no violent act that would require a self-defense theory." (R. 146-47.) Finally, Dr. Shealy testified that he believed that Barrett suffered from BWS and that at the time of the offense, she believed she was in imminent danger.
The court asked Dr. Shealy whether the theories about BWS "presuppose a relationship between the two individuals," i.e., the batterer and the victim, and Dr. Shealy acknowledged that the theories do so. (R. 164.)
After hearing the testimony, the trial court determined that the record did not support a finding that Barrett suffered from BWS, and that the defense could not go forward with that theory. The court stated that the characteristics of BWS, as recited by Dr. Shealy and as included in *946 Alabama cases, involved the tension phase, the battering phase, and the honeymoon phase, and there was no testimony that these phases existed in this case. (R. 175, 179-80.) The court also stated that testimony about BWS would not be relevant. (R. 179-80.) The court stated that it was not precluding testimony about prior instances of abuse between Barrett and Cobb. (R. 180.)
During the trial, Barrett asked the trial court to reconsider the earlier ruling and to permit her to present evidence about her childhood and her previous abusive relationships, and to show how her experiences led her to display the characteristics associated with BWS. The trial court declined to allow Barrett to present the evidence, accepted as a proffer of evidence the testimony at the pretrial hearing, and stated that the argument was preserved for the record. (R. 412-16.) The trial court again stated that evidence regarding abuse by anyone other than Cobb would not be relevant in this case, and that the probative value of the evidence would be outweighed by its prejudicial value.
"The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000).
"To be competent and admissible, evidence must be relevant that is, evidence must tend to prove or disprove the issues before the jury. Rule 401, Ala. R. Evid. The determination of the relevancy and admissibility of evidence rests largely in the sound discretion of the trial judge. The trial judge is obliged to limit the evidence to that evidence that would be necessary to aid the fact-finders in deciding the issues before them, and to preclude evidence that is too remote, irrelevant, or whose prejudice outweighs its probative value. Loggins v. State, 771 So.2d 1070, 1077-78 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000)."
Harrington v. State, 858 So.2d 278, 293 (Ala.Crim.App.2002).
The trial court correctly determined that, before the evidence about BWS could be admitted at trial, it had to be relevant. As Dr. Shealy testified at the pretrial hearing, BWS presupposes a relationship between the batterer and the abused partner, and BWS has three phases: the tension phase, the battering phase, and the honeymoon phase. The substance of the expert's testimony is reflected in Alabama caselaw. For example, in Bonner v. State, 740 So.2d 439 (Ala.Crim.App.1998), this Court stated:
"However, generally, a battered woman `is or has been in an intimate relationship with a man who repeatedly subjects or subjected her to forceful physical and/or psychological abuse.' Lenore Walker, The Battered Woman Syndrome 203 (1984).
"`The violence associated with this type of relationship is neither constant nor random. Instead, it follows a pattern. Dr. [Lenore] Walker identified a three-stage cycle of violence. The first stage is the "tension building" phase, during which small abusive episodes occur. These episodes gradually escalate over a period of time. The tension continues to build until the second stage the acute battering phase erupts. During this phase, in which most injuries occur, the battering is out of control. Psychological abuse in the form of threats of future harm is also prevalent. The third phase is a calm, loving period during which the batterer is contrite, seeks forgiveness, and promises to refrain *947 from future violence. This phase provides a positive reinforcement for the woman to continue the relationship in the hope that the violent behavior will not recur. The cycle than repeats itself.
"`....
"`In sum, the battered woman feels "trapped in a deadly situation." Caught in this cycle, she sometimes strikes back and kills.'
"Paul C. Giannelli and Edward J. Imwinkelreid, Scientific Evidence, § 9-3, pp. 268-73 (2d. ed.1993)."
740 So.2d at 441-42.
The trial court correctly determined that the evidence failed to establish that the three phases of this cycle existed between Cobb and Barrett. Further, the trial court correctly found that Barrett failed to establish that she was engaged in an intimate or long-term relationship with Cobb. To the contrary, Barrett described Cobb as her "drinking buddy," although she acknowledged that they had had consensual sex on a few occasions. In her statement to the police on the night of the stabbing, Barrett said that Cobb knew that an older man, Roger, was her "number one man." (C. 263.) Thus, the evidence indicated, at most, that Barrett and Cobb were friends who drank excessive amounts of alcohol together and sometimes engaged in consensual sexual activity. Nothing indicated that their relationship established the characteristics of BWS in Barrett, as that syndrome was described by Dr. Shealy and has been described in caselaw. Because BWS was not established by the evidence and was not relevant in this case, the trial court acted well within its discretion to preclude Barrett from presenting testimony about BWS or about her alleged previous abusive relationships.
It is important to note that the trial court permitted Barrett to present evidence about Cobb's alleged prior acts of abuse toward her and to argue that she was acting in self-defense when she stabbed Cobb. The trial court fully instructed the jury on self-defense, and the jury found Barrett guilty of the lesser-included offense of second-degree assault.
The trial court here conducted an extensive hearing on this issue, permitted the parties to present witnesses and to argue their positions fully, and researched the relevant caselaw on BWS. After a thorough consideration of the issue, the trial court determined that the evidence did not support the BWS theory of defense and that the only relevant evidence was evidence about any abuse Barrett had suffered during her interactions with Cobb. Based on our review of the record, we cannot find that the trial court abused its broad discretion in this case. Therefore, Barrett is not entitled to any relief as to this claim of error.
II.
Barrett next argues that the trial court erred when it admitted evidence of prior bad acts after the State failed to provide her with notice of its intention to offer the evidence, as required by Rule 404(b), Ala. R. Evid. Barrett filed a motion seeking notice from the State regarding any prior bad acts it intended to introduce into evidence. (C. 26-27.) During the redirect examination of Cobb, the prosecutor asked about "something unusual" happening approximately two weeks before this incident while Cobb, Barrett, and a neighbor, Cathy McDaniel, were grilling out at Cobb's house. (R. 337.) Barrett objected on grounds that she had not received notice of any prior-bad-act testimony, and the trial court overruled the objection. Cobb then testified that Barrett had stabbed him in the leg with a knife on that occasion.
*948 Although the State concedes that it failed to provide Barrett with notice of its intent to present evidence of prior bad acts, it contends that Barrett failed to show that she was prejudiced by the admission of the testimony. We are not persuaded by the State's bold assertion that Barrett was not prejudiced. "`Evidence of prior bad acts of a criminal defendant is presumptively prejudicial to the defendant. It interjects a collateral issue into the case which may divert the minds of the jury from the main issue.'" Ex parte Casey, 889 So.2d 615, 622 (Ala.2004)(quoting Ex parte Cofer, 440 So.2d 1121, 1124 (Ala.1983)). However, we find no reversible error in this case because the same evidence was admitted at trial without objection from Barrett. "Testimony that may be apparently inadmissible may be rendered innocuous by subsequent or prior lawful testimony to the same effect or from which the same facts can be inferred." Yeomans v. State, 641 So.2d 1269, 1272 (Ala.Crim.App.1993) (citations omitted).
Cobb testified that Cathy McDaniel was present when Barrett stabbed him in the leg. McDaniel testified without objection at trial that she was at Cobb's house a couple of weeks before this incident took place, and that she, Barrett, and Cobb were grilling out. She testified that she heard Cobb and Barrett arguing in the house and that Cobb shouted for her to come inside. McDaniel testified that she hesitated and that Cobb shouted for her again so she went inside. She said that Cobb had his arms around Barrett and that Barrett was holding a pair of scissors. Cobb told her that Barrett was trying to cut him. McDaniel took the scissors from Barrett and hid them.
McDaniel testified that Cobb went inside the house a short time later and she heard him scream for her again. McDaniel continued, without objection, "And it was almost like a frightening scream. You know, `Cathy, come back in here.' And when I went in [Barrett] had a very large kitchen knife in her hand in this position." (R. 355.) Cobb was restraining Barrett by her wrists, McDaniel stated, and he asked McDaniel to take the knife from Barrett. McDaniel testified that she took the knife from Barrett and hid it.
Although Cobb's testimony about Barrett's stabbing him with the knife while grilling out at his house was not admissible because the State did not first notify her of its intent to offer it into evidence, the evidence was rendered innocuous because McDaniel testified in detail and without objection about the incident and because she further testified without objection about an incident involving Barrett threatening Cobb with scissors on the same occasion. Therefore, Barrett is not entitled to any relief on this claim of error.
For the reasons discussed above, we affirm the conviction and sentence imposed in this case.
AFFIRMED.
McMILLAN, P.J., and BASCHAB and SHAW, JJ., concur. WISE, J., not sitting.
|
Order entered October 18, 2012
/
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I
In The
Qtourt of Ztppta1
fittj Ditrict of txa at afta
No. 05-12-00727-CV
KEENAN PIPKINS, Appellant
V.
FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellee
On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. CC-12-02649-B
ORDER
The Court has before it appellants October I. 2012 motion tbr extension of time to file
initial brief The Court GRANTS the motion and ORDERS appellant to file his brief by
October 3 I. 2012. No further extensions will be granted absent a showing of exceptional
circumstances.
MOLLY NCIS
|
REVISED
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 95-50160
_____________
WASHINGTON LEGAL FOUNDATION, WILLIAM R. SUMMERS,
MICHAEL J. MAZZONE,
Plaintiffs-Appellants,
versus
TEXAS EQUAL ACCESS TO JUSTICE FOUNDATION,
W. FRANK NEWTON, CHAIRMAN, TEXAS EQUAL ACCESS
TO JUSTICE FOUNDATION, THOMAS R. PHILLIPS, CHIEF JUSTICE,
RAUL GONZALEZ, JUSTICE, JACK HIGHTOWER, JUSTICE,
NATHAN L. HECHT, JUSTICE, LLOYD A. DOGGETT, JUSTICE,
BOB GAMMAGE, JUSTICE, CRAIG T. ENOCH, JUSTICE, JOHN CORNYN
JUSTICE, ROSE SPECTOR, JUSTICE, SUPREME COURT DFTS,
Defendants-Appellees.
______________________________
Appeal from the United States Court of Appeals
for the Western District of Texas
______________________________
February 14, 1997
On Petitions for Rehearing and Suggestions for Rehearing En Banc
(Opinion September 12, 1996, 5th Cir., 94 F.3d 996)
Before WISDOM, GARWOOD and JONES, Circuit Judges.
PER CURIAM:
The Petitions for Rehearing are DENIED and the court having
been polled at the request of one of the members of the court and
a majority of the judges who are in regular active service not
having voted in favor, (FRAP and Local Rule 35) the Suggestions for
Rehearing En Banc are also DENIED.
1
POLITZ, Chief Judge, KING, WIENER, BENAVIDES, STEWART and PARKER,
Circuit Judges, dissent from the refusal of the court to grant
rehearing en banc.
FORTUNATO P. BENAVIDES, joined by POLITZ, Chief Judge, STEWART and
PARKER, Circuit Judges, dissenting from failure to grant rehearing
en banc:
In the subject case, a panel of this court held that “clients
... have a cognizable property interest in the interest proceeds
that are earned on their deposit in IOLTA accounts.” 94 F.3d 996,
1005 (5th Cir. 1996). In reaching this conclusion, the panel
relied upon the traditional rule applied in Texas that “interest
follows principal,” which recognizes that interest earned on a
deposit belongs to the owner of the principal. Id. at 1000. The
panel also relied upon the Supreme Court’s opinion in Webb’s
Fabulous Pharmacies, Inc. v. Beckwith, which in turn relied upon
the same state law rule to hold that “earnings of a fund are
incidents of ownership of the fund itself and are property just as
the fund itself is property.” Id. at 1002 (quoting 449 U.S. 155,
164, 101 S. Ct. 446, 66 L.Ed.2d 358 (1980)).
This decision is an important one because it contradicts every
other court in the country that has addressed this issue, including
two of our sister circuits and a large number of state appellate
courts.1 Moreover, while purporting to resolve only a threshold
1
See Washington Legal Fdn. v. Mass. Bar Fdn., 993 F.2d 962
(1st Cir. 1993); Cone v. State Bar of Fla., 819 F.2d 1002 (11th
Cir.), cert. denied, 484 U.S. 917, 108 S. Ct. 268, 98 L.Ed.2d 225
(1987); Carroll v. State Bar of Cal., 166 Cal. App. 3d 1193, 213
Cal. Rptr. 305 (Cal. Ct. App. 1984), cert. denied, 474 U.S. 848,
106 S. Ct. 142, 88 L.Ed.2d 118 (1985); Petition by Mass. Bar Ass’n,
478 N.E.2d 715 (Mass. 1985); In re Interest on Lawyers’ Trust
2
issue in this case, the opinion is bound to create difficulties and
confusion for the district court on remand. Finally, this case
poses an unwarranted threat to a primary source of funding for
public interest legal organizations in this circuit at a time when
these organizations are already struggling for their lives
financially. For the foregoing reasons, I believe that this case
is worthy of our en banc consideration and respectfully dissent
from the contrary conclusion of my colleagues.
I.
Texas is one of fifty states that operates an Interest on
Lawyers Trust Account Program (“IOLTA”). The IOLTA concept is
possible because there are situations in which the costs of
maintaining funds held by lawyers for their clients exceed the
interest that a client can earn from a financial institution. When
the amount of a client’s funds to be held is nominal or when a
client’s funds will be held for a brief period of time, the deposit
of a client’s funds acts as an interest-free loan to the bank.
IOLTA is an attempt to transfer this benefit from banks to legal
providers for the indigent. The Texas IOLTA program has been a
resounding success, raising approximately $10 million per year for
legal services organizations in the state.
The plaintiffs brought this action because of their objections
Accounts, 648 S.W.2d 480 (Ark. 1983); In re Adoption of Amendments
to C.P.R. D.R. 9-102 IOLTA, 102 Wash. 2d 1101 (Wash. 1984); In re
Lawyers’ Trust Accounts, 672 P.2d 406 (Utah 1983); In re New
Hampshire Bar Ass’n, 453 A.2d 1258 (N.H. 1982); In re Minnesota
State Bar Ass’n, 332 N.W.2d 151 (Minn. 1982); In re Interest on
Trust Accounts, 402 So.2d 389 (Fla. 1981).
3
to the activities of the recipients of IOLTA funds.2 Washington
Legal Fdn., 94 F.3d at 999. The plaintiffs contend that the IOLTA
program constitutes an unconstitutional taking of property, in
violation of the Fifth Amendment to the United States Constitution,
and that the program violates the First Amendment because it forces
them to support speech they find offensive. The plaintiffs seek an
injunction against further operation of the Texas IOLTA program and
compensation for any interest earned on their deposits into IOLTA
accounts.
The district court concluded that the plaintiffs’
constitutional challenges failed at the threshold because the
plaintiffs could not establish a property interest in the earnings
from funds deposited in IOLTA accounts. The district court,
therefore, granted summary judgment in favor of the defendants. On
appeal, a panel of this court reversed the decision of the district
court and remanded the case for further proceedings.
II.
“The pertinent words of the Fifth Amendment of the
Constitution of the United States are the familiar ones: ‘nor shall
private property be taken for public use, without just
compensation.’” Webb’s Fabulous Pharmacies, 449 U.S. at 160. In
order to prevail on a takings clause claim, a plaintiff must
2
IOLTA rules provide that “[t]he Foundation shall make
grants to organizations ... hav[ing] as a primary purpose the
delivery of legal services to low income persons....” TEXAS RULES
OF COURT—STATE, Rules Governing the Operation of the Texas Equal
Access to Justice Foundation (“IOLTA Rule”), Rule 10 (West 1996).
Eligible recipient organizations “shall use such funds to provide
legal services to individual indigent persons.” IOLTA Rule 11.
4
establish an interest in private property. “Property interests ...
are not created by the Constitution. Rather, they are created and
their dimensions are defined by existing rules or understandings
that stem from an independent source such as state law.” Board of
Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L.Ed.2d 548
(1972). “But a mere unilateral expectation or an abstract need is
not a property interest entitled to protection.” Webb’s Fabulous
Pharmacies, 449 U.S. at 161.
At the outset, it is important to draw a distinction never
addressed by the panel between “accrued interest” and “interest
proceeds.” The panel correctly noted that accrued interest is
always created by funds deposited in a bank. See Washington Legal
Fdn., 94 F.3d at 1003. The IOLTA concept is simply an attempt to
transfer this accrued interest from banks to legal aid
organizations. Interest proceeds, however, are the amount of
accrued interest that remains after deducting the costs of
administering a deposited fund. It is undisputed that a client’s
funds may be deposited in an IOLTA account only if they are
incapable of producing interest proceeds because of the nominal
amount or the short duration of the deposit.3
3
IOLTA Rule 6 provides, in part:
The funds of a particular client are nominal in amount or
held for a short period of time, and thus eligible for
use in the Program, if such funds, considered without
regard to funds of other clients which may be held by the
attorney, ... could not reasonably be expected to earn
interest for the client or if the interest which might be
earned on such funds is not likely to be sufficient to
offset the cost of establishing and maintaining the
account, service charges, accounting costs and tax
5
A careful reading of Webb’s makes clear that the existence of
interest proceeds to which the depositors were entitled was a
prerequisite to the Court’s decision. In reaching its conclusion
that creditors had a cognizable property right to the interest from
an interpleader fund deposited with the court clerk for their
benefit, the Court held that “[t]he earnings of a fund are
incidents of ownership of the fund itself and are property just as
the fund itself is property.” Webb’s Fabulous Pharmacies, 449 U.S.
at 164 (emphasis added). A clear implication of this holding is
that if a fund generates no earnings to which its owner is
entitled, there is no cognizable property interest.
Moreover, when the Court discussed whether the creditors had
a property interest in the principal of the interpleader fund, the
Court recognized that “[i]t is true, of course, that none of the
creditor claimants had any right to the deposited fund until their
claims were recognized and distribution was ordered.” Id. at 161
(citation omitted). In concluding that the creditors did in fact
have a property interest, the Court was careful to note that
“[e]ventually, and inevitably, that fund, less proper charges
authorized by the court, would be distributed among the creditors
reporting costs which would be incurred in attempting to obtain
interest on such funds for the client.
It is worth noting that whether attorneys correctly apply the
requirements of Rule 6 is irrelevant to the constitutional issue
resolved by the panel’s opinion. If attorneys violate IOLTA’s
rules by depositing ineligible funds, it seems that any action a
client might have would be against her attorney. To the extent the
state may be implicated, this is certainly not because IOLTA’s
rules result in the taking of a client’s property, but rather
because IOLTA’s rules were not followed.
6
as their claims were recognized by the court.” Id. This language
makes clear that the Court will not recognize a constitutionally
cognizable interest in the principal of a deposited fund unless and
until it is clear that the fund will be distributed as proceeds to
its beneficiary. Therefore, when the Court later concluded that
earnings from such a fund are property “just as the fund itself is
property,” id. at 164, the Court strongly suggested that interest
proceeds are a necessary prerequisite to a constitutionally
cognizable property interest in the earnings from a deposited fund.
Finally, the Court was careful to limit its holding to cases
in which a separate statute authorizes the state to subtract its
administrative costs. See id. at 164-65. In those cases it is
clear that interest proceeds exist because the costs of
administering the fund have already been subtracted from the
accrued interest generated by the fund. Therefore, it is equally
clear that the fund’s owner has been deprived of a property
interest. In cases where “double tolling” of this sort does not
occur, it cannot be so easily determined whether the fund’s owner
has been deprived of interest proceeds to which she is entitled.
It is clear to me that the Court limited its holding because a
bright-line rule establishing a property interest in this latter
situation would be inappropriate.
Similarly, it follows that the state law rule that “interest
follows principal” controls only when interest is earned on the
principal or, in other words, when interest proceeds are
7
available.4 Consider the fate of the plaintiffs’ accrued interest
in the absence of IOLTA. Because the costs of administering the
deposited funds would exceed any interest earned by a client, the
bank would keep the accrued interest. Are the banks violating the
traditional state law rule? Are the banks somehow converting or
stealing the clients’ property? The answer of course is no—because
the clients had no interest in property to take.
III.
The panel attempted to avoid this reality by claiming that a
bank assigns interest to a depositor in a two-part process. See
Washington Legal Fdn., 94 F.3d at 1003. According to the panel, a
bank attributes interest to an account prior to deducting any of
its fees. Id. From this, the court concluded that “a property
interest attaches the moment that the interest accrues....” Id.
Even if the panel presents an accurate picture of banking
practices, however, those practices are beside the point. For
purposes of a takings clause challenge, a constitutionally
cognizable interest in property does not exist in “earnings” from
a deposited fund unless and until those earnings can be distributed
as proceeds to the fund’s beneficiary. Because IOLTA-eligible
funds would never produce interest proceeds, earnings from such
funds cannot be distributed to the funds’ owners. For this reason,
the panel’s conclusion that a property interest was created after
4
The Webb’s Court’s limitation of its holding would have
been unnecessary if the “interest follows principal” rule results
in the creation of a property interest irrespective of the costs
associated with administering accrued interest.
8
the first step in the bank’s process of assigning interest is
simply wrong.
The fact that interest proceeds are created by the Texas IOLTA
program does not weaken this conclusion. Rather, the simple
recognition that without IOLTA there would be no interest proceeds
compels it. The plaintiffs in this case are not harmed in any way
by the existence of IOLTA and would not be benefitted in any
tangible way by its elimination. I find it both ironic and fatal
to the plaintiffs’ claim that in order to have a property interest
in this case, they must rely on the existence of the program they
seek to eliminate.
In addition to being consistent with a fair interpretation of
the legal authority relied upon by the panel, rejection of the
plaintiffs’ asserted property interest in this case is consistent
with the protections underlying the Takings Clause. The Takings
Clause provides that “private property [shall not] be taken for
public use, without just compensation.” U.S. CONST. amend. V.
While beneficial use of property is certainly not essential to the
existence of a property interest worthy of the protections of this
provision, such an interest does require that the property at issue
have some actual or potential compensable value that could accrue
to the benefit of its owner. In addition, a primary purpose of the
Takings Clause is to protect the investment-backed expectations of
property owners that their property will not be taken for public
9
use without just compensation.5
Unless the owner of a fund deposited in an IOLTA account could
reasonably expect to receive interest proceeds (of any amount) from
her earnings, the client’s “property” does not have any compensable
value. Moreover, the fact that the client does not receive any
interest proceeds from her deposited funds does not interfere with
her investment-backed expectations because she could not have
reasonably expected to receive any net interest when the deposit
was made. In my view, these unusual circumstances prevent the
client from asserting a constitutionally cognizable interest in
property.
This understanding of the Takings Clause is buttressed by the
available remedy for plaintiffs whose property has been
unconstitutionally taken. Such plaintiffs are entitled to just
compensation, i.e., the fair market value of their property.
Because the fair market value of the earnings of IOLTA-eligible
funds is $0, the client would be entitled to nothing. In sum,
applying Fifth Amendment protections to an asserted property
interest that does not have any compensable value is not consistent
with the purposes that underlie the Takings Clause—to compensate a
property owner for the value of her property that was taken for
5
In Lucas v. South Carolina Coastal Council, Justice Scalia
noted that the Court has “acknowledged time and again, ‘[t]he
economic impact of the regulation on the claimant and ... the
extent to which the regulation has interfered with distinct
investment-backed expectations’ are keenly relevant to takings
analysis generally.” 505 U.S. 1003, 1019 n.8, 112 S. Ct. 2886, 120
L.Ed.2d 798 (1992) (quoting Pennsylvania Cent. Transp. Co. v. City
of New York, 438 U.S. 104, 124, 98 S. Ct. 607, 54 L.Ed.2d 477
(1978)).
10
public use.
IV.
In addition to creating a circuit split, misinterpreting the
legal authority upon which it relied, and applying a takings clause
analysis to governmental action that does not implicate relevant
fifth amendment values, the panel’s analysis can only create
confusion for the district court on remand. The Supreme Court’s
cases dealing with the Takings Clause fit roughly into the two
categories of regulatory takings and per se takings. See JOHN E.
NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 11.12, at 462-66 (5th ed.
1995). Regulatory takings involve governmental regulations that
impinge upon a property owner’s economic interests. In regulatory
takings cases, the Court has adopted a balancing test whereby it
weighs the economic impact of the regulation on the property owner
suffering the loss against the public benefits of the regulation.
See, e.g., Pennsylvania Cent. Transp. Co., 438 U.S. at 124. Viewed
as a regulatory takings case, IOLTA clearly passes muster because
the clients have suffered no economic loss and the public has
greatly benefitted. See Massachusetts Bar Fdn., 993 F.2d at 976
(noting that Massachusetts’s IOLTA program has no economic impact
on clients and does not interfere with their investment-backed
expectations).
Per se takings involve what might be considered a “literal”
taking of property. The Court adopts a per se approach and finds
a compensable taking of property without a case-by-case inquiry.
See NOWAK & ROTUNDA, supra, § 11.12, at 463-64. The Court has
11
adopted a per se approach if a regulation deprives an owner of the
entire value of her property. Id. (citing Lucas, 505 U.S. at
1003). The Court has also adopted a per se approach if the
governmental action results in physical occupation of property or
a permanent change in rights of ownership. Id. at 464 (citing
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.
Ct. 3164, 73 L.Ed.2d 868 (1982)). Viewed as a per se takings case
whereby the clients have a property interest that is literally
appropriated by the state, IOLTA is almost certainly
unconstitutional.
Webb’s was clearly a per se takings case. The Court’s entire
opinion is dedicated to determining that the creditors had a
property right in the principal and interest proceeds of the
subject interpleader fund. See 449 U.S. at 156-64. Because this
property was appropriated by the state for its own purposes, a
literal taking of the property occurred. This latter conclusion
required no separate analysis by the Court and accordingly was
given none. See id. at 164-65.
The panel’s opinion in the instant case gave no explicit
indication whether the court viewed the case as a regulatory or per
se takings case. If the panel viewed this case as one involving a
regulatory taking, it should have made this clear in its remand
order and should not have relied on Webb’s. On the other hand, if
the panel regarded the case as one involving a per se taking, it
should not have bifurcated the inquiries regarding whether the
clients had a property right and whether a taking of that property
12
occurred. An affirmative answer to the second question would
necessarily follow from an affirmative answer to the first.
The panel’s opinion implicitly indicated that it left open the
question of whether the case should be viewed as a regulatory
takings case or as a per se takings case. The panel noted that “to
prevail on their taking claim, the plaintiffs must demonstrate that
the taking was against the will of the property owner.” Washington
Legal Fdn., 94 F.3d at 1004. In addition, the court cited Yee v.
City of Escondido, 503 U.S. 519, 539, 112 S. Ct. 1522, 118 L.Ed.2d
153 (1992), which held that “because [a city’s] rent control
ordinance [did] not compel a landowner to suffer the physical
occupation of his property, it [did] not effect a per se
taking....” While the applicability of this decision to the
context of deposited funds is not clear, it does leave open the
possibility that a per se taking did not occur in the subject case
because clients voluntarily deposit their money with an attorney
(who, in turn, deposits eligible funds into an IOLTA account). The
fact remains, however, that Webb’s, the principal case relied upon
by the panel, was a per se takings case. Because I abide by my
concerns regarding the panel’s conclusion that the plaintiffs
asserted a constitutionally cognizable property interest in the
accrued interest from IOLTA deposits, I would not burden the
district court with this confusion.
V.
The issue addressed by the panel in the subject case raises
very difficult and interesting conceptual issues regarding the
13
proper definition of property for fifth amendment purposes. Three
judges in this circuit have concluded that the plaintiffs have
asserted a constitutionally cognizable property interest in the
earnings from IOLTA-eligible funds, despite the inability of such
funds to produce interest proceeds. I disagree with that
conclusion, as has every other court to have addressed the issue.
Moreover, the panel’s decision on this “threshold issue” will have
important implications for the disposition of this case on remand
and, ultimately, for the constitutionality of the IOLTA programs in
Louisiana, Mississippi, and Texas. For these reasons, I believe
that the intellectual efforts of our court’s entire membership
would have benefitted the decision making process in this clearly
important case. I regret my colleagues’ decision to deny rehearing
en banc and respectfully dissent.
14
|
FILED
United States Court of Appeals
Tenth Circuit
January 10, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-6061
SHAN GACHOT,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CR-06-178-01-RAW)
Submitted on the briefs: *
Linda A. Epperley, Office of the United States Attorney, Muskogee, Oklahoma
for the Plaintiff–Appellee.
Robert W. Buchholz, Robert W. Buchholz, LLC, Addison, Texas for the
Defendant–Appellant.
Before TACHA, MCKAY, and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
*
At the parties’ request, the case is unanimously ordered submitted without
oral argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).
Shan Gachot appeals his conviction following entry of a guilty plea to
operating an illegal gambling business in violation of 18 U.S.C. § 1955. He
contends that the district court lacked jurisdiction over two counts in an original
indictment, later superceded by an information alleging a different crime. We
consider two issues: May Gachot raise a jurisdictional challenge to the dismissed
indictment, and did the district court have jurisdiction over the crime to which
Gachot pleaded guilty. We conclude that the first issue is moot and that the
second lacks merit. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM
Gachot’s conviction.
On August 1, 2006, a federal grand jury indicted Gachot, a member of the
Kiowa Indian tribe, on three separate counts stemming from his involvement in
the operation of a cockfighting facility within Indian Country land in Caddo
County, Oklahoma. The first two counts of the indictment were based on
Oklahoma state law, which criminalizes the keeping of a place of cockfighting,
and servicing or facilitating a cockfight. See Okla. Stat. tit. 21, §§ 1692.3-
1692.4. According to the indictment, the federal government asserted the
authority to enforce these crimes in Indian Country via the Indian Country Crimes
Act (“ICCA”), 18 U.S.C. §§ 1151 & 1152, and the Assimilative Crimes Act
-2-
(“ACA”), 18 U.S.C. § 13. 1 The third count of the indictment was based solely on
federal law and alleged that Gachot had sponsored or exhibited an animal in an
animal fighting venture. See 7 U.S.C. § 2156.
After pleading not guilty to all counts, Gachot moved to dismiss the
indictment for lack of jurisdiction. Citing the “Indian against Indian exception”
to the ICCA, 18 U.S.C. § 1152, Gachot contended that the government cannot
prosecute victimless crimes committed by Indians in Indian Country, and that the
district court thus lacked jurisdiction. After a hearing on the issue, the district
court rejected Gachot’s argument and denied the motion to dismiss. Five days
later, Gachot and the government reached a plea agreement. Pursuant to the
agreement, the government dismissed the original indictment in exchange for
Gachot’s plea of guilty to a one count information alleging that he had operated
an illegal gambling business in violation of 18 U.S.C. § 1955. Based on the plea
agreement, the information was filed, Gachot pleaded guilty to the information,
and the district court sentenced Gachot to one year of probation. Gachot brings
this timely appeal. 2
1
The ICCA extends federal criminal law to Indian territories, and the ACA
assimilates state criminal law into federal law for the purposes of federal enclaves
and territories. See 18 U.S.C. §§ 13(a) & 1152.
2
Gachot filed his notice of appeal on February 28, 2007, which was after
the district court’s announcement of the sentence but fifteen days before its entry
of judgment. Despite his premature filing, however, we have jurisdiction to hear
the case. See Fed. R. App. P. 4(b) (“A notice of appeal filed after the court
announces a decision, sentence, or order—but before the entry of a judgment or
-3-
Gachot presents only one argument: The district court lacked jurisdiction
over the original indictment. To this end, Gachot discusses at length the details
and history of Indian sovereignty and the ICCA. He raises, however, no
arguments directly related to the district court’s jurisdiction pursuant to 18 U.S.C.
§ 1955, the statute under which he was actually convicted. Because the
indictment that Gachot challenges was dismissed at the time Gachot entered his
guilty plea, his arguments as to the original indictment are entirely moot. 3 See
United States v. Powers, 168 F.3d 943, 948 (7th Cir. 1999) (refusing to consider
arguments related to a superceded indictment); United States v. Reed, 167 F.3d
984, 994 (6th Cir. 1999) (holding that the dismissal of contested counts in an
indictment mooted the defendants’ challenges to them); cf. Menna v. New York,
423 U.S. 61, 63 (1975) (“Where the State is precluded . . . from haling a
defendant into court on a charge, federal law requires that a conviction on that
charge be set aside even if the conviction was entered pursuant to a counseled
plea of guilty.”) (emphasis added).
order—is treated as filed on the date of and after the entry.”); see also United
States v. Green, 847 F.3d 622 (10th Cir. 1988) (en banc) (holding that a notice of
appeal filed before final judgment was entered in a criminal case is sufficient to
confer jurisdiction in this court).
3
We do not decide here whether Gachot could have preserved his challenge
to the district court’s jurisdictional ruling by entering a conditional guilty plea
pursuant to Fed. R. Crim. P. 11(a)(2).
-4-
We recognize, of course, that Gachot cannot waive a challenge to the
district court’s jurisdiction over a crime to which he actually pleaded. See United
States v. Broce, 488 U.S. 563, 569 (1989). Thus, although Gachot does not
present arguments regarding § 1955, we remain mindful of our “oblig[ation] to
inquire sua sponte whenever a doubt arises as to the existence of federal
jurisdiction.” Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977).
We have no such doubt. Section 1955 is a nationally applicable federal criminal
statute predicated on the Commerce Clause, see United States v. Boyd, 149 F.3d
1062, 1065-66 (10th Cir. 1998), and, unlike the ICCA, it contains no exceptions
related to crimes committed in Indian Country.
Because the “[ICCA] and its exceptions do not extend or restrict the
application of general federal criminal statutes to Indian reservations,” Gachot’s
arguments regarding the ICCA, even if valid, have no bearing on the jurisdiction
of a federal court under § 1955. United States v. Drapeau, 414 F.3d 869, 878 (8th
Cir. 2005); see also United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007)
(“[B]y virtue of decisional law, federal court jurisdiction extends to intra-Indian
violations of federal criminal laws of general, nationwide applicability.”); United
States v. Barquin, 799 F.2d 619, 621 (10th Cir. 1986) (accepting that “tribal
members are subject to general federal criminal statutes unless a particular Indian
right or policy is infringed by enforcement of the law”); United States v. Burns,
725 F. Supp. 116, 121 (N.D.N.Y. 1989) (section 1955 applies to Indian
-5-
reservations “of [its] own accord”); United States v. Menominee Indian Tribe of
Wis., 694 F. Supp. 1373, 1375 (E.D. Wis. 1988) (section 1955 applies to Indian
Country even though it incorporates state law by reference).
AFFIRMED.
-6-
|
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-10-2006
US Small Bus Admn v. Chimicles
Precedential or Non-Precedential: Precedential
Docket No. 04-4083
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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1005
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4083
THE U.S. SMALL BUSINESS ADMINISTRATION,
as Receiver for Acorn Technology Fund, L.P.
v.
PETER E. CHIMICLES,
Appellant
(D.C. Civil No. 03-cv-05987)
No. 05-1330
THE U.S. SMALL BUSINESS ADMINISTRATION,
as Receiver for Acorn Technology Fund, L.P.
v.
LEONARD BARRACK;
LYNNE BARRACK,
Appellants
(D.C. Civil No. 03-cv-05992)
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Judge: Hon. James T. Giles
1
Argued April 18, 2006
Before: SLOVITER, AMBRO and MICHEL*, Circuit Judges
(Filed: May 10, 2006)
Michael D. Gottsch (Argued)
M. Katherine Meermans
Chimicles & Tikellis LLP
One Haverford Centre
361 West Lancaster Avenue
Haverford, PA 19041
Counsel for Appellant Peter E. Chimicles
Eric Kraeutler
G. Jeffrey Boujoukos (Argued)
Catharine E. Gillespie
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
Counsel for Appellants Leonard and Lynne Barrack
Patrick L. Meehan
United States Attorney
Virginia A. Gibson
Assistant United States Attorney
Paul G. Shapiro (Argued)
Assistant United States Attorney
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
*
Hon. Paul R. Michel, Chief Judge of the United States
Court of Appeals for the Federal Circuit, sitting by designation.
2
Patrick K. McCoyd, Esq.
Tracey r. Seraydarian, Esq.
Post & Schell
1600 John F. Kennedy Boulevard
Four Penn Center, 13th Floor
Philadelphia, PA 19103
Thomas W. Rigby, Esq.
Small Business Administration
Office of General Counsel/Litigation
409 3rd Street, SW
7th Floor
Washington, DC 20416
Counsel for Appellee United States Small Business
Administration
OPINION OF THE COURT
MICHEL, Circuit Judge.
In these consolidated cases, Peter E. Chimicles appeals
from an order of the United States District Court for the Eastern
District of Pennsylvania, denying his motion to stay proceedings
pending mandatory arbitration; Leonard and Lynn Barrack
appeal a similar order. Because we agree that these contractual
disputes, each concerning an agreement without an arbitration
provision, were not subject to an arbitration provision contained
in a separate (but related) agreement, we affirm the district
court’s orders in both cases.
I. Background
This appeal concerns only two of the myriad of cases that
revolve around Acorn Technology Fund, LP (“Acorn”), a New
Jersey limited partnership founded in 1997. Acorn’s general
partner was Acorn Technology Partners, LLC, a New Jersey
limited liability corporation run by John B. Torkelsen.
3
Appellants Chimicles and the Barracks were private limited
partners in this venture. They both executed (1) a partnership
agreement with Torkelsen acting on behalf of the general partner
and (2) a subscription agreement with Acorn. In the latter, each
agreed to make capital contributions to the partnership in
exchange for a limited partnership interest.
Acorn was licensed by the United States Small Business
Administration (“SBA”) as a Small Business Investment
Company (“SBIC”) pursuant to the Small Business Investment
Act of 1958 (“SBIA”), 15 U.S.C. §§ 661-697g. Once licensed,
an SBIC can receive as much as $2 in federal matching funds for
each private dollar it invests in qualified small businesses. 15
U.S.C. § 683. It must, however, conduct its activities according
to the SBIA and its accompanying regulations. 13 C.F.R. §
107.500.
On January 7, 2003, the United States filed an action
against Acorn, alleging various violations of the SBIA and
seeking appointment of a receiver. On January 17, 2003, the
SBA was appointed as receiver and, as such, was authorized to
defend and pursue all “claims and causes of action available to
Acorn, as warranted.” The district court also stayed all civil
litigation “involving Acorn, the Receiver, or any of Acorn’s past
or present officers, directors, managers, agents or general or
limited partners,” unless specifically permitted by the court.
Order for Operating Receivership, United States v. Acorn
Technology Fund, L.P., No. 03-cv-0070 (E.D. Pa. Jan. 17,
2003). The instant cases, which were allowed to proceed despite
the stay, involve the SBA’s attempts to marshal Acorn’s assets
by making demands upon the limited partners for outstanding
amounts owed on their investor subscription agreements.
A. Chimicles
Pursuant to an earlier agreement not relevant to this
dispute, Chimicles subscribed to a $250,000 commitment as a
private limited partner. On September 15, 2000, he agreed to an
additional $65,000, bringing his total commitment to $315,000.
It is undisputed that Chimicles fulfilled his $250,000 obligation
but did not pay the additional $65,000, although he asserts that
Torkelsen released him from this latter commitment.
4
By letter dated June 12, 2003, the SBA made a written
demand upon Chimicles for the unpaid balance. When he
refused to honor his subscription commitment, the SBA filed a
complaint against him, alleging breach of his subscription
agreement with Acorn. On January16, 2004, Chimicles filed a
motion to dismiss for lack of personal jurisdiction or, in the
alternative, to stay the case pending mandatory arbitration. On
September 21, 2004, the motion was denied in its entirety. A
timely appeal followed.1
B. The Barracks
On April 7, 1998, the Barracks executed a subscription
agreement for a $1 million limited partnership interest in Acorn.
They agreed to make an initial payment of $250,000 and three
further payments of $250,000 over the next three years. On
September 15, 2000, the Barracks agreed to two additional
payments of $250,000. The Barracks have paid only $750,000
of their $1.5 million commitment, but they assert that Torkelsen
encouraged them to invest by waiving in advance any penalties
for failing to fulfill their subscription agreements.
By letter dated June 5, 2003, the SBA made a written
demand upon the Barracks for the remaining $750,000. When
they refused, the SBA sued the Barracks, alleging a breach of
their subscription agreement. On September 22, 2004, the
Barracks filed a motion to dismiss, or, in the alternative, to stay
the case pending mandatory arbitration. Their motion was
denied on January 5, 2005. Like Chimicles, the Barracks
appealed.
* * *
These appeals were consolidated by order dated February
7, 2005.
II. Jurisdiction and Standard of Review
1
Chimicles does not appeal the portion of the district
court’s order denying his motion to dismiss for lack of personal
jurisdiction.
5
We have subject matter jurisdiction pursuant to 9 U.S.C.
§ 16(a). We exercise plenary review over legal questions
concerning the applicability and scope of an arbitration
agreement. CTF Hotel Holdings, Inc. v. Marriott Int’l, Inc., 381
F.3d 131, 137 n.10 (3d Cir. 2004); Harris v. Green Tree Fin.
Corp., 183 F.3d 173, 176 (3d Cir. 1999). Despite the liberal
policy in favor of enforcing arbitration agreements under the
Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., a party
cannot be forced to arbitrate unless “that party has entered into a
written agreement to arbitrate that covers the dispute.” Bel Ray
Co., Inc. v. Chemrite Ltd., 181 F.3d 435, 440 (3d Cir. 1999); 9
U.S.C. § 2.
III. Discussion
The limited question before us is whether SBA’s attempts
to enforce the subscription agreements are subject to mandatory
arbitration. Appellants make similar arguments. Essentially,
both concede that the subscription agreements do not themselves
provide for mandatory arbitration, but argue that the partnership
agreements contain a valid (and broad) arbitration provision
which applies to these disputes because the two agreements are
sufficiently related. Specifically, section 1.1 of the subscription
agreement requires that investors agree to make capital
contributions “in accordance with the terms and conditions
described herein and in the Partnership Agreement, and to be
bound by all of the terms and conditions of the Partnership
Agreement.”
If arbitration is required here, it must be imported from
section 13.10 of the partnership agreement. This provision
states:
The General Partner and the Private Limited
Partners, their successors, assigns, and/or their officers,
directors, attorneys, shareholders, members or agents
hereby agree that any and all controversies, claims or
disputes arising out of or relating to this Agreement, the
breach thereof, or the operation of the Partnership shall be
settled by arbitration in Princeton, New Jersey, in
accordance with the then prevailing commercial
6
arbitration rules of the American Arbitration Association.
The Parties agree to abide by all decisions and awards
rendered by the arbitrator, and such decisions and awards
shall be final and conclusive and may be entered in any
court having jurisdiction thereof as a basis of judgment.
The choice of venue clause in section 13.7 further provides that
an “Action to enforce any provision of this Agreement or any
action brought by the Partners against the General Partner or the
Partnership shall be brought through arbitration in New Jersey,
pursuant to Section 13.10 of this Agreement.”
These arbitration provisions are noteworthy in two
respects. First, the agreement to arbitrate was made between the
general partner and the private limited partners — i.e., the
signatories to the partnership agreement. Second, section 13.7
emphasizes that the arbitration clause was intended to apply to
(1) actions to enforce provisions of the partnership agreement
and (2) actions brought by the private limited partners.
Acorn, however, was not a private limited partner, nor is
the SBA as receiver acting as a private limited partner. Even
assuming arguendo that section 1.1 of the subscription
agreement incorporates by reference the terms and conditions of
the partnership agreement, the arbitration provision does not
apply to an action brought by Acorn (or SBA as receiver).
Indeed, section 1.1 merely required the investors to agree “to be
bound by all of the terms and conditions of the Partnership
Agreement.”
Regardless, the district court correctly found that the
subscription agreements and the partnership agreements are
separate, fully-integrated contracts. Section 3.5 of the
subscription agreements provides that “[t]his instrument contains
the entire agreement of the parties, and there are no
representations, covenants or other agreements except as stated
or referred to herein.” Likewise, section 13.6 of the partnership
agreements provides that “[t]his Agreement constitutes the
complete and exclusive statement of the agreement between the
Partners.”
7
To support their argument for importing an arbitration
clause from a related agreement, appellants rely heavily upon
Brayman Construction Corporation v. Home Insurance
Company, 319 F.3d 622 (3d Cir. 2003). This case is
distinguishable. In Brayman, a workers’ compensation
insurance policy was later supplemented by a retrospective
premium agreement containing an arbitration clause that applied
to any dispute that arose “between the Company and Insured.”
Id. at 623. Both contracts were signed by the same two parties.
Neither attempted to enforce the arbitration provision against a
third party.
Likewise, the decisions cited by appellants from other
circuits enforced the arbitration clause against a party that had
signed the agreement. See Nat’l Am. Ins. Co. v. Score
Reinsurance Co., 362 F.3d 1288, 1289 (10th Cir. 2004); Pers.
Sec. & Safety Sys. Inc. v. Motorola, Inc., 297 F.3d 388, 392 (5th
Cir. 2002). In other words, the issue in those cases was the
scope of arbitrable subject matter covered by the agreement, not
whether both parties had agreed to arbitrate.
Finally, we note that even if we were to assume that
disputes arising under the subscription agreement were
otherwise subject to mandatory arbitration, appellants were
unable to explain at oral argument why section 5.1.2 of the
partnership agreement does not negate any obligation to
arbitrate. Nor did Chimicles’ post-argument memorandum
provide a satisfactory response. Section 5.1.2 provides as
follows:
Notwithstanding any provision in the Agreement to the
contrary (except as expressly provided in this Section
5.1.2), in the event that the Partnership is subject to
restricted operations (as such term is used in the SBIC
Act)2 and prior to the liquidation of the Partnership the
2
The term “Restricted Operation Conditions” is defined at
13 C.F.R. § 107.1820(e) and applies when, inter alia, the “SBA
determines that you have failed to comply with one or more of the
substantive provisions of the Act.” 13 C.F.R. § 107.1820(e)(7).
The occurrence of one of the enumerated “Restricted Operation
8
SBA requires the General Partner and the Private Limited
Partners to contribute any amount of their respective
Commitments not previously contributed to the
Partnership, the obligation to make such contributions
shall not be subject to any conditions set forth in the
Agreement other than limitations on the amount of capital
which a Partner is obligated to contribute (a) within any
specified time period or (b) prior to any specified date.
Now that the SBA has been appointed as receiver and is
attempting to marshal Acorn’s assets, appellants’ obligations to
make contributions are no longer “subject to any conditions set
forth in the Agreement,” which we hold includes the arbitration
provision set forth in section 13.10. Thus, even if imported into
the subscription agreements, the arbitration provision of the
partnership agreements would not apply to these disputes over
unpaid investor commitments.
IV. Conclusion
For the aforementioned reasons, we affirm the district
court’s rulings that these disputes were not subject to mandatory
arbitration.
______________________
Conditions” authorizes the SBA to avail itself of any of the
remedies listed at 13 C.F.R. § 107.1820(f).
9
|
Filed 1/13/15 P. v. Williams CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064321
Plaintiff and Respondent,
v. (Super. Ct. No. SCD109253)
DARRYLE WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton and Warren Williams, Deputy Attorneys General, for Plaintiff and
Respondent.
In 1995 Darryle Williams was convicted of two offenses and, because the court
found true the allegations that Williams had been convicted of two prior offenses that
were serious or violent felony strikes within the meaning of Penal Code1 sections 667,
subdivisions (b) through (i), and 1170.12, the court sentenced Williams to an
indeterminate term of 25 years to life, plus one year for each of his prison prior
allegations found true. In 2013 Williams moved to recall his sentence pursuant to the
recently enacted Three Strikes Reform Act of 2012 (§ 1170.126 et seq., hereafter TSRA).
The court denied his petition, and this appeal followed.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Current Offenses and Sentence
In 1995 Williams was convicted of one count of being a felon in possession of a
firearm (former § 12021, subd. (a)(1), see now § 29800, subd. (a)(1))2 and one count of
drawing or exhibiting a firearm (§ 417, subd. (a)(2)). In a bifurcated proceeding, the
court found true the allegations Williams had been convicted of three offenses for which
he served a term in state prison within the meaning of section 667.5, subdivision (b), and
that two of those offenses constituted serious or violent felony strikes within the meaning
of sections 667, subdivisions (b) through (i) and 1170.12. The court sentenced Williams
to an indeterminate term of 25 years to life, plus one year for each of his prior prison term
allegations found true.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 For ease of reference, we hereafter refer to a conviction for felon in possession of
a firearm as a conviction under section 12021, subdivision (a).
2
B. The Recall Petition
In 2012 the court provided Williams with appointed counsel to assist him with
possible further proceedings for recalling his sentence under the TSRA. However,
Williams moved under People v. Marsden (1970) 2 Cal.3d 118 for new counsel,
apparently because he was dissatisfied with his appointed counsel's view that Williams
did not meet the criteria for filing a petition for recall. The court denied the Marsden
motion after taking judicial notice that Williams's current conviction rendered him
ineligible for recall of his sentence because he used or was armed with a firearm in
connection with that 1995 conviction, and therefore appointed counsel was not
ineffective in not filing a petition for recall.
In 2013, new counsel filed a petition seeking to recall Williams's sentence under
the TSRA. The petition argued his current offense (the 1995 conviction) did not bar him
from relief because (1) he was convicted of possessing a firearm and the TSRA
disqualifies an inmate from a recall only if he was "armed with" or "used" a firearm in
committing the current offense, and (2) he was convicted of the stand-alone offense of
possession of a weapon and the TSRA should be construed to disqualify an inmate only
when the current offense is a separate (or tethering) offense the inmate committed while
armed with or using the firearm. The petition argued that, because neither his current
offense nor his prior strike convictions disqualified him from resentencing under the
TSRA, the court should recall his sentence, find he was not currently dangerous, and
resentence Williams under the TSRA.
3
The People opposed the petition to recall Williams's sentence, arguing he had not
prima facie shown he was qualified under the TSRA to be considered for resentencing.
The People argued that one of Williams prior strikes, a 1989 conviction for assault with
intent to commit rape (the prior offense), was a disqualifying offense under the provisions
of the TSRA because it was a sexually violent offense within the meaning of the TSRA.
The People also noted, because the prior strike conviction was itself a disqualifying
offense, it was unnecessary to elaborate on their opposition to his claim that the current
offense was not a disqualifying offense.
The court, citing and agreeing with the People's claim that one of Williams's prior
strikes was a disqualifying offense, denied the petition. Williams timely appealed.
C. The Competing Appellate Arguments
On appeal, and in response to this court's request for supplemental briefing,3
Williams asserts the court erred when it denied his petition without holding a hearing on
his current dangerousness because there was no evidentiary basis for concluding he was
disqualified from consideration for resentencing under the TSRA. He argues there was
no evidentiary basis for concluding his prior offense of assault with intent to commit rape
was committed by force or violence for purposes of the type of prior offense that
disqualifies an inmate from resentencing under the TSRA. He also contends the court
3 Williams's counsel originally filed a brief in accordance with the procedures
outlined in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386
U.S. 738 and cited, as a possible claim, whether Williams was disqualified from relief
under the TSRA because of his 1989 conviction for assault with intent to commit rape,
and specifically whether that crime qualified as a sexually violent offense as defined by
Welfare and Institutions Code section 6600, subdivision (b), considering the entire record
of conviction.
4
erred because Williams was not present at the hearing on whether he was disqualified,
and he argues he had a due process right to be present at the hearing. He contends these
errors were prejudicial under Chapman v. California (1967) 386 U.S. 18, or even under
the less rigorous standard of People v. Watson (1956) 46 Cal.2d 818, and therefore argues
the matter must be remanded for a hearing, at which he has the right to be present, to
determine whether he was disqualified from resentencing under the TSRA based on his
prior offense of assault with intent to commit rape.
The People argue the court did not err when it found Williams's prior offense
constituted a disqualifying offense under the TSRA, and did not err when it held the
initial hearing on his petition without affording Williams the right to be present. More
importantly, the People argue that even if either (or both) of these constituted error, the
error was harmless even under the more rigorous harmless-beyond-a-reasonable-doubt
standard of Chapman because, under this court's recent decision in People v. White
(2014) 223 Cal.App.4th 512 (White), Williams's current conviction disqualified him from
recalling his sentence under the TSRA because he was convicted of possessing a firearm
and the record of conviction showed he was actually armed with a firearm when he
committed that offense.
II
ANALYSIS
A. The TSRA Framework
"On November 6, 2012, the voters approved Proposition 36, the Three Strikes
Reform Act of 2012, which amended sections 667 and 1170.12 and added section
5
1170.126 (hereafter the Act). The Act changes the requirements for sentencing a third
strike offender to an indeterminate term of 25 years to life imprisonment. Under the
original version of the three strikes law a recidivist with two or more prior strikes who is
convicted of any new felony is subject to an indeterminate life sentence. The Act diluted
the three strikes law by reserving the life sentence for cases where the current crime is a
serious or violent felony or the prosecution has pled and proved an enumerated
disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike
offender." (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)
In addition to reforming three strikes sentencing for defendants convicted after the
effective date of the TSRA, the TSRA also added section 1170.126 to provide an avenue
for retroactive reform of existing three strikes sentences imposed before the effective date
of the TSRA. Section 1170.126 "provides a means whereby, under three specified
eligibility criteria and subject to certain disqualifying exceptions or exclusions, a prisoner
currently serving a sentence of 25 years to life under the pre-Proposition 36 version of the
Three Strikes law for a third felony conviction that was not a serious or violent felony
may be eligible for resentencing as if he or she only had one prior serious or violent
felony conviction." (White, supra, 223 Cal.App.4th at p. 517.)
Accordingly, the retroactive aspect of the TSRA permits an inmate to petition the
superior court for recall of his or her sentence and for resentencing as a second strike
offender. (§ 1170.126, subd. (b).) The inmate's petition must show he or she is prima
facie eligible for recall of sentence and resentencing by showing: (1) the inmate is
currently serving an indeterminate life sentence imposed under the pre-TSRA three
6
strikes law for a commitment offense or offenses that are not serious and/or violent
felonies within the meaning of section 667, subdivision (c), or section 1192.7,
subdivision (c); (2) the prisoner's current sentence was not imposed for any offense set
forth in section 667, subdivision (e)(2)(C)(i) through (iii), or section 1170.12, subdivision
(c)(2)(C)(i) through (iii); and (3) the prisoner has no prior convictions for any offense set
forth in section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision
(c)(2)(C)(iv). (§ 1170.126, subd. (e).) However, even if the inmate presents a prima
facie case demonstrating he or she is otherwise eligible for resentencing, the court may,
in its discretion, deny the petition if it concludes resentencing "would pose an
unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)
It is reversible error for a trial court to grant a petition and to resentence an inmate
under the provisions of section 1170.126 when the record of conviction for the current
offense demonstrates, as a matter of law, that the inmate is statutorily ineligible for
resentencing. (See, e.g., People v. Brimmer (2014) 230 Cal.App.4th 782, 797-801, 805-
806 [reversing order granting petition and resentencing inmate where record of
conviction established inmate was convicted of possession of a firearm by a felon and
was armed with the firearm during the commission of that offense and therefore the
armed-with-a-firearm exclusion applied]; accord, People v. Superior Court (Martinez)
(2014) 225 Cal.App.4th 979, 989 [granting petition for writ of mandate where trial court
erred as a matter of law in finding inmate qualified for resentencing because, where
inmate does not satisfy eligibility criteria, trial court has "no power to do anything but
deny the petition for recall of sentence"].)
7
B. Analysis
An inmate is statutorily ineligible for resentencing under section 1170.126 if the
inmate was "armed with a firearm," within the meaning of the exclusion set forth in
section 667, subdivision (e)(2)(C)(iii), or section 1170.12, subdivision (c)(2)(C)(iii),
when he or she committed the current offense. In a number of cases, the earliest of which
appears to be this court's decision in White, supra, 223 Cal.App.4th 512, the courts have
concluded that when, as here, the inmate's current three-strike sentence was based on his
or her conviction for being a felon in possession of a firearm under former section 12021,
subdivision (a), the inmate is ineligible for resentencing if the record of conviction also
shows the inmate "not only had a firearm 'in [his] possession or under [his] custody or
control' [but that] he also was personally armed with the firearm on that date because he
was carrying—and, thus, had ' "ready access" ' [citation] to—that firearm." (White, at
p. 525; accord, People v. Elder (2014) 227 Cal.App.4th 1308, 1312-1317; People v.
Brimmer, supra, 230 Cal.App.4th at pp. 797-801, 805-806.)
The record of conviction here, which includes this court's opinion affirming
Williams's 1995 convictions (see, e.g., People v. Guilford (2014) 228 Cal.App.4th 651,
659-662 [court may use prior opinion to show facts of underlying conviction establishes
ineligibility under TSRA]), supports the ruling that Williams was ineligible for
resentencing.4 The record of conviction shows that Williams's conviction for being a
4 It appears, from the trial court's ruling on his Marsden motion, that it believed
Williams's 1995 conviction rendered him ineligible for recall of his sentence because he
used or was armed with a firearm in connection with his 1995 conviction, even though
the trial court ultimately cited a different reason (i.e. that one of his prior strike
8
felon in possession of a firearm arose when he was involved in an automobile accident
with a woman. When the woman did not stop, Williams pursued her in his car until she
stopped at a red light. Williams then got out of his car, knocked hard on her window and,
when her passenger asked Williams what he was doing, he opened his jacket and
displayed the firearm. When the woman drove away, Williams followed them in his car
until she reached her apartment complex, where he again confronted her and displayed
the firearm to her as well as pointed it at a neighbor standing nearby. (People v. Williams
(Oct. 1, 1997, D024990) [nonpub. opn.], at pp. 3-5.) Thus, the record of conviction
shows Williams's conviction for being a felon in possession of a firearm involved an
offense in which Williams was (at a minimum)5 personally "armed with" the firearm in
connection with that offense because "he was carrying—and, thus, had ' "ready access" '
[citation] to—that firearm." (White, supra, 223 Cal.App.4th at p. 525.) Under analogous
convictions was a disqualifying offense) in its order finding Williams was ineligible.
Because, as an appellate court, "we review the correctness of the trial court's ruling, not
the reasons underlying it" (People v. Koontz (2002) 27 Cal.4th 1041, 1075-1076, fn. 4;
accord, Punsly v. Ho (2003) 105 Cal.App.4th 102, 113 ["A judgment or order correct in
theory will be affirmed, even where the trial court's given reasoning is erroneous."]), we
affirm the ruling here because Williams was ineligible based on the facts of his current
offense, and it is unnecessary to decide whether he was also ineligible for resentencing
based on one of prior offenses.
5 Indeed, the record of conviction also shows the jury found, beyond a reasonable
doubt, Williams also used the firearm on that date, because the jury convicted him of
violating section 417, subdivision (a)(2), which required the jury to find Williams had in
fact used the firearm by drawing or exhibiting it in a rude, angry or threatening manner.
(Cf. People v. Quinones (2014) 228 Cal.App.4th 1040, 1045 [affirming determination
the defendant was ineligible for resentencing based on armed with a firearm criteria
because "[h]ere we have an even stronger case than White; not only do the facts show
defendant was armed with a firearm, but the jury also found those facts beyond a
reasonable doubt"].)
9
circumstances, the court in People v. Osuna (2014) 225 Cal.App.4th 1020 adhered to the
approach adopted in White and concluded that, when the inmate's current offense was
being a felon in possession of a firearm, "the literal language of the [TSRA] disqualifies
an inmate from resentencing if he or she was armed with a firearm during the unlawful
possession of that firearm" (id. at p. 1032), and found the facts shown by the opinion
affirming his conviction for being a felon in possession of a firearm demonstrated he was
in fact armed with a firearm during the unlawful possession of that firearm. (Id. at
pp. 1027, 1035, 1040.)
Williams makes no effort on appeal either to distinguish White or to explain why
we should not adhere to the analysis of the courts in White, People v. Elder, supra, 227
Cal.App.4th 1308, People v. Brimmer, supra, 230 Cal.App.4th 782, and People v. Osuna,
supra, 225 Cal.App.4th 1020. We conclude the trial court correctly ruled Williams was
statutorily ineligible for a recall of his sentence under the TSRA.
DISPOSITION
The order is affirmed.
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
10
|
50 F.3d 3
U.S.v.Devore
NO. 93-1806
United States Court of Appeals,Second Circuit.
Feb 24, 1995
Appeal From: D.Conn. 3:92-cr-58
1
AFFIRMED.
|
In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3569
United States of America,
Plaintiff-Appellee,
v.
Acencion Manjarrez, also known as Phil,
also known as Felipe,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 614--Ruben Castillo, Judge.
Argued April 2, 2001--Decided July 18, 2001
Before Bauer, Cudahy, and Easterbrook,
Circuit Judges.
Bauer, Circuit Judge. Manjarrez appeals
his conviction for conspiracy and
possession with intent to distribute mar
ijuana, arguing that he did not knowingly
and intelligently waive his right to
testify on his own behalf, and that
certain jury instructions and an argument
made by the prosecutor during closing
argument prejudiced his case and deprived
him of a fair trial. We affirm.
BACKGROUND
On October 18, 1996, Jose Suarez asked
Gustavo Marquez to pick up a 196-pound
shipment of marijuana for Efren Terrazas.
The shipment was en route from Laredo,
Texas to the Yellow Freight warehouse in
Chicago Ridge, Illinois. Marquez agreed
to pick up the marijuana. The next day,
Manjarrez rented a Ryder truck that
Marquez drove to the Yellow Freight
warehouse; Manjarrez and two passengers,
Terrazas and a man named Joe, followed
Marquez to the warehouse in Manjarrez’s
car, a blue Chevrolet Caprice.
When he arrived at the warehouse,
Marquez discovered that the marijuana
shipment had not yet arrived.
(Unbeknownst to him, it had been
intercepted by federal agents in Texas
and was in the process of being sent from
Texas to United States Customs personnel
in Chicago.) Marquez left the warehouse
and drove the truck to the Ryder rental
facility, where he was met by Terrazas
and Manjarrez. Manjarrez returned the
truck.
On October 21, 1996, Suarez called
Marquez and told him that the shipment
had arrived at Yellow Freight. Marquez,
Terrazas, and Joe then returned to the
same Ryder rental facility and waited for
Manjarrez, who eventually arrived and
rented another truck. In the parking lot,
Manjarrez handed Terrazas the keys to the
truck, together with money to pay for the
shipping costs. Terrazas handed these
items to Marquez. While all four men were
standing in the parking lot, Terrazas
explained to Marquez that "they" (i.e.,
Terrazas, Manjarrez, and Joe) would be in
the defendant’s car watching to make sure
that the truck was not being followed.
Manjarrez was at Terrazas’ side when he
made this statement.
That afternoon, Marquez drove the truck
to the warehouse. Customs agents had
established surveillance at the
warehouse, and they observed Marquez
arrive and drive off with the marijuana-
filled crate in the Ryder truck. From
there, Marquez drove toward the planned
delivery site at 147th and Loomis in
Chicago, with Customs agents on his tail.
Following Terrazas’ instructions, Marquez
took a long and circuitous route to the
delivery site. Early on in the journey,
the pursuing agents noticed Manjarrez’s
blue Caprice following the truck at every
turn and performing counter-surveillance
maneuvers--that is, maneuvers designed to
detect the presence of pursuing law
enforcement officers. After some 90
minutes of driving, the truck and
Manjarrez’s car approached the 147th
Street exit off of Interstate 57 in
Chicago. However, sensing that they were
being followed by law enforcement
officers, Manjarrez and his passengers
decided to separate from the truck, and
Manjarrez drove in the opposite direction
on 147th Street.
Marquez eventually drove the truck to
his own neighborhood in Chicago. Fearing
apprehension, Terrazas abandoned the drug
deal. However, the next day, Suarez, Mar
quez, and another man, Luis Moreno,
devised an alternate plan to deliver the
marijuana. As part of this plan, Marquez
and Moreno transported the marijuana to
Moreno’s garage, where they were arrested
shortly thereafter.
Manjarrez was interviewed by Customs
agents on January 28, 1997. He admitted
renting a Ryder truck on October 21,
1996, but denied renting one on any other
occasion. With respect to the October
19th rental, Manjarrez claimed that he
rented the truck for a friend named Jose
Rodriguez who needed the truck to move
from his home, that he provided Rodriguez
the keys to the truck and returned home
immediately, and after later attempting
to determine whether Rodriguez had
returned the truck, he eventually
reported the truck missing to the Chicago
Police Department.
In August of 1998, Manjarrez was
indicted and charged with conspiracy to
possess with intent to distribute
marijuana in violation of 21 U.S.C.
sec.sec. 846 and 841(a)(1) (Count One),
and with possession of marijuana with
intent to distribute in violation of 21
U.S.C. sec. 841(a)(1) and 18 U.S.C. sec.
2. (Count Two). He remained a fugitive
until he was arrested by Customs agents
at O’Hare airport in Chicago on February
17, 2000. After waiving his Miranda
rights, Manjarrez spoke with the agents,
again admitting that he had rented a
Ryder truck on October 21, 1996. He again
claimed that he had rented the truck for
Jose Rodriguez, and he gave an account
that was consistent with the story that
he gave during his first interview, with
one notable exception; this time,
Manjarrez said that he was told by a
member of the Ryder rental facility that
the truck had been used to transport
drugs. However, Manjarrez denied knowing
Terrazas, Marquez, or Suarez, and
persisted in his denial even after being
shown pictures of all three men.
At trial, several witnesses testified
for the government, including the Customs
agent who discovered the marijuana-filled
crate in Texas, two Chicago Customs
agents who oversaw the investigation at
different times (both of whom interviewed
Manjarrez and one of whom participated in
the October 21, 1996 surveillance), a
narcotics expert with the Drug
Enforcement Administration, and
Marquez./1 The jury heard evidence of
the conflicting statements that Manjarrez
gave to law enforcement agents regarding
his rental of Ryder trucks. The defense
presented no evidence.
During the jury deliberations, the jury
sent the district court notes requesting
clarification on two separate occasions.
In the first note, the jury asked the
court whether they could return a not-
guilty verdict on the possession charge
even if they returned a guilty verdict on
the conspiracy charge. After conferring
with and receiving the blessing of
counsel for both sides, the court
instructed the jury to read the jury
instructions and to keep deliberating. In
the second note, the jury asked the court
to provide guidance regarding the
definition of reasonable doubt. After
again conferring with both attorneys, the
court informed the jury that it could not
provide further guidance on the
definition and asked them to continue
their deliberations.
On May 10, 2000, the jury convicted
Manjarrez on both counts. On September
20, 2000, the district court sentenced
Manjarrez to 51 months in prison followed
by three years of supervised release.
Manjarrez appeals his conviction.
DISCUSSION
Manjarrez advances three grounds for the
reversal of his conviction. He claims (1)
that he did not knowingly and
intelligently waive his right to testify
in his own behalf, (2) that the district
court erred in giving an "ostrich" jury
instruction without also expressly
instructing the jury that subjective good
faith on Manjarrez’s part was a defense
to the charges, and (3) that the
prosecutor made an improper and
prejudicial remark during closing
argument. Manjarrez argues that these
errors (together or singly) deprived him
of a fair trial, and quite likely
prejudiced the outcome of the trial given
what he characterizes as the "thinness"
of the government’s case and the
confusion expressed by the jury during
their deliberations. We address
Manjarrez’s arguments in turn.
A. Manjarrez’s waiver of his right to
testify
Manjarrez contends that the record
establishes that he did not knowingly and
intelligently waive his right to testify
on his own behalf. Near the close of the
government’s case-in-chief, the district
court asked Manjarrez’s counsel whether
he intended to rest immediately after the
close of the government’s case (without
putting on any evidence). He responded in
the affirmative. The court then asked
Manjarrez’s counsel if he would like the
court "to talk to Mr. Manjarrez right now
about not testifying." Manjarrez’s
counsel responded that he would, and the
court engaged in the following colloquy
with Manjarrez:
COURT: Mr. Manjarrez, the Court
understands that it’s your decision in
this case not to testify in your own
defense. As you’ve heard me tell the jury
several times, you have an absolute right
not to testify, and I would be happy to
continue to instruct the jury as I have
already that they cannot draw any
inference or suggestion of guilt from the
fact that you did not testify.
On the other hand, you should know that
you have an absolute right to testify in
your own defense. Do youunderstand?
MANJARREZ: (Through Interpreter)/2 Yes.
COURT: You understand that you can
testify in your own defense if you decide
you want to.
MANJARREZ: (Through Interpreter) Well,
yes.
COURT: Okay. I also want you to know
that being realistic about this, even
though sometimes I instruct the jury not
to draw any inference or suggestion of
guilt from the fact that you didn’t
testify, it could be that some jurors are
going to draw that type of inference. Do
you understand that?
MANJARREZ: (Through Interpreter) Yes,
that’s fine.
COURT: Knowing all of this, is it your
desire not to testify in this case?
MANJARREZ: (Through Interpreter) No. I
mean my lawyer’s here to answer
everything that needs to be answered.
COURT: Okay. Has anyone forced you in
any way or threatened you in order to get
you not to testify?
MANJARREZ: (Through Interpreter) No.
COURT: Okay. And let me just tell you,
Mr. Manjarrez, you’re free to continue to
talk to Mr. Halprin [defense counsel],
and if you decide at any point that you
want to testify, that’s strictly up to
you. Do you understand that?
MANJARREZ: (Through Interpreter) That’s
fine.
COURT: Okay. I’ll leave it at that.
Trans. at 223-24.
Manjarrez asserts that nowhere in the
above dialogue is there evidence that he
knowingly and intelligently waived his
right to testify. While the court did ask
a series of basic questions regarding
Manjarrez’s intentions not to testify and
elicited a series of "yes" responses from
him through the interpreter, Manjarrez
contends that this was insufficient since
the court "did nothing to satisfy itself
that [Manjarrez], who did not speak or
understand fluent English, understood the
substance of what it means to testify."
In addition, he notes that at no time
during the colloquy did his counsel state
on the record that he had explained to
him what it means to testify. Finally,
Manjarrez seizes on his response to the
court’s fourth question, wherein he
stated that his lawyer was "here to
answer everything that needs to be
answered," and argues that it
demonstrates a "total lack of
understanding of what it means to
testify," since it seems to imply that he
thought that his lawyer could testify and
offer evidence on his behalf as a
witness. According to Manjarrez, all of
this indicates that he waived his
fundamental constitutional right to take
the stand without adequately
comprehending either the nature of his
right or the consequences of waiving it.
Manjarrez maintains that this deprived
him of a fair trial and, in light of what
he considers to be the weakness of the
government’s case as well as the jury’s
confusion during their deliberations,
that it probably affected the outcome of
the trial. On these grounds Manjarrez
urges us to reverse his conviction or to
remand for an evidentiary hearing on the
issue of whether his waiver of his right
to testify was knowing and intelligent.
We reject both Manjarrez’s arguments and
his request.
A criminal defendant has a
constitutional right to testify on his
own behalf. See Rock v. Arkansas, 483
U.S. 44, 49-53 (1987); Morgan v. Krenke,
232 F.3d 562, 569 (7th Cir. 2000). This
right is "an aspect of the [criminal
defendant’s] right to defend himself,"
Underwood v. Clark, 939 F.2d 473, 475
(7th Cir. 1991), which arises from the
Sixth Amendment’s guarantee of compulsory
process to obtain favorable witnesses,
see Stephens v. Miller, 13 F.3d 998, 1002
(7th Cir. 1994) (en banc), as well as the
Fifth Amendment’s due process clause./3
It is also a "necessary corollary" of the
Fifth Amendment’s guarantee against
compelled testimonial self-incrimination.
See id. (citations omitted). The right to
take the stand on one’s own behalf is
personal to the defendant, which means it
can only be waived by the defendant
himself, and not by his counsel. See
Jones v. Barnes, 463 U.S. 745, 751 (1983)
("the accused has the ultimate authority
to make certain fundamental decisions
regarding the case, as to whether to . .
. testify in his or her own behalf . .
."); United States v. Curtis, 742 F.2d
1070, 1076 (7th Cir. 1984). Moreover,
because the defendant’s right to testify
is a fundamental constitutional right
"essential to due process of law in a
fair adversary process," Rock, 483 U.S.
at 51 (quotation omitted), the
defendant’s waiver of the right must be
knowing and intelligent. See United
States v. Pennycooke, 65 F.3d 9, 11 (3d
Cir. 1995) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 241 (1973));
United States v. Teague, 953 F.2d 1525,
1533 (11th Cir. 1992) (ruling that "there
can be no effective waiver of a
fundamental constitutional right unless
there is an ’intentional relinquishment
or abandonment of a known right or
privilege’ Johnson v. Zerbst, 304 U.S.
458, 464 . . . (1938)"); see also United
States v. Webber, 208 F.3d 545, 550 (6th
Cir. 2000). However, we have repeatedly
held that the Constitution does not
require a trial court to question a
defendant sua sponte in order to ensure
that his decision not to testify was
undertaken knowingly and intelligently
unless there is some indication that the
defendant has been prevented from
exercising that right. See, e.g.,
Liegakos v. Cooke, 106 F.3d 1381, 1386
(7th Cir. 1997) (rejecting defendant’s
argument that a judge must inquire on the
record whether the defendant understands
the advantages of testifying and must
elicit a former waiver of the right to
testify); United States v. Thompson, 944
F.2d 1331, 1345 (7th Cir. 1991) (ruling
that "courts have no affirmative duty to
determine whether a defendant’s silence
is the result of a knowing and voluntary
decision not to testify" (citations
omitted), and that a court is not
constitutionally required to make such an
inquiry "absent some indication that the
defendant has been prevented from
exercising [his] right [to testify]").
Indeed, we have discouraged district
court judges from directly questioning a
defendant concerning his decision not to
testify for fear that in so doing judges
will insert themselves into a sensitive
aspect of trial strategy, thereby
intruding inappropriately on the
attorney-client relationship. See
Liegakos, 106 F.3d at 1386; United States
v. Campione, 942 F.2d 429, 439 (7th Cir.
1991); Underwood, 939 F.2d at 476. For
this reason, we have suggested that
courts refrain from questioning a
defendant regarding his decision not to
take the stand unless there is some
indication that either the defendant
actually wants to testify and is being
prevented from doing so or that there is
a conflict between the defendant and his
lawyer on the matter. See Thompson, 944
F.2d at 1345; see generally Ortega v.
O’Leary, 843 F.2d 258, 260-61 (7th Cir.
1988).
There is nothing in the record which
required the district court to do
anything more than it did to insure that
Manjarrez’s waiver of his right to
testify was knowing and intelligent.
Manjarrez does not claim that he
expressed a desire to testify which his
counsel refused to honor. See Campione,
942 F.2d at 439. Nor does he argue that
his counsel failed either to inform him
of his right to testify or adequately to
explain the right and the consequences of
waiving it. Indeed, Manjarrez has not
even submitted an affidavit stating that
he did not understand any of these things
at the time of the waiver. Further, the
case for finding a knowing and
intelligent waiver of the right to
testify is stronger here than in several
other cases wherein we have found such a
waiver. The district court posed a series
of clear and straightforward questions
through an interpreter, informing
Manjarrez of his right to testify and of
the consequences of waiving it, and
repeatedly asked Manjarrez if he
understood what the court was saying and
whether he wished to waive his right.
Manjarrez repeatedly indicated that he
did understand and that he did wish to
waive his right to testify. This is not a
case wherein we have to infer a
defendant’s waiver from his mere silence
(i.e., from his mere failure to take the
stand and to object when his counsel
rested without calling him as a witness).
Rather, we have unambiguous affirmative
indications of waiver from Manjarrez’s
own lips.
Nevertheless, Manjarrez claims that his
response to the fourth question in the
colloquy shows that he was laboring under
a fundamental misapprehension regarding
what it means to testify, and that once
the trial court was put on notice of this
it was obligated to take further steps to
insure that he fully and correctly
understood the right that he was waiving.
We are not persuaded. After informing
Manjarrez of his absolute right to
testify and of the possibility that
jurors might draw an adverse inference
from his failure to testify, the court
asked Manjarrez, "knowing all this, is it
your desire not to testify in this case?"
Manjarrez responded, "No. I mean my
lawyer’s here to answer everything that
needs to be answered." He never expressed
confusion regarding the meaning of his
right to testify nor asked the court for
clarification, despite having been asked
several times whether he understood.
Moreover, his response does not clearly
demonstrate a lack of understanding
regarding the meaning or significance of
his right to testify. Manjarrez said
merely that his lawyer would "answer
everything that needs to be answered." He
did not say that his lawyer would
"testify" on his behalf. Given this, his
response can reasonably be taken to mean
that Manjarrez thought that his lawyer
would do everything that needed to be
done by way of presenting a defense
(i.e., that his lawyer would make any
arguments on Manjarrez’s behalf that
needed to be made, without the aid of
Manjarrez’s testimony), and not that he
thought that his lawyer would testify for
him.
Thus, we do not hesitate to hold
Manjarrez bound by his waiver. While
there may be cases wherein a defendant’s
conduct clearly indicates a fundamental
lack of understanding regarding the
meaning of the right to testify and/or
the consequences of waiving it, this is
not such a case. We will not vacate
Manjarrez’s conviction or require further
proceedings on the basis of an
unsubstantiated, post hoc claim that he
did not understand his right to testify
when he waived it, cf. Underwood, 939
F.2d at 476, especially when the claim is
belied by the record.
B. Ostrich instruction
Manjarrez claims that the district court
erred in giving this court’s pattern
"ostrich" jury instruction without also
expressly instructing the jury that it
may consider evidence of Manjarrez’s
subjective good faith as a defense. The
court gave the following instruction,
based on Fed. Crim. Jury Instructions of the
Seventh Circuit sec. 4.06 (1998), over
Manjarrez’s objection:
When the word "knowingly" is used in
these instructions, it means that the
defendant realized what he was doing and
was aware of the nature of his conduct
and did not act through ignorance,
mistake, or accident. Knowledge may be
proved by the defendant’s conduct and by
all the facts and circumstances
surrounding the case.
You may infer knowledge from a
combination of suspicion and indifference
to the truth. If you find that a person
had a strong suspicion that things were
not what they seemed or that someone had
withheld some important facts, yet shut
his eyes for fear of what he would learn,
you may conclude that he acted knowingly
as I have used that word. You may not
conclude that the defendant had knowledge
if he was merely negligent in not
discovering the truth.
We have approved the giving of this
instruction "in cases in which there is
evidence that the defendant, knowingly or
strongly suspecting that he is involved
in shady dealings, takes steps to make
sure that he does not acquire full or
exact knowledge of the nature and extent
of those dealings." United States v.
Wallace, 212 F.3d 1000, 1004 (7th Cir.
2000) (citation and internal quotation
omitted). We have ruled that the
instruction is appropriate "when a
defendant claims a lack of guilty
knowledge and there are facts and
evidence that support an inference of
deliberate ignorance." Id. (citation and
internal quotation omitted). Manjarrez
does not argue that it was improper for
the court to give the ostrich instruction
in his case as a general matter. Rather,
he asserts that the ostrich instruction
should be given only together with
instructions that the jury may consider
evidence of the defendant’s subjective
good faith as a defense, and he maintains
that the district court’s failure to
include such a good faith defense
instruction in the jury charge unfairly
induced the jury to convict him despite
"extremely weak" evidence of his culpable
mental state. Manjarrez contends that it
is highly likely that he would have been
acquitted on one or both counts absent
the error, especially given what he
characterizes as the thinness of the
government’s case against him (which he
claims consisted primarily of the
testimony of a co-defendant who had
received a sentencing benefit in exchange
for his testimony), and the jury’s
confusion regarding the law (as
illustrated by the notes they sent to the
trial court during their deliberations).
Manjarrez’s arguments are unavailing.
First, his counsel never tendered a "good
faith" instruction to the district court.
As we have noted, "we require a formal
submission of a proposed charge,
otherwise we will consider alleged
defects in the court’s instructions only
under the plain error doctrine." See
United States v. Holland, 831 F.2d 717,
723 (7th Cir. 1987) (citation and
quotation omitted)./4 In addi-tion,
under the circumstances presented here,
we find that the district court committed
no error, much less plain error, in
giving the ostrich instruction without an
accompanying good faith instruction. A
defendant is not entitled to a specific
good faith instruction so long as,
"considering the instructions as a whole,
the jury was adequately instructed upon
his theory of defense." See United States
v. Given, 164 F.3d 389, 394 (7th Cir.
1999) (citation omitted). When the jury
instructions actually given "as a whole
treat a case fairly and accurately," a
defendant is not prejudiced by a district
court’s failure to give a particular
instruction, and under such circumstances
we will not disturb the jury instructions
on appeal. See United States v. Koster,
163 F.3d 1008, 1011 (7th Cir. 1998)
(citation omitted). Put another way, it
is unnecessary to give a particular
defense instruction if its essential
points are covered in another
instruction. See Holland, 831 F.2d at
723; see also Koster, 163 F.3d at 1011
("We defer to the substantial discretion
of the district court for the specific
wording of the instructions, and in
rejecting a proposed instruction, so long
as the essential points are covered by
the instructions given.") (citation and
quotation omitted). Considering as a
whole the jury charge given in this case,
it is clear that the district court accu
rately and amply instructed the jury
regarding the mental state which needed
to be proven in order to sustain a
conviction on both counts charged. For
example, in addition to the ostrich
instruction, the district court issued
the following instruction, which was a
modified version of the theory-of-defense
instruction proposed by the defendant:
The gist of the offense of conspiracy is
the agreement among the conspirators to
commit an offense. Those without
knowledge of the conspiracy are not
conspirators. One who, without more,
furnishes supplies or services to one
engaged in a criminal activity is not
guilty of conspiracy even though his sale
of goods or services may have furthered
the object of a conspiracy so long as the
seller of the goods or services has no
knowledge of the conspiracy.
Moreover, while the court declined to
issue various instructions proposed by
the defense (each of which presented a
variation of the "mere presence" defense
to the charge of conspiracy), the court
ultimately gave this Circuit’s pattern
"mere presence" instruction, which reads:
A defendant’s presence at the scene of a
crime and knowledge that a crime is being
committed is not alone sufficient to
establish the defendant’s guilt. A
defendant’s association with conspirators
is not by itself sufficient to prove his
participation or membership in a
conspiracy.
See Fed. Crim. Jury Instructions of the Seventh
Circuit sec. 5.11(a) (1999).
Finally, the district court provided the
jury with careful and accurate
definitions of the crimes charged,
informing the jurors that they could not
find Manjarrez guilty of either charge
unless they found that the government
proved his guilt beyond a reasonable
doubt as to each element of each offense,
including Manjarrez’s knowledge or intent
with respect to the charged offenses.
Specifically, the court instructed the
jury that:
In order to establish the offense of
conspiracy as charged in Count 1, the
government must prove:
First, that the conspiracy charged in
count 1 existed; And, second, that the
defendant knowingly became a member of
the conspiracy with an intention to
further the conspiracy. . . . If . . .
you find from your consideration of all
the evidence that any of these
propositions has not been proved beyond a
reasonable doubt, than you should find
the defendant not guilty. . . .
To be a member of the conspiracy, . . .
the government must prove beyond a
reasonable doubt that the defendant was
aware of the common purpose and was a
willing participant. . . .
Trans. at 317-19.
In order to establish the offense of
possession with intent to distribute
marijuana as charged in count 2, the
government must prove the following
propositions: First, that the defendant
knowingly or intentionally possessed
marijuana. Second, that the defendant
possessed marijuana with the intent to
deliver it to another person. It does not
matter whether the defendant knew the
substance was marijuana. It is sufficient
that the defendant knew that it was some
kind of prohibited drug.
. . . If . . . you find from your
consideration of all the evidence that
any of these propositions has not been
proved beyond a reasonable doubt, then
you should find the defendant not guilty.
Trans. at 320-21.
Taken together, these careful and
straightforward explanations of the
degree of knowledge and intent that the
government must prove to convict
Manjarrez on each charge, coupled with
the repeated admonitions not to convict
unless such a degree of guilty intent is
established beyond a reasonable doubt,
make it highly unlikely that the jury
found Manjarrez guilty of either charge
without also finding beyond a reasonable
doubt that he had the required mental
state. See Koster, 163 F.3d at 1012
(upholding the lower court’s denial of
defendant’s good faith defense
instructions where instructions on the
knowledge element of the charges
"encompassed any good faith defense");
United States v. Smith, 995 F.2d 662, 675
(7th Cir. 1993). In addition, the ostrich
instruction itself made it clear that a
defendant does not act "knowingly" when
he acts through "ignorance, mistake, or
accident," or where "he was merely
negligent in not discovering the truth."
This alone might well obviate any need
for a separate good faith instruction.
See Given, 164 F.3d at 394-95. Finally,
the theory-of-defense instruction and the
"mere presence" instruction given by the
district court contain the substance of
the good faith instruction that the
defendant now claims should have been
proposed by his trial counsel and issued
by the court. Each instruction conveys
the proposition that if Manjarrez did not
know about the conspiracy to commit the
charged offense, or did not know that he
was assisting a drug deal, that he was
not guilty. Therefore, "even without a
separate instruction . . . [t]he jury was
given a sufficient opportunity to
consider whether [the defendant] acted in
good faith," because the defendant’s
"theory of defense was already part of
the district court’s charge." Koster, 163
F.3d at 1012; see also Given, 164 F.3d at
394-95 (holding that the district court
did not err by refusing to give a good
faith instruction where the instructions
as a whole "made it abundantly clear to
the jury that if [the defendant] acted in
good faith, he was not guilty of mail
fraud."); United States v. Paiz, 905 F.2d
1014, 1023 (7th Cir. 1990) (abrogated on
other grounds by Gozlon-Peretz v. United
States, 498 U.S. 395 (1991)) (holding
that while the issuance of an ostrich
instruction was improper as to one of the
conspiracy defendants, it was
nevertheless harmless error where its
effect was "neutralized" by the court’s
issuance of "mere presence" and "willing
participation" instructions, both of
which "tend[ed] to negate any chance that
the jury would convict [the defendant] on
any finding other than that he knowingly
joined and participated in the
conspiracy") (citation omitted); United
States v. Grizaffi, 471 F.2d 69, 75 (7th
Cir. 1972). Therefore, the district
court’s failure to give a good faith
instruction sua sponte was not plain
error. Indeed, considering the other
instructions given as a whole, even if
Manjarrez’s counsel had tendered a good-
faith jury instruction the court would
have been justified in refusing it, and
we would affirm such a decision.
C. Prosecutor’s remarks during closing
argument
Manjarrez’s final claim of error can be
dismissed with dispatch. Manjarrez argues
that the government improperly suggested
to the jury that a defendant could be
found guilty of conspiracy under an
aiding-and-abetting theory of liability.
He notes, correctly, that the district
court had earlier rejected the
government’s proposed instruction which
specifically addressed aiding-and-
abetting liability in the context of a
conspiracy charge, and instead
subsequently issued an aiding and
abetting instruction which was not
expressly tied to either the conspiracy
charge (Count One) or to the substantive
offense (Count Two). Manjarrez maintains
that given the weakness of the
government’s case and the subsequent
juror confusion, the Assistant United
States Attorney (AUSA)’s "improper
argument" was prejudicial and likely
induced the jury to convict in derogation
of the trial court’s instructions and in
violation of Manjarrez’s due process
right to a fair trial./5
We disagree. As we recently noted,
[i]n reviewing allegations of improper
comments by a prosecutor, we employ a
two-step process. We first look at the
comments in isolation to determine if
they were improper. . . . If we find the
comments are proper, the analysis ends.
If we find they are improper, we must
then examine the comments in light of the
record as a whole to determine whether
the comments deprived the defendant of a
fair trial.
United States v. Castillo, 148 F.3d 770,
775 (7th Cir. 1998) (citations omitted).
A close reading of the allegedly improper
remark and of the context in which it
occurred reveals that the AUSA made the
remark in an attempt to demonstrate
Manjarrez’s guilt of the possession
charge, not the conspiracy charge. The
AUSA stated:
I believe Judge Castillo is going to
instruct you . . . that [the defendant
is] guilty if he’s aiding and abetting
someone else’s possession of the
marijuana. That is, Mr. Manjarrez is
renting the truck or driving the counter-
surveillance, or both, so that he could
help someone else possess this marijuana
and move it . . . and he does that
knowingly, then he is guilty of that
charge. (emphasis supplied).
The plain language of the statement
refers exclusively to the possession
charge, and the AUSA made the statement
while discussing the facts and evidence
pertinent to that charge, after he had
finished discussing the conspiracy
charge. The district court ultimately
gave a generic aiding-and-abetting
instruction, and Manjarrez does not argue
(nor can he) that the jury could not find
him guilty of the possession charge if
they determined that he aided and abetted
the commission of that offense.
Therefore, the AUSA’s comment was
entirely consistent both with the
instructions given by the district court
and with the law. Hence, we find that the
remark was perfectly proper. It caused
Manjarrez no prejudice, and it certainly
did not deprive him of a fair trial.
CONCLUSION
We have considered Manjarrez’s other
arguments, and find them meritless. For
the foregoing reasons, we AFFIRM
Manjarrez’s conviction.
FOOTNOTES
/1 Marquez was separately charged with conspiring to
possess with intent to distribute marijuana in
connection with the same transaction. He pled
guilty to the charge, and received a sentencing
benefit in exchange for agreeing to testify
against Manjarrez.
/2 Manjarrez, a native Spanish speaker, required the
assistance of an interpreter at trial. Two for-
eign language interpreters were sworn in at the
trial’s outset, and throughout the course of the
trial they translated the words spoken at trial
into Spanish, as well as the words spoken by
Manjarrez into English.
/3 Rock held that the right of the accused to
testify on his own behalf in a state trial
arises, in part, from the due process clause of
the Fourteenth Amendment. Rock, 483 U.S. at 51.
However, a defendant’s right to testify on his
own behalf in a federal criminal proceeding like
the one at issue here stems from the due process
clause of the Fifth Amendment, which is applica-
ble to the federal government.
/4 In a single "throw-away" sentence and without any
supporting argument or citation to pertinent
authority, Manjarrez also claims that his trial
counsel rendered ineffective assistance of coun-
sel by failing to ask the district court to issue
a good faith defense instruction once he learned
that the court was planning to issue the ostrich
instruction. As we have recently stated, "we are
generally reluctant to hear ineffective assis-
tance of counsel claims on direct appeal because
most trial records, unsupplemented by a 28 U.S.C.
sec. 2255 hearing, lack the evidence necessary to
fashion a successful claim." United States v.
Pergler, 233 F.3d 1005, 1009 (7th Cir. 2000)
(citation omitted). In addition, Manjarrez’s
ineffective assistance argument is presented in
a cursory manner which makes us even less in-
clined to address it. We find the argument waived
because it is insufficiently developed. See
United States v. Wimberley, 60 F.3d 281, 287 (7th
Cir. 1995) ("perfunctory and undeveloped argu-
ments, and arguments that are unsupported by
pertinent authority, are waived . . .") (citation
omitted).
/5 Manjarrez also suggests without developed argu-
ment or citation to authority that his trial
counsel rendered ineffective assistance by fail-
ing to move for a mistrial in response to the
AUSA’s improper comments. This argument meets the
same fate as Manjarrez’s other ineffective assis-
tance claim; it is waived.
|
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5119-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID ZINSMEISTER,
Defendant-Appellant.
_____________________________
Submitted February 5, 2020 — Decided February 14, 2020
Before Judges Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Municipal Appeal No. 2018-
08.
Broscious, Fischer & Zaiter, PC, attorneys for appellant
(Thomas Paul Fischer, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Monica Anne Martini, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant David Zinsmeister appeals from a June 26, 2019 order denying
his petition for post-conviction relief (PCR) to vacate his 1980 and 1986 DWI
convictions, pursuant to State v. Laurick, 120 N.J. 1 (1990). On August 7, 2019,
the Supreme Court decided State v. Patel, 239 N.J. 424, 448 (2019), which held
non-indigent, uncounseled DWI litigants who were unadvised or did not know
of their right to counsel, and who would have retained a lawyer had they known,
are entitled to relief under Laurick to avoid an enhanced custodial sentence for
a subsequent DWI conviction. The Patel Court further stated Laurick petitions
are not subject to a five-year time bar, which formerly existed under Rule 7:10-
2(g). Id. at 447.
In defendant's case, he was convicted of DWIs in 1980 and 1986, in West
Windsor, and charged with DWI in 2017, in Phillipsburg. In 2018, defendant
filed his PCR petition in West Windsor municipal court, seeking Laurick relief
related to the 1980 and 1986 convictions. He certified his 1980 conviction was
uncounseled, and his 1986 conviction was counseled, but his attorney did not
advise him of his rights before advising him to enter a guilty plea. The municipal
court denied the petition.
On de novo review, the law division judge found defendant's petition was
time-barred because it was filed beyond the five-year time limit set forth in Rule
A-5119-18T3
2
7:10-2(b)(2). The judge also found defendant did not prove excusable neglect
for the delay in filing the PCR petition. The judge concluded defendant did not
meet his burden under Laurick because he
has not established enough evidence that he acted
without the knowledge of his rights in the 1980
conviction or the 1986 conviction . . . .
[and] [a]lthough . . . defendant alleges that had he
known he could contest his charges, there is no
evidence that he would not have taken the guilty plea in
either case.
On appeal, citing Patel, defendant raises the following point.
I. THE TRIAL COURT ERRED IN DECIDING
THAT DEFENDANT SHOULD BE DENIED
LAURICK RELIEF AS TO HIS 1980 DWI
CONVICTION BECAUSE HE FAILED TO SHOW
"EXCUSABLE NEGLECT" TO PERMIT THE
RELAXATION OF THE FIVE-YEAR BAR TO A PCR
PURSUANT TO R. 7:10-2(G)(2).
"We review issues of law de novo and owe no deference to the interpretive
conclusions of . . . [the] Law Division." Patel, 239 N.J. 435. We address the
issue raised on this appeal through this lens because Patel clarified Laurick. The
Patel Court amended the time limitation provision in Rule 7:10-2(g), governing
petitions for relief from an enhanced custodial term based on a prior conviction
to state: "A petition seeking relief under this Rule may be filed at any time." Id.
at 447. Therefore, defendant's PCR petition was not time barred.
A-5119-18T3
3
Finally, defendant certified his 1980 conviction was uncounseled. He also
certified: "In the case in 1980, I met with the municipal prosecutor who told me
I'd get no jail [time] and the minimum penalties if I pled guilty, and I did. At
no time did I know, nor was I told of, the rights [my attorney] has advised me I
have, and had, back then." Nothing in the record contradicted defendant's
assertion.
On appeal, pursuant to Patel, the State does not contest "that the
Phillipsburg Municipal Court is prohibited from using the 1980 DWI conviction
to enhance defendant's custodial sentence on his pending DWI case. However,
Phillipsburg Municipal Court may still impose enhanced administrative fines
and penalties." We agree and, for the reasons we expressed, reverse and remand
accordingly.
Reversed and remanded. We do not retain jurisdiction.
A-5119-18T3
4
|
68 F.3d 488
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.Charles R. HUNT, Petitioner,v.UNITED STATES POSTAL SERVICE, Respondent.
No. 95-3563.
United States Court of Appeals, Federal Circuit.
Oct. 13, 1995.
Before LOURIE, Circuit Judge, COWEN, Senior Circuit Judge, and SCHALL, Circuit Judge.
DECISION
PER CURIAM.
1
Charles R. Hunt petitions for review of the final decision of the Merit Systems Protection Board (Board) which sustained the action of the United States Postal Service (agency) reducing his grade and pay.1 Hunt v. United States Postal Serv., Docket No. AT-0752-95-0038-I-1. We affirm.
DISCUSSION
2
This court reviews a Board decision under a narrow standard and must affirm the decision unless it is found to be 1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2) obtained without procedures required by law, rule or regulation having been followed; or 3) unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c) (1988). The agency reduced Hunt's grade and pay based upon two grounds: 1) failure to meet the requirements of his position; and 2) failure to follow instructions/insubordination. Both charges grew out of Hunt's failure to attend a training course the agency ordered him to attend. Hunt contests the findings of the AJ that he was aware of the training course requirement and that his explanation for not attending (inability to obtain child care) was an insufficient excuse.
3
This court will not reverse the Board's factual findings if they are supported by "such relevant evidence as might be accepted by a reasonable mind as adequate to support the conclusion reached" by the Board. Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984) (citations omitted). In view of the evidence of record, we cannot say that the AJ's findings are not supported by substantial evidence.
4
Hunt also contends that the penalty was not proportionate to the character of the offense. Unless "the penalty exceeds the range of permissible punishments specified by statute or regulation, or unless the penalty is so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion," this court defers to the agency's judgment. Villela v. Department of the Air Force, 727 F.2d 1574, 1576 (Fed.Cir.1984) (citations omitted). Having carefully reviewed the record, we conclude that the agency did not abuse its discretion in reducing Hunt's grade and pay, particularly in view of the fact that, as the AJ noted, Hunt exhibited a total lack of remorse for his conduct.
1
The February 2, 1995 initial decision of the administrative judge (AJ) became the decision of Board when the full Board denied Hunt's petition for review on April 27, 1995
|
92 F.3d 1207
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.Dewey R. WOTRING, Petitioner,v.DEPARTMENT OF JUSTICE, Respondent.
No. 96-3137.
United States Court of Appeals, Federal Circuit.
July 12, 1996.
Before NEWMAN, MAYER, and LOURIE, Circuit Judges.
DECISION
PER CURIAM.
1
Dewey R. Wotring petitions for review of the December 15, 1995 final decision of the Merit Systems Protection Board, Docket No. SL0752950260I-1, dismissing his appeal for lack of jurisdiction on the ground that his retirement was voluntary. Because the board did not err in determining that Wotring's retirement was voluntary, we affirm.
DISCUSSION
2
The Department of Justice, Immigration and Naturalization Service ("the agency"), employed Wotring as the Officer in Charge at the agency's office in Louisville, Kentucky. On May 2, 1994, Kenneth Rath, Executive Associate Commissioner, issued a memorandum announcing an opportunity for certain employees to apply for voluntary separation incentive payments ("VSIPs") from May 9, 1994 through May 20, 1994. In his memorandum, Rath stated that "[a]lthough we hope we will be permitted to offer VSIPs again early in Fiscal Year 1995, there is no assurance we will be able to do so." In a November 30, 1994 memorandum, Rath provided an update to the prospect of future VSIPs, acknowledging that there was speculation regarding whether the agency would offer VSIPs in 1995 and stating that its request for authority to offer VSIPs in 1995 had been denied. Rath issued a memorandum dated December 21, 1994 again stating that the agency's request to offer VSIPs in 1995 had been denied.
3
On December 27, 1994, Wotring applied for retirement. His application was approved, and he retired effective January 3, 1995. On January 13, 1995, the agency received authority to offer additional VSIPs. Rath subsequently issued a memorandum informing the employees that the previous denial of authority to offer VSIPs had been reversed and that certain employees could apply for VSIPs from February 7, 1995 through March 7, 1995.
4
Wotring submitted a request to retroactively retire with a VSIP. His request was denied, and he appealed to the board. Wotring argued that his retirement was involuntary because it was based upon misleading information provided to him by the agency. In an initial decision, an administrative judge ("AJ") found that the agency had not provided Wotring misleading information and that Wotring's retirement was therefore voluntary. Accordingly, the AJ dismissed his appeal for lack of jurisdiction. Wotring now petitions for review by this court.
5
We may reverse a decision of the board only if it was arbitrary, capricious, an abuse of discretion, or unlawful; procedurally deficient; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed.Cir.1986), cert. denied, 479 U.S. 1037 (1987).
6
On appeal, Wotring argues that the agency provided him with misleading information. He argues that the agency had the authority to offer VSIPs, meaning that it did not need approval, and that it expected to offer VSIPs in 1995. As support, he cites two e-mail messages and a document recording a conversation as evidencing material information withheld from him by the agency. Therefore, he argues that his retirement was not voluntary because, had the agency provided him with this information, he would not have retired; rather, he would have waited until he expected the agency to offer VSIPs in 1995.
7
The record reflects, however, that the agency provided Wotring with the best available information regarding the VSIPs. The e-mail messages and document recording a conversation evidence speculation regarding whether the agency might have the authority to offer VSIPs. The agency was not required to provide Wotring with speculation. While it is unfortunate for Wotring that the agency received authority to offer VSIPs after he retired, the agency provided him with the best information it had regarding the availability of VSIPs at the time he voluntarily retired. The board thus did not err in finding that his retirement was voluntary as he failed to prove that the agency provided him with misleading information. Accordingly, the board's decision dismissing Wotring's appeal was supported by substantial evidence and was not contrary to law.
|
654 F.2d 727
U. S.v.Frame
80-2506
UNITED STATES COURT OF APPEALS Seventh Circuit
4/22/81
1
C.D.Ill.
AFFIRMED
|
982 So.2d 1181 (2008)
GILCHRIST
v.
STATE.
No. 1D07-6158.
District Court of Appeal of Florida, First District.
May 23, 2008.
Decision without published opinion. Affirmed.
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876 F.2d 670
Bobby James ROBERTS, Appellant,v.John MANSON, Manager, John Smith, Assistant Manager, City ofLittle Rock Material Yard, Little Rock, Arkansas, Appellees.
No. 88-1094.
United States Court of Appeals,Eighth Circuit.
Submitted Jan. 10, 1989.Decided June 6, 1989.
Lisa K. Thompson, Little Rock, Ark., for appellant.
Alice Sprinkle Gray, Little Rock, Ark., for appellees.
Before LAY, Chief Judge, ARNOLD and BOWMAN, Circuit Judges.
LAY, Chief Judge.
1
Bobby James Roberts filed a Civil Rights Act claim against John Manson and John Smith, manager and assistant manager of a division of the Public Works Department of the City of Little Rock, Arkansas. Roberts asserts his first and fourteenth amendment rights were violated because he was discharged as a laborer for the city without a pre-termination or post-termination hearing. 42 U.S.C. Sec. 1983 (1982).
2
Roberts filed a pro se complaint while he was incarcerated in the Arkansas Department of Corrections. The office of the clerk of the district court sent Roberts a notice and consent form which would allow Roberts to consent to final disposition of his civil case before a United States magistrate pursuant to 28 U.S.C. Sec. 636(c) (1982 & Supp. IV 1986). Roberts responded with a letter refusing consent and stating that he wanted his case heard by a United States district court judge.
3
Subsequently, an order was entered stating that pursuant to Local Rule 23, the matter was referred to the magistrate1 for determination of all pre-trial matters. At that time the only motion pending was a request for appointment of counsel. The magistrate denied the motion to appoint counsel and proceeded to schedule an evidentiary hearing.
4
The magistrate heard evidence and arguments on both sides, entered proposed findings, and recommended that the complaint be dismissed with prejudice. Roberts submitted written objections to the findings and recommendation, and the district court2 entered an order summarily adopting the magistrate's findings, thereby dismissing Roberts' complaint with prejudice. Roberts now appeals and claims that this case was improperly referred to the magistrate for trial on the merits. We agree, and reverse and remand for a new trial before a United States district court judge.
5
Although the record is not clear under which provision of the statute this case was referred to the magistrate, this court finds that jurisdiction was not proper under any of the provisions of 28 U.S.C. Sec. 636 (1982 & Supp. IV 1986). It is beyond question that magistrates are not article III judges and therefore have jurisdiction only pursuant to statute. See Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974).
Section 636(c)
6
Under section 636(c) the magistrate may be referred civil matters for final disposition with the consent of the parties. In this case, Roberts did not give his consent, nor did the magistrate make a final determination. Therefore, jurisdiction was not proper under section 636(c).
Section 636(b)(1)(A)
7
Section 636(b)(1)(A) allows pre-trial matters to be referred to a magistrate to be heard and determined. However, the magistrate in this case did not just hear pre-trial matters. He conducted an evidentiary hearing which amounted to a trial on the merits. Such a hearing necessarily requires fact-finding and credibility assessment by the magistrate.
Section 636(b)(1)(B)
8
Section 636(b)(1)(B) allows a judge to refer to a magistrate prisoner petitions challenging conditions of confinement and applications for criminal post-trial relief. In both situations the magistrate may conduct evidentiary hearings and submit proposed findings and recommendations. Although Roberts was a prisoner at the time he filed his complaint, his claim was unrelated to his criminal conviction or the conditions of confinement. Therefore, it is clear jurisdiction was lacking under this section.
Section 636(b)(3)
9
Finally, section 636(b)(3) provides a magistrate may perform additional duties not inconsistent with the federal Constitution and laws. This section appears on its face to be an all-inclusive authority for delegation of duties to a magistrate. However, this court has read this section as being limited by the accompanying provisions and the overall structure of section 636(b). United States v. Trice, 864 F.2d 1421, 1428 (8th Cir.1988). As we have stated:
10
The structure of section 636(b) implies both a timeline and a diversity of character belonging to the different authorizations granted to magistrates under the Act. * * * [S]ubparagraph (A) governs all pretrial matters, but a broad reading of the additional duties provision renders subparagraph (A) superfluous, suggesting that the "additional duties" provision is intended for matters after the trial begins.
11
Id. at 1428.
12
Subparagraph (B) authorizes the delegation of a limited list of specific powers. The power to hold an evidentiary hearing in this case would be equivalent to those powers specifically listed in (B). However, no authority to conduct an evidentiary hearing in this case is delineated in (B). Therefore, since such a power is not specifically listed in (B) it seems unlikely that Congress intended it to be authorized under the "additional duties" provision of section 636(b)(3).
13
The legislative history of section 636(b)(3) does not clearly delineate the duties intended to be within the scope of "additional duties." However, it does imply that the provision was intended to apply only to procedural and administrative matters.
14
Under this subsection, the district courts would remain free to experiment in the assignment of other duties to magistrates which may not necessarily be included in the broad category of "pretrial matters". This subsection would permit, for example, a magistrate to review default judgments, order the exoneration or forfeiture of bonds in criminal cases, and accept returns of jury verdicts where the trial judge is unavailable. This subsection would also enable the court to delegate some of the more administrative functions to a magistrate, such as the appointment of attorneys in criminal cases and assistance in the preparation of plans to achieve prompt disposition of cases in the court.
15
H.R.Rep. No. 1609, 94th Cong., 2d Sess. 12, reprinted in 1976 U.S.Code Cong. & Admin. News 6162, 6172.
16
The legislative history does reveal the purpose of the "additional duties" provision:
17
If district judges are willing to experiment with the assignment to magistrates of other functions in aid of the business of the courts, there will be increased time available to judges for the careful and unhurried performance of their vital and traditional adjudicatory duties, and a consequent benefit to both efficiency and the quality of justice in the Federal courts.
18
Id. (emphasis added).3 This court recently determined that a magistrate's conducting of the jury voir dire in a felony case was within the traditional adjudicatory duties of a judge, and was not intended to be referred to a magistrate under section 636(b)(3) as an additional duty. Trice, 864 F.2d at 1429. The actual trial of a case on the merits is also a "traditional adjudicatory duty" of a trial judge, which would not seem to be included in "additional duties."
19
Congress has been careful to delineate when magistrates may hold evidentiary hearings. With three exceptions, "Congress has been careful to retain fact-finding functions in district judges." Banks v. United States, 614 F.2d 95, 98 (6th Cir.1980). The exceptions are evidentiary hearings in habeas corpus cases, hearings in prisoner suits challenging conditions of confinement, and all proceedings in civil cases by consent of the parties. 28 U.S.C. Sec. 636(c). This case clearly does not fall within any of these exceptions.
20
In Banks v. United States, 614 F.2d 95 (6th Cir.1980), the Sixth Circuit found that the district court could not refer a probation revocation hearing to a United States magistrate under section 636(b)(3). The court reviewed the legislative history and the statutory scheme of section 636. The court stated that, "[t]he plain language of the statute's express provisions demonstrates that Congress was careful to limit referrals to a magistrate. Only certain carefully defined matters can be referred." 614 F.2d at 97. Banks rejected the argument that probation revocation hearings were "additional duties" within section 636(b)(3). The court found that "[t]he statute clearly contemplates that a magistrate be allowed to help a district judge with a variety of pre-trial motions. However, absent consent, the magistrate cannot conduct a trial [herself]." Id.
21
Congress specifically commanded that "neither the district judge nor the magistrate shall attempt to persuade or induce any party to consent to reference of any civil matter to a magistrate." 28 U.S.C. Sec. 636(c)(2). In Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), the Supreme Court stated that "[w]here Congress gave magistrates authority to conduct hearings, the authority was express and circumscribed with procedural safeguards." Id. at 470 n. 11, 94 S.Ct. at 2848 n. 11. The Court in Wingo held that federal magistrates were not authorized to conduct evidentiary hearings in federal habeas corpus cases. In response to Wingo, Congress expanded magistrates' authority in 1979 by allowing magistrates to conduct civil and criminal misdemeanor trials with the consent of the parties. 28 U.S.C. Sec. 636(c).
22
The Seventh Circuit found that a consensual reference of a civil suit to a magistrate for trial on the merits is proper, where the district court review is de novo and the proposed findings and recommendations are filed with the court. Muhich v. Allen, 603 F.2d 1247 (7th Cir.1979). However, in this case no consent was given, and in fact it was expressly withheld.
23
Consent is a necessary prerequisite to the referral of a district court case to a magistrate for disposition on the merits of the case. Muhich, 603 F.2d at 1251-52 (7th Cir.1979) (consensual referral of civil jury trial to magistrate was proper); Hill v. Jenkins, 603 F.2d 1256, 1258 (7th Cir.1979) (nonconsensual referral of civil case to magistrate for trial was improper); DeCosta v. Columbia Broadcasting Sys., Inc., 520 F.2d 499, 504-05 (1st Cir.1975), cert. denied, 423 U.S. 1073, 96 S.Ct. 856, 47 L.Ed.2d 83 (1976) (consensual referral of civil case to magistrate was proper). In the 1979 amendments to section 636 the legislative history reveals congressional concern that consent is a prerequisite to referral of a case to a magistrate for trial on the merits. See, e.g., 125 Cong.Rec. 16,449 (1979) (statement of Mr. Danielson); id. at 26,819, 26,820-21 (statement of Mr. Kastenmeier). One of the issues contained in the congressional conference agreement was the necessity for consent by the parties. "First, with regard to the magistrates' authority to try civil cases, the conference substitute makes clear that the free and voluntary consent of the parties is required before a civil action may be referred to a magistrate for a final decision." 125 Cong.Rec. at 26,821.
24
We cannot infer that Congress intended to include nonconsensual evidentiary hearings as "additional duties," under section 636(b)(3). Therefore, we find the magistrate was without jurisdiction to hold an evidentiary hearing and adjudicate the merits of petitioner's case. We remand the case for a new trial before the district court.
1
The Honorable H. David Young, United States Magistrate for the Eastern District of Arkansas
2
The Honorable Elsijane T. Roy, United States District Judge for the Eastern District of Arkansas
3
In Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976), the Supreme Court held that this section authorizes district courts to refer social security cases to magistrates for preliminary review of the closed administrative record. The magistrate's recommendation to the court is confined to whether or not there is substantial evidence to support the Secretary's decision. The final decision remains with the judge, who has discretion to review the record de novo
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402 F.2d 455
Richard A. LAUCHLI, Jr., Appellant,v.UNITED STATES of America, Appellee.
No. 19138.
United States Court of Appeals Eighth Circuit.
Nov. 1, 1968.
Lewis E. Pierce, of Pierce, Duncan, Beitling & Shute, Kansas City, Mo., for appellant. Richard A. Lauchli, Jr., pro se.
Calvin K. Hamilton, U.S. Atty., and Anthony P. Nugent, Jr., First Asst. U.S. Atty., Kansas City, Mo., for appellee.
Before VOGEL, Senior Circuit Judge, and LAY and BRIGHT, Circuit judges.
PER CURIAM.
1
Defendant Lauchli was convicted of transferring a .50 caliber, Browning, air-cooled machine gun on May 27, 1965, without having paid the special transfer tax required by 26 U.S.C.A. 5811 in violation of 5861. Upon conviction Lauchli was sentenced to 18 months in custody of the Attorney General to be served consecutively with another sentence he was presently serving.
2
This case was tried prior to the United States Supreme Court's decisions in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968). Under these circumstances, although defendant did not raise the privilege of self-incrimination at the trial his privilege is not waived. Cf. Grosso v. United States, 390 U.S. at 70-72, 88 S.Ct. 709; Drennon v. United States, 393 F.2d 342 (8 Cir. 1968).
3
Payment of the transfer tax under 5811 requires self-incriminatory conduct as invidious as payment of the gambling tax under Grosso v. United States, supra. It is now settled that where compliance with a federal statute results in an admission of an offense under state law,1 the privilege of self-incrimination may be raised in a federal prosecution. See DePugh v. United States, 401 F.2d 346 (8 Cir. 1968); and cf. Reed v. United States, 401 F.2d 756 (8 Cir. September 26, 1968.)
4
Judgment reversed and remanded with directions to dismiss.
1
The Missouri statute on illegal possession of a firearm reads:
'It shall be unlawful for any person to sell, deliver, transport, or have in actual possession or control any machine gun, or assist in, or cause the same to be done. Any person who violates this section shall be guilty of a felony and punished by imprisonment in the state penitentiary not less than two nor more than thirty years, or by a fine not to exceed five thousand dollars, or by both such fine and imprisonment; provided, that nothing in this section shall prohibit the sale, delivery, or transportation to police departments or members thereof, sheriffs, city marshals or the military or naval forces of this state or of the United States, or the possession and transportation of such machine guns, for official use by the above named officers and military and naval forces in the discharge of their duties.' Mo.Ann.Stat. 564.590 (1953).
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202 Md. 247 (1953)
96 A.2d 7
NOEL
v.
STATE
[No. 123, October Term, 1952.]
Court of Appeals of Maryland.
Decided April 17, 1953.
*249 The cause was argued before SOBELOFF, C.J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
Charles J. Stinchcomb, with whom were Joseph Rosenthal and Josiah F. Henry, Jr., on the brief, for the appellant.
Kenneth C. Proctor, Assistant Attorney General, with whom were Edward D.E. Rollins, Attorney General, Anselm Sodaro, State's Attorney for Baltimore City, and Julius A. Romano, Assistant State's Attorney, on the brief, for the appellee.
HENDERSON, J., delivered the opinion of the Court.
The appellant was indicted for violation of the lottery laws, tried by the court and a jury, found guilty under counts charging possession of lottery paraphernalia, and sentenced to 10 months in the State Reformatory for Women and a fine of $1,000. The evidence disclosed that the police raided the premises at 2416 West Lexington Street, armed with a proper search warrant, on May 9, 1952, at about 6 P.M. It was a two-story dwelling, with apartments on each floor, but a common street entrance. On the second floor they found the appellant seated beside her bed. In a dresser drawer they found 12 one-hundred dollar bills, a gas and electric bill made out to the appellant, and a paper containing lottery notations. Two lottery slips were found under the mattress of her bed; 18 adding machine tapes were found in the cupboard, other tapes in the bathroom. The slips and tapes indicate a large amount of play, in excess of $76,000. A complete search of the apartment revealed "nothing that would be used by men"; only "women's wearing apparel and other things that women would use". It was stipulated that the telephone and gas and electric service were listed in appellant's name.
The appellant took the stand and denied any knowledge of the lottery paraphernalia. She admitted the apartment was leased in her name, but testified she rented it for herself and her brother who was 21 years old and *250 in the army but stayed there when he was home. He had been there about a week before the raid; he left the money with her as they had planned to buy a house. She was regularly employed at Havre de Grace by an undertaking and trucking firm, and was not at home during the day. In addition to her brother, several other relatives and friends had keys to the apartment.
The appellant does not challenge the legal sufficiency of the evidence, but contends that the court erred in excluding evidence tending to show that a particularly described man had been seen by the police on previous occasions, entering the house under suspicious circumstances during her absence. The defense called Officer Fink, who had obtained the search warrant, and sought to interrogate him about its contents. After objections had been sustained to this line of inquiry, a proffer was made to prove by Officer Fink that on the afternoon of May 2, he saw a described colored man about 30 years old, in an army fatigue jacket, collecting packages from various men, saw him enter 2416 West Lexington Street, and saw him standing at the window in the rear of the first floor.
The affidavit upon which a search warrant is based is not evidence at the trial. Goss v. State, 198 Md. 350, 353-354, 84 A.2d 57, 58. But evidence of criminal offenses need not be restricted to the exact date mentioned in the indictment or warrant. Wilson v. State, 200 Md. 187, 193, 88 A.2d 564, 566. Testimony, if relevant to the issues, may be introduced even if it parallels matters alleged in the warrant. Berry v. State, 202 Md. 62, 95 A.2d 319. In the instant case we think the defense should have been permitted to interrogate the officer as to what he observed in connection with the premises on March 16 (when according to his affidavit he observed the described man at the second story window of the premises, after he had collected packages and currency from other men), and on May 5 (when he entered the premises under similar circumstances). The State argues that the proffer to *251 show what was observed on May 2 did not place the described man in the second floor apartment, and hence failed to connect him with the appellant or the offense charged. But the court not only excluded the proffer, but sustained objections to specific questions as to other occasions, and the whole line of inquiry. It was possible to gain access to the apartment after entry into the building, and on one occasion the man was observed on the second floor. Cf. Fleming v. State, 201 Md. 145, 150, 92 A.2d 747, 749, and Berry v. State, supra.
The hours when these observations were made were in the early afternoon, when the appellant was presumably at work, and the officer never saw her until the day of the raid. Since the defense was that other persons were using the apartment in connection with a lottery operation in her absence and without her knowledge, the excluded testimony was relevant to the issue. Of course, the jury would not have been obliged to believe that the defendant was unaware of the use and not a party to it. Brown v. State, 200 Md. 211, 88 A.2d 469. But the testimony tended to corroborate her story, its weight being for the jury. We cannot say that its exclusion was not prejudicial.
The appellant also complains of that portion of the court's charge to the jury which stated that they "might consider whether or not she had exclusive possession of the apartment". We find no error here. The jury were told that they should find her not guilty if they did not believe she was in possession of the paraphernalia found in the apartment, and that they should consider all the testimony bearing on that issue. They were told that it was their function to decide the facts, and that any reference to the facts by the court was simply to point up the issues. We think the charge as a whole fairly stated the issue. The reference to "exclusive possession" invited their consideration of the testimony as to the possibility that the lottery material might have been brought to the apartment by other persons without her knowledge.
*252 The appellant also complains that the court failed to instruct the jury as to the consideration and weight to be given to the testimony of seven character witnesses. The propriety of such an instruction is generally recognized. Edgington v. United States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467. But it has been held under the federal practice, Rule 30 of the Criminal Rules, that failure to instruct on the point is not reversible error in the absence of a request for such an instruction. United States v. Antonelli Fireworks Co., 2 Cir., 155 F.2d 631; United States v. Capitol Meats, 2 Cir., 166 F.2d 537; United States v. Corry, 2 Cir., 183 F.2d 155. On the other hand, it has been held that where there was a request for instruction that was technically erroneous, the court should have included a correct instruction in his charge. Colbert v. United States, 79 U.S. App. D.C. 261, 146 F.2d 10.
In the instant case there were apparently no requests for instructions made by either side, but the court invited objections after the charge was delivered. Rule 6(f), of our Criminal Rules of Practice and Procedure. Upon objection that the charge did not include "the importance and weight of character testimony", the trial judge said: "The Court would have instructed regarding character witnesses if I had been requested to do it, but at this time I feel it would lay undue weight to that testimony." We think the request was not too late. As we said, in connection with the similar provision in Rule 6(c), III Trials, of the civil Rules of Practice and Procedure, "The rule necessarily contemplates that the trial judge, in an appropriate case, should have the power and the opportunity to amplify his charge, * * *." Fisher v. Baltimore Transit Co., 184 Md. 399, 402, 41 A.2d 297. See also Sun Cab Co. v. Powell, 196 Md. 572, 583, 77 A.2d 783, 787. We think it would not have unduly stressed the testimony in question to have covered a point not covered in the previous instructions.
Judgment reversed, and new trial awarded.
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526 So.2d 202 (1988)
William Edward BAKER, Appellant,
v.
STATE of Florida, Appellee.
No. 4-86-2626.
District Court of Appeal of Florida, Fourth District.
June 8, 1988.
*203 Mel Black, Miami, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
GLICKSTEIN, Judge.
This appeal followed appellant's conviction for attempted sexual battery upon a child. He had been charged with sexual battery and kidnapping. We affirm the conviction but reverse the sentence and remand for resentencing.
We have reviewed the decisions of two trial judges in this case. The first judge conducted the trial and is alleged to have made three errors:
1. Instructing the jury on the offense of attempted sexual battery. We conclude this was not error.
2. Not instructing the jury on simple battery. We conclude this was not error.
3. Using an incorrect scoresheet in determining appellant's guideline sentence. We conclude there was error in scoring of twenty points for victim injury (physical).
The second judge conducted a hearing on appellant's pretrial motion for independent psychological examination of the victim. We conclude the trial judge did not abuse his discretion in denying the motion.
We have not been asked to review the legal sufficiency of the evidence presented by the prosecution witnesses, including the victim, the individuals she told of the incident shortly after its occurrence, the investigating law enforcement officers and the examining pediatrician. Further, we have not been asked to review the testimony of the non-victim witnesses from the stand-point of the competency of the evidence they produced, without objection. The jury considered the tape of appellant's statement as well as his testimony, denying any act for which he was charged, and the testimony of his character witnesses and an examining psychiatrist.
We shall first deal with the matters considered by the trial judge who conducted the trial. In reversing the sentence, we follow Smith v. State, 484 So.2d 649, 650 (Fla. 4th DCA 1986), which quoted Hendry v. State, 460 So.2d 589 (Fla. 2d DCA 1984), for the principle that points for victim injury cannot be properly awarded under the guidelines in the instant case when victim injury is not an element of the convicted offense. The present case, in our view, is similar to Inscore v. State, 480 So.2d 218 (Fla. 4th DCA 1985), which held victim injury could not be scored for attempted aggravated battery. It was error to score victim injury for attempted sexual battery.
As to the two questions with respect to the instructions, we find no error in instructing upon attempted sexual battery; and appellant did not request that the jury be instructed upon simple battery, foreclosing consideration of the latter issue on this direct appeal.
The question presented to the other trial judge bears further discussion, although no hearing was requested by the defense pursuant to section 90.803(23), Florida Statutes (1985),[1] of either trial judge; and no objection was made at trial to the testimony of the victim or those to whom she told of the incident immediately after it allegedly occurred or during the investigation that evening and later.
The pretrial motion for an independent psychological examination of the victim was filed on April 17, 1986. There were no exhibits attached to the motion. If depositions were transcribed, they were not made part of the record here nor were they made part of the motion.
At the hearing on the motion conducted on May 29, 1986, the transcript of which is here, the trial judge stated his understanding of the law was that the decision *204 was within his discretion; and that there need be very strong and compelling reasons for ordering such examination. Although not cited at the hearing, supporting authority, involving the prosecutrix in a rape case, is provided by this court's decision in Dinkins v. State, 244 So.2d 148, 150 (Fla. 4th DCA 1971). The recent case of State v. Coe, 521 So.2d 373 (Fla. 2d DCA 1988), quashing a trial court order requiring a sexual battery victim to undergo a psychiatric examination for the purpose of determining her credibility, reviews and agrees with Dinkins.
A thorough discussion of the role of discretion in a court's determination whether to order a mental examination of the victim of a sexual assault appears in an annotation on that subject, Necessity or Permissibility of Mental Examination to Determine Competency or Credibility of Complainant in Sexual Offense Prosecution, 45 A.L.R. 4th 310 (1986).[2] A representative case cited in that annotation, State v. Walker, 506 A.2d 1143, (Me. 1986) said:
Courts in most states have held that the grant or denial of a motion to compel victims of sex abuse to submit to psychological testing rests within the sound discretion of the trial judge. E.g., People v. Glover, 49 Ill.2d 78, 273 N.E.2d 367, 370 (1971); Easterday v. State, 254 Ind. 13, 256 N.E.2d 901, 903 (1970); State v. Boisvert, 119 N.H. 174, 400 A.2d 48, 51 (1979); Gov't. of Virgin Islands v. Scuito, 623 F.2d 869, 874-75 (3d Cir.1980). Three factors compelled one court to conclude that such tests were justified: (1) the victim's youth, (2) the fact that she had accused other men of having unlawful sexual contact with her, and (3) her admission at trial that those other accusations were false. Easterday, 256 N.E.2d at 903. Another court, however, recognized that victims of sexual assault have substantial privacy rights, so that there must be compelling reasons to require them to submit to psychiatric examinations. Boisvert, 400 A.2d at 51.
There is nothing in the present case that would lead us to conclude that the Superior Court abused its discretion in denying the Defendant's motion. The victim's age, eleven years at trial, is not noteworthy in itself. There is no presumption whether children under 14 are competent to testify at criminal trials; their competency is to be evaluated at the discretion of the presiding justice. State v. Pomerleau, 363 A.2d 692, 695 (Me. 1976). Nor is there the slightest evidence the victim in this case fabricated charges of gross sexual misconduct against the Defendant's friend or any other man. The mere fact that she has implicated other men does not, without concrete evidence of fabrication, militate in favor of psychological testing. Furthermore, in light of the privacy interests of sexual abuse victims, we decline to permit the random exploration of their credibility by means of potentially embarrassing psychological tests. The fact that a defendant calls a victim's credibility into question is insufficient justification for psychological testing; her credibility is for the fact finder to determine. Allen v. State, 152 Ind. App. 284, 283 N.E.2d 557, 559 (1972). The Superior Court correctly denied the Defendant's motion.
Id. at 1147-48.
During the hearing on appellant's motion in the present case, the following colloquy took place:
THE COURT: Just a moment. I'm telling you, I'm going to have to take testimony.
... .
*205 [DEFENSE COUNSEL]: To declare a psychological impairment, there's got to be more than merely inconsistencies [sic].
THE COURT: That's why I said I need live testimony.
... .
[DEFENSE COUNSEL]: Three of the woman's children have accused another man of sexual assault, and he is now in jail.
THE COURT: I am through using the time. Your personal opinions are in the motions.
[DEFENSE COUNSEL]: That's all I have.
THE COURT: Your personal opinions concerning all the testimony and things that you think should be right, it is unsupported in suggestion, or in affidavit from any one of psychological expertise, that what you have discovered so far, indicates that the child suffers from any kind of emotional condition, which would warrant the Court record.
[DEFENSE COUNSEL]: I don't know that.
THE COURT: We're not going to do it on guess work. I decline to grant the motion.
[DEFENSE COUNSEL]: Okay. Is there a Would an evidentiary hearing motion
THE COURT: The motion is denied.
[DEFENSE COUNSEL]: Okay.
THE COURT: If you have other data that you have available to submit to the Court, file it with the appropriate information with the motion.
The case was not tried until September 29, 1986, four months after the hearing. No effort was apparently made in that period to provide supportive material or renew the motion.
The victim's statements about the episode were corroborated by the testimony of her playmate, the playmate's mother, the first officer on the scene, and detectives. Inconsistencies in the statements as well as the victim's conduct after the episode were all spelled out to the jury, which evaluated and determined what did and did not occur. We are not being asked to substitute our determination for the jury's; nor would it be our function to do so.
In determining whether the trial judge abused his discretion, we have considered the four corners of the motion, and the hearing thereon, and are equally unwilling to substitute our judgment for his as it is clearly not our function to do so.
We have avoided deciding this issue on any technical basis. While the gist of the motion speaks of the credibility of the victim and the state argues the defense was asking the trial court to invade the province of the jury, we understand appellant was asking that the trial court evaluate the victim to determine if she was, because of some psychological reason, misperceiving reality. Her previous experience, involving another individual convicted for the molestation, coupled with the nature of her home life, were primary considerations for the trial judge to evaluate. We are not going to repudiate the trial judge's decision, the effect of which was not to reject out of hand the motion with prejudice but was, in effect, a denial without prejudice to provide the court with more information, which the defense failed to do.
We note that this court's decision in Kruse v. State, 483 So.2d 1383 (Fla. 4th DCA 1986), has now been followed by the First District Court of Appeal in Ward v. State, 519 So.2d 1082 (Fla. 1st DCA 1988). In Ward, the court recognized that we were not saying that an expert witness may be offered to vouch for directly or reject directly the credibility of a witness.[3]
LETTS, J., concurs.
HERSEY, C.J., dissents with opinion.
HERSEY, Chief Judge, dissenting.
The concept of sexual child abuse is impossible to reconcile with the notion of a civilization that has advanced intellectually, technologically and philosophically to the point where sending man to the planets is not only a goal which is comprehensible but one which is also realistically possible. *206 Nevertheless, asocial behavior and psychological aberrations remain a fact of life with which mankind must deal regardless of its higher aspirations.
In these cases both parties are victims. The child is victimized by circumstances and by the opportunistic pedophile. The adverse psychological impact on the child is immeasurable and the crime deplorable. The accused pedophile is victimized by the accusation itself which places an indelible stain on his honor and reputation for which even acquittal may not be a solvent.
The pedophile is a pathetic slave to abnormal cravings which are literally unimaginable to the unafflicted. And, once discovered, his propensity attracts not merely the pity which it justly deserves but also the loathing and hatred of parents and others who realize that, had circumstances dictated, their own child or neighbor or friend might have been the victim.
Such an accusation carries with it a mantle of hatred and disgrace which can erase a man's reputation, deprive him of his self-respect and his means of earning a livelihood, turn his family and friends against him, and if carried to its logical extreme, take from him his freedom and thus, ultimately, his very life. Because of this it is of crucial importance that safeguards be designed and that they be meticulously applied to ensure that the presumption of innocence does not become obscured by the spectre of unspeakable obscenities which shock and therefore desensitize the sensibilities even of those otherwise trained in objectivity and to whom due process is a professional way of life.
In every such case one of the parties, and sometimes, both, are in desperate need of help. It may be the accused or it may be the putative victim. In either event, no help can be extended unless the ill and the illness are identified.
The issue which we address here is the trial court's failure to require a psychological examination of the victim, a child of the tender age of seven years. It goes without saying that becoming a victim should not subject one to any type of privacy-invading scrutiny at the behest either of the individual who allegedly created the situation or of those charged by law with the responsibility for finding and punishing the guilty. The dilemma is that the accused may not be responsible for the situation or the discomfiture of the victim. He may be (and presumably is) NOT GUILTY of the atrocity to human sensibilities with which he is charged.
Balancing these values and interests is an unenviable responsibility. Neither the trial court nor the judges on the majority opinion in this court can be criticized for the positions they have taken. Indeed, had the defense at trial supported its motion to require an examination with affidavits and expert opinion, as inferentially suggested by the trial judge, this appeal might not have been necessary.
Since it is, and because a man's honor and freedom are both at stake in a case that involves very close questions on evidentiary rulings and on credibility issues, I must, reluctantly, ascribe an abuse of judicial discretion to the trial judge for failing to require that the victim submit to psychological evaluation.
Given as a prerequisite that, as in the usual case, the victim in a particular childabuse case is the only witness who is in a position to give direct evidence of the incident, I believe that some of the factors which weigh heavily on the side of requiring a psychological evaluation are the following:
1. The environment in which the child is being raised is other than the normal two-parent setting and one or more examples of promiscuous behavior by a parent, a sibling or other occupant of the household is brought to the attention of the court.
2. Recitations of details of the incident by the victim are inconsistent or incredible.
3. One or more aspects of the victim's subsequent reaction to the incident or the accused may be characterized as bizarre or at least unusual.
4. Psychological evaluation of the accused does not indicate pedophilic tendencies.
*207 5. The history of the accused is devoid of incidents involving sexual aberration.
6. The reputation of the accused in the community is such that child molestation is contra-indicated.
To the extent possible, specifics from the record in this case have been avoided in order to preserve the privacy interests of all parties concerned. However, each of the foregoing factors is related in an evidentiary manner to the situation under review. Because of this, I would reverse and remand for a new trial, requiring as a condition precedent that the victim be required to undergo psychological or psychiatric testing. The most recent discussion of the power of a court to require such an examination is to be found in State v. Coe, 521 So.2d 373 (Fla. 2d DCA 1988).
With some trepidation I therefore respectfully dissent.
NOTES
[1] See the distinction drawn between "competency" and "reliability" by the Supreme Court of Washington in a discussion of a similar statute. State v. Doe, 105 Wash.2d 889, 719 P.2d 554 (1986) (en banc). The concurrence is also instructive because of the references, which can relieve our lack of knowledge.
[2] Neither the parties nor this court see any difference, for the purpose of this discussion between a psychiatric and psychological examination although the trial court used the former term. We note, without deciding that the same is true in criminal matters, the holding in Loomis v. Kaplaneris, 519 So.2d 1058 (Fla. 2d DCA 1988) (Fla.R.Civ.P. 1.360(a), respecting compulsory examinations by physicians, does not extend to examinations by psychologists).
[3] In Kruse, we recognized the admissibility of expert testimony on post traumatic stress in a child sexual assault case. That expert testimony can go either way and be admissible to show the existence or nonexistence of the syndrome. It is as much a shield for the defense as it is a sword for the prosecution.
|
764 F.2d 522
18 Fed. R. Evid. Serv. 791
Frederic M. GOFFSTEIN and Andrea J. Goffstein, Appellants,v.STATE FARM FIRE & CASUALTY CO. and State Farm MutualAutomobile Ins., Co., Appellees.
No. 84-1858.
United States Court of Appeals,Eighth Circuit.
Submitted March 13, 1985.Decided June 12, 1985.
Robert D. Blitz, St. Louis, Mo., for appellants.
Daniel E. Wilke, Clayton, Mo., for appellees.
Before HEANEY and BRIGHT, Circuit Judges, and HANSON,* Senior District Judge.
BRIGHT, Circuit Judge.
1
Frederic and Andrea Goffstein, husband and wife, brought this action against State Farm Fire & Casualty Company and State Farm Mutual Automobile Insurance Company (collectively "State Farm") on homeowners and automobile insurance policies, to recover for fire losses occurring on their home premises in Creve Coeur, Missouri. The fire damaged their home and personal property in the dwelling, plus two automobiles in the garage. State Farm denied liability on grounds that Mrs. Goffstein had intentionally set the fire. At trial, the district court submitted a special verdict form to the jury and received the answer shown below:
INTERROGATORY NO. 1
2
On the question of whether or not the fire was intentionally set by either plaintiff or someone acting with the knowledge and consent of either plaintiff, we [the jury] find:
3
in favor of plaintiff
4
X in favor of defendants.
5
The court entered a judgment of dismissal for the defendants and this appeal followed.
The Goffsteins raise the following issues:
6
1. That the trial court erred in excluding evidence that Mrs. Goffstein had not been charged and would not be charged with a criminal offense for allegedly setting the fire.
7
2. That the verdict was against the weight of the evidence.
8
3. That Frederic M. Goffstein, as an innocent coinsured, is entitled to collect one-half of the policy proceeds covering the dwelling house and personal property therein, plus the value of one automobile which he solely owned.
9
For the reasons stated below, we affirm.
10
I. BACKGROUND.
11
The fire in question started in the Goffsteins' garage during the early morning hours of June 13, 1983. Mrs. Goffstein was the only person on the premises at the time. The fire spread quickly from the garage to the house and caused extensive damage to both. After the fire had been extinguished by the fire department, the St. Louis County Police Department investigated and concluded that the fire was incendiary in origin and that a liquid accelerant had implemented the blaze. The plaintiffs' expert witness testified that the fire had an accidental origin, from the arcing of an electrical wiring connection in the garage. Mrs. Goffstein denied setting the fire or knowing how it had started.
12
At trial, the defendant called two police department investigators to testify that the fire had been intentionally set. These witnesses revealed their affiliation with the official investigation of the fire and, in addition, one referred to himself as a detective in the Bureau of Arson and Explosives and the other testified that he was "responsible for investigating arsons." The defendant also called two of its employees, claims specialist Charles Page and claims supervisor Martin Carmody, to testify about their reasons for denying the claim. Both witnesses testified that they denied the claim because they believed that the fire had been intentionally set, based on information received from police and from State Farm's investigation of the fire. During this testimony, the trial judge cautioned the jury that this evidence was admitted solely on the question of whether defendant had vexatiously refused to pay the claim.
13
In their cross-examination of Carmody, the plaintiffs sought to elicit testimony that Mrs. Goffstein had not been charged with a crime in connection with the fire. The defense objected on relevancy grounds. In a bench conference, the defendant's attorney stated that he would ask for a mistrial if the evidence were admitted and that he would also want to bring in the prosecutor to testify (assuming that the mistrial motion was denied). The judge concluded the conference by stating that he would sustain the objection but he would solve the issue "by a suitable instruction," indicating that such instruction would be specific and not vague or nondescript.
14
II. DISCUSSION.
15
A. Evidence Sought on Cross-Examination.
16
The plaintiffs allege that the extensive reference to a criminal investigation during the trial necessarily suggested to the jury that the authorities intended to prosecute Mrs. Goffstein for arson. They argue that the court should have allowed them to negate this inference by demonstrating that the official arson investigation had been closed without charging anyone.
17
As a general rule, evidence that criminal charges were not brought is inadmissible in a civil case arising out of the same events as the criminal charges. See Galbraith v. Hartford Fire Ins. Co., 464 F.2d 225 (3d Cir.1972). Plaintiffs acknowledge this general rule, but argue that the evidence should nevertheless have been admitted under the doctrine of curative admissibility. "The doctrine of curative admissibility allows a trial judge, in his discretion, to admit otherwise inadmissible evidence in order to rebut prejudicial evidence which has already been erroneously admitted." United States v. Nardi, 633 F.2d 972, 977 (1st Cir.1980). Plaintiffs argue that evidence concerning the police investigation of this fire was both prejudicial and improperly admitted.
18
We are not convinced that the evidence concerning the police investigation unduly prejudiced plaintiffs. The officers' testimony focused solely on the cause of the fire; neither discussed any subsequent criminal investigation. Plaintiffs did not object that these witnesses testified as police investigators. Additionally, the most pointed reference to the criminal investigation occurred as a result of plaintiffs' cross-examination.1 Likewise, we conclude that any prejudice which might have resulted from Page's or Carmody's reference to a police investigation was cured by the court's prompt admonition to the jury. Finally, we note that Mrs. Goffstein did testify during direct examination that she had never been arrested, charged with, or convicted of a felony. We believe that this evidence minimized any prejudicial inference.
19
Plaintiffs also argue that they were prejudiced by the trial court's failure to instruct the jury regarding defense references to the police investigation, after the court had promised to give such an instruction. The record submitted by the appellants does not include the instructions to the jury. However, plaintiffs' counsel asserted during oral argument that the court did not give the instruction. Such omission does not merit reversal because the plaintiffs have not established that they objected to the failure to give the instruction. See Fed.R.Civ.P. 51.
20
Furthermore, we do not think the evidence regarding a police investigation was improperly admitted. In their complaint, plaintiffs alleged that defendant's refusal to pay their claims was "vexatious and without reasonable cause." Defendant was entitled to introduce evidence to refute this claim, including information from the police department that the fire had been intentionally set.
21
Because the prerequisites for curative admissibility have not been met in this case, we conclude that evidence of the decision not to prosecute Mrs. Goffstein was inadmissible on the issue of whether the fire had been intentionally set. While the evidence would have been admissible on the issue of defendant's vexatious denial of the claim, the court's failure to admit it constituted harmless error.2
22
B. Other Issues.
23
The other points raised by the appellants merit only brief comment. The "weight of the evidence" argument received the attention of the district court in its ruling on the plaintiffs' motion for new trial. The district court denied that motion. We recently indicated that no error can be predicated on such a denial, at least in the absence of an abuse of discretion. Chohlis v. Cessna Aircraft Co., 760 F.2d 901 at 906 No. 84-1387 (8th Cir.1985). Plaintiffs have not alleged that the district court's denial of their motion for a new trial was an abuse of discretion. Accordingly, we will not reverse on this basis.
24
The claim that Frederic Goffstein, as an innocent party and a co-insurer, should recover for a separate interest in the property that had been damaged in the fire, or for his interest in the property which he jointly held with his wife, has not been raised before or considered by the district court. We will not address that issue for the first time on appeal. Mr. Goffstein may seek to raise that new contention in the district court, if he chooses to do so.
25
III. CONCLUSION.
26
On review of the record, and subject to whatever rights Mr. Goffstein may have to raise his separate claims in the district court, we affirm the judgment.
*
The HONORABLE WILLIAM C. HANSON, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation
1
Q Mr. Huffmon, you are with the Bomb and Arson Squad, right?
A That's correct.
Q You get called out when an arson has occurred, is that right?
A That's right.
Q How do they know it's occurred if you are just getting called out?
A The fire department makes that determination.
Q So you didn't make a determination whether or not there was arson, did you?
A I did after I got there.
Q All right.
2
It seems to us that the district court should have permitted plaintiffs to inquire whether Carmody knew, at the time he denied the claim, that Mrs. Goffstein would not be charged with arson. This question would have been proper if it were directed solely to the issue of defendant's good faith in refusing to pay the claim. It would have been relevant to Carmody's state of mind, and defendant had opened the door to it by inquiring about the police investigation. We will not reverse on this basis, however, because the error must be considered harmless in light of the jury's answer to Interrogatory No. 1 relating to the cause of the fire. The plaintiff's evidence that the arson case against Mrs. Goffstein was closed had little, if any, probative value on the cause of the fire
|
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00607-CV
David Thompson, Appellant
v.
Melissa Banning, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. 260390, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant David Thompson and appellee Melissa Banning have filed a joint motion
to dismiss the appeal, stating that they have settled their dispute. We grant the motion and dismiss
the appeal. See Tex. R. App. P. 42.1(a).
David Puryear, Justice
Before Chief Justice Law, Justices Kidd and Puryear
Dismissed on Joint Motion
Filed: November 4, 2004
|
2014 IL App (3d) 120820WC
NO. 3-12-0820WC
Opinion filed May 8, 2014
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
WORKERS' COMPENSATION COMMISSION DIVISION
JANE R. BRAIS, ) Appeal from the
) Circuit Court of
Appellant, ) Kankakee County.
)
v. ) No. 10 MR 650
)
THE ILLINOIS WORKERS' COMPENSATION ) Honorable
COMMISSION, et al., (County of Kankakee, Circuit ) James B. Kinzer
Clerk's Office, Appellees.) ) Judge, presiding.
JUSTICE STEWART delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justices Hoffman, and Hudson concurred in the
judgment and opinion.
Justice Harris specially concurred, with opinion.
OPINION
¶1 The claimant, Jane R. Brais, filed an application for adjustment of claim against her
employer, the Kankakee County Circuit Clerk's Office, seeking workers' compensation
benefits for an injury to her left wrist she allegedly sustained at work on December 20,
2006. The claim proceeded to an arbitration hearing under the Workers' Compensation
Act (the Act) (820 ILCS 305/1 et seq. (West 2006)). The arbitrator found that the
claimant failed to meet her burden of proving that she sustained accidental injuries which
arose out of and in the course of her employment.
¶2 The claimant appealed to the Illinois Workers' Compensation Commission
(Commission), which affirmed and adopted the decision of the arbitrator. The claimant
filed a timely petition for review in the circuit court of Kankakee County. The circuit
court confirmed the Commission's decision, and the claimant appealed.
¶3 BACKGROUND
¶4 The following factual recitation is taken from the record and the evidence presented
at the arbitration hearing.
¶5 The claimant began working for the employer as a child support coordinator on
April 15, 2002. Her office is located in the Kankakee County Courthouse. The claimant
testified that on December 20, 2006, at about 11:00 a.m., she was returning to her office
from a work-related meeting at the administration building. The administration building
is about 2 blocks from the courthouse. Typically employees enter the courthouse through
an employee entrance at the back of the courthouse. The employee entrance is locked at
9:30 a.m. so the claimant had to enter through the front door to the courthouse. The
claimant testified that she took that path every day. She was wearing 2 inch high heels
and, when she was less than two feet from the stairs leading to the front entrance to the
courthouse, her heel caught in a defect in the sidewalk and she fell. She described the
sidewalk where she fell as having huge cracks, being broken up, and "you could pretty
much see the gravel that they put down underneath the concrete." The claimant stated that
2
there was a one-half to a one inch difference in the level between the smooth concrete
leading up to the crumbled concrete. The claimant struck her left wrist and right knee
when she fell. She felt a sharp pain in her wrist.
¶6 The claimant entered the courthouse and told her department head, Circuit Clerk
Kathy Thomas, about the accident. Ms. Thomas took her to the emergency room at
Provena St. Mary's Hospital. The claimant had an x-ray of her left wrist. Dr. Robert
Marshall wrote that the x-rays showed arthritic changes throughout the wrist mainly on the
radial side of the wrist and a lineal lucency through the proximal scaphoid. The claimant
was seen at Provena St. Mary's Hospital on December 22, 2006, January 2, 2007, and
January 9, 2007. She was diagnosed with a left wrist scaphoid fracture and referred to Dr.
Muhammad.
¶7 Dr. Kermit Muhammad started treating the claimant on January 5, 2007. X-rays
were taken. Dr. Muhammad wrote in his patient notes that the x-rays showed that the
claimant had a left proximal pole scaphoid fracture, nondisplaced, of her left wrist. He
examined her again on February 2, 2007, March 2, 2007, April 13, 2007, and June 1, 2007.
During this time, the claimant was treated with a wrist brace, a bone stimulator, and
physical therapy. On July 17, 2007, Dr. Muhammad examined the claimant and noted
that her left wrist had a persistent lucency and fracture line. He referred her to Dr. John
Fernandez.
¶8 Dr. John Fernandez examined the claimant on August 9, 2007. He diagnosed her
with scaphoid nonunion with avascular necrosis and early dorsal intercalated segment
3
instability. He recommended either a left wrist total fusion, a left wrist scaphoid excision
with partial fusion, or a left wrist proximal row carpectomy.
¶9 On March 14, 2008, Dr. Fernandez performed a left wrist total fusion with proximal
row carpectomy and scaphoid excision, and a left carpal tunnel release on the claimant.
He wrote that multiple x-ray views of the left hand and wrist revealed excellent alignment
of the fusion plate. He referred her for therapy.
¶ 10 On July 9, 2008, Dr. Fernandez examined the claimant. He wrote in his patient
notes that multiple x-rays of the left wrist revealed a successful fusion with no hardware
migration or failure. He advised that she could discontinue her supervised therapy and
engage in a home program on her own. He wrote that she was currently at maximum
medical improvement. He permanently restricted her to "light use in the 10- to 15-pound
range without significant exposure to repetition beyond 2 to 3 hours total in a day without
significant use of tools." He noted that in the future the claimant may require removal of
the deep hardware including the plate and screws.
¶ 11 On March 4, 2009, at the employer's request, the claimant underwent an
independent medical evaluation with Dr. Charles Carroll IV. He diagnosed her with
scaphoid fracture with avascular necrosis which necessitated fusion. He found that her
treatment had been reasonable and necessary and that it related to her industrial injury. He
found that she had reached maximum medical improvement and he agreed with her 15
pound lifting restriction. Dr. Carroll opined that hardware removal was not required at
that time.
4
¶ 12 At the time of the arbitration hearing, all the medical bills incurred as a result of the
claimant's medical treatment had been paid. The claimant testified that the employer had
accommodated all of the work restrictions placed on her by her physician and that she did
not lose time from work due to her injury. She stated that she is working in the same
position as prior to her injury.
¶ 13 The claimant testified that, at the time of the arbitration hearing, the sidewalks in
front of the courthouse had been replaced. After her fall, she spoke before the safety
committee about the condition of the sidewalk. She stated that the area where she fell was
specifically addressed in safety meetings after December 20, 2006, and the issue was
discussed until the county had the funds to make the repairs.
¶ 14 The arbitrator found that the claimant did not sustain injuries that arose out of and in
the course of her employment. He found that the claimant's accident occurred when she
was walking along a public pathway going in to the county courthouse. In doing so, she
was not subjected to a risk to which the general public is not exposed or that was peculiar to
her work. He found that the risk to the claimant which caused her injuries was no greater
to her than to the general public.
¶ 15 The claimant sought review of the arbitrator's decision. The Commission affirmed
and adopted the arbitrator's decision. The claimant appealed the Commission's decision
to the circuit court. Following a hearing, the circuit court confirmed the Commission.
The claimant filed a timely notice of appeal.
¶ 16 ANALYSIS
5
¶ 17 The claimant argues that the Commission erred in its determination that her wrist
injury did not arise out of and in the course of her employment.
¶ 18 To be compensable under the Act, an injury must be one "arising out of and in the
course of the employment." 820 ILCS 305/2 (West 2006). "An injury is sustained 'in the
course' of employment when it occurs during employment, at a place where the worker
may reasonably perform employment duties or engage in some incidental employment
duties." Baggett v. Industrial Comm'n, 201 Ill. 2d 187, 194, 775 N.E.2d 908, 912-13
(2002). An injury "arises out of" one's employment if it originates from a risk connected
with, or incidental to, the employment, so as to create a causal connection between the
employment and the accidental injury. Id. at 194, 775 N.E.2d at 912. "Typically, an
injury arises out of one's employment if, at the time of the occurrence, the employee was
performing acts he or she was instructed to perform by the employer, acts which he or she
had a common law or statutory duty to perform, or acts which the employee might
reasonably be expected to perform incident to his or her assigned duties." Homerding v.
Industrial Comm'n, 327 Ill. App. 3d 1050, 1054, 765 N.E.2d 1064, 1068 (2002). "A risk
is incidental to employment where it belongs to or is connected with what an employee has
to do in fulfilling his duties." Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill. 2d
52, 58, 541 N.E.2d 665, 667 (1989).
¶ 19 Generally whether a claimant's injury arose out of or in the course of her
employment is a question of fact for the Commission, and its determination will not be
disturbed on review unless it is against the manifest weight of the evidence. Nascote
6
Industries v. Industrial Comm'n, 353 Ill. App. 3d 1056, 1059-60, 820 N.E.2d 531, 534
(2004). However, when the facts are undisputed and susceptible to only one single
inference, the question is one of law and is subject to de novo review. Id.
¶ 20 In the instant case, the facts are undisputed. The claimant was the only witness to
testify at the hearing. Her undisputed testimony established that on December 20, 2006,
at around 11:00 a.m. she was walking back from a meeting at the administration building;
she was walking up the sidewalk towards the steps leading to the front entrance to the
courthouse; she takes that path every day; normally she enters the courthouse through the
employee entrance at the back of the courthouse; the employee entrance is locked at 9:30
a.m., so she had to enter through the front entrance; as she was approaching the steps to the
courthouse, her heel caught in the broken and cracked sidewalk causing her to fall and
injure her wrist; the concrete was not level with adjacent concrete slabs; and at the time of
the arbitration hearing, the sidewalk had been replaced. The employer did not dispute any
of this evidence.
¶ 21 The employer argues that whether the claimant was exposed to a special risk or
hazard requires the court to draw an inference from the facts, and therefore, this matter
involves a question of fact and should be subject to the manifest-weight-of-the-evidence
standard. The claimant argues that the undisputed facts are susceptible to a single
inference, and therefore, the Commission's decision should be reviewed de novo. We
agree with the claimant.
7
¶ 22 "In the course of" the employee's employment refers to the time, place, and
circumstances under which she is injured. Litchfield Healthcare Center v. Industrial
Comm'n, 349 Ill. App. 3d 486, 490, 812 N.E.2d 401, 405 (2004). Injuries sustained on an
employer's premises, or at a place where the claimant might reasonably have been
performing her duties, and while a claimant is at work, are generally deemed to have been
received in the course of the employment. Id. In the instant case, the claimant had begun
her workday and was injured when returning to her office from a work-related meeting in
another building. The claimant's injury was sustained in the course of her employment.
Thus the sole issue is whether the claimant's injury arose out of her employment.
¶ 23 The instant case is similar to the line of cases that involve injuries to the claimant
resulting from exposure to a special hazard. In Bommarito v. Industrial Comm'n, 82 Ill.
2d 191, 412 N.E.2d 548 (1980), the claimant was walking from her car, down one of the
four entrances to the two alleyways which led to her employer's rear door when she stepped
in a hole and fell, fracturing her left elbow and spraining her right ankle and right wrist.
Id. at 193-94, 412 N.E.2d at 549. All employees were required to enter and exit the
building through the rear door. Id. The court examined whether the claimant sustained
injuries arising out of and in the course of her employment. The court observed that when
an injury occurs "in an area which is the sole or usual route to the employer's premises, and
the route is attendant with a special risk or hazard, the hazard becomes part of the
employment." Id. at 195, 412 N.E.2d at 550. The court held that the special risks or
hazards encountered by the claimant, as a result of her employer's order to enter through
8
the rear door only, arose out of her employment. Id. at 196, 412 N.E.2d at 551. It further
held that the claimant's obedience to the employer's order placed her consequent injuries
within the course of her employment because had she not obeyed, she could not have
gained admittance to her place of employment. Id.
¶ 24 In Litchfield Healthcare Center the claimant, after punching the time clock to start
work, returned to her car to get some equipment. Litchfield Healthcare Center, 349 Ill.
App. 3d at 487-88, 812 N.E.2d at 403. She testified that she would be disciplined if she
did not have the equipment. Id. at 488, 812 N.E.2d at 403. When walking back from her
car, the claimant tripped on uneven concrete and rolled her ankle off the sidewalk. Id.
She suffered from a severe ankle and foot sprain. Id. The court examined whether the
claimant's injuries arose out of her employment. The court found that the claimant was
exposed to a defective sidewalk and that her regular use of the north parking lot at the
suggestion of her employer exposed her to the defective sidewalk to a degree beyond that
to which the general public would be subjected. Id. at 491, 812 N.E.2d at 406. The court
held that when "an injury to an employee takes place in an area which is the usual route to
the employer's premises, and the route is attendant with a special risk or hazard, the hazard
becomes part of the employment." Id. The court held that the "arising out of"
requirement of the Act is satisfied when special hazards or risks are encountered as a result
of using a usual access route. Id.
¶ 25 In Metropolitan Water Reclamation District of Greater Chicago v. Illinois Worker's
Compensation Comm'n, 407 Ill. App. 3d 1010, 944 N.E.2d 800 (2011), the claimant
9
stumbled while walking up an inclined driveway with a 6 inch "dip" on her way to make a
job-related bank deposit. Id. at 1011-12, 944 N.E.2d at 802. She fractured both her
wrists. Id. at 1012, 944 N.E.2d at 802. The sole issue on review was whether the
claimant's injuries arose out of her employment. The court held that "[u]nder the 'street
risk' doctrine, where the evidence establishes that the claimant's job requires that she be on
the street to perform the duties of her employment, the risks of the street become one of the
risks of the employment, and an injury sustained while performing that duty has a causal
relation to her employment." Id. at 1014, 944 N.E.2d at 804. The court found that there
was undisputed evidence that the claimant had to traverse the public streets and sidewalks
to make bank deposits for her employment and that the hazards and risks inherent in the use
of the street became the risks of her employment. Id. at 1015, 944 N.E.2d at 804. It held
that the "dip" in the driveway was a hazard and that while the public also faced a risk of
tripping and falling on such a hazard, the claimant, by virtue of her employment, was
exposed to the risk to a greater degree than the general public. Id. at 1015, 944 N.E.2d at
804-05. The court found that the claimant's injuries arose out of and in the course of her
employment and, as a consequence, she was entitled to benefits under the Act. Id. at
1015, 944 N.E.2d at 805.
¶ 26 The employer argues that the instant case is more analogous to Caterpillar. In
Caterpillar, the claimant completed his shift, left the building through doors normally used
by the employees, walked 30 feet toward his car in the employee parking lot, and stepped
off the curb onto the driveway. Caterpillar, 129 Ill. 2d at 57, 541 N.E.2d at 666. There
10
was a slight cement slope between the curb and the driveway, and when the claimant
stepped off the curb his right foot landed half on the cement incline and half on the
driveway. Id. The claimant twisted his ankle. Id. The driveway was on the
employer's premises and was used by employees and the general public. Id. There was
no evidence of holes, rocks, or obstructions on the pavement. Id. The supreme court
examined whether the claimant's injuries arose out of his employment. It found that the
condition of the premises was not a contributing cause of the claimant's injury. Id. at 61,
541 N.E.2d at 668. The court further found that "[c]urbs, and the risks inherent in
traversing them, confront all members of the public." Id. at 62, 541 N.E.2d at 669. The
court found that while the claimant regularly crossed the curb to reach his car, there was
nothing in the record to distinguish the curb from any other curb. Id. at 63, 541 N.E.2d at
669. The court held that the claimant's injury did not arise out of his employment because
the injury resulted from a risk which is presented to the general public. Id. at 62, 541
N.E.2d at 669.
¶ 27 The instant case is distinguishable from Caterpillar. In the instant case, there was
a special hazard. The sidewalk was cracked and uneven. In Caterpillar, there was no
evidence of a defect and the court specifically found that the curb was like any other curb.
The court in Caterpillar further found that the condition of the premises was not a
contributing cause of the claimant's injury. The cracked sidewalk was a contributing
cause of the claimant's injury as her heel caught on the defective sidewalk causing her to
fall.
11
¶ 28 Because the instant case involves a special hazard, it is analogous to Bommarito,
Litchfield Healthcare Center, and Metropolitan Water Reclamation District of Greater
Chicago. The claimant's presence on the sidewalk approaching the steps to the
courthouse's front door was occasioned by the demands of her employment, which
required her to attend a meeting in the administration building two blocks from her office.
Her attendance at the meeting was for the benefit and accommodation of her employer.
As in Bommarito, the claimant did not freely choose a certain route. It is undisputed that
the employee door was locked at 9:30 a.m. As a result, the front door was the only access
point to the courthouse at the time of the claimant's accident. The claimant testified that
she took this route daily. It does not matter that the general public used the same sidewalk
and faced the same hazard. When an employee is injured in an area which is the sole or
usual route to the employer's premises, and there is a special risk or hazard on the route, the
hazard becomes part of the employment. Litchfield Healthcare Center, 349 Ill. App. 3d at
491. 812 N.E.2d at 406. The special hazards or risk encountered as a result of using the
sole or usual access route satisfy the arising out of requirement of the Act. Id. Here, the
front entrance to the courthouse was not only a usual access route for the claimant, it was
her sole route since the employee entrance was locked. Because of the demands of the
claimant's job that she attend meetings at the administration building, her risk of injury on
the defective sidewalk was greater than the general public. See Metropolitan Water
Reclamation District of Greater Chicago, 407 Ill. App. 3d at 1015, 944 N.E.2d 804-05,
Litchfield Healthcare Center, 349 Ill. App. 3d at 491, 812 N.E.2d at 406.
12
¶ 29 This case does not merely involve the risks inherent in walking on a sidewalk which
confront all members of the public. This case involves a cracked and defective sidewalk
which was a contributing cause of the claimant's injury. Because the claimant
encountered a special hazard or risk as a result of using a sole or usual access route, her
injury arose out of her employment. Application of the existing case law to the
undisputed facts in this case reveals that the only reasonable inference that can be drawn
from the evidence is that the claimant's injuries arose out of her employment.
¶ 30 CONCLUSION
¶ 31 For the foregoing reasons, the judgment of the circuit court confirming the decision
of the Commission is reversed, the decision of the Commission is reversed, and this cause
is remanded to the Commission for further proceedings.
¶ 32 Reversed and remanded.
¶ 33 JUSTICE HARRIS, specially concurring:
¶ 34 I agree with the result reached by the majority. I write separately because while I
agree the evidence establishes the claimant's injury was sustained in an area which was the
sole route to her employer's premises, it does not establish the area was also her usual
route. The claimant did not normally use the main entrance located at the front of the
courthouse and, instead usually entered the building through a rear entrance reserved for
use by employees. Thus, the evidence does not establish the claimant was using her usual
route to access the courthouse at the time of her fall. However, the claimant does not have
13
to prove it was both the sole and usual route. Given that Bommarito supports
compensability if the injury occurs along the sole or usual route, the claimant here is able
to satisfy the "in the course of" requirement as the testimony was undisputed her injury
occurred while attempting to access the only open entrance to the courthouse. See
Bommarito, 82 Ill.2d at 195, 412 N.E.2d at 550.
14
|
THE THIRTEENTH COURT OF APPEALS
13-18-00536-CR
Charles Lee Salinas
v.
The State of Texas
On Appeal from the
347th District Court of Nueces County, Texas
Trial Cause No. 18FC-0780H
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court
orders the judgment of the trial court AFFIRMED.
We further order this decision certified below for observance.
July 3, 2019
|
639 F.2d 774
Rosev.National Casualty Co.
80-1092
UNITED STATES COURT OF APPEALS Third Circuit
10/10/80
1
D.N.J.
AFFIRMED
|
676 F.3d 930 (2012)
George Robert HUFF; Maria Huff; V.R.H., by and through his Guardian Ad Litem George Robert Huff, Plaintiffs-Appellants,
v.
CITY OF BURBANK, a municipal corporation; Darin Ryburn, as an individual and in his official capacity; Edmundo Zepeda, as an individual and in his official capacity; Chris Robarts, as an individual and in his official capacity; Fernando Munoz, as an individual and in his official capacity, Defendants-Appellees.
No. 09-55239.
United States Court of Appeals, Ninth Circuit.
April 19, 2012.
Leo James Terrell, Law Office of Leo James Terrell, Beverly Hills, CA, for Plaintiffs-Appellants.
Calvin House, Gutierrez, Preciado & House, LLP, Pasadena, CA, Carol Ann *931 Humiston, Esquire, Senior Litigating, Office of the City Attorney, Burbank, CA, Richard Terzian, Esquire, Robert John Tyson, Burke, Williams & Sorensen, LLP, Los Angeles, CA, for Defendants-Appellees.
Before: ALEX KOZINSKI, Chief Circuit Judge, JOHNNIE B. RAWLINSON, Circuit Judge, and ALGENON L. MARBLEY, United States District Judge.[*]
ORDER
We remand to the district court to comply with the United States Supreme Court's decision in Ryburn v. Huff, ___ U.S. ___, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012).
The mandate shall issue forthwith. See Fed.R.App.P. 41(b).
NOTES
[*] The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation.
|
486 F.2d 196
13 UCC Rep.Serv. 423
PORT CITY STATE BANK, Plaintiff-Appellant,v.AMERICAN NATIONAL BANK, LAWTON, OKLAHOMA, Defendant-Appellee.
No. 73-1019.
United States Court of Appeals,Tenth Circuit.
Argued and Submitted July 10, 1973.Decided Oct. 23, 1973.
Eugene J. Pitman, Houston, Tex., for plaintiff-appellant.
C. William Stratton, Lawton, Okl. (T. D. Nicklas and C. E. Wade, Jr., Lawton, Okl., on the brief), for defendant-appellee.
Before HILL, HOLLOWAY and McWILLIAMS, Circuit Judges.
HILL, Circuit Judge.
1
This appeal is from a judgment entered against appellant Port City State Bank in its suit to collect upon two checks forwarded to appellee and not returned as insufficient before the appropriate midnight deadline. Following a trial without a jury, the United States District Court for the Western District of Oklahoma ruled that the failure to notify of dishonor prior to the deadline was excused in this case by Regulation J of the Federal Reserve Regulations, 12 C.F.R. 210.14, and 12A O.S.A. 4-108(2).
2
This court has jurisdiction by virtue of the diversity of citizenship of the parties and the allegation in the complaint of liability greatly exceeding the jurisdictional amount.
3
The record discloses that appellant was the holder of two checks drawn upon the J. H. McClung Coin Shop account with American National. Both items were forwarded through collecting channels for payment. The first check arrived at American National on Friday, November 28, 1969. That check contained two conflicting amounts: in figures $72,000.00 and in words seventy-two dollars and no/100 dollars. It was processed manually and stamped insufficient funds on Saturday, November 29; however, it was not returned immediately but was placed in Monday's business to determine if any deposits were forthcoming on Monday which would balance the account. Notice of dishonor was given to the last endorser of the check, the Federal Reserve Bank at Oklahoma City, on Wednesday, December 3, and the check was returned to the Federal Reserve on December 4.
4
The second check, in the amount of $120,377.20, arrived at American National on Tuesday, December 2, 1969. The first notice of its dishonor was by telephone to the Federal Reserve on Friday, December 5; it was returned to the Federal Reserve the same day.
5
It was stipulated by the parties that the "midnight deadline" for these items as established by Regulation J, 12 C.F.R. 210.12, and 12A O.S.A. 4-104(1)(h) was midnight December 1 for the first check and midnight December 3 for the second check. Additionally, it was stipulated that neither check was dishonored before the applicable deadline.
6
These facts establish a prima facie case for the application of 12 C.F.R. 210.12 and 12A O.S.A. 4-302(a), both concerning the necessity of fulfilling the midnight deadline, and thus it became the obligation of appellee at the trial to prove an excuse from these provisions under 12 C.F.R. 210.141 and 12A O.S.A. 4-108(2)2. The latter regulations in essence prevent the operation of the midnight deadline in cases when the delay by the payor bank is caused by the interruption of communication facilities, suspension of payments by another bank, war, emergency condition or other circumstances beyond the control of the bank provided it exercises such diligence as the circumstances require.
7
In furtherance of its contention, American National presented evidence that prior to December 1, 1969, it had performed its bookkeeping functions by machine posting, a so-called manual system. During 1969, however, a decision was made to implement a computer bookkeeping operation, and a rental agreement was entered into with a large computer company. That lease provided that all repairs and maintenance were the obligation of the computer firm, and American National was not authorized to undertake any such tasks. After the installation of the computer, American National paralleled its manual system with computer operations for approximately two weeks. Finally the decision was made to change over to computer processing beginning on December 1. A last manual posting was made on Saturday, November 29, and the manual bookkeeping equipment was removed from the bank during that weekend.
8
At approximately 10:00 a. m. on December 1, the first day for use of computer operations, the American National computer developed a "memory error" which rendered it unusable. Though the computer manufacturer indicated repairs would not take "too long", they lasted until late Monday night and the testing procedure extended into the early hours of Tuesday, December 2.
9
In reliance upon the belief that the computer would be repaired without prolonged delay, American National took no extraordinary steps to process Monday's business during the business day. However, when it became apparent that evening that the computer was not going to be ready immediately, American National decided to utilize an identical computer in a bank which was a trip of some 2 1/2 hours away, in accord with a backup agreement they had made with the other banking institution. Thus at about 11:30 p. m. personnel from American National and the computer company began processing Monday's business on the backup computer and continued processing through the night. This work had proceeded to the point of capturing the items on discs when, because the backup computer was required by its owner and because they were informed their own computer was operational, the American National personnel returned to their bank to complete the work on their own machine. After returning to American National, the work was processed to the point of completing the printing of the trial balances when another memory error developed which again rendered the computer unusable. No further use could be made of the appellee's computer until a new memory module was installed on Thursday, December 4.
10
Because of the second failure, American National was forced to utilize the backup computer both Wednesday and Thursday during times it was not required by its owner. Monday's business was completed and work was begun on Tuesday's items the evening of Tuesday, December 2. Tuesday's items were not completed until either Wednesday, the third, or Thursday, the fourth. When the second check arrived in Tuesday's business, it was held to determine if a later deposit had balanced the account. Through the use of the backup computer and then its own computer during the next weekend, American National was fully "caught up" by Monday, December 8.
11
Based upon this evidence, the trial court held that the computer malfunction suffered by American National was the cause of its failure to meet its required midnight deadline on the checks, and that such malfunction constituted both an emergency condition and a circumstance beyond the control of the bank as outlined in 12 C.F.R. 210.14 and 12A O.S.A. 4-108(2). The court further held that the reaction to the situation by American National fulfilled the requirements of diligence imposed by those regulations, and therefore the court entered judgment for American National on both checks.
12
Appellant has urged several grounds for the reversal of this judgment, none of which we find merits that action. Though Sec. 4-108(2) of the Uniform Commercial Code is in effect in the vast majority of states, we find no reported cases interpreting or defining this particular provision of the Code. And, of course, our obligation in this appeal is to apply this statute as would the Supreme Court of the State of Oklahoma. Primarily we are faced with reviewing a factual determination by the trial court, and its findings will be affirmed unless clearly erroneous.
13
Appellant's first contention is that the computer malfunction experienced by appellee was not the cause of the failure to notify on either check and thus could not excuse that lack of action. Though the trial court did not expressly rule upon this causation issue, it impliedly held that the delay in notification was a result of the computer breakdown in both instances, we believe that holding is not clearly erroneous.
14
As to the first check, it is true that it was processed and stamped insufficient on Saturday, however it was held for Monday's business to allow any deposits made on Monday to balance the account before notice was required. This procedure is reasonable, and only the subsequent computer breakdown prevented timely notice upon the check. In the case of the second check, appellant contends that problems involved in balancing the "proof batches" caused the delay, not the unavailability of the computer. Such a contention ignores the problems encountered by the bank on Tuesday as a result of the delay in processing Monday's business. Tuesday's work was delayed first by the necessity of driving 2 1/2 hours each day before work could commence, and second by the necessity that Monday's business be completed first. Without doubt, both of these delays resulted from the computer problems at American National.
15
Further appellant contends that a computer failure, as a matter of law, is not an event which can impose the application of 12A O.S.A. 4-108(2). In our opinion, such a determination is a mixed question of fact and law; however, neither treatment justifies the reversal of the trial court's determination in this case. Factually, it was in no way erroneous to conclude that the malfunction created an emergency condition in the bank and was also a condition beyond the control of the bank. Appellant's argument that in law this malfunction is not included within the prescribed contingencies of Sec. 4-108 (2) is without foundation. The statute is clear and unambiguous on its face, and we need not resort to interpretive aids as urged by appellant. Our judgment coincides with that of the trial court that a computer failure such as in this case qualifies for the application of the statute. Additionally, this court has previously indicated that the views of a district judge who is a resident of the state where the controversy arose in a case involving interpretation of laws of that state carries extraordinary persuasive weight on appeal.3
16
Port City next alleges that the trial court erred in its determination that American National exercised "such diligence" as the circumstances required. Basically, appellant asserts three alternative procedures that American National could have employed, and asserts that if any of these alternatives would have resulted in meeting the deadline, then appellee did not exercise diligence under the circumstances. As the trial court correctly concluded, the statute does not require perfection on the part of appellee, and American National's performance should not be judged on the basis of 20-20 hindsight.
17
It must first be noted that appellee quickly notified the computer firm of the breakdown, and that company began an immediate repair effort. Further, there was evidence to indicate that such computer breakdowns are generally repaired very quickly. Thus it would appear that appellee was justified in its initial delay in adopting emergency procedures based on its belief such measures would prove unnecessary. Additionally, we must agree with the trial court that appellee's duty under these circumstances was much broader than one requiring merely that it meet its midnight deadline. It was further obligated to keep the bank open and to serve its customers. To abandon the orderly day by day process of bookkeeping to adopt radical emergency measures would have likely prolonged the delay in returning the bank to normal operations.
18
As to appellant's assertion that appellee should have returned to manual posting, it was shown that the equipment for this procedure was no longer in the bank. Further, no clear evidence was presented to indicate such a procedure would have allowed appellee to fulfill its deadlines if the procedure had been implemented. Any decision to return to manual posting would have to have been made very soon after the discovery of the initial failure. At that time, because of their own experience with computers and the industry history, and also because the manufacturer did not foresee the serious nature of the repairs, American National was justified in believing its computer would be back in service soon. Their delay in commencing emergency operations was reasonable, and these facts prevented a return to manual posting in time to fulfill the deadlines.
19
As to the possibility of utilizing another backup computer at the regional headquarters of the computer leasing firm, we must agree with the trial court that there was no evidence that this alternative would have proved any more successful than the method actually employed by appellee.
20
In regard to the last alternative, "sight posting", the evidence is conflicting but sufficient to indicate it is not clear this alternative was so obviously superior as to be mandated under these circumstances. There were differing estimates as to the time required, and it was indicated such a procedure would upset and delay the eventual computer bookkeeping required to return the bank to current status. And as in the consideration of the previous alternatives, it was not clearly demonstrated that this procedure would have allowed American National to meet its deadlines even if it had been adopted.
21
Appellant asserts two other grounds for reversal that merit some discussion here. First, they assert that if the first check was only for $72.00, then it was not insufficient and thus the appellee is liable. This argument ignores the fact that the check had been encoded for $72,000 and thus had to be returned before proper credits could be advanced. Additionally, Oklahoma statutes and case law provide that a check is not an assignment of funds held by the drawee and fixes no liability on the drawee until its accepts or pays an instrument.4
22
Next appellant asserts that appellee adopted an order of payment that ignored first-in-first-out, and argues that appellee should be liable as a result. However, as appellant indicates in its brief, there is no case law or statute establishing such a procedure as mandatory. We find no merit in such a contention.
23
Lastly, the parties have asserted several contentions concerning the proper face amount of the first check and the measure of damages under the applicable provisions of the code. However, as we affirm the trial court's holding denying liability, the discussion of these contentions is unnecessary.
24
Affirmed.
1
12 C.F.R. Sec. 210.14 Timeliness of action
If, because of interruption of communication facilities, suspension of payments by another bank, war, emergency conditions or other circumstances beyond its control, any bank (including a Federal Reserve bank) shall be delayed beyond the time limits provided in this part or the operating letters of the Federal Reserve banks, or prescribed by the applicable law of any State in taking any action with respect to a cash item or a noncash item, including forwarding such item, presenting it or sending it for presentment and payment, paying or remitting for it, returning it or sending notice of dishonor or nonpayment, or making or providing for any necessary protest, the time of such bank, as limited by this part or the operating letters of the Federal Reserve banks, or by the applicable law of any State, for taking or completing the action thereby delayed shall be extended for such time after the cause of the delay ceases to operate as shall be necessary to take or complete the action, provided the bank exercises such diligence as the circumstances require.
2
12A O.S.A. 4-108(2) Delay by a collecting bank or payor bank beyond time limits prescribed or permitted by this Act or by instructions is excused if caused by interruption of communication facilities, suspension of payments by another bank, war, emergency conditions or other circumstances beyond the control of the bank provided it exercises such diligence as the circumstances require
3
Marken v. Goodall, 478 F.2d 1052 (10th Cir. 1973); Hardberger & Smylie v. Employers Mut. Liab. Ins. Co., 444 F.2d 1318 (10th Cir. 1971); Hamblin v. Mountain States Tel. & Tel. Co., 271 F.2d 562 (10th Cir. 1959)
4
12A O.S.A. 3-409(1); Mid-Continent Cas. Co. v. Jenkins, 431 P.2d 349 (Okl. 1967); First Nat'l Bank v. Whitelock, 181 Okl. 431, 74 P.2d 355 (1937)
|
265 F.2d 349
Clarence B. DANDRIDGE, Appellant,v.UNITED STATES of America, Appellee.
No. 14664.
United States Court of Appeals District of Columbia Circuit.
Argued January 20, 1959.
Decided February 12, 1959.
Mr. William Beasley Harris, Washington, D. C., (appointed by the District Court) for appellant.
Mr. Edgar T. Bellinger, Asst. U. S. Atty., with whom Mr. Oliver Gasch, U. S. Atty., and Mr. Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.
Before PRETTYMAN, Chief Judge, and EDGERTON and BURGER, Circuit Judges.
PRETTYMAN, Chief Judge.
1
Dandridge was indicted in two counts for carrying a dangerous weapon and for assault with a dangerous weapon. He pleaded guilty to the latter. Thereafter he moved to withdraw his plea, but the motion was denied and he was sentenced. He appealed to this court from the denial of his motion, and we affirmed.1 He filed a petition for certiorari in the Supreme Court. The Solicitor General confessed error, and the Court reversed.2 Thereupon the District Court, pursuant to mandate, vacated the plea of guilty.
2
In the meantime the other count in the indictment (for carrying a dangerous weapon) had been dismissed on motion of the Government. When the plea of guilty was vacated, this count was reinstated on motion of the Government. Then appellant was reindicted on both of the two original counts, and the original indictment was dismissed. Trial was had before a jury, and Dandridge was found guilty of carrying a dangerous weapon and not guilty of assault. He appeals from the judgment of conviction.
3
Dandridge was first indicted September 4, 1956. He came to trial on August 13, 1958. He claims violation of his constitutional right to a speedy trial. We find no merit in this contention, because the lapse of time was due to appellant's original plea of guilty and his later efforts to extricate himself from that plea.
4
Appellant says he had a right to have the gun in his possession, because he had had difficulty with the complaining witness whom he shot and the shooting actually occurred in Dandridge's home. He requested the court to instruct in accordance with the doctrine of Wilson v. United States.3 The court refused the request, and he argues to us that this was reversible error.
5
We think the doctrine of the Wilson case was not applicable to the present case. Dandridge, after his difficulty with complainant Allen, took his pistol from under his mattress in his home, put it in his waistband, and went across the street, where he sat on a neighbor's steps for over an hour. Thus, clearly, he was guilty of carrying a dangerous weapon during this interval of time, and on the public street. In the Wilson case Wilson had a pistol in his automobile. While the car was stopped and Wilson was out of it, a disorderly group of men and women began an attack on him. He retreated to the car, opened the door, and got the pistol. This court said that the exigencies of the occasion justified Wilson in getting the pistol and using it in his self-defense; therefore, at the moment when Wilson took the pistol into his hand, he had a legal justification for doing so. Thus, we said, the only question in that case was whether the pistol, while in the automobile before the difficulty began, was "on or about his person" as that term is used in the statute. The difference between the problem in the Wilson case and that in this case is readily apparent.
6
We have considered the other points raised by appellant and find no reversible error in those respects.
7
Affirmed.
Notes:
1
Dandridge v. United States, 101 U.S. App.D.C. 114, 247 F.2d 105 (1957)
2
Dandridge v. United States, 356 U.S. 259, 78 S.Ct. 714, 2 L.Ed.2d 757 (1958)
3
91 U.S.App.D.C. 135, 198 F.2d 299 (D.C.Cir., 1952)
|
929 F.Supp. 900 (1996)
James CAUSEY,
v.
George BALOG, et al.
Civil No. JFM-94-485.
United States District Court, D. Maryland.
June 17, 1996.
*901 *902 *903 *904 Mercedes C. Samborsky, Joppatowne, MD, for plaintiff.
Richard G. Greene, James S. Ruckle, Jr., Assistant Solicitor, Department of Law, Baltimore, MD, for defendants.
MEMORANDUM
MOTZ, Chief Judge.
Plaintiff James Causey, a former transportation official for the City of Baltimore, sues the Mayor and City Council as well as a number of individual defendants for age and race discrimination. Plaintiff alleges that he was not promoted, harassed and eventually terminated from his job because he is an older white male in an administration dominated by younger black men. He asserts claims for (1) violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (ADEA); (2) violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; (3) violations of 42 U.S.C. §§ 1981, 1983 and 1985; and (4) state law defamation. Defendants maintain that Causey simply became caught in a series of efforts to downsize Baltimore's municipal bureaucracy and that his age and race were not considered. Defendants move for summary judgment.
I.
Causey is a white male born in January 1933. After over a decade as an engineer in the private sector, Causey joined the municipal government as a deputy transit commissioner in 1981. By 1987, Causey headed a division within the Department of Transportation (DOT). By all accounts he was a highly effective municipal executive.
In December 1988, newly elected Mayor Kurt Schmoke appointed Causey as the Acting Commissioner of DOT. Five months later, in May 1989, Mayor Schmoke appointed Herman Williams, a younger black man, as the permanent Commissioner of DOT and named Causey as the Deputy Commissioner I of DOT. Causey alleges that Williams subjected him to ongoing harassment including public and private verbal abuse, threatened termination and disrespectful treatment until May 1992, when Williams left DOT to become Chief of the Baltimore Fire Department. After Williams' departure from DOT, Causey requested that he be named Commissioner. Mayor Schmoke instead named Victor Bonaparte, a younger black man, Acting Commissioner.
On October 27, 1992, the City Council consolidated Baltimore's municipal bureaucracy by eliminating DOT including plaintiff's job as Deputy Commissioner I and transferring responsibility for city transportation to the Department of Public Works (DPW). DPW's newly created Bureau of Transportation (BOT) was divided into three divisions: Highways, Parking and Traffic. Although he sought the job of Chief of BOT, Causey instead was named Acting Chief of the Traffic Division and became Chief of the Traffic Division on December 28, 1992, a position that paid $6000 less annually than his previous position as DOT Deputy Commissioner I. David Montgomery, a black male in his late thirties, was named Chief of BOT. Causey alleges that no other former DOT executive was forced to take a salary cut after the department was abolished, and he claims that the city did not fairly consider him for the job of BOT Chief. He filed race and age discrimination charges with the EEOC on October 28, 1992.
*905 Causey alleges that his situation worsened after he filed charges with the EEOC. He claims that Montgomery, his new supervisor, harassed him by undercutting his authority, denying him access to information, imposing unreasonable deadlines and by requiring him to use personal leave days to attend off-site meetings. He states that Montgomery followed an open door policy with black employees but required Causey to schedule appointments. In March 1993, Causey filed a second complaint with the EEOC alleging harassment in retaliation for his October 1992 EEOC filing.
On November 5, 1993, Montgomery and George Balog, the Director of DPW, informed Causey that his job as Chief of the Traffic Division was being eliminated because of funding shortfalls and that he would be laid off. On January 10, 1994, Causey was informed that he would be terminated as of February 11, 1994. On January 15, 1994, Causey amended his second EEOC complaint to include this termination as part of the alleged pattern of retaliatory discrimination.
Causey finally claims that Montgomery and Keith Scroggins, DPW's Personnel Director, wrongfully accused him of failing to return municipal property after leaving BOT. Plaintiff alleges that his office was not secured after he suffered from heart problems on January 10, 1994 and could not return to work. Causey alleges that Montgomery instead allowed other employees to remove property, including a computer and camera, from his office. Plaintiff claims that Montgomery and Scroggins accused him of theft and publicized this allegation to his coworkers and other municipal personnel.
II.
The ADEA and Title VII make it unlawful for employers to discriminate against employees on the basis of age or race. Defendants argue that the individual defendants in this action are not "employers" under either of these statutes and therefore cannot be liable under Causey's first two counts.
A.
In Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994), the Fourth Circuit held that an individual supervisory employee was not liable as an "employer" under the ADEA. The ADEA defines an employer as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year" including "any agent of such a person." 29 U.S.C. § 630(b). Some courts have relied on this language to find supervisory employees individually liable as "agents" of their employers. See, e.g., House v. Cannon Mills Co., 713 F.Supp. 159, 160-62 (M.D.N.C.1988).
The Birkbeck court rejected this interpretation of § 630(b). The ADEA imposes liability only on employers with 20 or more workers, indicating an intent by Congress to place small entities beyond the scope of ADEA liability. "Given this evident limitation, it would be incongruous to hold that the ADEA does not apply to the owner of a business employing, for example, ten people, but that it does apply with full force to a person who supervises the same number of workers in a company employing twenty or more." Id. at 510 (citing Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir.1993) ("If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees."), cert. denied, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994)). The court accordingly interpreted § 630(b)'s inclusion of "agents" in the definition of "employer" as nothing more than as an acknowledgement that respondeat superior liability applies under the ADEA. See 30 F.3d at 510 (noting that "[e]mployer liability ensures that no employee can violate the civil rights laws with impunity"). Birkbeck thus bars Causey's ADEA claims against the individual defendants named in the complaint.
B.
As a further matter, moreover, it seems apparent that the logical force of Birkbeck's *906 holding that Congress did not intend to impose on individual employees the heavy burden of exposure to federal statutory liability should preclude individual liability under Title VII as well. The two statutes raise identical concerns related to the proper scope of liability. Moreover, Title VII employs virtually the identical definition of "employer" as that in the ADEA, see 42 U.S.C. § 2000e(b) (defining "employer" as "a person ... who has fifteen or more employees ... and any agent of such a person"), and the Birkbeck court itself described Title VII as "the ADEA's closest statutory kin." 30 F.3d at 510. In short, according to the Fourth Circuit's analysis in Birkbeck, I would find that individual supervisors cannot be liable under Title VII.
Under Fourth Circuit case law, however, the question of individual liability under Title VII remains unsettled. The Fourth Circuit has not expressly extended Birkbeck to Title VII cases, and prior to Birkbeck the Fourth Circuit was one of a minority of circuits that allowed individual liability under Title VII.[1]See Paroline v. Unisys Corp., 879 F.2d 100, 104 (1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir.1990). Indeed, in Birkbeck the Fourth Circuit declined to break expressly with Paroline. Citing Paroline, the Birkbeck court stated in footnote 1 that "[a]n employee, however, may not be shielded as an employer's agent in all circumstances. We address here only personnel decisions of a plainly delegable character." 30 F.3d at 510 n. 1. In Paroline, the court had allowed individual liability under Title VII against a supervisor who sexually harassed another employee by repeatedly making unwanted advances. Such sexual harassment clearly is not an activity that an employer could or would "delegate" to a supervisor. Although the meaning of Birkbeck's footnote 1 is not entirely clear, I read it as indicating that, at most, an individual employee can be held liable for actions outside the scope of the duties delegated to him by his employer.[2]
In this case, however, plaintiff squarely alleges that the individual defendants acted within the scope of the duties delegated to them by the city. Plaintiff claims that various individual defendants helped carry out the Schmoke administration's systematic policy of discriminating against older white employees, a pattern that culminated in his firing. By plaintiff's own account therefore the individual defendants' allegedly discriminatory actions were of a "plainly delegable character." Thus, under Birkbeck his Title VII claims against these defendants fail.[3]
*907 III.
I next consider plaintiff's ADEA and Title VII claims against the City. Congress has determined that, where possible, employment discrimination disputes should be resolved through voluntary compliance and settlement. A plaintiff therefore must file an administrative charge with the EEOC and exhaust that agency's investigation and conciliation processes before bringing suit under the ADEA or Title VII. This framework imposes several requirements that bear on Causey's statutory claims against the City of Baltimore. First, a plaintiff must file charges with the EEOC within at most 300 days of an alleged act of age or race discrimination.[4]See 29 U.S.C. § 626(d)(1), (2); 42 U.S.C. § 2000e-5(e)(1). Second, in the event conciliation efforts fail, a plaintiff must file suit within 90 days of receiving a right to sue determination. See 29 U.S.C. § 626(e); 42 U.S.C. § 2000e-5(f)(1). Third, a plaintiff may only raise claims that are "reasonably related" to allegations contained in the EEOC charge, a standard that the Fourth Circuit has defined as encompassing claims that could reasonably be expected to follow from an administrative investigation of the original charge. See Chisholm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir.1981); see also Doyle v. Sentry Ins., 877 F.Supp. 1002, 1007 (E.D.Va.1995).
Causey alleges three acts of discrimination: (1) his failure to be named Commissioner of DOT in 1989; (2) his transfer to the Traffic Division of DPW's Bureau of Transportation after the elimination of DOT in 1992; and (3) the termination of his employment in February 1994. He also alleges a sustained pattern of harassment during the periods of employment separating these events. He filed two separate EEOC charges. The first, # XXXXXXXXX, was filed on October 28, 1992, charging age and race discrimination in his transfer from DOT to DPW; the EEOC dismissed this complaint and granted him the right to sue on November 30, 1993. See Defs.' Exs. 1, 2. The second charge, # XXXXXXXXX, was filed in March 1993 and amended in January 1994, charging harassment and termination in retaliation for his first EEOC complaint; the Department of Justice granted Causey the right to sue on July 27, 1994.[5] Plaintiff filed this action on February 28, 1994.
A.
Plaintiff's first set of allegations center around the appointment of Herman Williams as Commissioner of DOT in 1989. Plaintiff claims that Williams was much less qualified and received the job only because he was younger and black. Causey also alleges that Williams subjected him to a pattern of harassment that ultimately caused plaintiff to suffer a heart attack in June 1989. Causey's first EEOC complaint, however, was not filed until the end of October, 1992. At most this charge would have applied to acts going back 300 days, or until approximately the beginning of 1992. While it is true that Williams remained Causey's supervisor until May of 1992, plaintiff's October *908 1992 EEOC charge very specifically alleged discrimination only with regard to his transfer to DPW and could not reasonably be read as encompassing a pattern of continuing harassment at DOT that lasted from 1989 until 1992. Therefore, any claims related to the promotion of Herman Williams, instead of plaintiff, as Commissioner of DOT in 1989, as well any claims of harassment allegedly suffered by Causey prior to October 1992, are beyond the authorized scope of this suit.
B.
Causey's second set of allegations relate to his involuntary transfer from DOT to DPW's Bureau of Transportation in October 1992. Causey immediately filed an EEOC charge, participated in the administrative process, received a right to sue notice and filed suit in timely fashion. Defendants accordingly do not challenge the propriety of Causey's assertion of these claims.
C.
Causey's third set of allegations relate to his termination from his job as Traffic Chief of DPW's Bureau of Transportation. Although Causey's termination did not become effective until February 1994, the director of DPW advised Causey in November 1993 that he would be laid off. Defendants argue that these claims should be barred because "Causey failed to file an EEOC charge ... when his job was abolished in February, 1994." Defs.' Mot. for Summ.J. at 21. In a separate section of their brief, defendants discuss the merits of this charge but maintain that Causey chose never to file suit based on it. See Defs.' Mot. for Summ.J. at 5.
I find defendants' contention that Causey never filed EEOC charges related to his termination from DPW to be somewhat confusing in light of the documentary evidence they provide. The record indicates that Causey amended his second EEOC charge in January 1994 to claim that, in retaliation for his October 1992 EEOC complaint, "[o]n November 5, 1993, I was told that there was to be another re-organization, and that by the end of 1993, there would be no place for me in Public Works." Defs.' Ex. 9. Also, while it is true that Causey did not file a separate suit under his second charge, he clearly includes allegations made in that charge in this suit. I therefore assume that defendants are raising two issues: (1) that this Court lacks jurisdiction over Causey's claims related to his second EEOC charge because he filed this suit before receiving notification of his right to sue under that charge; and (2) that Causey's claim that he was terminated from DPW in 1994 because of age and race discrimination is an impermissible enlargement of the scope of an EEOC charge that alleged only retaliatory harassment and discharge based on his first EEOC filing.
Defendants are correct as a general matter that a right to sue notice is a prerequisite to filing suit. The Fourth Circuit has held, however, that "entitlement to a `right to sue' notice, rather than its actual issuance or receipt, . . . is [the] prerequisite to the jurisdiction of the federal courts." Perdue v. Roy Stone Transfer Corp., 690 F.2d 1091, 1093 (4th Cir.1982). Causey clearly is now entitled to a right to sue notice: the Department of Justice granted him one on July 27, 1994. Although Causey initially filed claims related to his second EEOC charge too soon (and defendants accordingly could have moved to dismiss these claims at any time from February 28, 1994, when this suit was filed, until July 1994), "[h]ere ... the proper time has arrived for the plaintiff is entitled to, and has in fact received, a `right to sue' notice." Soble v. University of Md., 572 F.Supp. 1509, 1517 (D.Md.1983) (retaining jurisdiction over claim in analogous factual setting).
Defendants also suggest that Causey should be limited to a claim that his termination in 1994 was in retaliation for his previous EEOC filing and that he should not be permitted to advance separate theories of age and race discrimination. Causey's second EEOC charge, as filed on March 7, 1993 and amended on January 15, 1994, literally alleges only retaliation. See Defs.' Ex. 9. However, Causey's claims of age and race discrimination are "reasonably related" to Causey's claim of retaliation. Any investigation of a charge that an employee was retaliated against for filing a previous charge of discrimination would reasonably encompass *909 any further discrimination in addition to purely retaliatory acts; indeed, it is difficult to draw a practical distinction between these two conceptually different motives for taking adverse action against an employee. There can be no question that the City was placed on notice that Causey was alleging that he was unfairly harassed and ultimately fired. Accordingly, I find that Causey's claims for retaliation, age and race discrimination related to his employment at and termination from DPW's Bureau of Transportation are cognizable in this action.
IV.
Having found that plaintiff is entitled to advance his claims against the City for age discrimination, race discrimination and retaliation based on (1) his October 1992 transfer from DOT to DPW's Bureau of Transportation; (2) harassment allegedly suffered during his tenure at DPW; and (3) his 1994 termination from DPW. I now consider whether plaintiff is entitled to proceed to trial on these claims.
Defendants argue that Causey has failed to make the evidentiary showing required of plaintiffs in discrimination cases as set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972). The McDonnell Douglas three-part test applies to age and race discrimination claims, including Causey's claim of reverse discrimination. E.g., Henson v. Liggett Group, Inc., 61 F.3d 270, 274-75 (4th Cir.1995) (ADEA); Lucas v. Dole, 835 F.2d 532, 533-34 (4th Cir.1987) (reverse discrimination). Under this test, plaintiff has the initial burden of demonstrating a prima facie case of discrimination. Plaintiff establishes a presumption of discrimination by making such a showing. The burden then shifts to the employer to provide a nondiscriminatory reason for the adverse employment action. Once the employer meets that burden, the presumption of discrimination is dissolved and the burden shifts back to the plaintiff to show that the proffered reason is but a pretext for discrimination. 411 U.S. at 802-05.
Summary judgment analysis in employment discrimination cases follows these three stages. First, although entitled to all reasonable inferences as the non-movant, in response to a defendant's motion for summary judgment, a plaintiff has the burden of pointing to facts establishing his prima facie case. Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315 (4th Cir.1993). In response, the defendant's burden to offer a nondiscriminatory reason is one only of production, not persuasion. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). At the third and final stage, standard summary judgment principles apply: the plaintiff must present facts upon which a reasonable factfinder could conclude, based on a preponderance of the evidence, see Henson, 61 F.3d at 275, that the defendant's stated justification represents but a pretext for discrimination against the plaintiff. See Mitchell, 12 F.3d at 1315. I analyze below each of Causey's remaining ADEA and Title VII claims under this three-part framework.
A.
Causey first claims age and race discrimination based on the loss of his job as DOT Commissioner I in October 1992. He has presented no evidence to substantiate that claim. Rather, the record establishes without contradiction that the entire Department of Transportation was eliminated by order of the City Council.
Causey next claims that, even if his termination from DOT was not discriminatory, his transfer to DPW at a reduction of authority and in pay was. Causey argues that under the provisions of the Baltimore City Charter he should have received a lateral transfer to Chief of DPW's Bureau of Transportation, the job he claims was most similar to his position as DOT Commissioner I. Instead, David Montgomery, a younger black man, received that position, and Causey was named to be one of Montgomery's direct subordinates as Chief of the Traffic Division, a position of more narrow scope than his previous job and that paid $6000 less per year. I construe plaintiff's allegations on *910 this point as a claim for discriminatory failure to promote.
To establish his prima facie case for failure to promote, Causey must show that: (1) he is a member of a protected group; (2) he sought the position in question; (3) he was qualified; and (4) he was rejected under circumstances giving rise to an inference of unlawful discrimination. Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1129 (4th Cir.1995). Causey indisputably has shown the first three elements. With regard to the fourth element, plaintiff has carried his initial burden by showing that Montgomery, the person selected for the job Causey sought, was younger and of a different racial group. See O'Connor v. Consolidated Coin Caterers Corp., ___ U.S. ___, ___, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996) (age); Patterson v. McLean Credit Union, 491 U.S. 164, 186-87, 109 S.Ct. 2363, 2377-78, 105 L.Ed.2d 132 (1989) (race). Plaintiff therefore has established a prima facie case of age and race discrimination based on his failure to be promoted to the job of Chief of DPW's Bureau of Transportation.
Moving to the second phase of analysis under McDonnell Douglas, I next consider whether defendants have met their burden of offering a nondiscriminatory reason why Montgomery was named to head BOT instead of plaintiff. They have. Defendants claim that Montgomery was moved to the position because of his greater administrative experience within DPW. This meets their burden of production for summary judgment purposes. See Hicks, 509 U.S. at 506-08, 113 S.Ct. at 2747.
The burden therefore shifts back to plaintiff to point to specific facts indicating that this stated justification represents but a pretext for discrimination. According to findings made by the EEOC that are part of the record, a total of six former DOT managers were given the option of being laid off or accepting a position within DPW's new transportation bureau. Plaintiff argues that he alone did not receive a lateral transfer and only one other employee, also white, was transferred at a pay cut. Standing alone, these facts while arguably suspicious prove nothing. See Birkbeck, 30 F.3d at 511 (noting that inference of discrimination cannot be based on statistical analysis of very small sample sizes). Causey offers no other evidence of pretext.
Instead, he emphasizes his own extensive qualifications, casts doubt on Montgomery's transportation-related experience, and offers conclusory allegations about the Schmoke administration's desire to weed out older white employees. These generalized allegations are insufficient as a matter of law. Although Causey presents an argument that he was the better candidate, courts are not to impose their own judgments for nondiscriminatory employer decisions. Absent a factual showing by plaintiff sufficient to raise an inference of pretext, the City is free to name an experienced DPW official to head the new transportation department instead of another employee with superior transportation qualifications. See Holmes v. Bevilacqua, 794 F.2d 142, 147-48 (4th Cir.1986) (noting that municipal government experience can be valid reason for promoting nonmember of protected class over member).
B.
Plaintiff next claims that he was subjected to a sustained pattern of harassment after he was transferred to DPW's Bureau of Transportation. Causey's allegations of harassment are long on conclusory allegations but entirely short on facts and specifics. He details several episodes of harassment involving Montgomery and Williams in his complaint. See, e.g., Compl. at 15-21. As described by another circuit, however, on defendants' motion for summary judgment, "the mere allegations in the complaint are not sufficient; the non-movant is required to identify specific evidence in the record, and to articulate the `precise manner' in which that evidence supported their claim." Conti-Commodity Servs., Inc. v. Ragan, 63 F.3d 438, 441 (5th Cir.1995), cert. denied ___ U.S. ___, 116 S.Ct. 1318, 134 L.Ed.2d 471 (1996); see also Allstate Fin. Corp. v. Financorp, Inc., 934 F.2d 55, 58 (4th Cir.1991). This plaintiff has entirely failed to do.
*911 C.
Causey finally claims that his termination as Chief of the Traffic Division in February 1994 was discriminatory. The elements of a prima facie case for discriminatory discharge are: (1) that plaintiff is a member of a protected group; (2) that he was qualified for the job and performed the job satisfactorily; (3) that he was discharged; and (4) the job remained open to similarly qualified applicants after he was fired. Carter v. Ball, 33 F.3d 450, 458-59 (4th Cir. 1994). Defendants do not contest that Causey has established the first three prongs of his prima facie case. Causey also must make a fourth showing: that the position in question remained open after he was rejected. As described by the Fourth Circuit in a related context, "[t]he proof of the first three prongs of the scheme only set the stage for the fourth, which tips the scale in favor of a prima facie case, because the fourth prong requires proof that points toward illegal discrimination." Holmes, 794 F.2d at 147 (emphasis omitted). In short, Causey must raise a presumption that he was laid off because of his age or race, not simply that he was a qualified, older white employee who suffered adverse employment action.
First, considering the fourth prong as a literal requirement, Causey has failed to make this showing. Simply put, the record does not indicate that Causey was fired and replaced by someone who was younger and/or black, or that the City sought other applicants for the job of Chief of the Traffic Division. Instead, his job as Chief of the Traffic Division was eliminated for "lack of funding."[6]See Defs.' Ex. 7. Because Causey has not shown that the City continued to take applications from other applicants, he cannot establish the fourth prong of his prima facie case.
It is clear, however, that McDonnell Douglas represents a conceptual approach to indirectly proving discrimination, not a set of rigid rules. See 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. Causey has difficulty establishing the classic prima facie case because, rather than being fired in favor of a younger black employee, he claims that he was discriminatory targeted to bear the impact of the City's efforts to downsize and to promote younger black men. Under Fourth Circuit law, in the reduction-in-force context, a plaintiff may establish his prima facie case by pointing to "some other evidence" that an employer did not act neutrally with respect to age or race. E.g., Blistein v. St. John's College, 74 F.3d 1459, 1470 (4th Cir.1996). The inquiry thus becomes whether Causey has produced such evidence in this case.[7]
Defendants' exhibits indicate that a total of six management employees were laid off from DPW for "lack of funding" early in 1994. See Defs.' Ex. 7. All were over forty, and five of the six were white. As mentioned above, the Fourth Circuit has held it improper *912 to rely on statistical evidence of this nature involving small numbers of terminated employees; although five of the six DPW managers laid off were white, this number is too small to reliably support an inference of discrimination. See Birkbeck, 30 F.3d at 511.
Causey has failed to identify any other specific evidence supporting his claims of intentional discrimination. He offers instead only the conclusory allegation that "the City and its management employees who supervised plaintiff created a workplace characterized by abusive conduct against the plaintiff, interference with his projects, demeaning him to his subordinates and in the presence of City residents whom he was assisting; and, finally, in February of 1994, advising him that he was terminated forever from City employment." Pl.'s Opp'n at 8. Claims of discrimination, however, cannot be supported by general allegations. See Carter, 33 F.3d at 461-62. Causey seems to believe that he can meet his burden of proof merely by establishing his status as an older, white civil servant who has been abruptly pushed aside by a new municipal administration dominated by younger black men. He has critically erred in underestimating his task. See Autry v. North Carolina Dep't of Human Resources, 820 F.2d 1384, 1386 (4th Cir.1987) ("[C]ausation must be shown by probability rather than mere possibility.").
Plaintiff's final argument is that he was fired in retaliation for his October 1992 EEOC filing. A prima facie case for retaliatory discharge consists of showing (1) that the plaintiff engaged in a protected activity, such as filing an EEOC charge; (2) adverse employment action; and (3) a causal connection between the protected activity and the adverse action. Carter, 33 F.3d at 460. Defendants concede the first two prongs but argue that plaintiff has produced no evidence of causation.
Courts have found that temporal proximity between the activity and the adverse action may constitute evidence of causation. Id. In this case, however, over a year passed between Causey's October 1992 EEOC charge and his notification in November 1993 that he would be laid off from DPW. Although plaintiff claims that harassment began immediately after his complaint, he points to no specific evidence linking his EEOC charge with his allegations of harassment. In particular, Causey points to no facts indicating that David Montgomery, the focus of his claims of harassment, even knew about the October 1992 EEOC charge. Montgomery was not named in that charge, was not involved in the decision to eliminate DOT or transfer Causey to DPW, and Causey offers no evidence that Montgomery was part of the EEOC investigation of that charge. Plaintiff again simply has failed to produce facts to support any reasonable inference of causation.
V.
Plaintiff's next set of claims allege violations of various federal civil rights statutes. Defendants argue that these claims are preempted by the comprehensive remedial schemes of the ADEA and Title VII.
A.
Defendants are correct that Causey cannot bring a claim under § 1983 for his claims of age discrimination. In Zombro v. Baltimore City Police Dep't, 868 F.2d 1364 (4th Cir.), cert. denied, 493 U.S. 850, 110 S.Ct. 147, 107 L.Ed.2d 106 (1989), the Fourth Circuit held that the ADEA's comprehensive remedial scheme precludes individuals from independently pursuing age discrimination claims outside the ADEA's remedial structure. In particular, Zombro bars not only the use of § 1983 to assert violations of the ADEA itself, but also prevents age discrimination plaintiffs from bringing § 1983 claims for violations of the Fourteenth Amendment. Id. at 1368-71. Causey's § 1983 and § 1985(3)[8] claims must therefore be dismissed *913 to the extent they allege violations of statutory or constitutional rights to be free from age discrimination in employment.
B.
Likewise, in Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), the Court held that § 1985(3) cannot be used to assert violations of Title VII. Title VII's remedial scheme of requiring plaintiffs to file EEOC charges and to participate in the administrative conciliation process indicates a congressional intent to encourage voluntary settlement of employment discrimination claims. Allowing violations of the rights provided by Title VII to be asserted through the vehicle of § 1985(3) would effectively allow plaintiffs to circumvent this remedial scheme. The Novotny Court therefore reasoned that Title VII provides the exclusive remedy for the rights it creates. Id. at 375-78, 99 S.Ct. at 2350-52.
Novotny dealt only with § 1985(3), not § 1983. Courts have recognized, however, that the two statutes are analogous. See Zombro, 868 F.2d at 1367 (describing § 1985(3) as "the conspiracy counterpart of § 1983"). Novotny's holding, moreover, is a broad statement of the importance of requiring plaintiffs seeking to vindicate rights created by Title VII to operate within the statute's remedial scheme. Accordingly, although the Fourth Circuit has not yet had the occasion to do so, other circuits have taken the obvious step of applying Novotny to hold that a plaintiff cannot assert violations of Title VII through § 1983. See, e.g., Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 982 (10th Cir.1991); Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1204 (6th Cir.1984); Irby v. Sullivan, 737 F.2d 1418, 1429 (5th Cir.1984); see also McCauley v. Greensboro City Bd. of Educ., 714 F.Supp. 146, 150 (M.D.N.C.1987).
It is equally clear, however, that Title VII does not preclude the assertion of § 1983 claims based on other statutory and constitutional provisions. In other words, although a plaintiff cannot directly circumvent Title VII's remedial scheme by predicating a § 1983 action on the rights created by Title VII, courts consistently have held that Congress did not intend by creating Title VII to preclude preexisting avenues of redress for employment discrimination, such as § 1983 suits for Fourteenth Amendment violations. See Beardsley v. Webb, 30 F.3d 524, 527 (4th Cir.1994); Keller v. Prince George's County, 827 F.2d 952, 956 (4th Cir.1987). Causey therefore can assert claims under § 1983 and § 1985(3) for violation of his Fourteenth Amendment right to be free from race-based discrimination in public employment. Similarly, it is clear that Causey's suit under § 1981 is not precluded. See Keller, 827 F.2d at 956. Finally, Causey also seems to raise a due process argument as a separate challenge to his transfer to and eventual termination from DPW's Bureau of Transportation. I next consider whether plaintiff is entitled to proceed to trial on these claims.
VI.
A.
Causey's § 1983 claim that he was harassed and terminated in violation of his Fourteenth Amendment right to equal protection, as well as his § 1981 claim that he was denied the right to perform his employment contract on equal terms with black employees, are based on the same allegations as his Title VII claims. The Fourth Circuit has noted that the McDonnell Douglas burden-shifting scheme of proof used in Title VII cases also applies to similar litigation under § 1983 or § 1981. See Beardsley, 30 F.3d at 529; Gairola v. Commonwealth of Va. Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir.1985). Plaintiff's above-discussed failure to establish a prima facie case under Title VII therefore is fatal to his claims under §§ 1981, 1983 and 1985(3).
B.
Although Causey also seems to assert violations of his procedural rights, it is not clear *914 whether he is in fact claiming violation of his right to Fourteenth Amendment procedural due process or simply that the City failed to comply with civil service rules. If the former, even assuming that Causey had a property interest in continued employment, he is not entitled to a predetermination hearing if his job is eliminated pursuant to a nonpretextual plan of governmental reorganization or downsizing. See Digiacinto v. Harford County, 818 F.Supp. 903, 905-06 (D.Md. 1993). See generally Mandel v. Allen, 81 F.3d 478, 480-82 (4th Cir.1996) (discussing scope of due process protection afforded state employees). As discussed, nothing in the record indicates that either the 1992 elimination of DOT or the 1994 funding shortfall at DPW was pretextual. In any event, Causey at no point seems to be seeking such a hearing or even alleging a constitutional due process issue.
Instead, what Causey alleges in the complaint is that he "was deprived the procedural rights afforded to others in applying for competitive civil service jobs in that he was told, when he applied, that the positions were not competitive, after written announcements had been circulated that the positions were competitive." Compl. at 32. He supports this claim with several averments that George Balog and David Montgomery privately informed him that the civil service rules would not apply in his case. If Causey had produced evidence that these rules were applied to other employees, such allegations may have been relevant to his underlying discrimination claims. He has not, however, done so.[9]
VII.
Causey's final claim is for defamation under Maryland law. The claim arises from an episode that occurred after plaintiff had been terminated. Causey alleges that on or around February 17, 1994, he was accused by David Montgomery and Keith Scroggins of stealing a laptop computer and camera owned by the city. He also claims that these allegations were "published to plaintiff's co-workers and were noted in his personnel file to be published to any prospective employer." Compl. at 33-34.
Although officially terminated on February 11, 1994, Causey last went to work at DPW on January 10, 1994, the day he was notified of the date that he would be laid off. Causey states in his complaint that he asked Montgomery to secure his office in the interim but that Montgomery intentionally did not do so and that in fact "Mr. Montgomery ... permitted [other DPW employees] free access to plaintiff's office during his absence to remove his City equipment." Compl. at 25. Plaintiff further contends that, after allowing other employees to take equipment from his office, Montgomery publicized to others that Causey had misappropriated the equipment.
Defendants portray a different version of events. They maintain that the computer and camera turned up as missing during an inventory of Causey's equipment and that, in keeping with standard procedure, Montgomery and Scroggins sought to withhold Causey's final paycheck until the equipment could be located. Defs.' Mot. for Summ.J. at 26-27. Causey eventually received his last paycheck, and the computer and camera were never located.
Causey's prima facie case of defamation requires proof of the following: (1) that the defendant made the defamatory communication; (2) that the statement was false; (3) that the defendant was at fault i.e., negligent or malicious in making the statement; and (4) that the plaintiff suffered harm. Bagwell v. Peninsula Regional Medical Ctr., 665 A.2d 297, 317 (Md.Ct.Spec.App.1995), cert. denied, 341 Md. 172, 669 A.2d 1360 (1996). As defendants point out, Causey does not identify any coworkers who allegedly learned of the theft charge from Montgomery or Scroggins (nor any who even knew of the allegation at all), nor does Causey provide any other documentation of the alleged "publicization" of the allegations. *915 Causey also provides no evidence that Montgomery or Scroggins even accused him of theft; defendants maintain that they merely questioned him about the missing equipment, and Causey offers no contradictory evidence. In fact, his opposition to the present motion is entirely silent with regard to the defamation charge. Summary judgment would be appropriate on this basis alone.
Moreover, as defendants further argue, under Maryland law "[s]tatements made within the context of the employer-employee relationship in furtherance of a protection of the employer's property have long been accorded a qualified privilege." Exxon Corp. v. Schoene, 67 Md.App. 412, 508 A.2d 142, 147 (1986); see also McDermott v. Hughley, 317 Md. 12, 561 A.2d 1038, 1046 (1989). Causey must show "actual malice" in order to overcome this qualified privilege. Even assuming that Montgomery and Scroggins rushed to interrogate Causey regarding the missing equipment instead of conducting an investigation, that they thereby raised doubts about his integrity, and that they allowed this information to be become known within DPW, Causey's claim for defamation therefore still fails. Maryland courts have noted that "`actual malice' cannot be established merely by showing that ... the publisher acted without undertaking the investigation that would have been made by a reasonably prudent person." Bagwell, 665 A.2d at 318 (emphasis omitted). As with the rest of his allegations, Causey offers no specific proof of his claims that Montgomery permitted other employees to remove items or that Montgomery and Scroggins defamed him as further retaliation for his October 1992 EEOC complaint. Absent proof of malice, Causey's defamation claim fails as a matter of law.
A separate order granting defendants' motion for summary judgment and entering judgment on its behalf is being entered herewith.
NOTES
[1] Recent decisions from other circuits, however, conclude that individual supervisors cannot be liable under Title VII. E.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir.1995); Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir.1995); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1280-82 (7th Cir.1995).
[2] Although at first glance a coherent way to reconcile Paroline and Birkbeck, this "delegated duties" rule fails to satisfy the underlying logic of Birkbeck. The ADEA and Title VII impose liability on "employers" and their agents. If Congress crafted the scope of liability under these statutes in order to limit the burden placed on small entities, as Birkbeck holds, I do not see how an individual supervisor, generally shielded from "employer" liability, suddenly can be held personally liable when he acts outside the scope of his employment-related duties. Birkbeck does not interpret the ADEA as indicating that Congress intended to burden only those small entities or individuals engaging in discrimination of a particularly personal, egregious, or extracurricular character; Birkbeck says that Congress did not intend to burden small entities.
Instead, the Birkbeck/Paroline balancing attempted in footnote 1 of Birkbeck seems to reflect concern for preserving a remedy for plaintiffs like Elizabeth Paroline who are subjected to discriminatory treatment as the result of supervisors abusing their power, rather than as the result of supervisors carrying out corporate policies. Liability for employment discrimination is a statutory creation, however, and Congress is free to impose liability on supervisors like the one who harassed Paroline. Until Congress does so, Birkbeck seems to command that, because "[e]mployer liability ensures that no employee can violate the civil rights laws with impunity," Birkbeck, 30 F.3d at 510, individual employees should not be liable under the ADEA or Title VII under any circumstances. But see Shoemaker v. Metro Info. Servs., 910 F.Supp. 259, 266 (E.D.Va.1996) (rejecting view that supervisory employees should be unconditionally released from liability because such rule would "eviscerate Title VII's antidiscriminatory force").
[3] Plaintiff's ADEA and Title VII claims against the individual defendants fail for the additional reason that he did not name them as respondents in his administrative charges. See, e.g., Borowski v. Vitro Corp. 634 F.Supp. 252, 255 n. 2 (D.Md. 1986), rev'd on other grounds, 829 F.2d 1119 (1987).
[4] Although the baseline period is only 180 days, the statutes provide 300 days if the alleged act occurred in a state in which a state or local agency has authority to grant relief from the challenged practice and the plaintiff has instituted proceedings before that agency. Maryland's Commission on Human Relations has such authority, and Causey alleges in his complaint that he filed charges with that agency in October 1992. The record is silent with respect to any subsequent filings with Maryland authorities. However, I need not determine whether the proper period is 180 or 300 days. The 1989 events Causey recounts occurred well before the 300-day period preceding his first EEOC filing, whereas events from 1992 to 1994 were followed by EEOC filings well within a 180-day period.
[5] Although the record is not explicit, I assume that the EEOC, instead of dismissing the second charge as it had dismissed the first one, referred Causey's complaint to the Justice Department pursuant to 42 U.S.C. § 2000e-5(f)(1) (requiring that EEOC, instead of directly initiating litigation as it would against a non-governmental respondent, refer to the Attorney General charges against governmental respondents that the EEOC chooses not to dismiss). Causey, however, requested that he be granted the right to sue before DOJ had taken action. Because the statutorily imposed 180 day deadline had passed, Causey's request was granted. See Defs.' Ex. 8.
[6] Plaintiff responds that the City's "Roster of Employees" currently lists Causey's old job as Chief of the Traffic Division as an unfilled, still-budgeted vacancy. See Pl.'s Ex. 3, 4. Standing alone, however, an entry on a municipal employment roster is insufficient to prove that Causey's position "remains open." Plaintiff offers no evidence that the City has interviewed other applicants or otherwise sought to fill the position. Showing that the City terminated him and then sought younger black candidates would be sufficient to raise such an inference. Without other evidence, however, plaintiff's reference to the municipal employment roster fails to "tip the scale" toward an inference of discrimination.
[7] Although I am primarily analyzing the evidence from the perspective of whether Causey has made out a prima facia case under the first stage of the McDonnell Douglas scheme of proof, it is clear that defendants have articulated a nondiscriminatory reason for the action that plaintiff challenges: they contend that Causey's job as Chief of the Traffic Division was terminated because of funding shortfalls. They have therefore carried their burden of production under the second stage of the McDonnell Douglas scheme of proof, shifting the responsibility to Causey to attack these justifications as pretextual. Accordingly, the current "some other evidence" inquiry may be equally considered from the perspective of whether Causey has established facts from which a reasonable factfinder could conclude that defendants' proffered reason is pretextual, in accordance with the third stage of the McDonnell Douglas scheme of proof. Thus, just as I conclude above that an entry on the City's employment roster is insufficient to establish that plaintiff's position "remained open," see supra note 6, I alternatively find that it is insufficient to present a triable issue of fact as to whether the City's proffered reason is pretextual.
[8] Although there apparently is no Fourth Circuit case directly on point, it seems clear that Zombro bars § 1985(3) suits as well. Sections 1983 and 1985(3) are largely analogous, with § 1985(3) providing a remedy against those who conspire to deny a plaintiff equal treatment under law. The breadth of the Zombro analysis, moreover, clearly indicates that a plaintiff is just as unable to circumvent the ADEA by using § 1985(3) as he is unable to do so using § 1983. See also infra discussion of Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979).
[9] Likewise, although Causey alleges in his complaint that "[t]he City supervisory personnel who directly supervised plaintiff also violated his First Amendment rights by prohibiting him, on threat of immediate firing, from talking to any members of the public or the press concerning the acts of discrimination, herein described, which were occurring against the plaintiff and others," Compl. at 33, he has proffered no evidence to support that claim.
|
504 So.2d 282 (1986)
Clayton WILLIAMS
v.
STATE of Alabama, Marilyn Pogue and Demetria Pogue.
Civ. 5252.
Court of Civil Appeals of Alabama.
July 16, 1986.
Rehearing Denied August 20, 1986.
Certiorari Denied March 27, 1987.
Byron A. Lassiter and Robert A. Wills, Bay Minette, Shores & Booker, Fairhope, for appellant.
Lois Brasfield and William Prendergast, Asst. Attys. Gen., for appellees.
Alabama Supreme Court 85-1427.
WRIGHT, Presiding Judge.
From the trial court's judgment of paternity and its order of support, defendant appeals, primarily on the ground that plaintiff's cause of action is barred by the statute of limitations. We affirm.
*283 Demetria Pogue is the illegitimate daughter of Marilyn Pogue and is a named plaintiff, together with her mother and the State of Alabama, in this paternity action against Clayton Williams for the purpose of establishing child support. The original action was brought by the State on behalf of the mother. At trial the child was added as a plaintiff. She was then eleven years old. It is her status as a plaintiff pursuant to § 26-17-6(c), Code of Alabama 1975, and the time within which she may bring suit to establish paternity and an obligation of support that are the overriding issues. Those issues are presented for the first time in our courts.
Prior to the passage of the Alabama Uniform Parentage Act, 1984 Ala.Acts 84-244, only the mother (or legal guardian) and the State could commence paternity proceedings in Alabama. See § 26-12-1, Code 1975. Actions pursuant to that section were originally limited to two years from the birth of the child by § 26-12-7. In 1981, the limitations period was extended to five years. See § 26-12-7, Code of Alabama 1975. By so doing, the Alabama legislature anticipated the case of Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983) (hereinafter cited as Pickett), in which the U.S. Supreme Court invalidated Tennessee's two-year paternity statute under the equal protection clause of the fourteenth amendment of the United States Constitution. In 1983, this court in State v. Martin, 437 So.2d 1311 (Ala.Civ. App.1983) [hereinafter cited as Martin], citing Pickett, supra, posthumously invalidated Alabama's two-year statute of limitations by permitting a paternity suit that otherwise would have been barred. See Tyson v. Johns-Manville Sales Corporation, 399 So.2d 263 (Ala.1981) [hereinafter cited as Tyson].
The new act continued the five-year statute of limitations for paternity actions against presumed fathers. See § 26-17-6(a), Code of Alabama 1975. In the case of illegitimate children without presumed fathers, no limitations period for bringing an action to determine paternity is prescribed in the statute. See § 26-17-6(c). The only limitation provided by the new act for bringing an action against non-presumed fathers is set out in § 26-17-8(b): "An action to determine paternity for the purposes of obtaining support shall not be brought after the child attains age 19."
The new act provides that a child may bring an action pursuant to Alabama paternity statutes. See §§ 26-17-6(a), (b), (c) and -9(c). This change as to who may sue for paternity brings Alabama law in line with a developing consensus at the state and federal levels, i.e., that the right of a child, legitimate or illegitimate, to be supported by his natural father lies in the child and an action therefor need not be brought by some intermediary party acting on his behalfa party, that is, whose interest might conflict with that of the child. See generally Wells, Statutes of Limitations in Paternity Proceedings, 32 Am.U.L.Rev. 567, 602-6 (1983).
All minor children have a fundamental right to parental support. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). In the case of the illegitimate child, however, that right is not enforceable until a determination of paternity is made. See Harris v. State, 356 So.2d 623 (Ala.1978). The new act provides the child whose right to support is at stake with a procedural mechanism to enforce itin his own name.
At the time this suit was filed in 1985, plaintiff-child was eleven years old. In Alabama the statute of limitations in effect at the time the suit is filed is the one that applies. Street v. City of Anniston, 381 So.2d 26 (Ala.1980); Adams v. State, 428 So.2d 117 (Ala.Civ.App.1983). The new act was in effect at the time this child filed suit. From the foregoing, it seems clear that plaintiff has a proper cause of action, timely filed. Defendant contends that she does not.
Of the three defenses appellant raises on appeal, only two are properly before this court. The constitutional challenge to § 26-17-6(c) of the Code is not present in the pleadings and was not raised at trial; appellate review of this issue is therefore foreclosed. King v. Reid, 428 So.2d 611 *284 (Ala.1983). Appellant's argument that plaintiff's cause of action is barred by the equitable doctrine of laches, can also be summarily dismissed.
Since an action to establish paternity raises legal, not equitable issues, laches may not be asserted as a bar to the proceedings. Perez v. Singh, 21 Cal. App.3d 870, 97 Cal.Rptr. 920 (1971). In any event, the child's right to support is deemed to be a continuing right, one that cannot become stale at least until the age of majority. See Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); Chandler v. Whatley, 238 Ala. 206, 189 So. 751 (1939); Hamilton v. Hamilton, 428 So.2d 65 (Ala.Civ.App.1983).
Appellant's primary defense is that plaintiff's cause is barred by the statute of limitations. He cites Tyson, supra, arguing that plaintiff's cause was barred before the new act became effective, and that to apply the new act retroactively to include this plaintiff would violate § 95 of the Alabama Constitution of 1901, which states: "The legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this state."
He argues that the time for the plaintiff to have brought her suit was prior to the time she reached the age of five. Not having done so, and there being a statute of limitations of five years in effect [See Martin, supra], when she turned five, her suit is barred under the rule stated in Martin, supra at 1312:
"[I]f when the successor statute becomes effective, the cause of action has already been barred by the limitations statute in effect at accrual, then the new, longer statute cannot be applied to revive the barred cause."
The flaw in appellant's argument is in attempting to graft the principle of Tyson stated in Martin, supra, onto the facts in this case. In that case, plaintiff's remedy already existed. The new statute merely extended the length of the statutory period to sue. That cause, having lapsed under the old statute before the effective date of the new statute, precluded retroactive application of the new statute. In this case, plaintiff did not have a remedy in the paternity statutes to sue on her own behalf prior to the remedy given her in the new act.
Remedial statutes, that is, statutes relating to remedies or modes of procedure, are not within the domain of retrospective laws and do operate retroactively, absent clear language to the contrary. Jones v. Casey, 445 So.2d 873 (Ala.1983); Harlan v. State, 31 Ala.App. 478, 18 So.2d 744 (Ala.App.1947). Section 26-17-6(c), Code of Alabama 1975, is a remedial statute, providing a procedure for the enforcement of an existing substantive right and may be applied retroactively.
That the child in the instant case was more than five years old before the effective date of the new act, does not change the fact that her right to parental support existed before it. The new act merely created a procedure to implement her preexisting substantive right. The presumption against retroactive application does not obtain in such a situation.
Finally, appellant argues that the child did have a procedural remedy to enforce her substantive right of support prior to the new act's enactment, by way of a declaratory judgment action; and that the remedy provided in the new act cannot retroactively apply to plaintiff's cause, which appellant contends would be controlled by the statute of limitations applicable to actions brought pursuant to § 26-12-1, Code of Alabama 1975. We opine that a declaratory judgment action is not meant to be exclusive, and in case of conflict between it and a specific statute, the latter must prevail. See Gary v. Marquette Casualty Co., 72 So.2d 619 (La.App. 1954). An early case in Alabama held that "a statute which merely gives a remedy at law, where it could previously have been available in equity only, or vice versa, may consistently with the constitution operate retroactively." Paschall v. Whitsett, 11 Ala. 472, 478 (1847).
The legislature provided a specific procedure when it adopted the Uniform *285 Parentage Act. The possibility that a declaratory judgment action may also lie on behalf of a child seeking a paternity determination for the purposes of establishing support does not foreclose the application of § 26-17-6(c).
For the reasons given, the judgment of the Juvenile Court of Baldwin County is affirmed.
AFFIRMED.
BRADLEY and HOLMES, JJ., concur.
|
7 F.3d 228
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-Appellee,v.Hewin Samuel WRIGHT, Defendant-Appellant.
No. 92-5532.
United States Court of Appeals,Fourth Circuit.
Submitted: December 9, 1992.Decided: September 28, 1993.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Sr., District Judge. (CR-91-180-G)
Thomas H. Johnson, Jr., Greensboro, North Carolina, for Appellant.
Robert H. Edmunds, Jr., United States Attorney, Robert M. Hamilton, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.
M.D.N.C.
AFFIRMED.
Before WIDENER, MURNAGHAN, and LUTTIG, Circuit Judges.
PER CURIAM:
OPINION
1
Hewin Samuel Wright pled guilty to possession with intent to distribute cocaine base (crack), in violation of 21 U.S.C. §§ 841(a), (b)(1)(A) (West 1981 & Supp. 1992). He received a 120-month sentence. Wright now appeals. His attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), stating that, in his view, there are no meritorious issues for appeal. Wright was advised of his right to file a separate brief; however, he has filed nothing in support of his appeal.
2
Our review of the briefs, appendix, and other materials before us reveals that there is no merit to Wright's appeal. The district court conducted a hearing on Wright's motion to suppress drugs and drug paraphernalia seized from Wright's motel room and luggage. Following the hearing, at which a police officer and Wright testified, the district court made a credibility determination in favor of the officer and found that Wright had voluntarily consented to the search. Because this factual determination was not clearly erroneous, the denial of the suppression motion will be upheld. See United States v. Wilson, 895 F.2d 168, 172 (4th Cir. 1990).
3
Following the court's ruling on the suppression motion, Wright changed his plea to guilty. Review of the transcript of the plea proceeding reflects compliance with Fed. R. Crim. P. 11. Similarly, our review of the sentence imposed reflects that Wright's 120-month sentence is in accordance with the statute under which he was convicted and with the Sentencing Guidelines.
4
In accordance with the requirements of Anders, supra, we have examined the entire record in this case and find no meritorious issues for appeal. Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964 (18 U.S.C. § 3006A), this Court requires that counsel inform his client, in writing, of his right to petition the Supreme Court for further review. If requested by his client to do so, counsel should prepare a timely petition for a writ of certiorari. Consequently, we deny the motion of Wright's attorney to withdraw.
5
We dispense with oral argument because the facts and legal contentions are adequately presented in the record and briefs, and oral argument would not aid the decisional process.
AFFIRMED
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALFRED F. WORLEY,
Petitioner-Appellant,
v. No. 00-6381
TIM O’DELL; MICHAEL F. EASLEY,
Respondents-Appellees.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Graham C. Mullen, Chief District Judge.
(CA-00-13-1-MU)
Submitted: February 13, 2001
Decided: March 15, 2001
Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Alfred F. Worley, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 WORLEY v. O’DELL
OPINION
PER CURIAM:
Alfred F. Worley appeals the district court’s order denying his
habeas corpus petition pursuant to 28 U.S.C.A. § 2254(d)(1) (West
1994 & Supp. 2000). We vacate and remand for further proceedings.
Worley was convicted in 1991 of first degree burglary and felony
larceny. He was sentenced to life plus ten years. The state superior
court denied his motion for appropriate relief. The record contains
neither the motion nor the superior court’s decision denying the
motion. Worley then petitioned the North Carolina Court of Appeals
for a writ of certiorari. The State opposed the petition. The Court of
Appeals summarily denied certiorari.
Worley next filed the instant § 2254 petition, alleging ineffective
assistance of counsel and raising other claims. The district court, rely-
ing only upon the habeas petition, the State’s response to the motion
for appropriate relief, the state court’s order denying certiorari, and
"other submitted documents," determined that it could not conclude
that the state court’s "decision was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States." 28 U.S.C.A.
§ 2254(d)(1).
On the state of the record before us, it is impossible to determine
whether the district court properly deferred to the superior court’s
decision. In order to determine whether deference under § 2254(d)(1)
was appropriate, the district court should have addressed the superior
court’s decision itself. The documents currently in the record do not
disclose the reasoning employed in denying Worley’s motion for
appropriate relief. It is therefore necessary to vacate the decision of
the district court and remand so that the court may examine the supe-
rior court’s decision and determine whether that court’s adjudication
"was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court . . . ."
28 U.S.C.A. § 2254(d)(1).
WORLEY v. O’DELL 3
We grant the motions for a certificate of appealability and for leave
to proceed in forma pauperis. The motion for appointment of counsel
is denied. 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.
VACATED AND REMANDED
|
J-S41006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN LEE GETZ,
Appellant No. 725 MDA 2016
Appeal from the PCRA Order April 29, 2016
in the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0000375-2012
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.:
Appellant, Kevin Lee Getz, appeals from the order of April 29, 2016,
which dismissed, following a hearing, his first, counseled petition brought
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
We take the underlying facts and procedural history in this matter
from this Court’s April 11, 2014 memorandum on direct appeal and our
independent review of the certified record.
The facts and procedural history of this case are
summarized as follows. On August 24, 2011, [Appellant and his
fiancée] took their six-week-old son . . . to the emergency room
at Wilkes–Barre General Hospital because [the son’s] left leg was
swollen. While examining [the son], the triage nurse noted that
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S41006-17
his left leg was twice the size of his right leg and the charge
nurse felt a “lump underneath the skin” of the left leg. As a
result, the charge nurse ordered x-rays of the legs. While in the
emergency room, the parents indicated that they were unaware
of what caused [the son’s] injuries. Dr. Ronald Richterman (“Dr.
Richterman”), the radiologist at Wilkes–Barre General Hospital
who examined [the son’s] x-rays, found a complete fracture of
the left femur and fractures in the right femur and tibia. After
receiving the report of these x-rays, the emergency room
ordered more x-rays of [the son], which revealed further injury.
Wilkes–Barre General Hospital then transferred [the son]
to Geisinger Medical Center (“Geisinger”) for pediatric specialty
care. While at Geisinger, [the son] was under the care of Dr.
Paul Bellino (“Dr. Bellino”), a child abuse expert. While
examining [the son], Dr. Bellino discovered bruises on [the
son’s] cheek and left arm. Subsequently, Dr. Bellino reviewed x-
rays of [the son’s] legs and found the same extensive trauma as
Dr. Richterman. Dr. Bellino also examined x-rays of [the son]
that revealed several recent rib fractures as well as several
healing rib fractures.
Due to the type [of] injuries [the son] sustained, Wilkes–
Barre General Hospital referred the case to Children and Youth
Services, who in turn, notified the Luzerne County District
Attorney. On September 16, 2011, Gary Sworen (“Sworen”), a
Luzerne County detective with the District Attorney’s office,
interviewed [Appellant]. During this interview, [Appellant]
admitted to causing most of [the son’s] injuries. [Appellant]
stated that he remembered squeezing [the son] too hard in an
attempt to stop him from crying, before hearing a pop.
[Appellant] also made a signed, written statement admitting to
“wrapping” [the son] too tightly in a blanket.
Based on this interview, authorities arrested [Appellant] on
January 18, 2012, and charged him [with aggravated assault,
endangering the welfare of children, simple assault, and
recklessly endangering another person.]. On December 17,
2012, [Appellant] was tried before a jury. On December 19,
2012, the jury convicted [Appellant on all charges]. On
February 21, 2013, the trial court sentenced [Appellant] to [not
less than] six [nor more than] twelve years of incarceration. On
April 19, 2013, after receiving an extension, [Appellant] timely
filed his post-sentence motions. On June 18, 2013, the trial
-2-
J-S41006-17
court denied [Appellant’s] post-sentence motions. This [direct]
appeal followed.
(Commonwealth v. Getz, 2014 WL 10965233, No. 1344 MDA 2013,
unpublished memorandum at **1-3 (Pa. Super. filed April 11, 2014) (record
citations omitted)).
On April 11, 2014, this Court affirmed the judgment of sentence. (See
id. at *1). Appellant did not seek leave to appeal to the Pennsylvania
Supreme Court.
On May 8, 2015, Appellant filed the instant, timely, counseled PCRA
petition. An evidentiary hearing took place on March 2, 2016. At the
hearing, Appellant claimed that he had received ineffective assistance of trial
counsel, because counsel failed to call an expert witness to refute the
Commonwealth’s theory with respect to the timeline of the child’s left leg
injury. (See PCRA Petition, 5/08/15, at 2, ¶ 8; N.T. PCRA Hearing, 3/02/16,
at 105).
In support of Appellant’s contention, Dr. Mary Pascucci, a pathologist,
testified as an expert. (See N.T. PCRA Hearing, 3/02/16, at 3, 16). Dr.
Pascucci testified that she largely agreed with the trial testimony of the
Commonwealth’s expert, Dr. Bellino, disagreeing with him solely with
respect to the timeline of the left leg injury.1
____________________________________________
1
At trial, Dr. Bellino testified that, based upon the medical evidence, the
injury to the child’s left leg occurred within a range of seventy-two hours
(Footnote Continued Next Page)
-3-
J-S41006-17
Dr. Pascucci stated that she believed that the child’s left leg injury
occurred within a few hours prior to his second admission to the emergency
room. (See id. at 32-33). However, on cross-examination, Dr. Pascucci
admitted that she agreed with Dr. Bellino’s testimony that, based upon bone
formation, the injury occurred within four to five days of the child’s second
visit to the emergency room. (See id. at 49). She further agreed with his
testimony that, because of the level of swelling in the leg, that the injury
occurred closer in time rather than further in time from the admission. (See
id.). She also conceded that Dr. Bellino had not placed the time of injury at
twenty-fours prior to admission but rather within twenty-four hours. (See
id. at 49-50). She characterized her timeline as “a little bit different. . .
mine is more narrow.” (Id. at 52). Ultimately, however, Dr. Pascucci
acknowledged that she based her narrower timeline not on objective medical
evidence but because she credited the medical history Appellant’s fiancée
gave at the time of admission. (See id. at 53-54).
Dr. Pascucci testified that the severity of the injury would have caused
visible discomfort and Appellant’s fiancée had stated to the emergency room
_______________________
(Footnote Continued)
prior to his arrival at the emergency room to immediately prior to the
parents bringing him to the hospital. (See N.T. Trial, 12/18/12, at 155).
However, Dr. Bellino revised his estimate based upon the fact that the child
had visited the emergency room for an unrelated injury earlier in the week.
(See id. at 159-61). Dr. Bellino stated that staff would have observed the
injury during that visit, thus revising his estimate to after that first visit but
before the second, a period of approximately twenty-four hours. (See id.).
-4-
J-S41006-17
staff that the child had not experienced any discomfort until a couple of
hours prior to admission. (See id.). Dr. Pascucci conceded that her
timeline was therefore dependent upon the truthfulness and awareness of
the child’s caretaker(s). (See id. at 54-55). Lastly, Dr. Pascucci admitted
that she was not aware that the Commonwealth’s theory of the case was
that the left leg injury occurred “right before they brought [the child] to the
[emergency room.]” (Id. at 57).
On April 29, 2016, the PCRA court denied Appellant’s PCRA petition.
On May 4, 2016, Appellant filed a timely notice of appeal. On May 6, 2016,
the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On May 16, 2016,
Appellant filed a timely Rule 1925(b) statement. See id. On September 22,
2016, the PCRA court issued an opinion. See Pa.R.A.P. 1925(a).
On December 15, 2016, this Court remanded the matter to the trial
court for a determination of whether PCRA counsel abandoned Appellant on
appeal. On January 25, 2017, the PCRA court held a hearing and found that
counsel had not abandoned Appellant. In response to this Court’s January
26, 2017 order, PCRA counsel filed a timely brief on April 6, 2017.
On appeal, Appellant raises the following question for our review:
Whether, where in a trial for aggravated assault of an
infant, the Commonwealth presented expert testimony claiming
that there was a large window of time in which the [child’s]
injuries could have occurred, which included time in which
Appellant was with the [son], and [d]efense [c]ounsel failed to
consult with or present expert testimony that the injuries could
-5-
J-S41006-17
only have occurred in a more narrow window of time in which
Appellant was not with the [son], despite that fact that such
testimony was readily available, and failed to effectively cross-
examine the Commonwealth’s expert witness, the trial court
erred in denying Appellant’s PCRA [p]etition?
(Appellant’s Brief, at 7).
Our scope and standard of review is well-settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record of the
PCRA court’s hearing, viewed in the light most favorable to the
prevailing party. Because most PCRA appeals involve questions
of fact and law, we employ a mixed standard of review. We
defer to the PCRA court’s factual findings and credibility
determinations supported by the record. In contrast, we review
the PCRA court’s legal conclusions de novo.
Commonwealth v. Reyes–Rodriguez, 111 A.3d 775, 779 (Pa. Super.
2015), appeal denied, 123 A.3d 331 (Pa. 2015) (internal citations and
quotation marks omitted).
To obtain relief under the PCRA on a claim that counsel was
ineffective, a petitioner must establish by a preponderance of the evidence
that counsel’s ineffectiveness “so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.”
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (citing 42
Pa.C.S.A. § 9543(a)(2)(ii)). “Generally, counsel’s performance is presumed
to be constitutionally adequate, and counsel will only be deemed ineffective
upon a sufficient showing by the petitioner.” Id. (citation omitted). This
requires the petitioner to demonstrate that: (1) the underlying claim is of
arguable merit; (2) counsel had no reasonable strategic basis for his or her
-6-
J-S41006-17
action or inaction; and (3) petitioner was prejudiced by counsel’s act or
omission. See id. at 533.
A finding of “prejudice” requires the petitioner to show “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. (citations omitted).
In assessing a claim of ineffectiveness, when it is clear that appellant has
failed to meet the prejudice prong, the court may dispose of the claim on
that basis alone, without a determination of whether the first two prongs
have been met. See Commonwealth v. Travaglia, 661 A.2d 352, 357
(Pa. 1995), cert. denied, 516 U.S. 1121 (1996). “Counsel cannot be
deemed ineffective for failing to pursue a meritless claim.” Commonwealth
v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied,
852 A.2d 311 (Pa. 2004) (citation omitted).
Moreover, trial counsel’s strategic decisions cannot be the subject of a
finding of ineffectiveness if the decision to follow a particular course of action
“was reasonably based and was not the result of sloth or ignorance of
available alternatives.” Commonwealth v. Collins, 545 A.2d 882, 886 (Pa.
1988) (citations omitted). “[C]ounsel’s approach must be so unreasonable
that no competent lawyer would have chosen it.” Commonwealth v.
Ervin, 766 A.2d 859, 862–63 (Pa. Super. 2000), appeal denied, 793 A.2d
904 (Pa. 2002), cert. denied, 536 U.S. 939 (2002) (citation omitted). Our
Supreme Court has defined “reasonableness” as follows:
-7-
J-S41006-17
Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. The test is not
whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial
counsel’s decision had any reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (citation
omitted); see also Commonwealth v. Clark, 626 A.2d 154, 157 (Pa.
1993) (explaining that defendant asserting ineffectiveness based upon trial
strategy must demonstrate that “alternatives not chosen offered a potential
for success substantially greater than the tactics utilized”) (citation omitted).
“[A] defendant is not entitled to appellate relief simply because a chosen
strategy is unsuccessful.” Commonwealth v. Buksa, 655 A.2d 576, 582
(Pa. Super. 1995), appeal denied, 664 A.2d 972 (Pa. 1995) (citation
omitted).
Lastly, “[t]o establish ineffective assistance of counsel for the failure to
present an expert witness, appellant must present facts establishing that
counsel knew or should have known of the particular witness.”
Commonwealth v. Millward, 830 A.2d 991, 994 (Pa. Super. 2003), appeal
denied, 848 A.2d 928 (Pa. 2004) (citations omitted). Further, “the
defendant must articulate what evidence was available and identify the
witness who was willing to offer such evidence.” Commonwealth v.
Bryant, 855 A.2d 726, 745 (Pa. 2004) (citations omitted).
-8-
J-S41006-17
Here, Appellant avers that trial counsel was ineffective for failing to
call an expert witness to counter the expert testimony of the
Commonwealth’s witness, Dr. Bellino.2, 3
(See Appellant’s Brief, at 16-17).
However, because Appellant has not demonstrated that counsel’s failure to
call an expert witness prejudiced him, his claim lacks merit.
As discussed above, Dr. Pascucci’s testimony largely tracked that of
Dr. Bellino. She herself admitted that her findings merely narrowed the left
leg injury timeline from within twenty-four to within a few hours of the
child’s arrival at the emergency room. (See N.T. PCRA Hearing, 3/02/16, at
____________________________________________
2
While Appellant repeatedly refers to the Commonwealth’s calling of “expert
witnesses,” and trial counsel’s alleged failure to investigate or cross-examine
them properly, (see, e.g. Appellant’s Brief, at 17-19), the record reflects
that the only relevant expert witness was Dr. Bellino. While the
Commonwealth did qualify Dr. Ronald Richterman, the child’s radiologist, as
an expert, (see N.T. Trial, 12/17/12, at 48), Dr. Richterman testified only
about the injuries he observed on the child’s x-rays; he did not testify with
respect to the timeline or make any conclusions about who or what caused
the injuries. (See id. at 51-54). Dr. Pascucci did not dispute the nature of
the child’s injuries and Appellant did not provide any expert testimony at the
PCRA hearing that in any way called into question Dr. Richterman’s
testimony. (See N.T. PCRA Hearing, 3/02/16, at 3-68). Dr. Jamie Ryan,
the child’s pediatrician, testified at trial as a fact witness and her testimony
was limited to stating that she had examined the child on July 18, 2011, and
saw no signs of injury on that date. (See N.T. Trial, 12/18/12, at 192-94).
3
Appellant also appears to argue that trial counsel was ineffective for failing
to cross-examine Dr. Bellino adequately. However, Appellant does not treat
this as a separate claim but subsumes it within his claim of ineffectiveness
for failing to hire an expert witness. (See Appellant’s Brief, at 15-22).
Further, this claim is underdeveloped. Therefore, we will not address it.
See Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (“[I]t is a
well settled principle of appellate jurisprudence that undeveloped claims are
waived and unreviewable on appeal.”) (citations omitted).
-9-
J-S41006-17
32-33, 49-55). Moreover, despite Appellant’s self-serving claim that this
narrowed timeline exonerates him, (see Appellant’s Brief, at 16), the
evidence at trial, viewed in the light most favorable to the verdict winner,
refutes this. In his statement to the police and in his trial testimony,
Appellant stated that he arrived home on that date between 4:00 and 4:30
p.m. (See N.T. Trial, 12/17/12, at 78; N.T. Trial, 12/18/12, at 198).
Appellant also told police that he was the child’s primary caretaker once he
got home from work. (See N.T. Trial, 12/17/12, at 75-76). The child
arrived at the emergency room at approximately 7:45 p.m. (See id. at 31).
Thus, Dr. Pascucci’s “narrower” timeline places the time of injury squarely
within the period that Appellant was caring for the child, rather than earlier
in the day when his fiancée was caring for him.
In any event, even if we could somehow construe Dr. Pascucci’s
testimony as arguably helpful to Appellant, her testimony only concerned the
left leg injury. (See N.T. PCRA Hearing, 3/02/16, at 24-68). Dr. Pascucci
did not make any findings with respect to the multiple rib fractures of
different ages, the right leg injuries, or the bruising on the child’s face and
arms. In his statement to the police, Appellant admitted squeezing the child
so hard that he heard something pop. (See N.T. Trial, 12/17/12, at 71-75).
The jury could have found Appellant guilty because of the rib injuries alone.
Our Supreme Court has stated, “[t]he mere failure to obtain an expert
rebuttal witness is not ineffectiveness. Appellant must demonstrate that an
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J-S41006-17
expert witness was available who would have offered testimony
designed to advance appellant’s cause.” Commonwealth v. Wayne,
720 A.2d 456, 470-71 (Pa. 1998), cert. denied, 528 U.S. 834 (1999)
(citation omitted, emphasis added); see also Commonwealth v.
Williams, 141 A.3d 440, 462 (Pa. 2016) (finding counsel was not ineffective
for failing to call expert witness whose testimony did not help defense). For
the reasons discussed above, we find that Appellant has not shown that Dr.
Pascucci’s testimony would have “advanced [his] cause” or changed the
result in this matter. Wayne, supra at 471. Thus, because Appellant failed
to demonstrate prejudice, the PCRA court correctly found that he did not
receive ineffective assistance of counsel. See Johnson, supra at 533.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2017
- 11 -
|
FILED
UNITED STATES COURT OF APPEALS OCT 21 2013
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
HERRY KUSUMA, No. 11-70349
Petitioner, Agency No. A088-121-765
v.
ORDER
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
Before: FISHER, GOULD, and BYBEE, Circuit Judges.
On January 7, 2013, the Board of Immigration Appeals reopened and
terminated proceedings in this case for Kusuma to pursue an application for
adjustment of status. Consequently, there is no final order of removal currently in
effect, and this court lacks jurisdiction over the petition for review. See 8 U.S.C.
§ 1252(a)(1); Alcala v. Holder, 563 F.3d 1009, 1013 (9th Cir. 2009). Thus, we
grant Kusuma’s July 12, 2013, motion to withdraw his petition for review.
PETITION FOR REVIEW DISMISSED.
|
398 F.2d 333
Roger S. BANDY, Appellant,v.J. T. WILLINGHAM, Warden, United States Penitentiary, Leavenworth, Kansas; and United States Attorney General, Appellees.
No. 9934.
United States Court of Appeals Tenth Circuit.
July 22, 1968.
Rehearing Denied August 22, 1968.
Newell A. George, U. S. Atty., and Benjamin E. Franklin, Asst. U. S. Atty., for appellees.
Roger S. Bandy, pro se.
Before MURRAH, Chief Judge, and HILL, Circuit Judge.
PER CURIAM.
1
Bandy was sentenced in 1959 by the United States District Court for the District of North Dakota to five years imprisonment and five years probation. He immediately filed a notice of appeal and signed a written election not to commence service of sentence pursuant to the then Rule 38(a) (2), Federal Rules of Criminal Procedure. The conviction was affirmed on appeal, Bandy v. United States, 296 F.2d 882 (8th Cir. 1961) and Bandy sought review by certiorari.
2
In 1961, while the above proceedings were pending, Bandy received eleven five year sentences from the United States District Court for the District of Idaho. Two of these sentences were to be served consecutively and the other nine were to be concurrent. The appeal in that case was dismissed by the Ninth Circuit Court of Appeals.
3
Bandy made application to the Supreme Court for release on his "personal recognizance" and on December 19, 1961, Justice Douglas ordered him released from custody during the pendency of the certiorari petition. The petition was denied on March 26, 1962, Bandy v. United States, 369 U.S. 831, 82 U.S. 849, 7 L.Ed.2d 796 (1962), but the appellant was not located again until December, 1965, when he was arrested in New York. He was received at Leavenworth Penitentiary on January 8, 1966, to begin serving his federal sentences.
4
The appellant filed a petition for a writ of habeas corpus with the United States District Court for the District of Kansas.1 He appeals from a denial of that petition.
5
Appellant's first contention is that his initial arrest was invalid as there was no North Dakota arrest warrant.2 The short answer is that Bandy was lawfully arrested on the authority of an outstanding Idaho arrest warrant.
6
The second contention is that appellant was forced to sign the election not to serve his sentence pending appeal. The alleged coercion stems from the fact that appellant was advised that he must sign the self-explanatory election form to avoid removal to the penitentiary. This correct advice does not constitute coercion.
7
The third claim is that the Idaho District Court could not impose a sentence until the five year probationary period imposed by the North Dakota federal court had been completed. There is no merit to such a conclusion. See Stewart v. United States, 267 F.2d 378 (10th Cir. 1959).
8
The fourth contention is that the Idaho court failed to designate a date on which the appellant was to commence service of that sentence. Commencement of sentences begins when the prisoner is received at the place of service. 18 U.S.C. § 3568. Manning v. United States, 389 F.2d 755 (10th Cir. 1968); Powers v. Taylor, 327 F.2d 498 (10th Cir. 1964).
9
Appellant's fifth and sixth claims relate to the alleged denial of a speedy trial, and denial of credit for presentence jail time by the Idaho Court. Both of these matters must be presented to the sentencing court by motion to vacate, pursuant to 28 U.S.C. § 2255. Williams v. United States, 283 F.2d 59 (10th Cir. 1960).
10
The seventh claim is that appellant should have received good time credit from the date of his arrest in 1959. This claim is without merit. Good time credit cannot be earned until the prisoner commences service of his sentence. 18 U.S.C. § 4161.
11
The final claim is that appellant should have been eligible for release in December 1965. It is undisputed that he was sentenced to two consecutive five year terms by the Idaho District Court. Because of the election not to serve and the fugitive from justice status, service of that sentence began when he was received at the penitentiary on January 8, 1966. The appellant has not completed his federal sentences and is not entitled to habeas corpus relief.
12
It is manifest that the questions on which the decision of this court depends are so unsubstantial as not to need further argument. Appellees' motion to affirm is granted and the judgment is affirmed.
13
Appellant has filed a petition for a writ of mandamus to compel the appellee to file his brief. Since we have determined that further argument is unnecessary, the petition is denied.
Notes:
1
This was the ninth petition Bandy filed with the Kansas District Court. Although it might have dismissed it as a successive petition without a hearing, Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the district court gave Bandy a final opportunity to present all his claims for relief
2
Since this is an indirect attack on the North Dakota conviction it is improperly raised in a habeas corpus proceeding. 28 U.S.C. § 2255
|
___________
No. 95-2574
___________
Northeastern Living Center, Inc., *
*
Appellee, *
*
v. *
*
Lake Region Development, Inc., *
a corporation; Marshall Manor, *
Inc., a corporation, *
*
Defendants, *
*
Robert B. Marx, *
*
Appellant, *
*
Janelle E. Marx, *
*
Defendant. *
___________
Appeals from the United States
No. 95-2774 District Court for the
___________ District of South Dakota.
Northeastern Living Center, Inc., * [UNPUBLISHED]
*
Appellee, *
*
v. *
*
Lake Region Development, Inc., *
a corporation; Marshall Manor, *
Inc., a corporation, *
*
Defendants, *
*
Janelle E. Marx, *
*
Appellant. *
___________
No. 95-3002
___________
Northeastern Living Center, Inc., *
*
Appellee, *
*
v. *
*
Lake Region Development, Inc., *
a corporation; Marshall Manor, *
Inc., a corporation, *
*
Defendants, *
*
Robert B. Marx, *
*
Appellant, *
*
Janelle E. Marx, *
*
Defendant. *
___________
Submitted: June 12, 1996
Filed: June 24, 1996
___________
Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
___________
PER CURIAM.
These appeals result from the debt collection action and bankruptcy
proceedings involving Lake Region Development, Inc. (Lake Region), and a
Lake Region subsidiary, Marshall Manor Incorporated (Marshall Manor). In
1983, appellants Robert Marx and Janelle Marx both executed personal
"Guaranty Agreements" promising to pay any indebtedness owed on behalf of
Lake Region and Marshall Manor, in exchange for a $738,000 loan to the
corporations. Lake Region and Marshall Manor defaulted on the loan and
Northeastern pursued collection. In 1993, following his involuntary
bankruptcy, Robert Marx was dismissed as a defendant. Lake Region and
Marshall Manor filed petitions for bankruptcy and an adversary proceeding
against Northeastern in the Bankruptcy court.
The district court1 withdrew the reference to the bankruptcy court of
the bankruptcy proceedings, then conducted a one-day trial in January 1995,
addressing both the debt collection proceedings and the bankruptcy
proceedings. Following the trial, the district court dismissed the
bankruptcy proceedings as filed in bad faith, and found that Lake Region,
Marshall Manor, and Janelle Marx were jointly and severally liable to
Northeastern for a total of $1,154,959.70. Robert Marx and Janelle Marx
have separately appealed various orders entered in the district court.
Lake Region and Marshall Manor have not appealed.
As to Robert Marx, we affirm the district court's denial of his
motion to intervene as untimely. In all other respects, we dismiss his
appeal for lack of standing. We deny his motion to supplement the record.
As to Janelle Marx, we affirm the district court's judgment and its
denial of her Rule 59(a) motion. The record shows she had actual notice
of the trial, and the arguments she raises on appeal either were not raised
below, challenge the district court's credibility determinations, or raise
defenses of the corporate defendants, which she may not raise under South
Dakota Law. See United States Fire Ins. Co. v. Kresser Motor Serv., Inc.,
26 F.3d 91, 95 (8th Cir. 1994); Wilson v. Lambert, 789 F.2d 656, 658 (8th
Cir. 1986); International Multifoods Corp. v. Mardian, 379 N.W.2d 840, 841-
44 (S.D. 1985).
Accordingly, the judgments are affirmed.
1
The Honorable Lawrence L. Piersol, United States District
Judge for the District of South Dakota.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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|
J. S57009/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LAMON STREET, : No. 952 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, January 21, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0011095-2009
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 24, 2016
Lamon Street appeals from the judgment of sentence of January 21,
2015, following imposition of a sentence of life imprisonment without the
possibility of parole (“LWOP”) in this first-degree murder case. Appellant
was a juvenile at the time of the murder, bringing his case within the
purview of Miller v. Alabama, U.S. , 132 S.Ct. 2455, 183 L.Ed.2d
407 (2012), and Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013)
(“Batts II”) (invalidating mandatory LWOP sentences for juvenile
offenders). After careful review, we affirm.
On a prior direct appeal, this court summarized the facts of this case
as follows:
On May 22, 2009, roughly eight to eleven
persons congregated near the outside of a certain
residence on Alpine Street in Pittsburgh. Those
* Retired Senior Judge assigned to the Superior Court.
J. S57009/16
persons included Sofion Moore and his girlfriend,
Shavaughn Wallace. Some thirteen gunshots were
fired toward the group. When the shooting started,
Wallace was inside a car. Moore warned her to lie
down. While it is not clear to us if Wallace did so or
if she tried to exit the vehicle, she was hit by gunfire.
As a result, she and her unborn child died.
Shortly after the incident, Moore told police
that he did not know who the shooter was. Later,
however, he identified Appellant as the gunman
based on a photo array shown to him by police. At
Appellant’s eventual trial, Moore first indicated he
had not seen the shooter. After additional
examination, Moore testified that he had seen
Appellant firing the gun. Moore’s testimony
indicated Appellant approached from behind Moore
and Moore then turned and saw him.
Some of the persons who had congregated on
Alpine Street were members of a gang known as the
Hoodtown Mafia. Appellant was associated with the
Brighton Place Crips (“the Crips”), a rival gang.
There had been various shootings between members
of the two gangs leading up to May 22, 2009.
The day after the shooting, Appellant spoke
with Dwayne Johnson who was associated with the
Crips. Appellant told Johnson, “I did that shit around
Hoodtown.” N.T., 02/27/12, at 97. Johnson testified
that he interpreted Appellant’s statement to mean
that Appellant had shot Wallace. Appellant also told
Johnson words to the effect that Appellant had been
“off on pills and he didn’t care.” Id. at 98. The
context of the testimony suggested that Appellant
meant he was using pills at the time of the shooting.
Johnson also testified that, based on his friendship
with Appellant, Johnson knew that Appellant had, at
times, used the drug Ecstasy.
In or around March 2010, Johnson and
Appellant came into contact while they were in a
federal correctional facility, both of them having
been indicted in a federal case as members of the
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J. S57009/16
Crips. By that time, Appellant had also been
charged with homicide in the instant case. The two
of them discussed Appellant’s homicide case. While
they did so, Appellant indicated that, on the date of
the shooting, he had been driven to the scene by
another member of the Crips named Fifty. Appellant
stated that he walked a certain distance, saw a
group of people and started shooting. Appellant also
explained that he had seen Moore in the group.
Moreover, Appellant claimed that Moore could not
have seen Appellant shooting because Moore had his
back turned toward Appellant. Appellant also
explained to Johnson that Wallace did not run during
the incident but, instead, was beside a vehicle when
Appellant shot her.
Johnson eventually pled guilty to federal
charges. At some point, he agreed to testify in the
present case. In return for his cooperation, the
U.S. Attorney’s Office moved to reduce his sentence
and the assistant district attorney prosecuting
Appellant’s case agreed to testify for Moore in federal
court with respect to his sentence. Additionally, his
family received witness-relocation funds to move
from Allegheny County.
Appellant presented alibi testimony from his
former girlfriend, Dominique Benton. She claimed
Appellant had been with her on the day of the
shooting while they watched movies. On
cross-examination, the Commonwealth asked Benton
if, at some previous time, she had planned to be an
alibi witness for another former boyfriend,
apparently in an unrelated murder case. Appellant
objected to the Commonwealth’s question on
relevance grounds; the court overruled the objection
on the basis that the question was relevant to
Benton’s credibility.
Appellant was convicted of first-degree murder
and related offenses after a non-jury trial. The court
sentenced him to life imprisonment without the
possibility of parole. Appellant later filed
post-sentence motions claiming, inter alia, that he
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J. S57009/16
should receive a new trial because the verdict was
against the weight of the evidence. The court denied
his motions. Appellant filed this timely appeal.
Commonwealth v. Street, 69 A.3d 628, 630-631 (Pa.Super. 2013). In a
published opinion, this court affirmed appellant’s convictions but vacated the
judgment of sentence and remanded for re-sentencing in accordance with
Batts II. See Street, 69 A.3d at 634 (“In Batts, the Pennsylvania
Supreme Court indicated that the appellate remedy for the unconstitutional
imposition of a mandatory life-without-parole sentence upon a juvenile
situated similarly to Appellant is a remand for resentencing at which the
court must consider the sentencing factors set forth in Miller and then
resentence the appellant accordingly.”).
Prior to re-sentencing, however, appellant filed a motion for a new trial
based on after-discovered evidence in the form of a new witness,
Sir John Withrow (“Withrow”). The trial court scheduled a hearing on that
motion immediately prior to re-sentencing on January 21, 2015. After
hearing Withrow’s testimony, the trial court denied appellant’s motion for a
new trial and proceeded to re-sentencing. Dr. Alice Applegate
(“Dr. Applegate”), a forensic psychologist, testified on behalf of appellant,
and Dr. Bruce Wright, M.D. (“Dr. Wright”), a psychiatrist, testified for the
Commonwealth. The trial court also heard testimony from the victim’s
mother, Carla Gaines-Robinson (“Gaines-Robinson”). After consideration of
all the testimony, together with the experts’ reports and other material, the
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J. S57009/16
trial court re-imposed a sentence of LWOP. Post-sentence motions were
denied, and this timely appeal followed. Appellant complied with
Pa.R.A.P. 1925(b), and the trial court has filed a Rule 1925(a) opinion.
Appellant has raised the following issues for this court’s review:
I. Did the lower court impose an unconstitutional
and illegal sentence by sentencing [appellant]
to [LWOP]?
II. Did the lower court abuse its discretion by
giving undue weight to the serious nature of
the offense itself when sentencing [appellant]
to [LWOP] despite the abundance of mitigating
Miller factors established at the resentencing?
III. Did the lower court abuse its discretion in
denying [appellant]’s motion for a new trial
where a new witness whose identity could not
have been discerned prior to trial came
forward after [appellant]’s conviction and
identified another person as the shooter?
Appellant’s brief at 5 (capitalization omitted).
In his first issue on appeal, appellant claims that the trial court
imposed an illegal sentence when it re-sentenced him to LWOP. According
to appellant, because his first direct appeal was still pending when Miller
was handed down, the trial court was required to impose a minimum
sentence. (Appellant’s brief at 26-27.)
Our standard of review for examining the legality of a sentence on
appeal is as follows.
A challenge to the legality of a sentence . . . may be
entertained as long as the reviewing court has
jurisdiction. It is also well-established that if no
-5-
J. S57009/16
statutory authorization exists for a particular
sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated.
Issues relating to the legality of a sentence are
questions of law[.] . . . Our standard of review over
such questions is de novo and our scope of review is
plenary.
Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014),
appeal denied, 121 A.3d 494 (Pa. 2015) (citations and quotation marks
omitted).
Appellant relies on the following language from Batts II:
We recognize the difference in treatment accorded to
those subject to non-final judgments of sentence for
murder as of Miller’s issuance and those convicted
on or after the date of the High Court’s decision. As
to the former, it is our determination here that they
are subject to a mandatory maximum sentence of
life imprisonment as required by Section 1102(a),[1]
accompanied by a minimum sentence determined by
the common pleas court upon resentencing.
Batts II, 66 A.3d at 297.
Recently, in Commonwealth v. Batts (“Batts III”), 125 A.3d 33
(Pa.Super. 2015), appeal granted in part, 135 A.3d 176 (Pa. 2016), this
court addressed the identical claim and rejected the appellant’s
interpretation of Batts II as requiring a minimum sentence:
In arguing that the trial court is required to impose a
minimum sentence (i.e., a sentence of life with
parole), Appellant reads one sentence of our
Supreme Court’s opinion in Batts II in isolation and
contends that it required the trial court to impose a
minimum sentence (i.e., a sentence of life with
1
18 Pa.C.S.A. § 1102(a).
-6-
J. S57009/16
parole). We decline to read Batts II as categorically
prohibiting a sentence of life without parole for
juveniles sentenced before Miller, which would
afford those juveniles a greater protection than the
United States Supreme Court held was
constitutionally necessary in Miller, a result that our
Supreme Court specifically condemned. Id. It
would also subject the juveniles convicted before
Miller was decided and Section 1102.1 was effective
to a lesser sentence than those convicted after
Miller and subject to Section 1102.1.[2] We decline
to interpret Miller and Batts II as categorically
prohibiting a sentence of life without parole for
juveniles, such as Appellant, convicted of murder
before Miller was issued. See Batts II, supra at
296; see also id. at 300 (Baer, J., concurring)
(stating that the Court’s decision was to “remand[ ]
the case to the trial court for it to resentence
Appellant based upon his individual circumstances to
a sentence of life imprisonment either with the
possibility of parole or without the possibility of
parole . . . [ ]”).
Batts III, 125 A.3d at 46.3
In his second issue on appeal, appellant challenges the discretionary
aspects of his sentence. Appellant alleges that the trial court’s sentence of
2
On October 25, 2012, while Batts II was awaiting
decision, a new statutory sentencing scheme for
juveniles convicted of murder, Section 1102.1, took
effect. See 18 Pa.C.S.A. § 1102.1. Section 1102.1
is our legislature’s response to Miller, but applies
only to juveniles who were convicted of murder on or
after June 25, 2012, the date Miller was issued. Id.
§ 1102.1(a).
Batts III, 125 A.3d at 38.
3
On April 19, 2016, the Pennsylvania Supreme Court granted partial
allowance of appeal in Batts III. However, the court denied the petition for
allowance of appeal with regard to this particular issue.
-7-
J. S57009/16
LWOP was manifestly excessive and unreasonable and that the trial court
failed to properly consider mitigating evidence, including all of the
age-related Miller factors.
Accordingly, we review Appellant’s challenge to
the trial court’s weighing of sentencing factors,
including those age-related ones, as a challenge to
the discretionary aspects of his sentence. See
[Commonwealth v. Seagraves, 103 A.3d 839, 842
(Pa.Super. 2014), appeal denied, 116 A.3d 604
(Pa. 2015)] (reviewing a juvenile appellant’s
challenge to a life without parole sentence reimposed
on remand following Miller and Batts II for an
abuse of discretion); see also Commonwealth v.
Zeigler, 112 A.3d 656, 662 (Pa.Super. 2015)
(noting a discretionary aspects challenge based on a
claim of an excessive sentence along with an
assertion that the trial court did not consider a
mitigating factor may present a substantial
question); Commonwealth v. Zirkle, 107 A.3d
127, 133 (Pa.Super. 2014) (treating a claim
challenging the weight the trial court gave to various
sentencing factors as one going to the discretionary
aspects of the sentence). A challenge to the
discretionary aspects of a sentence is not appealable
as of right; instead, an appellant must petition for
permission to appeal. Commonwealth v. Colon,
102 A.3d 1033, 1042 (Pa.Super. 2014), appeal
denied, Pa. , 109 A.3d 678 (2015). We
evaluate the following factors to determine whether
to grant permission to appeal a discretionary aspect
of sentencing.
Before we reach the merits of this issue,
we must engage in a four part analysis
to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved
his issue [at sentencing or in a motion to
reconsider and modify sentence];
(3) whether Appellant’s brief includes a
concise statement of the reasons relied
upon for allowance of appeal with respect
-8-
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to the discretionary aspects of sentence
[as required by Pennsylvania Rule of
Appellate Procedure 2119(f)]; and
(4) whether the concise statement raises
a substantial question that the sentence
is appropriate under the sentencing
code. The third and fourth of these
requirements arise because Appellant’s
attack on his sentence is not an appeal
as of right. Rather, he must petition this
Court, in his [Rule 2119(f)] concise
statement of reasons, to grant
consideration of his appeal on the
grounds that there is a substantial
question. [I]f the appeal satisfies each
of these four requirements, we will then
proceed to decide the substantive merits
of the case.
Commonwealth v. Edwards, 71 A.3d 323, 329-
330 (Pa.Super. 2013) (citations omitted), appeal
denied, 622 Pa. 765, 81 A.3d 75 (2013).
Batts III, 125 A.3d at 43-44.
Instantly, appellant filed a timely notice of appeal and preserved his
claims in his timely post-sentence motion. Appellant has also included the
requisite Rule 2119(f) statement in his brief, in which he argues that the
trial court gave undue weight to the seriousness of the offense and ignored
mitigating Miller factors that were established at re-sentencing.
(Appellant’s brief at 29-30.) These included appellant’s early exposure to
violence as a juvenile and the poor environment in which he was raised.
(Id. at 30.) According to appellant, even Dr. Wright testified that he
demonstrated some potential for rehabilitation. (Id.) Therefore, appellant
contends that the trial court’s sentence of LWOP was a de facto death
-9-
J. S57009/16
sentence and was unnecessary and excessive. (Id.) We determine that
these allegations raise a substantial question for our review, and we will
address appellant’s sentencing claim on the merits. Zeigler, supra;
Commonwealth v. Lewis, 45 A.3d 405, 411 (Pa.Super. 2012) (en banc)
(an allegation that the sentencing court focused exclusively on the
seriousness of the crime raises a substantial question); Commonwealth v.
Macias, 968 A.2d 773, 776 (Pa.Super. 2009) (“an averment that the court
sentenced based solely on the seriousness of the offense and failed to
consider all relevant factors raises a substantial question.” (citations
omitted)).
Sentencing is a matter vested in the
sound discretion of the sentencing judge,
and a sentence will not be disturbed on
appeal absent a manifest abuse of
discretion. In this context, an abuse of
discretion is not shown merely by an
error in judgment. Rather, the appellant
must establish, by reference to the
record, that the sentencing court ignored
or misapplied the law, exercised its
judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.
Commonwealth v. Rodda, 723 A.2d 212, 214
(Pa.Super. 1999) (en banc) (quotations marks and
citations omitted). See also Commonwealth v.
Walls, 592 Pa. 557, 926 A.2d 957, 961 (2007)
(citation omitted) (“An abuse of discretion may not
be found merely because an appellate court might
have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality,
prejudice bias or ill-will, or such a lack of support as
to be clearly erroneous.”).
- 10 -
J. S57009/16
The rationale behind such broad
discretion and the concomitantly
deferential standard of appellate review is
that the sentencing court is “in the best
position to determine the proper penalty
for a particular offense based upon an
evaluation of the individual circumstances
before it.” Commonwealth v. Ward,
524 Pa. 48, 568 A.2d 1242, 1243 (1990);
see also Commonwealth v. Jones, 418
Pa.Super. 93, 613 A.2d 587, 591 (1992)
(en banc) (offering that the sentencing
court is in a superior position to “view the
defendant’s character, displays of
remorse, defiance or indifference and the
overall effect and nature of the crime.”).
Simply stated, the sentencing court
sentences flesh-and-blood defendants and
the nuances of sentencing decisions are
difficult to gauge from the cold transcript
used upon appellate review.
Id. Nevertheless, the trial court’s discretion is not
unfettered. “When imposing a sentence, the
sentencing court must consider the factors set out in
42 Pa.C.S. § 9721(b), that is, the protection of the
public, gravity of offense in relation to impact on
victim and community, and rehabilitative needs of
the defendant . . . . [A]nd, of course, the court must
consider the sentencing guidelines.”
[Commonwealth v.] Fullin, 892 A.2d [843,]
847-48 [Pa.Super. 2006].
Commonwealth v. Coulverson, 34 A.3d 135, 143-144 (Pa.Super. 2011).4
4
We note that one of the issues the Pennsylvania Supreme Court agreed to
consider on appeal from Batts III is whether a heightened standard of
review should apply to juvenile LWOP sentences, rather than the customary
abuse of discretion standard. Until our supreme court holds otherwise, we
will continue to employ a deferential standard of appellate review. See
Batts III, 125 A.3d at 43 (rejecting the appellant’s argument that a
heightened burden of proof, and correspondingly more stringent standard of
- 11 -
J. S57009/16
In addition, before imposing an LWOP sentence upon a juvenile
offender, such as appellant, the trial court must consider certain age-related
factors, including his age at the time of the offense, the circumstances of the
crime, his past exposure to violence, his family environment, and his
rehabilitative potential:
In Batts II, our Supreme Court explained that
Miller’s holding is narrow, i.e., mandatory sentences
of life imprisonment without the possibility of parole
are not constitutional when imposed on juveniles
convicted of murder. It accordingly rejected
Appellant’s argument that Miller rendered
Section 1102 unconstitutional in its entirety as
applied to juveniles, reasoning as follows.
Section 1102, which mandates the
imposition of a life sentence upon
conviction for first-degree murder, see
18 Pa.C.S. § 1102(a), does not itself
contradict Miller; it is only when that
mandate becomes a sentence of life-
without-parole as applied to a juvenile
offender--which occurs as a result of the
interaction between Section 1102, the
Parole Code, see 61 Pa.C.S.
§ 6137(a)(1), and the Juvenile Act, see
42 Pa.C.S. § 6302--that Miller’s
proscription squarely is triggered. Miller
neither barred imposition of a life-
without-parole sentence on a juvenile
categorically nor indicated that a life
sentence with the possibility of parole
could never be mandatorily imposed on a
juvenile. Rather, Miller requires only
appellate review, should apply in juvenile LWOP cases, similar to death
penalty cases). Moreover, we reject the Commonwealth’s suggestion that
we should postpone a decision in this case pending our supreme court’s
resolution of the appeal in Batts III.
- 12 -
J. S57009/16
that there be judicial consideration of the
appropriate age-related factors set forth
in that decision prior to the imposition of
a sentence of life imprisonment without
the possibility of parole on a juvenile.
Batts II, supra at 295-296 (some citations
omitted). The Court also noted that it would not
expand the holding of Miller absent a common law
history or a legislative directive. Id. at 296 (citation
omitted). Accordingly, our Supreme Court remanded
to the trial court with instructions to consider the
following age-related factors in resentencing
Appellant.
[A]t a minimum [the trial court]
should consider a juvenile’s age at
the time of the offense, his
diminished culpability and capacity
for change, the circumstances of
the crime, the extent of his
participation in the crime, his
family, home and neighborhood
environment, his emotional
maturity and development, the
extent that familial and/or peer
pressure may have affected him,
his past exposure to violence, his
drug and alcohol history, his ability
to deal with the police, his capacity
to assist his attorney, his mental
health history, and his potential for
rehabilitation.
[Commonwealth v.] Knox, 50 A.3d [732,]
745 [(Pa.Super. 2012)] (citing Miller, 132
S.Ct. at 2455) [(remanding for resentencing
a juvenile who had previously received a
mandatory life without parole sentence in
violation of Miller, and instructing trial
court to resentence juvenile to either life
with parole or life without parole), appeal
denied, 620 Pa. 721, 69 A.3d 601 (2013)].
We agree with the Commonwealth that the
- 13 -
J. S57009/16
imposition of a minimum sentence taking
such factors into account is the most
appropriate remedy for the federal
constitutional violation that occurred when a
life-without-parole sentence was
mandatorily applied to Appellant.
Batts II, supra at 297 (first brackets in original).
Batts III, 125 A.3d at 38-39.
We now turn to the evidence adduced at appellant’s re-sentencing.
Appellant was just shy of his 18th birthday at the time of the offense,
17 years, 11 months and 3 days old. (Notes of testimony, 1/21/15 at 83.)
Dr. Applegate, testifying for appellant, noted that he had no history of
animal cruelty, fire-setting, or bed-wetting. (Id. at 52.) Appellant had no
history of involvement with Children, Youth and Families. (Id.) His IQ was
94, which is considered average. (Id.)
Dr. Applegate testified that appellant’s mother was 15 years old at the
time of his birth. (Id. at 62.) As such, his mother was still developing when
appellant was born. (Id.) Appellant had to compete with his mother’s
paramours for affection. (Id.) Appellant’s father was absent from
appellant’s life and was also involved with gangs. (Id. at 63.)
When he was 7 or 8 years old, appellant experienced a traumatic
event when his uncle was shot. (Id.) At the time of the shooting, appellant
was riding on his uncle’s back. (Id.) Appellant related that he was
“in shock.” (Id.) When he was a teenager, a father-figure of appellant’s,
Michael Gafore, was shot to death. (Id. at 53.) Dr. Applegate testified that
- 14 -
J. S57009/16
this event had the effect of “catapulting him into a 26-month period of
juvenile conduct problems and adjustment disorders.” (Id. at 52-53.) Dr.
Applegate diagnosed appellant with, inter alia, anxiety disorder NOS (not
otherwise specified) including generalized anxiety, social anxiety,
obsessive/compulsive disorder, phobias, mood disorder NOS, and a history
of conduct disorder (adolescent onset -- moderate). (Id. at 51-52.)
Dr. Applegate acknowledged that appellant’s prison record was not
exemplary; however, she testified that appellant did not have a documented
history of violence prior to the murder of Shavaughn Wallace. (Id. at
58-61.) Dr. Applegate testified that in her opinion, appellant is amenable to
treatment and could become a productive member of society. (Id. at 67.)
Dr. Applegate testified that appellant is beginning to show some signs of
maturation, including insight into his criminal conduct. (Id. at 57-58.)
Dr. Wright testified for the Commonwealth. Dr. Wright noted a history
of behavioral problems going back to elementary school. (Id. at 103.) In
9th grade, appellant was expelled for possession of marijuana. (Id. at
103-104.) Appellant was also charged with drug and gun offenses as a
juvenile. (Id. at 104.) During his interview with Dr. Wright, appellant
acknowledged his participation in the Brighton Place Crips but stated, “We
weren’t really Crips, we were just a bunch of people. We got labeled Crips.”
(Id. at 106.) Appellant did admit that he carried firearms and earned
$6,000-7,000 per week selling drugs. (Id.)
- 15 -
J. S57009/16
Dr. Wright diagnosed appellant with an adjustment disorder with
anxiety. (Id. at 107.) Dr. Wright noted persistent behavioral problems
following incarceration at Allegheny County Jail, as well as at
SCI Pine Grove. (Id. at 108.) Dr. Wright also noted that appellant’s mother
tried to smuggle him drugs into state prison, which was evidence of
continuing behavioral problems. (Id. at 109.) Dr. Wright observed that
after the shooting of Wallace, appellant fled and was able to elude arrest for
some time, which reflects relatively sophisticated criminal conduct. (Id. at
110.)
Dr. Wright testified that appellant has limited insight into the
magnitude of his persistent criminal behavior, and cannot be rehabilitated
until he accepts responsibility for his actions. (Id. at 111.) Dr. Wright
acknowledged that appellant obtained an HVAC certificate while incarcerated
and that he has “some rehabilitative potential.” (Id. at 111-112, 118.)
However, Dr. Wright testified that previous attempts at rehabilitation have
been overwhelmingly unsuccessful. (Id. at 112.)
The victim’s mother, Gaines-Robinson, also testified regarding the
impact appellant’s crime has had on her and her family. Gaines-Robinson
testified that she and her mother have received grief counseling. (Id. at
130.) Since her daughter’s murder, Gaines-Robinson was diagnosed with
hypertension and is on blood pressure medication. (Id.) She no longer
feels safe among crowds. (Id.) Gaines-Robinson testified to the victim’s
- 16 -
J. S57009/16
outstanding character, intellect, and personality. (Id. at 129.) In her
opinion, appellant has shown no remorse for his actions. (Id. at 133.)
After hearing the testimony and arguments of counsel and reviewing
the reports, the trial court determined that a sentence of LWOP was
appropriate:
Okay. Mr. Street, I’ve listened all day to the
pros and cons. The things that you have done right
apparently in life is [sic] that you haven’t killed any
animals when you were less than ten and you’ve
gotten a degree in HVAC. However on the other side
I have to weigh in to the fact that you were almost
18 years of age. Your criminal history is extensive
beginning when you were a very young man. You
were a member of a gang. You admitted to making
about $6,000 a week selling heroin. I can’t imagine
how many people were hurt through those activities
as well as being the enforcer of the gang. You did do
well when you were in placement but however the
minute that you were released you went back to
your criminal activity including misconduct in jail.
But the thing that weighs the heaviest against you is
you did shoot a young woman in the back and killed
her unborn child. Those people are never getting
another chance. I feel that criminal behavior is all
you know and I feel you are an accomplished
criminal.
Id. at 140-141.
Overall, we cannot say that the trial judge here, the Honorable
Donna Jo McDaniel, abused her discretion in re-imposing an LWOP sentence.
Appellant was one month shy of his 18th birthday at the time of the crime.
He had an extensive juvenile record. He admitted to participating in drug
and gang activity. While his childhood is, in many ways, tragic, the
- 17 -
J. S57009/16
circumstances of this crime were particularly heinous. Appellant shot a
pregnant woman in the back, killing her and her unborn child. He then fled
the area and evaded law enforcement. Judge McDaniel considered all the
Miller age-related factors, but ultimately found that an LWOP sentence was
appropriate. (Trial court opinion, 11/13/15 at 7.)
Finally, appellant challenges the denial of his motion for a new trial
based on Withrow’s proffered testimony that appellant was not the gunman.
To obtain relief based on after-discovered evidence,
appellant must demonstrate that the evidence:
(1) could not have been obtained prior to the
conclusion of the trial by the exercise of reasonable
diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely
result in a different verdict if a new trial were
granted.
Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009), quoting
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). “Unless the trial
court has clearly abused its discretion in denying a new trial on the basis of
after-discovered evidence, its order will not be disturbed on appeal.”
Commonwealth v. Cull, 688 A.2d 1191, 1198 (Pa.Super. 1997), appeal
denied, 698 A.2d 64 (Pa. 1997) (citation omitted).
Withrow testified that he was incarcerated at SCI Forest when he
learned that appellant was serving a life sentence for Wallace’s murder.
(Notes of testimony, 1/21/15 at 8-9.) According to Withrow, he was walking
around the area of Alpine Avenue the evening of May 22, 2009, and
- 18 -
J. S57009/16
witnessed the shooting. (Id. at 9-11.) Withrow testified that he was in a
position to see the shooter’s face and it was not appellant. (Id. at 11-13.)
Withrow knows appellant from the neighborhood. (Id. at 13.) Withrow
testified that he came forward to clear his conscience. (Id. at 20.) Withrow
recently converted to Islam and is a “new person.” (Id.)
Judge McDaniel, who also presided over appellant’s non-jury trial, did
not find Withrow to be a credible witness. (Id. at 46-47.) It is well settled
that credibility determinations cannot be disturbed on appeal. See
Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999) (“[T]here is no
justification for an appellate court, relying solely upon a cold record, to
review the fact-finder's first-hand credibility determinations.”).
Furthermore, as Judge McDaniel observes, Terrchell Little (“Little”),
appellant’s first cousin, offered substantially similar testimony. (Trial court
opinion, 11/13/15 at 5.) Little testified that she saw the gunman and it was
not appellant. (Notes of testimony, 2/27-29/12 at 144, 148.) She could not
identify the shooter, but it was not appellant. (Id.) Therefore, Withrow’s
testimony would have been merely corroborative of Little’s testimony.
In addition, as recounted above, Moore identified appellant as the
gunman in a photo array and at trial. Johnson also testified that appellant
admitted to shooting Wallace. Judge McDaniel, sitting as finder-of-fact,
obviously credited this testimony. Therefore, it is highly unlikely that
Withrow’s testimony would change the verdict. The trial court did not abuse
- 19 -
J. S57009/16
its discretion in denying appellant’s motion for a new trial based on
after-discovered evidence.
Judgment of sentence affirmed.
Shogan, J. joins the Memorandum.
Strassburger, J. files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
- 20 -
|
598 A.2d 742 (1991)
STATE of Maine
v.
Lionel J. DUBE.
Supreme Judicial Court of Maine.
Submitted on Briefs October 3, 1991.
Decided October 30, 1991.
*743 Neale T. Adams, Dist. Atty., John D. Pluto, Deputy Dist. Atty., Caribou, for the State.
Marshall A. Stern, Bangor, for defendant.
Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and COLLINS, J.
McKUSICK, Chief Justice.
After a jury trial in the Superior Court (Aroostook County, Pierson, J.), defendant Lionel J. Dube was convicted of one count of Class A gross sexual assault, 17-A M.R.S.A. § 253 (Supp.1990). On appeal defendant contends that the court committed reversible error in admitting out-of-court statements of the victim, opinion testimony on credibility, and allegedly irrelevant evidence. We affirm his conviction.
The victim, a relative of defendant, testified as follows: On February 25, 1990, the victim, her twin sister, and their older sister spent the night at defendant's home in Eagle Lake. Defendant gave beer and wine to the victim, who was then aged fifteen. Over the course of the evening defendant repeatedly asked her if she was a virgin, if she "kept her mouth shut when things happen," and if she would perform oral sex on him. Defendant told her to sleep upstairs, while he sent her sisters to sleep in the basement. The victim went to sleep and awoke to find defendant in her room. He by force had sexual intercourse with her.
On the following morning, the victim told her twin sister of the incident; at trial the twin sister testified that the victim told her that defendant "did it to me.... He raped me." On March 16, 1990, the victim told Nancy Dumont, her school principal, of the incident; at trial Dumont testified that the victim identified defendant as her assailant. On March 19, 1990, State Police Detective James Madore interviewed the victim; at trial Madore was asked, "Did [the victim] ever tell you that somebody other than [defendant] was responsible for what happened," and he responded, "No, she did not."
I.
Out-of-Court Statements of the Victim
Defendant contends that it was error to admit the testimony of the twin sister, the school principal, and the detective *744 repeating the complaints the victim made to them. On review of the record of defendant's trial, we find no reversible error in the admission of that testimony.
"In general, the out-of-court statement of a prosecutrix may be admissible on any of three distinct grounds: (1) to show that in fact a complaint has been made, (2) to prove the truth of the matter asserted if the statement qualifies as an excited utterance, and (3) to rebut a charge of recent fabrication or improper motive." State v. Lafrance, 589 A.2d 43, 45 (Me. 1991). In the case at bar the victim's out-of-court statements were not admissible under the "first complaint rule," which admits only the bare fact that a complaint has been made but not further details. See State v. True, 438 A.2d 460, 464-65 (Me. 1981). Nor were the statements admissible as excited utterances. The earliest complaint was not made by the victim to her twin sister until the morning following the alleged rape and was thus a "product of conscious reflection," id. at 465, not made "under the stress of excitement caused by the event," M.R.Evid. 803(2). Finally, at the time the victim's out-of-court statements were introduced in evidence as part of the State's direct case, they were not admissible as prior consistent statements rebutting a charge of recent fabrication or improper motive because, at that stage of the trial, defendant had not yet raised the inference of recent fabrication. Those statements, however, became admissible later in the trial when the testimony of a defense witness did imply recent fabrication. The matter thus comes down to improper order of proof.
Defendant entered no objection to the admission in evidence of the victim's out-of-court statements to her twin sister, her school principal, and the detective either at the time that evidence came in during the State's direct case or at any other time. Since their testimony came in without objection, defendant's conviction must stand unless the receipt of the testimony as part of the State's direct case rather than in rebuttal constituted "obvious error affecting substantial rights." M.R.Evid. 103(d).
The obvious error test requires the reviewing court to apply its best judgment to the entire record of the case to determine whether unobjected-to evidence that was inadmissible at the time received at trial was in its probable effect on the jury a seriously prejudicial error. See State v. True, 438 A.2d at 467. "The particular circumstances, weighed with careful judgment, will determine whether the obviousness of the error and the seriousness of the injustice done to the defendant thereby are so great the Law Court cannot in good conscience let the conviction stand." Id. at 469.
Applying that test to the entire record of the case at hand, we do not find obvious error. The hearsay evidence defendant now objects to, although not admissible as part of the State's direct case, clearly was admissible later to rebut the testimony of defense witness Nora Perreault. On the stand Perreault described a conversation with the victim some months after the alleged sexual assault in which the victim told her she did not know whether it was defendant or defendant's son, Keith, who had assaulted her. Perreault testified that "[the victim] at one point had said that it was really dark and she was scared and she wasn't sure who it was. Then she said that it was [defendant] and then she said that [defendant] had said it was Keith." In redirect examination Perreault was asked again if the victim had stated to her that she didn't know whether it was defendant or Keith and she answered affirmatively. The clear purpose of Perreault's testimony was to lead the jury to infer that the victim's trial testimony was recently fabricated, and thus after Perreault's testimony the victim's prior consistent statements became admissible "to rebut the charge against [her] of recent fabrication." M.R.Evid. 801(d)(1). In State v. Galloway, 247 A.2d 104, 106 (Me.1968), we reaffirmed the statement in State v. King, 123 Me. 256, 258, 122 A. 578, 579 (1923), that "where the prosecutrix has taken the stand and her testimony has been impeached, the details of her prior statement of what occurred *745 may be received in corroboration of her testimony given on the stand...." In the case at bar, although the prior consistent statements came in before Perreault's testimony raised the inference of recent fabrication and thus came in out of their proper order, the premature admission of those statements is not significant on a review for obvious error of the entire body of evidence that went to the jury. No serious injustice was done to defendant merely because of the error in an order of proof that met no opposition from defendant's experienced trial counsel.
In State v. True, 438 A.2d at 468, we said that "trial counsel's failure to object to... inadmissible evidence, whether as a result of tactical decision or oversight, will itself be a consideration in determining whether the error is obvious and highly prejudicial." In this case, the challenged statements were not blurted out; the three statements came in from three different witnesses in response to questions from the State that clearly forewarned of the answers to follow. Defendant's failure to make any objection to the State's questions or to the answers given in response suggest that defense counsel could well have made a tactical decision not to object to the premature admission of the out-of-court statements. Defendant's trial counsel had listed Perreault on his pretrial witness list provided the State and may well have viewed it tactically better for defendant to avoid having the victim's prior consistent statements come in as the State's rebuttal immediately before jury deliberations.
We are confirmed in our confidence that there is no obvious error in the present case by the heavy weight of incriminating evidence, in addition to the victim's out-of-court statements. In addition to the victim's detailed testimony about the assault and its circumstances, defendant's own statements, made to Detective Madore during the investigation of the incident, were corroborative of the State's case. Detective Madore asked defendant if it were possible that his son, Keith, could have gone into the victim's bedroom, and defendant gave a sigh and said, "You're right, I never thought about that. That's entirely possible." Defendant went on to say, "It's not as serious for a juvenile, is it?" and told Detective Madore he could interview Keith at any time. The victim's testimony that defendant repeatedly asked her and her twin sister if they were virgins and if they kept their mouths shut and her testimony about defendant's request for oral sex was corroborated by the sister. The victim's testimony that defendant had given her alcohol and had told her to sleep upstairs and her two sisters to sleep in the basement was confirmed by defendant himself.
On appeal defendant also argues that even if the prior consistent statements were admissible the presiding justice committed reversible error by failing to instruct the jury that under M.R.Evid. 801(d)(1) those statements were admissible only to rebut the charge of recent fabrication and not to establish the truth of the matter asserted. At trial, however, defendant's trial counsel made no request at any time for any such limiting instruction, and on an "obvious error" review we cannot say that the court's failure to give the limiting instruction on its own initiative constitutes "a seriously prejudicial error tending to promote manifest injustice." The court committed no reversible error in admitting the victim's three prior consistent statements.
II.
Detective Madore's Opinion as to the Victim's Veracity
Defense trial counsel, in his opening remarks, stated to the jury that "there's never been a policeman yet who follows up a complaint that didn't start out believing that it was true." Under direct examination by the prosecutor, Detective Madore testified, "You always go into the case believing the victim unless it's proved otherwise; and I did believe [the victim], yes." Defendant argues that Detective Madore's testimony was an invasion of the jury's province to determine credibility and thus was improperly admitted. Although defendant made a general objection to the State's question to Detective Madore, he *746 did not state the specific ground of objection as required by M.R.Evid. 103(a)(1), and thus we review the admission of Madore's testimony under the obvious error standard. See State v. McKenney, 459 A.2d 1093 (Me.1983). In the circumstances of this case, Detective Madore's testimony did not result in any "manifest injustice." His testimony was his personal assessment of the victim's credibility at the time he was starting his investigation; it was not an assessment of her credibility at trial, a task that is within the exclusive province of the jury. Defense counsel apparently saw no prejudice to defendant in making the jury aware of Detective Madore's assessment of the victim's credibility at the time of the investigation since, when cross-examining the detective, counsel asked him, "Were you satisfied that the information you were getting [from the victim] was at least on its surface reliable and accurate." Furthermore, Madore's testimony merely confirmed defense counsel's theory, as presented to the jury in his opening statement, that a policeman embarking on the investigation of a complaint proceeds on the initial premise that the complaint is true.
III.
Changes in the Victim's Personality and Behavior
Defendant contends finally that the victim's testimony that after the assault she could not sleep, had nightmares, and was rude and mean, together with her school principal's testimony of a change in her social behavior and academic performance at that time, was not relevant and should not have been admitted. It is for the trial court to determine the relevancy of evidence offered at trial; its determination is reviewable only for abuse of discretion. See State v. Gagnon, 383 A.2d 25, 31 (Me.1978). We find no abuse of discretion here. Evidence of changes in the victim's personality and behavior immediately after the time of the reported assault tends to prove that something of a traumatic nature had in fact occurred and thus was clearly relevant to the State's case.
The entry is:
Judgment affirmed.
All concurring.
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