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145 Cal.App.3d 735 (1983)
193 Cal. Rptr. 650
CALIFORNIA TEACHERS' ASSOCIATION et al., Plaintiffs and Respondents,
v.
GOVERNING BOARD OF GUSTINE UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants.
Docket No. 6788.
Court of Appeals of California, Fifth District.
August 5, 1983.
*738 COUNSEL
Atkinson, Andelson, Loya, Ruud & Romo and Paul M. Loya for Defendants and Appellants.
Tuttle & Tuttle, Ernest H. Tuttle III and Kay M. Tuttle for Plaintiffs and Respondents.
OPINION
HAMLIN, J.
The Governing Board of Gustine Unified School District and the Gustine Unified School District (District) have appealed from a judgment granting a peremptory writ of mandate and granting declaratory relief in favor of California Teachers' Association (CTA) and A. Charles Wilson (Wilson). The writ of mandate directs District to pay to Wilson, a *739 certificated teacher, "differential sick-leave salary" and health benefits during five school months of the 1980-1981 school year when he did not work because of a back injury. "Differential sick-leave salary" means the absent teacher is paid the difference between his salary and the pay received by the substitute teacher who replaces him during his absence and is referred to as "differential pay." "Health benefits" refers to the teacher's entitlement under the applicable collective bargaining agreement to District payment of health plan premiums.
FACTS
The facts in this case are not in dispute. Wilson was a certificated, tenured teacher employed by District for many years prior to the 1979-1980 school year. In 1977, Wilson sustained a work-related back injury which required him to undergo back surgery. As a further result of this injury, Wilson was unable to work for approximately 71 school days during the 1979-1980 school year. During that school year, Wilson received 10 days of paid sick leave pursuant to Education Code section 44978.[1] For the remaining days he was absent, Wilson received differential pay pursuant to the provisions of section 44977.
Because of the severity of Wilson's injury, District commenced termination proceedings against him on the basis of disability during the 1979-1980 school year. However, upon Wilson's assurance that he would either be physically able to return to work during the 1980-1981 school year or would take a disability retirement, District dropped the termination proceedings. In the spring of 1980, Wilson signed a contract to teach for District during the 1980-1981 school year. However, at the beginning of the 1980-1981 school year, Wilson was still disabled by his back injury and was unable to return to work. He did not report to work on the first day of the 1980-1981 school year nor did he work at all for District during that school year.
As a result, District notified Wilson by letter dated September 25, 1980, that all moneys and benefits provided by District were thereby discontinued. The letter advised Wilson that the five-month extended sick leave provision had expired and consequently his entitlement to District health benefits had also terminated. District also informed him his contract for 1980-1981 was not valid because of his failure to report to work. Thereafter Wilson paid to District the amount of the premiums required to continue his health insurance.
*740 DISCUSSION
I. Is a certificated teacher who has received differential pay pursuant to section 44977 during one school year entitled to benefits under that section for five school months in a succeeding school year when the teacher is unable to return to work due to the same illness or injury?
Resolution of this important issue obviously requires us to interpret section 44977 and related provisions of the Education Code.
(1) In construing a statute, the fundamental rule is that the appellate court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658 [147 Cal. Rptr. 359, 580 P.2d 1155].) To determine such intent the court first looks to the words themselves for the answer. (Ibid.) (2) The court is required to give effect to statutes according to the usual, ordinary import of the language employed in framing them. (Id., at pp. 658-659.) (3) The various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. (Id., at p. 659.)
The pertinent parts of the statutes which provide benefits for teachers who are absent from their duties on account of illness or accident, Education Code sections 44977 and 44978, read: "When a person employed in a position requiring certification qualifications is absent from his duties on account of illness or accident for a period of five school months or less, whether or not the absence arises out of or in the course of the employment of the employee, the amount deducted from the salary due him for any month in which the absence occurs shall not exceed the sum which is actually paid a substitute employee employed to fill his position during his absence, or, if no substitute employee was employed, the amount which would have been paid to the substitute had he been employed. The school district shall make every reasonable effort to secure the services of a substitute employee.
".... .... .... .... .... .... .
"When a person employed in a position requiring certification qualifications is absent from his duties on account of illness for a period of more than five school months, or when a person is absent from his duties for a cause other than illness, the amount deducted from the salary due him for the month in which the absence occurs shall be determined according to the rules and regulations established by the governing board of the district. Such *741 rules and regulations shall not conflict with rules and regulations of the State Board of Education.
"Nothing in this section shall be construed so as to deprive any district, city, or city and county of the right to make any reasonable rule for the regulation of accident or sick leave or cumulative accident or sick leave without loss of salary for persons acquiring certification qualifications.
".... .... .... .... .... .... ."
(Ed. Code, § 44977.)
"Every certificated employee employed five days a week by a school district shall be entitled to 10 days' leave of absence for illness or injury and such additional days in addition thereto as the governing board may allow for illness or injury, exclusive of all days he is not required to render service to the district, with full pay for a school year of service.... Pay for any day of such absence shall be the same as the pay which would have been received had the employee served during the day. Credit for leave of absence need not be accrued prior to taking such leave by the employee and such leave of absence may be taken at any time during the school year. If such employee does not take the full amount of leave allowed in any school year under this section the amount not taken shall be accumulated from year to year with such additional days as the governing board may allow.
".... .... .... .... .... .... ."
(Ed. Code, § 44978.)
Section 44977 is ambiguous in failing to specify whether the illness or accident contemplated by the Legislature is one illness or accident disabling the teacher for a period of five school months or less or a combination of illnesses and accidents resulting in the specified period of disability. Additionally, the statute is unclear whether the benefits are available once in the teacher's career i.e., the teacher is limited to one extended period of disability during which he can draw differential pay or whether the five-school-month period is automatically renewed every school year or only by some other intervening event, such as the onset of a different illness or accident, between the annual and lifetime extremes.
The same ambiguities existed in the original enactment of School Code section 5.750 (Stats. 1931, ch. 337, § 1, p. 856.) This was the first provision in the law of California for differential pay to certificated teachers who were absent on account of illness.
(4a) Respondents contend a teacher who is absent from his duties because of an illness for a period of five school months or less during one school *742 year and who is unable to return to his duties in the following school year because of the same illness is entitled to a renewal of the five-school-month differential pay benefit. Appellants argue that so long as the illness or injury is the same and the teacher is unable to resume his duties in the second school year, the differential pay benefit is not available. Both point to inequities which result from the adoption of the interpretation urged by the other, but neither is able to cite any case law to support the position asserted.
In Lakeside Federation of Teachers v. Board of Trustees (1977) 68 Cal. App.3d 609 [137 Cal. Rptr. 517], the court applied these same sections of the Education Code without having to resolve the ambiguities which confront us in this case. There the certificated teacher signed an employment contract for the 1974-1975 school year. The school year began on July 1, 1974, and continued until June 30, 1975. The teacher was unable to report to work on July 1, 1974, and she failed to work at all that year because of illness. She resigned January 31, 1975, before the end of the school year. The trial court held that the teacher was entitled to receive salary for July 1, 1974, through January 30, 1975, minus the sum paid to her substitute. However, the Court of Appeal concluded that she was entitled to only five months' differential pay under the provisions of section 44977 (then § 13467). That court was not required to decide whether the teacher would be entitled to a renewal period during the 1975-1976 school year because the teacher resigned before the end of the 1974-1975 school year.
The court in Jefferson Classroom Teachers Assn. v. Jefferson Elementary School Dist. (1982) 137 Cal. App.3d 993 [187 Cal. Rptr. 542], was also faced with the task of determining the meaning of section 44977. Similarly, it did not consider the ambiguities we address in this case. Instead, that court was concerned with an alleged conflict between the provisions of section 44977 and the provisions of a collective bargaining agreement which limited differential pay to teachers' illnesses of an extended, continuing nature. The court concluded that the district "may not condition such benefits [the right to receive differential pay] on the requirement that the illnesses or accidents be continuous in time or effect with illnesses or accidents that formed the basis for regular sick leave benefits provided under section 44978." (Id., at p. 1000.)
Although case law provides little assistance in resolving the ambiguities in section 44977, respondents rely on several opinions of the Attorney General. These include 30 Ops.Cal.Atty.Gen. 307 (1957). The question presented in that opinion was whether a school district could pay a substitute teacher and require the absent teacher to make up the difference. The Attorney General concluded: "A governing board of a school district is not *743 authorized to require payment by a teacher on sick leave of the difference between his salary and the higher salary paid to a substitute teacher." (Id., at p. 308.) In reaching this conclusion, the Attorney General stated, "... we take the premise that the primary aim of the Legislature was to afford protection to teachers who, because of illness or accident, are unable to perform their duties. Thus any construction of the statutes which would unduly injure a teacher's economic status must be avoided." (Ibid.) The Attorney General also noted a considerable amount of indecision in school circles as to the proper interpretation of section 13841 (now § 44977). His opinion was published in 1957; the confusion has not been clarified by the Legislature or by the courts to date.
Respondents rely also on 43 Ops.Cal.Atty.Gen. 282 (1964), which states: "It is the opinion of this office that if an employee returns to duty after an illness or accident his rights under section 13467 are renewed, and if he is again absent from his duties on account of illness or accident a new five month period commences. There is nothing in the context of section 13467 that requires a different conclusion.
"It has been suggested that this conclusion would lead to absurd results. For example, an employee could be absent one day less than five month[s], return for a short time and absent himself for a period of similar length, receiving a salary for both periods. The Legislature has declared its intent that these provisions be liberally construed (§ 2), and we believe that the rights conferred by section 13467, limited as they are in this case to illness or accident[,] were intended to apply to teachers so unfortunate as to be incapacitated for more than one five month period. Certainly a school board could require satisfactory proof of incapacity and thus prevent abuse of the section. And, of course, physical inability to teach is ground for dismissal." (Id., at p. 283.) That opinion also cites an unpublished Attorney General opinion from 1932, without recitation of the specific facts underlying the earlier opinion, in which the Attorney General ruled that each school year must be considered separately. The published opinion indicates the earlier unpublished opinion considered "the situation of a teacher who had been absent for eight months during one school year and three months of the next school year...." (Id., at p. 284.) However, it does not appear whether the employee whose rights under the statute were renewed had returned to service between the two periods of absence.
This same opinion concluded by stating: "The term `school month' as used in section 13467 includes legal holidays. Section 13467 specifically provides that the sum deducted from the absent teacher's salary `shall not exceed the sum which is actually paid' the substitute. The section also expressly authorizes the district, city or city and county to adopt reasonable *744 rules respecting sick leave without loss of salary. Thus the intent seems clear to preserve the salary figure originally contracted for and to limit the maximum loss to the employee to the actual expense caused to the district by such absence. The substitute would not be employed on a legal holiday hence there could be no deduction from the absent teacher's monthly salary for a holiday." (Id., at p. 284.)
Appellants argue that if return to service is not required to renew the entitlement to differential pay, similarly situated certificated employees afflicted with similar disabling conditions will receive grossly disparate treatment. For example, assuming two certificated employees both afflicted with a disabling condition of 12 months' duration, the one who was initially stricken in September would be entitled to differential pay benefits only for the pay period ending in late January or early February of the following year. His five school months of differential pay would then be exhausted, and his disabling condition would cease to exist in August, before the start of the next school year. However, if the second employee were similarly afflicted in January, he would receive five months' differential pay for the school year in which he was stricken plus four months of benefits commencing in September of the following school year. From this example, appellants argue that the Legislature could not have intended that the timing of the injury should control entitlement to differential pay.
Respondents treat appellants' contention that a teacher is entitled to an additional five school months of differential pay "only for a different illness or injury" as a concession that a new or different illness or injury renews entitlement to differential pay. They then urge this court to reject any interpretation of section 44977 which would entitle a teacher to differential pay dependent upon whether the injury or illness is a new or old one. They argue that it should not logically or reasonably make any difference whether the injury or illness is a new or old one; to hold otherwise would be unfair and inconsistent with the legislative intent to provide broad economic protection to certificated employees. Respondents illustrate this inequity by the following hypothetical situation: If a teacher were unfortunate enough to become ill in one school year; receive his five school months of differential pay; recover from his illness during the summer; and, the day before school starts, be involved in an automobile accident and be unable to report to work for the next school year, he would be entitled to an additional five school months of differential pay because he sustained a different illness or injury. However, if the teacher (such as Wilson in this case) suffered an injury at school one year, drawing differential pay for five school months, returned to work and rendered services for five years before suffering a recurrence of the original injury, he would not be entitled to an additional five school months of differential pay because the second absence related to *745 the injury for which he had previously received differential pay under section 44977.
Respondents also reject appellants' contention that annual renewal of the differential pay provisions of section 44977 would impose an intolerable economic burden on school districts, arguing that, if section 44977 is construed to entitle a teacher to five school months of differential pay each school year, such a construction does not mean the entitlement continues ad infinitum. They point to District's right, albeit a carefully safeguarded one, to dismiss a disabled teacher for physical inability to teach pursuant to section 44932. Thus, District's retention of the right to control the fiscal impact of the interpretation of section 44977 by terminating disabled teachers weighs in favor of adoption of that interpretation. However, the drastic nature of the control, i.e., dismissal, could have the opposite effect. Under current budgetary restrictions, a school district might well feel compelled by the prospect of renewal of differential pay rights each school year to commence termination proceedings promptly upon learning a teacher suffered a potentially serious illness or injury. That could work to the disadvantage of teachers generally even if the right to dismiss is not always upheld.
Respondents also emphasize that Wilson entered into a contract of employment for the school year 1980-1981. District then expected to pay a sum certain for that year. If, as respondents contend, Wilson is entitled to differential pay for 1980-1981, District will not pay any more for 1980-1981 than it agreed to pay. Part of the salary will be paid to the substitute teacher and the balance will be paid to Wilson. Such a result is consistent with the apparent legislative purpose of preserving the salary figure specified in the original contract.
Other sections of the Education Code providing for leaves of absence provide little assistance in resolving the ambiguities in section 44977. Section 44978 specifically relates the right to 10 days' paid leave of absence for illness or injury to a school year of service and allows accumulation from year to year. Similarly, section 44981 specifies that no more than six sick leave days in any school year may be used for personal necessities. Section 44964 provides for leave of absence to certificated employees because of accident, illness, or quarantine without regard to the school year. In the same manner, section 44965 provides for leave of absence for pregnancy. Section 44966 provides for study leave not to exceed one year, to be taken in one continuous year or in separate six-month or quarterly periods within a three-year period.
Our review of the apparent purpose of each of the sections mentioned in the preceding paragraph suggests the Legislature has specifically related an *746 authorized leave of absence to a school year only when there was a short-term benefit or a leave of predictable duration made available to the teacher. We find little to guide us in interpreting section 44977 from our review of those related statutory provisions.
(5) In their closing brief, appellants contend for the first time that respondents are equitably estopped from asserting any claim for differential pay during the 1980-1981 school year because Wilson represented to the District that he would be able to return to work in that school year or he would retire; in reliance upon this representation, District abandoned the termination proceedings it had commenced against Wilson in the 1979-1980 school year based on physical inability to teach. (It is clear that respondents urged the availability of such termination proceedings to the trial court as the remedy available to school districts to prevent abuse of yearly renewal of the differential pay provisions of § 44977.) Appellants concede they did not plead facts which give rise to estoppel as an affirmative defense to respondents' petition for a writ of mandamus. The record reveals no reason why appellants should not be subject to the general rule that failure to plead an estoppel on which their defense is premised constitutes a waiver of the estoppel. (Roam v. Koop (1974) 41 Cal. App.3d 1035, 1044 [116 Cal. Rptr. 539]; see also 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 944, p. 2524.) Moreover, appellants offered no evidence to make estoppel an issue in the hearing on Wilson's right to differential pay in 1980-1981. After the trial court made its findings of fact and conclusions of law on the differential pay issue, it held a further hearing on respondent's claim to health benefits under the applicable collective bargaining agreement. Only in that second hearing did District adduce evidence that it had initiated and then abandoned a proceeding to terminate Wilson's employment based on physical inability to teach. That appellants were aware that estoppel was not a defense to Wilson's claim to differential pay in 1980-1981 appears from their failure to mention estoppel in their opening brief. We may not properly consider, for any purpose, the equitable estoppel issue raised for the first time on appeal. (Estate of Westerman (1968) 68 Cal.2d 267, 279 [66 Cal. Rptr. 29, 437 P.2d 517].) Neither can appellants accomplish the same objective by categorizing their defense on appeal as "unclean hands." (See Moriarty v. Carlson (1960) 184 Cal. App.2d 51, 57 [7 Cal. Rptr. 282].)
(4b) Without any judicial precedent or legislative history to guide us, we hold the teacher's entitlement to differential pay on account of illness or accident is a separate entitlement for each school year. We are persuaded to this conclusion by the Attorney General opinions previously reviewed and the failure of the Legislature in their reenactments and amendments of section 44977 to clarify the ambiguities the Attorney General noted in his opinions as early as 1957. If the Legislature differs with the unpublished *747 ruling which the Attorney General affirmed in 43 Ops.Cal.Atty.Gen. 282 (1964) that each school year must be considered separately, and our adoption of that rule in this decision, the Legislature will surely and swiftly amend section 44977 to remove the ambiguities.
II. Were respondents entitled to pursue the issue of Wilson's entitlement to paid health fringe benefits by a petition for writ of mandate?
A. Was Wilson precluded from petitioning for a writ of mandate because of the availability of an adequate remedy at law?
(6a) At the separate hearing in the trial court on Wilson's entitlement to paid health fringe benefits, Mrs. Wilson testified she and her husband had paid District approximately $1,467 in order to continue Wilson's health benefits for the 1980-1981 school year. Based on this testimony, District argues Wilson had an adequate remedy at law in the form of an action for money damages to recover the $1,467 and therefore is precluded from seeking relief by a writ of mandate.
(7) Generally a claim for money damages, including salary, is remediable at law. Therefore, the courts usually refuse to issue a writ of mandamus to compel performance of purely contractual obligations. (McDonald v. Stockton Met. Transit Dist. (1973) 36 Cal. App.3d 436 [111 Cal. Rptr. 637].) Nonetheless, an exception to this rule has developed where the obligation to pay such money rests upon a governing board and depends upon the interpretation of a statute or ordinance. In Tevis v. City & County of San Francisco (1954) 43 Cal.2d 190, 198 [272 P.2d 757], the court stated: "It is a general rule that the extraordinary remedy of mandate is not available when other remedies at law are adequate. [Citation.] In proceedings involving claims for wages by municipal employees or by parties to a contract with a municipality, it is generally held that an ordinary action at law for damages is adequate, and a writ of mandate will be denied. [Citations.] As this court has pointed out, `[i]t is settled that mandamus does not lie when there is no cause of action for reinstatement to a position, but merely a claim for damages for breach of contract.' [Citation.]
"In a few situations involving claims by state or municipal employees for wages the general rule has been relaxed. For the most part, these cases concern disputes as to the proper construction of a statute or ordinance defining or giving rise to the exercise of official duty, and, although recognizing that the ultimate effect of a decision may be to adjudicate a money claim, they emphasize the necessity of official cooperation and the ministerial nature of the official acts involved. [Citations.]" (Ibid.) See also Coan v. State of California (1974) 11 Cal.3d 286, 291 [113 Cal. Rptr. 187, 520 *748 P.2d 1003], in which the court stated: "Although a claim for payment of salary is in effect a money claim, mandamus is a proper remedy where the dispute concerns the proper construction of a statute or ordinance giving rise to the official duty to pay the salary claim."
(6b) While Tevis and Coan speak directly about claims for payment of wages or salary and not about claims for reimbursement, the rationale of those cases applies in this case. The validity of Wilson's claim for reimbursement depends upon his entitlement under the collective bargaining agreement to paid fringe benefits for a part of the 1980-1981 school year. District concedes that only if this court determines that Wilson is entitled to differential pay during the 1980-1981 school year will he be entitled to fringe benefits during the same period. Thus the interrelationship of the two money claims is uncontested. To require respondents to bring a mandamus proceeding with regard to Wilson's entitlement to the differential pay under the rationale of Tevis and to bring a separate proceeding at law to recover the money paid to maintain continued health insurance would not only result in an unnecessary multiplicity of lawsuits but conceivably would lead to inconsistent judicial determinations. When the resolution of both issues apparently encompasses judicial interpretation of various statutory provisions as in this case, all of the issues can best be handled as part of one proceeding before one judge. Given the fact that Wilson's entitlement to continued paid fringe benefits depended upon his continued entitlement to differential pay, we conclude that Wilson did not have an adequate remedy at law for the recovery of the $1,467 he paid out to continue his health insurance.
B. Were respondents precluded from pursuing recovery of Wilson's health benefits by mandamus because of Wilson's failure to pursue the grievance procedure under the provisions of the collective bargaining agreement?
(8a) There is no dispute in this case that Wilson was a member of CTA and therefore subject to the terms of the collective bargaining agreement in effect between CTA and District at the time Wilson faced termination of his health benefits unless he paid the premiums personally. Also there is no dispute that the collective bargaining agreement contains a grievance procedure and a provision covering fringe benefits. District contends that, because its act in terminating Wilson's health benefits clearly constituted an alleged violation, misinterpretation or misapplication of the collective bargaining agreement, Wilson was obligated by the terms of that agreement to grieve that termination as a prerequisite to seeking judicial relief. Respondents, however, contend they had no obligation to file a grievance because (1) District was taking the position that Wilson was no longer an employee of District and this meant he was no longer subject to the terms of the *749 collective bargaining agreement, or (2) the grievance procedure would have been futile, as District had already made up its mind to terminate Wilson's benefits. Although we find no merit in either of respondents' theories excusing Wilson from pursuance of the grievance procedure, we conclude that Wilson was excused from this requirement because his status was in dispute.
(9) Generally, "It is well established that a party to a collective bargaining contract which provides grievance and arbitration machinery for the settlement of disputes within the scope of such contract must exhaust the internal remedies before resorting to the courts in the absence of facts excusing such exhaustion." (Johnson v. Hydraulic Research & Mfg. Co. (1977) 70 Cal. App.3d 675, 679 [139 Cal. Rptr. 136].) (8b) However, in Middaugh v. Board of Trustees (1975) 45 Cal. App.3d 776 [119 Cal. Rptr. 826] the court concluded that "[m]andate directed to the governing board of a school district is an appropriate vehicle to compel the district to recognize a teacher's status as a permanent employee and may be pursued without first exhausting any administrative remedy." (Id., at p. 781, italics added.)
In the instant case, it is not clear what Wilson's status was after the commencement of the 1980-1981 school year when he failed to appear on the first day of school and District contended his contract was invalid. Therefore, the administrative remedy that is, the grievance procedure was inadequate with respect to Wilson when his status, upon which his benefits rested, was undetermined and subject to judicial construction of a statute. We therefore conclude that under the particular facts of this case Wilson was excused from exhausting his administrative remedies to obtain reinstatement of his health benefits prior to seeking such relief as part of the mandamus proceeding herein appealed.
III. Did sufficient evidence support the trial court's determination that Wilson was entitled to paid health benefits?
(10) District contends the only evidence presented on the issue of Wilson's entitlement to health benefits was the testimony of the district superintendent that it was the policy of District not to pay fringe benefits for employees on "unpaid leave" status. However, the district superintendent also testified Wilson was paid his fringe benefits during the time he was drawing differential pay in the 1979-1980 school year. The trial court received this testimony for the purpose of aiding in the interpretation of the ambiguous provisions in the collective bargaining agreement governing fringe benefits. That agreement simply states that District will provide composite plans for medical and prescription, vision and dental services to the employee and all dependents. With one exception, the collective bargaining *750 agreement includes no provision pertaining in any way to the payment of fringe benefits for teachers on leave of absence. The exception is a provision in the section concerning child rearing leave, which reads: "If a leave required a long-term substitute, the employee shall provide their own fringe payment." The absence of a similar provision in the section authorizing leave for other reasons, including illness or accident, suggests an intention that teachers on leave for reasons other than child rearing shall not lose their fringe benefits.
The testimony that District paid Wilson fringe benefits in the 1979-1980 school year during the period he was receiving differential pay supports the trial court's decision that District is required to reimburse Wilson the amounts he paid to continue in effect the same fringe benefits during the 1980-1981 school year while he was entitled to differential pay.
The judgment of the trial court is affirmed.
Franson, Acting P.J., and Hanson (P.D.), J., concurred.
NOTES
[1] All statutory references are to the Education Code unless otherwise specified.
|
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 09-300V
Filed: January 15, 2015
(Not for Publication)
****************************
KIM CASTALDI and *
RICHARD CASTALDI, *
parents and next of kin to V.C., a minor, *
*
Petitioners, * Stipulation; Final Attorney Fees
* and Costs
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
****************************
Andrew Downing, Esq., Hennelly & Steadman, P.C., Phoenix, AZ, for petitioners.
Darryl Wishard, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.
DECISION on FINAL ATTORNEYS’ FEES and COSTS1
Vowell, Special Master:
On January 15, 2015, the parties filed a Stipulation of Fact Regarding Final
Attorneys’ Fees and Costs [“Stipulation”], wherein they explained that based on
discussion of petitioners’ draft application for final fees and costs, petitioners amended
their final fees and costs request. Respondent does not object to the amended amount
of $18,000.002 that petitioners are seeking. Pursuant to General Order #9, petitioners’
counsel represents that petitioners have incurred no out-of-pocket expenses in the
proceedings on the petition.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post this decision on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify
and move to delete medical or other information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further,
consistent with the rule requirement, a motion for redaction must include a proposed redacted decision.
If, upon review, I agree that the identified material fits within the requirements of that provision, I will
delete such material from public access.
2
This amount covers all attorneys’ fees and costs incurred between May 1, 2013 and Present.
Stipulation at ¶ 4. On September 18, 2013, petitioners were awarded a lump sum of $55,000.00 for
interim attorneys’ fees and costs through April 30, 2013.
1
I find that this petition was brought in good faith and that there existed a
reasonable basis for the claim. Therefore, an award for fees and costs is appropriate,
pursuant to 42 U.S.C. §§ 300aa-15(b) and (e)(1). Further, the proposed amount seems
reasonable and appropriate. Accordingly, I hereby award the total $18,000.003 as
follows:
A lump sum of $1,789.75 in the form of a check payable to Kim
Castaldi, Richard Castaldi, Andrew D. Downing, and Hennelly &
Steadman, PLC;
A lump sum of $16,210.25 in the form of a check payable to
Kim Castaldi, Richard Castaldi, Andrew D. Downing, and Vann Cott &
Talamante, PLLC.
The clerk of the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Denise K. Vowell
Denise K. Vowell
Chief Special Master
3
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including
costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924
F.2d 1029 (Fed. Cir.1991).
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
See Vaccine Rule 11(a).
2
|
44 Mich. App. 467 (1973)
205 N.W.2d 234
COLONY PARK ASSOCIATION
v.
DUGAS.
Docket No. 13430.
Michigan Court of Appeals.
Decided January 18, 1973.
Seely, Boyer, Gilleo & Simon, for plaintiff.
Leonard J. Simasko, for defendants.
Before: FITZGERALD, P.J., and McGREGOR and TARGONSKI,[*] JJ.
PER CURIAM.
Plaintiff brought suit to enjoin defendants from parking their motor homes in *468 their driveways within the Colony Park Subdivision, charging that in doing so, defendants violated a recorded property restriction which provides:
"No tent, camping outfit or other temporary structure shall be erected, maintained or suffered to remain on said lots except such temporary structures as may be necessary for use in connection with the construction of such buildings and other structures as are permitted by this contract for such time and under such conditions as may be permitted in writing by said first parties."
After hearing arguments on the matter, the trial court ruled to deny plaintiff's request for injunctive relief. Examining the full text of the restriction, we note that it fails to specify motor homes for exclusion. The restriction was adopted in 1927. There is nothing to indicate that contemporary motor homes were within the contemplation of the drafters and it is significant to note that the restriction fails to prohibit automobile drawn trailer homes. Under the principles that restrictive covenants on the use of land are not favored and are to be strictly construed against parties seeking their enforcement, Eveleth v Best, 322 Mich 637, 642 (1948); Moore v Kimball, 291 Mich 455, 461 (1939), and where restrictions are ambiguous, uncertainties are resolved in favor of the free use of property, Bastendorf v Arndt, 290 Mich 423, 426 (1939), we rule to affirm the trial court.
Affirmed.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
|
45 F.3d 435NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Arnold DEL RIO, Petitioner,v.NATIONAL TRANSPORTATION SAFETY BOARD; Administrator,Federal Aviation Administration, Respondents.
No. 92-70642.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 8, 1994.*Decided Dec. 21, 1994.
Before: FLETCHER, THOMPSON and RYMER, Circuit Judges.
1
MEMORANDUM**
OVERVIEW
2
Arnold Del Rio petitions for review of the National Transportation Safety Board's (Board) decision affirming the suspension of his commercial pilot certificate, as ordered by an administrative law judge (ALJ) for the Federal Aviation Administration (FAA). The ALJ found that Del Rio violated sections 91.79(a) and 91.9 of the Federal Aviation Regulations (FAR). See 14 C.F.R. Part 91 (1988).1
3
Del Rio argues that the ALJ's findings of fact, which the Board adopted as its own, are not supported by substantial evidence.
4
The Board had jurisdiction to hear Del Rio's appeal of the FAA's order suspending his certificate. 49 U.S.C. app. Sec. 1429(a). Del Rio's petition for review by this court was not filed within the requisite sixty days after the Board served its final order. Del Rio, however, has asserted grounds for his three-day late filing, grounds which we will assume are sufficient to excuse the late filing.
5
We have jurisdiction to hear this petition for review. 49 U.S.C. app. Sec. 1486(a).
FACTS
6
On August 16, 1988, Del Rio, as the pilot-in-command, flew a Hughes Model 369 helicopter over Carmel-by-the-Sea (Carmel). Eyewitnesses observed the helicopter circle around a church several times and hover more than once at altitudes of about 150 to 250 feet above ground level (AGL).
7
The ALJ found that the helicopter made at least two hovers at altitudes ranging from 150 to 250 feet AGL. As a result, the helicopter was placed within the height-velocity curve.2 The ALJ found this was a violation of section 91.79(a) of the FAR. The ALJ also found that Del Rio "did not exercise the degree of a safety-conscious judgement [sic] required of him in his altitude/speed selections," and that this violated section 91.9. The Board affirmed the ALJ's decision. This petition for review followed.
STANDARD OF REVIEW
8
Although we review de novo the Board's conclusions of law, we accept as conclusive the Board's factual findings if they are supported by substantial evidence. Olsen v. NTSB, 14 F.3d 471, 474 (9th Cir.1994).
9
"A review for 'substantial evidence' is one undertaken with some deference." Howard v. FAA, 17 F.3d 1213, 1216 (9th Cir.1994). Under this standard, we will not disturb a finding of fact if it is supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (citations omitted). A conclusion may be supported by substantial evidence even though an inconsistent conclusion may also be drawn from the evidence. Olsen, 14 F.3d at 475 (citing Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026 (1966)).
DISCUSSION
10
Section 91.79(a) of the FAR prohibits operation of an aircraft at altitudes where, if the aircraft's power unit failed, an emergency landing could not be made without undue hazard to persons or property on the ground. To prove a violation of section 91.79(a), the Administrator need only show that an emergency landing from the altitude at which Del Rio flew the helicopter would have posed an unreasonable risk of harm, not that it would have been impossible. Administrator v. Michelson, 3 N.T.S.B. 3111, 3113-14 (1980), aff'd, Michelson v. NTSB, 679 F.2d 900 (9th Cir.1982).
11
Section 91.9 prohibits the careless or reckless operation of an aircraft, which endangers the life or property of another.
12
The fact that a helicopter was operated in the height-velocity curve over a congested area is sufficient to show a violation of sections 91.79(a) and 91.9. Administrator v. Oeming, NTSB Order No. EA-3542 at 8-9 (1992); e.g., Administrator v. LoFranco, NTSB Order No. 2748 at 3-4 (1988) (affirming a violation of sections 91.79(a) and 91.9 where the helicopter created an undue hazard by operating within the height-velocity curve).
13
The ALJ's findings that the helicopter hovered twice at altitudes between 150 and 250 feet AGL, and was therefore operated within the height-velocity curve, is supported by substantial evidence. FAA Safety Inspector Dennis Day testified that if the helicopter hovered3 at an altitude below 425 feet AGL, then it was operated within the height-velocity curve.
14
Two witnesses testified they saw the helicopter hovering--holding steady over a fixed point on the ground--at 150 to 250 feet AGL. Fireman Chuck August observed the helicopter hover twice at altitudes around 200 to 250 feet AGL. August also testified the helicopter was hovering so close to treetop level that its "rotor wash" caused the treetops to sway back and forth.
15
Carmel Police Officer Thomas Ely testified he saw the helicopter hover twice around 200 and 150 feet AGL. Ely also testified he saw the helicopter move backward. The helicopter was low enough so that both Ely and August could easily read its registration number.
16
The fact that Del Rio's helicopter was operating at below its maximum gross weight had no significant effect on the application of the height-velocity curve. Inspector Day testified that if the helicopter hovered between 150 and 250 feet AGL, then the operation of the aircraft below its maximum gross weight would have only an "infinitesimal effect" on the height-velocity curve. Del Rio's safety pilot testified that a helicopter operating below its maximum gross weight and hovering at 250 feet AGL or below would not be able to successfully autorotate.
17
With the eyewitness testimony of the helicopter's hovering and Inspector Day's testimony of the application of the height-velocity curve, there was substantial evidence for the ALJ to find that Del Rio operated the helicopter within the height-velocity curve, and that this violated section 91.79(a).
18
There was also substantial evidence that Del Rio violated section 91.9. Inspector Day testified that an engine or rotortail failure on Del Rio's aircraft would have posed a hazard to persons or property on the ground. The terrain over which Del Rio's aircraft hovered was hilly terrain, there were numerous obstacles, and it was densely populated with people. According to Officer Ely's testimony, there was vehicular traffic immediately under the aircraft and pedestrians in the area over which it was hovering.
19
There was substantial evidence that Del Rio could not have safely landed the helicopter from the height he was operating it if the engine or rotortail failed. There was no emergency landing area readily available.
20
We conclude there is sufficient evidence to support the findings. The ALJ and the Board did not err in finding that Del Rio violated sections 91.79(a) and 91.9.
21
Petition for review DENIED.
*
The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
1
On August 1990, Part 91 of the FAR was reorganized. See 54 Fed.Reg. 34,284 (1990). Citations to the Part 91 regulations are to the earlier version of the FAR. These earlier regulations--91.79(a) and 91.9--have been recodified and may now be found at sections 91.119(a) and 91.13(a)
2
The height-velocity curve charts certain combinations of altitude and airspeed within which flight is not recommended
3
To interpret the height-velocity curve, the curve's use of the word "hover" is given its plain meaning. Cf. Almero v. I.N.S., 18 F.3d 757, 761 (9th Cir.1994) (plain meaning of an unambiguous word in statute is controlling, unless at odds with the drafter's intent). "To hover" is defined as "to maintain altitude without forward motion." Webster's New International Dictionary 1097 (3d ed. 1986). This definition is consistent with the description of the FAA's witnesses who testified Del Rio's aircraft was holding steady over a fixed point--it was not moving forward
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JAMES J. KAUFMAN, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-cv-0695 (TSC)
)
JEH JOHNSON et al., )
)
Defendants. )
)
)
MEMORANDUM OPINION
Plaintiff James J. Kaufman is a Wisconsin resident who seeks to renounce his
United States citizenship under 8 U.S.C. § 1481(a)(6). (Compl. ¶ 1). He commenced
this action under the mandamus statute and the Administrative Procedure Act
(“APA”), 5 U.S.C. § 702. The mandamus claim has been dismissed (ECF No. 14).
The remaining APA claim challenges the final agency decision issued on March 21,
2014, by the United States Citizenship and Immigration Services (“USCIS”). Before
the Court is Plaintiff’s Motion for Summary Judgment (ECF No. 18) and Defendants’
Cross-Motion for Summary Judgment (ECF No. 20). Upon consideration of the
parties’ submissions and the administrative record, and for the reasons explained
below, the Court will grant Defendants’ motion, deny Plaintiff’s motion, and enter
judgment accordingly.
1
I. LEGAL STANDARD
On a motion for summary judgment in a suit seeking APA review, the standard
under Fed. R. Civ. P. 56(a) does not apply. Coe v. McHugh, 968 F. Supp. 2d 237, 239
(D.D.C. 2013). Instead the court must decide as a matter of law “whether the agency
action is supported by the administrative record and otherwise consistent with the
APA standard of review.” Id. at 240 (citing Richards v. INS, 554 F.2d 1173, 1177 &
n. 28 (D.C. Cir. 1977)).
Pursuant to the APA, the Court must set aside any agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2). The Court’s review is “highly deferential” and begins with
a presumption that the agency's actions are valid. Envtl. Def. Fund, Inc. v. Costle,
657 F.2d 275, 283 (D.C. Cir. 1981). The Court is “not empowered to substitute its
judgment for that of the agency,” Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971), but instead must consider only “whether the agency acted
within the scope of its legal authority, whether the agency has explained its decision,
whether the facts on which the agency purports to have relied have some basis in the
record, and whether the agency considered the relevant factors.” Fulbright v.
McHugh, 67 F. Supp. 3d 81, 89 (D.D.C. 2014) (citing Fund for Animals v. Babbitt,
903 F. Supp. 96, 105 (D.D.C. 1995)). The plaintiff bears the burden of establishing
the invalidity of the agency's action. Id.
2
II. ANALYSIS
The Joint Appendix (“JA”) (ECF No. 19-1) establishes that Plaintiff was
serving a sentence for first-degree sexual assault of a minor when he mailed letters in
2004 and 2008 to USCIS seeking to renounce his United States citizenship. On
October 1, 2010, Plaintiff responded to USCIS’ request for information, and USCIS
held Plaintiff’s renunciation request in abeyance pending his release from prison so
that he could attend an in-person interview. Plaintiff was released from prison in May
2013 to mandatory community supervision in Wisconsin, where he was to remain until
January 2016. As a supervisee, Plaintiff agreed to a list of 28 conditions, which
included working full-time or searching for full-time employment by applying for at
least 15 jobs weekly, maintaining a Wisconsin address, and obtaining permission from
his supervising officer prior to leaving the State of Wisconsin (JA 192-93).
On October 10, 2013, Plaintiff appeared at USCIS’ St. Paul Field Office for an
interview with two senior immigration officers. Plaintiff confirmed his understanding
“of the consequences and ramifications of renunciation,” including that a loss of
citizenship “without acquiring the nationality of another country” would render him
“stateless” and “an alien with regard to the United States.” (JA 3, USCIS Mar. 21,
2014 Dec.) With that status, Plaintiff understood that he “could no longer obtain or
use a U.S. passport” and that he “would lose the right to reside . . . or work in the
United States.” In addition, he “would forfeit the other rights and privileges” he
currently enjoyed as a U.S. citizen. (Id.)
3
Plaintiff’s discussion at the interview about his “post-renunciation preparation
and plans” is recounted as follows:
You stated that if you are permitted to renounce your U.S. citizenship,
you intend to depart from the United States. When asked how you would be
able to leave the United States despite the ongoing conditions of your
community supervision, you replied that if the Federal Government ordered
you to leave, the State of Wisconsin would “go along and process me out and
say to me, ‘Be on your way.’ ” You stated the Wisconsin Department of
Corrections would have to “process some things which they won’t begin to do
until they see an order from the Federal Government saying I have to leave.”
You provided no documents or information indicating that you have
independently requested or obtained permission to depart from the United
States in the event your request for renunciation is approved, or that such a
request to travel could or would be approved by the State of Wisconsin if made
in the future.
You identified steps you have taken to prepare for your departure. They
consist of conducting research on other countries’ residency and citizenship
requirements and employment and housing opportunities. You expect to have
saved approximately $3,000 from your present employment. You asserted a
belief that this sum will be minimally sufficient to buy a plane ticket and
support yourself frugally in a foreign country until you are able to obtain
foreign employment. You said you have sent written inquiries about
immigrating to several countries, including Ireland, Germany, France, Italy,
Poland, the Netherlands, Spain and Austria, but that none of the countries you
contacted has offered you a means or opportunity to establish lawful residence,
obtain lawful employment, or gain citizenship.
When asked how you intend to depart from the United States and travel
internationally without a U.S. passport if your renunciation request is
approved, you stated, “If my renunciation is approved, I would become a
stateless person, and I hope - greatly hope -that the United States is, on a case
by case basis, willing to issue [me] a stateless person’s travel document. [It's
called] a United Nations Convention on Stateless Persons 28 September 1954
Travel Document.” You reported that you have contacted the Department of
Justice Office of the Attorney General, the Department of State, and the
Department of Homeland Security in an attempt to find out how to apply for
such travel document and that you have not been provided with such
information.
If the United States does not issue you a document comparable to the
“Stateless Person's Travel Document” you referenced, you acknowledged you
would need to leave the United States without any documentation. You
expressed a belief that as a stateless person, a country that is a signatory to the
1954 Convention relating to the Status of Stateless Persons will be obligated to
4
allow you to enter, provide you with a travel document, work permit, personal
identification card, and residence permit. You asserted a belief that you would
be treated as any other lawfully resident alien in such foreign country.
(JA 3-4.)
The USCIS found that Plaintiff’s request to renounce his U.S. citizenship was
voluntary, but that Plaintiff had “not demonstrated” that he “possess[ed] the intention
necessary to renounce” because he had “no credible plan to sever . . . ties to the United
States following . . . renunciation.” (Id. at 7.) Plaintiff’s asserted plans were found to
be “based on . . . hopes and beliefs, which have no credible basis in fact.” (Id.) The
USCIS focused first on Plaintiff’s inability to leave the country legally because of his
obligations to the state of Wisconsin to complete community supervision pursuant to
the agreed-upon terms. It determined that even without that barrier, Plaintiff essentially
had no cogent plan to leave the country. The USCIS found Plaintiff’s “reliance on the
availability of a stateless travel document” to be “misplaced,” and his claims about the
role of the federal government “wholly speculative” and unsupportive of his ability “to
pursue [his] stated plans.” (Id.) USCIS concluded that Plaintiff had “presented no
documents or evidence supporting any credible plan or ability” to sever ties with the
United States and to “leave immediately” following his renunciation. (Id. at 8)
(emphasis supplied.))
As the administrative record shows, Plaintiff’s agreement with the State of
Wisconsin--particularly to: (1) reside in the State until the expiration of his supervision
term, (2) report regularly to his supervising officer, (3) maintain full-time employment
(or a schedule seeking such employment), and (4) obtain permission before traveling
5
outside of the State—clashed completely with his purported intent to sever all ties to
the United States and to leave the country immediately. In addition, the administrative
record contains ample support for the conclusion that Plaintiff’s speculative exit plan
was neither plausible nor credible.
III. CONCLUSION
For the foregoing reasons, the Court concludes that the USCIS’ March 21, 2014
Decision was reasonable, amply supported, and in compliance with the governing
statute. Accordingly, Defendant’s motion for summary judgment is granted and
Plaintiff’s motion for summary judgment is denied. 1 A corresponding order will issue
separately.
Date: March 21, 2016
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
1
The parties agree that Plaintiff’s supervision term expired in January 2016. The outcome of
this action has no bearing whatsoever on Plaintiff’s ability to submit a new renunciation request
to the agency.
6
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543 U.S. 1150
EVANSv.MARYLAND.
No. 04-818.
Supreme Court of United States.
February 22, 2005.
1
Ct. App. Md. Certiorari denied. Reported below: 382 Md. 248, 855 A. 2d 291.
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SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
566
CAF 15-00264
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.
IN THE MATTER OF LINDSAY A. ESPOSITO,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
MATTHEW E. MAGILL, RESPONDENT-RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT.
THE WARD FIRM, PLLC, LIVERPOOL (MATTHEW E. WARD OF COUNSEL), FOR
RESPONDENT-RESPONDENT.
FARES A. RUMI, ATTORNEY FOR THE CHILD, ROCHESTER.
Appeal from an order of the Family Court, Genesee County (Eric R.
Adams, J.), entered January 12, 2015 in proceedings pursuant to Family
Court Act article 6. The order dismissed the petition dated September
8, 2014.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion and dismissing
the petition dated August 15, 2014, and as modified the order is
affirmed without costs.
Memorandum: On August 15, 2014, petitioner mother commenced this
proceeding pursuant to Family Court Act article 6 seeking to modify
the custody and visitation provisions of a stipulated order
(hereafter, first petition). On September 8, 2014, the mother brought
a second modification petition alleging, inter alia, that her driving
had been restricted by her doctor and requesting that respondent
father be ordered to meet her at a location closer to her residence to
exchange the child for visitation (hereafter, second petition).
Thereafter, the father filed a motion to dismiss the first petition on
the ground that the mother had failed to allege a substantial change
in circumstances. In a memorandum decision, Family Court granted that
relief and also dismissed the second petition. The court’s order,
however, referenced only the dismissal of the second petition. The
mother appeals.
As a preliminary matter, we note that where, as here, there is a
conflict between the decision and order, the decision controls (see
Matter of Edward V., 204 AD2d 1060, 1061), and the order “must be
modified to conform to the decision” (Waul v State of New York, 27
AD3d 1114, 1115; see CPLR 5019 [a]). We therefore modify the order by
-2- 566
CAF 15-00264
granting the motion seeking to dismiss the first petition. We further
note that the mother does not address the second petition on appeal,
and that she has thus abandoned any contentions related thereto (see
Ciesinski v Town of Aurora, 202 AD2d 984, 984).
Contrary to the mother’s contention, the court properly granted
the father’s motion to dismiss the first petition without a hearing.
“ ‘A hearing is not automatically required whenever a parent seeks
modification of a custody [or visitation] order’ ” (Matter of Consilio
v Terrigino, 114 AD3d 1248, 1248). Here, the mother “ ‘failed to make
a sufficient evidentiary showing of a change in circumstances to
require a hearing’ ” (Matter of Fowler v VanGee, 136 AD3d 1320, 1320;
see Matter of Warrior v Beatman, 70 AD3d 1358, 1359, lv denied 14 NY3d
711).
Entered: June 17, 2016 Frances E. Cafarell
Clerk of the Court
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355 P.2d 925 (1960)
67 N.M. 383
STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New Mexico, Plaintiff-Appellant,
v.
CITY OF ALBUQUERQUE, a municipal corporation, Defendant-Appellee.
No. 6626.
Supreme Court of New Mexico.
October 6, 1960.
*926 Donald B. Moses, Albuquerque, Charles S. Solomon, Santa Fe, for appellant.
Frank Horan, Malcolm W. deVesty, James L. Parmelee, Jr., Stanley P. Zuris, Albuquerque, for appellee.
CHAVEZ, Justice.
Suit was filed by the State of New Mexico, ex rel. State Highway Commission, appellant herein, against appellee, the City of Albuquerque, praying for a declaratory judgment. Appellant asserts the right to the occupation and use of the lands hereinafter described, for a controlled access highway, without the payment of compensation to appellee. The land involved is Block 13 of the Terrace Addition to the city of Albuquerque, commonly known as Highland Park, and the westerly 60.83 feet of the land involved. Appellant claims that said westerly 60.83 feet of land was originally designated as a public street although used as a portion of said public park. Appellee denied appellant's claimed rights and affirmatively alleged that the lands involved are owned by appellee in its corporate or proprietary capacity and are under the protection of Art. II, § 20, New Mexico Constitution. Appellee further affirmatively alleges that under § 14-37-1, N.M.S.A., 1953 Comp., that it is appellee's duty to keep the public park open and that it will be required to provide additional space for a park if the lands involved are taken from it. After considering the evidence and arguments of counsel, the trial court dismissed appellant's complaint with prejudice and entered judgment for appellee. From said judgment, this appeal is taken.
The stipulated facts show that the lands involved were deeded in fee simple absolute by the Terrace Addition Improvement Company, a corporation, to appellee, on January 28, 1909. Lot 5, Block 13, of said addition was deeded in fee simple by Solomon L. Burton to appellee on January 28, 1909. Said land is and has been used as a public park for many years and the facilities therein include lawns, trees, shrubbery, and a children's wading pool. No admission fees are charged for the use of said park.
Appellant is the proper authority to construct public highways within the state of New Mexico, including the highway involved through the city of Albuquerque, and appellant intends to use said lands for a controlled access highway.
The controversy is whether appellant can occupy and use the lands involved for highway purposes without the payment of compensation to appellee. The trial court concluded that the land involved is owned or operated by appellee in its corporate or proprietary capacity and protected by Art. II, § 20 of the Constitution of New Mexico.
Appellant relies on eight points for reversal. Appellant's contentions under points I, II, III and VIII are without merit as the matters raised are disposed of by the pleadings, the trial court's findings of fact, or are harmless to appellant.
Appellant's other claimed errors will be discussed jointly. Under these claimed errors, appellant contends that the trial court committed error in refusing to grant its requested conclusion of law number seven, that appellant's right to construct, operate and maintain a public highway is paramount and superior to appellee's right to use said land as a public park. Error is also claimed in the trial court's refusal to grant appellant's requested conclusion of law number six, that in creating and maintaining said public park, appellee is exercising a governmental function, and error is further claimed due to the court's refusal to grant appellant's conclusion of law number eight, that appellant may occupy and use the westerly 60.83 feet of the real estate involved *927 for public highway purposes, without the payment of compensation.
This is a case of first impression in New Mexico.
Art. II, § 20 of our Constitution provides:
"Private property shall not be taken or damaged for public use without just compensation."
The State Highway Commission was created by Art. V, § 14 of the Constitution of New Mexico and is empowered and charged with the duty of determining all matters of policy relating to state highways, and it has general charge and supervision of all of the highways and bridges, and has complete charge of all matters pertaining to the expenditure of state funds for the construction and maintenance of public roads and bridges, and said article then provides:
"It shall have all powers which are now or which may hereafter be conferred on it by law."
Sec. 55-10-5, N.M.S.A., 1953 Comp., provides:
"For the purposes of this act [55-10-1 to 55-10-10], the state highway commission, alone, or in agreement with any county, city, town or village may acquire private or public property and property rights for controlled access facilities and service roads, including rights of access, air, view, and light, by purchase or condemnation in the same manner as such units are now or hereafter may be authorized by law to acquire such property or property rights in connection with highways and streets within their respective jurisdictions. * * *"
Appellant cites 29 C.J.S. Eminent Domain § 86, p. 877, as follows:
"Property held by a municipality, whether in a governmental or proprietary capacity, may be taken in the exercise of the power of eminent domain."
Appellant argues that appellee is committed to the position that if the land in question is owned and operated in its governmental capacity, that appellant may acquire the lands without the payment of compensation. Appellee denies that it is so committed. Nichols on Eminent Domain, 3rd Ed., Vol. 1, § 2.225 [1], pp. 177, 178, 179, states the rule as follows:
"Municipal corporations have a twofold character, the one governmental, and the other private. * * * In the one character municipalities are mere agencies of the state, * * * and in this character they execute the functions and possess the attributes of sovereignty which have been delegated to them by the legislature. It is in this capacity that they conduct general elections, construct and maintain public highways and bridges, suppress disorder and crime, and perform similar acts conducive to the safety and prosperity of the public of the entire state. In their other or private character they are mere aggregations of individuals living in the same neighborhood who have banded together in order to supply themselves with the necessities and conveniences of life which co-operation will enable them to obtain more readily and cheaply than by individual effort. In this character they are clothed with the capacities of a private corporation, and may claim its rights and immunities and are subject to its liabilities. It is in this capacity that they construct works for supplying water and light to the dwellings of their inhabitants, and establish markets, cemeteries and libraries for their use. Over the property which a municipal corporation acquires as an agency of the state for the performance of the strictly public duties devolved upon it by law, the legislature may exercise a control to the extent of requiring the municipal corporation, without receiving compensation therefor, to transfer such property to some other agency of the government to be devoted to similar public uses or to other strictly public purposes. The authority to take such property must be granted expressly or by necessary implication, *928 and such condemnation is not inhibited by statutes which declare such municipal property to be inalienable."
The case cited in support of the citation in 29 C.J.S. Eminent Domain § 86, p. 877, is State Highway Commission v. City of Elizabeth, 102 N.J. Eq. 221, 140 A. 335. This case is discussed in State by State Highway Com'r v. Cooper, 1957, 24 N.J. 261, 131 A.2d 756, from which we quote the following:
"If the sweep of the Elizabeth case doctrine were followed it would enable the State to appropriate, for wholly unrelated public purposes and without any just compensation, various municipal properties such as town halls, and schoolhouses as well as lands donated by local residents for municipal parks. This last result, so startling on its face, was explicitly rejected by the Supreme Court of Errors of Connecticut in Town of Winchester v. Cox, supra. There, land had been conveyed to the Town of Winchester `to be forever used as a public park.' [129 Conn. 106, 26 A.2d 592, 594.] It had been used as such until the State Highway Commissioner took it for the construction of a state highway. No claim was made that the land reverted to the heirs of the grantor, but the town claimed that it was entitled to just compensation. The court held that the state was under obligation to pay the town for the value of the land taken. Chief Justice Maltbie referred to the Elizabeth case doctrine but declined to apply it to land given to and accepted by a municipality as a public park, which he said should be treated as a charitable use immune from legislative expropriation unless compensated. See Smith v. Incorporated Village of Patchogue, 129 N.Y.S.2d 422 (Sup.Ct. 1954), affirmed 285 App.Div. 1190, 141 N.Y.S.2d 244 (App.Div. 1955). We find it unnecessary to pursue the scope of the Elizabeth case doctrine for, even assuming the power of our Legislature to reclaim municipal property without compensation, there is nothing whatever in our statutes which evidences any legislative intent to exercise such far-reaching authority. On the contrary, the pertinent statutory provisions contemplate that although the State Highway Commissioner may condemn municipal as well as private land (R.S. 27:7-23, N.J.S.A.), he must proceed under the Eminent Domain Act which has at all times provided for payment of the value of the land taken. N.J.S.A. 20:1-9."
We find nothing in our statute, § 55-10-5, N.M.S.A., 1953 Comp., expressly authorizing the State Highway Commission to acquire either private property, or public property held in a proprietary capacity, other than by purchase or condemnation. Our statutory provision evidences the legislative intent that the State Highway Commission may acquire private as well as municipal land so utilized, yet must proceed either by purchase or under the Eminent Domain Act, 1953 Comp. § 22-9-1 et seq., which provides for payment of the fair and reasonable value of the land taken.
It is not necessary, however, for us to decide this case on the above theory. It is settled in this jurisdiction that the establishment and maintenance of a municipal park is a corporate or proprietary function, as distinguished from a governmental function. Murphy v. City of Carlsbad, 66 N.M. 376, 348 P.2d 492.
With reference to the 60.83 feet of land acquired by appellee, appellant in its brief, admitted that such strip was used as a public park for many years and that the same principles of law would apply as to the remainder of the park. Accordingly, it has been so treated by this court.
Finding no error in the record, the judgment of the district court is affirmed. It is so ordered.
COMPTON, C.J., and CARMODY and MOISE, JJ., concur.
NOBLE, J., not participating.
|
767 F.2d 738
Daniel Morris THOMAS, Petitioner-Appellant,v.Louie L. WAINWRIGHT, Secretary, Florida Dept. ofCorrections, Respondent- Appellee.
No. 84-3408.
United States Court of Appeals,Eleventh Circuit.
July 17, 1985.
Douglas N. Duncan, Foley, Colton & Duncan, West Palm Beach, Fla., for petitioner-appellant.
Theda James Davis, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before RONEY, FAY and JOHNSON, Circuit Judges.
RONEY, Circuit Judge:
1
Daniel Morris Thomas was convicted and sentenced to death for the murder of Charles Anderson. After direct appeal and post-conviction proceedings in the Florida courts, the federal district court denied Thomas' habeas corpus petition. Thomas raises four issues on appeal:
2
(1) whether he was denied effective assistance of conflict free counsel.
3
(2) whether Florida law at the time of his sentencing hearing discouraged his attorney from investigating and introducing evidence of nonstatutory mitigating circumstances, depriving him of either due process or effective assistance of counsel.
4
(3) whether the Brown issue as decided in Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc ), cert. denied, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983), should be reconsidered; and
5
(4) whether the Florida death penalty is being administered in a racially or otherwise discriminatory manner.
6
We affirm.
7
On January 1, 1976, a black male wearing a ski mask and gloves and armed with a rifle broke into the home of Mr. and Mrs. Charles Anderson. The intruder shot and killed Mr. Anderson, committed sexual battery on Mrs. Anderson, and stole several items from the house. On December 21, 1976, Thomas was indicted and charged with first degree murder, sexual battery, robbery, and burglary in connection with the events at the Anderson home.
8
At trial, law enforcement officers and a paid informant testified that shortly after the Anderson murder, they purchased from Thomas and a neighbor, Lee O. Martin, a number of handguns, one of which had been stolen from the Andersons' residence. A search warrant was obtained, and the residences of both men were searched, turning up the murder weapon, ski masks, and several other items stolen from the Andersons' home.
9
The jury found Thomas guilty on all counts and recommended the death penalty. On April 15, 1977, the trial judge sentenced Thomas to death. The Florida Supreme Court affirmed his conviction and sentence. Thomas v. State, 374 So.2d 508 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980). Thomas' motion for post-conviction relief was denied by the state court following an evidentiary hearing on the ineffective assistance of counsel issue, and the Florida Supreme Court affirmed. Thomas v. State, 421 So.2d 160 (Fla.1982).
Ineffective Assistance of Counsel
10
Thomas claims that at his trial and sentencing he was deprived of his Sixth Amendment right to effective assistance of conflict free counsel. An attorney from the Public Defender's Office for the Tenth Judicial Circuit was appointed to represent Thomas, but Thomas completely refused to speak with his attorney concerning the case so that the attorney was forced to investigate the case and defend Thomas without the defendant's assistance.
11
At Thomas' state post-conviction hearing, the court heard testimony from Dan Brawley, the public defender appointed to represent Thomas. Brawley testified that he had visited Thomas on the day of his arraignment. He was accompanied by Larry Whitten, the chief investigator from the Tenth Judicial Circuit Public Defender's Office. Thomas sat in complete silence for about ten minutes as Brawley and Whitten introduced themselves and began asking him questions regarding the case. Thomas then abruptly walked out of the meeting.
12
Brawley continued to review the file, investigate, and prepare the case. About two weeks later, Whitten returned alone to visit Thomas and was again unable to communicate with him. Four or five weeks after the first meeting, Brawley visited Thomas a second time and could elicit no comment whatsoever from his client. After a refusal by the court to appoint other counsel, the defendant continued his refusal to communicate throughout the trial.
13
Thomas alleged that the lack of communication deprived him of his right to effective counsel because other counsel could have communicated with him and discovered information that would have enabled them to present a better defense. The district court considered Thomas' claim to be the "ultimate case of frivolity" due to the fact that it was premised not on defense counsel's acts or omissions but rather on Thomas' absolute refusal to communicate. It noted that Thomas compounded the problem by remaining silent when questioned by the trial judge. The court concluded that "[a] defendant cannot be allowed to refuse to cooperate with his attorney and the trial court and then attempt to create an issue of ineffective counsel on the basis of his own refusal," and proceeded to deny the claim as being without merit.
14
Thomas argues that his personal conflict with Brawley and his "firm conflict" with the Public Defender's office, of which Brawley was a member, required appointment of private counsel. A review of the record reveals no constitutional error in denying the motion to withdraw and refusing to appoint other counsel.
15
Where the accused voices objections to appointed counsel, the trial court should inquire into the reasons for the dissatisfaction. United States v. Young, 482 F.2d 993, 995 (5th Cir.1973); see also McKee v. Harris, 649 F.2d 927, 933 (2d Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982). Where the court's inquiry is thwarted by the defendant's voluntary conduct, however, the inquiry need only be as comprehensive as the circumstances permit. Hudson v. Rushen, 686 F.2d 826, 831 (9th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1896, 77 L.Ed.2d 285 (1983). In Hudson, the court invited the defendant to state his reasons for desiring new counsel and found them to be without merit. The next day, the defendant refused to participate further in the trial and obstreperously departed from the courtroom. The court emphasized that the resulting breakdown in communication between the attorney and his client was caused by the defendant's voluntary conduct rather than by the trial court's failure to make an adequate inquiry into the underlying reasons for the conflict. Id.; see Olsen v. Wainwright, 565 F.2d 906, 907 (5th Cir.1978) (noting petitioner's failure to request another attorney or to proceed pro se in the face of trial court's questioning during hearing on motion to withdraw).
16
Immediately after the second meeting with defendant and six weeks prior to trial, Brawley filed a motion to withdraw as counsel. The motion asserted two grounds: (1) another public defender from Brawley's office had represented Thomas at a prior criminal trial in which Thomas criticized his counsel from the witness stand, and (2) Thomas' absolute refusal to communicate with Brawley regarding his upcoming trial. The state trial judge conducted a hearing on the motion during which Thomas refused to respond to questions from the bench. The trial judge's unsuccessful attempts to discern the cause of Thomas' dissatisfaction consisted of the following:
17
THE COURT: Why don't you ask Mr. Thomas to come up? Mr. Thomas, come up to the bench, please?
18
(The defendant approached the bench).
19
THE COURT: Mr. Thomas, the Public Defender has filed a motion to withdraw as your lawyer on the grounds that you have failed to cooperate with him. And it is also my understanding that you have been dissatisfied with all of the lawyers that have represented you in all of the cases here in the Tenth Circuit. Is there somebody that you wish to represent you or do you have some other plan about hiring a lawyer on your own to represent you? You are entitled to be represented by a lawyer. You are entitled to a court appointed lawyer. Obviously, you can't afford to hire your own, and we have done that. But you have expressed dissatisfaction with everybody that's tried to help you.
20
Now what do you propose about somebody to represent you?
21
You are not going to answer any of my questions, Mr. Thomas?
22
Has Mr. Brawley been over to see you about the case?
23
Do you want to represent yourself?OK. Show the defendant refused to answer any questions or any inquiry about court appointed counsel.
24
The trial court then solicited suggestions from counsel present. The prosecutor, characterizing Thomas' conduct as "complete noncooperation," recommended denial of the motion to withdraw. The trial court, remarking that there did not seem to be any alternative, denied the motion after receiving Brawley's assurances that he would represent Thomas to the best of his ability. Thomas continued to refuse to communicate with Brawley throughout Brawley's representation of him at trial and sentencing. Brawley characterized Thomas' attitude as one of disinterest rather than hostility.
25
Under those facts, the trial court cannot be constitutionally faulted either procedurally or substantively in refusing to appoint other counsel. An indigent criminal defendant has an absolute right to be represented by counsel, but he does not have a right to have a particular lawyer represent him, see Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), nor to demand a different appointed lawyer except for good cause. United States v. Young, 482 F.2d at 995. Good cause for substitution of counsel cannot be determined "solely according to the subjective standard of what the defendant perceives." McKee v. Harris, 649 F.2d at 932. A defendant's general loss of confidence or trust in his counsel, standing alone, is not sufficient. Id. See also Hutchins v. Garrison, 724 F.2d 1425, 1430-31 (4th Cir.1983) (rejecting ineffective assistance of counsel claim where defendant's trial counsel had moved to withdraw due to lack of communication with defendant allegedly stemming from defendant's distrust based on defense counsel's earlier service as assistant district attorney), cert. denied, --- U.S. ----, 104 S.Ct. 750, 79 L.Ed.2d 207 (1984). A defendant, by unreasonable silence or intentional lack of cooperation, cannot thwart the law as to appointment of counsel.
26
Petitioner relies heavily on Brown v. Craven, 424 F.2d 1166 (9th Cir.1970). There the court held that "to compel one charged with grievous crime to undergo a trial with the assistance of an attorney with whom he has become embroiled in irreconcilable conflict is to deprive him of the effective assistance of any counsel whatsoever." Id. at 1170. A public defender had been appointed to represent the defendant on a murder charge. A disagreement between the defendant and his counsel led to an absence of communication. The defendant himself filed four motions requesting that some other attorney be appointed to represent him which the trial court summarily denied, despite the public defender's representation to the court that he could not prepare effectively without defendant's cooperation. The defendant was subsequently convicted. The Ninth Circuit, emphasizing the total lack of cooperation and communication between the defendant and his counsel, held that the trial court's failure to make adequate inquiry into the cause of defendant's dissatisfaction violated his right to effective assistance of counsel. Id. at 1170; see also United States v. Williams, 594 F.2d 1258, 1260 (9th Cir.1979) (following Brown ).
27
Brown presents an entirely different case. The defendant in Brown actively sought to obtain new counsel by filing numerous motions himself and even by voicing his displeasure with his representation in open court. 424 F.2d at 1169. Thomas never broke his silence. Moreover, the trial court in Brown "summarily denied" all motions for change of counsel without making any inquiry into the causes for the defendant's objections, while the trial court in the case before us questioned Thomas in open court regarding his wishes to no avail. Even the Brown court, after making its broad statements regarding defendant's rights to effective assistance of counsel and reversing for a new trial with competent counsel, placed a condition on its remand order that the defendant "not demonstrate obstinance, recalcitrance, or unreasonable contumacy." Id. at 1170. Interestingly, after retrial of the Brown v. Craven petitioner, the California Court of Appeal held that the defendant's lack of confidence in his attorney was indeed a product of his own obstinance, recalcitrance, and unreasonable contumacy. People v. Brown, 26 Cal.App.3d 825, 835, 102 Cal.Rptr. 518, 524 (Cal.Ct.App.1972); see also Hudson v. Rushen, 686 F.2d at 831.
28
Upon a review of the course of events leading up to the motion to withdraw and the events at the hearing before the trial judge, we conclude that Thomas' intractable silence amounted to a waiver of any change in counsel to which he may otherwise have been entitled. The Supreme Court has held that a criminal defendant has a constitutional right to waive counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Given that a criminal defendant may waive his constitutional right to counsel altogether, at some point a criminal defendant can be deemed to have waived to a certain extent his constitutional right to effective assistance by virtue of his unreasonable refusal to communicate with his attorney. See United States v. Moore, 706 F.2d 538, 540 (5th Cir.1983) (finding "a persistent, unreasonable demand for dismissal of counsel [to be] the functional equivalent of a knowing and voluntary waiver of counsel"), cert. denied, --- U.S. ----, 104 S.Ct. 183, 78 L.Ed.2d 163 (1983).
29
At the state post-conviction hearing, Thomas was questioned regarding the lack of cooperation. He referred to "difficulties in communicating" with two other attorneys from the Tenth Judicial Circuit Public Defender's Office who had represented him in two prior criminal proceedings. According to Thomas, those attorneys failed to investigate potential alibi witnesses he had suggested to them and their questioning of witnesses at trial was inadequate. Thomas stated that his refusal to cooperate with Brawley was a result of these prior experiences, which led him to distrust everyone in the public defender's office. Thomas further indicated that he refused to answer the trial judge's questions because his unsuccessful attempts to have public defenders dismissed in prior cases convinced him of the futility of communicating his objections to the judge.
30
At the time of his trial, however, Thomas had the limited choice of either proceeding to trial with his appointed counsel or making known to the court his objections to that counsel when given the opportunity to do so. Because this choice did not place Thomas in a "dilemma of constitutional magnitude," McKee, 649 F.2d at 931, Thomas' voluntary choice to remain silent effectively waived any right to more effective counsel than was possible under the circumstances.
31
In any event, good cause did not exist for assignment of new counsel. Even assuming that Thomas had legitimate complaints about the representation he had previously received from two other attorneys from the public defender's office, Brawley had never represented Thomas before. Thomas' refusal to cooperate with Brawley commenced with their initial meeting, before Brawley had had any opportunity to investigate leads or question witnesses. Moreover, Thomas' obstinate refusal to respond to the court's questions gave no indication that he would cooperate with any other lawyer the court could have appointed, nor that he desired to proceed pro se.
32
This determination does not, however, end the inquiry. Even a criminal defendant's complete noncooperation does not free his lawyer to abdicate his professional responsibility to represent his client in the best way possible under the circumstances. In deciding an ineffectiveness claim, we must judge "the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland v. Washington, 466 U.S. 668, ----, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984). A criminal defendant's unreasonable refusal to communicate or cooperate with his attorney is one of the "circumstances" that must be considered in determining whether an attorney's assistance was reasonably effective. Id. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695 ("The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions."). See Morris v. Slappy, 461 U.S. 1, 9, 12, 103 S.Ct. 1610, 1615, 1616, 75 L.Ed.2d 610 (1983); Hudson v. Rushen, 686 F.2d at 831-32.
33
To prevail on his ineffective assistance claim, Thomas must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Washington, 466 U.S. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Thomas identified two specific areas of inquiry that Brawley might have been able to pursue had he had input from Thomas. Mrs. Anderson had testified at trial that her assailant had scars or welts on his legs, and police investigators testified that during their interrogation of Thomas they noticed welts on his legs. Cody Martin, another neighbor of Thomas', testified at trial that on the morning after the Anderson murder Thomas spoke of making a "good hit" on a place the night before and of shooting a dog. The Andersons' dog was shot by the intruder. Thomas contends an effective attorney would have pursued the questions of whether Thomas had welts on his legs and when and if Thomas ever told Cody Martin about shooting a dog. These two specific omissions alleged by Thomas were directly attributable to Thomas' silence. Given that silence, it is difficult to perceive how Brawley could have uncovered the information elsewhere while conducting a reasonable investigation of the case.
34
A review of the record reveals that counsel's performance was reasonably effective under the circumstances. Brawley filed pretrial motions to suppress statements and for change of venue, presented witnesses at hearings on those motions, questioned potential jurors at voir dire, used 18 of his 28 available preemptory challenges and challenged several jurors for cause, made objections at trial, and cross-examined several of the State's witnesses. He also presented two defense witnesses, one of whom testified as an expert concerning potentially exculpatory scientific evidence.
35
At the state post-conviction hearing, Brawley testified that he had continued to prepare the case in spite of his client's noncooperation and that he was familiar with the State's case going into the trial. He stated that he had been surprised only once by evidence presented during the State's case, and that he had rebutted that evidence with his expert witness. Brawley had interviewed Thomas' wife in an attempt to establish an alibi, but decided against calling her because of doubts as to her ability to be a convincing witness. While acknowledging that Thomas' silence impaired his ability to represent him as well as he could have, Brawley stated he thought he had "at least a chance going into the final arguments of actually getting an acquittal in the case." We conclude that Thomas has not established that, given the circumstances of the case, his attorney failed to provide reasonably effective assistance of counsel.
36
We have examined this case to determine if the manifest ends of justice might require relief. This is not such a case. The case against Thomas was largely circumstantial, but the evidence was reasonably strong. The facts Thomas claims his counsel should have developed would merely have been additional circumstances for the jury to consider, and were not necessarily exculpatory, even if they were true. The district court properly denied relief on Thomas' ineffective assistance of counsel claim.
Restriction of Mitigating Evidence
37
Thomas argues that he was denied a fair and individualized capital sentencing by the preclusion of evidence of nonstatutory mitigating factors as a result either of the operation of state law or the inability of his counsel to be effective because of his counsel's belief that Florida law barred such evidence. The confusion in Florida as to whether nonstatutory mitigating circumstances could be considered under Florida law has been well documented. See Hitchcock v. Wainwright, 745 F.2d 1332, 1335-37 (11th Cir.1984) (discussing Proffitt v. Florida, 428 U.S. 242, 250 n. 8, 96 S.Ct. 2960, 2965 n. 8, 49 L.Ed.2d 913 (1976); Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977) and Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979)); see also Songer v. Wainwright, --- U.S. ----, ---- - ----, 105 S.Ct. 817, 819-22, 83 L.Ed.2d 809, 812-14 (1985) (Brennan, J., dissenting from denial of certiorari).
38
Since Songer, this Court has heard numerous petitioners claiming, like Thomas, that their death penalty sentences were unconstitutional under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) because their sentencing hearings occurred in Florida before the clarification of Songer. See, e.g., Hitchcock v. Wainwright, 745 F.2d 1332 (11th Cir.1984), reh'g en banc granted, 745 F.2d 1348 (11th Cir.1985); Foster v. Strickland, 707 F.2d 1339, 1346-47 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2375, 80 L.Ed.2d 847 (1984); Ford v. Strickland, 696 F.2d 804, 813 (11th Cir.) (en banc ), cert denied, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983); Proffitt v. Wainwright, 685 F.2d 1227, 1238-39 (11th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). See also Songer v. Wainwright, 756 F.2d 800 (11th Cir.1985), reh'g en banc granted, 756 F.2d 1482 (11th Cir.1985).
39
We have consistently denied relief under this claim where the record reflects that any confusion in the Florida law did not appreciably affect a capital sentencing proceeding. In this case, the district court had before it the transcript of the state post-conviction hearing, a developed factual record from which it could be determined that Florida law had little, if any, effect on defense counsel's decisions at the sentencing. See Francois v. Wainwright, 763 F.2d 1188, 1190-1191 (11th Cir.1985) (denying stay of execution pending en banc decisions in Hitchcock and Songer, where trial judge expressly instructed the jury that there were no limitations on mitigating circumstances and where proffered evidence of nonstatutory mitigating circumstances would have had no effect on jury).
40
Thomas' sentencing hearing was held in April 1977 between the Cooper and Lockett decisions. The State presented law enforcement personnel who related Thomas' convictions for prior offenses of armed robbery, assault, battery, and sexual battery. Thomas' counsel presented only one witness, a police detective who had interrogated Thomas. Over the prosecutor's objection that the detective's testimony covered matters not enumerated as mitigating circumstances in the death penalty statute, the detective related that Thomas had spoken to him for fifteen to twenty minutes of being beaten by a prison guard as a youth until he could not walk while being held at a juvenile detention facility. The detective testified that Thomas had tears in his eyes when telling the story.
41
Thomas suggests that had his attorney undertaken a thorough investigation, he would have discovered substantial evidence regarding the hardships of his upbringing, which he terms mitigating. More specifically, he claims the evidence would have shown that during the first six years of his life he lived with his mother and nine brothers and sisters in a two-room house, that he was forced to seek food wherever he could find it, that while looking through discarded items behind a grocery store he was arrested, kicked, and beaten by white policemen. At the age of six, he witnessed a white doctor rape his mother. At the age of eight, he and his younger brother were incarcerated at the county jail for not going to school. Between the ages of eight and thirteen, he was kept in a foster home where he worked from sunrise to sunset picking cotton and digging ditches and was frequently beaten by his foster parents when he failed to work as long or as hard as required. Sent to a reformatory school at fifteen, he ran away with a friend, who was subsequently drowned by law enforcement officers. The psychological effects of these events, Thomas claims, reduced his ability to cope rationally with the stresses of life, and he argues that his counsel should have introduced and developed these facts at his sentencing hearing.
42
There is nothing in this record to show that the trial court would have excluded any mitigating evidence proffered. The lone witness put on by the defense testified that Thomas had revealed to him that he had been severely beaten during his youth. The court allowed this testimony over the prosecutor's objection that the defense was limited to the statutory mitigating circumstances, stating that the testimony was admitted "for the purpose of showing maybe he was under extreme mental emotional disturbance because of these acts." The mere fact that some background evidence was admitted does not justify the assumption that the trial court would have admitted all nonstatutory evidence. The offer and admission of this testimony, however, renders the record neutral with respect to whether the trial court would have excluded proffered nonstatutory mitigating evidence and whether trial counsel thought he could introduce it.
43
More importantly, the testimony of Thomas' counsel at the post-conviction hearing indicates that his decision not to introduce evidence of Thomas' background was based on strategic considerations, and not on his perception of the effect of Florida law. Admittedly, at the state post-conviction hearing defense counsel recalled that his understanding of Florida law at the time of the sentencing was that he was limited to the mitigating factors enumerated in the statute. But when questioned whether that understanding dictated his preparation or investigation of potentially mitigating evidence, defense counsel explained that two other factors were operating upon him in the penalty phase: his desire to minimize the impact of Thomas' unsavory background and, more importantly, his choice to remain consistent in the eyes of the jury by continuing his guilt phase strategy of appealing to the concept of reasonable doubt that Thomas had committed the crimes rather than trying to play on the jury's sympathy.
44
The transcript of the sentencing hearing reflects Thomas' counsel's emphasis on the jury's residual doubt as to whether Thomas was indeed the murderer of Charles Anderson. He stressed inconsistencies in the physical and testimonial evidence against Thomas. Conceding that the jury had found that there was no reasonable doubt that Thomas had committed the murder, defense counsel pointed out the circumstantial nature of the case against Thomas and the unique finality of the death penalty, and argued:
45
I would submit you should not have any doubt about recommending death to just possibly an innocent man.
46
As defense counsel testified at the post-conviction hearing, this strategic choice was his attempt to maintain his credibility before the jury:
47
The jury did not agree with my summation of the evidence and my view of the evidence and they found him guilty, therefore it seemed to me that since mitigation or sympathy would not really turn the tide for him, and to keep my credibility intact, I wanted to suggest to the jury that maybe you're convinced beyond a reasonable doubt, but you shouldn't be convinced beyond all doubt because there was no direct testimony against Mr. Thomas, there was no eyewitness testimony, no fingerprint testimony, there was positive scientific evidence that at least circumstantially indicated he was not the man.... And I, frankly, did not believe that changing horses and attempting to go the full route with mitigation or sympathy attack would help Mr. Thomas, and we had very little to work with anyway.
Finally, defense counsel testified:
48
My main pitch to the jury was that maybe you have made a mistake, if this man is allowed to live, maybe some day evidence will come to light showing he didn't do it; and are you so sure of your verdict that you have got to go that next awful step and recommend death.
49
Thomas' counsel's testimony clearly demonstrates that his choice not to introduce background evidence was primarily a matter of strategy. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requires us to "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." 466 U.S. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Confronted with his client's stubborn silence, convinced of the necessity to advance arguments at sentencing consistent with those he advanced at the guilt phase, and uncertain of the jury's reaction to the circumstances of his client's background, Thomas' public defender chose to forsake evidence of Thomas' background and to rely on arguments stressing the circumstantial nature of the case against his client. In light of these circumstances, that decision did not fall below the "objective standard of reasonableness" set forth by the Supreme Court in Washington. 466 U.S. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
50
The district court did not err in holding that Thomas failed to demonstrate any significant causal relationship between counsel's reliance on Florida law interpreting the statute and counsel's determination not to introduce the background evidence.
Brown Issue
51
Thomas raises the so-called Brown issue decided in Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc ), cert. denied, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983), and suggests we reconsider the decision based on a constitutional argument mentioned in a concurring opinion. Ford, 696 F.2d at 824, 832-33 (Tjoflat, J., concurring). The Brown issue involved a claim by Thomas and 122 other death row inmates that the Florida Supreme Court had examined non-record information during its appellate review of their sentences. See Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). In Ford, the en banc Court held that the Florida Supreme Court's decision that the material should not be used, its statement that it was not used, and the rejection of the notion that the material affected the judgment of that court's judges "ends the matter when addressed at the constitutional level." Ford, 696 F.2d at 811. This Court has consistently followed Ford in rejecting constitutional attacks on the Florida Supreme Court's practice. See Smith v. Wainwright, 741 F.2d 1248, 1261 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1855, 85 L.Ed.2d 151 (1985); Dobbert v. Strickland, 718 F.2d 1518, 1521 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984); Shriner v. Wainwright, 715 F.2d 1452, 1456-57 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984). The petitioner's argument in effect concedes that this case is controlled by Ford. Neither the district court nor this panel is at liberty to reconsider Ford, which establishes the controlling law on this issue.
52
Arbitrariness of the Death Penalty in Florida
53
Thomas argues that the Florida death penalty is unconstitutionally applied due to discrimination on the basis of race, sex, and socioeconomic status, and arbitrarily applied on the basis of geography. He claims the district court erred in failing to grant an evidentiary hearing, specific discovery, and expenses for expert assistance and witnesses. In support of his claim, Thomas proffers the same type of statistical studies rejected by this Court in Henry v. Wainwright, 743 F.2d 761, 762 (11th Cir.1984); Washington v. Wainwright, 737 F.2d 922, 923 (11th Cir.1984); Sullivan v. Wainwright, 721 F.2d 316 (11th Cir.1983), application for stay denied, 464 U.S. 109, 104 S.Ct. 450, 78 L.Ed.2d 210 (1983); and Adams v. Wainwright, 709 F.2d 1443, 1449 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984). The Supreme Court has likewise indicated that this claim is without merit. Wainwright v. Ford, --- U.S. ----, 104 S.Ct. 3498, 82 L.Ed.2d 911 (1984) (denying state's application to vacate stay on other grounds); Wainwright v. Adams, --- U.S. ----, 104 S.Ct. 2183, 80 L.Ed.2d 809 (1984) (vacating stay of execution); Sullivan v. Wainwright, 464 U.S. 109, 104 S.Ct. 450, 78 L.Ed.2d 210 (1983) (denying stay of execution). The district court properly denied Thomas' requests for an evidentiary hearing and claim for relief on this issue.
54
AFFIRMED.
|
T.C. Memo. 1998-197
UNITED STATES TAX COURT
THEODORE JONES, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
CATHERINE ALLEN-JONES, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 14565-97, 14566-97. Filed May 28, 1998.
John L. Green, for petitioners.
Victoria J. Sherlock, for respondent.
MEMORANDUM OPINION
GOLDBERG, Special Trial Judge: These cases are before the
Court on respondent's motions to dismiss for lack of
jurisdiction. The issue for decision is whether petitioners
filed their separate petitions within the 90-day period
2
prescribed by section 6213(a).1 The motions were assigned for
hearing pursuant to section 7443A(b)(4) and Rules 180, 181, and
183. A hearing was held on respondent's motions in Houston,
Texas.
On March 26, 1997, respondent issued and mailed to each
petitioner a separate notice of deficiency. In each notice,
respondent determined the following deficiencies and additions in
Federal income taxes:
Petitioner Theodore Jones
Additions to Tax
Sec. Sec.
Year Deficiency 6651(a) 6654
1991 $43,943 $10,986 $2,511
1992 92,037 23,009 4,014
1993 32,932 8,233 1,380
Petitioner Catherine Allen-Jones
Additions to Tax
Sec. Sec.
Year Deficiency 6651(f) 6654
1991 $52,602 $39,452 $3,006
1992 101,043 75,782 4,407
1993 41,931 31,448 1,757
The 90-day period for filing a petition with this Court
expired on Tuesday, June 24, 1997, which was not a legal holiday
in the District of Columbia.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
3
The petitions were received and filed with this Court on
Tuesday, July 8, 1997, 104 days after the mailing of the notices
of deficiency. The petitions were signed by petitioners' counsel
(Mr. Green) and were dated June 24, 1997. The petitions were
mailed to the Court, together in a properly addressed envelope
bearing a private postage-meter postmark date of June 24, 1997.
No check in payment of the filing fees was included.2
Above the address label, the envelope bears two rubber-
stamped notations, apparently placed there by someone with the
United States Postal Service (Postal Service), that read:
"Return to Sender Undeliverable as addressed No forwarding
order on file". Both stamps have been crossed out in red ink and
scratched over in black ink. Below the address label, the
envelope bears the handwritten notation: "Good Address", in
black ink. The return address on the envelope was that of Mr.
Green's office.
The envelope containing the petitions was mailed from the
Longpoint Post Office in Houston, Texas. The last pickup time
for mail deposited at the Longpoint Post Office located at 1702
Hillendahl Blvd., Houston, Texas, 77055, on June 24, 1997, was
5:30 p.m..
The parties agree that the normal delivery time for a
properly addressed envelope sent from Houston, Texas, to
2
Payment of the fees was received by the Court on July 18,
1997.
4
Washington, D.C., is 3 days. Statistical sampling records
maintained by the Postal Service in Houston, Texas, as part of
its Origin-Destination Information System, show that during the
period June 21, 1997, through July 18, 1997, 100 percent of the
metered mail mailed from Houston, Texas, to Washington, D.C., was
delivered within 3 days of mailing. Similar statistics for
metered mail and stamped mail combined also show 100-percent
delivery within 3 days. According to the records maintained by
the Transportation & Network Division of the Houston Office of
the Postal Service, no special circumstances existed on or near
June 24, 1997, that would explain the delay in delivery of the
petitions.
Section 6213(a) provides in part that a taxpayer has 90 days
from the date that the notice of deficiency is mailed within
which to file a petition with the Court. Failure to file within
the prescribed period requires that the petition be dismissed for
lack of jurisdiction. Estate of Moffat v. Commissioner, 46 T.C.
499 (1966). Section 7502 provides that a timely mailed petition
will be treated as timely filed in certain circumstances. In the
case of an envelope bearing a postmark other than that of the
Postal Service, section 7502 applies only to the extent provided
by regulation. Sec. 7502(b).
Where, as here, the envelope bears a private postage-meter
postmark:
5
(1) the postmark so made must bear a date on or before the
last date, or the last day of the period, prescribed for
filing the document, and (2) the document must be received
by the agency, officer, or office with which it is required
to be filed not later than the time when a document
contained in an envelope or other appropriate wrapper which
is properly addressed and mailed and sent by the same class
of mail would ordinarily be received if it were postmarked
at the same point of origin by the United States Post Office
on the last date, or the last day of the period, prescribed
for filing the document. However, in case the document is
received after the time when a document so mailed and so
postmarked by the United States Post Office would ordinarily
be received, such document will be treated as having been
received at the time when a document so mailed and so
postmarked would ordinarily be received, if the person who
is required to file the document establishes (i) that it was
actually deposited in the mail before the last collection of
the mail from the place of deposit which was postmarked
(except for the metered mail) by the United States Post
Office on or before the last date, or the last day of the
period, prescribed for filing the document, (ii) that the
delay in receiving the document was due to a delay in the
transmission of the mail, and (iii) the cause of such delay.
[Sec. 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.]
In these cases, the petitions were not received within the
normal 3-day mailing time between Houston, Texas, and Washington,
D.C.. The petitions were not received until July 8, 1997, 14
days after they were purportedly mailed. Therefore, under
section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.,
petitioners must establish that the petitions were actually
deposited in the mail before the last collection on June 24,
1997, that the delay in receiving the petitions was due to a
delay in the transmission of the mail, and the cause of such
delay.
6
The petitions in these cases were mailed on June 24, 1997.
Mr. Green's affidavit, attached to respondent's motions, states
that Mr. Green personally deposited the envelope containing the
separate petitions in the mail in the early evening on June 24,
1997. In petitioners' separate objections to respondent's
motion, it is alleged that the envelope was mailed from the
Longpoint Post Office at around 4 p.m.. In petitioners'
memoranda of law, it is alleged that Mr. Green left his office at
approximately 3 p.m. and deposited the envelope at the Longpoint
Post Office prior to time for the last pickup. Although not all
of these statements are precise, in our view they are not
inconsistent. We have no reason to doubt Mr. Green's veracity.
Therefore, we find that petitioners have established that their
separate petitions were deposited in the mail on June 24, 1997,
prior to the last collection for the date.
The markings on the envelope containing the petitions
suggest that a delay in delivery may have occurred. Mr. Green
asserts that the envelope was not returned to his office. Our
careful scrutiny of the envelope has revealed that there is no
other address contained thereon underneath of the address label
bearing the Court's correct address. Attached to each of
petitioners' memorandum of law was a letter, dated January 6,
1998, from Jerry R. Warren, the manager of the Consumer Affairs
Division of the Houston Office of the Postal Service. In
7
reference to the envelope containing the petitions, Mr. Warren
writes:
Since the correct address was used, it is impossible to
explain why your envelope was stamped "return to sender".
However, because the envelope was stamped "return to sender
undeliverable as addressed", this may have been the main
cause for delay.
Mr. Green, it is difficult to say where or who may have
crossed out the "return to sender" stamp on the front of the
envelope since you have stated it was never returned to you.
It is quite possible someone in the Washington Post Office
discovered the error and crossed out the stamp rerouting the
envelope as a good address.
Based on the appearance of the envelope and Mr. Warren's letter,
we conclude that the delay in delivery of the petitions to this
Court was due to a delay in the transmission of the mail, and
that the delay was caused by the Postal Service. See, e.g.,
Langston v. Commissioner, T.C. Memo. 1997-303.
Petitioners have satisfied the three elements of section
301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs., and the
petitions are deemed to have been filed timely. Therefore,
respondent's motions to dismiss for lack of jurisdiction will be
denied.
To reflect the foregoing,
An appropriate order
will be issued.
8
|
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-234-CV
ESTATE OF NOMA BISHOP IRVIN, DECEASED
------------
FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
------------
MEMORANDUM OPINION
(footnote: 1)
------------
In five issues, appellant David Irvin, executor of the estate of W. Ray Irvin, Jr.,
(footnote: 2) appeals the trial court’s denial of his additional claims, brought after our partial reversal and remand in
Irvin v. Parker
, 139 S.W.3d 703 (Tex. App.—Fort Worth 2004, no pet.). We affirm.
BACKGROUND
Noma died in May 1998, leaving Ray as her surviving spouse.
Irvin
, 139 S.W.3d at 705. In December 1998, Loretta Parker (“Appellee”), Noma’s sister and estate administrator, filed a petition to recover property belonging to Noma’s estate.
Id
. The case was tried to a jury in February 2002.
Id
. at 706.
The jury made four findings. It found the amount of reimbursement owed by the estate to Appellant for property taxes on Noma’s separate property residence ($0) and for funeral expenses and grave monument ($1,277.20), and the amount of offset, i.e., the fair rental value attributable to Appellant’s occupancy, against Appellant’s reimbursement claim for the property taxes ($0). It also found that an annuity was Noma’s separate property and that she did not knowingly consent to Appellant’s being the annuity’s owner on the date of its purchase. Appellant appealed to this court on the annuity’s proper characterization.
Id
. We reversed the trial court’s judgment on that characterization and remanded for distribution of the annuity and its proceeds in June 2004.
Id
. at 708, 712. We affirmed the trial court’s judgment in all other respects and ordered Appellee to pay all costs of the appeal.
Id
. at 712.
On December 1, 2004, Appellant filed a “Memorandum of Issues Not Resolved,” seeking funeral expenses paid by Appellant, reimbursement for “C&C additional appella[te] costs” and attorney’s fees, and reimbursement credit “for being driven out of the [homestead].” Appellant asserted that “[n]one of these issues were presented to the jury, nor could they have been.” The cumulative value in Appellant’s sworn list of claims, filed December 3, 2004, which included not only the claims in his memorandum but also claims for his attorney’s fees from the jury trial and appeal, was $219,536.08. Appellee responded with a “Memorandum of Personal Representative,” on December 29, 2004, in which she rejected Appellant’s reimbursement claims for: “homestead claim for life estate”; prospective rent; funeral expenses; attorney’s fees; court reporter costs of $1,122.90; and “C&C additional appella[te] costs” of $389.98.
(footnote: 3) Appellee allowed the court reporter costs of $5,520.00, county clerk costs of $1,778.00, and the tombstone cost of $1,227.20.
In May 2005, Appellee filed an “Account For Final Settlement” in the probate court in which she allowed Appellant’s court reporter costs of $5,520.00, his county clerk costs of $1,778.00, and the tombstone cost of $1,227.20, but rejected his other eight claims now at issue here. Appellant filed a motion in June 2005,
(footnote: 4) requesting an evidentiary hearing on the denied claims. In response to Appellant’s motion, Appellee argued that these claims were barred by res judicata and by section 313 of the probate code because Appellant failed to file suit within ninety days after Appellee rejected the claims.
See
Tex. Prob. Code Ann.
§ 313 (Vernon 2003).
The trial court heard these issues in December 2005, as well as Appellant’s motions for correction of inventory and appraisal, to deny approval of final accounting, and for a hearing on unresolved issues. At the hearing, the following items were submitted by Appellant and admitted into evidence: volume eight of the trial record, a July 30, 1998 letter from Appellee’s attorney to Appellant requesting his cooperation in settling the estate, the bill of costs from this court, Appellant’s “C&C additional appella[te] costs” (i.e., postage, photocopies, and library usage), the receipt for Noma’s funeral expenses, and Appellant’s attorney’s fees. The trial court awarded Appellant one-half of the proceeds of a certificate of deposit and one-half of the annuity proceeds addressed in our previous opinion; it denied the remainder of his motions.
At Appellant’s request, the trial court entered findings of fact and conclusions of law. It made the following fact findings:
(1) [Appellant] failed to request an issue on his “homestead claim for life estate to Southwest Parkway in the amount of $78,000.00" in the jury trial in this cause (which was appealed to the Court of Appeals under Cause No. 2-02-258-CV).
(2) [Appellant] failed to request an issue on his “prospective claim $1,000.00 per month rental value in the amount of $85,000.00" in the jury trial of this cause.
(3) [Appellant] requested an issue as to “the community estate of [Appellant] used to pay for funeral expenses of Noma Bishop Irvin and the purchase of a monument for her grave site” and the jury answered “$1,227.20.”
(4) [Appellant] failed to request an issue on attorney’s fees in the jury trial of this cause.
In findings (5) through (12), the trial court also found that on December 3, 2004 Appellant filed eight separate claims against the estate with Appellee after the jury trial and appeal; that each of the claims was rejected by Appellee on December 29, 2004; and that Appellant did not bring suit within ninety days of the date of the rejection of the following claims: (5) “a homestead claim for life estate in Southwest Parkway residence in the amount of $78,000.00,” (6) “a homestead claim for prospective claim in the Southwest Parkway residence in the amount of $85,000.00,” (7) “C & C additional appella[te] costs of $398.98,”
(footnote: 5) (8) funeral expenses of $7,056.00, (9) attorney’s fees of $21,427.00, (10) attorney’s fees of $5,000.00, (11) attorney’s fees of $5,000.00, and (12) court reporter costs of $1,122.90. The trial court stated in its conclusions of law that each of Appellant’s eight claims was barred by res judicata and section 313 of the probate code.
BARRED CLAIMS
Appellant’s five overlapping issues amount to the general argument that the eight denied claims were not barred as a matter of law by section 313 of the probate code or res judicata, and that some of the trial court’s fact findings supporting these conclusions were contrary to the evidence or had insufficient evidence to support them.
Standard Of Review
Findings of fact entered in a case tried to the court have the same force and dignity as a jury’s answers to jury questions.
Anderson v. City of Seven Points
, 806 S.W.2d 791, 794 (Tex. 1991). Findings of fact, although not required, can properly be considered by the appellate court in an appeal from any judgment based in any part on an evidentiary hearing.
See IKB Indus. (Nigeria) v. Pro-Line Corp.
, 938 S.W.2d 440, 443 (Tex. 1997);
Int’l Union v. General Motors Corp.
, 104 S.W.3d 126, 128-29 (Tex. App.—Fort Worth 2003, no pet.). The trial court’s findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury’s answer.
Ortiz v. Jones
, 917 S.W.2d 770, 772 (Tex. 1996);
Catalina v. Blasdel
, 881 S.W.2d 295, 297 (Tex. 1994).
A legal sufficiency challenge may only be sustained when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.
Uniroyal Goodrich Tire Co. v. Martinez
, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied
, 526 U.S. 1040 (1999); Robert W. Calvert,
“No Evidence” and “Insufficient Evidence” Points of Error
, 38
Tex. L. Rev
. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not.
City of Keller v. Wilson
, 168 S.W.3d 802, 827 (Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to support the finding.
Cont’l Coffee Prods. Co. v. Cazarez
, 937 S.W.2d 444, 450 (Tex. 1996);
Leitch v. Hornsby
, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact.
Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co.
, 77 S.W.3d 253, 262 (Tex. 2002).
An assertion that the evidence is factually insufficient to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered.
Garza v. Alviar
, 395 S.W.2d 821, 823 (Tex. 1965). We are required to consider all of the evidence in the case in making this determination, not just the evidence that supports the finding.
Mar. Overseas Corp. v. Ellis
, 971 S.W.2d 402, 406-07 (Tex.),
cert. denied
, 525 U.S. 1017 (1998).
Conclusions of law may not be challenged for factual sufficiency, but they may be reviewed to determine their correctness based upon the facts.
Citizens Nat’l Bank v. City of Rhome
, 201 S.W.3d 254, 256 (Tex. App.—Fort Worth 2006, no pet.);
Dominey v. Unknown Heirs and Legal Representatives of Lokomski
, 172 S.W.3d 67, 71 (Tex. App.—Fort Worth 2005, no pet.). The trial court’s conclusions of law are reviewable de novo as questions of law, and will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence.
Hawkins v. Ehler
, 100 S.W.3d 534, 539 (Tex. App.—Fort Worth 2003, no pet.).
Homestead Fact Finding
Appellant complains in his second issue about the sufficiency of the evidence to support the trial court’s fact finding on his request for a homestead issue at the jury trial. He argues that his request for a homestead issue was denied at the jury trial, referring to the requested issue as “[a]n issue to this effect,” and that therefore, the trial court’s first finding of fact was contrary to the evidence in the jury trial.
(footnote: 6)
The trial court found that “[Appellant] failed to request an issue on his ‘homestead claim for life estate to Southwest Parkway in the amount of $78,000.00’ in the jury trial of this cause.” The issue that Appellant did request at trial proposed that the jury
[f]ind from clear and convincing evidence the amount of the reimbursement claim or offset, if any, proved in favor of [Appellant], and state your answer, if any, in dollars: The fair market rental value of the residence on Southwest Parkway following its surrender by [Appellant] to the Estate.
A plain reading shows that the requested issue is similar to, but not the same as, what Appellant now argues. Specifically, the proposed jury issue requested that the jury name an amount for the fair rental value of the residence after Appellant decamped; it does not request the specific amount of $78,000.00, nor does it mention “homestead claim” or “life estate.”
(footnote: 7) Because of these differences, we conclude that there was legally sufficient evidence upon which the trial court could base its finding that Appellant failed to request an issue on his “homestead claim for life estate . . . in the amount of $78,000.00" in the jury trial.
See City of Keller
, 168 S.W.3d at 827. Having reviewed all of the evidence presented at the hearing, we also conclude that it was factually sufficient to support the fact finding because the evidence supporting it is not so weak that the answer should be set aside and a new hearing ordered.
See Garza
, 395 S.W.2d at 823. We overrule Appellant’s second issue.
Appellant's Claims
Appellant argues in the first point of his first issue that the nature of a probate case is that it can involve multiple claims brought at various times, so his claims should not have been denied. In the second point of his first issue, tied to issues three and five, he contends that he complied with section 313 of the probate code. And in the fourth point of his first issue, tied to issue four, he complains that his claims were not barred by res judicata.
Multiple Claims
Appellant asserts that a probate case can involve multiple rulings of the court or separate trials that present final appealable orders.
(footnote: 8) He cites
Roach v. Rowley
, 135 S.W.3d 845 (Tex. App.—Houston [1st Dist.] 2004, no pet.), in which
the court held that several separate applications for fees and expenses by the temporary administrator were each final and appealable orders.
Id.
at 848.
Roach
’s pertinent issue
was whether the devisee had waived his objections to the nine fee orders filed, approved, and paid between November 2001 and October 2002.
Roach
, 135 S.W.3d at 846-48. The devisee’s only objections pertained to the fees, and he did not file any objections to them until December 2002, after the final accounting was filed.
Id
. at 846. The court held that he had waived those objections because each of those orders was final and appealable.
Id
. at 846, 848. The court’s reasoning was based on the orders’ contents, which involved a final adjudication of substantial rights and the absence of any interlocutory language, and precedent that stated that a probate order awarding attorney’s fees was final for purposes of appeal because, as estate administration was an ongoing process, it would be unfair to defer appellate review of the order until the estate was closed.
Id
. at 848. Appellant appears to be arguing that because the fee claims in
Roach
were filed at different times during the administration of the estate and were final and appealable after each payment, then his additional claims, brought after the jury trial and his appeal to this court, are somehow not precluded.
(footnote: 9) If this is the case, we disagree.
(footnote: 10)
The nature and timing of the claims in
Roach
and those brought by Appellant are fundamentally different. The
Roach
orders
pertained to payment of accounts incurred
through
estate administration; the devisee appealed after the trial court signed the order that both denied his objection and approved the amended final accounting, closing the estate.
Id
. at 846. There had been no trial on any matter involving that estate and no objection except with regard to payment of fees involved in administering it.
Id
. Here, in contrast, Appellant seeks reimbursement for expenses incurred before the jury trial, such as funeral expenses, as well as expenses incurred during his appeal and claims for prospective relief, and none of these are directly tied to the administration of Noma’s estate, which Appellee conducted. The
Roach
court specifically cited to precedent that held that, with regard to payment of attorney’s fees incurred in estate administration, a probate order awarding those fees was final for purposes of appeal.
Id
. at 848;
see Wittner v. Scanlan
, 959 S.W.2d 640, 642 (Tex. App.—Houston [1st Dist.] 1995, writ denied). No attorney’s fees incurred in the administration of Noma’s estate are at issue here. Because we conclude that
Roach
is inapposite, and Appellant cites us to no other case law pertaining to multiple claims brought at different times, we overrule his first point in his first issue.
Section 313 Of The Probate Code
In his fifth issue and his second point under his first issue, Appellant complains that the trial court erred by concluding that his eight claims were barred by section 313 of the probate code and contends that he complied with section 313.
See
Tex. Prob. Code Ann
. § 313. In his third issue, he asserts that there was insufficient evidence to support the trial court’s fact findings that he did not bring a suit within ninety days of the rejection of his claims by Appellee.
Section 313 provides that when a claim has been rejected by the estate’s personal representative, “the claimant shall institute suit thereon . . . within ninety days after such rejection, or the claim shall be barred.”
Id
.;
see Russell v. Dobbs
, 163 Tex. 282, 354 S.W.2d 373, 376 (Tex. 1962). This statute’s purpose is to bring about an early disposition of claims against estates.
See Russell
, 354 S.W.2d at 376. The presentation of a claim to the representative is the first step in the procedure established for obtaining a judgment which can be enforced in the probate proceedings, and as a general rule the creditor must comply with all statutory requirements.
Id
.
It is not disputed that Appellant presented his claims to Appellee, or that she rejected them. Appellant filed his “Memorandum of Issues Not Resolved” and list of authenticated claims in early December 2004, and Appellee rejected them on December 29, 2004 in her “Memorandum of Personal Representative.” Whether Appellant complied with section 313 depends on the construction of the phrase “institute suit” as it pertains to his memorandum and list of claims, which he argues met section 313’s requirements. The probate code does not define the phrase “institute suit.” Appellant cites us to
In re Estate of Ayala
,
19 S.W.3d 477, 479 (Tex. App.—Corpus Christi 2000, pet. denied), to support his argument for a loose interpretation of the timing required under section 313. In
Ayala
, creditor IBC filed a claim and a “motion to require sale of property” with the court in December 1997, which the estate’s personal representative never expressly allowed or rejected.
Id.
at 478. Generally, a claimant is charged with the knowledge that a claim will be deemed rejected by operation of law if no action is taken by the representative within thirty days.
See Russell
, 354 S.W.2d at 376 (stating that the statutes contemplate that a creditor will keep himself informed as to the status of his claim and take the steps required by law to reduce the same to judgment). But in
Ayala
, between January and April 1998, the trial court erroneously allowed the claim and then set aside its order granting it; IBC filed an amended motion for sale in June, which the trial court denied and dismissed, and which was subsequently appealed. 19 S.W.3d at 478. Because IBC’s first motion to require sale, filed on the same day that it filed its claim, set out the claim, the facts supporting it, and requested relief, the
Ayala
court concluded that the substance of IBC’s motion, construed liberally, could constitute a “suit” under section 313.
Id
. at 479. It also held that section 313 had no provision barring a claim filed prematurely and, analogizing to premature motions for new trial and notices of appeal, which are considered filed on the date of, but subsequent to, the signing of the judgment, it rejected the argument that the claim was barred for premature filing.
Id
. at 479-80. However, the
Ayala
court did not address what effect rejection would have had on the claim, since the personal representative never expressly rejected or accepted it, and the
Ayala
court only reversed and remanded the order that had denied and dismissed IBC’s claim.
Id
. at 480. Appellant’s December 2004 memorandum stated that “the following matters are before the court”:
(1) The funeral expenses, which were paid by [Appellant], is a statutory priority claim and the estate is required by statute to pay such expenses out of . . . Noma Irvin’s part of the community property.
(2) The estate agreed that [Appellant] is entitled to be reimbursed appella[te] costs in the amount of $7243.00, but not expenses paid by [Appellant] in the amount of $5,398.00, which include postage, filing fees, and appella[te] attorney[‘s] fees. This is an issue which the court should consider and then make a ruling.
(3) [Appellant] is entitled a reimbursement credit for being driven out of the house. Jim Chandler [Appellee’s witness at trial] testified that at the time of Noma’s death, the rental value for Southwest Parkway was a $1,000.00 per month, and [Appellant] has now lived six years and seven months since the death of Noma, and has a life expectancy of seven point one years.
Appellant also requested an evidentiary hearing, “to show the court how much of [Appellant’s] attorney[‘s] fees should be awarded from the probate funds,” and prayed that the court order Appellee “to return the funds to the estate, withdraw her Lis Pendens notice, pay the debts of the estate, make a fair accounting to [Appellant], deal with the trust and perform the rest of her duties in a fair and responsible manner.”
Appellant’s other December 2004 filing also contained these claims, listing his “reimbursement credit” above as “homestead claim for life estate” of $78,000 and “prospective claim” for monthly rental value of $85,000, $5,000 for appellate attorney’s fees, “C&C additional appella[te] costs” of $389.98, and $8,283.20 for combined funeral expenses and tombstone costs. It also contained the rest of his claims at issue here and their dollar values, and concluded with, “Claimant requests that the above claims be allowed, approved, and fixed as a variety of types of debts against the assets of the estate securing the indebtedness and paid according to the types of obligations which each claim is.”
In contrast to
Ayala
, in which the creditor requested the sale of the deceased’s condominium to satisfy the deceased’s purchase-money debt that the condominium secured at the same time that it filed its claim against the estate, here, Appellant filed overlapping lists, one an incomplete listing, and requested payment from the estate’s assets without specifying which, if any, assets secured each claim.
See Ayala
, 19 S.W.3d at 478. Also unlike
Ayala
, Appellant’s lists were not filed together, and there was no erroneous allowing of the claims by the trial court; Appellee clearly rejected them.
See id
. Although section 313 may have no provision barring a prematurely filed suit, Appellant’s filings, lacking
all
of the characteristics that the
Ayala
court found relevant to its holding, such as the motion to require sale filed on the same day as its claim against the estate, the facts supporting its secured purchase-money claim, and its specific request for relief through the sale of the debt-secured property, do not constitute a “suit” under section 313
. Cf. id.
at 479. When we add to this the additional inconsistency of Appellant’s filing on June 9, 2005, of a “Motion to Protest Denial of Certain Claims,” seeking an evidentiary hearing on all of the claims denied by Appellee, we conclude that the trial court did not err by ruling Appellant’s claims were barred by section 313. Because Appellant failed to bring suit on any of the claims rejected by Appellee
(footnote: 11) within the ninety-day period, they were barred by section 313.
See
Tex. Prob. Code Ann
. § 313. We overrule Appellant’s fifth issue and his second point under his first issue. We also overrule his third issue, because, based on these facts, the trial court had both legally and factually sufficient evidence to generate its fact findings on timing.
See City of Keller
, 168 S.W.3d at 827;
Garza
, 395 S.W.2d at 823. Because of our disposition on these issues, we need not address Appellant’s remaining issues with regard to res judicata.
See
Tex. R. App. P.
47.1
.
CONCLUSION
Having overruled all of Appellant’s issues, we affirm the trial court’s judgment.
DIXON W. HOLMAN
JUSTICE
PANEL B: CAYCE, C.J.; HOLMAN and GARDNER, JJ.
DELIVERED:
May 17, 2007
FOOTNOTES
1:See
Tex. R. App. P.
47.4.
2:David became Ray’s successor-in-interest in Noma’s estate at Ray’s death. Except where inappropriate, we refer collectively to David and Ray as “Appellant.”
3:Appellant submitted a claim for “C & C additional appella[te] costs of $389.98,” and, at the evidentiary hearing, entered into the record an account of these costs. “C&C” apparently refers to costs incurred by the law firm representing Appellant, Crampton & Crampton. Appellant’s attorney informed the trial court that these “costs” were charges for Federal Express, law library use for research, and Kinko’s copying, among other charges. Appellant mischaracterized “costs” here as what are really additional attorney’s fees.
See Flint & Assocs. v. Intercontinental Pipe & Steel, Inc.
, 739 S.W.2d 622, 626-27 (Tex. App.—Dallas 1987, writ denied) (stating that expenses such as photocopies and postage make up the overhead of a law practice and fall under the category of attorney’s fees because they are considered in setting hourly billing rates).
Because these “additional appella[te] costs” were actually attorney’s fees, they were not recoverable as costs under our
June 17, 2004
judgment.
4:The motion was entitled, “MOTION TO PROTEST DENIAL OF CERTAIN CLAIMS, MOTION TO OFFSET A PORTION OF SUCH CLAIMS AGAINST PROPERTY IN WHICH [APPELLANT] HAS AN INTEREST, MOTION FOR REIMBURSEMENT AND FOR PAYMENT, MOTION TO TRANSFER TITLE ON SEPARATE PROPERTY, MOTION FOR FINAL ACCOUNTING AND DISTRIBUTION.”
5:We note that Appellant sought $389.98 and that is amount that Appellee rejected, whereas the trial court’s findings recite the amount claimed by Appellant as $398.98.
6:Appellant requested at the hearing that the trial court take judicial notice “of all pleadings filed in this cause and all proceedings had herein.” The court granted Appellant’s request.
7:The proposed jury issue is closer to Appellant’s post-trial prospective claim for rent, but Appellant does not argue this. He also appears to argue that the trial court made an incorrect fact finding because he filed his homestead claims post-jury trial; however, filing the claim
after
the jury trial would not render incorrect a finding that Appellant did not request the issue
in
the jury trial.
Even assuming that Appellant did request the same issue at trial, the trial court would not have erred by not submitting it to the jury. Appellant admits in his brief that the issue of Appellant’s lost “life estate” was not in either party’s trial pleadings. A party is not entitled to the submission to the jury of any question not raised by that party’s affirmative written pleading.
See
Tex. R. Civ. P.
278. The portion of the trial testimony submitted by Appellant at the hearing is Appellee’s witness’s testimony with regard to the residence’s fair rental value, 1968-1998, presented to demonstrate an offset to the estate with regard to Appellant’s reimbursement claim for taxes and other property expenses. Appellant cross-examined the expert, but only with regard to a different piece of property. Rule 278 provides that the court shall submit questions to the jury which are raised by the written pleadings and the evidence.
Id
. Neither Appellant’s written pleadings nor the evidence at trial provided any basis for the complained-of homestead issue.
In issue one, points three and six, Appellant argues that he was not required to request jury issues on matters not within the parties’ pleadings and that he was entitled to continue to live in the separate property homestead. However, he has provided no reason why his homestead-related claims should not have been pled in his counter-petition, only that they were not. And even assuming that Appellant had stated a valid cause of action for a “homestead claim for life estate,” it would have been barred by res judicata.
See Laster v. First Huntsville Props.
, 826 S.W.2d 125, 129 (Tex. 1991) (stating that while a homestead right is analogous to a life estate, it is not identical because one’s homestead rights can be lost through abandonment);
Steger v. Muenster Drilling Co.
, 134 S.W.3d 359, 368 (Tex. App.—Fort Worth 2003, pet. denied) (stating that res judicata requires proof of a prior final judgment on the merits by a court of competent jurisdiction, identity of parties, and a second action based on the same claims as were raised
or could have been raised
in the first action based on subject matter).
8:This much is accurate. Although appeals generally may be taken only from final judgments, probate proceedings are an exception to the “one final judgment” rule.
De Ayala v. Mackie
, 193 S.W.3d 575, 578 (Tex. 2006). Multiple judgments, final for purposes of appeal, can be rendered on certain discrete issues in probate cases, based on the need to review controlling, intermediate decisions before an error can harm later phases of the proceeding.
Id.
;
Lehmann v. Har-Con Corp
., 39 S.W.3d 191, 192, 195 (Tex. 2001).
9:However, this is unclear to us because Appellant does not explain how
Roach
applies to his facts.
10:If not, then we overrule Appellant’s first point of his first issue under rule 38.1(h).
Tex. R. App. P.
38.1(h) (requiring an appellant’s brief to contain a clear and concise argument for the contentions made with appropriate citations to authorities and the record);
see Tex. Mexican Ry. Co. v. Bouchet
, 963 S.W.2d 52, 54 (Tex. 1998) (stating that an issue is sufficient if it directs the appellate court to the error about which complaint is made).
11:With regard to the funeral expenses in his fifth point to his first issue, Appellant paid these and was entitled to claim reimbursement from Appellee.
See
Tex. Prob. Code Ann.
§§ 320-320A. He did so in the first trial, and the trial court entered judgment on the jury’s verdict on Appellant’s behalf with regard to his reimbursement claim for funeral expenses and monument expense in the sum of $1,227.20, and ordered the estate to pay it. Therefore, even if Appellant had met section 313's requirements, res judicata would have barred this claim.
See Barr v. Resolution Trust Corp.
, 837 S.W.2d 627, 628-29 (Tex. 1992) (stating that res judicata, in its issue preclusion sense, prevents relitigation of particular issues already resolved in a prior suit).
The same reasoning would have also applied to his claims for attorney’s fees and court reporter costs.
See id.
In the first trial, Appellant asserted in his counterclaim that he was entitled “to receive all reasonable and necessary attorney’s fees and costs incurred in the defense and appeal of this action.” Appellant does not claim that he raised attorney’s fees and costs as a potential jury issue or that such an issue was denied. Because he pled it, however, he could have requested it as long as he could demonstrate that he was so entitled.
See
Tex. R. Civ. P
. 278. The trial court’s judgment concluded with the statement, “All relief not expressly granted herein is DENIED,” thereby denying Appellant’s request in his pleadings for jury trial attorney’s fees and costs and for appellate attorney’s fees.
|
755 F.2d 393
Emma Jean HALPHEN, Plaintiff-Appellee,v.JOHNS-MANVILLE SALES CORPORATION, Defendant-Appellant.
No. 82-3388.
United States Court of Appeals,Fifth Circuit.
March 6, 1985.
Strong, Pipkin, Nelson, Parker & Bissell, John G. Bissell, Michael L. Baker, Beaumont, Tex., for defendant-appellant.
Kermit A. Doucet, Lafayette, La., Helm, Pletcher, Hogan & Burrow, Stephen W. Hanks, Houston, Tex., for plaintiff-appellee.
Robert S. Rooth, New Orleans, La., for Owens-Illinois, Inc., amicus curiae.
Appeal from the United States District Court for the Western District of Louisiana.
Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS and HILL, Circuit Judges.
PER CURIAM:
1
In view of the transcending importance of the resolution of the principal issue presented in this diversity case, acting en banc this court determined to certify an inquiry to the Supreme Court of Louisiana pursuant to its Rule XII. Halphen v. Johns-Manville Sales Corporation, 752 F.2d 124 (5th Cir.1985).
2
CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE
3
FIFTH CIRCUIT TO THE SUPREME COURT OF LOUISIANA
4
TO THE HONORABLE, THE SUPREME COURT OF THE STATE OF LOUISIANA AND THE HONORABLE, THE CHIEF JUSTICE AND ASSOCIATE JUSTICES THEREOF:
5
It appears to the United States Court of Appeals for the Fifth Circuit that this case involves a question of Louisiana law for which we find neither clear, dispositive statutory provision nor precedent in the decisions of the Supreme Court of Louisiana. As we earlier concluded, resolution of this issue will affect a large number of people and have a potentially enormous economic impact, Id. at 125.
1. Style of the Case
6
The certified case is Mrs. Emma Jean Halphen, Plaintiff-Appellee, v. Johns-Manville Sales Corporation, Defendant-Appellant, number 82-3388 on the docket of the United States Court of Appeals for the Fifth Circuit, and is an appeal from the United States District Court for the Western District of Louisiana.
2. Stipulated Statement of Facts
7
This is a strict products liability action for damages from wrongful death between Emma Jean Halphen, Plaintiff, and Johns-Manville Sales Corporation, Defendant, which was tried in the United States District Court for the Western District of Louisiana in Lake Charles, in January, 1982.
8
Plaintiff's husband, Samuel Halphen, died during the pendency of the lawsuit from a malignant pleural mesothelioma, a cancer of the lining of the lung. Plaintiff alleged that her husband had been exposed to asbestos-containing products sold by Johns-Manville, while working at a shipyard in Orange, Texas in 1945, and at various times during his career as a serviceman in the Air Force.
9
The jury found that there was a Johns-Manville product involved which was unreasonably dangerous to normal use under Louisiana standards of product liability, and that such exposure was a proximate cause of his death.
10
The District Court ruled prior to trial that a manufacturer is conclusively presumed to know of the dangers in the products it sells, whether or not it has or could have acquired actual knowledge about the product's dangers; and excluded all evidence from both sides of whether Johns-Manville knew or could have reasonably anticipated that the harm sustained could result from exposure to its product.
3. Question Certified
11
In a strict products liability case, may a manufacturer be held liable for injuries caused by an unreasonably dangerous product if the manufacturer establishes that it did not know and reasonably could not have known of the inherent danger posed by its product?
12
In posing this question, we intend no limitation or restriction of the review and consideration of the legal issues presented by the Louisiana Supreme Court, for in light of its understanding and perspective of Louisiana law it might view the essential question differently.
13
The entire record in this case, together with copies of the briefs of the parties, are transmitted herewith.
|
96 F.Supp.2d 184 (2000)
Andrew J. RODOLICO, on behalf of himself and all others similarly situated, Howard K. Benjamin, on behalf of himself and all others similarly situated, Robert G. Bozzone, on behalf of himself and all others similarly situated, Marvin Stall, on behalf of himself and all others similarly situated, Melvyn Rubenstein, on behalf of himself and all others similarly situated, Robert E. Wechsler, on behalf of himself and all others similarly situated, Plaintiffs,
v.
UNISYS CORPORATION, Defendant.
Unisys Corporation, Third-Party Plaintiff,
v.
Engineers Union, Local 444, Third-Party Defendant.
No. CV 95-3653(ADS).
United States District Court, E.D. New York.
May 1, 2000.
*185 Gladstein, Reif & Meginniss, LLP, New York City (Walter M. Meginniss, of Counsel), for the Plaintiffs.
Epstein Becker & Green, P.C., New York City (Dean L. Silverberg, Matthew T. Miklave, Michael A. Kalish, A. Jonathan Trafimow, of Counsel), for the Defendant Unisys.
Eisner & Hubbard, P.C., New York City (K. Dean Hubbard, Jamie Rucker, Sean J. Bolser, of Counsel), for the Third-Party Defendant Local 444.
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
In its August 25, 1999 decision, this Court held that an employer being sued for age discrimination, based partly upon the terms of a Collective Bargaining Agreement and a Performance Planning and Evaluation Program ("PP & E"), may seek contribution under the New York Human Rights Law ("NYHRL") and CPLR 1401 from the union that was a party to those labor agreements. See Rodolico v. Unisys Corp., 189 F.R.D. 245 (E.D.N.Y. 1999). As a result of this decision, pursuant to Rule 14 of the Federal Rules of Civil Procedure ("Fed. R. Civ.P."), the Court granted Unisys' motion for leave to file a third-party complaint against Engineers Union Local 444 ("Local 444" or the "Union") to the extent it seeks contribution under the NYHRL. While the Court noted that timely motions for leave to implead non-parties should be freely granted, and that the third-party complaint was not obviously without merit, the prior decision did leave open the obvious right of the Union to file a motion to dismiss after being served with the third-party complaint.
Presently before the Court is the Union's motion to dismiss the third-party complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the basis that Unisys' state law claim for contribution is preempted by the federal labor law duty of fair representation ("DFR"). This issue was not raised nor examined in the Court's prior opinion granting leave to Unisys to file a third-party complaint. Alternatively, the Union claims that because Unisys' claim against it is arbitrable under the terms of the collective bargaining agreement ("CBA"), the third-party complaint must be stayed pending arbitration.
I. BACKGROUND
The underling facts of the complaint were detailed in the Court's August 25, 1999 decision and will not be repeated here. In short, the plaintiffs allege that Unisys violated the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (the "ADEA"), and the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq. (the "NYHRL") in connection *186 with a reduction in force ("RIF"). The putative plaintiffs, all members of Local 444, allege that Unisys' policies and practices in connection with the RIF, discriminated against older employees in violation of the ADEA and the NYHRL. The plaintiffs' allegations can be summarized as follows:
The layoff discriminated against older employees by disproportionately selecting them for discharge, by discriminatorily implementing a provision in a collective bargaining agreement giving Unisys discretion in selecting employees for lay off, and by using evaluation practices which, as described below, disfavored older workers.
Plaintiffs' Complaint at ¶ 2.
On October 22, 1999, Unisys filed its third-party complaint against the Union. The third-party complaint summarizes the facts set-forth in the plaintiffs' complaint and adds the following:
Plaintiffs make two assertions against Unisys that impact on Unisys' claims against the Union. First, at least one class representative claims that Article 11 discriminated against employees age 40 and older. Second, plaintiffs assert that the RIF reflected a departure from age neutrality. Plaintiffs' claims, therefore, depend on evidence that the PP & E was biased against older workers.
Unisys' Third-Party Complain at ¶ 13. Essentially, in support of its third-party complaint, Unisys argues that the Union's participation in the process leading to the alleged unlawful discrimination, namely, the Union's actions that led to the performance appraisal system and the Union's agreement to a three-tiered, weighted seniority system, makes it appropriate to hold the Union accountable for contribution for its proportionate share of any damages that may ultimately be awarded to the plaintiffs.
II. DISCUSSION
A. Fed.R.Civ.P. 12(b)(6)
On a motion to dismiss for failure to state a claim, the Court should dismiss the complaint pursuant to Rule 12(b)(6) if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 44 (2d Cir.1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 [1957]); see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994). The Second Circuit stated that in deciding a Rule 12(b)(6) motion, "a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Newman & Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir.1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 [2d Cir.1991]); see also International Audiotext Network, Inc. v. AT & T Co., 62 F.3d 69, 72 (2d Cir.1995); Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir.1994).
It is not the Court's function to weigh the evidence that might be presented at a trial; the Court must merely determine whether the complaint itself is legally sufficient, see Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985), and in doing so, it is well settled that the Court must accept the factual allegations of the complaint as true, see Strom v. Goldman, Sachs & Co., 202 F.3d 138, 140 (2d Cir.1999); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991); Proctor & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 (2d Cir.1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d 743 (1990), and construe all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996); LaBounty, 933 F.2d at 123; Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1098 (2d Cir.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989).
*187 The Court is mindful that under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), and that "[a]ll pleadings shall be so construed as to do substantial justice," Fed.R.Civ.P. 8(f).
The issue before the Court on a Rule 12(b)(6) motion "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995), cert. denied, 519 U.S. 808, 117 S.Ct. 50, 136 L.Ed.2d 14 (1996) (quoting Scheuer, 416 U.S. at 236, 94 S.Ct. 1683). Recovery may appear remote and unlikely on the face of the pleading, but that is not the test for dismissal under Rule 12(b)(6). Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995) (quoting Weisman v. LeLandais, 532 F.2d 308, 311 [2d Cir.1976] [per curiam]).
B. The Duty of Fair Representation and Preemption
As previously stated, the Union claims that Unisys' claim for contribution under CPLR 1401 is preempted by the federal duty of fair representation. The duty of fair representation is a judicially created rule established due to the status of labor unions as the exclusive bargaining representative for all employees in a given bargaining unit. See Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir.1985). In DelCostello v. International Broth. of Teamsters, 462 U.S. 151, 164, n. 14, 103 S.Ct. 2281, 76 L.Ed.2d 476, the Supreme Court explained the basis and scope of this duty:
The duty of fair representation exists because it is the policy of the National Labor Relations Act to allow a single labor organization to represent collectively the interests of all employees within a unit, thereby depriving individuals in the unit of the ability to bargain individually or to select a minority union as their representative. In such a system, if individual employees are not to be deprived of all effective means of protecting their own interests, it must be the duty of the representative organization to "serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct."
Id. (quoting Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903 [1967]). In Vaca, the Supreme Court held that a complaint that states a duty of fair representation claim "allege[s] a breach by the Union of a duty grounded in federal statutes and ... federal law therefore governs [the] cause of action." Id. at 177, 87 S.Ct. 903.
In two separate opinions, Judge Lawrence Kahn, United States District Court, Northern District of New York, accurately summarized the duty of fair representation preemption as follows:
As the employees' agent, a union owes each employee the "duty of fair representation," i.e. the duty to act "without hostility or discrimination ... [in] complete good faith and honesty ... to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). State law claims are preempted if they attempt to impose obligations on a union that are subsumed by this duty. See Condon v. Local 2944, United Steelworkers of America, AFL-CIO, 683 F.2d 590, 595 (1st Cir.1982) (state-imposed duties on the union are preempted unless they "arise wholly outside the ambit of those obligations circumscribed by a union's duty of fair representation under the collective bargaining agreement"); Peterson v. Air Line Pilots Ass'n Int'l, 759 F.2d 1161, 1169 (4th Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985) (the preemption inquiry in "DFR" cases is "whether the duty of fair representation claim itself `preempts' the power of the district court to exercise its pendent jurisdiction over related *188 state law claims."); Oliva v. Wine, Liquor and Distillery Workers Union, Local One, 651 F.Supp. 369, 371 (S.D.N.Y. 1987) (fraud claim was "nothing more than recharacterization[ ]" of claim for breach of duty of fair representation (citations and internal quotations omitted)). Thus, if the state claim "creat[es] no new rights for an employee and impos[es] no new duty on a union not already clearly present under existing federal labor law," it is preempted. Welch v. General Motors Corp., Buick Motor Div., 922 F.2d 287, 294 (6th Cir. 1990) (quoting Maynard v. Revere Copper Products, Inc., 773 F.2d 733, 735 (6th Cir.1985)).
Snay v. U.S. Postal Service, 31 F.Supp.2d 92, 99-100 (N.D.N.Y.1998) (dismissing the plaintiff's NYHRL claim against the union as preempted by the duty of fair representation); Sheehan v. U.S. Postal Service, 6 F.Supp.2d 141, 150-51 (N.D.N.Y.1997) (dismissing the plaintiff's state law claim of intentional misrepresentation as preempted by the duty of fair representation); see also BIW Deceived v. Local S6, Indus. Union of Marine and Shipbuilding Workers, 132 F.3d 824, 830 (1st Cir.1997) (holding that "state law is preempted whenever a plaintiff's claim invokes rights derived from a unions duty of fair representation."); Bergeron v. Henderson, 52 F.Supp.2d 149, 154-55 (D.Maine 1999) (dismissing the plaintiff's state law claims of sexual discrimination and harassment as preempted by the duty of fair representation); Hess v. B & B Plastics Div. of Metal Cladding, Inc., 862 F.Supp., 31, 34 (W.D.N.Y.1994) (holding that the plaintiff's NYHRL gender discrimination claim against her union was preempted because "Congress ... intended preemptive coverage of any type of discrimination by a union against its members, at least in the context of the union' duty of fair representation."); Wilhelm v. Sunrise Northeast, Inc., 923 F.Supp. 330, 337 (D.Conn.1995) (dismissing member's state law claim against union for discrimination on the basis of sexual orientation and holding that where state law "creates non new rights for the union member and imposes no new duty on the union not already present under federal labor law," such law is preempted by the DFR).
In its August 25, 1999 decision granting Unisys' motion for leave to file a third-party complaint against the Union, the Court noted that Unisys' contribution claim under the NYHRL was based on a breach of the Union's duty of fair representation. Specifically, the Court stated that "[t]he Union should be accountable for any role it may have had with regard to intentionally aiding in discrimination in the workplacea result that promotes the duty of a union to fairly represent its members. Unions have a duty to act in good faith toward their members and to fight against discrimination that may occur as a result of employment decisions." Rodolico, 189 F.R.D. at 253.
Unisys' contribution claim alleges that the Union participated in the process leading to the alleged unlawful age discrimination against the plaintiffs. Unisys contends that the Union's involvement in the performance appraisal system and the Union's agreement to a three-tiered, weighted seniority system, makes it appropriate to hold them accountable for contribution. Thus, the third-party complaint against the Union is primarily concerned with the Union's activities as the representative of the plaintiffs. In fact, the only acts alleged to have been taken by the union are those that would have been taken in the union's statutory capacity as the exclusive bargaining representative of the putative plaintiffs and thus fall within the scope of the union's duty of fair representation.
The substance of the complaint against the Union is that the Union breached its duty of fair representation by discriminating against its members. As the duty of fair representation unquestionably forbids a union from discriminating against its members in its representative capacity, Vaca, 386 U.S. at 190, 87 S.Ct. 903, the *189 contribution claim under the NYHRL cannot be said to create a new right, and is thus subsumed by the duty of fair representation. Accordingly, Unisys' claim for contribution under the NYHRL is preempted by federal law and must be dismissed.
III. CONCLUSION
Therefore, for the reasons set forth in this opinion, it is hereby
ORDERED, that Unisys' third-party complaint against Local 444 is DISMISSED as preempted by the duty of fair representation; and it is further
ORDERED, that the Union's motion for a stay pending arbitration is DENIED as it is deemed MOOT; and it is further
ORDERED, that the Clerk of the Court shall amend the caption to read as follows:
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
ANDREW J. RODOLICO, on behalf of himself and all others similarly situtated, HOWARD K. BENJAMIN, on behalf of himself and all others similarly situtated, ROBERT G. BOZZONE, on behalf of himself and all others similarly situtated, MARVIN STALL, on behalf of himself and all others similarly situtated, MELVYN Rubenstein, on behalf of himself and all others similarly situtated, ROBERT E. WECHSLER, on behalf of himself and all others similarly situtated,
Plaintiffs,
against
UNISYS CORPORATION,
Defendant.
SO ORDERED.
|
192 Cal.App.3d 967 (1987)
237 Cal. Rptr. 627
CHEMED CORPORATION, Plaintiff and Appellant,
v.
STATE BOARD OF EQUALIZATION, Defendant and Appellant.
Docket No. B023104.
Court of Appeals of California, Second District, Division One.
June 3, 1987.
*968 COUNSEL
Ervin, Cohen & Jessup and Horace N. Freedman for Plaintiff and Appellant.
John K. Van de Kamp, Attorney General, Edmond B. Mamer and Richard E. Nielsen, Deputy Attorneys General, for Defendant and Appellant.
*969 OPINION
LUCAS, J.
Plaintiff Chemed Corporation appeals from a judgment entered in favor of defendant State Board of Equalization (Board) in an action for a refund of sales tax and interest paid under protest. We affirm the judgment and dismiss a cross-appeal by the Board.
BACKGROUND
At a nonjury trial, the written decision of the State Board of Equalization hearing officer was received in evidence and the cause was then submitted upon a stipulation of facts.
Plaintiff Chemed Corporation (Chemed) is a Delaware corporation authorized to do business in California. The audit period involved is July 1, 1977, through June 30, 1980. During this period, Chemed engaged in business in California through four unincorporated divisions: DuBois Chemicals Division (DuBois); Dearborn Chemical Division (Dearborn); Vestal Laboratories Division (Vestal); and Medical Diagnostics Service Division (MDS). DuBois, Dearborn, and Vestal manufactured various products, were engaged in making retail sales in California and elsewhere, and were required to hold a California seller's permit with respect to such activity. Through MDS, Chemed was engaged in the business of providing medical testing services, such as blood sampling, for doctors and various health care institutions. MDS did not hold a California seller's permit.
Chemed through MDS operated testing laboratories in five different regions of the United States. At issue here is the sale of tangible personal property used at the Pacific Region (MDS-Pacific).
On October 12, 1978, Chemed sold all of the assets of the five MDS regions to Metpath Laboratory Corporation (Metpath), a wholly owned subsidiary of Metpath, Inc., a company unrelated to Chemed. Of the $11,086,597 selling price, $304,644 was allocated to the value of tangible personal property (exclusive of automobiles) physically located in California and used at MDS-Pacific. The sale of the tangible personal property was not reported as a taxable transaction for California sales tax purposes.
As a result of auditing Chemed's records, the Board determined a sales tax deficiency as of August 8, 1983, of which $19,801.86 in sales tax and interest thereon were attributed to the sale to Metpath of the tangible personal property used at MDS-Pacific. Chemed paid the assessment, exhausted all its administrative remedies, and then brought an action in the *970 superior court pursuant to Revenue and Taxation Code section 6933[1] to recover sales tax and interest it contends were erroneously assessed.
The trial court held that Chemed's sales of tangible personal property from all of its divisions in the year prior to the sale of MDS tangible personal property to Metpath, when combined with that sale to Metpath, constituted a series of sales sufficient in number, scope, and character to constitute an activity for which Chemed was required to hold a seller's permit, and that the sale of MDS-Pacific equipment was taxable on that basis. Chemed challenges this determination.
DISCUSSION
(1a) It is clear that the transfer by Chemed to Metpath of the tangible personal property used at MDS-Pacific was a sale[2] at retail[3] and that the gross receipts from the sale were subject to the tax imposed by section 6051[4] unless the sale was an occasional sale under sections 6367 and 6006.5.
Section 6367 provides in pertinent part: "There are exempted from the taxes imposed by this part the gross receipts from occasional sales of tangible personal property...."
At the time of the sale in issue, section 6006.5 provided in relevant part: "`Occasional sale' includes: [¶] (a) A sale of property not held or used by a seller in the course of activities for which he is required to hold a seller's permit or permits if the activities were conducted in this state, provided such sale is not one of a series of sales sufficient in number, scope and character to constitute an activity for which he is required to hold a seller's permit or would be required to hold a seller's permit if the activity were conducted in this state...."
Under the enforcement provisions of section 7051, the Board promulgated regulation 1595 (Cal. Admin. Code, tit. 18, § 1595 (regulation)) pertaining *971 to the occasional sales exemption. At the time of the sale in question, this regulation provided in part: "Generally, a person who makes three or more sales for substantial amounts in a period of 12 months is required to hold a seller's permit...." (Reg. 1595, subd. (a)(1).)
On the basis that MDS marketed services rather than products, the Board did not claim that the tangible personal property used at MDS-Pacific and sold to Metpath was property held or used by Chemed in the retail sales of products made by Chemed through MDS. Nor did the Board claim that the property sold was property held or used by Chemed in the retail sales of products which were made by Chemed through its Dubois, Dearborn, or Vestal divisions. Therefore, the first portion[5] of 6006.5, subdivision (a) (hereinafter, 6006.5(a)) is not in issue.
However, the Board asserted and the trial court found, that Chemed was the seller of the MDS-Pacific tangible personal property and therefore all sales within the preceding 12 months of tangible personal property used by any of Chemed's divisions or subdivisions (regions) were includable in determining whether there was a series of sales sufficient in number, scope and character to constitute an activity for which Chemed is required to hold a seller's permit. On this basis, the trial court found that there had been such sales.
In its appeal, Chemed contends that the activities of its MDS division were separate and autonomous from those of its DuBois, Dearborn, and Vestal divisions. Further, Chemed contends that the activities of MDS-Pacific were separate and autonomous from those of the four other MDS regions: Ohio Valley Region; Great Lakes Region; Rocky Mountain Region; and Southwest Region. Based on this characterization of MDS-Pacific, Chemed argues that the sale of the MDS-Pacific tangible personal property was an activity solely of MDS-Pacific and cannot be combined with like sales by the other regions of MDS or by the other divisions of Chemed to create a series of sales under the 6006.5(a) sale, second portion.
First, Chemed argues that an analysis of the language of 6006.5(a) discloses that only sales by the specific entity are to be considered. Again, this section provides in pertinent part: "`Occasional sale' includes: [¶] (a) [first portion] A sale of property not held or used by a seller in the course of *972 activities for which he is required to hold a seller's permit ... [second portion] provided such sale is not one of a series of sales sufficient in number, scope and character to constitute an activity for which he is required to hold a seller's permit...." (Italics supplied.)
Chemed argues that such sale in the second portion can only refer to sale of property in the first portion. This is the plain meaning of the language and a reasonable interpretation which should be followed. (Gaillard v. Natomas Co. (1985) 173 Cal. App.3d 410, 414 [219 Cal. Rptr. 74].) However, Chemed concludes: "It thus follows, that the only sales to be considered in determining whether "such sale' is one of a series of sales sufficient in number, scope and character, are those sales referred to in the first portion of section 6006.5(a)[,] i.e., those sales made by the specific activity involved, here MDS." (Italics supplied.) Chemed further argues that MDS-Pacific was operated as a separate, autonomous region of MDS and therefore the sales of tangible personal property by other MDS regions should not be attributed to MDS-Pacific. Chemed thus equates the activity of selling MDS-Pacific tangible personal property solely with the entity MDS-Pacific. Under this analysis, there was but one sale that of the MDS-Pacific tangible personal property which by definition could not have been one of a series sufficient to impose the tax in issue.
The language of 6006.5(a) does not support Chemed's conclusion. Section 6006.5(a) refers to "seller" without regard to the business structure of the seller. Furthermore, Chemed has stipulated that it was the seller of the MDS-Pacific tangible personal property: "On or about October 12, 1978, Chemed sold all of the assets used at MDS to Metpath Laboratory Corporation...." During the 12 months preceding the sale in issue, Chemed was also the seller of tangible personal property used at the MDS-Ohio Valley Region and used at some of its other divisions. The plain meaning of the language of section 6006.5(a) provides no basis on which to segregate Chemed's sale of the tangible personal property used at MDS-Pacific from like sales of property used at another region and at other divisions.
Chemed contends that two versions of regulation 1595 show that the Board intended to treat service enterprises differently from other businesses and support Chemed's argument that only the sales of the equipment used at MDS-Pacific, an unincorporated subdivision of Chemed, may be looked at to determine whether there was a series of sales.[6] Nowhere in the regulation is there language referring to the business structure of the seller.
*973 Chemed infers support for its position from the Board's apparent sole reliance on sales of equipment used by the MDS Division. Chemed reasons that this shows the Board's understanding that the only transactions to be considered were those of MDS. A reading of the Board's decision discloses that it was aware that among the factors considered by the auditor in ascertaining the tax were that even though MDS was a service division, DuBois, Dearborn, and Vestal were making sales and were required to be "permitized" and that Chemed itself had a permit. The Board determined that MDS Division had made enough sales to be required to hold a seller's permit itself.[7] There was simply no need for the Board to look any further for qualifying sales.
Finally, Chemed cites Ontario Community Foundations, Inc. v. State Bd. of Equalization, supra, 35 Cal.3d 811, in support of its position that the Board should only look to sales by the specific activity to ascertain whether a sale is one of a series. In Ontario, two corporations which had sold their hospitals were assessed sales tax on hospital equipment which had been used in rendering medical and nursing services. Each corporation was involved in other activities requiring a seller's permit, namely, cafeteria sales to nonpatients, and a small, nonexempt portion of their pharmacy and hospital supply sales. The Board based its assessment on a "unitary business" *974 concept embodied in regulation 1595 as it existed at that time. This concept provided that if the seller were engaged in sales which were subject to the tax, its otherwise exempt sales were also taxable. The court held that this regulation was invalid because it eliminated the occasional sales exemption which was otherwise available to the sellers under section 6006.5.
The court noted that the occasional sale exemption of 6006.5 applied to the sellers because at no time was the subject personalty directly or indirectly used by the hospitals in the course of activities for which they were required to hold a seller's permit [first portion of 6006.5(a)], "[n]or was the single sale by each hospital of its equipment and furnishings, in connection with the sale of its entire business and the real property upon which it was located, `one of a series' of such sales which independently might require a permit under the statute [second portion]." (At p. 815; italics supplied.) In discussing the Board's application of regulation 1595 the court stated, "[The Board] would thus read the regulation as being contrary to the apparent import of section 6006.5, thereby depriving each plaintiff of a sales tax exemption for an `occasional sale,' to wit: a sale of personalty not held in the course of activities for which a seller's permit was required, and not one of a series of similar sales which independently might require such a permit." (At pp. 815-816, second italics supplied.) It is clear that the court in Ontario interpreted "one of a series" to be a separate, independent test. This series of sales test of the second portion of 6006.5(a) looks to see if the seller involved has conducted a series of similar sales and whether that series by itself constitutes an activity requiring the holding of a seller's permit.
(2) "Exemptions from taxation must be found in the statute." (Market St. Ry. Co. v. Cal. St. Bd. Equal. (1955) 137 Cal. App.2d 87, 96 [290 P.2d 20].) Section 6006.5 refers to the "seller," and the seller in the case at bar is Chemed. Section 6006.5(a) does not distinguish between a seller and its subdivision at which the equipment was used. Tax exemptions are strictly construed against the taxpayer. (Santa Fe Transp. v. State Board of Equal. (1959) 51 Cal.2d 531, 539 [334 P.2d 907].) "`[I]t is held that "settled principles of statutory construction require that any doubt be resolved against the right to the exemption...." [Citations].'" (Standard Oil Co. v. State Bd. of Equalization (1974) 39 Cal. App.3d 765, 769-770 [114 Cal. Rptr. 571].) (3) "While for reasons considered desirable [a] plaintiff corporation may departmentalize its business, it cannot by such process set up for tax purposes a distinction between the types or kinds of sales made by it where the effect would be to cause some of its sales to escape the tax aimed at all of such sales. Specific sales of a retailer cannot be segregated from the bulk of its sales and treated separately as isolated or occasional sales." (N.W. Pac. R.R. v. St. Bd. of Equalization (1943) 21 Cal.2d 524, 529 [133 P.2d 400].) (1b) We are not persuaded that in determining whether there has *975 been a series of sales which require a seller's permit, and thus result in sales tax liability, the Board is restricted to considering only those sales of equipment used at a particular unincorporated subdivision of the corporate seller.
CROSS-APPEAL
The trial court found that five sales of equipment used at MDS-Ohio Valley Region dated November 1977 constituted a single sale and that another sale was insubstantial. The Board disagrees with this finding and contends that even if the series of sales test were limited to sales of assets used by the MDS Division, the resulting series would be sufficient to deny the occasional sale exemption to the Metpath sale. Given our affirmance of the judgment, we do not reach this issue.
DISPOSITION
The judgment is affirmed and the cross-appeal is dismissed. Costs on appeal are awarded to respondent Board.
Hanson (Thaxton), Acting P.J., and Devich, J., concurred.
The petition of plaintiff and appellant for review by the Supreme Court was denied August 12, 1987. Kaufman, J., was of the opinion that the petition should be granted.
NOTES
[1] All references are to the Revenue and Taxation Code unless otherwise indicated.
[2] "`Sale' means and includes: [¶] (a) Any transfer of title or possession, exchange, or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration...." (Rev. & Tax. Code, § 6006.)
[3] "A `retail sale' or `sale at retail' means a sale for any purpose other than resale in the regular course of business in the form of tangible personal property...." (Rev. & Tax. Code, § 6007.)
"`Retailer' includes: [¶] (a) Every seller who makes any retail sale or sales of tangible personal property...." (Rev. & Tax. Code, § 6015.)
[4] "For the privilege of selling tangible personal property at retail a tax is hereby imposed upon all retailers at the rate of... 4 3/4 percent [after Mar. 31, 1974]." (Rev. & Tax. Code, § 6051.)
[5] In discussing section 6006.5(a), we adopt the "first portion" and "second portion" terminology of the parties as follows: "`Occasional sale' includes: (a) [First portion:] A sale of property not held or used by a seller in the course of activities for which he is required to hold a seller's permit ..., [second portion:] provided such sale is not one of a series of sales sufficient in number, scope and character to constitute an activity for which he is required to hold a seller's permit...."
[6] At the time of the sale to Metpath, regulation 1595 set out examples of sales which would result in the seller being required to hold a seller's permit and thus the sales thereunder being taxed. Subdivision (d) provided: "Service Enterprises. A person engaged in a service enterprise is not liable for sales tax measured by his receipts from a retail sale of equipment used in the conduct of the service enterprise even though he may have made a series of trade-ins of old equipment for new, incidental to his business. The sale of the equipment in question is not regarded as one of a series of sales, or the equipment as having been used in a selling activity, and thus the sale is an occasional sale. [¶] If, however, in addition to the sale in question, the person has made two or more sales of substantial amounts in a period of 12 months, the sale is taxable even though the other sales were sales for resale."
The language presently in effect regarding the example of a service enterprise is found in regulation 1595, subdivision (a)(5)(A): "1. Operators of service enterprises such as hospitals, hotels, theaters, schools, laundromats, car washes, transportation companies, and trucking companies may make some sales incidental to their primary service business. A hospital may operate a pharmacy and cafeteria as an adjunct to the hospital. A hotel may operate a restaurant and a bar. A theater may sell popcorn to patrons. A school may operate a cafeteria and bookstore. A laundromat may sell soap to its customers. [¶] If any of these businesses were sold, tax would apply only to the gross receipts from the tangible personal property held or used in the selling activity. [¶] 2. If, in any 12 month period, the operator of the service enterprise makes more than two sales in substantial amounts of tangible personal property used in the service enterprise, the gross receipts from those sales is [sic] subject to tax, unless otherwise exempt (such as a sale in interstate commerce). If one of the sales is a sale of the business, the tax applies to the gross receipts from the sale of the tangible personal property. In determining whether there are more than two sales of tangible personal property, trade-ins of used equipment for new, incidental to the service enterprise, will not be counted."
There is no indication that the examples given in either version are of service enterprises which are part of a larger, nonservice entity.
[7] The Board also determined that even if the MDS Division had not made enough sales to require it to hold a seller's permit, under the "unitary business" concept of regulation 1595 there was a sufficient number of sales to require MDS to hold a seller's permit. The unitary business concept was disallowed in Ontario Community Foundations, Inc. v. State Bd. of Equalization (1984) 35 Cal.3d 811 [201 Cal. Rptr. 165, 678 P.2d 378].
|
FILED
NOT FOR PUBLICATION DEC 23 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MUHAMMAD AZIZ KHAN RAZA, No. 05-77190
Petitioner, Agency No. A095-610-592
v.
MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2009
San Francisco, California
Before: COWEN, ** GRABER, and BYBEE, Circuit Judges.
Petitioner Muhammad Aziz Khan Raza petitions for review of the Board of
Immigration Appeals’ ("BIA") order denying his applications for asylum,
withholding of removal, and protection under the Convention Against Torture.
The BIA held that Petitioner failed to establish "extraordinary circumstances"
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
excusing his late filing of an asylum application. The BIA also affirmed the
immigration judge’s ("IJ") adverse credibility determination. Because the BIA
generally adopted the IJ’s conclusions and added its own comments, we review
both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005). For the
reasons stated below, we grant the petition and remand for further proceedings on
an open record.
1. As the government now concedes, we have jurisdiction over the BIA’s
"extraordinary circumstances" determination on undisputed underlying facts.
Husyev v. Mukasey, 528 F.3d 1172, 1177-81 (9th Cir. 2008).
Petitioner argued that he established "extraordinary circumstances," because
he received ineffective assistance of counsel. See 8 C.F.R. § 208.4(a)(5)(iii)
(recognizing "ineffective assistance of counsel" as one "extraordinary
circumstance" and setting forth the requirements); see also Toj-Culpatan v. Holder,
No. 05-72179, 2009 WL 4256449, at *2 (9th Cir. Dec. 1, 2009) (per curiam)
(noting that, according to the regulation, one example satisfying "extraordinary
circumstances" is "ineffective assistance of counsel" and noting that the petitioner
in that case does not claim ineffective assistance of counsel). Although the BIA
held that Petitioner should have pursued asylum within one year, the BIA failed to
respond to Petitioner’s argument that he consulted a lawyer (who is now
2
incarcerated, in part for his sham representation) within one year and that a
competent lawyer would have pursued an application for asylum. We therefore
remand for further consideration. See, e.g., Nevarez Nevarez v. Holder, 572 F.3d
605, 608 (9th Cir. 2009) ("Because the BIA did not adequately consider or explain
its conclusion regarding this legal question, we return that issue to it for further
review.").
2. We hold that the IJ’s adverse credibility determination is not supported
by substantial evidence. See Li v. Holder, 559 F.3d 1096, 1102 (9th Cir. 2009)
(stating the standard of review). In some instances, Petitioner was not given an
opportunity to explain the inconsistency; in others, the inconsistencies identified by
the IJ and BIA are non-existent, rely on indiscernible testimony, or rest on
speculation. See Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999)
("[T]he BIA must provide a petitioner with a reasonable opportunity to offer an
explanation of any perceived inconsistencies that form the basis of a denial of
asylum."); Quan v. Gonzales, 428 F.3d 883, 886 (9th Cir. 2005) (holding that an
adverse credibility determination must be supported by a "true inconsistency");
Singh v. Ashcroft, 367 F.3d 1139, 1143-44 (9th Cir. 2004) (noting that
indiscernible testimony can make a difference in a hearing’s outcome); Shah v.
3
INS, 220 F.3d 1062, 1071 (9th Cir. 2000) ("Speculation and conjecture cannot
form the basis of an adverse credibility finding . . . .").
3. Because it is not "apparent from the record" that Petitioner is entitled to
relief, we remand to the agency on an open record. Soto-Olarte v. Holder, 555
F.3d 1089, 1095 (9th Cir. 2009).
Petition GRANTED. Case REMANDED for further proceedings.
4
|
215 B.R. 52 (1997)
In re Alfredo V. CARLOS & Leticia Carlos, Debtors.
Bankruptcy No. LA 97-31026 SB.
United States Bankruptcy Court, C.D. California.
October 28, 1997.
*53 *54 David S. Brower, Leibowitz & Constantino, A Professional Corporation, Santa Ana, CA, for Sears, Roebuck and Co.
Duke Salisbury, Los Angeles, CA, Trustee.
Heide Kurtz, San Pedro, CA, Trustee.
FIRST AMENDED OPINION ON MOTION BY SEARS TO WITHDRAW MOTION FOR APPROVAL OF REAFFIRMATION AGREEMENT AND ON VALIDITY OF SEARS SECURITY INTEREST
SAMUEL L. BUFFORD, Bankruptcy Judge.
I. INTRODUCTION
The underlying motion, brought by Sears, Roebuck & Co. ("Sears") for approval of a reaffirmation between it and the debtors, raises three issues. The first issue is whether Sears has a valid security interest in the washing machine, television and VCR at issue in the reaffirmation agreement, to support the reaffirmation agreement. The second issue is whether Sears has standing to withdraw the approval motion, as it has purported to do in this case. The third issue is whether Sears has standing to make the motion to approve the reaffirmation agreement in the first place.
Sears has shown no evidence of a security interest in the goods at issue, apart from a statement on the charge slip signed by the debtor when the goods were purchased. The court finds that this is insufficient to create a valid security interest under California law. The court further holds that Sears lacks standing to withdraw a reaffirmation agreement. Accordingly, the court has proceeded *55 to take testimony from the debtors, and to disapprove the reaffirmation agreement. Finally, the court has issued an order to Sears to show cause whether it has standing to move for the approval of the reaffirmation agreement in the first instance.
II. RELEVANT FACTS
The Sears motion for approval of the reaffirmation agreement contains an "introduction" of a page and a half, that alleges that the purpose of the reaffirmation agreement is to permit the debtors to keep a washer, television and VCR in which Sears purports to hold a purchase money security interest. The introduction further states that debtors used their Sears charge card to purchase a washing machine for $449.99[1] on the day after Thanksgiving in 1995, and a 19-inch television and a VCR for $499.76[2] on March 17, 1997. The debtors filed their bankruptcy case on June 2, 1997.
The introduction also states that debtors had an account balance of $207.04 when they purchased the washing machine, that thereafter they made payments totaling $320.00, and that they had a balance of $1,646.05 when they filed their bankruptcy case. The motion discloses no information on how Sears applied the payments, and does not disclose the interest rate charged on the outstanding balances. The introduction states that the debtors made other undisclosed charges on their card for "non-durable goods," presumably after the washing machine purchase. The motion further states that the debtors "pledged a security interest in the purchased merchandise," documented by the attached sales tickets.
The debtors still posses the goods here at issue and want to keep them. The motion states (not surprisingly) that the debtors are unable to make a lump sum payment to redeem the goods.
The evidence that Sears has presented in support of the reaffirmation consists in a one-page document entitled "REAFFIRMATION AGREEMENT SECURED", which Sears filed with its motion to approve the agreement, and copies of two charge slips.
Sears claims a valid security interest in the merchandise here at issue. The only evidence that Sears has submitted in support of this claim is a statement at the bottom of each of the sales slips which says, "PURCHASED UNDER MY SEARSCHARGE AGREEMENT, INCORPORATED BY REFERENCE, I GRANT SEARS A SECURITY INTEREST IN THIS MERCHANDISE UNTIL PAID, UNLESS PROHIBITED BY LAW" (capitalized in original). Sears has not provided any evidence of the Searscharge agreement.
The debtors attended the meeting of creditors required by Bankruptcy Code § 341(a). According to their testimony, in the meeting room they were approached by Lynn Castro, who claimed that she was a lawyer[3] representing Sears. Ms. Castro told the debtors that they would have to accept a reaffirmation agreement[4] providing for the payment of $780 in installments of $19 per month to keep the washing machine, television and VCR. Alfredo Carlos signed the reaffirmation *56 agreement, but Leticia Carlos did not sign it.
Although Sears has provided no accounting with respect to the charge account, it alleges that it has followed the first-in, first-out payment recording system, as required by California law, CAL.CIV.CODE § 1810.6 (West 1997), and that the payments have been insufficient to discharge its alleged security interest in the items at issue.
The debtors' schedules disclose that Mrs. Carlos has a monthly income of $780 after deductions, and that Mr. Carlos is unemployed. Their extremely lean monthly budget totals $1901, including a mortgage payment of $1008. They cannot afford a reaffirmation agreement with Sears: indeed, their monthly net income is insufficient to make even their mortgage payment alone. Their debts, apart from their house, include seven charge accounts, totaling some $20,000, and a $21,000 debt to General Motors on a returned vehicle. The Sears debt is one of the smaller charge account debts.
Sears failed to appear at the reaffirmation hearing. Instead, it filed a document entitled, "Notice of Withdrawal of Motion for Approval of Reaffirmation Agreement." Both of the debtors appeared and testified.
III. LEGAL ANALYSIS
This is a core proceeding under the Bankruptcy Code, as defined in 28 U.S.C.A. § 157(b)(2)(O) (West 1993).
Sears sells a wide variety of goods in its stores, including clothing, tools, machines, hardware, tires, plants and gardening supplies, furniture and eyeglasses. Like most Sears reaffirmation agreements that have come before this court, the agreement here at issue involves only durable goods.
A. Validity of Security Interest
The only evidence that Sears has submitted of its alleged security interest is the language in its charge slips for the goods here at issue. Because Sears failed to attend the hearing on the reaffirmation agreement, it has defaulted in presenting any further evidence on this subject in this case.
In this case, the court must determine whether this evidence alone is sufficient to establish a valid security interest under California law. If the evidence is sufficient, the court must give serious consideration to the reaffirmation agreement, because Sears' security interest would otherwise ride through the bankruptcy and would be enforceable after the case is finished.[5] In that event, it may be in the debtors' best interest to arrange a reaffirmation deal with Sears so that the debtors can keep the property at issue. On the other hand, if Sears has no valid security interest in the property, the court cannot make the finding required by Bankruptcy Code § 524(c)(6) that the reaffirmation is in the best interest of the debtor.
Like all other property interests, the nature, validity and perfection of security interests are created and defined by state law. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). Because the transactions here at issue occurred in California, between California residents and a business establishment in California, California law governs the security interests here at issue, apart from bankruptcy law. See, e.g., CAL.CIV.CODE § 1802.19 (West 1997) ("For the purposes of [the Unruh Act], a retail installment contract, contract, retail installment account, installment account, or revolving account shall be deemed to have been made in this state and, therefore, subject to the provisions of this [Act], if either the seller offers or agrees in this state to sell to a buyer who is a resident of this state or if such buyer accepts or makes the offer in this state to buy, regardless of the situs of the contract as specified therein.")
Unless bankruptcy law provides differently,[6] a property interest is not analyzed *57 differently simply because one party is in bankruptcy. Butner, 440 U.S. at 55, 99 S.Ct. at 918; Simon v. Chrysler Credit Corp. (In re Babaeian Transp. Co.), 206 B.R. 536, 541 (Bankr.C.D.Cal.1997). In this case it does not appear that the bankruptcy law alters any rights of Sears as a secured creditor with respect to the durable goods at issue. Thus we turn to California law to determine whether Sears has a valid security interest in this property.
1. California Civil Code Requirements
We turn first to the California Civil Code requirements for a valid security interest resulting from a consumer credit transaction. See CALIFORNIA CIVIL CODE §§ 1799.90-1812.10 (West 1997). This portion of the California Civil Code contains the California retail installment sales legislation. The purpose of such legislation is to protect retail buyers of goods from unknowingly assuming excessive charges by requiring that all charges and terms be set forth by a retail seller before a contract is signed by the buyer. See, e.g., Sears, Roebuck & Co. v. Oszajca (In re Oszajca), 207 B.R. 41, 44 (2d Cir. BAP 1997).
a. Unruh Act
The Unruh Act, enacted by the California legislature in 1959, applies to the sale of goods or furnishing of services by a retail seller[7] to a retail buyer[8] for a deferred payment price payable in installments. Id. § 1802.5.
The Act divides retail installment sales into two categories: sales pursuant to "retail installment contracts," and sales pursuant to "retail installment accounts." Generally, a retail installment account,[9] generally known as "open end credit," is a revolving account providing for interest calculated on the periodic outstanding balance. Credit cards are now the most common form of such accounts.
In contrast, a retail installment contract,[10] generally known as "closed end credit," is a credit contract for a single purchase of a specific list of items. See generally Oszajca, 207 B.R. at 47. The court assumes that the Sears charge card account at issue in this case qualifies as a retail installment account under California law.[11]
i. Retail Installment Accounts
Section 1810.1 specifies the disclosures that are required before the first transaction is made in a retail installment account. The creditor must disclose the conditions under which a finance charge may be imposed (including the time period within which a bill may be paid without incurring a finance *58 charge); the method of determining the balance upon which a finance charge may be made; the method of determining the finance charge (including disclosure of any minimum finance charge); the conditions under which any other charges may be imposed and the method by which such charges are determined; and the minimum periodic payment required. Id.
As an alternative to section 1810.1, the California Civil Code permits that the disclosures be made:
in any manner, method, or terminology required or permitted under Regulation Z [promulgated by the Board of Governors of the Federal Reserve Board], as in effect at the time that such disclosure is made. . . .
CAL.CIV.CODE § 1801.5 (West 1997). Section 1801.5 permits a creditor to alter the format (the "manner, method or terminology") for providing the required information, by permitting the creditor to use the Regulation Z format instead of that mandated in the California Civil Code. See Regulation Z, 12 C.F.R. § 226 (1997) ("Regulation Z"). This procedure is adopted because, in addition to meeting the Unruh Act disclosure requirements, a California retail installment lender normally must make the disclosures required by Regulation Z, and in the format prescribed therein.
However, section 1801.5 does not excuse a creditor from making the substantive disclosures required by California law. For installment charge accounts, the substantive disclosures are specified in section 1810.1. Furthermore, section 1801.5 does not alter the consequences under California law if the required disclosures are not made.
Regulation Z does not alter the disclosure requirements of section 1810.1. For credit cards, Regulation Z does preempt state disclosure requirements at the time of solicitation or application, and at the time of renewal of a credit card. 12 C.F.R. § 226.28(d) (1997). In contrast, Regulation Z preempts state disclosure requirements applicable to the credit card agreement only to the extent that state requirements are inconsistent with Regulation Z. See id. §§ 226.28, 226.6.
Furthermore, Regulation Z has its own set of disclosures that Sears must also make. The required disclosures at the time of the solicitation or application include the annual percentage rate, any annual or other periodic fees, any minimum or fixed finance charge, any transaction charges, the grace period before finance charges are imposed, the balance computation method, any cash advance fee, any late payment fee, and any over-the-limit fee. 12 C.F.R. § 226.5a(b) (1997); see also 15 U.S.C.A. § 1637 (West 1982 & Supp. 1997). In addition, Regulation Z requires disclosures in an initial disclosure statement that include details on the finance charge and other charges, security interests and a statement of billing rights. 12 C.F.R. § 226.6 (1997).
ii. Security Interests Retail Installment Account Purchases
Section 1810.1(f) specifies the conditions under which a creditor may obtain a security interest to secure payment of charges on a charge account. It requires disclosure, before the first transaction on the card is made, of:
[t]he conditions under which the creditor may retain or acquire any security interest in any property to secure the payment of any credit extended on the account, and a description or identification of the type of the interest or interests [to be taken].
CAL.CIV.CODE § 1810.1(f) (West 1997).
This provision is unusual for retail installment sales legislation. Typically such legislation makes no provision for security interests in consumer goods purchased under a retail installment agreement. See Sears, Roebuck & Co. v. Oszajca (In re Oszajca), 207 B.R. 41, 45-46 (2d Cir. BAP 1997), and cases and statutes cited therein. In states with such statutes, the validity of such a security interest is determined under that state's version of the Uniform Commercial Code. See e.g., id.; Carter v. W.S. Badcock Corp. (In re Carter), 180 B.R. 321, 324 (Bankr.M.D.Ga.1995); In re Wiegert, 145 B.R. 621, 622-23 (Bankr.D.Neb.1991); In re Hardage, 99 B.R. 738, 740-41 (Bankr. N.D.Tex.1989). In contrast, California has specific statutory provisions governing security interests in goods subject to retail charge agreements.
The charge slips in this case make none of the disclosures mandated by section 1810.1 or by Regulation Z, and they fail to make them at the time required. Most notably for this case, the charge slips make no disclosures meeting the requirements of section *59 1810.1(f) for taking a security interest. The consequences of the failure to make the disclosures required by section 1810.1(f) are specified in section 1799.100 of the California Civil Code.[12]
b. Section 1799.100
California Civil Code § 1799.100 imposes specific requirements for taking a security interest in any goods (as defined in the California version of the Uniform Commercial Code § 9-105(h)) "used or bought for use primarily for personal family or household purposes. . . ." CAL.CIV.CODE § 1799.100(d)(1) (West 1997).[13] Section 1799.100 is limited to items with a fair market value of less than $1000 each at the time that the security interest is created. Id.[14]
The substantive requirements of section 1799.100 are as follows:
An agreement or other document creating a non-possessory security interest . . . shall contain a statement of description reviewed and signed by the consumer indicating each specific item of the personal property in which the security interest is taken.
Id. § 1799.100(b) (West 1997).[15] Subsection (c) further provides that such a security interest may only be enforced by judicial action, unless the property is abandoned or freely and voluntarily surrendered by the consumer. Id. § 1799.100(c) (West 1997). Self-help repossession is prohibited by this subsection. Demand for the turnover of the property is also prohibited.
Section 1799.100(b) provides an alternative method for compliance with the disclosure requirements. If the security interest arises from a consumer credit contract subject to the Unruh Act (CAL.CIV.CODE §§ 1801-1812.20), compliance with section 1803.3(a) or section 1810.1(f) is sufficient instead of meeting the requirements of section 1799.100(b). Id.
Subsection (e) specifies the consequences of violating the substantive provisions of section 1799.100: "Any security interest taken in violation of either subdivision (a) or (b) is void and unenforceable." Id. § 1799.100(e). In addition, subsection (f) authorizes any person injured by a violation of section 1799.100 to bring a civil action for the recovery of damages, equitable relief and attorney's fees and costs. Id. § 1799.100(f).
Section 1799.100(e) thus dictates that Sears has shown no valid security interest in the property giving rise to the reaffirmation agreement. The court concludes that Sears lacks any security interest in the goods at issue.
2. California Commercial Code
In general, the validity of a security interest in goods is determined under California law by reference to Division 9 of the California Commercial Code, which is California's version of Article 9 of the Uniform Commercial Code. For a valid security interest in consumer goods, Sears must meet these requirements in addition to those set forth in the California Civil Code. Sears has the burden of proof to show that it has a valid security interest.
Under both the Uniform Commercial Code and the California version thereof, a valid security interest in personal property requires that (1) either (a) the debtor has signed a security agreement which contains a description of the collateral, or (b) the secured party has possession of the property pursuant to agreement, (2) value has been given, and (3) the debtor has rights in the collateral. CAL.COM.CODE § 9203 (West 1997). A description of collateral is sufficient if it reasonably identifies the collateral. *60 Greyhound Real Estate Finance Co. v. Official Unsecured Creditors' Committee (In re Northview Corp.), 130 B.R. 543, 546 (9th Cir. BAP 1991).
In this case there is no question that the second and third elements are satisfied.[16] In addition, the charge slips are sufficient as signed security agreements.
The main issue governing the validity of Sears' security interest in this case is whether the charge slip contains an adequate description of the collateral. Only one of the sales slips is adequate in this respect. The first, dated 11/24/95, involves merchandise described as "Washer, W." The second involves merchandise described as "TV F19240G"[17] and "VCR, HRVP63".
Collateral must be described in one of two ways by type or by item. First City Bank v. Webb Co. (In re Softalk Pub. Co.), 64 B.R. 523, 525 (9th Cir. BAP 1986). The sufficiency of a description of collateral turns on whether the description adequately describes the type of assets or the individual items. See In re Bradel, Bankr. No. 89 A. 1027, 1990 WL 86714 (Bankr.N.D.Ill.1990), at *4.
A description of assets by type is sufficient if it reasonably identifies what is described. Greyhound Real Estate Fin. Co. v. Official Unsecured Creditors' Committee (In re Northview Corp.), 130 B.R. 543 (9th Cir. BAP 1991). Such a description is sufficient if the collateral is exclusively used for the described purpose or can only be classified as the type of collateral described. Bradel, at *4.
Individual items are sufficiently specified if the description meets a two-part test. First, if the collateral is such that the debtor may own other similar items (regardless of whether the debtor in fact has more than one), the description must enable a third party to distinguish the collateral from other property. Id. Alternatively, if the debtor is not likely to own more than one such item, a more general description is sufficient. Id.
The court adopts a community standard in determining whether a debtor may own other similar items to those listed on a charge slip. For consumer purchases, a person is likely to own more than one item of a particular type (such as a refrigerator, a baseball glove or a pair of socks) if an ordinary consumer in the community would have more than one item of this type. While the debtors in this case may be in an economic status where multiple ownership of such goods is unlikely, the court has been provided no evidence on this issue. Furthermore, the court finds it impractical to discriminate between economic classes on this issue: there should be single rule applicable to all debtors, absent unusual circumstances.
In this case, the court finds that a debtor in the Central District of California is only likely to own one washing machine. Thus the description on the Sears charge slip is sufficient for California Commercial Code purposes to create a valid security interest in the washing machine.
On the other hand, many families in the Central District of California have more than one television or VCR. The court finds *61 that the descriptions in the charge slips for the television and the VCR are insufficient for California Commercial Code purposes to create a security interest in these items.
B. Withdrawal of Reaffirmation Agreement
Sears has filed a paper that purports to withdraw the reaffirmation agreement in this case. The court finds that Sears lacks standing to withdraw the reaffirmation.
1. Statutory Requirements for a Valid Reaffirmation Agreement
A valid reaffirmation agreement must be made and filed with the court before the granting of a discharge. Bankruptcy Code § 524(c)(3), 11 U.S.C.A. § 524(c)(3) (West 1994 & Supp.1997). The debtor may rescind the agreement any time up to sixty days after the agreement is filed in court or until the discharge is granted, whichever date is later. Id. § 524(c)(4).
If a debtor is not represented by counsel during the course of negotiating the reaffirmation agreement, the court must approve the agreement. Id. § 524(c)(6). In making the determination whether to approve the agreement, the court must find that the agreement does not impose an undue hardship on the debtor or a dependent of the debtor, and that the agreement is in the debtor's best interest. Id.
For this purpose, the court must hold a hearing, at which the debtor must appear in person, where the court is required to inform the debtor (1) that such an agreement is not required by bankruptcy law, nonbankruptcy law or any reaffirmation agreement, and (2) of the legal effect and consequences of the agreement and of any default thereunder. Id. § 524(d)(1). In addition, at the hearing the court must determine whether the agreement meets the section 524(c)(6) requirements of no undue hardship and the debtor's best interest. Id. § 524(d)(2).
Case law is uniform in holding that only the debtor may seek bankruptcy court approval of a reaffirmation agreement. McClellan Federal Credit Union v. Parker (In re Parker), 193 B.R. 525, 527-528 (9th Cir. BAP 1996); 801 Credit Union v. Heller (In re Heller), 123 B.R. 782, 783 (Bankr. S.D.Ohio 1991); In re Eccleston, 70 B.R. 210, 213 (Bankr.N.D.N.Y.1986); In re Farmer, 13 B.R. 319, 320 (Bankr.M.D.Fla.1981); In re Newsome, 3 B.R. 626, 628 (Bankr.W.D.Va. 1980).[18] The major bankruptcy law treatises are in accord. See 4 COLLIER ON BANKRUPTCY, ¶ 524.04 (15th ed.1997); 3 NORTON BANKRUPTCY LAW AND PRACTICE, § 48:11 (2d ed.1994).
Parker, which is binding precedent on this court,[19] is instructive on this point. The Ninth Circuit Bankruptcy Appellate Panel ("BAP") held that a creditor that is a beneficiary of a reaffirmation agreement (as to both a secured debt and an unsecured debt) has no standing to appeal the bankruptcy court's disapproval of the reaffirmation. The Ninth Circuit BAP found that the creditor had no right to payment of the unsecured debt, because it was otherwise dischargeable. The creditor retained its collateral for the secured debt, the BAP found, and it was not entitled to anything more. The BAP found that the creditor suffered no adverse pecuniary effect from the disapproval of the reaffirmation. The BAP could find this only on the grounds that a creditor has no pecuniary interest in a reaffirmation in the first instance. It follows that a creditor lacks *62 standing in the bankruptcy court as well to bring a motion to approve a reaffirmation agreement, or to withdraw such an agreement from court consideration.
Furthermore, Rule 4008 of the Federal Rules of Bankruptcy Procedure authorizes only "[a] motion by a debtor for approval of a reaffirmation agreement. . . ." This procedure is reflected in Official Form No. B 240, the official form for a reaffirmation agreement. Where a debtor is not represented by counsel, the form provides a motion for court approval of such an agreement. The motion must be made and signed by the debtor only: no provision is made for such a motion by a creditor.
Congress was particularly concerned with reaffirmation practice in enacting the Bankruptcy Code. The House Report states:
[U]nsuspecting debtors are led into binding reaffirmations [under the Bankruptcy Act], and the beneficial effects of a bankruptcy discharge are undone. The advantages sophisticated and experienced creditors have over unsophisticated debtors in this area . . . still remain [despite amendments enacted in 1970]. The unequal bargaining position of debtors and creditors, and the creditors' superior experience in bankruptcy matters still lead to reaffirmations too frequently. To the extent that reaffirmations are enforceable, the fresh start goal of the bankruptcy laws is impaired.
H.R.Rep. No. 95-595, at 163, reprinted in 1978 U.S.C.C.A.N. 5963, 6124. It appears to the court that the creditor misconduct respecting reaffirmation agreements that Congress tried to banish in 1978[20] has returned.
A typical purpose of an allowable reaffirmation agreement is to permit a debtor to retain collateral that is subject to a valid security agreement. See, e.g., COLLIER ON BANKRUPTCY ¶ 524.04 (Lawrence P. King ed., 15th ed.1997).
The reaffirmation of a debt subject to a valid, nonavoidable security interest has a tangible benefit for a debtor. Absent reaffirmation, a security interest survives bankruptcy. Dewsnup v. Timm, 502 U.S. 410, 419, 112 S.Ct. 773, 779, 116 L.Ed.2d 903 (1992) (quoting H.R.REP. No. 95-595, at 357 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6313 ("Subsection (d) permits liens to pass through the bankruptcy case unaffected")); Long v. Bullard, 117 U.S. 617, 6 S.Ct. 917, 29 L.Ed. 1004 (1886). Such a security interest would thus be enforceable by the secured creditor after the case is completed (and the automatic stay terminated). A reaffirmation agreement permits the debtor and the secured creditor to adjust their post-bankruptcy relationship as to this security interest. In contrast, the financial best interest of a debtor ordinarily requires the denial of a reaffirmation of an unsecured debt. 3 WILLIAM L. NORTON, JR., NORTON BANKRUPTCY LAW AND PRACTICE § 48.11 (2d ed. 1994).
Sears has shown no valid security interest in the goods here at issue. Furthermore, the debtors cannot afford the payments that the reaffirmation agreement would require. In consequence, the court cannot make the findings required to approve the reaffirmation agreement in this case.
2. Standing to Withdraw Reaffirmation Agreement
A debtor has the exclusive right to rescind a reaffirmation agreement. In effect, a reaffirmation is a gift to a creditor, in the form of a contract to pay a debt that otherwise would be discharged in bankruptcy. Whether to make such a gift is a decision belonging solely to the debtor, subject to approval of the court if the debtor is not represented by counsel during the reaffirmation negotiations.
A decision not to proceed with a reaffirmation agreement must belong exclusively to the debtor. The debtor must make the motion to obtain the required court approval. The debtor must decide whether to rescind the agreement.
*63 If a reaffirmation is approved by the court, the creditor has a new binding contract with the debtor that the creditor may enforce in a court of competent jurisdiction. In contrast, if the agreement is not approved by the court, the debt is discharged, and is totally unenforceable thereafter.[21]
The court holds that a creditor has no standing to withdraw a reaffirmation agreement that has been submitted to the court for approval. The debtor has the exclusive right to determine whether to proceed with a request for court approval, and whether to rescind the agreement within the applicable time limit.
IV. CONCLUSION
The court finds that the charge slips, that Sears has presented as its sole evidence that it has a security interest in the goods that the debtors purchased, are insufficient to create a security interest in the goods under applicable California law. The California Civil Code provisions applicable to consumer credit transactions invalidate such a security interest, where the required disclosures have not been made at all, or have not been made in a timely fashion. Sears has not shown that the required disclosures were made at all. Thus the court must conclude that the Sears debt is unsecured. In addition, only the charge slip for the washing machine meets the California Commercial Code requirement of an adequate description of the collateral.
An unsecured debt may be reaffirmed only under unusual circumstances. Neither the debtors nor Sears has shown any. Thus the reaffirmation agreement must be disapproved.
The court further finds that Sears lacks standing to withdraw the reaffirmation agreement here at issue, because only the debtor has such standing. It is the debtor who is entitled to reaffirm a debt, and the debtor controls whether to give a reaffirmation in the first place, whether to make a motion for its approval, whether to rescind the reaffirmation, and whether to withdraw a motion for its approval.
NOTES
[1] In addition to the $449.99 charge for the washing machine, the sales slip shows a $99.99 charge for a three-year extended warranty, a $35.00 delivery charge, and tax of $37.12, for a total of $622.10. Apparently Sears is not seeking the reaffirmation of the debt arising from these charges.
[2] The sales slip shows a charge of $229.99 for the television, less a sale credit of $10.11, plus $59.99 for a three-year extended warranty. For the VCR, it shows a charge of $279.88, plus $79.99 for a three-year extended warranty. The sales tax totaled $41.23. As with the washing machine, Sears apparently is seeking a reaffirmation only of the base price for the VCR and the television set.
[3] A check with the California State Bar discloses that there is no attorney licensed to practice law in California named Lynn Castro. Similarly, no such person is admitted to practice before this court.
[4] The reaffirmation agreement is not on Official Form 250, and contains many deficiencies that prevent its approval, in the view of the court. However, the sufficiency of the agreement is not at issue in the matter before the court. The court has issued to Sears an order to show cause to address this issue.
[5] The bankruptcy discharge terminates any personal liability of the debtor for the secured debt. After the end of the bankruptcy case and the termination of the automatic stay, the secured creditor's remedy is limited to going to state court to foreclose on the property. Mayton v. Sears, Roebuck & Co. (In re Mayton), 208 B.R. 61, 66 (9th Cir.BAP 1997).
[6] The constitutional authority of Congress to establish "uniform Laws on the subject of Bankruptcies throughout the United States" includes the power to make certain changes in the rights of secured creditors. Butner, 440 U.S. at 54, 99 S.Ct. at 917; Wright v. Vinton Branch, 300 U.S. 440, 470, 57 S.Ct. 556, 565, 81 L.Ed. 736 (1937); Wright v. Union Central Ins. Co., 304 U.S. 502, 515, 58 S.Ct. 1025, 1032-33, 82 L.Ed. 1490 (1938).
[7] A retail seller is defined as a person engaged in the business of selling goods or furnishing service to retail buyers. Id. § 1802.3.
[8] A retail buyer is defined as a person who buys goods or obtains services from a retail seller in a retail installment sale and not principally for the purpose of resale. Id. § 1802.4.
[9] A retail installment account is defined as follows:
[a]n account established by an agreement entered into in this state, pursuant to which the buyer promises to pay, in installments, to a retail seller, his outstanding balance incurred in retail installment sales, whether or not a security interest in the goods sold is retained by the seller, and which provides for a finance charge which is expressed as a percent of the periodic balances to accrue thereafter providing such charge is not capitalized or stated as a dollar amount in such agreement.
Id. § 1802.7.
[10] A retail installment contract is defined, in relevant part, as:
[A]ny contract for a retail installment sale between a buyer and seller, entered into or performed in this state, which provides for (a) repayment in installments . . . and in which the buyer agrees to pay a finance charge, or in which the buyer does not agree to pay a finance charge but the goods or services are available at a lesser price if paid for by either cash or credit card . . . or (b) which provides for payment in more than four installments.
CAL.CIV.CODE § 1802.6 (West 1997).
[11] Sears has failed to present any evidence even on this issue. However, the court assumes for the purposes of this opinion that Sears could provide such evidence.
[12] Remedies are also provided for violations of Regulation Z. See 12 U.S.C.A. § 1640 (1982 & Supp.1997). In general, these remedies are statutory damages. Id.
[13] The requirements of section 1799.100 also apply to tools of trade and to health aids. Id., § 1799.100(d)(2). No such property is at issue in this case.
[14] In addition, vessels, vehicles and aircraft are excluded. Id.
[15] Section 1799.100(a) also prohibits the taking of a non-possessory non-purchase money security interest in "household goods", as defined in subsection (h). Id., § 1799.100(a) & (h) (West 1997). These provisions are not at issue in this case.
[16] A secured creditor must also perfect its security interest to protect against rights of third parties. For example, a bankruptcy trustee enjoys the status of a perfected lien creditor, and thus takes priority over the holder of an unperfected security interest. See, e.g., Babaeian, 206 B.R. at 540. Generally, a secured creditor must file a financing statement (UCC-1) with the Secretary of State to perfect a security interest in personal property.
Perfection of Sears' security interest in the durable goods is not at issue in this case for two reasons. First, the filing rule has several exceptions, one of which exempts from the filing requirement a purchase money security interest in consumer goods. CAL.COM.CODE § 9302(1)(d) (West 1997). Thus it appears that Sears' security interest, if any, is perfected under the statutes. Second, a reaffirmation agreement is between a debtor and the original secured party. Thus it does not raise any issue of rights of third parties that are controlled by the rules relating to perfection.
[17] While the charge slips also have a code following the identity of each of these items, neither Sears nor the debtors have provided any meaning for these codes. Because Sears bears the burden of showing that it holds a valid security interest in these items, the court disregards these codes.
[18] There is language in one opinion that could be interpreted to the contrary. In Arnhold v. Kyrus, 851 F.2d 738 (4th Cir.1988), the court stated that a creditor beneficiary of a reaffirmation may bring the reaffirmation to the attention of the court, because this would advance the creditor's interest in having the reaffirmation validated and might bring legitimate pressure on the debtor to honor the reaffirmed debt. Id. at 741. However, the court found that the debtor must take specific in court action to preserve the claim of a favored creditor. Id. at 742. The court further stated that any obligation a debtor feels to pay the reaffirmed debt must generate from the debtor's personal desire, not from a legal obligation. Id. at 741. In Arnhold the court reversed a district court finding that the debtor's failure to bring the reaffirmation agreement to the attention of the court at the discharge hearing constituted bad faith that required the denial of a discharge. Id. at 741-42.
[19] Coyne v. Westinghouse Credit Corp. (In re Globe Illumination Co.), 149 B.R. 614, 617-21 (Bankr.C.D.Cal.1993).
[20] As evidence of the abuse in reaffirmation agreements, the House Report found that "about 1/3 of all discharged debts to finance companies are reaffirmed. . . ." H.R.Rep. No. 95-595, at 163, reprinted in 1978 U.S.C.C.A.N. 5963, 6124.
[21] As noted supra, a secured creditor would still retain a right to realize on its collateral, after the completion of the bankruptcy case and the termination of the automatic stay.
|
298 S.W.3d 521 (2009)
Charles Robert WATSON and Carolyn Watson, Respondents,
v.
Robert K. MENSE and Carolyn K. Mense, Appellants,
No. SC 89936.
Supreme Court of Missouri, En Banc.
November 17, 2009.
Rehearing Denied December 22, 2009.
*524 R. Timothy Bickhaus, Macon, MO, for appellants.
John W. Briscoe, Andrew W. Briscoe, New London, MO, for respondents
WILLIAM RAY PRICE, JR., Chief Justice.
I. Introduction
The Watsons brought actions for ejectment, trespass, quiet title and the establishment of an easement by prescription against the Menses regarding parcels of farmland. The trial court found in favor of the Watsons. The trial court's judgement as to ejectment damages is reversed. The trial court is required to enter a more definite legal description of the new borderline between the party's parcels and the easement by prescription and to determine the fair rental value of the disputed parcel. In all other respects, the judgment is affirmed. The case is remanded.
II. Factual Background
This is a dispute over farmland in Macon County. Charles and Carolyn Watson own two 40-acre, square parcels that are connected at a single diagonal point: one to the northwest and the other to the southeast. A path and a gate some 16 to 24 feet wide connect the two Watson parcels at the corner intersection. Robert and Carolyn Mense own a single 80-acre rectangular parcel that abuts both of the Watsons' parcels: it is south of the northwest parcel and west of the southeast parcel.
Starting in 1958, Charles Watson's mother, Jane Boulton, owned the two parcels and farmed various crops and grazed cattle. Boulton often moved cattle, trucks, and farming combines between the two parcels using the path through the corner intersection. Boulton's neighbor at the time, Frank Bush, owned the Mense parcel. A hedgerow and a fence created the border between the northern Watson tract and Bush's tract. Neither Bush nor Boulton farmed beyond their respective sides of the fence. There was never a dispute about the borderline location. Both parties recognized the fence and hedgerow as the border.
During the 1980s, Bush bulldozed the eastern half of the hedgerow and fence leaving an elevated "hump" of ground behind. However, Bush still never crossed the borderline. The western half of the fence still remained. Eventually, Bush sold his tract to Jim Nelson, who in turn sold it to the Menses in 2006.
The current dispute arose in 2006 when the Menses took title to their parcel. Using the termination point of the eastern property as a reference, Mr. Mense believed the borderline was eight feet to the north of hedgerow hump. In the spring of 2006, Mense planted corn up to that assumed border. In response, Charles Watson erected a post on the eastern side of the "hump," lining up the post with the remaining western fence line.
In further response, Mense used his tractor to tear out the post and parked the tractor in front of the diagonal gate between the two Watson parcels. Mense also placed a sign, threatening to arrest anyone who moved the tractor and offering to pay half the cost of a survey. Mr. Watson tried to replace the post some time later, but Mense removed it again.
In the summer of 2006, Mense hired Macon County surveyor Edward Cleaver, who adduced that the true borderline was about eight feet north of the fence erected *525 by Mr. Watson.[1] On the survey, Cleaver noted the location of the Watson's post and the hump of the hedgerow. During the spring of 2007, Mense planted soybeans up to the Cleaver survey line.
The Watsons then filed suit for ejectment, trespass and quiet title and asked the court to recognize an easement by prescription over the diagonal path between their two parcels and issue an order prohibiting the Menses from interfering with their easement. The Menses counterclaimed, asking for ejectment and trespass damages of their own. Before trial, the Menses consented to judgment quieting title to the record land descriptions, but maintained their contest over the disputed area north of the hedgerow.
The trial court found that the Watsons had established their adverse possession claim through the testimony of Jane Boulton, Charles Watson's mother and predecessor in title, and the testimony of Frank Bush and Jim Nelson who all testified that the hedgerow and fence were respected as the boundary line, and aerial survey photographs that showed cultivation up to the fence line by Boulton and the Watsons. Subsequently, the trial court awarded $75.00 in trespass damages for removal of the two posts and $90.00 as the value of the soybeans wrongfully planted on the Watson parcel. The trial court further found that the movement of equipment and livestock between the two parcels established an easement 24 feet in width and ordered that the Menses no longer interfere with the use of the easement. This appeal followed.
The Menses argue several points on appeal, which may be summarized as follows: First, that the trial court erred in finding that the Watsons adversely possessed the disputed parcel (point I) and awarding to the Watsons both trespass damages (point II) and ejectment damages (point III), and denying the Menses' quiet title action (point VI) and trespass damages (point IX).
Second, the Menses argue error in declaring the width of the easement to be 24 feet (point IV) and ordering the Menses to stop interfering with the easement (point V).
Third, they argue that the trial court erred in drafting a legally insufficient legal description in its final judgment (point VII).[2]
III. Analysis
A. Standard of Review
The appellate court will affirm the trial court's determination "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976). The trial court is free to believe or disbelieve all, part or none of the testimony of any witness. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc *526 1989). When determining the sufficiency of the evidence, an appellate court will accept as true the evidence and inferences from the evidence that are favorable to the trial court's decree and disregard all contrary evidence. Morgan v. Morgan, 701 S.W.2d 177, 179 (Mo.App.1985).
B. (Points I-III, VI)
Adverse Possession
To acquire title by adverse possession or prescription, possession must be: (1) hostile, that is, under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the necessary period of years prior to the commencement of action. Walker v. Walker, 509 S.W.2d 102, 106 (Mo.1974). The party claiming ownership by adverse possession has the burden of proving his claim by a preponderance of the evidence. Shuffit v. Wade, 13 S.W.3d 329, 335 (Mo.App.2000). The ten year period to confer title by adverse possession need not occur immediately prior the suit. Moore v. Hoffman, 327 Mo. 852, 39 S.W.2d 339, 344 (1931). A claimant may tack her period of adverse possession with that of her predecessors in order to meet the ten year requirement. Kitterman v. Simrall, 924 S.W.2d 872, 876 (Mo.App.1996). The Menses argue that the Watsons' possession was not adverse because it was not hostile or actual.
The adverse possession doctrine encourages land owners to bring border disputes in timely fashion, thereby weeding out stale claims. When a border, even though erroneous, is observed by all parties as the boundary for the statutory period, it becomes the true boundary through adverse possession. This Court dealt with almost identical facts more than 50 years ago in Finck Realty Co. v. Lefler, 208 S.W.2d 213 (Mo.1948). In Finck, a dispute arose between owners of two parcels of farmland over the borderline. Id. at 213-14. For nearly 50 years, defendants' predecessors in title and plaintiff erroneously regarded a fence as the borderline between their two parcels Id. A survey revealed that the fence was encroaching over the true borderline onto the defendant's land. Id. at 215. This Court held that there need not be a dispute to make the plaintiff's possession adverse to the defendant and that there was sufficient evidence to find actual possession because the plaintiff predecessor in title had cultivated the enclosed land for over 50 years. Id.
i. Hostile possession
There need not be a dispute between two adjoining landowners over the location of borderline to satisfy the hostile requirement. Boeckmann v. Fitzpatrick, 491 S.W.2d 524, 527 (Mo.1973). The element will be satisfied even if the possessor only mistakenly believes she owns the land and occupies the land in question. Underwood v. Hash, 67 S.W.3d 770, 775 (Mo.App.2002); State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174, 176 (1941). The lack of a dispute between the Watsons and the Menses' predecessors in title is irrelevant to the hostility requirement. The trial court found that the Watsons believed that they owned the land north of the fence line which is sufficient to meet this element. Under Murphy, this finding is not disturbed.
ii. Actual possession
The Menses also challenge the "actual" prong of the adverse possession test arguing that the Watsons took no action to possess the contested hedgerow area of land north of the fence line.
Whether an act constitutes actual possession "depend[s] on the nature and location of the property, the uses to which it can be applied and all the facts *527 and circumstances of a particular case." Murphy v. Holman, 289 S.W.3d 234, 237 (Mo.App. W.D.2009). The element is less strict for wild, undeveloped land. Martens v. White, 195 S.W.3d 548, 554 (Mo.App. S.D.2006).
Evidence before the trial court showed that the Watson family had been farming, pasturing and cultivating the land continually as their own since 1958. During this period the land was enclosed by a fence and hedgerow that the Menses' and Watsons' predecessors in title treated as the boundary line. All parties still respected the border, even after the fence and hedgerow were removed. The Watsons and their predecessors in title excluded their neighbors from the disputed area. The trial court explicitly found that the Watsons and Boulton farmed up to fence line for a continuous 45-year period.
This evidence was supported by 45 years worth of aerial survey photos. As required by Murphy, an appellate court must give deference to the trial court's factual determinations when sitting as fact-finder. There was substantial evidence to support the trial court's finding of actual possession because it found that the Watsons and Boulton farmed up to the fence line.
The hostile and actual elements were met; therefore, the trial court properly found that the Watsons acquired title to the disputed land. Point denied.
iii. Trespass Damages
The question now turns to whether there was substantial evidence to support damages for trespass. The trial court found credible Charles Watson's testimony that the two removed posts were worth $75.00. We do not disturb these findings under Murphy. Point denied.
iv. Ejectment Damages
The Menses correctly argue that the $90.00 in ejectment damages are in error. Damages may also be appropriate relief in ejectment. Pankins v. Jackson, 891 S.W.2d 845, 848 (Mo.App.1995). When crops are planted wrongfully, the proper measure of damages in ejectment is not the value of the crops, but the fair rental value of the land for such period as the land owner had been deprived of possession. Dent v. Dent, 350 Mo. 560, 166 S.W.2d 582, 587-88 (1942). The Watsons were awarded $90.00, the value of the soybeans grown on the disputed land. While this is some evidence from which fair rental value of the land might be inferred, it does not take into account the Menses' expenses, the value of their labor, or any value for the risk they undertook raising and harvesting the soybeans. The judgment is reversed on this point so that damages can be determined in accordance with the appropriate measurefair rental value.
C. Prescriptive Easement (Points IV-V)
i. Order prohibiting interference with the easement
The Menses do not challenge whether the Watsons have acquired an easement by prescription. Rather, they only contest the trial court's determination that the easement is 24 feet wide and its omission of the easement's permissible uses. Because they admit the easement exists, the Menses must not interfere with the use of the easement. The trial court found that the Menses tractor parked in front of the gate interfered with the use of the easement. Under Murphy, this finding is not disturbed, nor is the order prohibiting the Menses' interference with the easement. Point denied.
*528 ii. Width of easement
The trial court's determination that the easement is 24 feet wide is supported by substantial evidence. Charles Watson explicitly testified to this fact, and the trial court noted that photographic evidence of the gate confirmed his testimony. Again, under Murphy, this determination is not disturbed. Point denied.
iii. Permissible uses of easement
The trial court's omission of the specific uses from the easement description is not error. When an easement is claimed by prescription, the character and extent of it is fixed and determined by the use under which it is gained. Holian v. Guenther, 471 S.W.2d 457, 459 (Mo. 1971). Accordingly, the trial court necessarily defines the acceptable use of an easement by the factual findings that gave rise to the prescription. The Watson family had moved combines, cattle and other farming equipment between their two parcels. This would be the acceptable uses of the easement. If the easement holder thereafter unreasonably exploits the easement beyond those uses, the servient owner may bring suit to enjoin that behavior. Point denied.
D. Legal Description (Point VII)
Finally, the Menses argue that the trial court's judgment was not reasonably certain in two respects: first, that the prescriptive easement did not specify that only half of the width of the easement burdened the Mense land; second, that the judgment designating the "fence row" as the actual border was indefinite. The Court agrees in both respects.
i. Easement Description
At trial, all testimony, including that of both Robert Mense and the Watsons, indicated that the easement burdened the property of Donald Ross, a non-party, and the Menses equally.[3] This information was omitted from the trial court's description of the easement. When a single prescriptive easement will burden multiple owners, the trial court should carefully describe the burden of each. On remand, the trial court shall specify the portion of the easement that burdens the Menses' property.
ii. Quiet Title Description
Judgments should describe with reasonable certainty the land adjudicated therein, both in ejectment and actions to determine title. Hart v. T.L. Wright Lumber Co., 355 Mo. 397, 196 S.W.2d 272, 278 (1946). Mere reference to a fence in a judgment, without further description of that fence's actual location, is not a description with reasonable certainty. See Lollar v. Maness, 765 S.W.2d 695, 700 (Mo.App.1989). Here, the final judgment quieting title states that the new borderline is "the fence line between the [southeast] quarter-quarter and Defendants' property south of it." Therefore, the judgment establishing the border as the "fence line" is affirmed, but on remand the trial court shall take the steps necessary to determine by metes and bounds the location of the fence line in conformity with its previous ruling.
E. Conclusion
The judgment as to the $90.00 in ejectment damages is reversed, and the case is remanded. On remand, the trial court shall enter more definite descriptions of *529 the new border and the location of the prescriptive easement and determine the fair rental value of the disputed land area. In all other respects, the judgment is affirmed.
All concur.
NOTES
[1] The survey in the record notes the old fence was located in a position 7.2 feet south of the center point of the southeast quarter of Section 21, Township 59 North, R13W going forward in a straight line to a termination point 8.4 feet south of the of the center eastern survey point of the same southeast quarter. The Watson's argue that this is the true borderline.
[2] The Menses also argue in point VIII that the judgment is outside the scope of the pleadings because the Watsons consented to judgment that the Menses were record owners of the tract. As this suit deals with adverse possession which establishes a new title to the land, such an argument is without merit. See Boeckmann v. Fitzpatrick, 491 S.W.2d 524, 527 (Mo. 1973); Moran v. Roaring River Development Co., 461 S.W.2d 822, 831 (Mo. 1970).
[3] Nothing in trial court's order can bind Donald Ross. A trial court's verdict cannot materially affect the real property interest of a non-party Schaeffer v. Moore, 262 S.W.2d 854, 858 (Mo.1953). Moreover, neither party raised this in briefing, therefore this issue is not reached.
|
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-3039
RICHARD D. SIMMONS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued April 25, 2018 Decided September 20, 2018)
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Mark D. Gore, with whom Meghan Flanz, Interim General Counsel; Mary Ann Flynn,
Chief Counsel; and Kenneth A. Walsh, Deputy Chief Counsel; and Joshua L. Wolinsky, Appellate
Attorney, all of Washington, D.C., were on the brief for the appellee.
Before DAVIS, Chief Judge, and BARTLEY and ALLEN, Judges.
BARTLEY, Judge: Veteran Richard D. Simmons appeals through counsel a May 13, 2016,
Board of Veterans' Appeals (Board) decision that found that a September 1974 regional office
(RO) rating decision denying service connection for an acquired psychiatric disorder did not
contain clear and unmistakable error (CUE). Record (R.) at 2-19. This matter was referred to a
panel of the Court principally to address the Court's harmless error analysis framework post-
Sanders, particularly in the context of reviewing Board decisions on CUE motions. Shinseki v.
Sanders, 556 U.S. 396 (2010). We hold that, although the Board erred in analyzing two statutory
presumptions when it found no CUE in the 1974 decision, that error is harmless because it did not
affect the essential fairness of the adjudication or the Board's ultimate determination that the 1974
RO decision did not contain CUE; therefore, the Court will affirm the May 13, 2016, Board
decision.
I. BACKGROUND
Mr. Simmons served on active duty in the U.S. Navy from November 1968 to January
1970. R. at 43. Upon entry into service, he denied "frequent trouble sleeping," "frequent or
terrifying nightmares," "depression or excessive worry," and "nervous trouble of any sort." R. at
119. In a contemporaneous examination, a service physician documented a normal clinical
examination with no noted psychiatric symptoms. R. at 121-22.
In April 1969, Mr. Simmons was hospitalized for two days for psychiatric observation
following a suicide attempt. R. at 127-29. Upon admission, he requested medication for "nerves,"
and the service clinician provided diagnostic impressions of "depressive reaction" and "attempted
suicide." R. at 127-28. The hospital discharge summary reflects that Mr. Simmons had "a long
history of 'nerve' problems . . . [with] several episodes of 'home sickness' and depression since
coming aboard [the ship] in November [1968]." R. at 129. The service clinician diagnosed
"situational depression." Id. Mr. Simmons remained depressed and under observation for 48 hours
until "he received a letter from home [at which point h]is spirits lifted measurably and he was
discharged to duty." Id.
In December 1969, following unsuccessful attempts at obtaining a hardship discharge, Mr.
Simmons was referred for neuropsychiatric evaluation due to frequent feelings of depression and
"inability to adjust to Naval life." R. at 130. The service clinician documented a moderately
depressed mood, appropriate affect, clear sensorium, intact memory, and logical and coherent
thought processes. Id. The clinician asserted that Mr. Simmons had "no evidence of psychosis";
he diagnosed Mr. Simmons with immature personality disorder and recommended administrative
discharge due to unsuitability. R. at 130-31. The January 1970 service separation examination
report reflects a normal clinical examination with no noted psychiatric symptoms. R. at 106-07.
In September 1972, Mr. Simmons sought non-service-connected pension benefits. In
December 1972, a VA RO granted pension benefits due to polyarthritis of multiple joints. R. at
69-70.
In June 1974, Mr. Simmons requested disability compensation for rheumatoid arthritis,
stating "there is a reasonable presumption that my rheumatoid arthritis condition was manifested
as a direct result of my mental depression in service and culminated in my administrative
discharge." R. at 52. In an attached statement, Mr. Simmons's private hematologist opined that "it
is a reasonable presumption that the illness manifested as mental depression during [service] is the
same illness now manifested as arthritis involving multiple joints." R. at 49. He added that "it [is]
likely that the chronic disorder [Mr. Simmons] now has was present at the time of his military
service." Id.
2
Upon VA examination in August 1974, Mr. Simmons reported current symptoms of severe
pain, weakness, weight loss, loss of appetite, nervousness, sleep disturbances, and stiffness. R. at
1453. Following medical examination, the examiner diagnosed rheumatoid arthritis. R. at 1456.
Upon psychological examination, Mr. Simmons stated that while he was overseas, he felt tense,
nervous, and homesick, causing him to drink excessively. R. at 1457. He denied in-service
hospitalization except for acute intoxication. Id. He stated that he "got along alright after service[,]
although he felt a little nervous at times," he worked regularly for almost 2 years at a Dupont plant
until he developed rheumatoid arthritis, and that rheumatoid arthritis has been progressive since
then, involving more joints and constant medication. Id. He further stated that he "feels tense and
nervous most of the time and this is worse when [there is] more pain in his joints" and attributed
some insomnia, depressed mood, and decreased concentration to increased physical symptoms. Id.
Following examination, the examiner diagnosed "anxiety reaction with depressive features,
moderate only, secondary to arthritic condition." Id.
In September 1974, the RO denied service connection for rheumatoid arthritis and a
nervous condition. R. at 1448-49. The RO found no evidence that Mr. Simmons experienced
chronic neurosis during service and noted that he was administratively discharged due to immature
personality disorder. R. at 1449. Likewise, the RO found no evidence that Mr. Simmons
experienced arthritis during service or within one year following service. Id. The RO concluded
that neither the arthritic condition nor the anxiety reaction was incurred during service, and that
the currently diagnosed anxiety reaction was not related to the immature personality disorder that
resulted in his separation from service. R. at 1448. Mr. Simmons filed a Notice of Disagreement
(NOD) with the September 1974 RO decision, but did not perfect an appeal to the Board following
issuance of a Statement of the Case (SOC).
In 1977, Mr. Simmons successfully filed to reopen his claims for service connection, but
they were again denied in an unappealed April 1977 RO decision.1 In January 1990, Mr. Simmons
1
The Court notes that in August 1995, Mr. Simmons alleged CUE in the April 1977 RO decision, which was
denied by the RO in February 1996 and by the Board in January 1998. See R. at 472. Mr. Simmons appealed the
adverse Board decision to this Court. In May 2000, the Court issued a precedential decision affirming the Board
decision. Simmons v. West, 13 Vet.App. 51 (2000). In August 2000, the Court withdrew its May 2000 decision, denied
Mr. Simmons's motion for reconsideration, and again affirmed the Board decision. Simmons v. West, 14 Vet.App. 84
(2000). However, following a motion to vacate and additional procedural development, the Court set aside the January
1998 Board decision and remanded the matter to the Board for readjudication. Simmons v. Principi, 17 Vet.App. 104
(2003). Upon readjudication, the Board, in August 2004, found that Mr. Simmons's 1995 motion alleging CUE
regarding the denial of service connection for a nervous disorder was without legal merit as it was subsumed by the
Board's February 1991 decision. R. at 471-94. The Board also dismissed the motion alleging CUE regarding the denial
3
again filed to reopen a claim for service connection for emotional trauma and a nervous
breakdown. In an unappealed February 1991 decision, the Board reopened the claim for service
connection, but denied the underlying claim.
In December 2005, Mr. Simmons, through counsel, filed a CUE motion as to the September
1974 RO decision that denied service connection for rheumatoid arthritis and a nervous condition
with depressive features. R. at 326-33. In September 2009, the RO found no CUE in the September
1974 RO decision with respect to both claims. R. at 315-17. In September 2010, Mr. Simmons
filed an NOD only as to the RO's finding of no CUE in the September 1974 denial of service
connection for an acquired psychiatric disability. R. at 293-300. Following a March 2012 SOC, R.
at 234-47, Mr. Simmons perfected an appeal to the Board in April 2012, R. at 194-202.
In March 2015, the Board found no CUE in the September 1974 RO decision that denied
service connection for an anxiety disorder with depressive features. R. at 184-92. In its decision,
the Board found that the September 1974 RO decision was subsumed by the February 1991 adverse
Board decision and, therefore, was not subject to a CUE challenge. R. at 190. Mr. Simmons
appealed that Board decision to this Court. In a January 2016 joint motion for remand, the parties
agreed that readjudication was needed because the Board erred in finding that the February 1991
Board decision subsumed the September 1974 RO decision because the February 1991 Board
decision did not involve a de novo review of the same issue before the RO in 1974. R. at 137-42
(citing Brown v. West, 203 F.3d 1378, 1381-82 (Fed. Cir. 2000) and noting that the Board, in
February 1991, determined that the evidence submitted subsequent to April 1977 did not
demonstrate that a psychiatric disorder was present during active service and, therefore, did not
conduct a de novo review of the entire record to determine if the September 1974 RO decision was
erroneous).
In the May 2016 decision on appeal, the Board found no CUE in the September 1974 RO
decision that denied service connection for an acquired psychiatric disorder. R. at 4-5. The Board
found that Mr. Simmons failed to demonstrate that the September 1974 RO decision misapplied,
or failed to apply, any applicable law or VA regulation, or that the decision otherwise contained
CUE. R. at 18. In consideration of Mr. Simmons's arguments regarding statutory presumptions,
the Board specifically found that neither the presumption of soundness nor the presumption of
of service connection for arthritis as legally insufficient. Id. Mr. Simmons did not appeal the August 2004 Board
decision.
4
service incurrence applied. R. at 16-17. The Board further found that most of Mr. Simmons's
arguments "boil down to allegations that the RO in 1974 improperly weighed the evidence of
record in denying the claim; such allegations can never rise to the level of CUE." Id. The Board
added that "[Mr. Simmons] has not offered an explanation as to how the outcome would be
manifestly different but for the errors claimed." Id. This appeal followed.
II. THE BOARD'S CUE ANALYSIS
When a prior final RO or Board decision contains CUE, that decision may be reversed or
revised, resulting in correction of the error effective the date of its commission. 38 U.S.C.
§§ 5109A, 7111; see DiCarlo v. Nicholson, 20 Vet.App. 52, 54-58 (2006); 38 C.F.R. §§ 3.105
(2018), 20.1400-1411 (2018). CUE is established when the following components are met:
(1) Either the correct facts as they were known at the time were not before the adjudicator, the
adjudicator made an erroneous factual finding, or the statutory or regulatory provisions extant at
the time were incorrectly applied; (2) the alleged error is "undebatable," not merely a
"disagreement as to how the facts were weighed or evaluated"; and (3) the error "manifestly
changed the outcome" of the prior decision. Russell v. Principi, 3 Vet.App. 310, 313-14, 319
(1992); see King v. Shinseki, 26 Vet.App. 433, 439 (2014); Bouton v. Peake, 23 Vet.App. 70, 71-
72 (2008); Damrel v. Brown, 6 Vet.App. 242, 245 (1994); see also Bustos v. West, 179 F.3d 1378,
1380-81 (Fed. Cir. 1999). In other words, "CUE is a very specific and rare kind of 'error' . . . of
fact or law, that when called to the attention of later reviewers compels the conclusion, to which
reasonable minds could not differ, that the result would have been manifestly different but for the
error." Fugo v. Brown, 6 Vet.App. 40, 43 (1993).
In reviewing Board decisions evaluating allegations of CUE in prior final decisions, the
Court "cannot conduct a plenary review of the merits of the original decision." Andrews v. Principi,
18 Vet.App. 177, 181 (2004) aff'd sub nom. Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005);
see Archer v. Principi, 3 Vet.App. 433, 437 (1992). Rather, the Court's overall review of a Board
decision finding no CUE in a prior, final RO decision is limited to determining whether the Board's
CUE finding was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law," 38 U.S.C. § 7261(a)(3)(A), and whether it was supported by adequate reasons or bases on
all material issues of fact and law, 38 U.S.C. § 7104(d)(1). See Cacciola v. Gibson, 27 Vet.App.
45, 59 (2014); King, 26 Vet.App. at 439. The components that lead to a valid CUE finding,
5
however, are subject to review under the standards applicable to each component. Hopkins v.
Nicholson, 19 Vet.App. 165, 167-68 (2005). Whether applicable law or regulation was applied or
was correctly applied is a question of law, which the Court reviews de novo. Id. at 168; see also
George v. Shulkin, 29 Vet.App. 199, 206 (2018); Stallworth v. Nicholson, 20 Vet.App. 482, 487
(2006); Joyce v. Nicholson, 19 Vet.App. 36, 43-44 (2005); Andrews, 18 Vet.App. at 182.
Mr. Simmons argues that the Board made clear errors of law as to 38 U.S.C. §§ 105(a) and
1111 (formerly 38 U.S.C. § 311 (1970)) when it determined there was no CUE in the RO's failure
to apply the presumptions of service incurrence and soundness. Appellant's Brief (Br.) at 4-14;
Reply Br. at 1-13. He argues that, consistent with evidence extant in 1974, the Board made
favorable findings of fact that in service he was diagnosed with an acquired psychiatric disability
not noted upon service entry, and therefore the Board should have found that the RO erred in 1974
(1) in not affording him the presumptions under sections 105(a) and 1111 and (2) in not concluding
that such disability was incurred during service, meeting the second element of service connection.
Appellant's Br. at 4-5; see Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (noting
that to establish service connection, "the veteran must show (1) the existence of a present
disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal
relationship between the present disability and the disease or injury incurred or aggravated during
service").
A. The Board's Presumption of Soundness Analysis
The presumption of soundness under section 1111 dictates that a veteran shall be presumed
to have been in sound condition when entering service, except as to disorders noted upon a service
entrance examination. 38 U.S.C. § 1111; 38 U.S.C. § 311 (1970)2; see Holton v. Shinseki, 557 F.3d
1362, 1367 (Fed. Cir. 2009); Dye v. Mansfield, 504 F.3d 1289, 1293 (Fed. Cir. 2007). "[T]he
presumption of soundness serves as a shield against any assertion by the Secretary that a veteran's
in-service disability that was not noted upon entry to service preexisted service." Gilbert v.
Shinseki, 26 Vet.App. 48, 52 (2012). It "is not a sword for the veteran to fulfill the second element
of service connection without any evidence of the manifestation of an in-service disability." Id.
For the presumption of soundness to apply, there must be evidence of an injury or disease
manifesting during service that was not noted upon entry. Id.; see Holton, 557 F.3d at 1367; Horn
2
In 1974, the presumption of soundness was codified at section 311, but the current statute is substantially
similar to the version in effect in 1974.
6
v. Shinseki, 25 Vet.App. 231, 236 (2013). Once the presumption applies, and if the Secretary is
unable to rebut it, the injury or disease that manifested during service is presumed to have been
incurred during service, thus satisfying the second element of service connection. See Gilbert,
26 Vet.App. at 52; Horn, 25 Vet.App. at 236; see also Shedden, 381 F.3d at 1166-67.
The Board noted that Mr. Simmons was seeking "the benefit of [the] presumption of
soundness . . . as no pre-existing mental health disorder was noted on the service entrance
examination [report]" and "evidence of record extant at the time was legally insufficient to rebut
the presumption of soundness and did not contain clear and unmistakable evidence that [he] had a
pre-existing mental health disorder that was not aggravated by such service." R. at 14. However,
the Board characterized this argument as an attempt to convert the case from one for direct service
connection to one for preexistence and aggravation and concluded that, because no question of
preexistence was raised at the time of the September 1974 RO decision, the presumption of
soundness was not applicable and the RO did not err in not addressing it. R. at 17.
Although the Board correctly noted that Mr. Simmons is seeking to benefit from the
presumption of soundness, it misunderstood his argument. Mr. Simmons's argument below was
that, because there was no notation of an acquired psychiatric disability on his service entrance
examination report, he should have been presumed sound at entry as to his psychiatric condition
and any psychiatric condition that occurred during service would be presumed to have manifested
during service. Mr. Simmons was not alleging that the RO failed to rebut the presumption in an
attempt to have the high burden on VA of rebuttal to prove with clear and unmistakable evidence
both that a psychiatric disorder did not pre-exist service and was not aggravated by service. R. at
17. Instead, Mr. Simmons is simply seeking the benefit of the presumption—namely, that the in-
service notations of mental health complaints following a clear entrance examination establish that
a mental health condition arose during service and did not pre-exist service.
Regardless of the Board's characterization, the Court's role in reviewing the Board decision
is to determine if the Board's CUE determination was arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law. The presumption of soundness is triggered by evidence
of manifestation during service of an injury or disease not noted upon entry to service. Holton,
557 F.3d at 1367; Gilbert, 26 Vet.App. at 52; Horn, 25 Vet.App. at 236. Although the Board
acknowledged several in-service psychiatric symptoms and that they were not noted upon entry, it
found that the presumption of soundness did not apply. R. at 16-17. This Board finding is a clear
7
misapplication of law. See Holton, 557 F.3d at 1367; Gilbert, 26 Vet.App. at 52; Horn,
25 Vet.App. at 236.
B. The Board's Presumption of Service Incurrence Analysis
The presumption of service incurrence3 under section 105(a) establishes that an injury or
disease incurred during active service was incurred in the line of duty and was not the result of
misconduct. 38 U.S.C. § 105(a) 4 ; see Holton, 557 F.3d at 1366-67; Dye, 504 F.3d at 1292. In
certain ways, the presumption of service incurrence operates similarly to the presumption of
soundness. The presumption of service incurrence serves as a shield against any assertion by the
Secretary that a veteran's in-service injury or disease was not in the line of duty or was caused by
the veteran's willful misconduct or abuse of alcohol or drugs. See Holton, 557 F.3d at 1367. Also,
the presumption of service incurrence is triggered by evidence of an in-service injury or disease.
See id. Most importantly, once the presumption applies and the Secretary is unable to rebut it, the
injury or disease that manifested during service is presumed to have been incurred during service,
satisfying the second element of service connection. See id.; Dye, 504 F.3d at 1292.
In its decision, the Board found that the presumption of service incurrence did not apply
because "the evidence must first demonstrate that there is a mental health disability incurred in
service" for Mr. Simmons to receive the benefit of the presumption. R. at 16. The Board then
referenced the 1974 examiner's opinion, seemingly to conclude that the presumption was not
triggered because the in-service mental health symptoms were not related to the post-service
diagnosed anxiety reaction with depressive features, which the examiner attributed to the non-
service-connected rheumatoid arthritis. See R. at 1457. But whether the in-service symptoms were
attributable to the post-service psychiatric disability concerns nexus, the third prong of service
connection. See Shedden, 381 F.3d at 1167. The presumption of service incurrence relates
exclusively to the second prong of service connection, incurrence in service; therefore, the question
of linkage to service is irrelevant to whether the presumption applies. See Holton, 557 F.3d at
1367; Dye, 504 F.3d at 1292; Shedden, 381 F.3d at 1367.
The Secretary argues that Mr. Simmons was in fact "not diagnosed with a disability [in
service, but] rather was assigned with symptoms of depression," noting that "service treatment
3
The presumption of service incurrence is alternatively called the presumption of service connection or the
line-of-duty presumption.
4
The current statute is substantially similar to the version in effect in 1974. U.S.C. § 105(a) (1970).
8
records fail to show a confirmed diagnosed disability." Secretary's Br. at 12; see Oral Argument at
39:00-42:06, Simmons v. O'Rourke, U.S. Vet. App. No. 16-3039. His arguments, however, are
unsupported by the evidence as there is no indication from the service treatment records that the
diagnoses of "depressive reaction," R. at 128, and "situational depression," R. at 129, were
provisional diagnoses or were not confirmed. See R. at 130 (noting that Mr. Simmons was referred
for psychiatric consultation because, between April and December 1969, he was "continuing and
progressively becoming depressed"). Moreover, even if the Secretary's characterization is
correct—that the in-service mental health symptoms were not manifestation of an in-service
disease or injury that is subject to service connection but were instead manifestations of a non-
service-connectable personality disorder—it is the Board's responsibility to provide such an
analysis and the Court cannot accept the Secretary's post-hoc rationalizations. See In re Lee,
277 F.3d 1338, 1345-46 (Fed. Cir. 2002) ("'[C]ourts may not accept appellate counsel's post hoc
rationalization for agency action.'") (quoting Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168 (1962)); Smith v. Nicholson, 19 Vet.App. 63, 73 (2005) ("[I]t is not the task of
the Secretary to rewrite the Board's decision through his pleadings filed in this Court.").
The presumption of service incurrence is triggered by evidence of manifestations during
service of an injury or disease. Holton, 557 F.3d at 1367. Although the Board acknowledged
several in-service notations of psychiatric symptoms, it found that the presumption of service
incurrence did not apply. R. at 16. This Board finding is a clear misapplication of law. See Holton,
557 F.3d at 1367; Dye, 504 F.3d at 1292.
C. The Board's Conclusion Concerning No Manifestly Changed Outcome
As we have explained, the Board erred as a matter of law when it concluded that the RO in
1974 need not have considered sections 105(a) and 1111. Merely finding an error, however, is not
enough for Mr. Simmons to prevail. We are statutorily required to consider whether those errors
prejudiced him. 38 U.S.C. § 7261(b)(2); see Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc)
(appellant has the burden to show prejudicial error). The matter is somewhat more complicated in
the context of CUE because part of the analysis that the Board undertakes incorporates a form of
prejudicial error analysis—an error cannot be CUE unless it would have "manifestly changed the
outcome" of the underlying agency decision. Fugo, 6 Vet.App. at 43; Russell, 3 Vet.App. at 113-
14.
9
Whether the Board addressed the "manifestly changed outcome" prong of the CUE
analysis, and did so adequately, is important because the answer to that question dictates our scope
of review. Whether an error would have manifestly changed the outcome of a VA benefits decision
is a mixed question of law and fact because that question "involves the application of law . . . to a
specific set of facts." Butts v. Brown, 5 Vet.App. 532, 538 (1993); see Joyce, 19 Vet.App. at 42-44;
Andrews, 18 Vet.App. at 182. Thus, if the Board reaches the manifestly changed outcome question,
as it must in a CUE context if it finds error in the underlying decision, and determines that there
would have been no manifestly changed outcome, this Court may only set aside that Board finding
if it is arbitrary or capricious, 38 U.S.C. § 7261(a)(3)(A),5 or if it was unsupported by adequate
reasons or bases, see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Thus, in the context of our
review of a Board decision on CUE, if we determine that the Board's manifestly changed outcome
conclusion as to the underlying decision was not arbitrary or capricious and that it was supported
by adequate reasons or bases, there would be no need for the Court to employ a prejudicial error
analysis because there would be no Board error, the predicate for a Court harmless error analysis.6
An example will help illustrate this point. Assume that, as in this appeal, the Board
concluded that the RO in 1974 did not need to apply sections 105 and 1111, but then went further
and concluded, based on fully adequate reasons or bases, that, even assuming the RO should have
applied these statutory provisions, there was no CUE in the underlying RO decision because the
outcome would not have been manifestly different. In this situation, if the Court concluded that the
Board's manifestly changed outcome conclusion was not arbitrary or capricious, there would be
no need to assess prejudice with respect to any Board error on sections 105 and 1111 because the
Board in essence would have corrected its own error and adequately explained that there would be
no manifestly changed outcome even if the RO applied sections 105 and 1111. In this hypothetical
belt-and-suspenders approach, although the Board's belt approach contained error, its suspenders
5
As the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has recognized, because the "arbitrary
or capricious" and "clearly erroneous" standards are so similar, the differences between them are "in actual practice a
matter for academic debate." Munn v. Dept. of Health & Hum. Servs., 970 F.2d 863, 872 (Fed. Cir. 1992); Butts,
5 Vet.App. at 544 (arguing that there is no material difference between the "arbitrary or capricious" standard and the
"clearly erroneous" test) (Steinberg, J., concurring).
6
The Court cautions that, if the Board commits a procedural error when making its CUE determination, we
would need to assess whether this procedural error prejudiced the claimant under the standards we articulate in the
next section of this opinion.
10
approach did not, and it fully supported its determination that there was no CUE in the RO's 1974
decision.
Things are quite different if the Board found no error and never took the additional step of
adequately analyzing whether the alleged error, had it occurred, would have manifestly changed
the outcome of the underlying decision. In that case, to comply with our statutory mandate to
account for prejudicial error, the Court would have to assess whether any Board error in concluding
that there was no error in the underlying RO decision was prejudicial to the claimant.
Here, after discussing why the statutes at issue were not relevant, the Board also stated that
"the Veteran has not offered an explanation as to how the outcome would have been manifestly
different but for the errors claimed," R. at 18, and then continued by stating that "to demonstrate
CUE in a Board decision, it must be clear that a different result would have ensued but for the
claimed error." Id. However, aside from noting Mr. Simmons's burden to show prejudice, the Board
did not sufficiently explain why the RO's failure to apply the presumptions would not have
manifestly changed the outcome in 1974. It gave no rationale for the Court to review under
section 7104(a)(3)(A) and, thus, violated section 7104(d)(1) by not providing adequate reasons
and bases. The Board did not adequately discuss whether the presumptions, if correctly applied,
would have manifestly changed the outcome of the claim. Given this, the Court now must assess
the harmfulness of the Board's failure to apply sections 105 and 1111, something we turn to next.
III. HARMLESS ERROR
Although the Board erred in its analysis of whether the presumptions of soundness under
section 1111 and service incurrence under section 105(a) should have been applied in the
September 1974 RO decision, as we explained, the Court has a duty to consider whether the
Board's errors prejudiced Mr. Simmons because the Board did not adequately address the
"manifestly changed outcome" portion of the CUE analysis. In reviewing a Board decision, this
Court must "take due account of the rule of prejudicial error." 38 U.S.C. § 7261(c)(2); Sanders,
556 U.S. at 406-07; Vogan v. Shinseki, 24 Vet.App. 159, 161-62 (2010). Congress's use of the
words "take due account" and "prejudicial error," the words used in the Administrative Procedure
Act (APA), inform us that we are to apply "the same kind of 'harmless-error' rule that courts
ordinarily apply in civil cases." Sanders, 556 U.S. at 406-07. Compare 38 U.S.C. § 7261(c)(2)
with 5 U.S.C. § 706 (APA: "The reviewing court . . . shall review the whole record . . . and due
11
account shall be taken of the rule of prejudicial error."). A review of legislative history confirms
that Congress expressly included a reference to the APA's rule of prejudicial error to guide this
Court in its application of that rule. See S. Rep. No. 100-418, p. 61 (1988).
In Sanders, the Supreme Court found no "relevant distinction between the manner in which
reviewing courts treat civil and administrative cases" and provided further guidance on how this
Court must conduct a harmless error analysis. 556 U.S. at 407-14. Specifically, the Supreme Court,
in invalidating a harmless-error framework established by the Federal Circuit, highlighted several
considerations that shape this Court's harmless error analysis. Id. Together, these considerations
inform us that prejudice is established by demonstrating a disruption of the essential fairness of
the adjudication, which can be shown by demonstrating that the error (1) prevented the claimant
from effectively participating in the adjudicative process, or (2) affected or could have affected the
outcome of the determination. As explained below, we conclude that the Board's errors did not
disrupt essential fairness; first, though, we review the basics of this Court's harmless error
framework.
First, a reviewing court's role in conducting a harmless error analysis is to assess whether
the error affected the claimant's substantial rights. See id. at 407. Generally, such consideration
equates to whether the result would be different had the error not occurred. See id. at 411; see also
Vogan, 24 Vet.App. at 163; S. Rep. No. 100-418, p.61 ("[A] court should pass over errors in the
record of the administrative proceedings that the court finds not to be significant to the outcome
of the matter."). However, courts must also consider the effect of the error on the "perceived
fairness, integrity, and public reputation of judicial proceedings." Sanders, 556 U.S. at 411-12; see
Vogan, 24 Vet.App. at 163.
Second, a harmless error analysis generally should be conducted through a case-specific
application of judgment based upon examination of the individual record, rather than based on
mandatory presumptions of prejudicial error and rigid rules. Sanders, 556 U.S. at 407-08 (noting
that the statutory language of the federal harmless-error rule "seeks to prevent appellate courts
from becoming impregnable citadels of technicality" (citing Kotteakos v. United States, 328 U.S.
750, 759 (1946))).
Third, irrespective of the prohibition against mandatory presumptions of prejudice, courts
may make generalizations about the types of errors that typically prove harmful to claimants. Id.
at 411 (noting that reviewing courts may learn over time that certain errors naturally affect a
12
litigant's substantial rights (citing Kotteakos, 328 U.S. at 760-61)). Although these generalizations
must not control, courts may consider these "natural effects" in conducting a harmless error
analysis. Id. The Supreme Court cautioned, however, that courts must not generalize too broadly,
but instead may consider these "natural effects," along with other factors, within "the specific
factual circumstances in which the error arises." Id. at 411-12. Of note, the Supreme Court
specifically acknowledged that it is this Court "that sees sufficient case-specific raw material in
veterans' cases to enable it to make empirically based, nonbinding generalizations about 'natural
effects,'" and is better able to make informed judgments regarding "natural effects." Id. at 412.
Fourth, the appellant generally bears the burden of demonstrating the prejudicial effect of
an error. Id. at 409-11. In circumstances where the prejudicial effect of an error is not obvious, the
aggrieved party "normally must explain why the erroneous ruling caused harm." Id. at 410. The
goal is not to "impose a complex system of 'burden shifting' rules or a particularly onerous
requirement," but is an acknowledgement that in administrative cases, like in civil cases, the
appellant is generally in a better position to explain how they have been harmed by an error. Id.
Finally, specific to the veterans benefits context, and underpinning all of the considerations
above, the Supreme Court acknowledged some leeway in conducting a harmless error analysis due
to the non-adversarial nature of the veterans benefits system. Id. at 412. As VA is statutorily
obliged to assist veterans in the development of their claims and as veterans are often
unrepresented throughout the administrative process, a reviewing court might consider an error
harmful in a veteran's case where it might be considered harmless in other circumstances. Id.
Although Sanders provides a general framework for this Court's harmless error analysis,
this case presents an opportunity for us to expand upon that framework, particularly in the context
of our review of Board decisions on CUE motions.
A. Inherent Prejudice in Failing to Afford the Benefit of Two Presumptions?
Mr. Simmons argues that the Board's failure to recognize that the RO in 1974 should have
afforded the benefit of the presumptions of soundness and service incurrence was sufficiently
harmful that our harmless error analysis should end there. See Appellant's Supplemental (Supp.)
Br. at 11-13; Oral Argument at 1:10:34-1:13:16; 1:16:28-1:16:55. He argues that the essential
fairness of the adjudicative process is disrupted if the Board fails to correctly apply mandatory
statutory and regulatory presumptive provisions. See Appellant's Supp. Br. at 11-13; Oral
Argument 1:13:00-1:13:16 (''[C]learly, when a presumption is afforded by Congress or when VA
13
itself creates a regulatory presumption, then those presumptions have to be afforded for there to
be the essential fairness of an adjudication."). Further, he argues that if the Court's harmless error
analysis focuses solely on whether correction of the Board's error manifestly would result in a
different outcome, it would undermine the importance and value of statutory and regulatory
presumptions, see Oral Argument at 1:06:50-1:08:36, and "the totality of the adjudication process
would be insulated from review and revision," Appellant's Supp. Br. at 13.
As noted, usually a harmless error determination is conducted through case-specific
application of judgment without relying on mandatory presumptions of prejudicial error. See
Sanders, 556 U.S. at 407-08. Contrary to the Supreme Court's instruction in Sanders to avoid
mandatory presumptions of prejudice, Mr. Simmons implores this Court to find that failure by the
Board to properly apply a statutory or regulatory provision is inherently prejudicial. He argues
that, because the benefit of a presumption is to relieve a claimant from the burden of providing
evidence of the relevant issue, failure to afford a claimant the benefit of the presumption is unfair,
naturally harmful to the claimant, and undermines the essential fairness of the adjudicative process.
See Appellant's Supp. Br. at 10-11; Oral Argument at 1:13:00-1:13:16; see also Oral Argument at
7:00-8:02, 25:07-26:56, 33:15-34:13, 1:06:50-1:08:37. He argues that such "natural effect" should
lead this Court to an obvious conclusion of prejudicial error. Although no doubt such failure could
prejudice a veteran, were this Court to adopt a presumption of prejudice in such circumstances, we
would risk negating our statutory obligation to take due account of the rule of prejudicial error.
Nevertheless, Sanders left the door open for this Court to make non-binding generalizations about
inherently prejudicial errors, that is, errors where the "natural effect" is prejudicial. 556 U.S. at
411-12.
We have held on several occasions that VA claimants are entitled to a fair adjudicative
process that includes certain rights and procedural safeguards. See, e.g., Thurber v. Brown,
5 Vet.App. 119, 123 (1993) ("The entire thrust of [] VA's nonadversarial claims system is
predicated upon a structure which provides for notice and an opportunity to be heard at virtually
every step in the process."); Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993) (holding that VA
claimants must be afforded "full benefits of . . . procedural safeguards" afforded by statutory and
regulatory provisions establishing "extensive procedural requirements to ensure a claimant's right
to full and fair assistance and adjudication in the VA adjudication process"). When an error
abrogates the essential fairness of the adjudication or deprives a claimant of a meaningful
14
opportunity to participate in the processing of their claim, the error has the "natural effect" of being
prejudicial. See Sanders, 556 U.S. at 411; see also Overton v. Nicholson, 20 Vet.App. 427, 434-
35 (2006) ("A procedural or substantive error is prejudicial when the error affects a substantial
right that a statutory or regulatory provision was designed to protect." (citing McDonough Power
Equipment, Inc. v. Greenwood, 464 U.S. 548, 553 (1984))).
We have not identified a finite set of errors that affect essential fairness or deprive a
claimant of a meaningful opportunity to participate in the VA adjudicatory process. In Overton,
pre-dating Sanders, we noted that proper notice regarding the evidence necessary to substantiate a
claim and the person responsible for obtaining such evidence was significant in ensuring that a
claimant was provided a meaningful opportunity to participate effectively in the processing of the
claim. 20 Vet.App. at 435. In Vazquez-Flores v. Shinseki, post-dating Sanders, we noted that VA's
lack of notice or defective notice to a veteran of evidence necessary to substantiate a claim would
have a naturally prejudicial effect, but that incomplete notice would not necessarily have a
naturally prejudicial effect because it would not prevent veterans from participating in the
adjudication of their claims. 24 Vet.App. 94, 105-07 (2010). In Arneson v. Shinseki, we found that
failure to afford an opportunity for a hearing before all Board decisionmakers deprived the
claimant of an opportunity to meaningfully participate in the adjudicatory process. 24 Vet.App.
379, 388-89 (2011); but see Bowen v. Shinseki, 25 Vet.App. 250, 253-54 (2012) (finding no
prejudicial error where the veteran was not provided a hearing at the RO level because the veteran
was provided an opportunity for a hearing before the Board).
Other courts have considered similar factors when determining whether an error affected
the essential fairness of the decision-making process. See, e.g., United States v. Young, 470 U.S.
1, 17 n4 (1985) (noting that federal courts have consistently required that for an error to be
prejudicial, it must have an effect on jury deliberations—"[o]nly then would the court be able to
conclude that the error undermined the fairness of the trial and contributed to a miscarriage of
justice"); Smith v. Phillips, 455 U.S. 209, 217-21 (1982) (noting that due process does not require
a new trial every time a juror is placed in a potentially compromising situation, particularly where
the facts found demonstrated that the juror's conduct did not affect their impartiality); United States
v. Reynolds, 710 F.3d. 498, 516-19 (3d Cir. 2013) (noting a distinction between technical errors in
an agency's notice and comment procedures and an agency's "utter failure" to comply with notice
and comment requirements); California Wilderness Coalition v. U.S. Department of Energy,
15
631 F.3d 1072, 1092 (9th Cir. 2011) (noting that harmless error is error that "has no bearing on the
procedure used or the substance of the decision reached." (internal citation omitted)); United States
v. Rivera, 273 F.3d 751, 757 (7th Cir. 2001) (finding an errant jury instruction prejudicial where
it "had serious potential to affect the outcome" and thus "undermined the essential fairness and
integrity of the trial"); Ficek v. Southern Pacific Company, 338 F.2d 655, 657 (9th Cir. 1964)
(distinguishing between "substantive fairness" and "essential fairness" of an arbitration, the latter
meaning that the arbitration proceeding met the minimal requirements of fairness—notice, a full
and fair hearing, and a decision based on the honest judgment of the adjudicators); see also
McDonough Power Equipment Inc., 464 U.S. at 553 (noting that "a litigant is entitled to a fair trial
but not a perfect one" (internal citation and alteration omitted)).
Mr. Simmons asks us to equate the Board's failure to ensure that the RO in 1974 afforded
him the benefit of two statutory presumptions, which, if afforded, would result in fulfillment of
one of three elements of service connection, with failure to afford various due process and other
safeguard factors related to ensuring that justice is served and that lie at the core of any decision-
making process. See Oral Argument at 1:12:31-1:13:00. But we do not agree that the two are
equivalent. Aside from stating that the natural effect of failure to abide by these presumptions is
harmful, Mr. Simmons has not persuasively demonstrated how the Board's error affected the
essential fairness of the adjudication as to CUE here, or deprived him of a meaningful opportunity
to participate in the fair processing of his claim. There is no indication that the Board's errors
undermined the essential fairness and integrity of VA's decision-making process in relation to his
CUE motion and he points to no factor on a scale with lack of notice, defective notice, lack of
opportunity for a hearing, partiality or dishonesty of a decision-maker, or any other factor that
would violate even minimum standards of fairness. Particularly here, where the presumptions at
issue relieve a claimant of affirmatively providing evidence on a single element out of several
required for success, the failure to properly apply a presumption does not have the natural effect
of preventing meaningful participation in the VA decision-making process. Therefore, even
considering the pro-claimant nature of the veterans benefits system, we hold that the failure to
afford the benefit of the type of statutory or regulatory presumption at issue in this case is not an
inherently prejudicial error, although it may nevertheless be prejudicial in a particular case.
16
B. When No Inherent Prejudice, Look at Individual Circumstances
As we have found that the Board's error in Mr. Simmons's case—the failure to properly
afford him the benefit of the aforesaid statutory presumptions—is not inherently prejudicial, we
must now look at the individual circumstances surrounding the Board's error to determine if it
prejudiced Mr. Simmons. In cases not involving allegations of CUE, this usually involves looking
at the effect of Board error on the Board's ultimate decision to determine if the error prejudiced
the claimant.
But Mr. Simmons argues that this Court's Archer decision prohibits the Court in this case
from assessing prejudice as we normally do. See Oral Argument at 3:42-6:19, 8:02-8:46, 24:33-
25:07; 34:59-35:58, referring to Archer, 3 Vet.App. at 437 (In reviewing a Board decision on a
CUE motion, "[w]e cannot conduct a plenary review of the merits of the original decision; rather,
we are limited to determining whether the [Board's] subsequent decision . . . was arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law." (internal citation
omitted)); see also Andrews, 18 Vet.App. at 181-82 (reiterating our standard of review of a Board
decision on a CUE motion, as enunciated in Archer). He argues that this Court's usual harmless
error review, which generally involves determining whether Board error would have made a
difference in a benefits determination outcome, would compel us to engage in plenary review of
the underlying facts of the RO decision, an endeavor that the Court in Archer prohibited. For
several reasons, the Court disagrees.
First, in Archer the Court did not engage in a harmless error analysis, because it did not
find any error in Mr. Archer's Board decision. Its pronouncement prohibiting plenary review
therefore only applied to the kind of review that it conducted in Mr. Archer's case—the Court's
review of Mr. Archer's Board decision for arbitrariness or capriciousness. Therefore, the Court
concludes that the Archer prohibition against plenary review of the underlying facts does not apply
at the stage where we shoulder our statutory obligation to examine for prejudicial error, consequent
to finding that the Board erred in its CUE determination.
Essentially, although Mr. Simmons argues that our harmless error analysis cannot involve
a plenary review of the underlying facts, his argument overlooks that the Court in reviewing a
Board decision on a CUE motion undertakes two separate inquiries. The prohibition on plenary
review applies when the Court is determining whether the Board decision is arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law. In contrast, when conducting a
17
harmless error analysis, the Court has already determined that the Board has erred and that the
Board did not address, or did not address adequately, whether, if the underlying decision were
incorrect, the outcome would manifestly have been different. In that context, the Court is
determining whether the Board error was prejudicial or affected the essential fairness of the
adjudication. See Sanders, 556 U.S. at 411-12; Arneson, 24 Vet.App. at 388-89; Vogan,
24 Vet.App. at 163. That inquiry must go beyond the Board's analysis because "[t]he Board cannot
predict every instance in which it might be found to have committed error," and, therefore, "cannot
be expected to make specific factual findings that might facilitate a prejudicial error analysis."
Vogan, 24 Vet.App. at 163; see id. at 163-64 ("If the Court's review were restricted to findings
made by the Board, the usefulness of Congress's direction that we examine an error for prejudice
would be marginalized as a tool for avoidance of remands that entail no realistic prospect of an
outcome more favorable to a veteran."). Undertaking harmless error review after finding Board
error in a Board decision on a CUE motion does not violate Archer but instead begins a separate,
statutorily required step in our review of a Board decision on CUE.7
Second, precedent indicates that the Court's harmless error analysis is exceedingly broad.
In Newhouse v. Nicholson, the Federal Circuit noted that section 7261(b)(2) does not limit our
prejudicial error analysis to the facts as found by the Board, but rather requires a full review of the
record to determine if the error is prejudicial. 497 F.3d. 1298, 1302 (2007). Similarly, in Vogan,
we held that the statute "places no limitations on the scope" of a harmless error analysis.
24 Vet.App. at 163; see Mayfield v. Nicholson, 19 Vet.App. 103, 114 (2005) (noting that the
Court's ability to take due account of the rule of prejudicial error "leaves us with considerable
latitude as to how to 'take due account'"), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006).
Having determined that the Board erred, that those errors did not have the natural effect of
prejudicing Mr. Simmons, and that conducting a prejudicial error analysis here will not violate
Archer, we turn now to determining whether the Board's errors prejudiced Mr. Simmons. See
7
This discussion is similar to the one set forth above concerning the different inquiries that the Court may
make in reviewing Board decisions regarding CUE. When the Court reviews whether a Board's determination
regarding the existence of CUE is arbitrary or capricious, Archer has force. The Court does not look through the Board
decision to assess the underlying decision that is the subject of the CUE motion. In contrast, when the Court is
determining whether any Board error is prejudicial to the appellant, the Court is considering prejudicial error as an
original matter. Because the Board's CUE determination involves a "manifestly different outcome" component, the
only way to assess any prejudice in a Board error is to consider the decision that is the subject of the CUE motion.
18
Sanders, 556 U.S. at 411-12; Vazquez-Flores, 24 Vet.App. at 107 ("[P]rejudice is not assessed in
a vacuum; rather it is based on the facts and circumstances presented in the entire record."). That
inquiry must be guided by whether essential fairness was disrupted by the error, usually
demonstrated by determining whether the error affected the Board's ultimate decision or prevented
the claimant from effectively participating in the process. See Sanders, 556 U.S. at 411-12;
Arneson, 24 Vet.App. at 388-89; Vogan, 24 Vet.App. at 163.
The Court concludes that the Board errors did not prevent Mr. Simmons from participating
in the processing of his CUE motion or affect the overall fairness of the adjudicative process. Mr.
Simmons, through counsel that currently represents him before this Court, initiated his CUE
motion in December 2005. R. at 326-33. In his original motion, and in subsequent statements, Mr.
Simmons, through counsel, advanced arguments similar to those he now raises—that the RO did
not apply the presumptions of soundness and service incurrence. See R. at 194-202, 293-300, 326-
33. The Board specifically addressed these contentions in the May 2016 decision here on appeal.
R. at 14-18. Although the Court concludes that the Board itself misapplied the statutory
presumptions, there is no indication that Mr. Simmons has not been provided a meaningful
opportunity to participate in the processing of his CUE motion or that the overall adjudicative
process was unfair.
The Board's errors also did not affect its ultimate determination—that there was no CUE
in the September 1974 RO decision denying service connection for an acquired psychiatric
disorder—because, even if it had not made those errors, the Court concludes that the Board would
not have found CUE in the September 1974 RO decision. The presumptions of soundness and
service incurrence relieve a claimant of providing evidence that satisfies the second—or in-
service—prong of service connection; the presumptions do not relieve a claimant of providing
evidence of the third—or linkage—prong of service connection.8 See Holton, 557 F.3d at 1367;
Dye, 504 F.3d at 1292; Shedden, 381 F.3d at 1367; Horn, 25 Vet.App. at 236. Mr. Simmons argues
that the June 1974 private medical opinion provides that linkage. Appellant's Br. at 10; see
Appellant's Supp. Br. at 12. The June 1974 private medical opinion indicated that Mr. Simmons's
then-current (non-service-connected) inflammatory or rheumatoid arthritis began during service,
manifesting itself in service as depression. Despite Mr. Simmons's assertions to the contrary, the
8
The parties agree that, in 1974, Mr. Simmons had evidence sufficient to satisfy the first prong of service
connection—a current disability.
19
private physician did not provide an opinion linking his then-current acquired psychiatric disorder
to his in-service diagnoses of depressive reaction and situational depression or to any symptoms
of mental depression.
And, even assuming that the opinion was favorable linkage evidence, the record before the
RO in September 1974 also included the August 1974 VA examiner's opinion that Mr. Simmons's
acquired psychiatric disability was secondary to a non-service-connected arthritic condition. R. at
1457. Therefore, despite his arguments, the Court cannot agree with Mr. Simmons that "[h]ad the
presumption[s] been afforded[,] based on the evidence of nexus in the record, an award of service
compensation would have been required." Appellant's Supp. Br. at 12.
Finally, the Court notes that, during oral argument, Mr. Simmons argued that, had VA
properly applied the statutory presumptions, it would have triggered additional duties to develop
the record for additional evidence. See Oral Argument at 15:48-19:57. To the extent that he is
suggesting correction of the Board's error would trigger the Board to develop additional evidence,
the Board's adjudication of CUE motions must be made on the evidence that existed at the time of
the original decision. See Pierce v. Principi, 240 F.3d 1348, 1354 (Fed. Cir. 2001); Caffrey v.
Brown, 6 Vet.App. 377, 383 (1994). Therefore, it is unclear what additional evidence the Board
would have been required to develop. To the extent that Mr. Simmons is suggesting that the
correction of any RO error in failing to apply the same statutory presumptions would have triggered
additional development by the RO in 1974, duty-to-assist errors can never rise to the level of CUE.
Cook v. Principi, 318 F.3d 1334, 1346-47 (2002); Caffrey, 6 Vet.App. at 383-84.
In summary, although the Board erred in its analysis of whether the presumptions of
soundness and service incurrence applied in September 1974, its error neither affected a substantial
right that disrupted the fundamental fairness of the adjudication nor affected its ultimate
determination. Because, even with correction of its error with regard to sections 1111 and 105(a),
the Board could not have found CUE in the September 1974 RO decision, the Board's error is
harmless. See, e.g., Sanders, 556 U.S. at 411-12; Vogan, 24 Vet.App. at 163. Therefore, this matter
will be affirmed.
IV. CONCLUSION
Upon consideration of the foregoing, the May 13, 2016, Board decision is AFFIRMED.
20
|
Because the district court order does not resolve all claims
raised below it is not a final order. Therefore, we lack jurisdiction over
this appeal and we
ORDER this appeal DISMISSED.
cc: Hon. Michael Montero, District Judge
Karla K. Butko
Attorney General/Carson City
Humboldt County District Attorney
Humboldt County Clerk
Antonio Pimentel Contreras
2
|
20 So.3d 578 (2009)
Corinne Renee FONTANA
v.
James Craig LANDRY.
No. 09-322.
Court of Appeal of Louisiana, Third Circuit.
October 7, 2009.
*579 Anthony J. Fontana, Jr., Attorney at Law, Abbeville, LA, for Plaintiff/Appellee, Corinne Renee Fontana.
G. Paul Marx, Attorney at Law, Lafayette, LA, for Defendant/Appellant, James Craig Landry.
Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
SULLIVAN, Judge.
A former husband appeals the judgment partitioning community property between himself and his ex-wife. We vacate and remand.
FACTS AND PROCEDURAL HISTORY
Corinne Renee Fontana and James Craig Landry were married on June 28, 2002. Fontana filed a petition for divorce on December 10, 2004. Landry, in proper person, filed an acceptance of service and waiver of citation on January 5, 2005. A consent judgment was signed by the trial court on February 24, 2005, declaring that the community property regime existing between the parties was terminated retroactive to the date the petition for divorce had been filed. Landry did not contest the divorce petition, and, following a hearing, a judgment of divorce was signed on August 30, 2005. Landry did not appear at the divorce hearing. In March of 2006, after having retained counsel, Landry filed a petition for partition of community property. After Landry and Fontana had each filed a sworn descriptive list, Landry requested that the partition be set for trial.
On October 25, 2006, the trial court signed an order setting the matter for trial on December 11, 2006. Stamped on the bottom left corner of the order was a note, signed by a Deputy Clerk on November 14, 2006, stating that the matter was also set for hearing on January 16, 2007. There is nothing in the original appellate record to indicate why the matter did not proceed to trial on either of the two dates listed on the October 25, 2006 order. Nevertheless, Landry's attorney, Louis G. Garrot, *580 filed a motion to withdraw as counsel of record for Landry on April 22, 2008. In the motion, Mr. Garrot stated that there were no hearings, conferences, or trials scheduled and that no scheduling order was in effect.
The trial of the partition took place on July 15, 2008. According to the court minutes, Landry was not present in court that day, although he had "been officially notified by previous counsel, Louis G. Garrot[,] and had not filed any opposition to the rule." The transcript of the proceeding indicates that the bailiff "sounded" the hall and received no response from Landry. The transcript further reveals that the trial court inquired as to whether Landry had been given notice of the proceeding and that counsel for Fontana answered in the affirmative. After taking evidence and testimony, the trial court rendered a judgment of partition. Fontana was awarded complete ownership of: (1) the community home located at 611 North State Street in Abbeville, Louisiana; (2) all movables in her possession, including the community pets; and (3) her retirement with the Louisiana Public Teacher's Retirement System. Fontana was ordered to assume the community debt owed on the home and to hold Landry harmless from that debt. Landry was awarded ownership of all movables in his possession. The parties were ordered to assume the credit card debt that each had taken at the time of their separation and to hold each other harmless for that debt. Judgment was rendered in favor of Fontana and against Landry in the amount of $26,814.70, and Landry was ordered to pay all costs of the proceeding. Notice of signing of the judgment was mailed to Landry on July 22, 2008, at the address listed in his former attorney's motion to withdraw as counsel of record.
Landry now appeals. In his sole assignment of error, he claims that the trial court erred in rendering judgment because he had not been served with formal notice of the partition trial. In addition, Landry complains that after his attorney withdrew, Fontana filed two amended detailed descriptive lists, neither of which indicate that he was provided with notice of their having been filed.
DISCUSSION
The rules and procedures applicable to the partition of community property are located in La.R.S. 9:2801. Those rules provide that "each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities." La.R.S. 9:2801(A)(1)(a). They further provide that "[w]ithin sixty days of the date of service of the last detailed descriptive list, each party shall either traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party." La.R.S. 9:2801(A)(2) (emphasis added).
Louisiana Code of Civil Procedure Article 1571 provides that:
A. (1) The district courts shall prescribe the procedure for assigning cases for trial, by rules which shall:
(a) Require adequate notice of trial to all parties; and
(b) Prescribe the order of preference in accordance with law.
(2) These rules shall not allow the assignment of ordinary proceedings for trial except after answer filed.
Rule 24.0, Fifteenth Judicial District Rules of Court (local rule 24), provides, in pertinent part, that "all parties must have actual notice not less than 10 days before trial of a rule or on the merits." (Emphasis *581 added). Local rule 24 further provides that "[n]otice of the scheduled trial date and any pertinent scheduling orders shall be mailed by the clerk of court to all counsel of record or unrepresented parties."
On appeal, Landry contends that there is nothing in the record to indicate that he was provided with any notice regarding the July 15, 2008 partition trial. He points out, however, that after the judgment of partition was rendered, he was sent formal notice of the judgment at the address listed in Mr. Garrot's motion to withdraw. In addition, Fontana filed a pretrial memorandum on the morning of the partition trial which, similar to the amending detailed descriptive lists that Fontana had filed, did not contain any certificate of service. Attached to that memorandum was an exhibit consisting of more than 100 pages of documentation in support of Fontana's reimbursement claim in the amount of $26,814.70, substantially more than her original reimbursement claim of only $7,771.84.
On April 22, 2009, after Landry had filed his appellant brief, a supplement record was filed in this matter. Contained therein is a letter from Fontana's attorney to the Vermilion Parish Clerk of Court, requesting that the appellate record be supplemented to include three notices of trial issued by the trial court to the attorneys of record, along with two letters from Mr. Garrot.[1] According to the supplemented record, the trial court mailed a Notice of Fixing of Case to the attorneys of record on November 16, 2006, setting the partition for trial on December 11, 2006; the notice indicated that the matter was also set for January 16, 2007. By agreement of the parties, the partition was removed from the January 16, 2007 trial docket and the matter was reset for March 27, 2007.[2] A Notice of Fixing of Case was again sent by the trial court to the attorneys of record indicating the date on which the partition had been reset. The March 2007 trial date was also continued without date by agreement of the parties.[3] On March 13, 2008, the trial court mailed another Notice of Fixing of Case to the attorneys of record setting the partition for May 9, 2008; the notice indicated that the matter was also set for July 15, 2008.
Fontana submits that the trial court complied with La.Code Civ.P. art. 1571 and local rule 24, as evidenced by the March 13, 2008 notice of trial which was sent to Mr. Garrot who was still representing Landry at the time. Fontana contends that it is "customary" in community property partition cases for the parties to file amending detailed descriptive lists up to and including the morning of trial. Accordingly, she seeks to have this court ignore the fact that some, if not all, of her amending detailed descriptive lists were not served on Landry or his attorney by *582 arguing that "[d]etailed descriptive lists are not pleadings that require an answer and are therefore not served upon or required to be served upon the other party." She argues that had Landry appeared at the July 15, 2008 trial, he could have objected to the trial court's consideration of those lists or requested a continuance if he could show that he had not been provided with the lists in advance of the trial. Fontana further submits that Landry has failed to offer proof that he did not receive the lists.
Finally, Fontana contends that Landry had notice of the July 15, 2008 trial but simply chose not to appear. Nevertheless, she questions why Landry's former attorney would have included in his motion to withdraw the statement that there were no hearings, conferences, or trials scheduled in the matter, and she states that "[t]his is an issue that should be taken up by the district court."
Our review of the record reveals that, although the motion to withdraw was granted on April 22, 2008, the certificate of service included in the motion was signed by Mr. Garrot on March 18, 2008, over a month prior to the date it was granted by the trial court and only five days after notice of the May 9, 2008, or, alternatively, the July 15, 2008 trial date had been mailed to him. In addition, none of Fontana's four detailed descriptive lists, including two that she filed subsequent to the trial court's grant of Mr. Garrot's motion to withdraw as Landry's counsel, contain a certificate of service[4] indicating that the pleading had been served on either Landry or his former attorney of record. On the other hand, the only detailed descriptive list filed by Landry included a certificate of service signed by his former attorney indicating that the pleading had been mailed to all counsel of record.
Uniform RulesCourts of Appeal, Rule 1-3 sets out the appellate scope of review and dictates that courts of appeal "will review only issues which were submitted to the trial court." See Guilbeaux v. Times of Acadiana, Inc., 94-1270 (La. App. 3 Cir. 8/9/95), 661 So.2d 1027, writ denied, 95-2942 (La.3/29/96), 670 So.2d 1238. Further, an appellate court must limit its review to the evidence in the record, and an appellate court cannot receive new evidence. Chenevert v. Hilton, 07-1223 (La.App. 3 Cir. 3/5/08), 978 So.2d 1078, writ denied, 08-731 (La.5/30/08), 983 So.2d 901.
We are of the opinion that the trial court acted reasonably in proceeding with the partition trial after being informed that Landry had been notified of the trial date by his previous counsel and had not filed any opposition to the partition going forward. However, because Landry chose to file an appeal, rather than seeking a remedy in the trial court, either through a motion for new trial or an action for nullity, the issues of whether he had proper notice of the partition trial and/or of Fontana's amending detailed descriptive lists were never presented to the trial court for review.[5] As a result, there is no evidence in the record to aid this court in determining the merits of Landry's appeal. Accordingly, we vacate the judgment of partition and *583 remand this matter to the trial court to hold an evidentiary hearing to address the issues identified herein and to ensure that there has been compliance with La.Code Civ.P. art. 1571, local rule 24, and La.R.S. 9:2801. The trial court is directed to give notice of the hearing to Landry, personally, as well as to all counsel of record.
DECREE
For the foregoing reasons, the July 15, 2008 Judgment partitioning the community between Landry and Fontana is vacated and this matter is remanded for an evidentiary hearing on the issues discussed herein. Costs are to be assessed by the trial court after it addresses the issues on remand.
VACATED AND REMANDED WITH INSTRUCTIONS.
NOTES
[1] According to La.Code Civ.P. art. 2128, the record on appeal "shall be a transcript of all the proceedings as well as all documents filed in the trial court" unless a party timely designates in writing which portions of the record are to constitute the record on appeal. It does not appear that either Landry or Fontana designated the record on appeal; thus, it is unclear why the documents contained in the supplemented record were not included in the original appeal record.
[2] A letter to the clerk of court from Landry's attorney, dated January 9, 2007, evidenced the parties' intention to reset the January 16, 2007 partition trial to March 27, 2007.
[3] A letter to the clerk of court from Landry's attorney, dated March 26, 2007, notified the trial court of the parties' request that the March 27, 2007 partition trial be set aside pending resolution of whether a house and lot owned by the parties was a partitionable asset.
[4] See La.Code Civ.P. art. 1313 which allows certain pleadings to be served by mail, delivery, or facsimile. The article directs that when service is made in any of those manners, the party or counsel making the service shall file in the record a certificate of the manner in which service was made.
[5] While it appears that Fontana has conceded in her appellee brief that Landry may not have been provided with copies of all of the amending detailed descriptive lists that she filed, briefs do not form part of the record on appeal. Chenevert, 978 So.2d 1078.
|
Order Michigan Supreme Court
Lansing, Michigan
February 7, 2018 Stephen J. Markman,
Chief Justice
Brian K. Zahra
Bridget M. McCormack
156869(47) David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement,
Justices
LINDA BASS,
Plaintiff-Appellee,
SC: 156869
v COA: 332217
Oakland CC: 2015-150655-NM
KEVIN J. PETERS and SERAFINI
MICHALOWSKI DERKACZ & ASSOCIATES,
PC,
Defendants-Appellants.
________________________________________/
On order of the Chief Justice, the second motion of plaintiff-appellee to extend the
time for filing her answer to the application for leave to appeal is GRANTED. The
answer will be accepted as timely filed if submitted on or before February 22, 2018. No
further extensions will be granted.
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.
February 7, 2018
Clerk
|
356 F.2d 702
UNITED STATES of America, Appellant,v.TRANSOCEAN AIR LINES, INC., et al., Appellees.
No. 21877.
United States Court of Appeals Fifth Circuit.
February 23, 1966.
Harvey L. Zuckman, Sherman L. Cohn, Attys., Dept. of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., William A. Meadows, Jr., U. S. Atty., Alan S. Rosenthal, Attorney, Department of Justice, Washington, D. C., for appellant.
Joseph A. Perkins, John Houston Gunn, Miami, Fla., for appellees.
Before JONES and BELL, Circuit Judges, and JOHNSON, District Judge.
WARREN L. JONES, Circuit Judge:
1
Transocean Air Lines, Inc., which is nominally an appellee in this cause, was one of several irregular air carriers which were engaged during the Korean conflict in transportation for the account of the United States. A dispute arose between the carriers, or some of them, and the Government resulting in litigation in the District Court for the Southern District of Florida. This Court, in 1960, set out the basis upon which the carriers were to be compensated. United States v. Associated Air Transport, 5 Cir., 275 F.2d 827. Transocean had intervened as a plaintiff in the action in August of 1957, more than eight years ago. It employed as counsel Messrs. Jeptha P. Marchant and Joseph A. Perkins of the Miami bar to represent it in the litigation and agreed to compensate them with a onethird interest in any judgment, with authority to collect the proceeds of any judgment and retain their one-third interest before remitting the balance. The judgment of this Court was issued on April 19, 1960. On July 14, 1960, the district court entered a judgment upon the opinion and mandate of this Court. It was provided in this judgment that the parties, the plaintiff-intervenors, including Transocean, and the Government should immediately confer and attempt to reach an agreement. In the event of a disagreement as to the amount due on any of the claims, a reference should be made to a commissioner or special master appointed in the judgment. At this juncture the Government filed an accounting showing the balance, as computed by it, of $69,785.70 owing by it to Transocean.
2
Transocean, after an unsuccessful effort to get its affairs worked out by a Chapter XI Bankruptcy arrangement, became a conventional bankrupt and John Costello was appointed as its Trustee. The bankruptcy proceedings are in the District Court for the Northern District of California. In the bankruptcy proceeding the United States asserted priority claims in excess of $500,000. The United States and the Trustee in Bankruptcy, in California, stipulated that the Florida litigation would be settled for $75,000 by a credit upon the claim of the Government. This agreement was approved by the district court in California. The next move was the filing, in the district court of Florida, of a paper which, before the adoption of the Rules, might have been styled a praecipe. It was styled "Dismissal with Prejudice" and was addressed to the clerk. It authorized and directed the entry of a dismissal with prejudice of the intervention of Transocean. It was signed by the Trustee and his California counsel. A motion was made in the names of "Transocean Air Lines, Inc., and/or Jeptha P. Marchant and Joseph A. Perkins" reciting that as a result of the compromise for $75,000 Marchant and Perkins became entitled to a minimum of $25,000 and that nothing remained to be done in the litigation except a simple accounting. The motion sought the "Dismissal with Prejudice" be stricken and that the clerk be instructed to file nothing except on order of the Court. In the alternative, Messrs. Marchant and Perkins asked for judgment of not less than $25,000. California counsel for the Trustee sent Marchant and Perkins a telegram stating that the latter were not authorized to move to vacate the dismissal on behalf of the Trustee.
3
A judgment was entered by the district court vacating the clerk's entry of dismissal, reciting a compromise settlement of $75,000, and adjudging that Transocean recover $75,000 from the United States. On the day after the entry of the judgment, Marchant and Perkins filed a petition asserting a charging lien for their attorneys' fees to the extent of the agreed third of the recovery. After a hearing, the court entered an order allowing "a charging lien to the extent of their fee to be determined upon the judgment and/or funds" due to Transocean. The Government has appealed from the judgment and the order allowing the lien.
4
The Government insists that it was error for the district court to strike the Trustee's dismissal. The adjudication in bankruptcy of Transocean did not, of itself, substitute the Trustee in bankruptcy in the litigation pending in Florida. There should have been a motion and an order. Since the Trustee did not seek to be substituted for Transocean, it did not become a party. Rule 25(c) Fed.Rules Civ.Proc., 28 U.S.C.A.; Liberty Broadcasting System v. Albertson, W.D.N.Y. 1953, 15 F.R.D. 121. In one of the hearings before the district court an attorney was present who announced that he was there as an observer for the California counsel for the Trustee but for no other purpose. It might be assumed that the Trustee wished to avoid any act that might be regarded as the act of a party to the cause. Even though the bankruptcy Trustee had become a party, which he did not, the dismissal could not have been effected without an order of the court. Only when there has been a notice of dismissal filed before the filing of an answer or motion for summary judgment, or when a stipulation of dismissal has been filed by all parties, can a dismissal be effected without a court order. Rule 41 (a) (1) Fed.Rules Civ.Proc. 28 U.S.C.A. Without a dismissal, properly obtained, the cause remained pending in the name of Transocean. Cf. Meyer v. Fleming, 327 U.S. 161, 66 S.Ct. 382, 90 L.Ed. 595. The motion to strike the dismissal was filed on March 6, 1964. In the record, filed on April 7, 1964, is a copy of an order of the California Referee in Bankruptcy authorizing the Trustee to compromise the Florida litigation, and annexed is a copy of a stipulation reciting that the United States had filed claims of more than $500,000, which are referred to as "contingent," purporting to settle the Florida litigation for a set off of $75,000 against the Government claims. The Rule requires that for a dismissal by stipulation to be effective, the stipulation must be filed. The stipulation was not apparently intended as a dismissal. It provides that "the trustee will forthwith dismiss." The contemplated dismissal was not to be effected by the stipulation but by an act of the Trustee to be done subsequently. The Trustee, not being a party, could not have stipulated under the Rule even though there had been an effort to procure a dismissal by stipulation.
5
The dismissal was improperly entered and should have been set aside, not only for the technical reasons heretofore assigned, but because a perfected charging lien of attorneys cannot be defeated by a dismissal by stipulation under Rule 41. 5 Moore's Federal Practice 1025, Par. 41.02[2]; Ingold v. Ingold, S.D.N.Y. 1939, 30 F.Supp. 347.
6
The United States urges that Messrs. Marchant and Perkins have no lien. The United States seems to concede that the law of Florida will govern the right to an attorney's lien. Such concession is a proper one. Webster v. Sweat, 5th Cir. 1933, 65 F.2d 109. The United States stresses Sentco, Inc. v. McCulloh, Fla., 84 So.2d 498, to sustain its contention that there is no lien in this cause. The Sentco case was not wholly unlike the case before us, but the differences preclude it from being a precedent requiring the United States to prevail. In Sentco, as here, the plaintiff's counsel had a case on a contingent fee basis. There, as here, they had been successful on an appeal, and thereafter a settlement was made without reckoning with counsel. But the parallel goes no farther. In Sentco the court on the first appeal said in its opinion, "any award for damages would be pure speculation." Sentco, Inc. v. McCulloh, Fla., 68 So.2d 577, 581. In this case the right to recover was upheld on appeal and the formula was stated as the basis for computing the amount. On remand a judgment was entered directing that the parties attempt to reach an agreement as to the amount due and in the event of disagreement such matters should be presented to the Commissioner [Special Master] for determination of the amounts due. Nothing remained to be done but the making of the computation. The right of Transocean to recover was determined and only the amount was to be fixed. The judgment was such as ripened the charging lien of counsel and gave to them a vested right to participate in the recovery. It is not necessary that the question be decided on this appeal but it seems to be the law of Florida that a contract for the payment of attorneys' fees out of the judgment recovered operates as an equitable assignment of the fund pro tanto and creates a lien. Forman v. Kennedy, 156 Fla. 219, 22 So.2d 890.
7
It is the rule in Florida that while parties have a right to settle controversies out of court, any such settlement without the knowledge of or notice to counsel and the payment of their fees is a fraud on them, whether so intended or not. Miller v. Scobie, 152 Fla. 328, 11 So.2d 892. See Mabry v. Knabb, 151 Fla. 432, 10 So.2d 330; Harper v. Strong, 135 Fla. 10, 184 So. 848. Where an action was dismissed on stipulation after a settlement which ignored the rights of counsel under a contingent fee agreement, the order of dismissal would be reversed so that the case could be continued for the enforcement of the lien of counsel. Miller v. Scobie, supra.
8
The Government makes the contention that the district court in Florida was without jurisdiction to determine the lien claim or to permit recovery of attorneys' fees. The remedy, says the Government, is to file a claim in the bankruptcy proceedings. The lien is annexed to the judgment and is enforceable in the court where the judgment is entered. That court may protect and enforce the lien so that the benefits of the attorneys' services may not be obtained without paying for them. Reid v. Aderhold, 5th Cir. 1933, 65 F.2d 110, cert. den. 290 U.S. 676, 54 S.Ct. 104, 78 L.Ed. 584. See also Sherman v. Buckley, 2nd Cir. 1941, 119 F.2d 280, cert. den. 314 U.S. 657, 62 S.Ct. 110, 86 L.Ed. 527. It may be appropriate at this point to say that the objections to the court's jurisdiction are not raised by the Trustee but by the Government.
9
We are told by the Government that there is no basis for the entry of a judgment for $25,000. The position is taken, apparently, that the $75,000 settlement figure was binding only in the event the Florida suit was dismissed. This inference is not warranted. There was nothing conditional in the stipulation that "The agreed sum of $75,000, which sum constitutes the settlement of the Florida action herein above referred to will be set off against the claims of the United States filed in the subject [bankruptcy] proceedings in the Northern District of California." While not so intended, the stipulation between the Government and the Trustee was about such a stipulation as the district court, in its judgment on the mandate of this Court, directed the parties to attempt. By a footnote in its brief the Government says that "it goes without saying" its liability under this Court's opinion would not equal $75,000. It urges that it agreed to $75,000 as a value to the Government of ending the litigation. The Government, in the Florida proceedings before the dismissal was attempted, submitted figures showing a liability of $69,785.70. In the brief of the appellees it is stated that "obviously" the amount due Transocean exceeded $75,000. There is no repudiation of the settlement. It was submitted to and approved by the bankruptcy court. We see no reason why the Government should not be bound by it as a basis for a determination of the percentage fee of Transocean's counsel.
10
The judgment of the district court has reached a result in conformity with the applicable law and which does justice to the parties. The judgment is
11
Affirmed.
|
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 8, 2008
No. 07-30866 Charles R. Fulbruge III
Clerk
EMMIT DUMAS,
Plaintiff - Appellant,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:05-CV-264
Before GARZA and ELROD, Circuit Judges, and HICKS,* District Judge.
PER CURIAM:**
Emmit Dumas (“Dumas”) appeals the district court’s grant of summary
judgment to defendant Union Pacific Railroad Company (“Union Pacific”) on
Dumas’ claims of retaliatory termination under Title VII and 42 U.S.C. § 1981.
For the following reasons, we AFFIRM.
*
District Judge of the Western District of Louisiana, sitting by designation.
**
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.
No. 07-30866
I
Dumas, an African-American, was employed by Union Pacific from 1995
until his termination in August 2004. He claims that he was terminated in
retaliation for testifying on behalf of another employee, Eddie Bibbins
(“Bibbins”), who had previously brought race discrimination charges against
Union Pacific. In January 2003, Bibbins complained to Union Pacific
management that one of his supervisors was using racial slurs. Union Pacific
undertook an investigation of the charge (the “Bibbins investigation”). During
this investigation, Joe Whalen, a Superintendent at Union Pacific, interviewed
Dumas regarding Bibbins’ allegations.1 Dumas corroborated Bibbins’ claims.
Bibbins then filed an EEOC Charge, and eventually filed suit against Union
Pacific in early 2004. Again, Dumas gave a statement supporting Bibbins’
claims. The parties eventually settled the Bibbins action and it was dismissed
with prejudice in September 2006.
In June 2003, shortly after Dumas’ involvement in the Bibbins
investigation, Dumas was elevated from the position of track foreman to track
inspector. As a track inspector, Dumas was required to inspect Union Pacific
track for compliance with the Track Safety Standard promulgated by the Federal
Railroad Administration (“FRA”) and to file an inspection report on the date any
inspection was made. See 49 C.F.R. §§ 212.203 and 213.241. The FRA is
charged with ensuring railroad compliance with the many applicable
regulations.
In July 2004, FRA inspector Nick Roppolo performed a routine audit for
an area covered by Union Pacific’s Livonia Service Unit and which included the
track for which Dumas was responsible. FRA regulations require track
1
Pertinent to this case, Whalen left the Livonia Service Unit, where Dumas worked, in
February 2004 and was replaced at that time by Monty Whatley, the Superintendent who eventually
signed Dumas’ letter of termination in August 2004.
2
No. 07-30866
inspectors to check with a dispatcher to ensure that the areas to be inspected are
free of traffic during the time when inspections will be done. During the audit,
Roppolo discovered that the track inspection records entered by Dumas did not
match the authority dispatching records, which indicated that Dumas had
performed track inspections on multiple occasions without receiving authority
from the dispatch center for such inspections. The records entered by Dumas
indicated that he had received proper authority from dispatch. Roppolo’s audit
report recommended the FRA impose fines against Union Pacific for the failure,
and require Union Pacific to provide the FRA with written notice of remedial
action taken in response to the violations.
Based on Roppolo’s audit findings, Union Pacific charged plaintiff with a
violation of General Code of Operating Rule 1.6, which proscribes employee
dishonesty. A formal investigation, with Dumas aided by union representatives,
was held in August 2004. The formal investigation resulted in a finding that
Dumas engaged in dishonest conduct. If Union Pacific finds a violation of Rule
1.6 based upon an employee’s dishonest conduct, the violation is a Level 5 out of
5 on Union Pacific’s discipline scale. The recommended discipline for a Level 5
violation is permanent dismissal. After this investigation, Union Pacific decided
to terminate Dumas. Monty Whatley, the Superintendent who replaced Joe
Whalen, signed a letter of termination which was sent to Dumas. The letter
indicated that Dumas was being terminated based on his dishonest conduct in
violation of Rule 1.6. Dumas appealed the decision to the Public Law Board,
which affirmed the termination decision.
Dumas then filed this action in federal court, claiming that he was
unlawfully terminated in retaliation for his participation in the Bibbins
investigation. Dumas alleged that his retaliatory termination violated the
Louisiana Employment Discrimination Law, Title VII of the Civil Rights Act of
1964, and 42 U.S.C. § 1981. Union Pacific moved for summary judgment on the
3
No. 07-30866
retaliation claims. The district court granted summary judgment in favor of
Union Pacific, adopting the recommendations of the magistrate judge, holding
that Dumas failed to demonstrate a causal connection between Dumas’ protected
activity and his termination and thus did not establish a prima facie case of
retaliation.
II
We review a district court’s summary judgment ruling de novo, applying
the same standard as the district court. Hockman v. Westward Commc’ns, LLC,
407 F.3d 317, 325 (5th Cir. 2004). A party is entitled to summary judgment “if
the pleadings, depositions, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact.” Fed.
R. Civ. P. 56(c). In reviewing a grant of summary judgment, we view the facts
in the light most favorable to the nonmoving party, in this case Dumas. See
Hockman, 407 F.3d at 325. A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a verdict for the non-
movant. See LeMaire v. La. Dep’t of Trans. and Dev., 480 F.3d 383, 387 (5th Cir.
2007).
III
Title VII forbids an employer from “discriminat[ing] against” an employee
or job applicant because that individual “opposed any practice” made unlawful
by Title VII or because the individual “made a charge, testified, assisted, or
participated in” a Title VII proceeding or investigation. See Burlington Northern
& Santa Fe Rwy. Co. v. White, 548 U.S. 53, 59 (2006) (citing 42 U.S.C. § 2000e-
3(a)). We apply the evidentiary framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973) to Title VII retaliation claims that
rely on circumstantial evidence. See Turner v. Baylor Richardson Med. Ctr., 476
4
No. 07-30866
F.3d 337, 348 (5th Cir. 2007).2 Under the McDonnell Douglas burden-shifting
framework, a plaintiff must first present a prima facie case of unlawful
retaliation. See Rios v. Rosetti, 252 F.3d 375, 380 (5th Cir. 2001). To establish
a prima facie case, the plaintiff must show that: (1) he engaged in protected
activity; (2) an adverse employment action occurred; and (3) a causal link exists
between the protected activity and the adverse employment action. See Turner,
476 F.3d at 348. A plaintiff need not show that the protected activity was the
“but for” cause of the adverse action to make his prima facie showing. See Gee
v. Principi, 289 F.3d 342, 345 (5th Cir. 2002).
If the plaintiff successfully establishes a prima facie case, the burden
shifts to the employer to articulate a legitimate, non-retaliatory reason for the
adverse employment action. See Lemaire, 480 F.3d at 388. If the employer
meets its burden and produces such a reason, the burden shifts back to the
plaintiff. See id. At this point, the plaintiff can pursue two options. The
plaintiff must show either: “(1) that the defendant’s reason is not true, but is
instead a pretext for discrimination (pretext alternative); or (2) that the
defendant’s reason, while true, is only one of the reasons for its conduct, and
another ‘motivating factor’ is the plaintiff’s protected characteristic (mixed-
motive[s] alternative).” Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th
Cir. 2004) (alteration in original); see Desert Palace, Inc. v. Costa, 539 U.S. 90,
92-94 (2003) (holding that plaintiffs pursuing a mixed-motive theory should not
face a heightened evidentiary burden). Under the pretext alternative, the
2
While the plaintiff based his unlawful retaliation claims on both Title VII and 42 U.S.C. §
1981, we refer only to Title VII in this opinion. When a plaintiff pursues both as parallel causes of
action, Title VII and § 1981 require the same proof to establish liability. Shackelford v. Deloitte &
Touche, LLP, 190 F.3d 398, 403 n. 2 (5th Cir. 1999). The plaintiff raises no issue with respect to his
claim for retaliation under Louisiana law. As a consequence, the plaintiff has abandoned any claim for
retaliation arising under Louisiana law. See Priester v. Lowndes County, 354 F.3d 414, 420 n.6 (5th
Cir. 2004) (noting that an appellant “abandons all issues not raised and argued in its initial appellate
brief”).
5
No. 07-30866
plaintiff has the burden of proving that but for the discriminatory purpose, the
adverse employment action would not have been taken. See Septimus v. Univ.
of Houston, 399 F.3d 601, 608 (5th Cir. 2005). If the plaintiff pursues a mixed-
motive theory, and shows that the plaintiff’s protected characteristic or conduct
was a motivating factor, then the burden shifts to the employer to show that the
adverse employment decision would have been made regardless of the
discriminatory animus. See Rachid, 376 F.3d at 312.3
There is no dispute that Dumas has satisfied the first two elements of his
prima facie case. However, the district court ruled that Dumas failed to create
a genuine issue of material fact as to whether there was a causal link between
his protected activity and his termination, and thus concluded that Dumas’
prima facie case failed as a matter of law.4 “In order to establish the causation
prong of a retaliation claim, the employee should demonstrate that the employer
knew about the employee’s protected activity.” Manning v. Chevron Chem. Co.,
332 F.3d 874, 883 (5th Cir. 2003). “[I]n determining whether an adverse
employment action was taken as a result of retaliation, our focus is on the final
decisionmaker.” Gee, 289 F.3d at 346. While we focus on the ultimate
decisionmaker, a plaintiff can make out a prima facie case by showing that other
employees, with discriminatory motives, “had influence or leverage over the
3
We question whether Dumas attempts to pursue a mixed-motive argument on appeal. His
brief is unclear on the matter. We also question whether he raised a mixed motive argument below in
opposing summary judgment. If he failed to do raise the theory below, it cannot be raised for the first
time on appeal. See Turner, 476 F.3d at 347 (finding mixed motive theory waived on appeal because
it was not presented until the plaintiff’s motion for new trial). However, we need not answer these
questions because, in any event as explained below, Dumas failed to make out a prima facie case of
retaliation.
4
The district court also ruled that Dumas failed to create an issue of fact as to whether his
protected activity was a “but for” cause of his termination. Therefore, even assuming that Dumas
satisfied the prima facie case requirements, the district court determined that Dumas could not meet
the ultimate burden placed on him after Union Pacific proffered its legitimate, non-discriminatory
reason for Dumas’ termination. Because we agree with the district court’s first conclusion as to Dumas’
failure at the prima facie case stage, we need not reach its alternative conclusion.
6
No. 07-30866
official decisionmaker.” Id.; see also Long v. Eastfield Coll., 88 F.3d 300, 307 (5th
Cir. 1996) (noting that if the final decisionmaker serves as the “cat’s paw” of
those acting with retaliatory motives, the causal link remains intact).
Monty Whatley, the Superintendent who signed Dumas’ notice of
termination, started with the Livonia Service Unit about eight months after
Dumas’ involvement in the Bibbins investigation. Although Whatley was not a
part of the unit when the investigation occurred, Dumas argues that others
played a role in the decision to terminate him in retaliation for participation in
the Bibbins investigation. Dumas contends that Joe Whalen, the
Superintendent prior to Whatley, and two other employees senior to Dumas,
Jerry Rugg and Dale Kriefels, influenced the termination decision.
However, Dumas fails to provide any evidence that these individuals
influenced Whatley’s termination decision, or that Whatley had knowledge of
Dumas’ participation in the Bibbins investigation. The record includes no
deposition testimony from Whatley that would provide insight into what he
knew at the time of Dumas’ termination. The termination letter indicates only
that Dumas was fired for dishonesty in violation of rule 1.6. Undisputed
evidence shows that Whalen transferred out of the Livonia Service Unit and was
replaced by Whatley in February 2004, six months prior to the FRA audit and
Dumas’ termination. As to Rugg, even assuming he played an influential role
in the decision, his uncontroverted deposition testimony indicates that he did not
know of Dumas’ participation in the investigation at the time Dumas was
terminated. Kreifels is the only Union Pacific employee that the evidence
suggests had knowledge of Dumas’ participation in the Bibbins investigation,
the FRA audit, and Dumas’ termination. However, Dumas offers no evidence
that Kreifels made any suggestion to Whatley regarding termination, or that he
relayed any information to Whatley regarding Dumas’ involvement in the
Bibbins investigation. Based on the summary judgment record, Whatley, the
7
No. 07-30866
final decisionmaker, had no knowledge of Dumas’ involvement; and Kreifels, the
only employee with the information to influence Whatley, did not attempt to do
so.
While not determinative, the timing of an employer’s adverse action can
be considered in analyzing the causal link in a retaliation claim. See Gee, 289
F.3d at 346 n.3. Union Pacific terminated Dumas on August 27, 2004, nineteen
months after his participation in the Bibbins investigation, which took place in
January 2003. In his deposition, Dumas testified that prior to the FRA audit,
he was never harassed, intimidated, demoted, or disciplined based on his
participation in the Bibbins investigation. Further, the employment action that
most closely followed Dumas’ participation in the Bibbins investigation was a
positive action: his June 1, 2003 promotion from Track Foreman to Track
Inspector. While not conclusive, the lapse of time and the intervening positive
employment action further weaken the already tenuous causal link between
Dumas’ protected activity and his termination. See Grizzle v. Travelers Health
Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (noting that 18-month lapse and
intervening raise showed that retaliatory motive was unlikely).
Dumas argues that a causal link may be implied because other Union
Pacific employees committed similar violations but were not terminated. This
argument overlooks the fact that Dumas is required to establish that he was
terminated in retaliation for engaging in protected activity. The discipline
exercised against other employees is inapposite because Dumas has not provided
any evidence that the decisionmaker in his case had any knowledge of his
protected activity, or that the decisionmaker was improperly influenced by
someone who did have such knowledge.
Dumas’ evidence fails to create a genuine issue of material fact as to
whether a causal link exists between his protected activity and the adverse
employment action taken against him, and thus he cannot make out his prima
8
No. 07-30866
facie case for retaliation. Accordingly, we AFFIRM the district court’s grant of
summary judgment in favor of Union Pacific.
9
|
J-S42013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEREMY MICHAEL FLOOD,
Appellant No. 1171 WDA 2015
Appeal from the Judgment of Sentence July 2, 2015
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0001345-2014
BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 14, 2016
Jeremy Michael Flood (“Appellant”) appeals from the judgment of
sentence imposed after a jury convicted him of simple assault, 18 Pa.C.S. §
2701(a)(1). We affirm.
We glean the following facts from the certified record: On June 27,
2014, while Appellant and his girlfriend (“the victim”) were engaged in an
argument in her home, Appellant pressed his fingers into the victim’s eyes.
During the assault, the victim’s lit cigarette contacted Appellant’s side,
causing him to withdraw and leave the home. While walking toward her
bathroom after the assault, the victim stepped on glass from a broken table,
cutting her foot. She drove herself to the hospital, where medical personnel
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S42013-16
treated and sutured her wound with six stitches. At the hospital, the victim
observed bruising around her eyes and became upset. When asked by a
nurse what had happened, the victim indicated that Appellant had assaulted
her during an argument. A Butler City police officer responded to the
hospital and took the victim’s oral statement that Appellant “tried to gouge
[her] eyes out using his thumbs.” N.T., 6/23/15, at 33. The officer gave
the victim a blank statement form to complete when she returned home.
The victim completed the statement form on July 1, 2014, indicating that
her injuries were the result of an accident and that she did not want to press
charges. Commonwealth’s Exhibit 4. Notwithstanding the victim’s written
statement, Appellant was arrested on July 28, 2014, and charged with
simple assault.
After Appellant’s arrest, the victim sent a note to the trial court,
explaining that the incident was an accident and that she did not want to
press charges. Commonwealth’s Exhibit 5. Additionally, the victim
completed a victim-impact statement for the district attorney on September
1, 2014, again indicating that the incident was an accident.
Commonwealth’s Exhibit 6. At trial, however, the victim testified that her
previous written statements were false and that Appellant had, in fact,
assaulted her on June 27, 2014. N.T., 6/23/15, at 38. She explained that
Appellant had threatened her and her family and demanded that she write
the July 1, 2014 statement. Id. at 38, 40–43. The victim further testified
-2-
J-S42013-16
that she came forward with the truth in May of 2015 after Appellant slapped
her and issued more threats if she did not memorize her previous
statements in preparation for the upcoming trial. Id. at 46–48. Defense
counsel’s objections to the victim’s testimony were overruled. Id. at 38–40,
47.
The jury convicted Appellant of simple assault, and the trial court
sentenced him on July 2, 2015, to incarceration for a period of twelve to
twenty-fours months. This timely appeal followed. Appellant and the trial
court have complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for our consideration:
I. WHETHER THE TRIAL COURT ERRED BY PERMITTING THE
COMMONWEALTH TO OFFER HEARSAY TESTIMONY AT
TRIAL?
II. WHETHER THE TRIAL COURT ERRED BY PERMITTING THE
COMMONWEALTH TO BOLSTER THE ALLEGED VICTIM’S
CREDIBILITY BEFORE HER CREDIBILITY HAD BEEN
IMPEACHED?
III. WHETHER THE TRIAL COURT ERRED BY PERMITTING THE
COMMONWEALTH TO OFFER PRIOR BAD ACT EVIDENCE
CONCERNING [APPELLANT] WHERE NOTICE HAD NOT
BEEN PROVIDED TO THE DEFENSE PRIOR TO TRIAL?
Appellant’s Brief at 7.
Appellant first complains that the trial court allowed the
Commonwealth to introduce hearsay testimony. Appellant’s Brief at 11. The
trial court suggested waiver for lack of specificity in Appellant’s Pa.R.A.P.
1925(b) statement. We agree that Appellant’s first issue is waived.
-3-
J-S42013-16
Pennsylvania Rule of Appellate Procedure 1925(b) provides in
pertinent part: “The Statement shall concisely identify each ruling or error
that the appellant intends to challenge with sufficient detail to identify all
pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). The comment to
this subsection acknowledges that vagueness is a “very case specific
inquir[y].” Pa.R.A.P. 1925, cmt. However, the comment further states:
The more carefully the appellant frames the Statement, the
more likely it will be that the judge will be able to articulate the
rationale underlying the decision and provide a basis for counsel
to determine the advisability of appealing that issue. Thus,
counsel should begin the winnowing process when preparing the
Statement and should articulate specific rulings with which the
appellant takes issue and why.
Pa.R.A.P. 1925, cmt.
Appellant’s 1925(b) statement raises the issue as follows: “1. The Trial
Court erred by permitting the Commonwealth to offer hearsay testimony at
trial.” Concise Statement of Errors Complained of on Appeal, 8/31/15, at ¶
1. Citing Pa.R.A.P. 1925(b)(4)(ii), the trial court stated, “It is this [c]ourt’s
position that issue numbered 1. is not sufficiently specific to allow the
[c]ourt to draft an opinion required under 1925(a) and that the issue is
essentially waived as [Appellant] has failed to preserve any issues for
appellate review. Lineberger v. Wyeth, 894 A.2d 141, 148-49
(Pa.Super.2006).” Trial Court Opinion, 9/15/15, at 1.
We note that the jury trial lasted one day. The volume of testimony is
118 pages long and involved the testimony of three witnesses. N.T.,
-4-
J-S42013-16
6/23/15, at 2. Appellant’s 1925(b) statement does not cite any specific
testimony or transcript page, but qualifies only that the Commonwealth was
permitted “to offer hearsay testimony at trial.” Concise Statement of Errors
Complained of on Appeal, 8/31/15, at ¶ 1. Without any further explanation
by Appellant, we agree with the trial court that the 1925(b) statement was
overly vague. See Commonwealth v. Postie, 110 A.3d 1034, 1041 (Pa.
Super. 2015) (agreeing with trial court that 1925(b) statement was overly
vague where appellant did not cite any specific remark or suppression
transcript page, but qualified only that the court’s remarks “indicat[ed he]
was guilty”). Therefore, Appellant’s first issue is waived. See Pa.R.A.P. §
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with [1925] are waived.”).
Next, Appellant complains that the Commonwealth was permitted to
bolster the victim’s credibility before it had been impeached. Appellant’s
Brief at 13. The trial court again suggested waiver for lack of specificity in
Appellant’s Pa.R.A.P. 1925(b) statement, and again, we agree.
Appellant’s 1925(b) statement raises the issue as follows: “2. The Trial
Court erred by permitting the Commonwealth to bolster the alleged victim’s
credibility before her credibility had been impeached.” Concise Statement of
Errors Complained of on Appeal, 8/31/15, at ¶ 2. Citing Pa.R.A.P.
1925(b)(4)(ii), the trial court stated, “It is this [c]ourt’s position that issue
numbered 2. is not sufficiently specific to allow the [c]ourt to draft an
-5-
J-S42013-16
opinion required under 1925(a) and that the issue is essentially waived as
[Appellant] has failed to preserve any issues for appellate review. Lineberger
v. Wyeth, 894 A.2d 141, 148-49 (Pa.Super.2006).” Trial Court Opinion,
9/15/15, at 1.
Our review of the record reveals that Appellant’s 1925(b) statement
does not cite any specific testimony or transcript page, but qualifies only
that the Commonwealth was permitted “to bolster the alleged victim’s
credibility before her credibility had been impeached.” Concise Statement of
Errors Complained of on Appeal, 8/31/15, at ¶ 2. Without any further
explanation by Appellant, we agree with the trial court that the 1925(b)
statement was overly vague. Postie, 110 A.3d at 1041. Therefore,
Appellant’s second issue is waived. Pa.R.A.P. § 1925(b)(4)(vii).
In his third issue, Appellant challenges the Commonwealth’s offer of
other acts evidence as a violation of Pa.R.E. 404(b). Appellant’s Brief at 19.
Specifically, Appellant refers to the victim’s testimony that Appellant
“threatened her in July of 2014 and both threatened and slapped her in May
of 2015.” Id. at 20. In response, the Commonwealth first explains the
context of this issue:
The Trial Court, understandably based upon Appellant’s
wording, treated this issue as if Appellant was referring to the
Commonwealth’s Motion in Limine regarding its request to
introduce Rule of Evidence 404(b) evidence of Appellant’s prior
bad acts. That matter was the subject of a hearing before the
[Trial] Court.
-6-
J-S42013-16
As stated in its 1925(a) Opinion, the Trial Court dealt with
[the] Commonwealth’s 404(b) motion as follows:
Issue numbered 3 is without merit. In fact, by
Order of Court of May 19, 2015, the Court denied the
Commonwealth’s Motion in Limine thereby
preventing the Commonwealth from submitting prior
bad acts evidence in its case in chief at trial.
Furthermore, on May 6, 2015, the Commonwealth
filed a Motion in Limine 404B Notice Prior Bad Acts
and the defense was served a copy of the motion by
regular first class mail on May 6, 2015. The hearing
on the motion was held on May 15, 2015 and was
attended by defense counsel during which he offered
argument. The trial was held on June 23, 2015. The
Court finds that the prosecutor provided reasonable
notice in advance of trial in accordance with Pa.R.E.
404(b)(3).
However, in his Brief, Appellant’s Argument III deals not
with matters raised in the Commonwealth’s 404B Motion.
Instead, Appellant’s third issue in his brief centers on [the
victim’s] testimony regarding Appellant’s behavior toward [her]
subsequent to the assault that was the subject of the trial.
Commonwealth’s Brief at 7–8 (citation omitted).
Next, the Commonwealth describes the challenged evidence and
contends the trial court properly admitted the other-acts testimony:
The Commonwealth introduced the behavior as part of its
history of the case. The behaviors were not 404(b) matters and
were not intended as 404(b) matters.
At trial, [the victim] testified that the Appellant forced her
to write a false statement to the Butler City Police. She also
testified that on May 13 or 14, 2015, about a month before the
trial, Appellant slapped her across the face and threatened her
and her family if she did not memorize the statement she had
given to the Butler City Police and testify in accordance with the
statement.
* * *
-7-
J-S42013-16
The Trial Court committed no abuse of discretion or error
of law in permitting [the victim] to testify about threats made by
Appellant subsequent to the initial assault as the threats were
part of the history of the case.
Commonwealth’s Brief at 8, 13.
The Pennsylvania Rules of Evidence allow evidence of a crime, wrong,
or other act in the following limited circumstances:
Rule 404. Character Evidence; Crimes or Other Acts
***
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence the prosecutor intends to
introduce at trial.
Pa.R.E. 404(b). In sum, evidence of other bad acts is admissible when
offered for a relevant purpose other than to show that a defendant acted in
conformity with those acts or to show a defendant’s criminal propensity.
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009). It is
-8-
J-S42013-16
admissible, inter alia, to establish the existence of a common scheme or
plan. Commonwealth v. Keaton, 45 A.3d 1050, 1066 (Pa. 2012) (citing
Commonwealth v. Bronshtein, 691 A.2d 907, 915 (Pa. 1997); Pa.R.E.
404(b)(2)). “Whether evidence of [other acts] is admissible under Rule 404
is a straightforward relevance test that can be assessed by analyzing the
charges, the proffered testimony, and evidence available to support the offer
of proof.” Commonwealth v. Hicks, 91 A.3d 47, 53 n.8 (Pa. 2014). In
determining whether evidence of other acts is admissible, the trial court
must balance the probative value of such evidence against its prejudicial
effect. Sherwood, 982 A.2d at 497.
The admission of crimes or other acts is within the discretion of the
trial court and will only be reversed upon a showing of an abuse of
discretion. Sherwood, 982 A.2d at 495. “Abuse of discretion is not merely
an error of judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.”
Commonwealth v. Aikens, 990 A.2d 1181, 1184-1185 (Pa. Super. 2010)
(quoting Commonwealth v. King, 959 A.2d 405, 411 (Pa. Super. 2008))
(internal citations omitted).
Upon review, we discern no abuse of the trial court’s discretion in
admitting evidence of Appellant’s other acts. The notes of testimony reveal
that Appellant’s initial assault of the victim occurred on June 27, 2014. N.T.,
-9-
J-S42013-16
6/23/15, at 30. According to the victim’s testimony, the other acts occurred
after the initial assault. On or before July 1, 2014, Appellant threatened the
victim, her son, and her family if she did not write a false statement to the
Butler City Police that the initial assault was an accident. Id. at 34, 37–38,
40. On May 13 or 14, 2015, Appellant slapped the victim and again
threatened her and her family if she did not memorize her previous
statements in preparation for trial. Id. at 46–48, 56. Clearly, the victim’s
testimony supports an inference that Appellant intended and planned “to get
the case dropped” by threatening the victim into falsely reporting and
maintaining that the initial assault was an accident. Id. at 42. We
conclude, therefore, that admission of the challenged testimony to establish
intent, plan, and lack of accident was a permitted use of Appellant’s other
acts. Pa.R.E. 404(b)(2).
Appellant further asserts that he was not given adequate notice of the
Commonwealth’s intention to introduce the challenged testimony.
Appellant’s Brief at 20; Pa.R.E. 404(b)(3). We have explained that the
purpose of Rule 404(b)(3) is to prevent unfair surprise and allow the
defendant to prepare an objection or rebuttal to such evidence.
Commonwealth v. Lynch, 57 A.3d 120, 125–126 (Pa. Super. 2012).
“However, there is no requirement that the ‘notice’ must be formally given
or be in writing in order for the evidence to be admissible.” Id. at 126
(citation omitted).
- 10 -
J-S42013-16
Our review of the record compels the conclusion that Appellant’s lack-
of-notice argument is disingenuous. Appellant filed a motion to continue the
trial on May 18, 2015, averring:
3. [Appellant’s] trial is scheduled for May 19, 2015.
* * *
11. At approximately 11:00 a.m. on May 18, 2015, the defense
was informed that the victim had completely changed her story
and was now prepared to testify that she was assaulted by
[Appellant].
12. The defense was completely blindsided by this development.
13. The defense needs additional time to prepare for trial.
Motion to Continue, 8/18/15, at ¶¶ 3, 11–13. The trial court granted
Appellant’s motion and rescheduled the trial for late June of 2015. Trial
Scheduling Order, 5/20/15. Appellant was given more than one month to
prepare for trial in light of the victim’s testimonial about-face. Therefore, we
conclude that the prosecutor provided reasonable notice of the general
nature of the victim’s testimony and that Appellant was afforded additional
time to prepare his defense in response to it. Pa.R.E. 404(b)(3).
Having crossed the threshold of demonstrating that its other-acts
evidence was probative of, inter alia, lack of accident, the Commonwealth
was required to demonstrate that the probative value of the challenged
evidence outweighed its potential for unfair prejudice. Pa.R.E. 404(b)(2).
In this context, “‘[u]nfair prejudice’ means a tendency to suggest decision
on an improper basis or to divert the jury’s attention away from its duty of
- 11 -
J-S42013-16
weighing the evidence impartially.” Commonwealth v. Dillon, 925 A.2d
131, 141 (Pa. 2007) (citing Pa.R.E. 403, cmt). A complement to this
balancing test is our Supreme Court’s discussion of “prejudice” in
Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988):
Not surprisingly, criminal defendants always wish to excise
evidence of unpleasant and unpalatable circumstances
surrounding a criminal offense from the Commonwealth’s
presentation at trial. Of course, the courts must make sure that
evidence of such circumstances have some relevance to the case
and are not offered solely to inflame the jury or arouse prejudice
against the defendant. The court is not, however, required to
sanitize the trial to eliminate all unpleasant facts from the jury’s
consideration where those facts are relevant to the issues at
hand and form part of the history and natural development of
the events and offenses for which the defendant is charged, as
appellant would have preferred.
Id. at 501.
Upon review, we conclude that the probative value of the other-acts
evidence outweighed its potential for unfair prejudice. The victim’s
testimony directly involved Appellant’s use of coercive threats and an assault
to fabricate and maintain a lie regarding his initial assault of the victim. Her
testimony was relevant to the case, was not offered solely to inflame the
jury or arouse prejudice against Appellant, explained the inconsistency
between her written statements and trial testimony, and formed part of the
history of the offense for which Appellant was charged. Lark, 543 A.2d at
501. Thus, we conclude that the trial court was within its discretion when it
permitted evidence of Appellant’s other acts. Sherwood, 982 A.2d at 495.
Judgment of sentence affirmed.
- 12 -
J-S42013-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2016
- 13 -
|
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-8-2006
Malaysia Shipping v. Sinochem Intl Co
Precedential or Non-Precedential: Precedential
Docket No. 04-1816
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Malaysia Shipping v. Sinochem Intl Co" (2006). 2006 Decisions. Paper 1515.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1515
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
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1816
MALAYSIA INTERNATIONAL SHIPPING CORPORATION
Appellant
v.
SINOCHEM INTERNATIONAL CO. LTD.
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 03-cv-03771)
District Judge: Honorable Franklin S. Van Antwerpen
Argued June 7, 2005
Before: AMBRO, STAPLETON and ALARCÓN *, Circuit Judges
(Opinion filed February 7, 2006)
ORDER AMENDING PUBLISHED OPINION
AMBRO, Circuit Judge
IT IS NOW ORDERED that the published Opinion in the above case filed
February 7, 2006, be amended as follows:
On page 30, last line of text, after “(Breyer, C.J.) (same).”, add two spaces
and insert the following text: “Stated differently, but with the same requirement of
*
Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
jurisdiction, we have held that the ultimate inquiry of forum non conveniens “is whether
the retention of jurisdiction by the district court would best serve the convenience of the
parties and the ends of justice.” Mobil Tankers Co., S.A. v. Mene Grande Oil Co., 363
F.2d 611, 613 (3d Cir. 1966); see also Hoffman v. Goberman, 420 F.2d 423, 426 (3d Cir.
1970) (same).”
By the Court,
/s/ Thomas L. Ambro, Circuit Judge
Dated: February 8, 2006
CMD/cc: Diane B. Carvell, Esq.
Ann-Michele G. Higgins, Esq.
Diane B. Carvell, Esq.
2
|
562 F.2d 537
Jerry A. BEECK and Judy A. Beeck, Appellants,v.AQUASLIDE 'N' DIVE CORPORATION, Appellee.
No. 76-1934.
United States Court of Appeals,Eighth Circuit.
Submitted May 18, 1977.Decided Sept. 14, 1977.
1
Kent M. Forney (on brief), Bradshaw, Fowler, Proctor & Fairgrave, John A. McClintock (on brief), Hansen, Wheatcraft & McClintock, Des Moines, Iowa, argued, made rebuttal, and appeared on appendix, for appellants.
2
Richard G. Santi (argued), Ahlers, Cooney, Dorweiler, Haynie & Smith (argued), and Paul F. Ahlers, Des Moines, Iowa, on brief and on appendix, for appellee.
3
Before BRIGHT and HENLEY, Circuit Judges, and BENSON, District Judge.*
4
BENSON, District Judge.
5
This case is an appeal from the trial court's1 exercise of discretion on procedural matters in a diversity personal injury action.
6
Jerry A. Beeck was severely injured on July 15, 1972, while using a water slide. He and his wife, Judy A. Beeck, sued Aquaslide 'N' Dive Corporation (Aquaslide), a Texas corporation, alleging it manufactured the slide involved in the accident, and sought to recover substantial damages on theories of negligence, strict liability and breach of implied warranty.
7
Aquaslide initially admitted manufacture of the slide, but later moved to amend its answer to deny manufacture; the motion was resisted. The district court granted leave to amend.2 On motion of the defendant, a separate trial was held on the issue of "whether the defendant designed, manufactured or sold the slide in question." This motion was also resisted by the plaintiffs. The issue was tried to a jury, which returned a verdict for the defendant, after which the trial court entered summary judgment of dismissal of the case. Plaintiffs took this appeal, and stated the issues presented for review to be:
8
1. Where the manufacturer of the product, a water slide, admitted in its Answer and later in its Answer to Interrogatories both filed prior to the running of the statute of limitations that it designed, manufactured and sold the water slide in question, was it an abuse of the trial court's discretion to grant leave to amend to the manufacturer in order to deny these admissions after the running of the statute of limitations?
9
2. After granting the manufacturer's Motion for Leave to Amend in order to deny the prior admissions of design, manufacture and sale of the water slide in question, was it an abuse of the trial court's discretion to further grant the manufacturer's Motion for a Separate Trial on the issue of manufacture?
10
I. Facts.
11
A brief review of the facts found by the trial court in its order granting leave to amend, and which do not appear to have been in dispute, is essential to a full understanding of appellants' claims.
12
In 1971 Kimberly Village Home Association of Davenport, Iowa, ordered an Aquaslide product from one George Boldt, who was a local distributor handling defendant's products. The order was forwarded by Boldt to Sentry Pool and Chemical Supply Co. in Rock Island, Illinois, and Sentry forwarded the order to Purity Swimming Pool Supply in Hammond, Indiana. A slide was delivered from a Purity warehouse to Kimberly Village, and was installed by Kimberly employees. On July 15, 1972, Jerry A. Beeck was injured while using the slide at a social gathering sponsored at Kimberly Village by his employer, Harker Wholesale Meats, Inc. Soon after the accident investigations were undertaken by representatives of the separate insurers of Harker and Kimberly Village. On October 31, 1972, Aquaslide first learned of the accident through a letter sent by a representative of Kimberly's insurer to Aquaslide, advising that "one of your Queen Model # Q-3D slides" was involved in the accident. Aquaslide forwarded this notification to its insurer. Aquaslide's insurance adjuster made an on-site investigation of the slide in May, 1973, and also interviewed persons connected with the ordering and assembly of the slide. An inter-office letter dated September 23, 1973, indicates that Aquaslide's insurer was of the opinion the "Aquaslide in question was definitely manufactured by our insured." The complaint was filed October 15, 1973.3 Investigators for three different insurance companies, representing Harker, Kimberly and the defendant, had concluded that the slide had been manufactured by Aquaslide, and the defendant, with no information to the contrary, answered the complaint on December 12, 1973, and admitted that it "designed, manufactured, assembled and sold" the slide in question.4
13
The statute of limitations on plaintiff's personal injury claim expired on July 15, 1974. About six and one-half months later Carl Meyer, president and owner of Aquaslide, visited the site of the accident prior to the taking of his deposition by the plaintiff.5 From his on-site inspection of the slide, he determined it was not a product of the defendant. Thereafter, Aquaslide moved the court for leave to amend its answer to deny manufacture of the slide.
14
II. Leave to Amend.
15
Amendment of pleadings in civil actions is governed by Rule 15(a), F.R.Civ.P., which provides in part that once issue is joined in a lawsuit, a party may amend his pleading "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires."
16
In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court had occasion to construe that portion of Rule 15(a) set out above:
17
Rule 15(a) declares that leave to amend "shall be freely given when justice so requires," this mandate is to be heeded. . . . If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. the leave sought should, as the rules require, be "freely given." Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, . . . .
18
371 U.S. at 182, 83 S.Ct. at 230. See also McIndoo v. Burnett, 494 F.2d 1311 (8th Cir. 1974); Standard Title Ins. Co. v. Roberts, 349 F.2d 613 (8th Cir. 1965).
19
This Court in Hanson v. Hunt Oil Co., 398 F.2d 578, 582 (8th Cir. 1968), held that "(p)rejudice must be shown." (Emphasis added). The burden is on the party opposing the amendment to show such prejudice. In ruling on a motion for leave to amend, the trial court must inquire into the issue of prejudice to the opposing party, in light of the particular facts of the case. Standard Title Ins. Co. v. Roberts, 349 F.2d at 622.
20
Certain principles apply to appellate review of a trial court's grant or denial of a motion to amend pleadings. First, as noted in Foman v. Davis, allowance or denial of leave to amend lies within the sound discretion of the trial court, Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 330, 91 S.Ct. 795, 28 L.Ed.2d 77, rehearing denied, 401 U.S. 1015, 91 S.Ct. 1247, 28 L.Ed.2d 552 (1971); Weigand v. Afton View Apartments, 473 F.2d 545, 549 (8th Cir. 1973), and is reviewable only for an abuse of discretion. Mercantile T. C. N. A. v. Inland Marine Products, 542 F.2d 1010, 1012 (8th Cir. 1976). The appellate court must view the case in the posture in which the trial court acted in ruling on the motion to amend. Izaak Walton League of America v. St. Clair, 497 F.2d 849, 854 (8th Cir.), cert. denied, 419 U.S. 1009, 95 S.Ct. 329, 42 L.Ed.2d 284 (1974).
21
It is evident from the order of the district court that in the exercise of its discretion in ruling on defendant's motion for leave to amend, it searched the record for evidence of bad faith, prejudice and undue delay which might be sufficient to overbalance the mandate of Rule 15(a), F.R.Civ.P., and Foman v. Davis, that leave to amend should be "freely given." Plaintiffs had not at any time conceded that the slide in question had not been manufactured by the defendant, and at the time the motion for leave to amend was at issue, the court had to decide whether the defendant should be permitted to litigate a material factual issue on its merits.
22
In inquiring into the issue of bad faith, the court noted the fact that the defendant, in initially concluding that it had manufactured the slide, relied upon the conclusions of three different insurance companies,6 each of which had conducted an investigation into the circumstances surrounding the accident. This reliance upon investigations of three insurance companies, and the fact that "no contention has been made by anyone that the defendant influenced this possibly erroneous conclusion," persuaded the court that "defendant has not acted in such bad faith as to be precluded from contesting the issue of manufacture at trial." The court further found "(t)o the extent that 'blame' is to be spread regarding the original identification, the record indicates that it should be shared equally."
23
In considering the issue of prejudice that might result to the plaintiffs from the granting of the motion for leave to amend, the trial court held that the facts presented to it did not support plaintiffs' assertion that, because of the running of the two year Iowa statute of limitations on personal injury claims, the allowance of the amendment would sound the "death knell" of the litigation. In order to accept plaintiffs' argument, the court would have had to assume that the defendant would prevail at trial on the factual issue of manufacture of the slide, and further that plaintiffs would be foreclosed, should the amendment be allowed, from proceeding against other parties if they were unsuccessful in pressing their claim against Aquaslide. On the state of the record before it, the trial court was unwilling to make such assumptions,7 and concluded "(u)nder these circumstances, the Court deems that the possible prejudice to the plaintiffs is an insufficient basis on which to deny the proposed amendment." The court reasoned that the amendment would merely allow the defendant to contest a disputed factual issue at trial, and further that it would be prejudicial to the defendant to deny the amendment.
24
The court also held that defendant and its insurance carrier, in investigating the circumstances surrounding the accident, had not been so lacking in diligence as to dictate a denial of the right to litigate the factual issue of manufacture of the slide.
25
On this record we hold that the trial court did not abuse its discretion in allowing the defendant to amend its answer.
26
III. Separate Trials.
27
After Aquaslide was granted leave to amend its answer, it moved pursuant to Rule 42(b),8 F.R.Civ.P., for a separate trial on the issue of manufacture of the slide involved in the accident. The grounds upon which the motion was based were:
28
(1) a separate trial solely on the issue of whether the slide was manufactured by Aquaslide would save considerable trial time and unnecessary expense and preparation for all parties and the court, and
29
(2) a separate trial solely on the issue of manufacture would protect Aquaslide from substantial prejudice.
30
The court granted the motion for a separate trial on the issue of manufacture, and this grant of a separate trial is challenged by appellants as being an abuse of discretion.
31
A trial court's severance of trial will not be disturbed on appeal except for an abuse of discretion. Mosley v. General Motors Corp., 497 F.2d 1330, 1332 (8th Cir. 1974); Chicago, R. I. & P. R. R. v. Williams, 245 F.2d 397, 404 (8th Cir.), cert. denied, 355 U.S. 855, 78 S.Ct. 83, 2 L.Ed.2d 63 (1957).
32
The record indicates that Carl Meyer, president and owner of Aquaslide, designs the slides sold by Aquaslide. The slide which plaintiff Jerry A. Beeck was using at the time of his accident was very similar in appearance to an Aquaslide product, and was without identifying marks. Kimberly Village had in fact ordered an Aquaslide for its swimming pool, and thought it had received one. After Meyer's inspection and Aquaslide's subsequent assertion that it was not an Aquaslide product, plaintiffs elected to stand on their contention that it was in fact an Aquaslide. This raised a substantial issue of material fact which, if resolved in defendant's favor, would exonerate defendant from liability.
33
Plaintiff Jerry A. Beeck had been severely injured, and he and his wife together were seeking damages arising out of those injuries in the sum of $2,225,000.00. Evidence of plaintiffs' injuries and damages would clearly have taken up several days of trial time, and because of the severity of the injuries, may have been prejudicial to the defendant's claim of non-manufacture. The jury, by special interrogatory, found that the slide had not been manufactured by Aquaslide. That finding has not been questioned on appeal. Judicial economy, beneficial to all the parties, was obviously served by the trial court's grant of a separate trial. We hold the Rule 42(b) separation was not an abuse of discretion.
34
The judgment of the district court is affirmed.
*
The Honorable Paul Benson, Chief Judge, United States District Court for the District of North Dakota, sitting by designation
1
The Honorable William C. Hanson, United States District Judge for the Southern District of Iowa
2
Beeck v. Aquaslide 'N' Dive Corporation, 67 F.R.D. 411 (S.D.Iowa 1975)
3
Aquaslide 'N' Dive Corporation was the sole defendant named in the complaint
4
In answers to interrogatories filed on June 3, 1974, Aquaslide again admitted manufacture of the slide in question
5
Plaintiffs apparently requested Meyer to inspect the slide prior to the taking of his deposition to determine whether it was defectively installed or assembled
6
The insurer of Beeck's employer, the insurer of Kimberly Village, as well as the defendant's insurer had each concluded the slide in question was an Aquaslide
7
The district court noted in its order granting leave to amend that plaintiffs may be able to sue other parties as a result of the substituting of a "counterfeit" slide for the Aquaslide, if indeed this occurred. The court added:
(a)gain, the Court is handicapped by an unclear record on this issue. If, in fact, the slide in question is not an Aquaslide, the replacement entered the picture somewhere along the Boldt to Sentry, Sentry to Purity, Purity to Kimberly Village chain of distribution. Depending upon the circumstances of its entry, a cause of action sounding in fraud or contract might lie. If so, the applicable statute of limitations period would not have run. Further, as defendant points out, the doctrine of equitable estoppel might possibly preclude another defendant from asserting the two-year statute as a defense.
67
F.R.D. at 415
8
Rule 42(b), F.R.Civ.P., provides as follows:
Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.
|
125 F.3d 1432
4 Wage & Hour Cas.2d (BNA) 289, 11 NDLR P 108,11 Fla. L. Weekly Fed. C 663
Queen Ester GAY, Plaintiff-Appellant,v.GILMAN PAPER COMPANY, d.b.a. Gilman Converted Products,Defendant-Appellee.
No. 96-9490.
United States Court of Appeals,Eleventh Circuit.
Oct. 29, 1997.
Lonzy F. Edwards, Edwards & Youmas, Macon, GA, for Plaintiff-Appellant.
Patrick D. Coleman, Jennifer S. Yates, Coffman, Coleman, Andrews & Grogan, Jacksonville, FL, for Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before COX and BARKETT, Circuit Judges, and HUNT*, District Judge.
BARKETT, Circuit Judge:
1
Queen Ester Gay appeals from the district court's order granting defendant Gilman Paper Company's ("Gilman") motion for summary judgment as to her claims under the Family and Medical Leave Act ("FMLA"). The district court based its grant of summary judgment on Gay's failure to offer any evidence from which a jury could conclude either that she gave Gilman sufficient notice of her need for leave under the FMLA or that Gilman's asserted reason for terminating her was a pretext for discrimination. We affirm the grant of summary judgment.
BACKGROUND
2
Appellant, Queen Ester Gay, was employed by the Gilman Paper Company from 1988 until her termination on June 28, 1994.1 Between January 1992 and February 1994, Gay was disciplined on five separate occasions for tardiness and/or absenteeism. Gay last worked at Gilman on June 18, 1994 and was scheduled to return to work four days later on June 22. On June 20, however, Gay was admitted to the Houston County Medical Center, a psychiatric hospital, to receive treatment for a nervous breakdown. On June 22, Gay's husband called Gay's supervisor, Polly McKendree, informing McKendree that Gay was in the hospital. Mr. Gay did not inform McKendree that his wife had suffered a nervous breakdown, but instead told her that Gay was having some tests run. During his deposition, Mr. Gay subsequently admitted that he had lied to McKendree about Gay's whereabouts and condition. He also admitted that he had instructed his sons not to give Gilman any information regarding Gay's condition or location. Specifically, Mr. Gay testified:
3
Q. What do you recall telling her [McKendree]?
4
A. I told her Queen was in the hospital.
5
Q. Did she ask you where?
6
A. Yes.
7
Q. What did you tell her?
8
A. I probably told her Atlanta, I think, or somewhere. I didn't tell her where she was at.
9
Q. Did you lie to her?
10
A. Yes.
11
Q. Why did you lie to her?
12
A. 'Cause I just didn't want them [Gilman] to know--I didn't want them to know her condition.
13
Q. So you lied to them both about the location and the condition, didn't you?
14
A. Yes.
15
Q. Did she ask when your wife would be back?
16
A. She asked what--she asked me what was wrong, but I didn't answer the question. I think she asked--hope she--told me she hoped she'd be okay but I wouldn't give her any information or anything 'cause I ain't willing--I didn't think they needed to know.
17
Q. Did you tell her she was having some tests run?
18
A. I probably did.
19
Q. Do you know whether or not Polly called your home and talked to one of your boys?
20
A. I don't know.
21
Q. You don't know whether she talked to Darren?
22
A. No, I don't know. She may have. She may have. The kids may have told me someone called. I don't know.
23
Q. Did you tell the boys if Gilman called not to tell them where--
24
A. Yeah.
25
Q. --she was?
26
A. Right.
27
Q. You told them that?
A. Uh-huh. (Affirmative)
28
Q. Told them if the company called, lie to them about where she was?
29
A. Just don't give them any information.
30
Q. And Dan never told you he talked to Polly McKendree?
31
A. I can't remember. He might have told me that she called and I asked him did you tell them anything and he said no 'cause I told them not to tell them anything, where she at or what. Just tell them she's in the hospital and that's it.
32
Gay made no further effort to communicate with Gilman regarding her condition or absence from work during the following week. On June 28, Gay was terminated by letter for "extended failure to report off, or explain absences."
33
Gay subsequently filed suit in the United States District Court for the Southern District of Georgia, alleging that she had been improperly denied leave for a serious health condition under the FMLA and wrongfully terminated for exercising her rights under the FMLA.2
DISCUSSION
34
We review the district court's grant of summary judgment de novo, applying the same legal standards that bound the district court, and viewing all facts and any reasonable inferences therefrom in the light most favorable to the non-moving party. Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir.1995); McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1557 (11th Cir.1992). Summary judgment is appropriate only when "there is no genuine issue of material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
35
The FMLA provides eligible employees with "a total of 12 workweeks of leave during any 12-month period ... [b]ecause of a serious health condition3 that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). Where such leave is foreseeable based on planned medical treatment, the Act requires the employee to "provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave under such subparagraph." 29 U.S.C. § 2612(e)(2)(B). Although the Act itself is silent regarding the notice required in the case of unforeseeable leave, interim regulations4 promulgated by the Department of Labor provide that
36
[w]hen the need for leave, or its approximate timing, is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary cases.
37
29 C.F.R. § 825.303(a) (1993). The interim regulations further provide that the required notice may be given by telephone and that
38
[n]otice may be given by the employee's representative (e.g., a spouse ... ) if the employee is unable to do so personally. The employer will be expected to obtain any additional required information through informal means. The employee or representative will be expected to provide more information when it can readily be accomplished as a practical matter, taking into consideration the exigencies of the situation.
39
29 C.F.R. § 825.303(b) (1993). Additional FMLA implementing regulations provide that "[i]n all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, based on information provided by the employee." 29 C.F.R. § 825.208(a)(2) (1993).
40
Gay argues that her husband's assertion that she was in the hospital for tests was sufficient to put Gilman on notice that her condition was potentially FMLA-qualifying, thus shifting the burden to Gilman to make further inquiry as to whether her absence in fact qualified for treatment under the FMLA. She also suggests that it was then Gilman's responsibility to avail itself of the means by which employers may obtain information verifying an employee's need for FMLA leave, such as asking Gay to furnish a detailed medical certification from her health care provider. See 29 U.S.C. § 2613; 29 C.F.R. §§ 825.305, 825.306 (1993). Finally, Gay argues that nothing in the FMLA or its corresponding regulations requires that an employer be given specific information about an eligible employee's "true condition or location."
41
In support, Gay relies primarily on two cases, which we find inapposite to Gay's situation and which, indeed, support the opposite result. First, Gay directs us to Brannon v. OshKosh B'Gosh, Inc., 897 F.Supp. 1028 (M.D.Tenn.1995). In that case, the plaintiff had stayed home from work for two days to care for her three-year-old daughter, who was suffering from a serious health condition within the meaning of the FMLA.5 See id. at 1032-33. On both of the days of her absence, the plaintiff had called her employer and notified the Human Resources Manager that she would be absent from work because of her daughter's illness. See id. at 1033. In addition, the plaintiff's husband had delivered to her supervisor a note from their daughter's physician explaining the plaintiff's absence. See id. Observing that the FMLA implementing regulations "make clear that an employee must tell her employer the reason she is absent from work before she will be entitled to FMLA protection," id. at 1038, the court found that, under the circumstances of that case, "[t]he plaintiff gave sufficient notice that her absence was necessitated by an FMLA-qualifying reason," id. at 1039. The court further held that once such notice was given, "it was the employer's duty to make further inquiry to determine if the leave qualified for FMLA protection." Id. at 1038.
42
In Manuel v. Westlake Polymers Corp., 66 F.3d 758 (5th Cir.1995), the appellant, who had been disciplined repeatedly by her employer for poor attendance, was absent from work for over a month due to complications that developed following what was anticipated to be minor surgery on her toe, see id. at 760. The appellant had received permission to be absent from work on the day of the surgery and, when complications subsequently developed, she immediately notified her supervisor that she could not return to work due to these complications. She kept in constant contact with her employer throughout her absence, though she neither referred to nor attempted to refer to the FMLA when requesting leave. See id. Reversing the district court's grant of summary judgment in favor of the employer, the Fifth Circuit held that an eligible employee may avail herself of the FMLA's protection without expressly invoking the statute when notifying her employer of her need for leave occasioned by a serious health condition. See id. at 764. Although the court specifically declined to announce any "categorical rules" concerning the content of an employee's adequate notice beyond holding that the employee need not specifically mention the FMLA, the court suggested that, in determining whether an employee's notice was sufficient, "[t]he critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee's request to take time off for a serious health condition." Id.
43
Consistent with the cases Gay cites is Price v. City of Fort Wayne, 117 F.3d 1022 (7th Cir.1997), in which the appellant had sought leave from work due to an assemblage of medical problems, no one of which alone rose to the level of a serious health condition, see id. at 1024-25. In requesting leave, the appellant had filled out the form provided by her employer, indicating that the reason for her request was medical need, and had attached a note from her doctor, from whom she had sought treatment for her various health problems eight times in a two month period preceding her request, requiring her to take time off. See id. at 1025. Observing that the notice required by the FMLA is given "when the employee requests leave for a covered reason," the court found that, under the circumstances, the appellant had provided her employer with "sufficient information to put [the employer] on notice that this was a possible FMLA leave situation." Id. at 1026.
44
In each of these cases the employee adequately conveyed to the employer sufficient information to put the employer on notice that her absence was potentially FMLA-qualifying. Conversely, in this case, not only was there a dearth of information provided, but the information that was provided was false. Gay's husband informed her supervisor that Gay was having some tests run on the first day of her absence from work. When questioned by Gay's supervisor about his wife's condition, Gay's husband deliberately withheld information concerning the true nature of her condition and instructed his sons to do the same. Under these circumstances, the burden to request further information never shifted to Gilman because Gilman could not reasonably be expected to conclude that Gay's absence might have qualified for treatment under the FMLA.
45
The FMLA's notice requirements serve to assist employers in accommodating their employees' absences for certain medical or family reasons. See Manuel, 66 F.3d at 762. Of course, unforseen medical emergencies may make advance notice impossible, and in that case, no rights under the FMLA would be lost. At the same time, an employer is entitled to expect that the employee will be cognizant of her own job responsibilities as well as the operations of the employer and will give notice as soon as practicable. When notice of a possible serious medical condition is deliberately withheld and false information is given, it cannot be said that an employee has been terminated in violation of the FMLA.
46
We agree with the decisions cited above that, where an employee's need for FMLA leave is unforeseeable, the employee need only provide her employer with notice sufficient to make the employer aware that her absence is due to a potentially FMLA-qualifying reason. However, we cannot agree that, under the circumstances presented here, Gay provided Gilman with that kind of notice.6
47
AFFIRMED.
*
Honorable Willis B. Hunt, Jr., U.S. District Judge for the Northern District of Georgia, sitting by designation
1
On appeal, Gilman asserts that Gay was terminated on June 29, 1994, while Gay contends that her discharge occurred on June 28. Because the district court found that Gay was terminated on June 28, that date will be used throughout this opinion
2
Gay's complaint also asserted claims under the Americans with Disabilities Act ("ADA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), and Georgia tort law. Gay's ADA and Title VII claims were dismissed by prior court order and are not the subject of this appeal. In addition, Gay does not appeal the district court's grant of summary judgment as to her state tort law claim
3
The parties do not dispute that Gay was suffering from a "serious health condition" within the meaning of the FMLA, which provides "[t]he term 'serious health condition' means an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11)
4
The Department of Labor released final regulations implementing the FMLA effective April 6, 1995. See 60 Fed.Reg. 2180 (1995). Because Gay's serious health condition and subsequent termination from employment occurred in June 1994, however, the interim regulations govern this dispute
5
The FMLA permits an eligible employee to take leave "[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(C)
6
We have considered Gay's argument that, even if the notice she provided was insufficient, Gilman should be estopped from challenging the sufficiency of her notice because Gilman failed to comply with the mandatory written guidance and notice provisions of the FMLA. We find that argument inapplicable in the circumstances presented by this case, however, as the notice provisions Gay cites do not address the notice required in the case of an employee's unforeseeable need for FMLA leave. We also find no merit in Gay's argument that Gilman's asserted reason for terminating her was a pretext for discrimination
|
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
810
CA 12-00538
PRESENT: CENTRA, J.P., SCONIERS, VALENTINO, WHALEN, AND MARTOCHE, JJ.
IN THE MATTER OF JOHN COLVIN, ACTING
SUPERINTENDENT, FIVE POINTS CORRECTIONAL
FACILITY, PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
RONNIE COVINGTON, RESPONDENT-APPELLANT.
J. SCOTT PORTER, SENECA FALLS, FOR RESPONDENT-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF
COUNSEL), FOR PETITIONER-RESPONDENT.
Appeal from an order of the Supreme Court, Seneca County (Dennis
F. Bender, A.J.), entered February 17, 2012. The order, among other
things, directed respondent to cooperate with the medical personnel of
the Department of Corrections and Community Supervision.
It is hereby ORDERED that said appeal is unanimously dismissed
without costs.
Memorandum: Respondent appeals from an order that, inter alia,
granted the petition seeking to require him to cooperate with the
medical personnel of the Department of Corrections and Community
Supervision and to cooperate in the methods of force feeding and
necessary medical treatment. We conclude that this appeal is moot
because the order by its own terms has expired, and the exception to
the mootness doctrine does not apply herein (see generally Matter of
Hearst Corp. v Clyne, 50 NY2d 707, 714-715). We add only that there
is no merit to respondent’s contention that the order does not
“ ‘conform strictly to [Supreme Court’s] decision’ ” (Spier v
Horowitz, 16 AD3d 400, 401).
Entered: July 19, 2013 Frances E. Cafarell
Clerk of the Court
|
793 F.2d 1295
Simmons, Matter of
84-3039
United States Court of Appeals,
Seventh Circuit.
6/20/86
1
N.D.Ill.
AFFIRMED
|
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2898
CARLTON GUNN,
Plaintiff-Appellant,
v.
CONTINENTAL CASUALTY COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cv-03314 — Charles P. Kocoras, Judge.
____________________
ARGUED APRIL 15, 2020 — DECIDED AUGUST 5, 2020
____________________
Before MANION, HAMILTON, and BARRETT, Circuit Judges.
HAMILTON, Circuit Judge. Most appellate opinions try to
answer questions of law. This opinion is an exception. We ask
many more questions than we can answer here. They concern
choice-of-law principles as applied to the unique challenges
of interstate regulation of insurance in the United States, and
more specifically as applied to a group insurance policy is-
sued in one jurisdiction to an employer with employees in
every state. We realize we are leaving a good deal of work for
2 No. 19-2898
the capable district judge on remand. We hope he will receive
help on choice-of-law issues from counsel for the parties and
interested amici curiae.
Plaintiff Carlton Gunn brought this case as a putative class
action against defendant Continental Casualty Company,
which issued a group long-term care insurance policy to
Gunn’s employer, the federal judiciary, in Washington D.C.
Gunn alleged that Continental breached its contract, commit-
ted torts, and violated consumer protection laws by raising
his premiums dramatically. Continental persuaded the dis-
trict court to dismiss the case on the pleadings based on its
assertion of a filed-rate defense, relying on the Washington
state Insurance Commissioner’s approval of the new, higher
premiums for individual insureds in Washington. The parties’
briefs in the district court and on appeal raised the issue of
choice of law but offered little help in resolving it.
The appellate briefs and arguments make clear that choice
of law is critical in this case, but they leave too many unan-
swered questions. Which state’s or states’ law creates Gunn’s
causes of action? Does that jurisdiction recognize an applica-
ble filed-rate defense, and if so, what are its contours? Which
state or states have authority to approve premium rates under
the group policy? If one state otherwise offers Gunn a remedy
but another state with authority has approved Continental’s
rates, which state’s authority controls and which must yield,
and why? We raised these and other questions in oral argu-
ment, but without satisfactory answers. Given their im-
portance to the larger framework of multistate insurance reg-
ulation, we conclude that the best resolution of this appeal is
to let the adversary process take its course, with some general
direction from us to ensure that the adversaries focus on the
No. 19-2898 3
critical issues. We therefore reverse and remand for further
proceedings.
I. Plaintiff’s Claims and Procedural Background
Contracts for group insurance are in essence three-party
contracts. Steven Plitt et al., 1A Couch on Insurance 3d § 7:1
(1995 & supp. 2019). “A group insurance policy is the contract
between the insurer and an employer, … or some other cen-
tral entity, for the benefit of a group of people that have some
relationship to the central entity, such as employees.” Id. The
central entity, not the individual insured, holds the master
policy and has “the chief contractual relationship with the in-
surer.” Id. The individual insureds are considered third-party
beneficiaries of the master policy and “typically receive certif-
icates proving that they are insured and listing what coverage
is provided.” Id. For this reason, “the addition of new individ-
ual members to a master group policy does not create a new
contract of insurance.” Id. § 8:1. At the same time, individual
insureds are usually not automatically covered by the central
entity’s master policy. They must individually elect coverage
and pay their own premiums. Id. § 8:2.
For purposes of defendant’s motion to dismiss, we assume
the truth of the following factual allegations. In 1999,
defendant Continental Casualty Company delivered a group
long-term care insurance policy to the federal judiciary—
specifically, to the Federal Judiciary Group Long Term Care
Insurance Trust in Washington D.C. Long-term care
insurance is intended to provide long-term financial security
by covering a variety of services, not generally covered by
Medicare or ordinary health insurance, for those unable to
care for themselves due to age or disability. As with life
insurance, the cost of long-term care insurance increases with
4 No. 19-2898
age. As Continental advertised for this policy, “the younger
you are when your coverage begins, the lower your premiums
will be for the duration of your participation in the plan.”
In 2000, plaintiff Carlton Gunn was an assistant federal
defender in the State of Washington eligible for coverage
under the judiciary’s policy. He purchased coverage under
the policy, relying in part on Continental’s representation in
its marketing materials that it would raise premiums, if at all,
only “for everyone in your age category who has the kind of
coverage plan that you do.” The master policy and Gunn’s
individual coverage certificate similarly promised that
Continental would raise premiums “only if we change the
premiums for all insureds in the same premium class.” The
master policy provided specifically that “Premium is
computed as stated in the Master Application,” which
contained tables of premium rates according to payment
schedule, age on effective date of coverage, and amount of
daily benefit. No mention was made of rates varying based on
the individual insured’s state of residence.
To protect against the long-term effects of inflation on the
policy’s costs and benefits, Gunn also purchased what Conti-
nental called a “Lifetime Compound Automatic Benefit In-
crease benefit.” That feature would “automatically increase
the daily benefit for nursing home care that you select now by
5% annually on a compounded basis.” “This means,” Conti-
nental explained, “you will not need to worry about increas-
ing your premium in the future.” Purchasing the automatic
benefit increase feature more than doubled Gunn’s baseline
premium.
Seventeen years later, Gunn received a letter from Conti-
nental informing him that his premium rates would rise by 25
No. 19-2898 5
percent each year for the next three years, adding up to a near
doubling of the premium, from about $700 to about $1,400 an-
nually. The letter also said that the effective dates of the in-
creases would depend ultimately on the approval of “certain
states,” which might or might not be forthcoming at the same
time, or at all. Gunn believes this geographic disparity
breaches Continental’s promise to raise rates only uniformly
within a “premium class.” He also contends he should be pro-
tected from the dramatic premium increases precisely be-
cause he had already paid to protect himself against inflation
by buying the automatic benefit increase.
Gunn’s complaint asserted claims for breach of contract,
breach of implied covenant, unfair and deceptive practices
under the District of Columbia’s consumer protection statute,
fraud, and fraudulent concealment. On behalf of himself and
a putative class of insureds under the judiciary’s group pol-
icy, Gunn sought rescission (whether of the master policy or
his individual certificate, he did not say) and an injunction
against further rate increases, or alternatively compensatory,
statutory, and punitive damages.1
Continental moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6), arguing among other grounds that the
complaint was barred by “the filed-rate doctrine.” The federal
version of that doctrine in general “forbids a regulated entity
to charge rates for its services other than those properly filed
with the appropriate federal regulatory authority.” Arkansas
Louisiana Gas Co. v. Hall, 453 U.S. 571, 577 (1981). One way to
put it is that the “reasonableness” of a rate is an
1 No member of this panel is a member of the plan, so we would not
be members of a potential plaintiff class.
6 No. 19-2898
administrative standard, not a justiciable legal right. Montana-
Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246,
251 (1951). Another is that a buyer’s consent to pay the filed
rate is not necessary to create an obligation to pay the filed
rate. Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U.S.
516, 520–21 (1939). Arkansas Louisiana Gas itself held that a
state-law action for breach of contract could not survive
preemption based on a state court’s “speculation” that the re-
sponsible federal regulator would have approved the higher
rate for which the parties contracted instead of the lower rate
it had actually approved. 453 U.S. at 573, 578–79.
States have adopted versions of this doctrine of varying
breadth and force, some in statutes and some through case
law. And even where different states’ doctrines differ only in
nuance, we have said that “nuance can be important.” In re
Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1300 (7th Cir. 1995) (re-
versing certification of nationwide class whose claims were
governed by many different states’ laws).
Citing Arkansas Louisiana Gas and other cases, Continental
argued that Gunn’s individual certificate had been issued to
him in the State of Washington; that the Washington insur-
ance commissioner had authority to approve the rates Gunn
was charged; and that Continental had sought and obtained
the Washington commissioner’s approval for the challenged
rate increases. Gunn’s suit, went the argument, amounted to
a collateral attack on rates duly approved by the commis-
sioner, so that the filed-rate doctrine prohibited courts from
entertaining Gunn’s claims. We confess that we were mysti-
fied when we realized that Continental’s motion did not ex-
plain whether the filed-rate doctrine it invoked stems from
federal or state law, let alone from which state’s law.
No. 19-2898 7
In opposition, Gunn argued that the law of the District of
Columbia does not recognize a version of the filed-rate doc-
trine that would bar his claims. Neither side’s briefs to the dis-
trict court engaged in a meaningful choice-of-law analysis,
nor did they develop their competing assertions of legislative
and regulatory jurisdiction over the rates Gunn should pay.
The district court also did not engage with the choice-of-
law problem, but it agreed with Continental that Gunn’s suit
was the type of attack on duly approved rates generally
barred by filed-rate rules and dismissed the complaint with
prejudice. We have jurisdiction of the appeal under 28 U.S.C.
§ 1291.
II. Analysis
A. The Choice-of-Law Problem
We review de novo a grant of a motion to dismiss for fail-
ure to state a claim. Warciak v. Subway Restaurants, Inc.,
949 F.3d 354, 356 (7th Cir. 2020). A Rule 12(b)(6) motion tests
“the legal sufficiency of a complaint,” as measured against the
standards of Rule 8(a). E.g., Runnion v. Girl Scouts of Greater
Chicago and Northwest Indiana, 786 F.3d 510, 526 (7th Cir. 2015).
It is the defendant’s burden to establish the complaint’s insuf-
ficiency. Yeksigian v. Nappi, 900 F.2d 101, 104 (7th Cir. 1990).
There is procedural problem in this case, however, that
made defendant’s use of Rule 12(b)(6) inappropriate. Conti-
nental did not actually challenge the complaint’s sufficiency,
at least by invoking the filed-rate doctrine. Continental in-
stead advanced an affirmative defense, which it had the bur-
den of pleading and proving. Fed. R. Civ. P. 8(c)(1) (burden of
pleading); Benson v. Fannie May Confections Brands, Inc.,
944 F.3d 639, 645 (7th Cir. 2019) (burden of proving); see E. &
8 No. 19-2898
J. Gallo Winery v. EnCana Corp., 503 F.3d 1027, 1039 n.11 (9th
Cir. 2007) (filed-rate doctrine as affirmative defense). With a
narrow and pragmatic exception for a plaintiff who has
pleaded herself out of court, the appropriate vehicle for re-
solving an affirmative defense is a motion for judgment on the
pleadings under Rule 12(c), not a Rule 12(b)(6) motion. Ben-
son, 944 F.3d at 645; see also Burton v. Ghosh, 961 F.3d 960, 964–
65 (7th Cir. 2020) (collecting cases); cf. Brooks v. Ross, 578 F.3d
574, 579 (7th Cir. 2009) (example of pragmatic exception
where complaint unambiguously set forth dates establishing
statute-of-limitations defense). “Observing the distinction is
necessary to allocate correctly the burdens of pleading and
proof,” H.A.L. N.Y. Holdings, LLC v. Guinan, 958 F.3d 627, 632
(7th Cir. 2020), and serves an important notice function. Bur-
ton, 961 F.3d at 965, citing Blonder-Tongue Labs., Inc. v. Univ. of
Illinois Found., 402 U.S. 313, 350 (1971), among others.
In this case, Continental’s filed-rate defense certainly drew
on materials outside the complaint and was not appropriate
for a Rule 12(b)(6) motion. Gunn did not plead himself out of
court with one stray reference to the Washington state insur-
ance commissioner, so an answer and motion under Rule
12(c), not a Rule 12(b)(6) motion, would have been the appro-
priate path to raise a filed-rate defense. We construe Conti-
nental’s motion as one under Rule 12(c), and Continental bore
the burden of showing that the allegations of the complaint
and an answer showed that an affirmative defense conclu-
sively defeated all of Gunn’s claims as a matter of law. See
Alexander v. City of Chicago, 994 F.2d 333, 336 (7th Cir. 1993).
Regardless of the procedural bobble, Continental had to
address an indispensable threshold question: under the law
of what sovereign was it entitled to judgment? Law “does not
No. 19-2898 9
exist without some definite authority behind it.” Black & White
Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.,
276 U.S. 518, 533 (1928) (Holmes, J., dissenting). Claims and
defenses have to come from somewhere. “Proof of [them] in
the air, so to speak, will not do.” Palsgraf v. Long Island R.R.
Co., 162 N.E. 99, 99 (N.Y. 1928). Yet that has basically been
Continental’s approach.
In support of its motion to dismiss, Continental assumed
without argument that the applicable law was Washington’s,
though Gunn pleaded at least one cause of action arising un-
der a statute of the District of Columbia. On appeal, Continen-
tal asserts, again without argument, that Washington law cre-
ates Gunn’s causes of action and, astonishingly, claims that
“federal common law” creates its filed-rate defense. But Con-
tinental does not argue for federal preemption.2 Nor does the
2 Chief Judge Howell denied dismissal in a recent case similar to
Gunn’s, noting that a filed-rate defense “typically” has a basis in federal
statute and in that context “supports the supremacy of federal regulation
over certain federal as well as state and common law claims.” Krukas v.
AARP, Inc., 376 F. Supp. 3d 1, 18 (D.D.C. 2019). In Krukas, the court as-
sumed for purposes of argument that some version of a filed-rate doctrine
could apply to insurance regulation and denied dismissal because the
plaintiff did not directly challenge any regulated rates. Id. at 20−26. Fed-
eral law leaves insurance regulation and pricing to the States. 15 U.S.C.
§ 1011. In this context, it is “neither prudent nor appropriate for a federal
court to impose the filed-rate doctrine on a state which has not adopted it,
nor should a court stretch or bend a state doctrine to more comfortably fit
the contours of the federal rule.” Bhasker v. Kemper Cas. Ins. Co., 284 F.
Supp. 3d 1191, 1233 (D.N.M. 2018) (denying dismissal of insurance claims
based on filed-rate doctrine), quoting Clark v. Prudential Ins. Co. of Am., No.
CIV. 08-6197, 2011 WL 940729, at *10 (D.N.J. Mar. 15, 2011) (denying mo-
tion to strike insurance class claims based on filed-rate doctrine).
10 No. 19-2898
doctrine affect federal jurisdiction.3 Continental has not ex-
plained why, in Gunn’s case arising under state law, federal
law (let alone the narrow niches of federal common law that
have survived Erie Railroad) could be relevant at all. See Erie
R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Williams v. Jader Fuel
Co., Inc., 944 F.2d 1388, 1400 (7th Cir. 1991) (“the legal and fac-
tual sufficiency of an affirmative defense is examined with ref-
erence to state law”).
Because Continental did not identify the source of govern-
ing law, we have little trouble concluding that it did not show
properly that it was entitled to judgment based on this free-
floating defense.
The more difficult question is what to do about it. “The
matter of what questions may be taken up and resolved for
the first time on appeal is one left primarily to the discretion
of the courts of appeals.” Singleton v. Wulff, 428 U.S. 106, 121
(1976). But the record here offers little guidance. Gunn also
did not engage on the choice-of-law issue.
We must say frankly that the parties let the district court
down. The parties each asserted their choice-of-law positions,
and they clearly signaled that the choice of law could be deci-
sive. But the parties went no farther than those assertions; nei-
ther side supported its position. The district court did not make
3 There is no suggestion here or reason to think that any version of the
filed-rate doctrine affects a federal court’s subject-matter jurisdiction. See
Wilson v. EverBank, N.A., 77 F. Supp. 3d 1202, 1233 n.6 (S.D. Fla. 2015) (col-
lecting cases holding filed rates go to merits, not jurisdiction); see also
Krukas, 376 F. Supp. 3d at 14 n.5 (distinguishing “nonjusticiability” ra-
tionale for filed-rate doctrine from Article III justiciability).
No. 19-2898 11
its own choice of law but cited filed-rate cases from many
state and federal courts.
We recognize that an appeal is too late to raise a choice-of-
law issue for the first time and we are under no obligation to
do so on our own initiative. “We are busy enough without
creating issues that are unlikely to affect the outcome of the
case (if they were likely to affect the outcome the parties
would be likely to contest them).” Wood v. Mid-Valley Inc.,
942 F.2d 425, 427 (7th Cir. 1991). In this case, however, both
sides raised the choice-of-law issue but then offered the dis-
trict court (and us) little help.
Choice of law may well be decisive here. The relevant is-
sues are doubtful enough, and the stakes high enough for our
state-based systems of decentralized insurance regulation,
that they are better addressed by the district court in the first
instance, perhaps with help from interested friends of the
court who can provide insight into those systems and their
relationship to one another. See, e.g., Harris v. KBR Servs., Inc.,
724 F.3d 458, 462 (3d Cir. 2013) (remanding for initial choice-
of-law determination where necessary to review dismissal for
non-justiciability).
B. Considerations on Remand
1. Illinois Choice-of-Law Rules Control
We begin with the fundamentals. A federal court exercis-
ing its diversity jurisdiction over state-law claims applies the
choice-of-law rules of the state in which it sits. Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). Here, that state is
Illinois, which applies forum law unless an actual conflict
with another state’s law is shown, Bridgeview Health Care Ctr.
v. State Farm Fire & Cas. Co., 10 N.E.3d 902, 905 (Ill. 2014), or
12 No. 19-2898
the parties agree that forum law does not apply. See Belleville
Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 770 N.E.2d 177,
194 (Ill. 2002). Neither Gunn nor Continental seeks applica-
tion of Illinois law, and the laws of the District of Columbia
and Washington appear likely, at a minimum, to give differ-
ent effect to the acts of the Washington state insurance com-
missioner. The analysis then turns to which state’s law ap-
plies. Bridgeview, 10 N.E.3d at 905.
In general, Illinois follows the Restatement (Second) of
Conflict of Laws (Am. Law Inst. 1971). Barbara’s Sales, Inc. v.
Intel Corp., 879 N.E.2d 910, 919 (Ill. 2007). For claims on a con-
tract, the Second Restatement usually enforces the parties’
contractual choice of law, see § 187, which may extend to tort
claims “dependent” on the contract. Facility Wizard Software,
Inc. v. Southeastern Technical Servs, LLC, 647 F. Supp. 2d 938,
943 (N.D. Ill. 2009). In this case, however, the parties’ contract
contains no choice-of-law provision.
Absent effective party choice, to govern issues in contract
the Second Restatement chooses the “local” law (that is, the
substantive law excluding choice-of-law rules) of the state
which, “with respect to that issue, has the most significant re-
lationship to the transaction and the parties.” § 188(1). To gov-
ern issues in tort, the Second Restatement similarly chooses
the law of the state which, “with respect to that issue, has the
most significant relationship to the occurrence and the par-
ties.” § 145(1). These general standards offer little direct guid-
ance in resolving particular cases. See Barbara’s Sales,
879 N.E.2d at 920. But the Second Restatement also supplies
“a secondary statement in black letter setting forth the choice
of law rules in a given situation.” Id. (quotation marks omit-
ted). These “specific presumptive rules” provide more
No. 19-2898 13
concrete points of departure. Townsend v. Sears, Roebuck & Co.,
879 N.E.2d 893, 902 (Ill. 2007).
For claims regarding a group life insurance contract, the
Second Restatement’s presumptive rule is that “rights against
the insurer are usually governed by the law which governs
the master policy.” § 192 cmt. h. That is usually the law of the
employer’s principal place of business, where the master pol-
icy was delivered. Id. The Illinois Supreme Court has cited this
rule with approval in the context of group health insurance.
Hofeld v. Nationwide Life Ins. Co., 322 N.E.2d 454, 458 (Ill. 1975).
The Couch treatise is in accord as to group insurance gener-
ally, 1A Couch on Insurance § 8:7, and we have reached the
same conclusion as to group accident insurance under Indi-
ana’s version of the “most significant relationship” test. Horn
v. Transcon Lines, Inc., 7 F.3d 1305, 1307–08 (7th Cir. 1993). Ap-
plied to this case, comment h to section 192 of the Second Re-
statement seems to suggest that Illinois would choose District
of Columbia law to govern Gunn’s claim for breach of con-
tract.
As for Gunn’s tort claims (unfair and deceptive consumer
practices, fraud, and fraudulent concealment), the Second Re-
statement’s presumptive rule for torts of deception provides
that if the place of defendant’s deception and the place of
plaintiff’s reliance on it were the same, the law of that place
applies. § 148(1). If deception and reliance took place in dif-
ferent states, a list of relevant contacts guides the court’s de-
termination of what jurisdiction has “the most significant re-
lationship” to the case. § 148(2). Illinois has applied section
148 to consumer fraud claims. Barbara’s Sales, 879 N.E.2d at
922. Applied to this case, section 148 suggests Illinois may
choose either District of Columbia or Washington law to
14 No. 19-2898
govern Gunn’s tort claims, depending on whether it would
legally characterize Continental’s alleged misrepresentations
as having been made to Gunn in Washington or to his em-
ployer in the District of Columbia.4
2. The Filed-Rate Doctrine in the District of Columbia
“In the District of Columbia, the filed rate doctrine is stat-
utorily mandated.” District of Columbia v. D.C. Pub. Serv.
Comm’n, 905 A.2d 249, 256 (D.C. 2006), citing D.C. Code § 34-
603. The statutory scheme within which the mandate is em-
bedded provides that every public utility in the District must
file proposed rate changes with the D.C. Public Service Com-
mission for the Commission’s approval. § 34-901(c)–(d). The
statutory filed-rate rule provides that rates approved by the
Commission “shall be prima facie reasonable until finally
found otherwise in an action brought for that purpose.” § 34-
603; see also § 34-1129 (“It shall be unlawful for any public
utility to … receive a greater or less compensation for any ser-
vice performed by it within the District of Columbia … than
4 We note one wrinkle in Illinois conflicts law that may or may not
bear on this case. Illinois recognizes the doctrine of dépeçage, or “cutting
into pieces” a single claim and subjecting different issues to different ju-
risdictions’ laws. Spinozzi v. ITT Sheraton Corp., 174 F.3d 842, 848 (7th Cir.
1999). Even if Illinois would choose District of Columbia law to govern
one or more of Gunn’s claims, perhaps Illinois might choose Washington
law to govern Continental’s defenses if it determined that Washington
had the most significant relationship to the case with respect to a specific
issue, such as the filed-rate defense. See Doctor’s Data, Inc. v. Barrett, 170 F.
Supp. 3d 1087, 1107 (N.D. Ill. 2016) (recognizing possibility of splitting
claims from defenses under principle of dépeçage); see generally Restate-
ment (Second) § 6 (factors relevant to “most significant relationship” anal-
ysis).
No. 19-2898 15
is specified in such printed schedules … as may at the time be
in force.”).
The problem for Continental’s defense, however, is that
this statutory language says nothing about insurers, which
are not included in the definition of “public utilities.” See § 34-
214. Nor does the statute address the District’s insurance reg-
ulator or insurance premiums. We have found no District of
Columbia case or statute applying filed-rate principles in the
insurance context. We also have found no District of Colum-
bia case recognizing a filed-rate defense to a suit for breach of
a promise as to how premiums would be computed, still less
to a suit for fraud. Dicta suggest the District of Columbia may
recognize a common law filed-rate doctrine not anchored in a
specific statute, see Watergate East, Inc. v. D.C. Pub. Serv.
Comm’n, 662 A.2d 881, 889 (D.C. 1995) (statute “amounts to a
codification of the filed rate doctrine”), but if such a doctrine
exists, its contours are yet to be revealed. After all, a legislative
decision to adopt the doctrine in one context (public utilities)
could be understood as a legislative choice not to adopt it in
others (like insurance). And at any rate, the District would still
have to balance the policies underlying filed-rate rules against
its own consumer protection policies. See, e.g., McCarthy Fi-
nance, Inc. v. Premera, 347 P.3d 872, 875 (Wash. 2015) (“But
while a court must be cautious not to substitute its judgment
on proper rate setting for that of the relevant agency, the leg-
islature has directed that the [consumer protection statute] be
liberally construed.”).
Even if the District of Columbia otherwise recognizes a
common law filed-rate doctrine broad enough to bar Gunn’s
claims, it also is not clear whether such a doctrine would ap-
ply to enforce the decision of a different jurisdiction’s
16 No. 19-2898
regulator. Continental’s brief assumes that the public law of
Washington must in all events, and in all courts, trump the
private law of the District of Columbia. Traditionally, how-
ever, courts have been reluctant to enforce the public law of
other states. See Restatement (First) of Conflict of Laws § 610
(Am. Law Inst. 1934) (“No action can be maintained on a right
created by the law of a foreign state as a method of furthering
its own governmental interests.”); id., cmt. c (“No action can
be maintained by a foreign state to enforce its license …
laws”); Moore v. Mitchell, 30 F.2d 600, 604 (2d Cir. 1929) (L.
Hand, J., concurring) (“To pass upon the provisions for the
public order of another state is, or at any rate should be, be-
yond the powers of a court”).
Why would District of Columbia law privilege Washing-
ton state’s interest in the authority of its insurance commis-
sioner above the District’s own interest in affording a remedy
to injured plaintiffs whom it would otherwise protect? See
Emory v. Grenough, 3 U.S. (3 Dall.) 369, 370 n. (1797), translat-
ing 2 Ulrich Huber, Praelectiones Juris Romani et Hodierni, ch.
“De Conflictu Legum” (1689) (“By the courtesy of nations,
whatever laws are carried into execution, within the limits of
any government, are considered as having the same effect
every where, so far as they do not occasion a prejudice to the
rights of the other governments, or their citizens.”); Joseph
Story, Commentaries on the Conflict of Laws 33 (1834) (“It is dif-
ficult to conceive, upon what ground a claim can be rested, to
give to any municipal laws an extra-territorial effect, when
those laws are prejudicial to the rights of other nations, or
their subjects.”), approving Huber, supra. The District of Co-
lumbia has an interest in protecting those subject to its laws
from unfair and deceptive business practices. See Shaw v. Mar-
riott Int’l, Inc., 605 F.3d 1039, 1045 (D.C. Cir. 2010). Perhaps
No. 19-2898 17
more to the point, the District of Columbia has an interest in
enforcing contracts negotiated and performed there, Wright v.
Sony Pictures Entm’t, Inc., 394 F. Supp. 2d 27, 32 (D.D.C. 2005),
and the nature of group insurance suggests the master policy
in this case fits that description. It is not clear the District of
Columbia could or would subordinate those interests to the
regulatory interests of the State of Washington.
3. The Filed-Rate Doctrine in Washington State
The State of Washington recognizes a “common law filed
rate doctrine” not grounded in any statute. McCarthy Finance,
Inc. v. Premera, 347 P.3d 872, 875 (Wash. 2015). The doctrine
has been applied to bar state consumer protection claims chal-
lenging health insurance premiums that had been approved
by the state insurance commissioner. Id. at 876. But claims un-
der the state consumer protection law or for breach of contract
that are “merely incidental” to rates approved by the commis-
sioner are not barred. Harvey v. Centene Mgmt. Co., 357 F.
Supp. 3d 1073, 1083 (E.D. Wash. 2018) (denying motion to dis-
miss in part), quoting McCarthy, 347 P.3d at 875.
“[W]hile a court must be cautious not to substitute its
judgment on proper rate setting for that of the relevant
agency, the legislature has directed that the [consumer pro-
tection statute] be liberally construed … . In most cases, courts
must consider [such] claims even when the requested dam-
ages are related to agency-approved rates.” McCarthy,
347 P.3d at 875. Accordingly, to the extent Washington state
law applies, Gunn’s claims may or may not be barred depend-
ing on whether they are deemed “merely incidental” to or
“would necessarily require courts to reevaluate” the commis-
sioner’s approval of Continental’s rates, as the Washington
Supreme Court—and no other court—would apply that
18 No. 19-2898
distinction. Harvey, 357 F. Supp. 3d at 1083, quoting McCarthy,
347 P.3d at 875.
4. Multistate Regulation of Group Insurance
In the McCarran–Ferguson Act of 1945, Congress
essentially insulated state regulation of “the business of
insurance” from the dormant Commerce Clause and from
implied federal preemption. 15 U.S.C. §§ 1011–1012; see
American Ins. Ass’n v. Garamendi, 539 U.S. 396, 427–28 (2003)
(“state regulation … will be good against preemption by
federal legislation unless that legislation specifically relates to
the business of insurance” (quotation marks omitted)); Group
Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 218 n.18
(1979) (“States are free to regulate insurance companies
without fear of Commerce Clause attack.”). Given the
national reach of so many insurance companies and of group
insurance policies issued to national employers, regulation of
such group policies poses important choice-of-law questions.
Continental’s understanding of those challenges leads it to
assert that its promise of interstate uniformity in a group in-
surance policy was illusory. “[L]ike all long-term care insur-
ers,” Continental says, it “must seek approval of rate increases
on a state-by-state basis.” Continental says that the necessity
is so obvious that a reasonable customer should have known
that any promises of uniform rates among similarly situated
insureds should not have been believed. Continental’s posi-
tion is startling, but we have been given no support—as a mat-
ter of law, custom, or reason—for its central assumption that
the proper regulatory subject is the individual certificate of a
customer like Gunn rather than the employer’s master policy
under which the individual certificates are issued.
No. 19-2898 19
A necessary foundation for a filed-rate defense is the reg-
ulator’s “jurisdiction to determine the reasonableness of
rates.” McCarthy, 347 P.3d at 875. Washington asserts, as it can
assert, legislative and regulatory jurisdiction over only in-
state activity. See Midwest Title Loans, Inc. v. Mills, 593 F.3d
660, 666 (7th Cir. 2010), quoting Healy v. Beer Inst., 491 U.S.
324, 337 (1989); Dean Foods Co. v. Brancel, 187 F.3d 609, 614–15
(7th Cir. 1999), quoting Bonaparte v. Tax Court, 104 U.S. 592,
594 (1881); Wash. Rev. Code § 48.01.020. As to ratemaking,
Washington requires that every company “engaged in the
business of making contracts of insurance” file its proposed
rates with the insurance commissioner for approval or disap-
proval. Wash. Rev. Code § 48.01.050; see §§ 48.19.040,
48.19.060. The question then is how to describe the legal ge-
ography of a group insurance policy with an employer and
master policy in one location and individual insureds all over
the nation. More than one state has at least arguable interests
in such national policies and the individual certificates issued
under them.
As noted above, the key contractual event in group insur-
ance transactions is generally held to be delivery of the master
policy, not the individual certificates issued under it. See
1A Couch on Insurance § 8:1 (“the addition of new individual
members to a master group policy does not create a new con-
tract of insurance.”). Apparently on the same understanding,
Washington’s current statutory regulation of group long-term
care insurance applies to “a long-term care insurance policy
or contract that is delivered or issued for delivery in this state”
and “any certificate issued under a group long-term care in-
surance policy that has been delivered or issued for delivery
in this state.” Wash. Rev. Code § 48.83.020. (The long-term
care insurance statute in force in 2000, when Gunn first
20 No. 19-2898
obtained coverage, did not address group insurance specifi-
cally. See Wash. Rev. Code § 48.84.020; Wash. Admin. Code
§ 284-54-010.) So we might expect the Washington state insur-
ance commissioner to care about master policies delivered in
Washington and about certificates issued, no matter where or
to whom, under master policies delivered in Washington.
That would make good multistate sense. If universalized,
it would mean that every group policy has one and only one
regulator, steering clear of the regulatory Scylla avoided in
the private-law context by the usual choice-of-law rule. See
Horn v. Transcon Lines, Inc., 7 F.3d 1305, 1307 (7th Cir. 1993)
(“There is only one policy and one form of certificate evidenc-
ing coverage. We cannot imagine why Liberty Mutual would
prefer a choice-of-law approach under which 50 different
rules govern the same policy of insurance”); Restatement
(Second) § 192 cmt. h (“it is desirable that each individual in-
sured should enjoy the same privileges and protection”); 1A
Couch on Insurance § 8:7 (“This rule prevents the same policy
from being interpreted according to the law of potentially 50
states thus creating uniformity in the coverage and protection
of every individual insured under the group policy.”).
But Continental proceeded on nearly the opposite as-
sumption in 2015, when it sought the challenged rate in-
creases. Continental wrote the Washington insurance com-
missioner:
The new premium rates will be applied to all in-
sureds under group policies that were sitused in
your state except insureds under the group pol-
icies sitused in your state that were issued cer-
tificates in another state that is an extraterrito-
rial (ET) jurisdiction. These insureds are
No. 19-2898 21
governed by the other ET state’s laws and regu-
lations and will be included in that state for rate
increase purposes. The new premium rates will
also be applied to insureds issued in your state
under groups sitused outside of your state.
As we read this letter, Continental submitted rates to the com-
missioner for every individual certificate issued in Washing-
ton, even if the master policy had not been delivered there,
but not for every master policy delivered in Washington, if the
certificate was issued in an “extraterritorial jurisdiction”
(which appears to describe Washington as well).
The briefs do not explain what is an “extraterritorial juris-
diction,” what makes it one, or whether the District of Colum-
bia is one, nor did counsel at oral argument. We assume that
interstate regulation of insurance transactions involves a
good deal of comity and agreement among regulators of dif-
ferent states, without each regulator always pushing for max-
imum power. Any state’s claim to extraterritorial power mer-
its further inquiry, at least. Continental’s letter to the Wash-
ington insurance commissioner suggests if nothing else that
its basic position is overstated: at least some states, those that
are not “extraterritorial jurisdictions,” are content to leave
ratemaking authority in the hands of the regulator where the
master policy was delivered, even if certificates under that
policy are issued to insureds within their own borders.
Untying this knot is not possible on the record now before
us. But it is essential to even a threshold determination of the
validity of any filed-rate defense that would give decisive ef-
fect to the decisions of the Washington state insurance com-
missioner. We must remand this task to the capable district
judge, who may find it useful to enlist the help of interested
22 No. 19-2898
amici, including the National Association of Insurance Com-
missioners, associations of insurance companies, and perhaps
others who can educate generalist federal courts about the
broader implications of choice-of-law rules as applied to
group insurance policies.
We acknowledge the questions we have posed are more
easily asked than answered. And we have not framed or dis-
cussed those questions with any intention to prejudge the cor-
rect outcome(s) in this case. The district court may find that a
motion under Rule 12(c), a motion for summary judgment on
a more complete record, or perhaps a motion for class certifi-
cation could bring the issues into sharper relief. See In re
Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015 (7th Cir. 2002).
Those are case management issues best left to the district
court’s discretion. The judgment of the district court is
REVERSED and the case is REMANDED for further proceed-
ings consistent with this opinion.
|
NO. 07-06-0390-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 28, 2008
______________________________
IT’S THE BERRYS, LLC, A TEXAS LIMITED
LIABILITY COMPANY, DOING BUSINESS
AS MARY ELLEN’S, APPELLANT
V.
EDOM CORNER, LLC, A TEXAS
LIMITED LIABILITY COMPANY, APPELLEE
_________________________________
FROM THE 294TH DISTRICT COURT OF VAN ZANDT COUNTY;
NO. 06-00428; HONORABLE TERESA DRUM, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Appellant It’s the Berry’s, LLC d/b/a Mary Ellen’s (Berry’s) complains of a district
court judgment granting possession of its leasehold to its landlord, appellee Edom Corner,
LLC. Brought as an action for forcible detainer in justice court, the case was transferred
to district court and there tried as though that court possessed original subject matter
jurisdiction. Finding the district court lacked original subject matter jurisdiction to try an
eviction suit, we will sever, vacate and dismiss the forcible detainer suit and affirm the
remainder of the judgment.
Background
The legal complaints of the parties before us arise from a commercial lease
between Edom Corner as lessor and Berry’s as lessee. The leased property was retail
space located in a building that also housed a restaurant known as Edom Bakery.
At the time the parties executed the lease, the principal members of Edom Corner
were Earl A. Berry, Jr. and his wife, Ann Thornton Berry. Mr. and Mrs. Berry were also the
sole members of Edom Bakery, LLC, which did business as Edom Bakery. Berry’s was
owned by Mary Ellen Malone.
Edom Corner, Edom Bakery, and Berry’s were formerly owned in equal shares by
Mr. and Mrs. Berry and Malone.1 But the parties found joint operation of the companies
difficult and divided their interests. Under the agreed division, Mr. and Mrs. Berry acquired
ownership of Edom Corner and Edom Bakery and Malone acquired ownership of Berry’s.
Berry’s operated a retail merchandise store known as Mary Ellen’s in the space it
leased from Edom Corner. According to trial testimony, problems developed among the
parties after execution of the lease. Disagreements escalated after Malone purchased a
nearby restaurant, known as “the Shed,” a competitor of Edom Bakery. About eighteen
months after execution of the lease, an attorney for Edom Corner notified Berry’s by letter
1
Earl A. Berry, Jr. and Mary Ellen Malone are brother and sister.
2
that because of multiple alleged breaches of the lease it must vacate the premises by a
specified date or face a forcible detainer suit.
When Berry’s did not vacate the leasehold, Edom Corner commenced a forcible
detainer suit in a justice court of Van Zandt County. By its original petition entitled
“Plaintiff’s Original Petition for Forcible Detainer,” Edom Corner sought possession of the
property, a writ of possession, and attorney’s fees.
Before Berry’s answered the suit, Edom Corner filed a “Motion to Transfer” in the
justice court requesting transfer of the case to the 294th judicial district court of Van Zandt
County. In its motion, Edom Corner asserted a suit was already pending in district court
concerning a dispute among other entities owned by Malone and Mr. and Mrs. Berry. The
justice court responded with an order transferring the case to district court “because the
matter concerns issues within its jurisdiction.” Thereafter, Berry’s answered and filed a
counterclaim for declaratory relief and attorney’s fees.2
About three weeks later, Edom Corner filed a supplemental petition requesting the
district court to issue “without notice” a temporary restraining order enjoining Berry’s from
locking a passageway in the building, leaving the door of Mary Ellen’s open while the air
conditioning operated, and interfering in efforts to change building locks. The
supplemental petition requested a temporary injunction and on trial a permanent injunction
2
Berry’s sought declarations that it was not in default of the lease, Edom Corner
breached the lease, and Edom Corner’s claims were barred by waiver. As the issue is not
before us, we express no opinion on the propriety of the grounds for declaratory relief
Berry’s urged.
3
because “when [Edom Corner] prevails in its suit for Forcible Detainer there is a period of
time between the Court’s judgment and the actual physical evacuation of the premises
. . . .” No temporary restraining order or temporary injunction issued.3
Following a bench trial, the district court signed a judgment awarding Edom Corner
possession of the leased premises, a writ of possession, costs and attorney’s fees. The
judgment also decreed that Berry’s take nothing by its counterclaims.
Berry’s timely filed a notice of appeal to the Twelfth District Court of Appeals at
Tyler. It also filed a motion with the trial court requesting a supersedeas bond exceeding
the aggregate of attorney’s fees awarded Edom Corner under the judgment, post-judgment
interest, and the monthly rental and utility charges payable according to the terms of the
lease. Edom Corner objected, arguing the case was a forcible detainer suit not involving
a party’s principal residence and execution of a writ of possession could not be
superseded. See Tex. R. Civ. P. 755. The trial court ordered a supersedeas bond in an
amount sufficient only to supersede enforcement of the monetary portion of its judgment.
Berry’s petitioned the Tyler Court for a writ of mandamus arguing the trial court did
not set the amount of bond necessary to supersede the writ of possession, contrary to the
requirements of Rule of Appellate Procedure 24.1. Tex. R. App. P. 24.1(a)(3); In re It's The
Berry's, LLC, No. 12-06-00298-CV, 2006 WL 3020353, 2006 Tex. App. Lexis 9146,*9-11
3
Edom Corner’s request for permanent injunctive relief was not tried or expressly
embraced by the court’s judgment. As the judgment was signed following a trial on the
merits and no order for trial of separate issues appears of record we presume the judgment
is final for appellate purposes. Moritz v. Preiss, 121 S.W.3d 715, 719-20 (Tex. 2003). The
parties do not argue otherwise.
4
(Tex.App.–Tyler Oct. 25, 2006, orig. proceeding) (not designated for publication). Edom
Corner again took the position the writ could not be superseded under Rule of Civil
Procedure 755 because it was not a party’s principal residence. Berry’s countered that
Rule 755 was not applicable to the case because the appeal was not from a judgment of
the county court. 2006 WL 3020353, at *3, 2006 Tex. App. Lexis 9146, at *10. Edom
Corner responded that Government Code section 24.471 established a “special
relationship” between the county court and district court of Van Zandt County, authorizing
adjudication of its forcible detainer suit in district court. Therefore, Rule 755 applied,
disallowing suspension of the writ of possession. 2006 WL 3020353, at *4, 2006 Tex. App.
Lexis 9146, at *10-11. The Tyler Court disagreed, finding Rule 755 inapplicable because
Berry’s was appealing not from a judgment of the county court after a trial de novo on
appeal from the justice court, but a judgment of the district court, exercising its original
jurisdiction. 2006 WL 3020353, at *4, 2006 Tex. App. Lexis 9146, at *12. The court
concluded the trial court abused its discretion by not setting a bond for suspension of the
entire judgment, and conditionally granted the writ of mandamus. 2006 WL 3020353, at
*4, 2006 Tex. App. Lexis 9146, at *12-13. After the trial court complied with the
requirements of the conditional grant, the Tyler Court dismissed the original proceeding as
moot. In re It's The Berry's, LLC, No. 12-06-00298-CV, 2006 WL 3313659, 2006 Tex. App.
Lexis 9920 (Tex.App.–Tyler November 15, 2006, orig. proceeding) (not designated for
publication). By docket equalization order of the Supreme Court, the appeal of the case
was thereafter transferred to this court. See Tex. Gov’t Code Ann. § 73.001 (Vernon
2005).
5
Issues
Berry’s raises twenty-two issues on appeal. We find issues one and eleven
dispositive of the appeal.
Discussion
In its first issue Berry’s argues the district court lacked subject matter jurisdiction to
try Edom Corner’s forcible detainer action.
Whether a trial court possessed subject matter jurisdiction is a question of law we
review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). The
existence of subject matter jurisdiction may be raised for the first time on appeal by the
parties or the court on its own motion. University of Tex. Sw. Med. Ctr. v. Loutzenhiser,
140 S.W.3d 351, 358 (Tex. 2004), superseded by statute on other grounds, Tex. Gov’t
Code Ann. § 311.034 (Vernon Supp. 2008).
An action for forcible detainer is the judicial procedure for determining the right to
immediate possession of real property. Kennedy v. Highland Hills Apartments, 905 S.W.2d
325, 326 (Tex.App.–Dallas 1995, no writ). It exists to provide a speedy, simple and
inexpensive means for settling the right to possession of premises. Id.
A person who refuses to surrender possession of real property on demand
commits a forcible detainer if the person:
6
(1) is a tenant or a subtenant wilfully and without force holding over
after the termination of the tenant's right of possession;
(2) is a tenant at will or by sufferance, including an occupant at the
time of foreclosure of a lien superior to the tenant's lease; or
(3) is a tenant of a person who acquired possession by forcible entry.
Tex. Prop. Code Ann § 24.002(a)(1)-(3) (Vernon 2000). A prevailing landlord in a suit for
forcible detainer “is entitled to a judgment for possession of the premises and a writ of
possession.” Tex. Prop. Code Ann. § 24.0061(a) (Vernon 2000).
A forcible detainer action depends on the existence of a landlord-tenant relationship.
Haith v. Drake, 596 S.W.2d 194, 196 (Tex.Civ.App.–Houston [1st Dist.] 1980, writ ref’d
n.r.e.). Only proof of a superior right to immediate possession must be proved for the
plaintiff to prevail in a forcible detainer action. Goggins v. Leo, 849 S.W.2d 373, 377
(Tex.App.–Houston [14th Dist.] 1993, no writ). Accordingly, the sole matter in issue for
resolution in a forcible detainer action is which party has the superior right to immediate
access to the property. Fandey v. Lee, 880 S.W.2d 164, 168 (Tex.App.–El Paso 1994, writ
denied); Goggins, 849 S.W.2d at 377.
District courts in Texas are courts of general jurisdiction, presumably having subject
matter jurisdiction over a cause unless a contrary showing is made. Subaru of America,
Inc. v. David McDavid Nissan, Inc., 84 S.W.2d 212, 220 (Tex. 2002), citing Dubai
Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000). Under our constitution and by
statute, the district court’s jurisdiction “consists of exclusive, appellate, and original
7
jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive,
appellate, or original jurisdiction may be conferred by [the constitution] or other law on
some other court, tribunal, or administrative body.” Tex. Const. art. V, § 8; Tex. Gov’t Code
Ann. § 24.007 (Vernon 2004).4 The legislature has committed jurisdiction of a forcible
detainer suit, however, exclusively to a justice court in the precinct where the property in
question is located. Tex. Prop. Code Ann. § 24.004 (Vernon 2000); Tex. Gov’t Code Ann.
§ 27.031(a)(2) (Vernon 2004) (justice court has original jurisdiction of cases of forcible
entry and detainer); McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984) (referring to
exclusive jurisdiction of justice court in forcible entry and detainer case); Haginas v. Malbis
Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368, 371 (Tex. 1962) (forcible entry and
detainer action must be instituted in justice court); Rice v. Pinney, 51 S.W.3d 705, 712
(Tex.App.–Dallas 2001, no pet.) (jurisdiction “expressly” given to justice court); Mitchell v.
Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex.App.–Houston [1st Dist.] 1995, writ
denied) (jurisdiction of forcible detainer suit is in justice court and on appeal, county court);
McCloud v. Knapp, 507 S.W.2d 644, 647-648 (Tex.Civ.App.–Dallas 1974, no writ).
Where a claimed right of immediate possession necessarily requires resolution of
a title dispute, the justice court lacks subject matter jurisdiction. Rice, 51 S.W.3d at 709;
4
“‘Basically, district courts are tribunals of general jurisdiction with exclusive,
appellate, and original jurisdiction in all causes unless the domain has been constitutionally
or statutorily specified elsewhere.’” 1 Roy W. McDonald & Elaine A. Grafton Carlson,
Texas Civil Practice: Courts § 3:30 n.1 (2d ed. 2004) (quoting Texas Courts, A Study By
the Texas Research League: Report One (The Texas Judiciary: A Structural-Functional
Overview) pp. 29, 30 (1990)). The Government Code further provides that a district court
“may hear and determine any cause that is cognizable by courts of law or equity and may
grant any relief that could be granted by either courts of law or equity.” Tex. Gov’t Code
Ann. § 24.008 (Vernon 2004).
8
Tex. R. Civ. P. 746. Because a forcible detainer action is not exclusive of other remedies,
another possessory action, such as a suit for trespass to try title, may be brought in district
court. Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 819 (Tex. 1936) (title may not be
adjudicated in forcible entry and detainer proceeding but remedy is cumulative of any other
remedy); Rice, 51 S.W.3d at 709; Tex. Prop. Code Ann. § 24.008 (suit for forcible detainer
does not bar a suit for “trespass, damages, waste, rent, or mesne profits.”). And the district
court may adjudicate a suit to try title concurrently with a forcible detainer action in justice
court. Haith, 596 S.W.2d at 196; Rice, 51 S.W.3d at 709.
Here the parties and trial court looked to Government Code § 24.471(b) as the origin
of jurisdiction of the district court to try the forcible detainer suit. In pertinent part the
statute provides:
The 294th District Court has concurrent jurisdiction with the county court in
Van Zandt County over all matters of civil and criminal jurisdiction, original
and appellate, in cases over which the county court has jurisdiction under the
constitution and laws of this state. Matters and proceedings in the
concurrent jurisdiction of the 294th District Court and the county court may
be filed in either court and all cases of concurrent jurisdiction may be
transferred between the 294th District Court and the county court. However,
a case may not be transferred from one court to another without the consent
of the judge of the court to which it is transferred, and a case may not be
transferred unless it is within the jurisdiction of the court to which it is
transferred.
Tex. Gov’t Code Ann. § 24.471(b) (Vernon 2004). We do not find this statute ambiguous.
It does not authorize, nor could it authorize, consistent with Property Code § 24.004, trial
of a forcible detainer suit in the 294th district court.5
5
Further, trial of this forcible detainer suit in district court precludes appeal by trial
de novo, Tex. R. Civ. P. 751, and places appeal in the courts of appeals, when the
9
Edom Corner argues the Tyler Court’s conditional grant of mandamus resolved any
question of the district court’s subject matter jurisdiction and we are, therefore, precluded
by the “law of the case” doctrine from considering the question of subject matter
jurisdiction. We disagree.
The “law of the case” doctrine is defined as that principle under which
questions of law decided on appeal to a court of last resort will govern the
case throughout its subsequent stages. By narrowing the issues in
successive stages of the litigation, the law of the case doctrine is intended
to achieve uniformity of decision as well as judicial economy and efficiency.
The doctrine is based on public policy and is aimed at putting an end to
litigation.
Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (citations omitted). The doctrine
is not a limitation on the power of the court. Devilla v. Schriver, 245 F.3d 192, 197 (2d Cir.
2001). Rather, as Justice Holmes long ago noted, it “merely expresses the practice of the
courts generally to refuse to reopen what has been decided.” Messenger v. Anderson, 225
U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912). Application of the doctrine lies with
the discretion of the court. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003).
The Fourteenth Court of Appeals rejected a contention like that made by Edom
Corner here in Gantt v. Gantt, 208 S.W.3d 27 (Tex.App.–Houston [14th Dist.] 2006, pet.
denied). There, a party contended the law of the case doctrine precluded the Fourteenth
Court from dismissing an appeal for lack of subject matter jurisdiction, based on a late
notice of appeal. Id. at 30 n.4 According to the party’s argument, the Corpus Christi Court
legislature intended final appellate resolution by the county court. See Tex. Prop. Code
Ann. § 24.007 (Vernon 2000) (final judgment of county court in forcible entry and detainer
action not appealable on issue of possession unless property in question is exclusively
residential).
10
of Appeals, by issuing an opinion and judgment in a prior appeal in the case, must
necessarily have concluded it had jurisdiction, establishing the law of the case. Id. The
Fourteenth Court found the Corpus Christi Court had not expressly considered and decided
the late-notice-of-appeal question, and found that court’s sub silentio exercise of
jurisdiction was not law of the case. Id.
Our circumstance is similar. While it might be said that implicit in the Tyler Court’s
opinion is recognition that the trial court exercised subject matter jurisdiction by
adjudicating the case, this was clearly not the narrow question presented or decided in the
mandamus proceeding. Indeed, the Tyler Court’s opinion states, “Edom [Corner] states
that it agreed to the transfer [from justice court] and does not contend that the transfer was
improper.” In re It’s the Berry’s, 2006 WL 3020353, at *3, 2006 Tex. App. Lexis 9146, at
*9. We decline to utilize the law of the case doctrine to avoid review of the district court’s
exercise of subject matter jurisdiction in the forcible detainer action.
Edom Corner also argues that Berry’s is judicially estopped to now challenge the
subject matter jurisdiction of the trial court because in its petition for writ of mandamus it
alleged the lawsuit was one over which a district court has original jurisdiction. Edom
Corner asserts that Berry’s thus took inconsistent positions in the mandamus action and
the instant appeal, and is estopped to do so. We disagree for two reasons. First, “[s]ubject
matter jurisdiction cannot be conferred by consent, waiver, or estoppel at any stage of a
proceeding.” Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 910
(Tex.App.–Houston [1st Dist.] 2000, no pet.) (citing Fed. Underwriters Exch. v. Pugh, 141
Tex. 539, 174 S.W.2d 598, 600 (Tex. 1943)). Second, and assuming Berry’s mandamus
11
and appellate positions were contradictory, the mandamus proceeding is part of the
present case and not a prior proceeding. See Pleasant Glade Assembly of God v.
Schubert, No. 05-0916, 51 Tex. S.Ct. J. 1086, 2008 WL 2572009, at *6, 2008 Tex. Lexis
620, at *17 (Tex. June 27, 2008). The doctrine of judicial estoppel has no application to
contradictory positions taken in the same proceeding. Id. (citing Galley v. Apollo
Associated Servs., Ltd., 177 S.W.3d 523, 529 (Tex.App.–Houston [1st Dist.] 2005, no
pet.)).
The relief Edom Corner sought in the trial court was exclusive to Chapter 24 of the
Property Code. Tex. Prop. Code Ann. Chapter 24 Forcible Entry and Detainer (Vernon
2000 & Supp. 2007). The district court was without subject matter jurisdiction to try Edom
Corner’s forcible detainer suit. We sustain Berry’s first issue.
In its eleventh issue, Berry’s challenges the award of attorney’s fees for Edom
Corner and the denial of its request for attorney’s fees. Specifically, Berry’s asserts it
should have prevailed in the trial court and recovered attorney’s fees while Edom Corner
should not have prevailed and was not entitled to recover attorney’s fees. Because the
district court lacked subject matter jurisdiction to adjudicate the forcible detainer action, that
cause, including the award of statutory and contractual attorney’s fees and costs to Edom
Corner, must be set aside and dismissed. In the same way, the trial court had no
jurisdiction to award attorney’s fees to Berry’s for defense of a forcible detainer action.
Berry’s does not contend the absence of an award of attorney’s fees under the Uniform
Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code § 37.009 (Vernon 1997), was
12
error. We sustain Berry’s eleventh issue as to the recovery of attorney’s fees by Edom
Corner. We overrule Berry’s eleventh issue as to its claim for attorney’s fees.
Conclusion
When a trial court lacks subject matter jurisdiction to render a judgment, the proper
procedure on appeal is for the appellate court to set the judgment aside and dismiss the
cause. See Dallas County Appraisal Dist. v. Funds Recovery, 887 S.W.2d 465, 471
(Tex.App.–Dallas 1994) (citing Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827
(1961)). Finding the trial court lacked subject matter jurisdiction, we sever the forcible
detainer case, vacate the judgment in the forcible detainer case, and dismiss the forcible
detainer case. Otherwise, we affirm the district court’s judgment.
James T. Campbell
Justice
13
|
Filed 12/7/17 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2017 ND 281
In the Interest of M.R., a child
Jaimee Towers, Assistant State’s
Attorney for Ward County, Petitioner and Appellee
v.
M.R., a child; C.R., mother, Dena Penton,
Guardian Ad Litem, and Christopher Jones,
Executive Director of the ND Department
of Human Services, Respondents
and
T.W.R., father, Respondent and Appellant
No. 20170363
In the Interest of P.R., a child
Jaimee Towers, Assistant State’s
Attorney for Ward County, Petitioner and Appellee
v.
P.R., a child; C.R., mother, Dena Penton,
Guardian Ad Litem, and Christopher Jones,
Executive Director of the ND Department
of Human Services, Respondents
and
T.W.R., father, Respondent and Appellant
No. 20170364
In the Interest of T.R., a child
Jaimee Towers, Assistant State’s
Attorney for Ward County, Petitioner and Appellee
v.
T.R., a child; C.R., mother, Dena Penton,
Guardian Ad Litem, and Christopher Jones,
Executive Director of the ND Department
of Human Services, Respondents
and
T.W.R., father, Respondent and Appellant
No. 20170365
Appeal from the Juvenile Court of Ward County, North Central Judicial District, the Honorable Connie Sue Portscheller, Judge.
AFFIRMED.
Per Curiam.
Kyle R. Craig, Minot, ND, for respondent and appellant; submitted on brief.
Jaimee F. Towers, Ward County Assistant State’s Attorney, Minot, ND, for petitioner and appellee; submitted on brief.
Interest of M.R., P.R., and T.R.
Nos. 20170363-65
Per Curiam.
[¶1] The father, T.R., appeals from a juvenile court order terminating his parental rights. The juvenile court found the children were deprived and in foster care for at least 450 out of the previous 660 nights. N.D.C.C. § 27-20-44(1)(c)(2);
Interest of A.L.
, 2011 ND 189, ¶¶ 10-11, 803 N.W.2d 597 (concluding the district court did not clearly err in terminating parental rights when evidence supported the conclusion the child was deprived and in the custody of social services for 450 of the previous 660 nights). T.R. argues the juvenile court did not adequately explain its findings and did not have an evidentiary basis for finding the children deprived. We summarily affirm under N.D.R.App.P. 35.1(a)(2) and (7).
[¶2] Gerald W. VandeWalle, C.J.
Jon J. Jensen
Jerod E. Tufte
Daniel J. Crothers
Lisa Fair McEvers
|
Filed 4/13/16 P. v. Kalogirou CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064531
v. (Super.Ct.No. SWF1501347)
CHRISTOPHER GEORGE OPINION
KALOGIROU,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.
Affirmed.
William Paul Melcher, under the appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Christopher George Kalogirou appeals from his
conviction and five-year sentence after he pleaded guilty to conspiring to sell or give a
controlled substance to a prison inmate. We affirm the judgment.
1
FACTS AND PROCEDURE
On September 3, 2015, the People filed a first amended complaint alleging that on
or about February 20, 2015, defendant conspired with an unknown person to commit the
crime of selling or giving a controlled substance to a prison inmate. (Pen. Code,
§ 4573.9.) The overt acts alleged are that the conspirators: (1) contacted each other by
phone; (2) discussed “skaduche” being in a letter addressed from “Sharon Wood”; and
(3) a letter addressed from “Sharon Wood” was sent to the Southwest Detention Center
containing methamphetamine. The People also alleged defendant had three prior prison
term convictions within the meaning of Penal Code section 667.5, subdivision (b).
Also on September 3, 2015, defendant pled guilty to the conspiracy charge and
admitted the three prison term priors. The court immediately sentenced him to the
middle term of four years, plus one year for one of the prison term priors, with four years
in custody and one year of mandatory supervision.
This appeal followed.
DISCUSSION
Upon defendant’s request, this court appointed counsel to represent him on appeal.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436
and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a
summary of the facts and potential arguable issues, and requesting this court to conduct
an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
2
have independently reviewed the entire record for potential error and find no arguable
error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
McKINSTER
J.
3
|
165 F.Supp. 533 (1958)
Philip F. DI COSTANZO, Petitioner,
v.
John H. WILLARD, as Deputy Commissioner of the United States Department of Labor, Bureau of Employees' Compensation, Second Compensation District, Respondent.
Civ. No. 18631.
United States District Court E. D. New York.
September 9, 1958.
*534 *535 Philip Di Costanzo, Brooklyn, N. Y., petitioner pro se.
Cornelius W. Wickersham, Jr., U. S. Atty., Brooklyn, N. Y., for respondent, Ann. B. Miele, Asst. U. S. Atty., Brooklyn, N. Y., of counsel.
ZAVATT, District Judge.
The petitioner has brought this action to review a compensation order made by the respondent in a proceeding under the Longshoremen's and Harbor Workers' Compensation Act, in which the petitioner's client, Ralph Scotto, was claimant, Bull Insular Line, Inc. was the employer, and the Travelers Insurance Company was the insurance carrier. Review of that order is sought insofar as it fixed as the gross sum of $175 the fee of this petitioner for the legal services which he had rendered to the claimant. A copy of the order, dated and filed in the office of the Deputy Commissioner on April 10, 1958, is annexed to the petitioner's bill of complaint. The petition in this action was verified on April 15, 1958 and filed in the office of the Clerk of this Court on April 17, 1958. The Longshoremen's and Harbor Workers' Compensation Act provides that a compensation order so filed shall become final at the expiration of the thirtieth day after the date when it was so filed. 33 U.S.C.A. § 921. Thus, this action by the petitioner has been timely instituted, if properly brought under § 921, because instituted within thirty days after the date of the filing of the order in the office of the Deputy Commissioner. Mille v. McManigal, 2 Cir., 1934, 69 F.2d 644; Flamm v. Willard, D.C.E.D.N.Y.1954, 125 F. Supp. 932; Montagna v. Norton, D.C. D.N.J.1939, 28 F.Supp. 997; Bulczak v. Independent Pier Co., D.C.E.D.Pa.1937, 17 F.Supp. 973.
The respondent has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. "on the grounds that there is no genuine issue as to any material fact and that said respondent is entitled to judgment as a matter of law". It is the contention of the respondent that the court has no jurisdiction to review the amount of petitioner's fees as fixed by the Deputy Commissioner; that the order, insofar as it relates to the legal fees of the petitioner, is not a "compensation order"; that the petitioner is not a party in interest who is entitled to institute this action under 33 U.S.C.A. § 921(b). Respondent contends in his memorandum that the term "compensation order" is defined at 33 U.S.C.A. § 919(e). But that section of the Longshoremen's and Harbor Workers' Act does not purport to define "compensation order". Rather, it prescribes the procedure in respect of claims, sub-division (e) thereof providing that "the order rejecting the claim or making the award (referred to in this chapter as a compensation order) shall be filed in the office of the deputy commissioner * * *". Actually, the term "compensation order" is not specifically defined in the Longshoremen's *536 and Harbor Workers' Compensation Act. 33 U.S.C.A. § 902.
In support of his contention that the attorney for the claimant is not a party in interest, respondent cites United States Casualty Co. v. Taylor, 4 Cir., 1933, 64 F.2d 521, certiorari denied 1933, 290 U.S. 639, 54 S.Ct. 56, 78 L.Ed. 555. In that case a workman was injured while engaged in the construction of a new ship that had been launched and was nearly, but not quite, completed. The Deputy Commissioner rejected his claim for compensation on the ground that the construction of a new vessel did not involve a maritime contract and that, therefore, the Longshoremen's and Harbor Workers' Compensation Act did not apply to this workman. On a bill of complaint against the Deputy Commissioner under the provisions of § 921 of Title 33 U.S. C.A., the District Judge decreed that the order of the Deputy Commissioner be reversed and that he proceed to award compensation in the manner provided by the statute. Thereafter, the compensation carrier was granted leave to intervene and brought the case to the Court of Appeals. On the appeal it was contended that the District Court had no power to allow an intervention after the rendition of its final decree and that the casualty company had no such interest in the litigation as entitled it to intervene; that the carrier's interest in the case was not direct and immediate but secondary and consequential. The Court of Appeals for the Fourth Circuit rejected this contention. It construed 33 U.S.C.A. § 921(b) with reference to other sections of the Longshoremen's and Harbor Workers' Compensation Act and concluded that the carrier was an interested person entitled to intervene. By reference to other sections of the act, the Court construed Sections 912(a), 914(a) and 919(d) to have a direct bearing upon the rights and obligations of the insurance carrier, and to contemplate the right of the carrier to be heard in opposition to any compensation claim. It was held that the carrier was clothed with a sufficient interest in the result of such a suit as to be granted permission to intervene as a defendant in a subsequent suit despite the fact that Congress failed to expressly authorize such joinder. The Court was of the view that it should be ready to exercise its discretion "so that the act may be enforced according to its spirit, and a speedy decision of controverted cases may be accomplished * * *" [64 F.2d 527.] The respondent attempts to draw from the language of the court in the United States Casualty Co. case an inferential holding that persons other than the injured employee, the employer and the carrier are not clothed with a sufficient interest in the result of a suit brought to review a decision of the Deputy Commissioner of the United States Department of Labor under the Longshoremen's and Harbor Workers' Compensation Act. This court is of the opinion that such an inference is fallacious. The court in United States Casualty Co. decided only the question presented to it and nothing more. Furthermore, that case does not even purport to suggest who, other than the claimant, employer and carrier, may bring an action against the Deputy Commissioner under § 921 (d).
The respondent also cites § 31.21 (a) of Title 20 of the Code of Federal Regulations, which specifies what parties in interest may be represented before the Deputy Commissioner by persons authorized in writing for such purpose. It provides as follows:
"§ 31.21 Representatives of parties in interest and fees for services.
"(a) Any party in interest, whether claimant, employer or insurance carrier, may be represented before the deputy commissioner by any person previously authorized in writing for such purpose. Any attorney in good standing, admitted to the bar of the State where the compensation proceeding is held, may when so authorized appear as attorney in respect of a claim under said act. * * *"
The respondent maintains that this language necessarily excludes the attorney *537 for a claimant as a party in interest who may proceed to review any part of a compensation order, under § 921(d). It is the opinion of this Court that this regulation does not purport to define "party in interest" but merely to specify those parties in interest who may be represented before the Deputy Commissioner by an attorney or by any other person previously authorized in writing for such purpose and that, therefore, it is not determinative of the issue presented on the respondent's motion for summary judgment.
In Hillman v. O'Hearne, D.C. Md.1955, 129 F.Supp. 217, the attorneys for a claimant, in a proceeding under the Longshoremen's and Harbor Workers' Compensation Act, sought a review of the order of the Deputy Commissioner insofar as it fixed their fees at $200 for legal services rendered to the claimant. It does not appear from the reported case under what section of the Longshoremen's and Harbor Workers' Compensation Act the attorneys instituted their proceeding to review the order of the Deputy Commissioner insofar as it related to the matter of legal fees. It would appear that the District Court of Maryland regarded the proceeding as one brought under § 921(b) because the court dismissed the bill for review on the ground that it could not say that the order was contrary to law. And it is to be noted that § 921(b) provides that a compensation order may be suspended or set aside in whole or in part "If not in accordance with law, * * *" That case stands sub silentio for the proposition that the attorney for a claimant in a compensation proceeding under the Longshoremen's and Harbor Workers' Compensation Act may petition for review of the compensation order of the Deputy Commissioner insofar as it relates to fixing his fee, upon the ground that the order, to that extent, is contrary to law or upon the ground that the Deputy Commissioner has abused his discretion in fixing the amount of the fee. In the opinion of this Court it would be mischievous word playing to find that § 921(b) and § 928 of the Longshoremen's and Harbor Workers' Compensation Act preclude the attorney for the claimant from reviewing the compensation order insofar as it fixes the fees of the attorney for the claimant. This conclusion is fortified by a reading of § 31.21(b) of Title 20 of the Code of Federal Regulations which provides in part as follows:
"* * * Except where the claimant has been advised that such representation will be rendered gratuitously, the fee approved by the deputy commissioner shall be reasonably commensurate with the actual necessary work performed by such representative, taking into account the capacity in which the representative has appeared, the amount of compensation involved and the circumstances of the claimant."
The respondent contends, in effect, that this petitioner has no remedy by which he may review the action of the Deputy Commissioner insofar as it relates to fees. It is the opinion of the Court that this petitioner is entitled to review the action of the respondent, under § 921(b) of the Longshoremen's and Harbor Workers' Act, 33 U.S.C.A. § 921(b), and that he is also entitled to judicial review of the action of this agency under the Administrative Procedure Act. 5 U.S.C.A. § 1009(a) provides as follows:
"Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof."
Other subdivisions of § 1009 of Title 5 provide in substance that the form of the proceeding for judicial review shall be either the special statutory review proceeding relevant to the subject matter in any court specified by the statute or, in the absence or inadequacy thereof, "any applicable form of legal action * * * in any court of competent jurisdiction * * *" 5 U.S.C.A. § 1009(b). Subdivision (c) of section 1009 provides:
"Every agency action made reviewable by statute and every final *538 agency action for which there is no other adequate remedy in any court shall be subject to judicial review * * *"
Subdivision (e) of section 1009 provides in substance as to the scope of review by the court. It limits the court's review to a decision as to "all relevant questions of law" and authorizes the court to hold unlawful and set aside agency action which the court finds to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The purpose of section 1009 has been stated to be to extend the right of judicial review and to enlarge the authority of courts to check illegal and arbitrary administrative action. American President Lines v. Federal Maritime Board, D.C.D.C.1953, 112 F.Supp. 346. Of course, if the court finds that there is a rational basis for the conclusions of the administrative body, then the judicial function is exhausted. American Trucking Ass'ns v. United States, D.C.N.D.Ala. 1951, 101 F.Supp. 710, affirmed 1953, 344 U.S. 298, 73 S.Ct. 207, 97 L.Ed. 337. It is the opinion of this Court that § 921(b) of the Longshoremen's and Harbor Workers' Act is designed to effect the same purpose and that this petitioner is entitled to bring this proceeding either under 33 U.S.C.A. § 921 or 5 U.S.C.A. § 1009.
With regard to the fee of $175 awarded by the respondent, the affidavit of the petitioner, sworn to August 8, 1958, and submitted in support of his cross-motion for summary judgment, shows that petitioner advanced from his own funds disbursements in the sum of $25.71, and that his net fee was therefore $149.29. This was further reduced to $124.29 when the respondent approved a fee to Dr. Edward S. Wally in the sum of $157, whereas the petitioner had paid this medical expert the sum of $182.
The petitioner is an attorney of many years' standing, having been admitted to the practice of law in the State of New York in 1932. It is a matter of common knowledge that he and his firm have an extensive practice in the United States District Courts for the Eastern and Southern Districts of New York, devoted largely to representing longshoremen and maritime workers who claim damages for alleged injuries. His affidavit of August 8, 1958, alleges further (and has not been contradicted) that for the past twenty-six years his law office has also represented longshoremen in compensation claims before the United States Department of Labor and that this is the first occasion on which he or his firm has ever instituted a proceeding to review a legal fee approved by a deputy commissioner or a claims examiner.
The bill of complaint alleges that the petitioner was retained on October 28, 1957 by one Ralph Scotto, who claimed that while in the employ of Bull Insular Line, Inc., as a winch operator, a boom struck him and threw him to the deck; that thereafter he was admitted to St. Clare's Hospital, where he was found to be suffering from an anterior wall myocardial infarction; that Scotto was not discharged from the hospital until July 26, 1957; that at the time of the injury Scotto was suffering from a pre-existing arterio-sclerotic heart disease; that the employer and compensation carrier bitterly contested Scotto's claim; that as the result of petitioner's efforts on his behalf, Scotto was awarded temporary total disability from June 20, 1957 to March 12, 1958, in the amount of $54 per week, or a total of $2,052, and continuation of such weekly payments until otherwise ordered, subject to the limitations of the Longshoremen's and Harbor Workers' Compensation Act; that since Scotto is thirty-eight years of age, he has a life expectancy of 30.82 years; that inasmuch as he is totally disabled, he will eventually collect in benefits, pursuant to the award, a total of $86,542.56; that, should his physical condition ameliorate, permitting him to do sedentary work, he will then collect $17,280.
In addition to alleging the results obtained by the petitioner, the bill of complaint summarizes the work that the petitioner claims to have performed on his client's behalf: He was retained by *539 Scotto and forwarded the retainer to the United States Department of Labor; he compiled a complete and detailed abstract of the file in the Office of the United States Department of Labor; he prepared and had issued out of that office a subpoena to St. Clare's Hospital; he requested by letter that the claims examiner have the complete hospital record photostated; he caused the subpoena to be served upon the hospital; he received a ninety-four page photostated copy of the hospital record; a member of his office attended an informal conference before the claims examiners; he had correspondence with the claims examiner and the insurance carrier and made numerous telephone calls to the representatives of the carrier; he forwarded a letter to the United States Department of Labor and to the insurance carrier requesting a formal hearing; he obtained Scotto's complete payroll record from the New York Shipping Administration; he referred Scotto to a cardiologist with whom the petitioner had a two hour conference in preparation for the scheduled formal hearing; he spent four hours in the study of medical literature relative to Scotto's claim; he attended and participated in the formal hearing, on the two occasions on which it was held, which lasted for an aggregate period of three and one-quarter hours.
The moving papers show that a statement of the extent and character of the allegedly necessary work done on behalf of the claimant accompanied the petitioner's application for a fee for his services on April 9, 1958, pursuant to § 31.21(b) of Title 20 of the Code of Federal Regulations.
The Court is aware of the fact that its remedial powers in a proceeding of this nature are those conferred by 33 U.S.C.A. § 921, Associated Indemnity Corporation v. Marshall, 9 Cir., 1934, 71 F.2d 235; Howard v. Monahan, D.C. S.D.Tex.1929, 31 F.2d 480, modified on other grounds D.C.S.D.Tex.1929, 33 F.2d 220, and that section 921 does not give the Court the power to review the determination of the respondent. McDonough v. Monahan, D.C.Me.1939, 30 F.Supp. 315. All that the Court may do is to "suspended or set aside, in whole or in part" if it finds that the determination of the respondent is "not in accordance with law". 33 U.S.C.A. § 921(b); Associated Indemnity Corporation v. Marshall, supra; Howard v. Monahan, supra.
Agency action which is arbitrary, capricious or an abuse of discretion is not in accordance with law. 5 U.S.C.A. § 1009(e). The Court finds that the respondent's award of $175 to the petitioner as and for his gross fee for legal services rendered to claimant Scotto is not reasonable within the mandate of Title 20, section 31.21(b) of the Code of Federal Regulations; that it is arbitrary, capricious and an abuse of the discretion vested in the respondent and, therefore, not in accordance with law. The Court is of the opinion that any fee less than $500 under the circumstances of this case would neither be reasonable nor in accordance with law.
The petitioner's cross-motion for summary judgment is granted. The compensation order is set aside insofar as it approves a fee of $175 for the petitioner. The respondent is directed to award a reasonable fee within the mandate of Title 20, section 31.21(b) of the Code of Federal Regulations. The respondent's cross-motion for summary judgment is denied. Settle judgment on notice.
|
12-1123
Gurung v. Holder
BIA
Vomacka, IJ
A087 797 714
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 29th day of April, two thousand fourteen.
PRESENT:
PIERRE N. LEVAL,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
SOM BAHADUR GURUNG,
Petitioner,
v. 12-1123
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Julie Mullaney, Mount Kisco, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Jennifer P.
Levings, Senior Litigation Counsel;
Carmel A. Morgan, Trial Attorney;
John G. Rafter, Law Clerk; Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Som Bahadur Gurung, a native and citizen of Nepal,
seeks review of a March 5, 2012, decision of the BIA
(1) affirming the July 28, 2010, decision of Immigration
Judge (“IJ”) Alan A. Vomacka, which denied his application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”); and (2) denying his
motion to reopen and remand. In re Som Bahadur Gurung, No.
A087 797 714 (B.I.A. Mar. 5, 2012), aff’g No. A087 797 714
(Immig. Ct. N.Y. City July 28, 2010). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep't of
Justice, 421 F.3d 149, 156 (2d Cir. 2005). As an initial
matter, we are without jurisdiction to consider Gurung’s
2
challenge to the denial of withholding of removal and CAT
relief, as he failed to exhaust these claims before the BIA.
See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113,
119 (2d Cir. 2006).
I. Adverse Credibility Determination
For applications such as Gurung’s, governed by the REAL
ID Act of 2005, the agency may, considering the totality of
the circumstances, base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his
statements, without regard to whether they go “to the heart
of the applicant’s claim,” so long as they reasonably
support an inference that the applicant is not credible. 8
U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin
v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). An omission
in the applicant’s testimony or supporting documents can
also “serve as a proper basis for an adverse credibility
determination.” Xiu Xia Lin, 534 F.3d at 166 n.3. We
“defer [ ] to an IJ’s credibility determination unless, from
the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse
credibility ruling.” Id. at 167.
3
In this case, the agency reasonably based its adverse
credibility determination on Gurung’s initial omission from
his testimony of an incident in 2001 when Maoists attacked
Gurung in his home, and inconsistencies between his
statement and his testimony regarding his encounter with
Maoists in the forest in 2006. In both his appeal to the
BIA and before this Court, Gurung merely states that the
discrepancies are minor, without any further explanation or
discussion. The IJ, however, reasonably found the
discrepancies to be material—and indicative that Gurung was
not credible. Absent further explanation as to why a
reasonable fact-finder would be compelled to conclude
otherwise or to credit his testimony, Gurung fails to
overcome the degree of deference we afford to an IJ’s
credibility findings. See Majidi v. Gonzales, 430 F.3d 77,
80-81 (2d Cir. 2005).
Moreover, the agency reasonably gave limited weight to
Gurung’s corroborating evidence, including letters from the
village development committee, the Maoists Victim
Association, and the police, because the letters were
written in August or September 2009 rather than
contemporaneous to the events they described. See Qin Wen
4
Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007); Xiao
Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
2006). Given the omission, discrepancies, and lack of
credible corroboration, the totality of the circumstances
supports the agency’s adverse credibility determination.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
167.
II. Motion to Remand
The BIA’s denial of a motion to remand is held to the
same substantive standard of review for motions to reopen
and to reconsider. Li Yong Cao, 421 F.3d at 156. “The BIA
has ‘broad discretion’ to deny a motion to remand grounded
on new evidence,” and accordingly, we review the BIA’s
denial of such a motion for abuse of discretion. Id. at
156-57 (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)).
The BIA may deny motions to remand when a prima facie case
for the relief sought is not established. Id. at 156. To
establish a prima facie case, a petitioner has “the heavy
burden of demonstrating . . . proffered new evidence [that]
would likely alter the result in [his] case” and to “show a
realistic chance” of obtaining relief upon reopening. See
Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008)
(internal quotation marks omitted).
5
In this case, Gurung submitted an August 2010 letter
from his village’s development office stating that Gurung
had been threatened and attacked by Maoists, and his life
remained in danger. Neither his motion to the BIA nor his
brief to this Court explains either why this letter was
previously unavailable, or how it affects the IJ’s adverse
credibility determination and establishes his prima facie
eligibility for asylum. Moreover, the letter is very
similar to a letter from the same village development
committee, dated August 2009, that Gurung submitted as
evidence in his initial proceedings before the IJ.
Accordingly, the BIA did not abuse its discretion in denying
Gurung’s motion to remand. See Li Yong Cao, 421 F.3d at
156.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
6
|
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0324-11
THE STATE OF TEXAS
v.
DANNY LEE HOLLOWAY, II, Appellee
ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
LAMAR COUNTY
P RICE, J., delivered the opinion of the Court in which K ELLER , P.J., and
W OMACK, J OHNSON, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. M EYERS,
J., dissented.
OPINION
A jury found the appellee guilty of manslaughter,1 made an affirmative finding that
he used a deadly weapon,2 and assessed his punishment at twenty years in prison. The
1
TEX . PENAL CODE § 19.04. Indicted for murder, the appellee requested and received jury
instructions for the lesser-included offenses of manslaughter and criminally negligent homicide.
TEX . PENAL CODE §§ 19.04, 19.05. Holloway v. State, 2003 WL 22491053, at *1 (Tex.
App.—Texarkana 2003, pet. ref’d) [hereinafter Holloway I].
2
See TEX . PENAL CODE § 1.07(17); TEX . CODE CRIM . PROC. art. 42.12, § 3g(a)(2).
Holloway — 2
Texarkana Court of Appeals affirmed the conviction, and we refused the appellee’s petition
for discretionary review. Four years later, the appellee filed a motion for DNA testing of
presumptive blood on the knife that was admitted at trial as the murder weapon. The
convicting court granted his motion. When the subsequent DNA testing revealed that the
biological material on the knife did not belong to the victim, the convicting court purported
to grant the appellee a new trial. The State appealed, and the Sixth Court of Appeals
reversed, holding that (1) the convicting court did not have jurisdiction under Chapter 64 of
the Texas Code of Criminal Procedure to grant the appellee a new trial, and (2) the absence
of the victim’s DNA on the knife, by itself, could not support the convicting court’s finding,
under Article 64.04,3 that the jury would not have convicted the appellee had the DNA
evidence been available at trial.4 We will affirm the judgment of the court of appeals.
I. FACTS AND PROCEDURAL POSTURE
The appellee was convicted of manslaughter after multiple witnesses identified him
as “wildly” wielding and “swinging” a knife during a fight that erupted outside a bar in
Paris.5 The victim, Ashley Lee, died of a stab wound inflicted by a single-edged implement
such as the knife that police found afterwards in the appellee’s truck. The witness testimony
3
TEX . CODE CRIM . PROC. art. 64.04.
4
State v. Holloway, 329 S.W.3d 247, 253-55 (Tex. App.—Texarkana 2010) [hereinafter
Holloway II].
5
See Holloway I, supra, at *1, *4; Holloway II, supra, at 254.
Holloway — 3
at trial conflicted regarding whether the appellee possessed such a knife during the melee.6
In a video-taped interview with a homicide detective following his arrest, the appellee denied
that the knife found in his truck belonged to him and speculated that it had been planted in
his car. The jury apparently chose to disbelieve him, however, and convicted him of
manslaughter. His conviction was upheld on direct appeal.7
Four years after the court of appeals’s decision, the appellee filed a motion for DNA
testing of the knife found in his truck. At the time of trial, a presumptive test for blood had
been conducted on the knife that yielded positive results, but no DNA testing was done. The
convicting court granted the appellee’s motion for testing and, following the receipt of the
DNA results, held a hearing on February 25, 2010, pursuant to Article 64.04 of the Texas
Code of Criminal Procedure.8 The convicting court found that “there [was] a reasonable
probability that [the appellee] would not have been convicted if the exculpatory DNA results
6
Five witnesses for the State testified that they saw the appellee holding a knife during the
fight. Three witnesses described the appellee’s weapon as a “survival” knife, long, with ridges on
one edge. In contrast, the only defense witness who testified to seeing the appellee with a knife
identified it as a small “pocket knife.” Five other defense witnesses testified that they never saw
appellee, or any other person for that matter, with a knife. One defense witness testified to seeing
another male, not the appellee, with a knife, similar to the one the State had introduced as the murder
weapon, at some point earlier in the night.
7
Holloway I, supra.
8
TEX . CODE CRIM . PROC. art. 64.04. At the time of the hearing, this provision read: “After
examining the results of testing under Article 64.03, the convicting court shall hold a hearing and
make a finding as to whether, had the results been available during the trial of the offense, it is
reasonably probable that the person would not have been convicted.”
Holloway — 4
had been available for trial” and granted him a new trial.9 The State appealed, challenging
both the order granting DNA testing in the first place and the order granting a new trial.10
The Sixth Court of Appeals did not reach the merits of the State’s challenge to the
order granting DNA testing, holding that the State did not timely file a notice of appeal to
challenge that order.11 The court of appeals went on to hold, however, that the convicting
court erred in granting the appellee a new trial.12 The court of appeals reasoned that,
according to Rule 21.8(a) of the Texas Rules of Appellate Procedure,13 the convicting court’s
jurisdiction to grant a new trial ended seventy-five days after it pronounced the appellee’s
sentence, and Chapter 64 does not independently provide any basis for granting a new trial.14
Lastly, applying a de novo standard of appellate review, the court of appeals held that the
9
Holloway II, supra, at 249. At the hearing on February 25th, the judge explained that the
“total and complete chaos out there that night,” the “conflicting evidence as to what the knife looked
like, who had a knife or things like that,” and the fact that the DNA results indicated that “the knife
in the truck was not the murder weapon,” all led to his favorable finding under Article 64.04 and his
ruling to grant the defendant a new trial.
10
Id.
11
Id. at 250-51. The court of appeals held that the State should have appealed within twenty
days of the entry of that order, under TEX . CODE CRIM . PROC . art. 44.01(d). The State does not
challenge that ruling in this Court.
12
Id. at 251.
13
See TEX . R. APP . P. 21.8(a) (“Time to Rule. The court must rule on a motion for new trial
within 75 days after imposing or suspending sentence in open court.”).
14
Holloway II, supra, at 251-52.
Holloway — 5
DNA test results were insufficient, when considered in the context of the other evidence
presented at trial, to support the convicting court’s finding of a reasonable probability that
the appellee “would not have been convicted if the DNA evidence had been available during
trial.” 15
We granted the appellee’s petition for discretionary review to examine his contentions
that the court of appeals erred to hold (1) that the convicting court lacked jurisdiction under
Chapter 64 to grant the appellee a new trial, and (2) that the record did not support the
convicting court’s Article 64.04 favorable finding. We will affirm the judgment of the court
of appeals.
II. ANALYSIS
A. Chapter 64: A Brief Overview
Chapter 64 of the Texas Code of Criminal Procedure outlines the procedure for a
“convicted person” to make a motion in the original convicting court for DNA testing of
biological evidence that was not previously tested or, due to new testing techniques, warrants
re-testing by a state or other accredited laboratory.16 The evidence must have been in the
State’s possession at the time of trial and must relate to the conviction the movant seeks to
15
Id. at 253-55.
16
TEX . CODE CRIM . PROC. art. 64.01(a-1)-(b), 64.03(c)-(d).
Holloway — 6
challenge.17 To obtain testing, the movant has the burden of establishing, by a preponderance
of the evidence, that he “would not have been convicted if exculpatory results had been
obtained through DNA testing,” and that he is not requesting the testing in order “to
unreasonably delay the execution of sentence or administration of justice.” 18 If the movant
satisfies this burden of proof, the convicting court must additionally find that the evidence
“still exists and is in a condition making DNA testing possible; [that it] has been subjected
to a chain of custody sufficient to establish that it has not been substituted, tampered with,
replaced, or altered in any material respect; and [that] identity was or is an issue in the
case[,]” in order to grant the motion and order testing.19 That the movant pled guilty or
admitted guilt in any other manner leading up to his conviction does not preclude him from
obtaining testing under Chapter 64.20
If the convicting court grants a motion for DNA testing, it is required to hold a hearing
following the receipt of the test results.21 At this hearing, the convicting court must make a
finding as to “whether, had the results been available during the trial of the offense, it is
17
Id. at 64.01(b).
18
Id. at 64.03(a)(2).
19
Id. at 64.03(a)(1), (c).
20
Id. at 64.03(b).
21
Id. at 64.04.
Holloway — 7
reasonably probable that the person would not have been convicted[,]” assuming that the jury
(or the judge in a plea or trial to the court) had known of the exculpatory evidence at the time
of its verdict.22 Chapter 64 is notably silent, however, with respect to what remedial action,
if any, the convicting court may take on the basis of its finding under Article 64.04. Either
party may appeal an order entered pursuant to Chapter 64.23
B. Jurisdiction
1. Jurisdiction/Power/Authority
In his first ground for review, the appellee contends that the court of appeals erred in
holding that the convicting court lacked jurisdiction to grant him a new trial under Chapter
64 of the Texas Code of Criminal Procedure. The convicting court, the appellee argues, has
both jurisdiction, as the convicting court under Chapter 64, and the “inherent power,” by
virtue of that jurisdiction, to correct its own rulings.24 The State replies that the court of
appeals correctly concluded that the convicting court lacked jurisdiction (whether “general,”
“special,” or “limited”) to grant the appellee a new trial under Chapter 64,25 and that further,
the convicting court did not have any “authority,” implicit, inherent, or otherwise, to grant
22
Id.
23
Id. at 64.05; TEX . CODE CRIM . PROC. art. 44.01(a)(6).
24
Appellee’s Brief at 12 (citing Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App.
1998) for its argument with regard to “inherent power”).
25
State’s Brief at 10.
Holloway — 8
that specific relief.26
The court of appeals disposed of appellee’s ground for review as a question of
jurisdiction, but along the way it referred to a court’s “power to act” under that grant of
jurisdiction, and a court’s “authority” arising from statutory law.27 We have recognized that
these various terms are not co-extensive or interchangeable.28 “Jurisdiction” is typically used
to refer to “the power of a court to hear a controversy and make decisions that are legally
binding on the parties involved,” also commonly referred to as “subject-matter
jurisdiction.”29 Jurisdiction, then, is vested in the actual judicial body, the court.30
26
State’s Brief at 6.
27
Holloway II, supra, at 251-52 (citing State v. Patrick, 86 S.W.3d 592 (Tex. Crim. App.
2002) (plurality opinion), for general principles of jurisdiction and Awadelkariem, supra, for the
statutory timetables for that exercise of jurisdiction).
28
See Davis v. State, 956 S.W.2d 555, 557-58 (Tex. Crim. App. 1997) (“Jurisdiction is
generally understood to denote judicial power or authority. However, as we shall explain, this term
is often misapplied. . . . Jurisdiction, in its narrow sense, is something possessed by courts . . . . The
authority and powers of a judge are incident to, and grow out of, the jurisdiction of the court itself.
. . . Strictly speaking then, jurisdiction encompasses only the power of the tribunal over the subject
matter and the person.”) (emphasis added; internal quotation omitted); Stine v. State, 908 S.W.2d
429, 434 (Tex. Crim. App. 1995) (Meyers, J., concurring) (“Although the word ‘jurisdiction’ has a
broad meaning in common parlance, and is often used as a synonym for ‘authority’ even in legal
writing, it is traditionally considered in the law to identify a much more specific kind of power. A
court’s jurisdiction is comprised generally of its authority to render a particular kind of judgment .
. . . Sometimes, . . . it is common to say that the court did not have authority to act as it did. But it
is a mistake to say that the court was without jurisdiction in the matter.”). See also Simon v. Lavario,
306 S.W.3d 318 n. 16 (Tex. Crim. App. 2009) (“Under some circumstances, we have observed, even
a trial court with general jurisdiction may lack authority to take a certain action[.]”); State v. Moore,
225 S.W.3d 556, 568 n.47 (Tex. Crim. App. 2007) (quoting Stine).
29
See State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009) (“The term ‘jurisdiction’
refers to the power of a court to hear a controversy and make decisions that are legally binding on
Holloway — 9
“Authority,” on the other hand, may be used to refer to the power of an individual—the judge
who presides over the court—to act under that grant of jurisdiction.31 A lack of authority,
therefore, is not always co-extensive with a lack of jurisdiction; a judge’s lack of authority
to act in a particular manner will not necessarily call into doubt the court’s jurisdiction over
the particular case. A trial court must derive its jurisdiction from either the Texas
Constitution or our state legislative enactments.32 After a trial court has lost plenary
jurisdiction, it may nonetheless re-acquire “limited” jurisdiction to perform specific functions
as authorized by statute or as instructed on remand by a higher court.33
For reasons expressed below, we conclude, as did the court of appeals, that the
convicting court in the instant case lacked jurisdiction to grant a new trial either under: (1)
the regulatory scheme that governs motions for new trial generally; (2) independently, under
the provisions of Chapter 64 itself; or (3) somehow “implicitly,” as a necessary corollary to
the renewed, but limited, jurisdiction that Chapter 64 does confer.
the parties involved. . . . If there is no jurisdiction, the court has no power to act.”).
30
See Davis, supra, at 559.
31
Id.
32
See, e.g., TEX . CONST . art. V, § 8 (specifying the “judicial power . . . vested in” the various
state courts); TEX . CODE CRIM . PROC. art. 4.01-4.19.
33
Patrick, supra, at 594 (“When a conviction has been affirmed on appeal and the mandate
has issued, general jurisdiction is not restored in the trial court. The trial court has special or limited
jurisdiction to ensure that a higher court’s mandate is carried out and to perform other functions
specified by statute[.]”) (citing Yarbrough v. State, 703 S.W.2d 645, 649 (Tex. Crim. App. 1985)).
Holloway — 10
2. Motion for New Trial
Rule 21 of the Texas Rules of Appellate Procedure provides the guidelines for filing
a motion for new trial in a criminal case. Under Rule 21.4(a), a defendant may file a motion
for new trial within thirty days from the day the judge pronounces the sentence in open
court.34 Rule 21.8(a) allocates seventy-five days following the imposition of the sentence in
open court for the trial court to rule on the motion; if the motion is not timely ruled on within
that period, the authority to grant the motion expires, and the motion is deemed denied by
operation of law.35 These deadlines, we have held, have jurisdictional significance. In Drew
v. State, for example, we said that a motion for new trial is a purely statutory remedy, and that
the movant must strictly adhere the terms of the statute in order to take advantage of this
remedy.36 The power to grant a motion for new trial under the statute was deemed to be an
exercise of “particular authority” by a court of “limited jurisdiction.” 37 When the statutory
34
TEX . R. APP . P. 21.4(a).
35
TEX . R. APP . P. 21.8.
36
743 S.W.2d 207, 223 (Tex. Crim. App. 1987).
37
Id. We went on to explain:
The jurisdiction of the court is a matter of statutory enactment and authority
must there be found not only to hear the matter, but also to dispose of the same. In
a case of jurisdiction limited over a certain thing [like granting a motion for new
trial], the court has the power to exercise only such limited jurisdiction.
When jurisdiction with respect to a particular matter is derived wholly from
statute, the statutory provisions are mandatory and exclusive and must be complied
Holloway — 11
timetable is not followed, we said, “the trial court lacked jurisdiction” to thereafter rule on
the merits of the motion for new trial.38 We have similarly held on numerous occasions that
a trial court lacks jurisdiction to grant a motion for new trial once the seventy-five days have
run after which a motion for new trial, if not already expressly ruled upon, will be deemed
overruled by operation of law.39 In any event, in State v. Moore, we observed that, “[u]nder
current law, the subject matter jurisdiction of the trial court over the case and the defendant
extends, should the defendant timely file a sufficient notice of appeal, to the point in time at
which the record is filed in the appellate court.”40 In the instant case, the convicting court’s
plenary jurisdiction to entertain a motion for new trial lapsed, at the latest, when the appellate
record was filed in Holloway I. Whatever jurisdiction the convicting court in this case might
thereafter have acquired to grant a new trial, it cannot derive from Rule 21 of the Rules of
with in all respects, and the court in exercising its particular authority is a court of
limited jurisdiction.
Id. (emphasis and alteration in original) (internal quotations and citations omitted).
38
Id.
39
See, e.g., State v. Moore, supra, at 566-67 (“[W]e have held that once a motion for new trial
is overruled by operation of law, the trial court loses jurisdiction to rule upon it.”) (internal quotation
marks omitted); State v. Garza, 931 S.W.2d 560, 562 (Tex. Crim. App. 1996) (same); State ex rel.
Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex. Crim. App. 1987) (same). It was on the authority of
Moore that the court of appeals in this case held that “[t]he trial court lost its plenary power to grant
a new trial seventy-five days after convicting and sentencing” the appellee. Holloway II, supra, at
252 & n.6.
40
Moore, supra, at 568.
Holloway — 12
Appellate Procedure, but must be found, if at all, elsewhere.
3. Jurisdiction Under Chapter 64
Does Chapter 64 itself confer that jurisdiction? “As for Chapter 64,” the court of
appeals observed below, “there is nothing in the statute authorizing the granting of a new
trial.”41 Certainly on its face, Article 64.04 fails to explicitly authorize the convicting court
to order a new trial. Indeed, the only substantive order that Chapter 64 contemplates is the
one that grants or denies the movant’s request for DNA testing.42 Beyond that, Article 64.04
mandates that, should DNA testing be ordered, the convicting court must “hold a hearing and
make a finding” with respect to the significance of the DNA test results.43 It does not
expressly go on to provide for any remedial action by the convicting court on the basis of that
finding.44 “No language in Article 64.04 could be interpreted to expand the trial judge’s
41
Holloway II, supra, at 252.
42
See Wolfe v. State, 120 S.W.3d 368, 372 (Tex. Crim. App. 2003) (“Chapter 64 authorizes
the convicting court to order DNA testing, and no more.”). Of course, Chapter 64 also authorizes
the convicting court to appoint counsel to represent an indigent movant who can demonstrate
“reasonable grounds for a motion to be filed[.]” TEX . CODE CRIM . PROC. art. 64.01(c).
43
TEX . CODE CRIM . PROC. art. 64.04.
44
Article 17.48 also authorizes the convicting court, having made a finding favorable to the
movant in a Chapter 64 proceeding, to “release the convicted person on bail under this chapter
pending the conclusion of court proceedings or proceedings under Section 11, Article IV, Texas
Constitution, and Article 48.01.” TEX . CODE CRIM . PROC. art. 17.48 (emphasis added.) Of course,
if the convicting court were to grant a new trial to a Chapter 64 movant, he would no longer be a
“convicted person.” We construe this provision to authorize the convicting court to release the
movant on bail pending the State’s appeal of a favorable finding under Article 64.04 and/or the
movant’s pursuit of post-conviction habeas corpus relief and/or executive clemency.
Holloway — 13
authority to rule beyond the ‘favorable’ or ‘not favorable’ findings.”45 Thus, by its plain
language, Article 64.04 authorizes no more than a finding. This plain language expresses
the evident legislative purpose behind Chapter 64, which was to provide a convicted person
who is eligible under its terms with an avenue for obtaining post-conviction forensic DNA
testing—and no more.46 And when the literal text of a statute is clear and unambiguous at
the time of enactment, this Court will give effect to the plain language of the text.47
4. Implicit Authority Under Chapter 64
It is true, of course, as the appellee asserts, that Chapter 64 re-confers at least some
limited subject-matter jurisdiction in the convicting court. The appellee cites the dissenting
opinion in Patrick in support of the proposition that, once that limited subject-matter
jurisdiction is re-conferred, a convicting court is at least “implicitly authorized to fulfill [that]
jurisdictional purpose.”48 The only reason that the plurality in Patrick refused to apply this
45
Wolfe, supra, at 372.
46
See Ex parte Tuley,109 S.W.3d 388, 391 (Tex. Crim. App. 2002) (explaining the limited
purpose of Chapter 64).
47
Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991). See also Clinton v. State,
— S.W.3d. —, No. PD-0119-11, 2011 WL 6183608, at *3 (Tex. Crim. App. Dec. 14, 2011) (citing
Boykin and reaffirming its principles); Ex parte Blue, 230 S.W.3d 151, 161 (Tex. Crim. App. 2007)
(same); Wolfe v. State, supra, at 370 (same); Ex parte Evans, 964 S.W.2d 643, 646 (Tex. Crim.
App. 1998) (same).
48
Appellee’s Brief at 11. In Patrick, the convicting court found that the movant failed to
satisfy the Chapter 64 criteria for post-conviction DNA testing. 86 S.W.3d at 593. It nevertheless
entered an order permitting the movant to conduct such testing at his own expense. Id. The plurality
granted mandamus relief to the State, holding that the convicting court had lacked jurisdiction to
Holloway — 14
principle of implicit authority, the appellee asserts, was that the convicting court there,
having determined that Patrick did not satisfy the statutory criteria for post-conviction DNA
testing at the State’s expense, had already relinquished its Chapter 64 jurisdiction by the time
it purported to grant the defendant DNA testing at his own expense.49 Here, by contrast, the
appellee continues, the convicting court still retained its limited Chapter 64 jurisdiction at the
time it ordered a new trial, and it had the implicit authority to take that action because it was
in furtherance of the “jurisdictional purpose.” 50
Even accepting the appellee’s premise, however, we reject his conclusion because he
has plainly misidentified the jurisdictional purpose of Chapter 64. He claims that the
jurisdictional purpose is to provide a mechanism whereby a convicting court can “correct its
own rulings. The trial court denied the motion for a new trial after the original conviction
and should be allowed under Chapter 64 subject matter jurisdiction to correct that ruling.” 51
But it should be evident from our prior discussion of the plain language of Chapter 64 in
enter such an order. Id. at 595. It rejected the contention of the dissenters that the trial court had
some “inherent” jurisdiction to order DNA testing beyond the limits of Chapter 64. Id. at 596. And,
while the plurality did not reject outright the dissenters’ position that a judicial act may be
undertaken so long as it is “implicit to the jurisdictional purpose” that is explicitly conferred, it
observed that such an act must at least “be in furtherance of some other action for which there is an
explicit grant of jurisdiction.” Id. at 595.
49
Id.
50
Id.
51
Id.
Holloway — 15
general, and of Article 64.04 in particular, that the jurisdictional purpose of Chapter 64 does
not embrace any remedy for an applicant beyond a favorable finding of fact under Article
64.04. As the plurality in Patrick explained, any acts undertaken under the guise of “implicit
authority” may be taken only in furtherance of some other action for which there is an
explicit grant of jurisdiction.52 The jurisdictional purpose of Chapter 64 is simply to provide
deserving applicants with a mechanism for post-conviction DNA testing and a favorable
finding on the record if justified by that testing; it does not include any other remedy or form
of relief in the convicting court. Permitting the convicting court to grant a new trial would
conflict with the plainly expressed jurisdictional purpose of Chapter 64. Indeed, if granting
a Chapter 64 movant DNA testing at his own expense exceeds the jurisdictional purpose of
the statute, as the plurality held in Patrick,53 so much more so would granting him a new trial
based on favorable DNA test results.
Our strict adherence to the plain meaning of Chapter 64’s explicit provisions to divine
its jurisdictional purpose does not lead to the absurd consequence of endowing the appellee
with a statutory right while depriving him of a statutory remedy. A Chapter 64 movant who
obtains a favorable finding under Article 64.04 may yet obtain appropriate relief predicated
52
Patrick, supra, at 595.
53
Id. at 596 (“[I]f the law is that the return, by statute, of jurisdiction to a trial court for a
limited purpose invests the court with jurisdiction to act in matters other than those dictated by
statute, then that law would not be limited to DNA testing. If the trial court has jurisdiction to order
DNA testing outside the statute, then it would have jurisdiction to enter or lift a stay of execution.”).
Holloway — 16
on that finding. He simply has to seek his remedy through procedural devices beyond the
boundaries of Chapter 64 itself.
5. Appellee’s Remedy: Post-Conviction Writ of Habeas Corpus
The proper and exclusive vehicle for obtaining judicial relief from a felony conviction
on the basis of a favorable finding under Article 64.04 is a post-conviction application for
writ of habeas corpus returnable to this Court under Article 11.07 or Article 11.071.54
Chapter 64 was enacted in 2001,55 several years after this Court first recognized, in Ex parte
Elizondo, that, because the incarceration of an innocent person violates due process, a naked
claim of actual innocence should be cognizable in post-conviction habeas corpus
proceedings.56 But, at least with respect to non-capital felony convictions such as the
appellee’s, Section 5 of Article 11.07 expressly provides that post-conviction habeas corpus
is the exclusive remedy: “After conviction the procedure outlined in this Act shall be
exclusive and any other proceeding shall be void and of no force and effect in discharging
the prisoner.”57 To construe the “jurisdictional purpose” of Chapter 64 as the appellee urges
us to do—that is, to include authorization for convicting courts to grant post-conviction relief
54
TEX . CODE CRIM . PROC. arts. 11.07 & 11.071.
55
See Acts 2001, 77th Leg., ch. 2, p. 2, § 2, eff. April 5, 2001.
56
947 S.W.2d 202 (Tex. Crim. App. 1996).
57
TEX . CODE CRIM . PROC. art. 11.07, § 5.
Holloway — 17
from conviction in the form of a new trial—would bring it squarely in conflict with Article
11.07, Section 5. Not every favorable finding under Article 64.04 will necessarily lead to
post-conviction habeas corpus relief.58 In Article 11.07, the Legislature has vested
jurisdiction exclusively in this Court to decide which felony applicants should obtain relief
on the basis of a claim of actual innocence and which should not. This Court has always
assiduously guarded its exclusive jurisdiction to grant post-conviction habeas corpus relief
in felony cases.59 Nothing we find in the provisions of Chapter 64 convinces us that the
58
As we explained in Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008):
[E]ven if the DNA testing to which the appellant is entitled under the statute does in
fact provide evidence to corroborate her story . . . , she may not be entitled to relief
by way of habeas corpus because she may well fall short of meeting the onerous
standard for proving actual innocence.
Id. at 259 n.76 (citing Elizondo, supra, at 209, for the standard it set forth requiring an applicant to
“show by clear and convincing evidence that no reasonable juror would have convicted him in light
of new evidence of innocence”). If the Elizondo actual-innocence standard cannot be met by a
habeas applicant following favorable DNA results pursuant to a Chapter 64 motion, however, he or
she may yet have an additional avenue of relief in the form of a state clemency petition. See id.
59
See, e.g., Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996) (“[T]he exclusive
post-conviction remedy in final felony convictions in Texas courts is through a writ of habeas corpus
pursuant to TEX . CODE CRIM . PROC. art. 11.07.”); Keene v. Eighth Court of Appeals, 910 S.W.2d
481, 483 (Tex. Crim. App. 1995) (“Jurisdiction to grant post conviction habeas corpus relief on a
final felony conviction rests exclusively with this Court. . . . Any other proceeding shall be void and
of no force . . . .”); Ex parte Alexander, 685 S.W.2d 57, 60 (Tex. Crim. App. 1985) (“It is well
established that only the Court of Criminal Appeals possesses the authority to grant relief in a post-
conviction habeas corpus proceeding where there is a final felony conviction. The trial court is
without such authority.”); Ex parte Green, 644 S.W.2d 9, 9 (Tex. Crim. App. 1983) (although this
Court did not find fault with the trial court’s proposed findings of fact and conclusions of law
recommending that relief be granted, the trial court did not itself have authority under Article 11.07
to grant a new trial); Ex parte Williams, 561 S.W.2d 1, 2 (Tex. Crim. App. 1978) (concluding that
the “trial court was without authority to grant the new trials in a post-conviction habeas corpus case,
as only the Texas Court of Criminal Appeals has such authority over a final felony conviction,” and
Holloway — 18
Legislature intended that we should divest ourselves of that otherwise exclusive jurisdiction
whenever a favorable finding is made under Article 64.04.60
For all of these reasons, we hold that the court of appeals was correct to conclude that
the convicting court lacked jurisdiction to order a new trial in this case.61
holding the orders to be “void and of no force and effect”).
60
We have similarly held that Article 11.07 itself, though it re-confers a limited subject-matter
jurisdiction in the convicting court, does not thereby authorize the convicting court to cut corners,
invading this Court’s exclusive jurisdiction to grant habeas corpus relief by granting a new trial. In
Ex parte Ybarra, 629 S.W.2d 943, 945-46 (Tex. Crim. App. 1982), the applicant alleged ineffective
assistance of counsel, and the convicting court agreed. After entering recommended findings of fact
and conclusions of law recommending that this Court grant habeas corpus relief, however, the trial
court also purported to grant the applicant a new trial. Id. at 945. Addressing the question whether
the trial court had the authority “to grant ten years [after the conviction] an out of time new trial,”
id., we held that:
the trial court had no power to grant the new trial as it did–though its concern about
straightening out the matter without resorting to this Court is commendable. Still,
it could not grant such relief in response to an application for writ of habeas corpus.
Only the Court of Criminal Appeals has the authority to grant relief as a result of post
conviction writ of habeas corpus.
Id. at 945-46. Here, as in Ybarra, the fact that a statute has re-conferred limited jurisdiction in the
convicting court well after the court’s plenary jurisdiction over the case has expired did not authorize
it, pursuant to the “jurisdictional purpose” of that statute, to grant a new trial on its own
initiative—however commendable that impulse might be.
61
The State did not contest the convicting court’s jurisdiction to order a new trial at the
February 25th hearing, nor even on appeal. Nevertheless, jurisdiction is a systemic requirement
which may be addressed on appeal even in the absence of an objection in the convicting court.
Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). Moreover, courts of appeals may
review fundamental unassigned error for the first time on appeal even in the absence of a trial
objection. Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). In any event, the
appellee does not complain in his petition for discretionary review that the court of appeals erred to
reach the issue of the convicting court’s jurisdiction sua sponte.
Holloway — 19
C. Review of the Convicting Court’s Article 64.04 Finding
In his second ground for review, the appellee contends that the court of appeals erred
in holding that the evidence did not support the convicting court’s finding that it was
reasonably probable that the appellee would not have been convicted if the DNA evidence
had been available during trial. Upon closer examination, however, we hold that the court
of appeals erred to address the State’s challenge to the trial court’s Article 64.04 finding.
Because Article 64.04 does not itself provide the appellee with any remedy, the court of
appeals’s opinion with respect to the sufficiency of the evidence to support the trial court’s
favorable Article 64.04 finding was advisory in nature. Resolution of such a question should
await such time as an applicant may seek post-conviction habeas corpus relief.
III. CONCLUSION
We hold that the convicting court lacked jurisdiction to order a new trial on the basis
of its Article 64.04 finding and that the court of appeals should not have addressed the
question of the sufficiency of the evidence to support that finding. The judgment of the court
of appeals is affirmed.
DELIVERED: March 7, 2012
PUBLISH
|
[Cite as State v. Henderson, 2017-Ohio-412.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-15-047
Appellee Trial Court No. 13 CR 135
v.
Kayla Henderson
Appellant
and
State of Ohio Court of Appeals No. OT-15-048
Appellee Trial Court No. 13 CR 134
v.
Beau Hutchinson DECISION AND JUDGMENT
Appellant Decided: February 3, 2017
*****
JENSEN, P.J.
{¶ 1} In this consolidated appeal, defendants-appellants, Beau J. Hutchinson and
Kayla Henderson, appeal the November 12, 2015 judgment of the Ottawa County Court
of Common Pleas convicting them of child endangering and sentencing them to 36
months’ imprisonment in connection with the death of Henderson’s two-month-old son,
K.H. For the reasons that follow, we affirm the trial court judgment.
A. Background
{¶ 2} On the evening of March 9, 2012, Kayla Henderson and her boyfriend, Beau
Hutchinson, went to the home of Hutchinson’s cousin, Crystal Albright, for a get-together
with friends. They brought Hutchinson’s four-year-old daughter, A.H., Henderson’s two-
year-old daughter, M.H., and Henderson’s then-seven-week-old son, K.H. Also at the
party were Albright’s boyfriend, Eric Weinheimer, their three-year-old son, R.W, her
12-year-old son, D., her nine-year-old nephew, L.,1 and friends Jeannie Hollinger, Wayne
Ross, and Christy and Casey Leow.
{¶ 3} Earlier that day, Hutchinson and Henderson ran errands and left K.H. with
Henderson’s mother, Rachel Prange, from approximately 11:00 a.m. to 2:30 p.m. When
Hutchinson and Henderson returned, they bathed Henderson’s children and got ready for
the party. They picked up A.H. from her mother’s house and arrived at Albright’s home
around 5:00 p.m., before any of the other guests and before Albright got home from work.
{¶ 4} When Albright got home, she briefly held K.H., but quickly handed him
back to Henderson for a diaper change. Albright then asked Hutchinson to go to the store
to buy some items for the party. Hutchinson and Henderson ran the errand together and
left the children with Albright for about an hour. Albright cleaned up around the house
and started getting dinner ready. The Leows arrived shortly after Hutchinson and
Henderson left for the store. Hollinger and Ross arrived around 7:00 p.m.
1
The last names of D. and L. do not appear in the record.
2.
{¶ 5} Albright made tacos for dinner and everyone ate. At some point, both
Hollinger and Christy Leow held K.H. Christy fed him part of a bottle. After dinner, the
adults went into the sunroom to smoke outside the presence of the children. The older
boys played videogames in a bedroom, and the younger children played and watched
television in the living room. The sunroom was separated from the living room by a
kitchen and a short hallway. K.H. was in his car seat in the living room with the younger
children.
{¶ 6} At some point after dinner, A.H. vomited. Hutchinson and Henderson
bathed her, changed her, and lay her on the couch in the living room, and she fell asleep.
They put M.H. in one of the bedrooms so she could sleep. Around 11:00 p.m., the Leows
left. Albright went to the kitchen to clean up the mess from dinner. A.H. was asleep on
the couch, and K.H. was asleep in his car seat. R.W. was tired, so Albright laid out a
small foldable couch, tucked him in, and left a Barney movie playing for him on the
television. She then joined Hutchinson, Henderson, Hollinger, and Ross in the sunroom.
{¶ 7} About 15-25 minutes after Albright joined her guests outside, Hutchinson
said he was going to check on the kids. Seconds later, before Hutchinson even got to the
end of the hallway, he yelled, “Oh my god! Call 9-1-1!”. Weinheimer followed
Hutchinson into the kitchen, and Hutchinson had K.H. in his arms. Hutchinson said that
R.W. had dropped or thrown the baby. There was no blood or visible injury to K.H., but
he was blinking his eyes and it was apparent that there was something wrong with him.
3.
{¶ 8} Hutchinson put K.H. in his car seat, he and Henderson gathered their things,
and they rushed out the door. Albright told them she would take care of A.H. and M.H.
while they took K.H. to the hospital. Instead of going straight to the hospital, however,
Hutchinson and Henderson took a detour and picked up Henderson’s grandmother, Barb
Goehringer. Goehringer then drove the family to Magruder Hospital. On the way,
Hutchinson called 9-1-1 to request a police escort. Henderson called the hospital to tell
them they were coming. Meanwhile, K.H. struggled to breathe.
{¶ 9} K.H. arrived at Magruder Hospital at 11:55 p.m. He was noted to be in
“severe distress, unresponsive and cyanotic with only occasional agonal respirations.”
Breath sounds and brachial pulses were absent. He was resuscitated with bag and mask
ventilation, then intubated. He had a hematoma on the left side of his head and an
abrasion in the right parietal region. K.H. was transferred to Toledo Mercy St. Vincent
Medical Center by life flight. Hutchinson accompanied him
{¶ 10} Once at St. Vincent, a CT scan of K.H.’s head was performed, revealing
that K.H. had suffered significant intracranial injury, including bilateral occipital skull
fractures, bilateral subarachnoid and subdural hemorrhages, and intracerebral edema.
K.H.’s prognosis was very poor and the treating physician did not believe K.H.’s injuries
to be consistent with the history reported by Hutchinson and Henderson. K.H. was
transferred to the University of Michigan Mott Children’s Hospital (“U of M”).
4.
{¶ 11} K.H.’s father, Jon Henderson, who lives in California and is in the Navy,
was on a ship when the injury occurred. Henderson notified Jon of K.H.’s injury and the
Red Cross assisted in transporting him back to the area. Children’s Services and the
Ottawa County sheriff were also notified.
{¶ 12} Once at U of M, K.H.’s prognosis remained poor. Treating physicians
suspected abusive head trauma. K.H. was ultimately declared brain dead. Jon, who was
granted custody of K.H. and M.H. during K.H.’s hospitalization, made the decision on
March 17, 2012, to remove K.H. from life support. K.H. succumbed to his injuries that
day.
{¶ 13} On August 29, 2013, Hutchinson and Henderson were both charged in a
two-count indictment with permitting child abuse, a violation of R.C. 2903.15(A), a first-
degree felony, and child endangering, a violation of R.C. 2919.22(A), a third-degree
felony. The case was tried to a jury beginning August 17, 2015, and ending August 20,
2015. The jury acquitted them of permitting child abuse, but convicted them of child
endangering. The trial court ordered presentence investigation reports, and sentenced
them on November 12, 2015, to a prison term of 36 months. Both Hutchinson and
Henderson appealed and they assign the following errors for our review:
I. The Trial Court erred when it denied the Motion to Exclude
Report(s)/Record(s) and Testimony of State Witness(es) pursuant to Ohio
Evid. R. 702 and 703 at both Hearing and at Trial.
5.
II. The Trial Court erred when it denied the Motion for
Appropriation of Funds for a Defense Expert.
III. The Trial Court erred in overruling the motion for acquittal
pursuant to Crim.R. 29.
IV. The Trial Court erred when the Prosecutor, during opening
statement, throughout Trial, and pervasively in closing arguments, indicated
her opinion as to credibility of witnesses during the trial. The Trial Court
erred by not intervening sua sponte, due to the abuse of privilege.
V. The Trial Court erred in sentencing Appellants to the maximum
sentence.
B. Law and Analysis
1. Motion to Exclude Reports, Records, and Testimony of State Witnesses
{¶ 14} In their first assignment of error, Hutchinson and Henderson argue that the
trial court erred when it denied their motion to exclude the expert reports and the
testimony of the state’s expert witnesses, Bethany Mohr, M.D., Randall Schlievert, M.D.,
and Bader Cassin, M.D. Dr. Mohr was one of K.H.’s treating physicians at U of M; Dr.
Schlievert is the director of the child abuse program at St. Vincent Medical Center, but
did not treat K.H.; and Dr. Cassin is the forensic pathologist who conducted K.H.’s
autopsy. Before addressing Hutchinson and Henderson’s first assignment of error, we
briefly summarize these witnesses’ trial testimony.
6.
a. The Experts’ Testimony
{¶ 15} Dr. Mohr testified that she first saw K.H. on March 12, 2012. When she
examined him, he was heavily sedated by medications aimed at decreasing the pressure in
his skull. He was being monitored for seizures by electrodes placed on his head and in
his skull. Externally, Dr. Mohr observed that K.H. had an abrasion on his nose, but it was
unclear whether he first presented with this injury or whether it occurred after his
admission to one of the three hospitals. She lifted the wrap covering the electrodes and
saw bruising and swelling on the left side of his head.
{¶ 16} Dr. Mohr testified that internally, K.H. suffered from intracranial
hemorrhaging, both subdural and subarachnoid, and a complex skull fracture. She
described that the fracture had three branches and extended from the left side of his skull
across the front of his skull, across the top, and across the back. She said that there also
appeared to be a smaller fracture below the complex fracture. Dr. Mohr explained that it
would require significant force to produce the injury. She indicated that this was the type
of injury she would expect to result from a motor vehicle accident where the child was
not restrained, something heavy rolling over the child’s head, or a fall from several stories
high.
{¶ 17} Dr. Mohr testified that in treating K.H., she reviewed the medical records
and spoke to Hutchinson and Henderson to obtain a history. She wanted to speak to
Henderson first, but Hutchinson was insistent that she speak with him first because he
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was concerned about Henderson’s mental state given that she had recently been told that
K.H. would likely not survive. Hutchinson told her that they had taken K.H., A.H., and
M.H. to Albright’s house for dinner, they were smoking in a three-season room, he went
to check on the children, heard a boom, and saw K.H. on the kitchen floor with R.W. next
to him. He did not specifically state that R.W. had dropped K.H., but this was his
implication. Dr. Mohr said that the history provided by Henderson was similar, except
that Henderson clarified that K.H. had been in a car seat. Earlier medical documentation
indicated that he had been in a swing.
{¶ 18} Dr. Mohr opined that K.H.’s injuries could not have been caused by being
dropped by a three-year-old. She remarked that “that history is entirely inconsistent and
does not provide in any way an explanation for K.H.’s injuries or death.” Dr. Mohr
expressed that in addition to the injuries K.H. sustained, she also had concerns that there
had been a delay in seeking medical treatment for K.H. She said that secondary injury
occurs from not getting enough oxygen, and the failure to seek medical care decreases the
likelihood of survival. She explained:
[K.H.’s] death due to his brain swelling and extensive brain injury
from the swelling could either be from initial injury, whatever caused the
skull fracture, or could also be from not getting enough oxygen, but most
likely is a combination of both in terms of sustaining an injury and then
over time either breathing very shallow, not getting enough oxygen, and
8.
that causing a worsening brain injury, so it is most likely a combination of
the two.
{¶ 19} Dr. Mohr testified that she has seen hundreds of babies who have been
dropped by their caregivers, and based on her experience, and based on the medical
literature, those babies sustain simple linear parietal skull fractures. She explained that in
those cases, they do not expect to see intracranial hemorrhaging and those babies do not
die from their injuries. Dr. Mohr ultimately opined that K.H.’s injuries resulted from
physical abuse. On cross-examination, Dr. Mohr provided her opinion that K.H.’s
injuries were sustained before the get-together at Albright’s. She conceded that she
cannot say who inflicted K.H.’s injuries.
{¶ 20} The state moved for admission of a seven-page summary entitled Child
Protection Team Consultation Part I, a five-page summary entitled Child Protection Team
Consultation Part 2, and a three-page summary entitled Child Protection Team Interim
Summary, all written by Dr. Mohr. Defense counsel objected, arguing that the contents
contained hearsay in the form of references to other records and other statements from
witnesses besides the defendants. The court admitted the report into evidence over
defense counsel’s objections.
{¶ 21} The state next called Dr. Schlievert. Before he testified, defense counsel
objected to his testimony on the basis that (1) his opinions were formed on incomplete
records from the three hospitals where K.H. was treated, and (2) he never examined K.H.
9.
The state responded that it anticipated that the medical records would be admitted into
evidence, and it clarified that Dr. Schlievert relied on the two Child Protection Team
Consultations “as far as Doctor Mohr was concerned.” Defense counsel pointed out that
no records custodian would be coming from U of M, thus there was no way to admit any
additional records from U of M relied upon by Dr. Schlievert. The state disagreed that
Dr. Schlievert had relied on any additional U of M records. The court allowed Dr.
Schlievert to testify.
{¶ 22} Dr. Schlievert described his background, education, and current position as
director of the child abuse program and vice-president of academic affairs and clinical
research programs at St. Vincent. Defense counsel conceded that Dr. Schlievert is an
expert in the field of pediatrics and child abuse.
{¶ 23} Dr. Schlievert explained that approximately 1200 children die per year from
abusive head trauma. He testified that he is familiar with articles and studies dealing with
short falls leading to head trauma. He described a 1993 article published in the Journal of
Pediatrics by Lyons and Oates that studied 207 children under the age of five who were
assessed for injuries after experiencing falls in hospitals witnessed by nurses, doctors, or
other staff. He said that none of these children died, one broke a collar bone, one suffered
brain damage, and one suffered a simple linear skull fracture with no permanent injury.
He also summarized a 2008 study by Dr. David Chadwick, published in the Journal of
Pediatrics, that had examined a database in California of injury patterns of children under
10.
age five who experienced short falls. That study found that the annual risk of death for
infants and toddlers who suffered head injuries from short falls was less than .48 out of a
million children per year. He said that where a child presents with severe or fatal head
injuries and the history provided is that the child suffered a short fall, this explanation for
the child’s injuries is not likely to be truthful.
{¶ 24} Dr. Schlievert identified commonalities in the histories provided where
young children present with severe or fatal head injuries. The common histories relayed
are (1) the caregiver purportedly does not know what happened, (2) the child fell off a
piece of furniture, or (3) injury was caused by another small child who is too young to be
interviewed or to provide a defense. He explained that another commonality is that the
histories provided by the caregivers change depending on who they are talking to and
there is often a delay in seeking care for the child.
{¶ 25} According to Dr. Schlievert, the occurrence of abusive head trauma peaks
in the age range of two-to-three months. He explained that babies that age often cry or
experience colic and this is around the age when initial support from outside family
members seems to taper off and parents are on their own for the first time.
{¶ 26} Dr. Schlievert described the usual appearance of a baby who has
experienced head trauma. He said that they do not lose all function immediately, but
somebody who has witnessed the injury will be able to discern a change in the child. The
injury to the brain evolves over several hours. The child may cry at times, open their
11.
eyes, blink, look around the room, or actually feed a little bit as the injury evolves. He
referred to a “golden hour”—the first hour after the injury—where if medical care is
rendered, some of the injury can actually be reversed, the progression of the injury may be
stopped, and the child may improve.
{¶ 27} On cross-examination, Dr. Schlievert agreed that a person who did not
cause the injury to the child initially may not notice any signs that the baby has been
injured, however, he qualified this by stating that a parent or someone familiar with the
child would be able to detect a change in the child. He conceded that in this case, he does
not know who caused the trauma to K.H., where it happened, or who was there, but he
said that he knows what caused the injury and what the timeframe was. He said that an
adult slammed K.H.’s head into something hard, possibly multiple times. He agreed that
the “golden hour” was triggered whenever that trauma was inflicted upon K.H. Dr.
Schlievert testified that if anyone said they dropped the baby, this was not truthful.
{¶ 28} Dr. Schlievert conceded that he never listened to Hutchinson or
Henderson’s recorded statements, but he maintained that they presented different
accounts of what happened depending on who they were talking to.
{¶ 29} Following Dr. Schlievert’s testimony, the court held an in-chambers
conference. It observed that Dr. Schlievert testified that he knows what time the injury
occurred, but he never told the jury when that was. The court was of the opinion that this
was a “vital fact,” and the jury should be given this information. The state cautioned the
12.
court that it had purposely avoided any questions specific to K.H., but it submitted that
defense counsel “opened [the] door” during cross-examination. The court agreed, and
over defense counsel’s objection, the trial judge himself asked Dr. Schlievert when the
injury to K.H. happened. Dr. Schlievert said that it happened before the family arrived at
Albright’s house, but after K.H. was in the care of Henderson’s mother that afternoon.
The judge asked Dr. Schlievert if he recalled the particular times, and Dr. Schlievert
responded that Henderson’s mother reported that there was a normal feed at 2:45 p.m. and
K.H. was in his usual state of health at that time. Dr. Schlievert explained that what
concerned him was that while at Albright’s house, it was reported that K.H. was not
feeding well and was essentially quiet throughout the party. He maintained that this did
“not gel with a normal seven-week-old, but it does gel with a brain injured child.” On re-
cross, Dr. Schlievert conceded that he never spoke with Henderson’s mother.
{¶ 30} Dr. Cassin was the last medical professional to testify. He described his
background, education, and training, and defense counsel conceded that Dr. Cassin is an
expert forensic pathologist. Dr. Cassin explained what an autopsy is and the procedures
he uses in performing an autopsy. He testified that before initiating the process, he
reviews available medical records.
{¶ 31} Dr. Cassin described the results of his autopsy of K.H. As far as external
injuries, Dr. Cassin noted two small abrasions or scrape marks on the left side of the face.
13.
He also observed “artifact,” including tape marks, tube marks, and needle punctures
attributable to the administration of medical care.
{¶ 32} Internally, Dr. Cassin observed a skull fracture that was directed out from a
center point right above K.H.’s ear, emanating in a star pattern across the top of the head,
backwards, and forwards. The fractures were pushed apart due to swelling in the brain.
Beneath that, Dr. Cassin observed blood on the surface of both sides of the brain, with a
larger collection of subdural blood on the right side. He also observed extensive swelling
and deformity of the brain caused by several days spent on mechanical ventilation. He
characterized the injury as severe because the impact affected the brain, caused a skull
fracture that radiated in three directions from a single point, and resulted in bleeding in
the brain.
{¶ 33} Dr. Cassin determined that the cause of K.H.’s death was severe brain
swelling and pressure exerted downward within the bony box of the brain, eliminating the
impulses for his heart to beat, his lungs to operate, and his chemistry to manage. These
“functions were destroyed by severe, unrelenting swelling of the brain that could not be
arrested by the efforts made during hospitalization.”
{¶ 34} On cross-examination, Dr. Cassin conceded that he does not know who
caused the injury to K.H.’s skull, where it happened, who witnessed it, or what time it
happened.
14.
{¶ 35} The state moved to admit Dr. Cassin’s autopsy report with the last sentence
of the report deleted. The last sentence had indicated: “Because the caregivers did not
disclose the nature or location of the injury, and because the explanation offered is
unlikely, the manner of death is homicide.” The court admitted the redacted report.
b. Evid.R. 702 and 703
{¶ 36} Evid.R. 702 provides that a witness may testify as an expert if all of the
following apply:
(A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge,
skill, experience, training, or education regarding the subject matter of the
testimony;
(C) The witness’ testimony is based on reliable scientific, technical,
or other specialized information. To the extent that the testimony reports
the result of a procedure, test, or experiment, the testimony is reliable only
if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is
based is objectively verifiable or is validly derived from widely accepted
knowledge, facts, or principles;
15.
(2) The design of the procedure, test, or experiment reliably
implements the theory;
(3) The particular procedure, test, or experiment was conducted in a
way that will yield an accurate result.
{¶ 37} “To be admissible, an expert’s testimony must be both relevant and
reliable.” In re Leah Marie S., 6th Dist. Huron No. H-06-037, 2008-Ohio-360, ¶ 19,
citing Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 597, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993). It is the role of the trial judge to act as gatekeeper to ensure that
evidence which is not relevant or is unreliable does not reach the trier of fact. Id., citing
Daubert at 591.
{¶ 38} To be relevant, a witness must demonstrate expert qualifications in the
relevant subject area superior to the ordinary juror or layperson. Id. To be reliable, the
witness’s opinions must be based upon scientifically valid principles. Id. at ¶ 22. In
evaluating reliability, the focus is not on whether the expert’s conclusions are correct or
whether the testimony satisfies the proponent’s burden of proof at trial. Id., citing Miller
v. Bike Athletic Co., 80 Ohio St.3d 607, 687 N.E.2d 735 (1998), paragraph one of the
syllabus.
{¶ 39} Evid.R. 703 goes to the foundation for an expert’s opinions. It requires that
the facts or data upon which an expert bases his or her opinions be those perceived by the
expert or admitted in evidence at the hearing.
16.
{¶ 40} It is within the broad discretion of the trial court whether to admit or
exclude expert testimony. In re Te.R., 6th Dist. Lucas No. L-15-1015, 2015-Ohio-5498,
¶ 16. The trial court’s decision will not be reversed absent an abuse of discretion. Id. An
abuse of discretion connotes that the trial court’s attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
c. Hutchinson and Henderson’s Arguments
1. Dr. Mohr
{¶ 41} With respect to Dr. Mohr, Hutchinson and Henderson claim that not all of
the records she created were admitted into evidence. They cite nothing, however,
requiring admission of every record she created. We find no abuse of discretion in the
trial court’s decision allowing Dr. Mohr to testify and in admitting into evidence reports
that she created in connection with her treatment of K.H.
2. Dr. Cassin
{¶ 42} With respect to Dr. Cassin, Hutchinson and Henderson maintain that his
opinion of the manner of K.H.’s death was based on his assessment of the caregivers’
veracity. As such, they argue, his conclusions invaded the province of the jury, and did
not pass the rigors of an Evid.R. 702 or Daubert challenge. While they concede that Dr.
Cassin did not testify at trial as to the manner of K.H.’s death, and this portion of the
autopsy report was redacted for purposes of trial, they insist that an unredacted copy of
17.
the report was provided to Dr. Schlievert, thereby tainting the facts upon which Dr.
Schlievert relied in forming his opinions. Hutchinson and Henderson also insist that Dr.
Cassin’s opinions were based on hearsay, that he lacked personal knowledge of the facts,
and that no underlying facts, medical reports, or literature were admitted into evidence at
hearing or at trial. They point out that Dr. Cassin conceded that he has no expertise in the
field of physics or mechanical engineering, thus any testimony regarding “a numerical
distance of a fall” would be speculative.
{¶ 43} The state responds that Dr. Cassin personally performed K.H.’s autopsy
and, at trial, he detailed each step of that process which, he testified, was performed in
accordance with the procedures accepted by the forensic pathology community. The state
urges that the credibility to be afforded Dr. Cassin’s conclusions was for the jury to
determine.
{¶ 44} We find that Dr. Cassin’s testimony satisfied both Evid.R. 702 and 703.
Dr. Cassin testified as to his education, training, and experience, and defense counsel
stipulated to his expertise. Dr. Cassin personally performed K.H.’s autopsy and he
described the procedures he employed in conducting the autopsy. At the Daubert hearing
held by the court on August 20, 2014, Dr. Cassin made clear that he performed the
autopsy and rendered his conclusions in accordance with his training and experience and
in a manner consistent with reliable and accepted standards in the field of forensic
18.
pathology. Any opinions Dr. Cassin held concerning K.H.’s manner of death—i.e.,
homicide—were withheld from the jury, thereby avoiding prejudice to appellants.
{¶ 45} As to Dr. Cassin’s lack of expertise in the field of physics or mechanical
engineering, Dr. Cassin’s trial testimony was limited to his field of expertise. He did not
testify at trial concerning “a numerical distance of a fall.” In State v. Calise, 9th Dist.
Summit No. 26027, 2012-Ohio-4797, ¶ 26-28, the appellant argued that “the trial court
erred in allowing the state’s medical witnesses to testify as experts on the force necessary
to cause the injuries suffered by” the child victim. Those medical witnesses, which
included a forensic pathologist, testified that the child’s injuries were not caused by a fall
in a bathtub. Id. The Ninth District Court of Appeals rejected appellant’s arguments that
the medical experts testified outside their areas of expertise. We, too, reject this
argument. We find no abuse of discretion in the trial court allowing Dr. Cassin to testify
about his findings and we find no error in the court’s admission of the redacted autopsy
report authored by Dr. Cassin.
3. Dr. Schlievert
{¶ 46} Finally, with respect to Dr. Schlievert, Hutchinson and Henderson contend
that Dr. Schlievert’s opinions about who caused K.H.’s injuries and the caregivers’
veracity invaded the province of the jury and did not pass the rigor of Evid.R. 702 or
Daubert. They also claim that Dr. Schlievert made repeated reference to “the literature,”
but the state never identified or provided this literature to defense counsel, nor did it
19.
admit the literature into evidence. They say that Dr. Schlievert was permitted to bolster
his own credibility “by the unknown credibility of others.” They also say that Dr.
Schlievert conducted no exams, did not know whether he had seen any pictures, spoke to
no one involved, and did not know whether he had been given the complete medical
record.
{¶ 47} In addition to this, Hutchinson and Henderson point out that the trial court
itself asked Dr. Schlievert what time the injury occurred, and in answering the court’s
question, Dr. Schlievert based his opinions, in part, on the medical records without
specifying which records he relied on. And as with Dr. Cassin, Hutchinson and
Henderson argue that Dr. Schlievert lacks expertise in physics and mechanical
engineering.
{¶ 48} The state counters that Dr. Schlievert detailed his methodology in
diagnosing child abuse, conducted a records review, and rendered a differential diagnosis
using acceptable medical methodology.
{¶ 49} The court in State v. Doss, 12th Dist. Clermont No. CA2015-03-023,
2015-Ohio-5504, ¶ 25, recognized that “the knowledge involving abusive head trauma
has ‘long been recognized as the proper subject of expert testimony’ and ‘the testimony is
not novel.’” Id., quoting State v. Milby, 12th Dist. Warren No. CA2013-02-014, 2013-
Ohio-4331, ¶ 28. In fact, the Milby court concluded that no Daubert hearing is required
20.
before allowing such testimony. We agree, and we find Dr. Schlievert’s testimony
reliable for purposes of Evid.R. 702.
{¶ 50} Turning to Hutchinson and Henderson’s challenge to Dr. Schlievert’s
qualifications, as with Dr. Cassin, we find that Dr. Schlievert’s testimony was limited to
his field of expertise, and we find that his lack of expertise in the field of physics or
mechanical engineering did not disqualify him from testifying.
{¶ 51} We now turn to the foundation for Dr. Schlievert’s opinions. We first
address his reference to medical literature. In his report, at the Daubert hearing, and
again at trial, Dr. Schlievert made clear that in addition to his background, experience,
and training, his review of medical literature helped form the basis for his opinions. The
Ohio Supreme Court recognized in Moretz v. Muakkassa, 137 Ohio St.3d 171, 2013-
Ohio-4656, 998 N.E.2d 479, ¶ 53-54, that Ohio amended its hearsay rules in 2006 by
adopting Evid.R. 803(18), which permits the admission of statements from learned
treatises during the testimony of expert witnesses. It provides:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness * * *[:] To the extent called to the
attention of an expert witness upon cross-examination or relied upon by the
expert witness in direct examination, statements contained in published
treatises, periodicals, or pamphlets on a subject of history, medicine, or
other science or art, established as a reliable authority by the testimony or
21.
admission of the witness or by other expert testimony or by judicial notice.
If admitted, the statements may be read into evidence but may not be
received as exhibits.
{¶ 52} In Moretz, the court further observed:
Evid.R. 803(18) replaced former Evid.R. 706, 109 Ohio St.3d
LXXXI, which permitted the limited use of learned treatises only for
impeachment purposes, and thus prohibited their use during direct
examination. Evid.R. 803(18) was adopted in acknowledgement of the fact
that in forming their opinions, expert witnesses necessarily rely on
“background hearsay * * * in the form of the out-of-court statements of
textbook authors, colleagues, and others.” 2006 Staff Notes to Evid.R.
803(18). “The rule makes explicit the sources of the expert’s opinion, and
in doing so both avoids disputes about the level of detail in their testimony
and assists the trier of fact in evaluating that testimony.” Id., citing Beard v.
Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834 N.E.2d
323.
{¶ 53} Hutchinson and Henderson complain that the state did not provide the
medical literature relied on by Dr. Schlievert. But they cite nothing requiring the state to
do so, and they cite nothing to show that they ever requested these materials. In any
event, at the Daubert hearing, Dr. Schlievert identified the principal article that he relied
22.
on. At that hearing, defense counsel could have asked what, if any, other literature he
relied on in forming his opinions. Defense counsel was also free to cross-examine Dr.
Schlievert about the medical literature at trial. We find no abuse of discretion in the trial
court allowing Dr. Schlievert to reference medical literature that assisted him in forming
his opinions.
{¶ 54} Hutchinson and Henderson also complain that the studies referenced by Dr.
Schlievert were not admitted into evidence. Evid.R. 803(18) indicates, however, that
learned treatises may not be received as trial exhibits.
{¶ 55} As to Hutchinson and Henderson’s claim that Dr. Schlievert conducted no
exams, did not know whether he had seen any pictures, spoke to no one involved, and did
not know whether he had been given the complete medical record, we observe that on
direct examination by the state, Dr. Schlievert provided no opinions specific to K.H.; to
the contrary, he spoke generally about abusive head trauma. On cross-examination,
however, defense counsel asked questions of Dr. Schlievert that were specific to the case:
Q: This baby here in this case, you do not know who caused the
trauma to the brain?
A: No, I can tell you what caused it and the timeframe, but I don’t
know who specifically inflicted that.
Q: You don’t know the perpetrator of that assault?
A: Not of the direct assault.
23.
Q: That answers my question. And you don’t know the location
where that assault occurred, do you?
A: I do not.
Q: When you speak of the golden hour, that golden hour is triggered
by the event that caused that brain fracture, isn’t it?
A: Correct.
Q: You don’t know what that event was in this case, do you?
A: I do know that.
Q: You didn’t observe what that event was?
A: I don’t need to observe it. The evidence I reviewed showed me
clearly what happened to this child.
Q: This child clearly had a collision with something with its head,
correct?
A: Yes. Some adult slammed this kid’s head into something hard.
Q: That is right. And maybe even more than once?
A: Possibly.
Q: Maybe three times based on what you saw?
A: It is possible. We know it happened once. More than once is
possible.
24.
Q: That event there is what triggered the golden hour, correct?
A: Yes, correct.
Q: This injury could never have been caused even if you dropped
the baby, correct, a man your size?
A: I would say that if anybody said they dropped this baby and that
is what happened, they were not telling the truth.
Q: You never talked to Beau Hutchinson, did you?
A: I did not.
Q: Did you listen to his tape recorded statement to the good
detective here?
A: I did not.
Q: Were you aware that he told her he didn’t know what happened
in that room?
A: Well, I am aware that many things were said and different times,
they differed, based on who he was talking to.
Q: You get that knowledge from the medical records, right?
A: Correct.
{¶ 56} The defense—not the state—asked Dr. Schlievert for his opinions specific
to K.H. And defense counsel never asked Dr. Schlievert to specify which medical
records he reviewed. To the extent that Dr. Schlievert did not review every piece of
25.
evidence in this case, this goes to the weight of his testimony, and it was a point
highlighted by defense counsel on cross-examination. To the extent that Dr. Schlievert
may have rendered opinions that were based on facts not admitted into evidence, defense
counsel invited any such error when he inquired of Dr. Schlievert’s opinions without
eliciting the precise foundation for those opinions.2
{¶ 57} Hutchinson and Henderson also take issue with the question posed to Dr.
Schlievert by the trial court. Before inquiring of the witness, the trial judge called
counsel into chambers and told them that because Dr. Schlievert indicated that he knew
what time the injury occurred, he intended to ask this question of Dr. Schlievert. The trial
judge explained:
I think the jury ought to know what that is. I don’t know whose
favor it goes to, defense or prosecution, but I think that is a vital fact. If he
can say this happened at 6:08, fine. If he can say it happened between noon
and nine, fine, but I think the jury ought to be able to know that.
{¶ 58} Counsel for the state explained to the court that she had conducted her
direct examination so as to avoid questions specific to K.H., but she noted that defense
counsel had opened the door during cross-examination. The court agreed. The trial court
2
Dr. Schlievert’s August 13, 2012 report indicates that he reviewed the Magruder
Hospital ER records from 3/9/12-3/10/12, medical records and xrays and cat scans from
St. Vincent Hospital dated 3/10/12, child protection team consultation reports from U
of M dated 3/12/12 and 3/14/12, and the autopsy report. These records were all admitted
into evidence at trial.
26.
then asked Dr. Schlievert when the injury happened. Dr. Schlievert responded that based
on his review, it happened before his arrival at Albright’s, but after being in the care of
Henderson’s mother. He based this opinion on medical records indicating (1) that
Henderson’s mother fed K.H. at 2:45 p.m. and he was in his “usual state of health,”
(2) that K.H. did not feed well and was quiet throughout the whole evening—behavior
that he believed to be atypical of a normal seven-week-old infant, but typical of a brain
injured child.
{¶ 59} Under Evid.R. 614(B), a trial judge may interrogate a witness “as long as
the questions are relevant and do not suggest a bias for one side or the other.” Metro. Life
Ins. Co. v. Tomchik, 134 Ohio App.3d 765, 794, 732 N.E.2d 430 (7th Dist.1999), citing
State v. Blankenship, 102 Ohio App.3d 534, 548, 657 N.E.2d 559 (12th Dist.1995).
“Absent a showing of bias, prejudice, or prodding of the witness to elicit partisan
testimony, it is presumed that the trial court interrogated the witness in an impartial
manner in an attempt to ascertain a material fact or develop the truth.” Id. A trial court’s
interrogation of a witness will not be deemed “partial” “merely because the evidence
elicited during the questioning is potentially damaging to the defendant.” Id.
Here, we find that the trial court did not exhibit any bias in inquiring of Dr.
Schlievert. The court’s questioning was prompted by questions posed to him by defense
counsel. Furthermore, we find that the facts forming the basis for Dr. Schlievert’s
27.
opinion as to the time of the injury were contained in the record. Those facts were noted
in Dr. Mohr’s report, which had previously been admitted into evidence.
{¶ 60} Finally, we note that while Dr. Schlievert’s report was admitted as an
exhibit at the Daubert hearing, it was not offered or admitted into evidence at trial. Thus,
much of what Hutchinson and Henderson complain about in challenging Dr. Schlievert’s
testimony was never presented to the jury.
{¶ 61} We find no abuse of discretion in the trial court’s decision allowing Dr.
Schlievert’s testimony, and we find Hutchinson and Henderson’s first assignment of error
not well-taken.
2. Motion for Appropriation of Funds for a Defense Expert
{¶ 62} In their second assignment of error, Hutchinson and Henderson argue that
the trial court erred in denying their request for funds to hire a defense expert. They
maintain that they located a forensic pathologist from Minnesota, John Plunkett, M.D.,
who had written extensively on short falls, yet the trial court refused to authorize funds to
hire an expert, thereby severely limiting their defense.
{¶ 63} The state counters that Hutchinson and Henderson had a household income
of $60,000 per year, thus they were not indigent and were not entitled to an expert hired at
the state’s expense. The state also argues that Hutchinson and Henderson failed to meet
their burden to establish the need for expert testimony. It contends that Hutchinson and
Henderson made only a generic assertion that expert assistance was necessary.
28.
{¶ 64} An indigent criminal defendant is entitled to an expert witness at the state’s
expense only where the trial court finds that the defendant has made a particularized
showing of a reasonable probability that the requested expert would aid in his defense,
and that denial of the requested expert assistance would result in an unfair trial. State v.
Mason, 82 Ohio St.3d 144, 150, 694 N.E.2d 932 (1998). This requires a defendant to
present sufficient facts demonstrating the need for expert assistance. State v. Peterson,
7th Dist. Columbiana No. 06 CO 26, 2007-Ohio-4980, ¶ 65. In considering the
defendant’s request, the trial court must assess “the value of the expert assistance to the
defendant’s proper representation” and “the availability of alternative devices that would
fulfill the same functions as the expert assistance sought.” Id. at ¶ 64, citing State v.
Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984), paragraph four of the syllabus.
Ultimately, it is within the trial court’s broad discretion whether to appoint an expert, and
we will not reverse the trial court’s decision absent an abuse of that discretion. Id. at
¶ 63.
{¶ 65} The trial court denied Hutchinson and Henderson’s motion because
(1) their household income exceeded the federal poverty guidelines by 187.5 percent, and
(2) they failed to show how expert assistance would have provided more than a mere
possibility of assistance.
{¶ 66} Ohio Adm.Code 120-1-03(E)(3) provides that “[a] defendant who retains
counsel but does not have sufficient funds to pay for experts, transcripts, and other related
29.
expenses should be declared indigent for those purposes.” See also State v. Mansfield, 2d
Dist. Clark No. 2015-CA-72, 2016-Ohio-8189, ¶ 10 (“A defendant who has retained
private counsel may still be declared indigent for purposes of expert assistance.”). Under
Ohio Adm.Code 120-1-03(C)(3) and (4), when determining an applicant’s indigence, the
number and ages of persons the applicant has a legal duty to support must be considered,
as must the applicant’s basic living expenses. “Basic living expenses” include, “housing
rent and/or mortgage payments, child support actually paid, child care, health insurance
premiums, medical and dental expenses, costs of caring for an infirm family member,
employment transportation costs, costs of fuel, food, telephone, utilities, taxes withheld,
credit card and other loan payments, and other similar basic costs of living.” Ohio
Adm.Code 120-1-03(C)(4). Moreover, under Ohio Adm.Code 120-1-03(C)(1), only the
applicant’s income may be considered, “unless other persons in the applicant’s household
have a legal duty to support the applicant.”
{¶ 67} In July of 2014, when Henderson initially requested funds for an expert, she
reported income of $400 per month and expenses of $586. In 2014, the federal poverty
guideline for a household of one was $11,670. (https://aspe.hhs.gov/2014-poverty-
guidelines, accessed January 9, 2017). Henderson’s income was $4,800 at that time.
While Hutchinson is listed as living in her household, he had no obligation to support her.
Thus, it was not appropriate to consider his income in considering her eligibility for
financial assistance. Henderson was clearly at or below 187.5% of the federal poverty
30.
guidelines for purposes of Ohio Adm.Code 120-1-03. The trial court abused its discretion
in holding otherwise.
{¶ 68} Having found that Henderson was indigent, we turn to the second part of
the trial court’s holding: that Henderson failed to show how expert assistance would have
provided more than a mere possibility of assistance.
{¶ 69} After filing their original motion for appropriation of funds for a defense
expert, Hutchinson and Henderson filed a “supplement re: motion for funding,” in which
they represented to the court that Dr. Plunkett had retired. In that supplement, they
identified a new potential expert, David Posey, M.D., a forensic pathologist in California.
The supplemental motion provided information that was not included in their first
motion—e.g., the doctor’s hourly rate, a timeline for review of the case, and an
approximation of the number of hours it would take to review the case, prepare a report,
and prepare for and attend trial. The preliminary evaluation of the case alone was
estimated to cost $12,000. Dr. Posey’s curriculum vitae was attached to this motion. The
CV indicates that he once spoke at a 2008 conference on child abuse defense, but beyond
that, the supplemental motion fails to articulate how Dr. Posey may have assisted in
Henderson’s defense. In short, the supplemental motion failed to make a particularized
showing of a reasonable probability that the requested expert would aid in Henderson’s
defense.
31.
{¶ 70} Turning to Hutchinson, he reported income in 2014 of $4,200 per month
and expenses of $1,960. Subtracting out those expenses, his income exceeded the federal
poverty guideline by more than 187.5%. In 2015, however, Hutchinson indicated that his
income had fallen to $3,300 per month, and his expenses increased to $2,160. He did not
explain why his income had decreased or why his expenses had increased so significantly.
But we find that we need not determine whether he was indigent for purposes of
obtaining an expert at the state’s expense because, like Henderson, he failed in his
supplemental motion to make a particularized showing of a reasonable probability that the
requested expert would aid in his defense.
{¶ 71} We, therefore, find no abuse of discretion in the court’s decision, and we
find Hutchinson and Henderson’s second assignment of error not well-taken.
3. Motion for Acquittal
{¶ 72} In their third assignment of error, Hutchinson and Henderson challenge the
trial court’s denial of their motion for acquittal under Crim.R. 29. They claim that the
state did not present sufficient evidence to support their child endangering convictions
because it failed to prove when the injury to K.H. happened, where it happened, who was
present, and who was not present. They also claim that child endangering is an
affirmative act whereby a substantial risk is created, yet the state presented no evidence
that they knew that something happened, permitted something to happen, violated any
duty, or engaged in any action or inaction that caused or exacerbated any harm to K.H.
32.
They also contend that there was no evidence that Hutchinson was the guardian or
custodian of the child.
{¶ 73} The state counters that it presented evidence that Henderson was K.H.’s
parent and Hutchinson had custody or control or was a person in loco parentis of K.H. It
contends that K.H. suffered extensive head trauma while in Hutchinson and Henderson’s
care and that they intentionally delayed in seeking medical treatment despite recognizing
that the baby was not breathing properly. The state insists that this act alone created a
substantial risk to the health and safety of the child, but it further maintains that they lied
about the cause of K.H.’s injuries and told inconsistent versions of the events leading up
to the time they brought the baby to the hospital. This, the state claims, demonstrates that
Hutchinson and Henderson knew they violated a duty to K.H. and were trying to cover up
the truth.
{¶ 74} We review a Crim.R. 29 motion for acquittal under the same standard used
to review a sufficiency of the evidence claim. State v. Hollstein, 6th Dist. Lucas No.
L-08-1184, 2009-Ohio-4771, ¶ 28. Whether there is sufficient evidence to support a
conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). In reviewing a challenge to the sufficiency of evidence, “[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” (Internal citations omitted.) State v. Smith, 80 Ohio St.3d
33.
89, 113, 684 N.E.2d 668 (1997). In making that determination, the appellate court will
not weigh the evidence or assess the credibility of the witnesses. State v. Walker, 55 Ohio
St.2d 208, 212, 378 N.E.2d 1049 (1978).
{¶ 75} To prove third-degree felony child endangering under R.C. 2919.22(A), the
state must prove beyond a reasonable doubt (1) that the defendant was the parent,
guardian, custodian, person having custody or control, or person in loco parentis of the
subject child; (2) that he recklessly created a substantial risk to the health or safety of the
child by violating a duty of protection, care or support; and (3) that the defendant’s
conduct resulted in serious physical harm to the child. (Citations omitted.) State v.
Stewart, 5th Dist. Stark No. 2007-CA-00059, 2007-Ohio-6118, ¶ 51. Under R.C.
2901.22(C), “A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk that the person’s
conduct is likely to cause a certain result or is likely to be of a certain nature.” And under
R.C. 2901.01(H), a “substantial risk” is “a strong possibility, as contrasted with a remote
or significant possibility, that a certain result may occur or that certain circumstances may
exist.”
{¶ 76} We start by addressing the first element. While Hutchinson argues that he
was not K.H.’s parent or guardian, he does not address the other statuses under which a
person may be liable for a violation of R.C. 2919.22(A): a “person having custody or
control” or a “person in loco parentis” of the child.
34.
{¶ 77} The Ohio Supreme Court has explained that “the term ‘in loco parentis’
means ‘charged, factitiously, with a parent’s rights, duties, and responsibilities.’ A person
in loco parentis has assumed the same duties as a guardian or custodian, only not through
a legal proceeding.” (Citations omitted.) Glancy v. Spradley, 12th Dist. Butler No.
CA2012-02-024, 2012-Ohio-4224, ¶ 7. A person will be deemed in loco parentis where
he or she assumes the same duties as a guardian or custodian. Id. at ¶ 11.
{¶ 78} Here, the state presented evidence that while Hutchinson did not live with
Henderson, he stayed with her five out of seven nights a week. Henderson said during
her interview with Detective Amy Gloor that she had been with Hutchinson throughout
her pregnancy with K.H. And Henderson’s mom testified that Hutchinson took care of
the baby, changed his diaper, fed him, bathed him, and took a fatherly role. We also
observe that Hutchinson rode with K.H. when he was life-flighted to St. Vincent Hospital.
We find that this evidence was sufficient to satisfy the first element of the offense.
{¶ 79} We next turn to whether the state offered evidence that Hutchinson and
Henderson recklessly created a substantial risk to K.H.’s health or safety by violating a
duty of protection, care or support. In order to establish this element of the offense, the
state need not prove that the defendants caused the initial injury to K.H. A defendant may
violate R.C. 2919.22(A) by failing to seek medical attention for a child. Stewart, 5th
Dist. Stark No. 2007-CA-00059, 2007-Ohio-6118, ¶ 56. See also State v. Legg, 89 Ohio
35.
App.3d 184, 187, 623 N.E.2d 1263 (9th Dist.1993). To rise to the level of third-degree
child endangering, the violation of duty must have resulted in serious physical harm.
{¶ 80} The state contends that K.H. suffered extensive head trauma while in
Hutchinson and Henderson’s care and that they delayed medical care despite recognizing
that the baby was struggling to breathe. It presented evidence in support of this
contention. Specifically, the state relayed two versions of the events. One was the
version believed by its experts—that K.H. was injured after Hutchinson and Henderson
returned from running errands that afternoon, but before the family arrived at the
party—yet, no medical treatment was sought for his injuries until almost midnight. The
second was the version advanced by Hutchinson and Henderson—that K.H. was injured
when he was dropped by a toddler at the party. Despite observing that K.H. was gasping
for air, they (1) did not call for an ambulance, and (2) made a detour to pick up
Henderson’s grandmother instead of driving immediately to the hospital, thereby delaying
treatment to a baby that was obviously struggling to breathe. Dr. Mohr testified that time
was of the essence and K.H. sustained a worsening injury from the failure to seek
immediate medical care. We conclude that these facts satisfy the second and third
elements of the offense and are sufficient to support a conviction under R.C. 2919.22(A).
{¶ 81} We find Hutchinson and Henderson’s third assignment of error not well-
taken.
36.
4. Prosecutor’s Comments About Credibility of Witnesses
{¶ 82} In their fourth assignment of error, Hutchinson and Henderson claim that
they were prejudiced because the court allowed the prosecutor to make repeated
statements concerning her assessment of the witnesses’ credibility. They claim that the
statements were pervasive and the trial court’s failure to intervene sua sponte amounted to
plain error.
{¶ 83} The state argues that both the prosecution and defense have wide latitude in
summation and a prosecutor may state his or her opinion if it is based on the evidence
presented at trial. It maintains that the state’s comments during closing were not
improper because evidence elicited from the witnesses established that Hutchinson and
Henderson were not truthful during the investigation into K.H.’s death and gave
inconsistent versions of events, both before and after trial. The state insists that “the facts
presented at trial showed that both Appellants had, in fact, lied multiple times during the
investigation and during trial.”
{¶ 84} Because there was no objection at trial to the prosecutor’s statements, we
review this assignment of error under a plain-error analysis. The plain-error doctrine
represents an exception to the usual rule that errors must first be presented to the trial
court before they can be raised on appeal. It permits an appellate court to review an
alleged error where such action is necessary to prevent a manifest miscarriage of justice.
State v. Long, 53 Ohio St.2d 91, 95, 372 N.E.2d 804 (1978). In order to prevail under a
37.
plain-error standard, an appellant must demonstrate that there was an obvious error in the
proceedings and, but for the error, the outcome clearly would have been otherwise. State
v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 62.
{¶ 85} Hutchinson and Henderson challenge statements made by the state in its
opening, indicating that Hutchinson and Henderson lied and needed to be held
responsible, and they challenge numerous statements made at closing indicating that they
had lied or were liars.
{¶ 86} As the state argues, counsel generally is entitled to considerable latitude in
opening statement and closing argument. State v. Ballew, 76 Ohio St.3d 244, 255, 667
N.E.2d 369 (1996). In closing argument, a prosecutor may comment freely on “what the
evidence has shown and what reasonable inferences may be drawn therefrom.” State v.
Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). While, generally, it is improper for
an attorney to express his or her personal opinion as to the credibility of a witness, “it is
not prosecutorial misconduct to characterize a witness as a liar or a claim as a lie if the
evidence reasonably supports the characterization.” State v. Thompson, 141 Ohio St.3d
254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 197; State v. Baker, 159 Ohio App.3d 462,
2005-Ohio-45, 824 N.E.2d 162, ¶ 19 (2d Dist.). But “[a] prosecutor needs to be very
careful when he or she uses the term ‘lies’ or ‘liar’ in reference to the defendant or the
defendant’s statements.” State v. McDade, 11th Dist. Lake No. 96-L-197, 1998 Ohio
App. LEXIS 2927, *12 (June 26, 1998).
38.
{¶ 87} Here, in several instances, it was arguably improper for the state to
characterize Hutchinson and Henderson as “liars” and their statements as “lies.” But
viewing the closing argument as a whole, as we must do, we cannot conclude that the
outcome of the trial clearly would have been different were it not for the prosecutor’s
improper comments. See State v. Carpenter, 116 Ohio App.3d 615, 623, 688 N.E.2d
1090 (2d Dist.1996) (explaining that in reviewing remarks made by a prosecutor during
summation, the closing argument must be reviewed in its entirety).
{¶ 88} Accordingly, we find Hutchinson and Henderson’s fourth assignment of
error not well-taken.
5. Maximum Sentence
{¶ 89} In their fifth assignment of error, Hutchinson and Henderson claim that the
trial court erred in imposing the maximum prison sentence of 36 months. They contend
that the court was not required to impose a prison sentence, recidivism is low in this case,
and no one “still knows when anything happened, where it happened, who was present,
and who was not present[.]”
{¶ 90} The state counters that the sentences imposed by the court fall within the
permitted statutory range, the court considered R.C. 2929.11 and 2929.12, and the court
reviewed all materials provided to it in determining Hutchinson and Henderson’s
sentences. The court concluded that they “did not adequately care for [K.H.] once [they]
knew of his injuries, whenever that was.”
39.
{¶ 91} We review felony sentences under R.C. 2953.08(G)(2). Under R.C.
2953.08(G)(2), an appellate court may increase, reduce, or otherwise modify a sentence or
may vacate the sentence and remand the matter to the sentencing court for resentencing if
it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 92} Here, the provisions specified in R.C. 2953.08(G)(2)(a) are inapplicable.
We, therefore, turn to R.C. 2953.08(G)(2)(b). The Supreme Court of Ohio in State v.
Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18, held that a sentence is
not clearly and convincingly contrary to law where the trial court has considered the
purposes and principles of sentencing under R.C. 2929.11 and the seriousness and
recidivism factors under R.C. 2929.12, properly applied postrelease control, and imposed
a sentence within the statutory range.
{¶ 93} Under R.C. 2929.14(A)(4), for a felony of the third degree, the court shall
impose a prison term of nine, 12, 18, 24, 30, or 36 months. Hutchinson and Henderson’s
36-month sentence is within the statutory range. The record also makes clear that the trial
court considered the principles and purposes of sentencing under R.C. 2929.11 and the
40.
seriousness and recidivism factors under R.C. 2929.12. We find no error in the sentence
imposed by the trial court.
{¶ 94} We, therefore, find Hutchinson and Henderson’s fifth assignment of error
not well-taken.
C. Conclusion
{¶ 95} We find Hutchinson and Henderson’s five assignments of error not well-
taken, and we affirm the November 12, 2015 judgment of the Ottawa County Court of
Common Pleas. Hutchinson and Henderson are responsible for the costs of this appeal
under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Stephen A. Yarbrough, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
41.
|
9 So.3d 586 (2007)
EX PARTE FREDDIE STALLWORTH.
No. CR-06-0936.
Court of Criminal Appeals of Alabama.
April 16, 2007.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Mandamus petition denied.
|
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00477-CR
Clemente Suarez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
NO. CR92-0713-A, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Clemente Suarez, appearing pro se, seeks to appeal from the trial court’s
denial of his motion for judgment nunc pro tunc.1 In criminal cases, unless expressly authorized
by statute, appellate courts only have jurisdiction to review final judgments. Apolinar v. State,
820 S.W.2d 792, 794 (Tex. Crim. App. 1991); see Tex. Code Crim. Proc. art. 44.02 (“A defendant
in any criminal action has the right of appeal under the rules hereinafter prescribed . . . .”). An order
denying a motion for judgment nunc pro tunc is not a final, appealable order. See Abbott v. State,
271 S.W.3d 694, 697 (Tex. Crim. App. 2008) (no jurisdiction over appeal of post-judgment order
denying time-credit motion); Deshotel v. State, No. 14-13-01093-CR, 2014 WL 51438, at *2
1
Suarez was convicted of murder in 1993, and this Court affirmed that conviction on direct
appeal. See Suarez v. State, No. 03-93-00545-CR (Tex. App.—Austin Oct. 19, 1994, pet. ref’d)
(mem. op.) available at http://www.search.txcourts.gov/Case.aspx?cn=03-93-00545-CR.
(Tex. App.—Houston [14th Dist.] Jan. 7, 2014, no pet.) (mem. op., not designated for publication)
(no appellate jurisdiction over denial of motion for judgment nunc pro tunc); Castor v. State,
205 S.W.3d 666, 667 (Tex. App.—Waco 2006, no pet.) (same). Nor does the denial create a right
to an interlocutory appeal. Castor, 205 S.W.3d at 667. Accordingly, we dismiss this appeal for want
of jurisdiction. See Tex. R. App. P. 43.2(f).
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Pemberton, and Field
Dismissed for Want of Jurisdiction
Filed: September 25, 2014
Do Not Publish
2
|
57 N.J. Super. 598 (1959)
155 A.2d 167
GENEVIEVE CANCELLIERI AND PHILIP CANCELLIERI, HER HUSBAND, PLAINTIFFS,
v.
JOSEPHINE DE MODICA AND JOSEPH DE MODICA, HER HUSBAND, DEFENDANTS. RE: ALLEGED CONTEMPT OF DONALD V. MORAN, THOMAS SHERMAN, MATTHEW VALLONE, ROBERT J. ALBERQUE, AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
Superior Court of New Jersey, Law Division.
Decided November 4, 1959.
*601 Mr. Joseph N. Donatelli, assigned attorney for prosecutor John G. Thevos.
Mr. Nicholas Martini, attorney for Genevieve & Philip Cancellieri.
Mr. Harry Green, attorney for Nicholas Martini.
Mr. Hyman W. Rosenthal, attorney for Theresa Greco.
Mr. Archibald Kreiger, attorney for Donald V. Moran.
Mr. Thomas Maher, attorney for Matthew Vallone.
Mr. Vincent C. Duffy, attorney for Robert J. Alberque.
Mr. Carl Gelman, attorney for State Farm Mutual Automobile Insurance Company.
KOLOVSKY, J.S.C.
Trial of the above-entitled automobile negligence case resulted in verdicts of "no cause for action" on both the main case and the counterclaim. Thereafter, plaintiffs filed a petition, on which an order to show cause issued, by which plaintiffs sought to have Donald V. Moran, Thomas Sherman, Matthew Vallone, Robert J. Alberque, and State Farm Mutual Automobile Insurance Company (hereinafter called "respondents") adjudged guilty of a criminal contempt of court for *602 "abuse of process and for allegedly examining and obtaining by fraud, deceit and misrepresentation, confidential and privileged records consisting of personal Law Diary and personal message book of Nicholas Martini, attorney for the plaintiffs in the above matter on February 24, 1959, and for making false and deceitful representations that they, the said parties or either of them, were requested and authorized by Nicholas Martini to examine and obtain said confidential and privileged records, and induce his secretary, Theresa Greco, to give depositions thereon, in an automobile behind the Court House, Paterson, New Jersey, on said date, when, in fact, said Nicholas Martini at no time requested or authorized either of said parties to examine or obtain said records and obtain a deposition from his secretary, regarding confidential and privileged matter relating to the above entitled action then pending and on trial in this Court."
State Farm Mutual Automobile Insurance Company was defendants' liability insurance carrier; respondent Alberque is an attorney who was retained by the carrier to appear for the defendants; Moran is an employee of the insurance company; Sherman is an investigator retained by Alberque; and Vallone is Sherman's employee. On the return day of the order to show cause, respondents pleaded not guilty.
The court now has before it for determination a motion, made by respondents on completion of the testimony offered in support of the charges, seeking dismissal of the order to show cause and a judgment of acquittal upon the ground that the proofs failed, as a matter of law, to show a situation justifying a finding that respondents were guilty of criminal contempt. In addition, respondents Alberque and State Farm Mutual Automobile Insurance Company respectively urge that there was no proof that the action complained of had been authorized or directed by them.
As I remarked during the course of the argument, Vallone's conduct in misrepresenting to Martini's secretary that he was an investigator employed and sent by Martini, as the result of which he induced her to permit him to examine and take Martini's diary and personal message book and to give a deposition with respect thereto, was reprehensible even if his purpose was to attempt to disprove testimony given by a witness called by Martini as to the date when *603 he had gone to Martini's office. Indeed, it may give rise to an action for damages by Martini for willful invasion of his rights, and if an attorney authorized or directed such conduct he would be subject to disciplinary proceedings for a violation of professional ethics.
But those questions are not before the court. The sole issue is, has a criminal contempt been shown? Since, as Judge Jayne said in Swanson v. Swanson, 10 N.J. Super. 513, 520-521 (App. Div. 1950), affirmed 8 N.J. 169 (1951):
"A prosecution for criminal contempt is veritably a criminal trial in which the accused possesses most of the substantial rights of a person accused of crime, among which are the presumption of innocence, the burden of proving the alleged guilt beyond a reasonable doubt and the rules of evidence applicable in the trial of an indictment * * *.
Its title or label may now give it the ostensible appearance of a motion or integral component of the action in which the alleged public offense occurred, but the proceeding inaugurated to determine the guilt or innocence of the accused continues in truth and reality to be a new, independent, and collateral matter * * *."
the test to be applied on this motion is that applicable to such motions in criminal trials: Is there legal evidence before the court from which an inference can be legitimately drawn that respondents were guilty of the criminal contempt charged? R.R. 3:7-6; State v. Kollarik, 22 N.J. 558 (1956).
Examination of the many cases dealing with criminal contempt which are found in the books leads me to the conclusion that the conduct disclosed by the evidence would not justify conviction of the respondents for criminal contempt.
A criminal contempt, unlike a civil contempt, whose object is the vindication of private rights, "concerns itself with conduct directed against the authority or dignity of the court. * * * It involves the element of public injury or offense." In re Bozorth, 38 N.J. Super. 184, 188 (Ch. Div. 1955); In re Caruba, 139 N.J. Eq. 404 (Ch. 1947), affirmed 140 N.J. Eq. 563 (E. & A. 1947), certiorari *604 denied 335 U.S. 846, 69 S.Ct. 69, 93 L.Ed. 396; In re Jenkinson, 93 N.J. Eq. 545 (Ch. 1922); see also N.J.S. 2A:10.
The contempt power of the court is one to be exercised with caution, with judicial self-restraint, and should not be invoked absent a clear showing. In re Bozorth, supra; Edwards v. Edwards, 87 N.J. Eq. 546, 548 (Ch. 1917); N.L.R.B. v. Deena Artware, Inc., 207 F.2d 798 (6 Cir. 1953).
As Vice Chancellor Lane said in Edwards v. Edwards, supra, 87 N.J. at page 548:
"The power to punish for contempt is an arbitrary power, and should be used only when absolutely necessary in the interest of justice, and then with great care and discretion."
And as Judge Haneman said in In re Bozorth, supra, 38 N.J. Super. at page 195:
"In any event, since courts in criminal contempt proceedings are sitting, to all intents and purposes, on their own function, the power to punish should be used only in flagrant cases and with the utmost forbearance. It is always better to err on the side of tolerance and even with disdainful indifference."
Although lack of precise precedent treating a particular fact situation as a criminal contempt would not prevent a court from adjudicating it to be such if it should determine that the act complained of tended to obstruct, hinder, or hamper justice in its due course (17 C.J.S. Contempt § 8, p. 11; State ex rel. Turner v. Albin, 118 Ohio 527, 161 N.E. 792 (Sup. Ct. 1928), the absence of such precedent must give the court pause to make certain that it is not unwarrantedly expanding the area in which it should invoke such power. 17 C.J.S. Contempt § 8, p. 11.
The evidence does not show that the acts complained of tended to obstruct, hinder, or hamper justice. (As to the meaning of the phrase "obstructing justice" see, for *605 example, In re Caruba, 139 N.J. Eq. 404 (Ch. 1947), affirmed 140 N.J. Eq. 563 (E. & A. 1947), certiorari denied 335 U.S. 846, 69 S.Ct. 69, 93 L.Ed. 396 (1948); Shackelford v. Commonwealth, 185 Ky. 51, 214 S.W. 788 (Ct. App. 1919); State v. Shumaker, 200 Ind. 623, 157 N.E. 769, 774, 162 N.E. 441, 163 N.E. 272, 58 A.L.R. 954 (Sup. Ct. 1927); In re Bozorth, 38 N.J. Super. 184 (Ch. Div. 1955); see also Ex parte Stroud, 167 Ark. 331, 268 S.W. 13, 37 A.L.R. 1111 (Sup. Ct. 1929)).
While it is true that action taken to prevent a witness from testifying or to induce him to avoid appearing in court may be deemed to constitute criminal contempt (In re Caruba, supra; In re Hand, 89 N.J. Eq. 469 (Ch. 1918)), it does not conversely follow that misrepresentation or other action taken to bring a witness to court constitutes a contempt.
A finding of criminal contempt, therefore, cannot be based on the misrepresentation and other action taken to bring Mrs. Greco to the courtroom.
Nor is such basis to be found in the service of a subpoena to testify on Mrs. Greco as she was entering the courtroom; it was not done under such circumstances as to cause a commotion or disturbance. Baumgartner v. Baumgartner, 273 App. Div. 411, 77 N.Y.S.2d 668 (App. Div. 1948).
In re Bowers, 89 N.J. Eq. 307 (Ch. 1918), cited as supporting the charges against the respondents, is not pertinent. In that case the respondent, father of plaintiff-husband in a divorce suit, threatened the wife's solicitor with political and other pressures to get him to withdraw from the case, an act which was clearly contempt, since it tended to deprive the court of the services of one of its officers prosecuting a cause before it and constituted a step towards a collusive divorce.
But the proofs in this case do not show that the conduct complained of was intended to, or that it did, have a coercive effect on Martini.
We come now to the portion of Vallone's actions which comes closest to constituting a contempt of court *606 his action in obtaining by misrepresentation and deceit and examining Martini's diary and message book.
Even if it were to be assumed that the conduct complained of constituted an unlawful search and seizure, no authority has ever held that unlawful search and seizure constitutes a contempt of court. Cf. Blumrosen, "Contempt of Court and Unlawful Police Action," 11 Rutgers L. Rev. 526; see Eleuteri v. Richman, 26 N.J. 506 (1958), certiorari denied sub nom. Eleuteri v. Furman, 358 U.S. 843, 79 S.Ct. 52, 3 L.Ed.2d 77 (1958).
Nor does the fact that Martini is an attorney make the conduct complained of a criminal contempt.
That an attorney is an officer of the court is settled (In re Merrill, 88 N.J. Eq. 261 (Ch. 1917); In re Bowers, 89 N.J. Eq. 307, 309 (Ch. 1918)); but he is not the court nor one of its ministerial officers. See Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474 (1955). I have no doubt but that one using Vallone's tactics to obtain documents from the chambers of a judge or from court personnel would be adjudged guilty of criminal contempt (In re Hayden, 100 N.J. Eq. 50 (Ch. 1926)), but I can find no warrant for extending that summary remedy to such action taken not in the presence of the court (In re Caruba, 139 N.J. Eq. 404 (Ch. 1947); Van Sweringen v. Van Sweringen, 22 N.J. 440 (1956)), but in a lawyer's office and outside the courthouse with respect to a lawyer's diary and message book. For such injuries the attorney must look to the usual remedies. See McCann v. New York Stock Exchange, 80 F.2d 211 (2 Cir. 1935).
In view of my ruling, it becomes unnecessary to consider the additional grounds for the motion urged by the respondent Insurance Company and Alberque.
Respondents' motion for judgment of acquittal is granted.
|
708 F.2d 104
35 UCC Rep.Serv. 1533
YAHN & McDONNELL, INC., a Pennsylvania corporationv.FARMERS BANK OF the STATE OF DELAWARE, a Delawarecorporation; Delaware Retail Stores, Inc.; InsuranceCompany of North America; Delaware Candy & Tobacco Service,a Joint Venture; and Paul E. Kessler, M. Binder & Company,and Delmar Merchandise Sales Co., Joint Venturersv.John M. GRAY, David Cohen, Fourth Party Defendants.Appeal of YAHN & McDONNELL, INC.
No. 82-1337.
United States Court of Appeals,Third Circuit.
Argued Jan. 11, 1983.Decided May 13, 1983.
George H. Seitz, III (argued), Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for appellant Yahn & McDonnell, Inc.
Robert J. Katzenstein (argued), Martin I. Lubaroff, Richards, Layton & Finger, Wilmington, Del., for appellee Farmers Bank of the State of Del.
Before WEIS, SLOVITER and BECKER, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
1
In this diversity case, the district court held that the defendant bank properly refused to pay on its negotiable certificate of deposit presented by an indorsee. The court reasoned that because the holder had acquired the certificate after its maturity date, the bank's asserted defense of its prior payment to the depositor was valid. We conclude that in view of the specialized nature of a certificate of deposit whether the indorsee was a holder in due course depends upon unresolved factual issues. Moreover, since the payee clause of the original certificate did not include the depositor, credit to its account did not constitute payment by the bank on the original instrument. We hold also that in the circumstances of this case a negligence action is not foreclosed by the provisions of the Uniform Commercial Code. Accordingly, the judgment in favor of the defendant will be vacated and the case remanded to the district court.
2
Plaintiff's complaint against the bank alleged that it had wrongfully dishonored its certificate of deposit. Other parties were joined on related issues and a number of cross-claims were filed. The district court granted summary judgment in favor of the bank and, thereafter on stipulation of the parties, entered final judgment dismissing all remaining claims.1
3
Plaintiff Yahn & McDonnell sold merchandise to Delaware Candy & Tobacco Service for a period of time and, when Candy's credit became extended, requested security to protect the account. On May 16, 1978, Candy and plaintiff entered into an agreement designated "Assignment" that transferred to Yahn Candy's right to receive a negotiable certificate of deposit in the amount of $150,000 issued by defendant, Farmers Bank of the State of Delaware. The agreement recited that the instrument's maturity date was July 12, 1978, although, unknown to plaintiff, the certificate bore a maturity date of October 12, 1976.
4
At the time the agreement was executed, the certificate was in the possession of the Insurance Company of North America as collateral for a surety bond previously issued by INA on behalf of Candy. Plaintiff and Candy expected that the surety bond would be cancelled soon after the assignment thereby making the certificate of deposit available for the transfer. Those events came to pass and, on June 16, 1978, at Candy's direction the certificate was indorsed by INA as follows: "Full return of collateral in accord with assignment instructions, pay to the order of Yahn & McDonnell, Inc.; Insurance Company of North America; By: S/Walter G. Young; Walter G. Young; Secretary."
5
Plaintiff presented the certificate to Farmers Bank, which dishonored it on June 23, 1978, asserting payment had been made in 1976.
6
The pertinent history of the certificate of deposit in question, Number 4681, begins on July 12, 1976, when it was issued at the request of Candy for use as collateral. At the instruction of INA, the certificate was made "payable to the order of Insurance Company of North America for account of Delaware Candy and Tobacco Service." Interest was payable for 92 days after the issue date until maturity on October 12, 1976. The certificate recited that it was payable "only upon presentation and surrender of this certificate" and that "[n]either the deposit nor the interest may be withdrawn prior to maturity." The instrument was then delivered to INA and remained in its vault until transferred to plaintiff in June 1978.
7
Although certificate Number 4681 was payable only upon presentation and surrender, the bank purported to "rollover"2 the certificate by issuing a new one dated October 12, 1976. The new certificate, bearing Number 4718, was issued in the same amount and to the same payee as certificate Number 4681, and matured on November 11, 1976. This new certificate was apparently delivered to Candy but the first one remained in the possession of INA. Despite the fact that the payee on the new certificate was the same as that on the original, and that the original certificate remained in INA's vault, the bank on November 11, 1976 paid the second certificate by crediting Candy's account for $150,000, plus accrued interest. The bank was subsequently unable to offer an explanation for its action in paying Candy.
8
On cross-motions for summary judgment, the district court determined that the "rollover" in 1976 constituted a payment on the original certificate and the bank, therefore, would not be required to pay twice unless the plaintiff was a holder in due course. That status was denied because when plaintiff took possession in June 1978, it then acquired notice that the certificate was "overdue" because the instrument recited a maturity date of October 12, 1976. The court also held that for notice purposes the twenty-month interval between the rollover and transfer constituted "more than a reasonable time" after the maturity date. The plaintiff's contention that payment of the certificate by means of a rollover constituted a conversion under section 3-419(1) of the Uniform Commercial Code was rejected. Finally, the court concluded that plaintiff had no cause of action in negligence against the bank because if there were a duty of due care, it was owed only to the INA which had suffered no loss.
9
On appeal, plaintiff disputes each of the four conclusions reached by the district court.
I. HOLDER IN DUE COURSE STATUS3
10
The district court held that plaintiff was not a holder in due course because it took the instrument with notice that it was overdue.4 The court based its holding on two grounds. The first was that plaintiff came into possession of the certificate in June 1978, more than twenty months after the October 12, 1976 maturity date of the instrument. The court stated that in June 1978, plaintiff "had notice of the maturity date and had reason to know that [the certificate] was overdue."5 538 F.Supp. at 716.
11
In reaching its conclusion, the court held that a certificate of deposit is overdue once it matures. Such a characterization may be accurate as to some negotiable instruments, but the district court failed to consider whether there is a difference between certificates of deposit and other negotiable instruments. Such a distinction has been recognized, for example, in the application of the statute of limitations.
12
A long line of authority holds that for the purpose of determining when the limitations period begins to run, a certificate of deposit, in contrast to a simple promissory note, is not considered due until a demand for payment has been made. See, e.g., Whitlock v. Bank of Maryville, 612 S.W.2d 481 (Tenn.Ct.App.1980); In re Gardner's Estate, 228 Pa. 282, 77 A. 509 (1910) (cited with approval in Delaware Study Comment to Sec. 3-122); see generally Annot., 23 A.L.R. 7 (1923), supplemented by, Annot., 128 A.L.R. 157 (1940). Delaware law has adopted this position through section 3-122, which provides that a cause of action "against the obligor of a demand or time certificate of deposit accrues upon demand." (Emphasis added.)
13
The principle that a certificate of deposit is not due until demand has also been applied in cases involving holders in due course where the issue is whether the holder took a demand certificate without notice that it was overdue. See National Surety Co. v. Allen, 243 Mass. 218, 137 N.E. 533 (1922). In the case at hand, determination of whether the mere passage of the payable date of the certificate makes the instrument overdue requires examination of considerations overlooked by the trial court. The Delaware distinction between certificates of deposit and other negotiable instruments with respect to the statute of limitations is a significant factor which should be reviewed together with the commercial understanding on the use of time certificates of deposit. Entry of summary judgment based only on the payable date was error.
14
As the second basis for holding plaintiff had notice that the instrument was overdue, the district court reasoned that once the certificate matured, it became the equivalent of a demand instrument and thus subject to section 3-304(3)(c). That subsection provides that a purchaser has notice that an instrument is overdue "if he has reason to know ... that he is taking a demand instrument ... more than a reasonable length of time after its issue."
15
In determining as a matter of law that the twenty-month period here was unreasonable, the court relied upon the pre-Code case of Easley v. East Tennessee National Bank, 138 Tenn. 369, 198 S.W. 66 (1917), which held that negotiating a demand certificate of deposit more than a year after issuance constituted an unreasonable length of time.
16
The circumstances in Easley, however, must be taken into account. There, the certificate represented the savings of a decedent who apparently lost or mislaid the document. When the widow sought to recover the money from the bank, it declined to pay until she could furnish an indemnity bond, a condition she could not meet.6 The widow argued, and the court agreed, that if someone else had acquired the instrument, he could not be a holder in due course free of defenses because negotiation would not have occurred in a reasonable time after issue. The court's decision, therefore, was necessary to protect the bank so that the widow could recover the funds unquestionably due her.
17
The Tennessee court reasoned that the purpose of a time deposit "ordinarily is to procure interest on the money deposited." Since, by the terms of the instrument, interest stopped accruing twelve months after issuance, and since demand certificates are "[u]sually" renewed after the cessation of interest, the court concluded that one could not take the instrument after this period and still assert holder in due course status.
18
However, a more recent decision from Tennessee describes the difference between a certificate of deposit and a demand note, and recites purposes other than the earning of interest which induce bank deposits. The court in Whitlock v. Bank of Maryville, 612 S.W.2d 481 (Tenn.Ct.App.1980), recognized that a deposit is a transaction peculiar to the banking business and a certificate is distinct from a promissory note.
19
Bank deposits are not merely loans. "The primary purpose of a general deposit is to protect the fund, and some of the incidental purposes thereof are the convenience of checking and transacting large business interests without keeping and handling large sums of money." Id. at 484 (quoting Elliott v. Capital City State Bank, 128 Iowa 275, 103 N.W. 777, 778 (1905)); see also State v. Northwestern National Bank of Minneapolis, 219 Minn. 471, 18 N.W.2d 569, 579 (1945) ("Deposit is a transaction peculiar to the business of banking.... [B]ank is not required to hunt up depositor and pay him ... as an ordinary lender is bound to do with his creditor.").
20
The Code has also acknowledged the unique characteristics of certificates of deposit and has made special provisions for them. For example, in defining the accrual of a cause of action against the maker, the action on a demand note accrues "upon its date, or if no date is stated, on the date of issue," and "in the case of a time instrument on the day after maturity." Sec. 3-122(1). As noted previously, however, section 3-122(2) specifically singles out certificates of deposit and states that the cause of action "of a demand or time certificate of deposit accrues upon demand."
21
The Official Comment of this Code section explains the reason for the distinction. Unlike demand notes, which do not require presentment to charge the maker, banking custom and expectation is that "demand will be made before liability is incurred by the bank" on a certificate of deposit. An "additional reason [is] that such certificates are issued with the understanding that they will be held for a considerable time which in many instances exceeds the period of the statute of limitations." Unif. Commercial Code Sec. 3-122 Official Comment 1, 2 U.L.A. 120 (1977).
22
The Delaware Study Comment to section 3-122 adds that "[t]his rule recognizes that while certificates of deposit constitute negotiable instruments, depositors are nevertheless inclined to think of them merely as receipts for money deposited in a savings account." Cf. Sec. 8-305, Delaware Study Comment (1975) (corporate debentures and other investment securities, unlike drafts or checks, are not ordinarily intended for immediate liquidation).
23
In this case, no analysis of the circumstances surrounding the issuance and acquisition of the certificate was used to substantiate the conclusion that the time lapse was unreasonable as a matter of law. We conclude that the district court should have examined such circumstances as the nature of the instrument, trade usage and custom, the use of the certificate as collateral for an obligation of somewhat indefinite duration, statements made by Candy or INA to plaintiff about the certificate, the fact that the instrument bore interest only until October 1976, and INA's retention of the document as late as June 1978 with no apparent concern for whether interest accrued. See Jennings v. Imperial Bank, 87 Cal.App.3d 896, 152 Cal.Rptr. 15 (1978) ("maturity" of certificate of deposit relates only to the question of interest); Easley, 138 Tenn. at 371, 198 S.W. at 67; Secs. 1-204(2), 3-503(2); Annot., 10 A.L.R.3d 1199 (1966); see also National Mechanics Bank v. Schmelz National Bank, 136 Va. 33, 116 S.E. 380, 382 (1923) (certified check held pending performance of contract and negotiated immediately after performance was not negotiated an unreasonable length of time after issue).
24
To the extent that the record does not contain adequate evidence to properly evaluate these factors, supplementation may be necessary. This is particularly true of trade usage and custom with respect to certificates of deposit since the Code's specific reference to certificates is limited.
25
Section 3-304(3)(c), applicable to demand instruments, provides that a purchaser has notice that a demand instrument is overdue if he has reason to know that he is taking it more than a reasonable length of time after its issue. Because this provision is limited to demand instruments, it does not by its terms apply to the case at bar. However, since a time certificate of deposit may not be overdue in the absence of a demand, the rationale behind the "reasonable length of time" provision in section 3-304(3)(c) would apply to such a certificate of deposit.
26
Although correctly recognizing that the reasonable period of time question was a relevant issue, the district court erred in determining that point as a matter of law. Only after development and consideration of all the factors noted above and others which might be relevant, can it be determined whether an unreasonable time had elapsed. In the circumstances of this case, the issue was a disputed factual one which could not be resolved on summary judgment. On the record presented here it cannot be said whether twenty months was an unreasonable time. Resolution of the issue must await further proceedings in the district court. We intimate no view as to what conclusion the district court should reach.
27
If it is determined that plaintiff was a holder in due course, then even if defendant bank is able to establish payment as a defense, it would not foreclose recovery by plaintiff. Sec. 3-305.7
II. PAYMENT
28
Depending upon the outcome of the factual inquiry into the holder in due course issue, the question of payment may become relevant. We therefore turn to that matter.
29
As a general principle, payment by the bank to the named payee in accordance with the certificate's terms would discharge the obligation and the underlying transaction. Secs. 3-601, 3-603, 3-802; J. White & R. Summers, Uniform Commercial Code 535-38, 540-44 (2d ed. 1980). Here, however, there were two terms of the instrument which the bank did not observe. First, the certificate was payable to "the Insurance Company of North America for the account of Delaware Candy and Tobacco Service." The bank did not pay INA but Candy. Second, the certificate required that it be paid after maturity "only upon presentation and surrender of the certificate." That also was not done. The bank rolled over the original certificate without receiving that document, an action that defendant's witnesses conceded was contrary to good banking practice.
A.
30
The bank contends that the payable language of the certificate of deposit should be construed as naming Candy payee and thus payment to it was proper. In support of this proposition, the bank points to section 3-117(a) which provides that "[a]n instrument made payable to a named person with the addition of words describing him ... as agent or officer of a specified person is payable to his principal but the agent or officer may act as if he were the holder." As explained by the Official Comment, an instrument payable to "John Doe, agent of Richard Roe" is "payable to the principal and ... the agent or officer is named as payee only for convenience in enabling him to cash the check." Unif. Commercial Code Sec. 3-117 Official Comment 1, 2 U.L.A. 98 (1977). The bank's position is that the payable clause describes INA as an agent of Candy.
31
The bank relies on Fireman's Fund Insurance Co. v. Security Pacific National Bank, 85 Cal.App.3d 797, 149 Cal.Rptr. 883 (1978). In that case a check was drawn to the order of "Security Pacific National Bank A/C No. 260 049 569 G.C. Associates," the account being one at Security by that name and number. The court stated that the "G.C. Associates" language was "not added for the purpose of merely describing Security, but rather for the purpose of making the instrument payable to the specific account of G.C. Associates, the principal." 85 Cal.App.3d at 818, 149 Cal.Rptr. at 897. The court also viewed its interpretation of the payee language and section 3-117 as consistent with Code section 4-201, which provides that a bank serves as an agent for the owner of an instrument during the collection process. Id. at 818 n. 24, 149 Cal.Rptr. 897 n. 24.
32
We do not find Fireman's Fund persuasive in the context of this case. A surety such as INA does not stand in the same relationship to a designated account as does a bank. The nature of the transaction here--posting of collateral--is inconsistent with the theory that INA would act as an agent for Candy, the debtor, with respect to disposition of collateral during the life of the bond. Their interests in this relationship were not congruent. Obviously, the bonding company wished to keep the collateral for its own protection--and not to serve Candy's interests.
33
Moreover, the wording of section 3-117(a) makes clear its inapplicability to the case at hand. INA was not an agent or officer of Candy, nor was it identified as such. As noted, the nature of the transaction belies an agency concept and the bank was aware of the relationship between Candy and INA.8 We find no merit in the bank's argument that Candy was the designated payee of the certificate of deposit. See Swiss Baco Skyline Logging, Inc. v. Haliewicz, 18 Wash.App. 21, 567 P.2d 1141, 1147 (1977) (in phrase payable to "Emil Haliewicz, Swiss Baco Skyline Logging, Inc.", comma creates ambiguity, but intent of parties indicates payable to Haliewicz.); West Penn Administration, Inc. v. Union National Bank, 233 Pa.Super. 311, 335 A.2d 725 (1975) (payee designation "Pittsburgh National Bank Carpenters Construction Account" makes the bank payee; court looks to language of related agreement); cf. Sec. 3-117, Delaware Study Comment (c) (independent notice of facts).9
B.
34
Section 3-603 provides that payment to a holder discharges the liability of a party. Under the Code, a holder is defined as "a person ... in possession ... of an instrument ... issued or indorsed to him or to his order." Sec. 1-201(20). But Candy was not a holder of the certificate since it did not have possession, and the certificate was neither issued nor indorsed to it. It follows, therefore, that at the time of the rollover in 1976, payment was made to an entity not authorized to receive the funds. This action constituted a violation of the bank's commitment to pay only upon tender of the certificate.
35
At the time the rollover took place, INA would have had an unquestioned right to the funds if resort to collateral was necessary and the defense of payment would have had no validity. Indeed, as the district court noted, the bank could properly have refused a request by Candy in 1976 to roll over the certificate since INA was the proper recipient of the funds at that time. 538 F.Supp. at 715.
36
Instead of looking to the situation as it existed in the fall of 1976, however, the district court shifted its scrutiny to June 1978. At that time, argues the bank, the surety bond had been released. Therefore INA no longer had any claim against the certificate held as collateral and its ownership shifted to Candy. It was Candy, the bank contends, which in effect assigned the certificate to plaintiff. The court accepted the argument that when the certificate came under Candy's control after its account had been credited twenty months earlier, the instrument became subject to the defense of payment and with that encumbrance came into plaintiff's possession.
37
The bank's contention is that even if it is held that there was no payment in 1976, that erroneous and ineffective action became payment in 1978 when the instrument became subject to Candy's direction. Restated, what was not a payment on the instrument in 1976, when the rollover occurred, became one in 1978 when the certificate was transferred by INA to plaintiff at Candy's request.
38
This argument fails to separate the events of 1976 and 1978 and improperly treats them as one. Moreover, it ignores the fact that Candy never was a holder of the certificate which INA ultimately indorsed, not to Candy but to plaintiff. In addition, the right to return of the collateral, or such part of its proceeds that were not utilized for reimbursement of the surety's outlays under the bond, flowed from INA's contractual obligation to Candy; Candy's rights in this respect did not come from the bank. Given these factors, the district court erred in concluding that the bank's actions constituted payment on the certificate.10
39
Although we have concluded that there was no payment on the instrument under section 3-603, that does not preclude liability of Candy to reimburse the bank for the funds given in error. However, while the defense of payment on the instrument is not available against the plaintiff, if it is not a holder in due course then it took the certificate subject to defenses available in an action on a simple contract. Section 3-306, see section 3-601(2). The availability of section 3-306 claims and defenses may allow the district court to go beyond the narrow transfer of the certificate itself and explore the whole of the transactions among the parties.
40
The district court and the parties understandably have not yet found it necessary to resolve a number of factual and procedural matters with respect to the bank's claim for reimbursement and whether it constitutes a defense against plaintiff under section 3-306. See Morris, The Use of Set-Off, Counterclaim and Recoupment: Availability Against Commercial Paper, 62 W.Va.L.Rev. 141 (1960); Note, Prior Party Set-Off as a Defense Under U.C.C. Section 3-306(b), 1981 U.Ill.L.Rev. 869 (1981). Moreover, there are intimations in the briefs that the bank believes the transactions between Candy and the plaintiff were tainted with collusion.11
41
We are not inclined to give opinions on a number of potential results on a record which is not complete and one which counsel have not prepared in anticipation of this precise problem. We conclude that the bank's claim for reimbursement is not ripe for appellate review. We prefer to address the issue of the bank's rights if the plaintiff is found to be a mere holder, if and when, that matter comes to us after full development in the district court.
42
Defendant, relying on Rozen v. North Carolina National Bank, 588 F.2d 83 (4th Cir.1978), asserts that INA was obligated to return the collateral and therefore the plaintiff's assignor was Candy not INA. Therefore, contends defendant, plaintiff took only such limited rights as Candy held and, without its indorsement, could not become a holder. But here plaintiff possessed a negotiable instrument indorsed to it by the named payee, and Candy's "assignment" occurred before the termination of INA's rights as a pledgee. Those circumstances are quite different from those in Rozen where the certificate was not payable to the transferor and had been dishonored to Rozen's knowledge before he received it. Moreover, in Rozen there was a jury finding on the disputed issue of the identity of the responsible assignor.
43
Rozen was concerned primarily with whether the plaintiff could claim holder in due course status through the shelter principle, an issue not present in this appeal, see n. 7, supra. We do not find Rozen controlling on the questions of whether plaintiff can claim holder in due course status independent of INA's status, and whether the plaintiff is subject to claims and defenses of the bank and others.
III. CONVERSION
44
Under section 3-419(1)(c) payment on a forged endorsement constitutes conversion. Plaintiff contends that when the bank issued the rollover certificate, it did so on the basis of an "unauthorized endorsement," which it argues is the equivalent of paying on a forgery. The district court rejected that contention because the only entity which could have been harmed at the time of the alleged conversion was INA. Since INA had no loss which required resort to the collateral, the court concluded there was no claim for a conversion.
45
We agree that there is no claim for conversion but on a different basis than that adopted by the district court. In our view, plaintiff as an owner of the instrument would have standing to sue on a conversion count. However, the bank did not obtain possession of the certificate before crediting funds to Candy. Hence, there never was an unauthorized or forged endorsement to the certificate and, consequently, section 3-419 does not apply.
IV. NEGLIGENCE
46
As an alternative claim for recovery, plaintiff asserts that the bank was negligent in paying Candy without requiring the surrender of the certificate of deposit. As a result, the negotiable instrument was permitted to float in the stream of commerce causing injury to the plaintiff. The bank contends that the only party to whom it may have owed a duty was INA. Since INA made no claim against the collateral and plaintiff received the certificate from INA, defendant asserts that plaintiff cannot demonstrate a cognizable loss. The bank also contends that its action was not the proximate cause of plaintiff's loss, but that misleading information about the maturity date supplied by INA and Candy's activity caused the harm to plaintiff.
47
Defendant's final argument is that the Code displaces an action based on common law negligence. We turn to that issue first. In New Jersey Bank v. Bradford Securities Operations, Inc., 690 F.2d 339 (3d Cir.1982), a case arising under Article 8, Judge Becker's opinion for the court addressed the status of parallel common law remedies for violations redressable under the Code. He concluded that where the Code provides a comprehensive remedy for parties to a transaction, a common law action is barred. 690 F.2d at 345-46. See also Secs. 1-102(1)-(2), 1-103. But a remedy in tort will be recognized where the Code's policy is furthered by "placing the risk of loss on the party most able to minimize that risk." 690 F.2d at 347.
48
The circumstances of the case at hand fit within the latter category. The bank was in a position to prevent the loss by insisting upon surrender of the certificate. See Sec. 3-505; 5B Michie on Banks and Banking, Sec. 326a at 257-58 (1973) (generally held that bank cannot be compelled to pay a certificate of deposit without its production and surrender; otherwise bank acts at its peril). It was foreseeable that its unexplained conduct in permitting this negotiable instrument to remain at large could cause loss to innocent parties who subsequently acquired it. Moreover, since an action in negligence is separate and distinct from any claim based on the instrument or the underlying contract, we do not believe that the allocation of rights created by the holder in due course doctrine presents such a comprehensive remedial scheme as to supplant a negligence action. New Jersey Bank, 690 F.2d at 346-47. Accordingly, we find that the Code does not bar a claim based on a theory of negligence.
49
We cannot say on this record that plaintiff has no standing to recover on a negligence claim against the bank. The fact that the bank might not have foreseen the precise entity that would sustain injury does not foreclose liability. The trial court erred in limiting the bank's duty to INA. See Delmarva Power & Light Co. v. Burrows, 435 A.2d 716, 718 (Del.1981) ("one's duty encompasses protecting against reasonably foreseeable events.").
50
Finally, whether the bank's conduct was the proximate cause of injury is a question to be determined by the fact finder. Whether plaintiff changed its position in reliance upon the erroneous information furnished by INA remains to be developed in the record. But even if that information caused plaintiff to continue its business dealings with Candy, that would not necessarily foreclose any liability of the bank for setting the chain of events in motion.
51
Accordingly, the summary judgment in favor of defendant will be vacated and the case remanded to the district court for further proceedings consistent with this opinion.
1
The district court's opinion is published at 538 F.Supp. 712 (D.Del.1982)
2
"Rollover" is a standard banking practice through which a new certificate of deposit is purchased with the proceeds of a mature, existing certificate. The new certificate is generally considered to be payment of the old one
The same terminology is applied to a non-negotiable certificate but it should be observed that this opinion addresses only a negotiable certificate of deposit and not the non-negotiable ones often issued by banks.
3
Delaware has adopted the Uniform Commercial Code, Del.Code Ann. tit. 6, subtitle I. It was applied by the district court and relied upon by the parties before us. We will refer hereafter to the Delaware provisions only by section numbers
Throughout this opinion, we cite as authority a number of cases which predate the Code. Such citations are used, however, only when the Code cannot be viewed as supplanting the holding or rationale of those decisions.
4
Section 3-302(1) defines a holder in due course "as a holder who takes the instrument (a) for value; and (b) in good faith; and (c) without notice that it is overdue...." There is no contention on this appeal that plaintiff fails to meet requirements (a) and (b). However, it should be understood that our discussion of whether plaintiff is a holder in due course is limited to the facts which we recite and the facts and issues upon which the district court based its summary judgment
5
A person has notice of a fact when "from all the facts and circumstances known to him at the time in question he has reason to know that it exists." Sec. 1-201(25)(c)
6
The problem faced by the Easley court is now covered by Section 3-804 of the U.C.C. which provides a method for recovery when an instrument is lost. The form and extent of indemnification is generally a matter for the court's discretion
7
The trial court also found that plaintiff could not gain holder in due course status through the shelter principle of Sec. 3-201 because INA's rights in the instrument "were extinguished when the principal obligation which the certificate of deposit secured (the surety bond) was discharged." 538 F.Supp. at 716-17. According to the plaintiff's reply brief, [i]t does not seek to recover through the Shelter Principle," Reply Brief at 12, and accordingly we need not address that issue
8
In his deposition, John C. Poplos, a bank official, testified that in October 1976 there was information in the bank's file that the certificate was being used as collateral for the INA bond
9
Judge Sloviter does not join the majority in Part II A of the opinion. She does join in the Part II B finding that payment to an entity not the holder does not constitute payment on the instrument
10
As an alternative argument that payment was not made on the instrument, plaintiff contends that Sec. 3-603 imposes a standard of care on Farmers to follow reasonable commercial practices in making payment on a negotiable certificate of deposit. It asserts that "unless Farmers is able to establish that it followed reasonable banking practice, its defense of payment is defeated." Appellant's Brief at 25. Since we have decided that payment was not made to a holder, we need not address this additional ground put forth by plaintiff
11
We note for example that the bank's brief refers to its third party claims for unjust enrichment against Candy and several joint venturers as a result of having received funds for the certificate. The bank also alleges that plaintiff purchased Candy for a nominal sum and used the assets to satisfy the obligations for which the certificate in question was given as collateral. Appellee's Brief at 4. None of these points have as yet been addressed by the district court. See also n. 4, supra
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4676
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN BRYAN WIGGINS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:17-cr-00053-CCE-4)
Submitted: April 17, 2018 Decided: April 19, 2018
Before WILKINSON and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
James E. Quander, Jr., QUANDER & RUBAIN, P.A., Winston-Salem, North Carolina,
for Appellant. Terry Michael Meinecke, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Bryan Wiggins appeals his conviction and 151-month sentence imposed
following his guilty plea to conspiracy to distribute methamphetamine, in violation of 21
U.S.C. § 846 (2012). On appeal, counsel for Wiggins filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no meritorious issues for appeal
but questioning the validity of Wiggins’ guilty plea and the reasonableness of his
sentence. Wiggins did not file a pro se supplemental brief, and the Government elected
not to respond to the Anders brief. Finding no reversible error, we affirm.
Before accepting a guilty plea, the district court must conduct a colloquy in which
it informs the defendant of, and determines that he understands, the nature of the charges
to which he is pleading guilty, any mandatory minimum penalty, the maximum penalty
he faces, and the rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The court also must ensure
that the defendant’s plea is voluntary and supported by an independent factual basis. Fed.
R. Crim. P. 11(b)(2), (3). Because Wiggins did not move to withdraw his guilty plea or
otherwise preserve any error in the plea proceedings, we review the adequacy of the plea
colloquy for plain error. United States v. Massenburg, 564 F.3d 337, 342 (4th Cir. 2009).
Our review of the Rule 11 hearing confirms that Wiggins’ plea was knowing, voluntary,
and supported by an independent basis in fact, and that the district court therefore
committed no error in accepting Wiggins’ valid guilty plea.
We review a sentence for reasonableness, applying a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51-52 (2007). We “must first
2
ensure that the district court committed no significant procedural error,” such as
improperly calculating the Sentencing Guidelines range, failing to consider the 18 U.S.C.
§ 3553(a) (2012) sentencing factors, or inadequately explaining the sentence imposed.
Gall, 552 U.S. at 51-52. If we find no procedural error, we examine the substantive
reasonableness of a sentence under “the totality of the circumstances.” Id. at 51. The
sentence imposed must be “sufficient, but not greater than necessary,” to satisfy the goals
of sentencing. 18 U.S.C. § 3553(a). We presume on appeal that a within-Guidelines
sentence is substantively reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th
Cir. 2014). The defendant can rebut that presumption only “by showing that the sentence
is unreasonable when measured against the . . . § 3553(a) factors.” Id.
We discern no procedural or substantive sentencing error by the district court,
which correctly calculated Wiggins’ offense level, criminal history, and advisory
Guidelines range. The court also addressed Wiggins’ arguments for a below-Guidelines
sentence and amply explained its decision to impose a sentence at the low end of
Wiggins’ Guidelines range. Furthermore, nothing in the record rebuts the presumption
that Wiggins’ sentence is substantively reasonable.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm the district court’s
judgment. This court requires that counsel inform Wiggins, in writing, of the right to
petition the Supreme Court of the United States for further review. If Wiggins requests
that a petition be filed, but counsel believes that such a petition would be frivolous, then
3
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Wiggins.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
4
|
T.C. Summary Opinion 2012-108
UNITED STATES TAX COURT
SCOTT V. WHITE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12697-12S. Filed October 31, 2012.
Scott V. White, pro se.
Peter T. McCary, for respondent.
SUMMARY OPINION
DEAN, Special Trial Judge: This case was heard pursuant to the provisions
of section 7463 of the Internal Revenue Code in effect when the petition was filed.
Pursuant to section 7463(b), the decision to be entered is not reviewable by any
other court, and this opinion shall not be treated as precedent for any other case.
-2-
Unless otherwise indicated, subsequent section references are to the Internal
Revenue Code in effect for the years in issue, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
Respondent determined that petitioner is liable for a deficiency of $577 for
the taxable year 2008. Petitioner concedes that he received and failed to report
interest income of $5, taxable dividends of $4, and a State income tax refund of
$740. The issue remaining for decision is whether petitioner received in 2008 a
constructive distribution of $3,089.92 from an insurance contract with
Massachusetts Mutual Life Insurance Co. (Mass Mutual).
Background
This case was submitted fully stipulated under Rule 122, and all the stipulated
facts are so found. The stipulation of facts and the attached exhibits are
incorporated herein by reference. Petitioner resided in Georgia when he filed his
petition.
On or about December 25, 1992, petitioner purchased a life insurance policy
from Mass Mutual through his employer. Petitioner stated that he paid the
insurance premiums through payroll deductions for “about three years, and when I
switched employers, I ceased to pay on the life insurance policy with Mass Mutual.”
-3-
Mass Mutual issued to petitioner for 2008 a Form 1099-R, Distributions
From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance
Contracts, etc., showing a gross distribution of $25,167.01 and a taxable amount of
$3,089.92. There is a “7” in box 7, Distribution code(s), of the Form 1099-R.
Petitioner wrote to Mass Mutual and requested a “letter/statement” explaining
the $3,089.92 and the code 7 on the Form 1099-R. Mass Mutual explained in its
response that petitioner’s life insurance policy lapsed on September 25, 2008, with
an outstanding loan. According to Mass Mutual, petitioner’s “net cost basis” was
$22,077.09 and his “Loan and Loan Interest Amount” was $25,167.01, leaving a
“Taxable Gain” of $3,089.92. Mass Mutual further stated that the distribution code
7 in box 7 indicated that his distribution was a “normal distribution” and that it was
not subject to early withdrawal penalties.
Mass Mutual also sent petitioner a second letter explaining his insurance
policy provisions. In that second letter Mass Mutual advised petitioner that his
policy was issued with an automatic premium loan provision. Under this
provision, according to Mass Mutual, if any premium payment is not made by the
end of the grace period, the amount due will automatically become a loan against
the cash value of the policy, provided there is sufficient value in the policy. Mass
-4-
Mutual advised that interest accrues on the loans and, if not paid when due, is added
to the loan balance. The letter further informed petitioner that when his policy no
longer had enough value to support a loan to cover the premium obligation, the
policy lapsed with a loan outstanding, creating taxable income to him that Mass
Mutual was required to report to the Internal Revenue Service.
Discussion
Generally, the Commissioner’s determinations are presumed correct, and the
taxpayer bears the burden of proving that those determinations are erroneous. Rule
142(a); see INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992); Welch v.
Helvering, 290 U.S. 111, 115 (1933).1 Furthermore, although facts may be
established by stipulation, a stipulation of facts does not relieve the party bearing the
burden of proof from producing evidence in support of factual findings that have not
been adequately established by the stipulation. Rule 149(b).
Under section 6201(d), however, the burden of production may shift to the
Commissioner where an information return, such as a Form 1099-MISC,
1
In some cases the burden of proof with respect to relevant factual issues may
shift to the Commissioner under sec. 7491(a). Petitioner did not argue or present
evidence to show that he satisfied the requirements of sec. 7491(a). Therefore,
petitioner bears the burden of proof with respect to the issues raised by the notice of
deficiency.
-5-
Miscellaneous Income, serves as the basis for a deficiency determination. If a
taxpayer asserts a “reasonable dispute” with respect to any item of income reported
on a third-party information return and has fully cooperated with the Commissioner,
the Commissioner will have the burden of producing reasonable and probative
information concerning the item of income in addition to the information return. Id.
The taxpayer must provide timely access to witnesses, information, and documents
within the control of the taxpayer. Id. Assuming that petitioner has raised a
reasonable dispute with respect to the Form 1099-R at issue and has fully
cooperated with respondent, respondent’s burden of production has been met by the
stipulated letters from Mass Mutual. See Kleber v. Commissioner, T.C. Memo.
2011-233.
Petitioner argues that he never received any money from Mass Mutual and he
does not understand how he could owe tax on money he has not received. The
record does not contain a copy of the insurance policy, nor does it reflect an
accounting of payments, loans, interest, or dividends.
An amount received in connection with a life insurance contract that is not
received as an annuity generally constitutes gross income to the extent that the
-6-
amount received exceeds the investment in the insurance contract.2 Sec.
72(e)(1)(A), (5)(A), (C). When petitioner’s policy with Mass Mutual lapsed, Mass
Mutual applied the policy’s cash value to the outstanding balance on the policy
loans that were made to satisfy premium obligations. That action was the economic
equivalent of Mass Mutual’s paying petitioner the policy proceeds, including
untaxed “inside buildup”,3 and his using those proceeds to pay off his policy loans.
This constructive distribution is gross income to petitioner insofar as it exceeds his
investment in the contract. See Sanders v. Commissioner, T.C. Memo. 2010-279;
McGowen v. Commissioner, T.C. Memo. 2009-285, aff’d, 438 Fed. Appx. 686
(10th Cir. 2011); Atwood v. Commissioner, T.C. Memo. 1999-61. The evidence
indicates that petitioner's investment in the contract was, as Mass Mutual reported,
2
The investment in the contract is defined generally as the aggregate amount
of premiums or other consideration paid for the contract, less aggregate amounts
previously received under the contract, to the extent they were excludable from
gross income. Sec. 72(e)(6).
3
Inside buildup is undistributed investment income earned on premiums
credited under a contract that satisfies a statutory definition of life insurance that is
not subject to current taxation to the owner of the contract. See Brown v.
Commissioner, T.C. Memo. 2011-83, slip op. at 12 n.6, aff’d, 693 F.3d 765 (7th
Cir. 2012).
-7-
$22,077.09. Consequently, as respondent determined, $3,089.92 of the $25,167.01
constructive distribution is taxable income to petitioner.4
To reflect the foregoing,
Decision will be entered
for respondent.
4
When the policy was terminated, its cash value was less than the balance of
petitioner’s policy loans. As it was not raised by the parties, the Court does not
consider the issue as to whether the gross income that petitioner realized upon the
termination of the policy should be characterized as income from discharge of
indebtedness. It does not appear that such a characterization would affect
petitioner’s tax liability.
|
[Cite as State v. Wharton, 2015-Ohio-4566.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27656
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JAMES M. WHARTON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2005 08 2925
DECISION AND JOURNAL ENTRY
Dated: November 4, 2015
WHITMORE, Judge.
{¶1} Defendant-Appellant, James Wharton, now appeals from the judgment of the
Summit County Court of Common Pleas, denying his petition to vacate his judgment of
conviction. This Court affirms.
I
{¶2} In 2005, a grand jury indicted Wharton on one count each of murder, felony
murder, and felonious assault, which also served as the predicate offense for his felony murder
charge. The court later dismissed the murder count, and the remaining two counts were
submitted to a jury. The jury found Wharton guilty of felonious assault, but hung on his felony
murder count. Consequently, the court delayed Wharton’s sentencing on the felonious assault
count and set the matter for retrial on the felony murder count.
{¶3} A second jury found Wharton guilty of felony murder. The court then sentenced
him on both of his counts and ordered the sentences to run concurrently for a total sentence of 15
2
years to life in prison. Wharton obtained new counsel and filed a direct appeal. In 2007, this
Court affirmed his convictions. See State v. Wharton, 9th Dist. Summit No. 23300, 2007-Ohio-
1817.
{¶4} In 2010, Wharton again obtained new counsel and filed a motion for resentencing.
He argued that he was entitled to a resentencing because the trial court had failed to properly
impose post-release control upon him. The State conceded the error, and the trial court held a de
novo sentencing hearing. The court imposed the same prison terms upon Wharton that it had
previously imposed, but also determined for the first time that Wharton’s offenses were allied
offenses of similar import. As such, it merged Wharton’s felonious assault count with his felony
murder count. It did not, however, include any reference to post-release control in its sentencing
entry, and Wharton once again appealed. See State v. Wharton, 9th Dist. Summit No. 25662,
2011-Ohio-6601.
{¶5} On appeal, Wharton raised two double jeopardy arguments and asked this Court
to vacate his felony murder conviction. We determined that Wharton’s arguments were barred
by res judicata because, “[s]ubject to post-conviction remedies that may be available, it is long-
standing precedent in Ohio that res judicata bars the consideration of issues that were raised or
could have been raised on direct appeal.” Id. at ¶ 10. We also determined, however, that the trial
court exceeded its sentencing authority when it addressed sentencing matters that did not relate
to post-release control. Id. at ¶ 9. We noted that Wharton’s original sentencing entry remained
valid and was only void in part due to the post-release control error that it contained. Id.
Consequently, we vacated the court’s new sentencing entry and remanded the matter for
resentencing, strictly with regard to the matter of post-release control. Id.
3
{¶6} Almost three years after this Court’s remand, Wharton once again obtained new
counsel and filed a petition to vacate his judgment and sentence. In his petition, he asserted that
his double jeopardy rights were violated when he was tried on his felony murder charge for a
second time. Wharton acknowledged that he had not filed his petition for several years, but
argued that he was unavoidably prevented from filing a timely petition due to his former
counsels’ ineffectiveness. The State responded and asked the trial court to reject Wharton’s
petition on the basis of either untimeliness or res judicata. The trial court agreed with the State’s
position and denied Wharton’s petition on both bases.
{¶7} Wharton now appeals from the trial court’s judgment and raises two assignments
of error for our review. For ease of analysis, we consolidate the assignments of error.
II
Assignment of Error Number One
THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO
THE CONSTITUTION OF THE UNITED STATES PROHIBITS THE
SUCCESSIVE PROSECUTION OF APPELLANT FOR THE OFFENSE OF
MURDER, IN VIOLATION OF R.C. 2903.02(B), SUBSEQUENT TO A
CONVICTION FOR THE OFFENSE OF FELONIOUS ASSAULT, IN
VIOLATION OF R.C. 2903.11(A)(1).
Assignment of Error Number Two
A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, ASSERTING
TRIAL COUNSEL AND APPELLATE COUNSELS’ FAILURE TO ASSERT
THE CONSTITUTIONAL DEFENSE OF DOUBLE JEOPARDY, IS NOT
WAIVED WHEN THE DEFENDANT/APPELLANT JUSTIFIABLY RELIED
UPON THE LEGAL QUALIFICATIONS OF HIS ATTORNEYS.
{¶8} In his first assignment of error, Wharton argues that his double jeopardy rights
were violated when he was prosecuted a second time for felony murder. In his second
assignment of error, he argues that he received ineffective assistance of counsel because none of
4
his former attorneys raised a double jeopardy argument via either direct appeal or in a more
timely-filed petition for post-conviction relief.
{¶9} “Generally, this Court reviews a trial court’s denial of a [post-conviction relief]
petition for an abuse of discretion.” State v. Perry, 9th Dist. Summit No. 26766, 2013-Ohio-
4466, ¶ 7. “When a trial court denies a petition solely on the basis of an issue of law, however,
this Court’s review is de novo.” State v. Childs, 9th Dist. Summit No. 25448, 2011-Ohio-913, ¶
9. Because the trial court here denied Wharton’s petition on the bases of timeliness and res
judicata, we review this matter de novo. See id. See also State v. Prade, 9th Dist. Summit No.
26775, 2014-Ohio-1035, ¶ 18.
{¶10} “[P]ost-conviction relief is a civil, statutory remedy whose procedures are
governed by R.C. 2953.21.” State v. Ross, 9th Dist. Summit No. 27180, 2014-Ohio-2038, ¶ 13.
At the time Wharton filed his petition, that statute provided that a petition for post-conviction
relief had to be filed “no later than one hundred eighty days after the date on which the trial
transcript is filed in the court of appeals in the direct appeal of the judgment of conviction.”
Former R.C. 2953.21(A)(2).
A trial court may not entertain an untimely petition for post-conviction relief
unless the petitioner shows that: (1) either he or she “was unavoidably prevented
from discovery of the facts upon which the petitioner must rely to present the
claim for relief, or, [after the filing deadline], the United States Supreme Court
recognized a new federal or state right that applies retroactively to persons in the
petitioner’s situation, and the petition asserts a claim based on that right”; and (2)
the petitioner shows, by clear and convincing evidence, that, but for the
constitutional error at trial, no reasonable fact-finder would have found the
petitioner guilty.
State v. Hach, 9th Dist. Summit No. 27102, 2014-Ohio-682, ¶ 7, quoting R.C. 2953.23(A)(1)(a)-
(b). Moreover, “[a] petition for post-conviction relief may be dismissed without a hearing, based
upon the doctrine of res judicata, when the petitioner could have raised the issues in his petition
5
at trial or on direct appeal without referring to evidence outside the scope of the record.” State v.
Houser, 9th Dist. Summit No. 21555, 2003-Ohio-6811, ¶ 21.
{¶11} Wharton filed his petition for post-conviction relief more than eight years after his
trial transcripts were filed in this Court. As such, he filed his petition well past the 180-day time
limit contained in Former R.C. 2953.21(A)(2). Wharton did not premise any portion of his
petition upon any new federal or state right. See R.C. 2953.23(A)(1)(a). Accordingly, the trial
court could not consider his petition unless he demonstrated that he was unavoidably prevented
from discovering the facts upon which he based his claim for relief. See id. The record reflects
that he failed to do so.
{¶12} Wharton argued to the trial court that it should entertain his untimely petition
because he had justifiably relied upon his former attorneys to identify his double jeopardy
argument and to advance it in a timely manner. Yet, the post-conviction relief statute requires a
defendant to have been unavoidably prevented from discovering facts that may create a claim for
relief. See R.C. 2953.23(A)(1)(a). It does not afford a defendant a second chance to advance a
legal argument that could have been raised upon the original trial record. See Houser at ¶ 21-22.
See also State v. Jackson, 9th Dist. Summit No. 18208, 1997 WL 576380, *3 (Sept. 10, 1997)
(post-conviction relief is not meant to provide a “second bite of the apple”). At the time of
Wharton’s direct appeal, it was clear that his felony murder conviction stemmed from a second
prosecution. It was also clear that his trial counsel did not raise a double jeopardy argument at
the time of his second trial. Wharton was not unavoidably prevented from discovering either
fact. Accordingly, the court did not err by concluding that his petition was untimely.
{¶13} Moreover, the trial court did not err by concluding that Wharton’s arguments
were barred by res judicata. See State v. Jones, 9th Dist. Summit No. 27294, 2014-Ohio-5784, ¶
6
12; State v. Bryant, 9th Dist. Summit No. 26774, 2013-Ohio-4996, ¶ 7. Wharton could have
asserted either his double jeopardy argument or his ineffective assistance argument on direct
appeal, as both were predicated upon facts that were evident on the face of the record. See State
v. Cleveland, 9th Dist. Lorain No. 08CA009406, 2009-Ohio-397, ¶ 46, quoting State v. Walker,
8th Dist. Cuyahoga No. 74773, 2000 WL 868503, *6 (June 20, 2000) (“Claims of ineffective
assistance of counsel on appeal, like most other claims in litigation, must be raised at the earliest
opportunity to do so.”); State v. Blankenship, 9th Dist. Wayne No. 2182, 1987 WL 5443, *2 (Jan.
14, 1987) (double jeopardy claim barred by res judicata where it could have been raised on direct
appeal). As such, the trial court did not err by denying his petition for post-conviction relief.
Wharton’s assignments of error are overruled.
III
{¶14} Wharton’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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
7
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 to Appellant.
BETH WHITMORE
FOR THE COURT
HENSAL, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
JAMES L. BURDON, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
|
7 So.3d 1100 (2009)
CURRY
v.
STATE.
No. 1D07-6452.
District Court of Appeal of Florida, First District.
May 6, 2009.
Decision without published opinion. Affirmed.
|
24 F.3d 251NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
William Scott SMITH, Petitioner-Appellant,v.Manfred MAASS, Superintendent, Oregon State Penitentiary,Respondent-Appellee.
No. 93-35217.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 7, 1994.Decided April 29, 1994.
1
Before: POOLE and TROTT, Circuit Judges, and KING,* District Judge.
2
MEMORANDUM**
3
William Scott Smith, an Oregon state prisoner, appeals the district court's denial of his 28 U.S.C. Sec. 2254 habeas corpus petition. We affirm.
4
* Smith contends that the trial court should have suppressed his un-Mirandized confession to his father, mother, and fiancee.1
5
Miranda warnings were not required because Smith's conversations with his family were not "custodial interrogations." See Illinois v. Perkins, 496 U.S. 292, 297 (1990); Alexander v. Connecticut, 917 F.2d 747, 750-51 (2d Cir.1990), cert. denied, 111 S.Ct. 2831 (1991); cf. United States v. Eide, 875 F.2d 1429, 1433-34 (9th Cir.1989); Pace, 833 F.2d at 1313 & n. 14.
6
Moreover, Smith's relatives did not act as government agents. See United States v. Snowadzki, 723 F.2d 1427, 1429 (9th Cir.) (private citizen is government agent if (1) government knows of and acquiesces in the citizen's conduct, and (2) the citizen intended to assist law enforcement efforts rather than further his own ends), cert. denied, 469 U.S. 839 (1984). His mother had no contacts with the police before she visited Smith. The fiancee did not ask Smith about the murder; Smith volunteered his confession. The father encouraged Smith to confess, but he acted for personal reasons, not to assist the police.
II
7
Smith contends that the state trial court improperly admitted a confession he made on April 24 because the police elicited the confession after he invoked his right to counsel on April 23.
8
If a suspect invokes his fifth amendment right to counsel during a custodial interrogation, the police must cease questioning the suspect and cannot resume questioning unless the suspect (1) "himself initiates further communication, exchanges, or conversation with the police" and (2) knowingly, intelligently, and voluntarily waives the right to counsel that he previously invoked. Smith v. Illinois, 469 U.S. 91, 95 (1984) (per curiam); Edwards v. Arizona, 451 U.S. 477, 484-86 & n. 9 (1981); Collazo v. Estelle, 940 F.2d 411, 415 (9th Cir.1991) (en banc), cert. denied, 112 S.Ct. 870 (1992).
9
The April 23 interrogation lasted about an hour. The police never administered Miranda warnings. Smith told the police that he didn't want to talk and stated that "[i]f you are going to charge me, arrest me and then you can get me an attorney." The police continued to interrogate him, they talked about his need for professional help, he cried, he asked to return to his cell several times, an officer slapped the table and asked him to confess again, he asked again to return to his cell, and the police returned him to his cell. Smith did not make any incriminating statements.
10
On April 24, more than 24 hours after the April 23 interrogation, Smith's father and stepmother visited Smith and asked him if he were guilty and told him that if he were, he needed psychiatric help. He asked to see his fiancee and mother, who were scheduled to visit that day. Smith confessed first to his fiancee and then to his mother. During his conversation with his mother, his father came into the room and persuaded him to confess to the police. The father came out of the room and told the police that Smith wanted to confess if the Vancouver burglary charges were dropped. The charges were dropped, the police read Smith his Miranda rights, and Smith waived them and confessed. He admitted he confessed because his father thought he should.
11
Smith's April 23 statements to the police were an equivocal request for counsel. See United States v. De La Jara, 973 F.2d 746, 750 (9th Cir.1992); Grooms v. Keeney, 826 F.2d 883, 886-87 (9th Cir.1987) (equivocal request when suspect answered "I don't know" in response to the question whether he wanted to consult an attorney); United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir.1985) (equivocal request when suspect said he "might want to talk to a lawyer" and requested a phone call).
12
When a suspect makes an equivocal request for counsel, the police must cease questioning, except that they may clarify whether the suspect desires an attorney. Fouche, 776 F.2d at 1404. Interrogation may be resumed only if clarification reveals that the suspect does not want counsel. Id. at 1405.2
13
Here, the police violated Smith's rights by continuing to interrogate him on April 23. Collazo, 940 F.2d at 416-19.3 The pertinent inquiry thus is whether Smith's subsequent reiniation of contact with the police and waiver of his right to counsel were voluntary. See Greenawalt v. Ricketts, 943 F.2d 1020, 1026-27 (9th Cir.1991) (a voluntary confession inadmissible on Edwards grounds does not taint a subsequent, voluntary confession), cert. denied, 113 S.Ct. 252 (1992); Collazo, 940 F.2d at 415-23 (voluntary means the "product of a free and deliberate choice rather than intimidation, coercion, or deception");4 see also Oregon v. Elstad, 470 U.S. 298, 318 (1985); Smith, 469 U.S. at 95.
14
Smith argues that his decision to initiate contact and subsequent waiver of his right to counsel were not voluntary because they were coerced by promises of psychological help, use of his family to elicit an emotional confession, exploitation of his "borderline mental condition" and extensive police contact, including the April 23 interrogation, which was conducted in violation of Miranda.
15
We hold that under the totality of the circumstances, Smith's initiation of contact and waiver were voluntary.
16
First, the promises of psychological help did not render Smith's initiation of contact and waiver involuntary. The police mentioned psychological help during the April 23 interrogation more than 24 hours earlier, but this is not overwhelming coercion. Similarly, his father's concern with psychological help does not contribute to an air of police coercion. See Green v. Scully, 850 F.2d 894, 903-04 (2d Cir.), cert. denied, 488 U.S. 945 (1988); Martin v. Wainwright, 770 F.2d 918, 925-28 (11th Cir.1985), modified, 781 F.2d 185 (11th Cir.), cert. denied, 479 U.S. 909 (1986).
17
Second, the influence of Smith's family does not contribute to an atmosphere of coercion. Cf. United States v. Casal, 915 F.2d 1225, 1228-29 (8th Cir.1990), cert. denied, 499 U.S. 941 (1991). The police did help arrange family visits, but they only facilitated visits that the relatives requested. Moreover, Smith's discussions with his relatives were not akin to custodial interrogations and thus do not raise the Miranda and Edwards concerns that coercive police tactics raise.
18
Third, Smith argues that police exploited his borderline mental condition. Smith was of at least low average intelligence, however, and he testified that he was familiar with the criminal justice system and understood his rights. These facts dispel any concern that his waiver was involuntary. See Derrick v. Peterson, 924 F.2d 813, 816-17, 821 (9th Cir.1990) (valid waiver by sixteen year-old with I.Q. of 62-74 when police read him rights three or four times and defendant gave written waiver), cert. denied, 112 S.Ct. 161 (1991).
19
Finally, the police's continued interrogation of Smith on April 23 is troubling.5 Any "minimally trained police officer should have known" that continued interrogation was impermissible and was likely to produce an improper confession. Cf. Collazo, 940 F.2d at 417. Nevertheless, the interrogation lasted a relatively short time, Smith did not make incriminating statements, more than 24 hours elapsed between the two interrogations, there was no police contact with Smith between the two interrogations, and Smith initiated police contact after striking a deal that the police drop the Vancouver robbery charge. Cf. id. at 416 (police told defendant after he requested counsel that if he asked for a lawyer, he could not talk to police and that it "might be worse" for him). Thus, any taint from the police's conduct was purged.
20
The question ultimately is whether Smith's initiation of contact with the police and subsequent Edwards waiver were the product of his free will rather than police coercion. See id. at 420. Under the totality of the circumstances, the police's involvement was not so pervasive that Smith's free will was overborne.
III
21
Smith contends that even if his waiver of his Edwards right was voluntary, his subsequent confession was not voluntary.
22
"An inculpatory statement is voluntary only if it is the product of a rational intellect and a free will." United States v. Leon Guerrero, 847 F.2d 1363, 1365 (9th Cir.1988) (citing Blackburn v. Alabama, 361 U.S. 199, 208 (1960)). The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement such that the suspect's will was overborne. Id. (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)); see Colorado v. Connelly, 479 U.S. 157, 170 (1986) (police coercion must be causally related to confession).
23
In support of his claim that his confession was involuntary, Smith proffers the same facts that he used to support his Edwards claim. He also argues that involuntariness is shown by continued offers of psychological help during the interrogation. The additional promises of psychological help do not establish coercion such that, under the totality of the circumstances, Smith's will was overborne.
24
AFFIRMED.
*
Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Smith also raises a sixth amendment challenge to his confession, but his sixth amendment right to counsel had not attached. See United States v. Pace, 833 F.2d 1307, 1310-12 (9th Cir.1987), cert. denied, 486 U.S. 1011 (1988)
2
The Supreme Court has granted certiorari in an equivocal counsel case and presumably will decide what procedure is constitutionally required. See United States v. Davis, 36 M.J. 337 (C.M.A.), cert. granted, 114 S.Ct. 379 (1993)
The state argues that habeas relief is not appropriate because the procedure that this court requires for equivocal requests was not announced until Fouche, which was decided after Smith's conviction became final. Moreover, the state argues, Smith met with his attorney after the April 23 interrogation, and until the Supreme Court decided Minnick v. Mississippi, 498 U.S. 146 (1990), it was arguable whether this meeting lifted the Edwards bar to further interrogation. The state concludes that Fouche and Minnick are "new rules" that should not be applied retroactively to invalidate Smith's conviction. The state did not raise this defense below, however, and we conclude that the interests of comity and justice are not served by considering it for the first time on appeal. See Collins v. Youngblood, 497 U.S. 37, 40-41 (1990); Boardman v. Estelle, 957 F.2d 1523, 1534-37 (9th Cir.), cert. denied, 113 S.Ct. 297 (1992).
3
The state concedes that the officers should have advised Smith of his Miranda rights before interrogating him
4
Smith does not argue that he did not understand the nature of the right he waived at the April 24 interrogation. See Collazo, 940 F.2d at 415 (discussing "awareness" prong of inquiry)
5
Other police contact with Smith, which was part of an investigation of the prime suspect in a murder case, was not extraordinary and does not suggest an unduly coercive atmosphere
|
Fl LE
This opinion was flied for record
at&~~~
IRe nctld r-t Carpenter
Supr~::~1ne Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
TOWN OF WOODWAY and SAVE )
RICHMOND BEACH, INC., a Washington
) No. 88405-6
non-profit corporation, )
) EnBanc
Petitioners, )
)
v. )
)
SNOHOMISH COUNTY and BSRE POINT )
WELLS, LP, )
) Filed _ _A_PR_1_0_20_14__
Respondents. )
___________________________)
OWENS, J. -- In Washington, developers have a vested right to have their
development proposals processed under land use plans and development regulations
in effect at the time a complete permit application is filed. In this case, we are asked
whether our vested rights doctrine applies to permit applications filed under plans and
regulations that were later found to be noncompliant with the State Environmental
Policy Act (SEPA), chapter 43.21C RCW. We hold that it does. Local land use plans
and development regulations enacted under the Growth Management Act (GMA),
chapter 36.70A RCW, are presumed valid upon adoption. Should a valid plan or
Town of Woodway v. Snohomish County
No. 88405-6
regulation later be found to violate SEP A, the exclusive remedies provided by the
GMA affect only future applications for development-not development rights that
have already vested.
In this case, BSRE Point Wells LP (BSRE) submitted complete applications for
development permits before the local land use ordinances were found to be
noncompliant with SEPA. BSRE's rights vested when it submitted its applications.
A later finding of noncompliance does not affect BSRE's already vested rights. We
affirm the Court of Appeals and hold that BSRE's development rights vested.
· FACTS
The parties do not dispute the facts of this case. BSRE owns a 61-acre strip of
waterfront land in unincorporated Snohomish County known as "Point Wells." For
approximately 100 years, the property has been used for petroleum storage and other
industrial purposes. Prior to 2009, Snohomish County designated the area "Urban
Industrial."
In 2006, BSRE 1 asked Snohomish County to amend its comprehensive plan and
zoning regulations to allow for a mixed use/urban center designation and
redevelopment of the Point Wells site. BSRE wants to redevelop the property by
adding over 3,000 housing units and over 100,000 square feet of commercial and
1
In 2006, the property was owned by Paramount of Washington LLC. Both Paramount
and BSRE are owned by the same parent company.
2
Town of Woodway v. Snohomish County
No. 88405-6
retail space. The petitioners-Town of Woodway (Woodway) and Save Richmond
Beach Inc. (Richmond Beach)-oppose the project. They fear that the area lacks the
infrastructure needed to support an urban center, namely sufficient roads and public
transit. These nearby communities do not want to "bear the burden of providing
urban services to the site." Pet. for Discretionary Review (Richmond Beach) at 3.
Snohomish County granted BSRE's request in two separate actions. First, in
2009, the county adopted two ordinances amending its comprehensive plan to allow
the redesignation of Point Wells from "Urban Industrial" to "Urban Center." Second,
in 2010, it adopted two ordinances amending its building regulations to accommodate
Point Wells as an Urban Center. The county prepared a draft supplemental
environmental impact statement (EIS), took comments, and finalized the EIS for the
comprehensive plan amendments in 2009. It made a determination of nonsignificance
for the latter two ordinances (i.e., the development regulations) based on the 2009
EIS. Woodway and Richmond Beach petitioned the growth management hearings
board (growth board) to review the four ordinances. A hearing took place before the
growth board on March 2, 20 11.
Before the growth board issued its final order, BSRE filed two permit
applications to redevelop Point Wells. It filed the first permit application on February
14, 2011, two weeks before the hearing before the growth board. BSRE filed the
second permit application on March 4, 2011, two days after the hearing before the
3
Town of Woodway v. Snohomish County
No. 88405-6
growth board. The county published notices of both permits shortly after they were
filed. The notices stated that the applications were complete.
On Apri125, 2011, the growth board issued its final order. It found that all four
ordinances were noncompliant with SEPA. The growth board found that the county's
EIS was faulty because it did not consider multiple alternatives to the Urban Center
designation-the only alternative it considered was no change at all. The growth
board found that the development regulations were noncompliant because they relied
on the same faulty EIS as the comprehensive plan amendments. The growth board
remanded the four ordinances with instructions to cure them of their SEPA flaws.
The growth board also invalidated the comprehensive plan amendments-but not the
development regulations-finding that their continued validity would substantially
interfere with the goals of the GMA.
Following the growth board's order, the petitioners filed a complaint in
superior court seeking a declaration that BSRE's permits had not vested because the
ordinances were "void" under SEP A and the GMA. The petitioners also asked for an
injunction against the county to stop it from processing BSRE's permits. The parties
moved for summary judgment, and the court found for the petitioners. The court
ruled that BSRE's rights did not vest to the ordinances later found to be noncompliant
with SEPA, and it enjoined the country from processing their permits until the county
complied with the growth board's order of remand.
4
Town of Woodway v. Snohomish County
No. 88405-6
The Court of Appeals reversed. It concluded that the invalidity provision of the
GMA, RCW 36.70A.302(2), controlled the dispute and that "complete and filed
applications vest to those challenged plan provisions and regulations, regardless of the
Growth Board's subsequent ruling in the administrative appeal." Town of Woodway
v. Snohomish County, 172 Wn. App. 643, 660,291 P.3d 278 (2013). We granted
rev1ew. Town of Woodway v. Snohomish County, 177 Wn.2d 1008, 302 P.3d 181
(2013).
ISSUE
Did BSRE's development rights vest to comprehensive plans and development
regulations that were later found to be flawed under SEPA?
ANALYSIS
I. The Standard ofReview
This case presents questions of pure law. We review questions of law de novo.
Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 782, 295 P.3d 1179 (2013).
II. Washington's Vested Rights Doctrine and the Plain Language of the GMA
Make It Clear That BSRE 's Development Rights Vested
Washington's vested rights doctrine strongly protects the right to develop
property. Our state employs a "date certain" standard for vesting. Abbey Rd. Grp.,
LLC v. City ofBonney Lake, 167 Wn.2d 242, 251, 218 P .3d 180 (2009); Hull v. Hunt,
53 Wn.2d 125, 130, 331 P.2d 856 (1958). Under the date certain standard, developers
are entitled "to have a land development proposal processed under the regulations in
5
Town of Woodway v. Snohomish County
No. 88405-6
effect at the time a complete building permit application is filed, regardless of
subsequent changes in zoning or other land use regulations." Abbey Rd. Grp., 167
Wn.2d at 250. "Washington's rule is the minority rule, and it offers [greater]
protection of [developers'] rights than the rule generally applied in other
jurisdictions." !d.
Washington adopted this rule because we recognize that development rights are
valuable property interests, and our doctrine ensures that '"new land-use ordinances
do not unduly oppress development rights, thereby denying a property owner's right to
due process under the law."' !d. at 251 (quoting Valley View Indus. Parkv. City of
Redmond, 107 Wn.2d 621, 637, 733 P.2d 182 (1987)). While it originated at common
law, the vested rights doctrine is now statutory. Erickson & Assocs. v. McLerran, 123
Wn.2d 864, 867-68, 872 P.2d 1090 (1994); RCW 19.27.095(1) (building permits);
RCW 58.17.033(1) (subdivision applications); RCW 36.70B.180 (development
agreements).
The plans and regulations to which development rights vest are a product of the
GMA. The GMA aims to curtail "uncoordinated and unplanned growth" that "pose[ s]
a threat to the environment, sustainable economic development, and the health, safety,
and high quality of life enjoyed by residents of this state." RCW 36.70A.010. Under
the GMA, communities must create comprehensive plans to express general land use
6
Town of Woodway v. Snohomish County
No. 88405-6
policies in the community and development regulations to implement those plans.
RCW 36.70A.040(3), (4).
The GMA contains a review process that allows parties to challenge
comprehensive plans and building regulations, and it provides remedies for plans or
regulations that prove to be flawed. In this case, we must interpret those statutory
remedies. "The purpose of statutory interpretation is to determine and give effect to
legislative intent." Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997). "The
legislative intent should be derived primarily from the statutory language." !d.
"When the words in a statute are clear and unequivocal, this court is required to
assume the Legislature meant exactly what it said and apply the statute as written."
!d.
The language in the GMA is clear and unequivocal. Comprehensive plans and
development regulations, including their amendments, are presumed valid upon
adoption. RCW 36.70A.320(1). Should a party wish to challenge adopted plans or
regulations, it must petition the growth board for review. RCW 36.70A.280(1). The
growth board has exclusive jurisdiction to determine whether a comprehensive plan or
building regulation violates the GMA. Stcifne v. Snohomish County, 174 Wn.2d 24,
34, 271 P.3d 868 (2012) ("[A] party challenging a decision related to a comprehensive
plan must seek review before the growth board first."); see Woods v. Kittitas County,
162 Wn.2d 597, 614-16, 174 P.3d 25 (2007) (noting that a superior court lacks
7
Town of Woodway v. Snohomish County
No. 88405-6
jurisdiction over challenges to plans or regulations based on the GMA). As a part of
its exclusive jurisdiction to hear GMA challenges to plans and regulations, the growth
board also hears SEPA challenges to those plans and regulations. RCW
36.70A.280(l)(a); Davidson Serles & Assocs. v. City a/Kirkland, 159 Wn. App. 616,
628, 246 P.3d 822 (2011) ("The [growth board] has exclusive jurisdiction to review
SEPA challenges to comprehensive plans and development regulations."). Ifthe
growth board finds that the plan or regulation is flawed, it has two options: (1) it may
enter a finding of noncompliance or (2) it may enter a finding of invalidity. RCW
36.70A.300(3)(b), .302.
If the growth board finds noncompliance, it remands the matter to the county
with instructions to comply within a certain time period. RCW 36.70A.300(3)(b).
"County plans and regulations ... remain valid during the remand period following a
finding of noncompliance." King County v. Cent. Puget Sound Growth Mgmt.
Hearings Bd., 138 Wn.2d 161, 181, 979 P.2d 374 (1999) (emphasis added); RCW
36.70A.300(4).
If the flaw in the plan or regulation represents a major violation of the GMA,
the growth board has the option of determining that the plan or regulation is invalid.
To do so, the growth board must first find noncompliance and remand the matter back
to the county. RCW 36.70A.302(1)(a). Additionally, the growth board must enter a
determination-supported by findings of fact and conclusions of law-that the
8
Town of Woodway v. Snohomish County
No. 88405-6
continued validity of the provision would substantially interfere with the goals of the
GMA. RCW 36.70A.302(1 )(b). "Upon a finding of invalidity, the underlying
provision would be rendered void." King County, 138 Wn.2d at 181.
But, like a finding of noncompliance, a finding of invalidity does not apply
retroactively to rights that have already vested. The GMA plainly states:
A determination of invalidity is prospective in effect and does not
extinguish rights that vested under state or local law before receipt of the
[growth] board's order by the city or county. The determination of
invalidity does not apply to a completed development permit application
for a project that vested under state or local law before receipt of the
[growth] board's order by the county or city or to related construction
permits for that project.
RCW 36.70A.302(2) (emphasis added). Thus, whether or not a challenged plan or
regulation is found to be noncompliant or invalid, any rights that vested before the
growth board's final order remain vested after the order is issued.
We have considered the remedial powers under the GMA before. In Skagit
Surveyors & Engineers, LLC v. Friends ofSkagit County, 135 Wn.2d 542, 958 P.2d
962 (1998), we addressed whether the GMA authorized the growth board to invalidate
pre-GMA ordinances. We relied on the plain language of the statute and held that it
did not. Id. at 568. We made clear that our duty "is to interpret the statute as enacted
by the Legislature, after the Legislature's determination of what remedy best serves
the public interest of this state; we will not rewrite the statute." Id. at 567.
9
Town of Woodway v. Snohomish County
No. 88405-6
The reasoning in Skagit Surveyors applies here. Though that case dealt with
remedial powers of the growth board-and here we review a remedy fashioned by a
superior court-there is no reason to believe that a superior court could exceed the
remedies provided by the statute as they relate to GMA ordinances. As noted above,
the growth board has exclusive jurisdiction to hear SEPA challenges as they relate "to
plans, development regulations, or amendments, adopted under [the GMA]." RCW
36.70A.280(1)(a). Its remedies are limited to finding noncompliance or invalidity,
and neither finding affects development rights that have already vested.
Here, the growth board reviewed SEPA challenges to the plans and regulations
and found a violation. The remedies for such a violation are exclusively provided by
the GMA and do not affect rights that have already vested. The superior court erred
when it exceeded these exclusive remedies. We affirm the Court of Appeals because
of the plain language of the GMA as described above.
III. Petitioners Argue That Our SEPA Precedent Controls, but the GMA and Its
Amendments Have Changed the Law with Respect to SEPA Violations in
GMA Plans and Regulations
Despite the language of the GMA, the petitioners argue that "[g]overnrnent
actions taken in violation of SEP A's procedural requirements are void ab initio and
ultra vires." Suppl. Br. ofPet'r (Woodway) at 6-7. They argue that prior to the
GMA, it was well established that a void ordinance did not create vested rights. The
petitioners argue that this precedent has not been overruled by the GMA and that no
10
Town of Woodway v. Snohomish County
No. 88405-6
development rights can vest if they rely on ordinances that do not comply with
SEPA's procedural requirements. We disagree.
The petitioners cite a list of cases that are distinguishable: Eastlake Cmty.
Council v. Roanoke Assocs., 82 Wn.2d 475, 481, 487, 513 P.2d 36 (1973) (pre-GMA
case holding that rights did not vest when permit renewal did not conform to zoning
or building regulations and when no EIS was made); Juanita Bay Valley Cmty. Ass 'n
v. City ofKirkland, 9 Wn. App. 59,73-74,510 P.2d 1140 (1973) (pre-GMA case
remanding a grading permit for failure to make an initial determination of
environmental significance under SEP A); Lassila v. City of Wenatchee, 89 Wn.2d
804, 816-17, 576 P.2d 54 (1978) (pre-GMA case vacating a comprehensive plan
amendment when the city failed to determine whether the amendment would have a
significant impact on the environment); Noel v. Cole, 98 Wn.2d 375, 380-81, 655 P.2d
245 (1982) (pre-GMA case holding that a timber contract was void and ultra vires
where the Department of Natural Resources did not prepare an EIS); Responsible
Urban Growth Grp. v. City ofKent, 123 Wn.2d 376, 381, 389-90, 868 P.2d 861
(1994) (non-GMA and non-SEPA case invalidating a rezone and voiding a building
permit issued under that rezone when the rezone failed to meet statutory and due
process notice requirements); S. Tacoma Way, LLC v. State, 169 Wn.2d 118, 124-26,
233 P.3d 871 (2010) (non-GMA and non-SEPA case where procedural error did not
render the sale of state land ultra vires).
11
Town of Woodway v. Snohomish County
No. 88405-6
These cases are off point-none of them deal with plans or regulations
reviewed by the growth board under the GMA. The GMA fundamentally changed the
review process for local land use plans and building regulations. Under the current
statute, the growth board hears petitions alleging that local planning is not in
compliance with the requirements of the GMA "or [SEPA] as it relates to plans,
development regulations, or amendments, adopted under RCW 36.70A.040." RCW
36.70A.280(1)(a). As noted above, the growth board's power to review these
petitions is exclusive and the growth board's remedies are limited by statute. The
growth board can find noncompliance or invalidity, but neither finding retroactively
affects vested rights. RCW 36.70A.300(4), .302(2). Thus, any pre-GMA case or case
that dealt with SEP A outside the context of GMA plans or development regulations
has no bearing on this case.
This area of law is entirely statutory, and we have recognized that amendments
to statutes will supersede judicial precedent. In Dioxin/Organochlorine Center v.
Pollution Control Hearings Board, 131 Wn.2d 345,356-61,932 P.2d 158 (1997), we
held that Noel-one of the cases cited by the petitioners-was no longer authoritative
for the proposition that a superior court could review certain forest practices for
violations of SEPA. We found that the legislature had amended SEP A to clarify that
the superior court could not review the issue. !d. at 362. Here too, amendments to the
GMA and SEPA have superseded prior cases. The Court of Appeals discussed the
12
Town of Woodway v. Snohomish County
No. 88405-6
amendments to the GMA at length, but a short summary shows that the legislature
fundamentally altered review of GMA plans and regulations.
In 1991, the legislature amended the GMA to establish a process for reviewing
comprehensive plans and regulations. LAWS OF 1991, 1st Sp. Sess., ch. 32, § 9. It
gave the newly created growth board the power to review plans and regulations not
only for GMA violations but also for SEPA violations. Id. (now codified as RCW
36.70A.280(1)). In 1995, the legislature amended the GMA and SEPA, simplifying
the growth board's review process by giving it the two remedies discussed above-
noncompliance or invalidity. LAWS OF 1995, ch. 347, § 110. Importantly, the
legislature made it clear that the GMA "should serve as the integrating framework for
all other land-use related laws." LAWS OF 1995, ch. 347, § 1. While the 1995
amendment included the provision that a fmding of invalidity applies only
prospectively and does not affect rights that vested before the growth board's order,
the legislature clarified this point even further with an amendment in 1997. That
amendment recodified the GMA's invalidity provision in a stand-alone section and
added a second sentence emphasizing the point further. LAws OF 1997, ch. 429, §
16(2) ("The determination of invalidity does not apply to a completed development
permit application for a project that vested under state or local law before receipt of
the [growth] board's order by the county or city or to related construction permits for
that project.").
13
Town of Woodway v. Snohomish County
No. 88405-6
As the Court of Appeals noted, the legislature was well informed when it made
the amendments. The legislature relied on several government reports that examined
the continuing validity of noncompliant plans and regulations and vested rights issues.
See Woodway, 172 Wn. App. at 654-60 (discussing the amendments in detail); WASH.
STATE OFFICE OF FIN. MGMT., GOVERNOR'S TASK FORCE ON REGULATORY REFORM:
FINAL REPORT 52 (Dec. 20, 1994) (recommending that a plan or regulation should
remain in effect unless later found invalid); WASH. LAND USE STUDY COMM'N, 1996
ANNUAL REPORT EXEC. SUMMARY 20 (Jan. 29, 1997) (recommending an amendment
clarifying that projects that vested prior to a growth board order are not affected by an
order of invalidity).
This history shows that the legislature thoughtfully considered the review
process for comprehensive plans and regulations under the GMA. It purposefully
integrated SEPA review with GMA review and outlined the remedies for faulty plans
and regulations. It considered the impact that GMA review would have on vested
rights and chose not to disturb this state's strong vested rights doctrine. Our decision
reflects the clear intent of the legislature, and we apply the statute as written.
IV. Richmond Beach's Argument That the Court Should Not Allow the Vested
Rights Doctrine "To Be Used As a Sword" Is Not Persuasive
Richmond Beach argues that the Court of Appeals erred by allowing the vested
rights doctrine to be used as a "'sword' to push through an otherwise-illegal
development, rather than as a 'shield' to protect the property owner from fluctuating
14
Town of Woodway v. Snohomish County
No. 88405-6
land use policies." Suppl. Br. ofPet'r (Richmond Beach) at 4. Richmond Beach
evokes this court's warning in Erickson that if rights vest too easily, the public interest
can be subverted. Richmond Beach criticizes the decision below for failing to
"uphold important principles such as protection of property rights, certainty,
predictability, due process, good faith, or fairness." ld. These arguments miss the
mark.
Our vested rights doctrine protects due process and property interests by setting
a clear date for vesting development rights, and we have expressly rejected a bad faith
exception to that rule. Allenbach v. City of Tukwila, 101 Wn.2d 193, 676 P.2d 473
(1984). InAllenbach, the city of Tukwila passed an ordinance that downzoned the
developer's property from multifamily to single-family residential. I d. at 194-95.
Nearly two months later-one day before the ordinance took effect-a developer
submitted a permit application for a multifamily development. I d. at 195. The city
argued that the developer acted in bad faith and that it did not have to process the
permit applications under the old zoning laws. I d.
We rejected the city's argument. We reiterated that the court applies a date
certain standard and "avoids the morass and uncertainties" of determining bad faith.
!d. at 198. Contrary to Richmond Beach's argument, the date certain rule creates
certainty and predictability for all parties and protects property rights. There is no bad
faith exception to that rule. ld. at 199-200. Only one bad faith consideration applies
15
Town of Woodway v. Snohomish County
No. 88405-6
to developers-they must not make knowing misrepresentations in their permit
applications. Lauer v. Pierce County, 173 Wn.2d 242, 262, 267 P.3d 988 (2011). No
party alleges that BSRE made knowing misrepresentations in this case. Richmond
Beach's arguments are unpersuasive, and we affirm.
CONCLUSION
BSRE's development rights vested to the plans and regulations in place at the
time it submitted its permit applications. Developers' rights vest to the ordinances in
effect when a complete permit application is submitted. The plain language of the
GMA indicates that a later finding of noncompliance under SEPA does not affect
rights that have already vested. The petitioners cite cases that have been largely
superseded by the GMA and its amendments. Additionally, we do not consider the
good or bad faith of a developer, other than their duty not to make knowing
misrepresentations on permit applications. For these reasons, we affirm the Court of
Appeals.
16
Town of Woodway v. Snohomish County
No. 88405-6
WE CONCUR:
17
Town of Woodway v. Snohomish County
Dissent by C. Johnson, J.
No. 88405-6
C. JOHNSON, J. (dissenting)-The vested rights doctrine is a judicially
created doctrine originally anchored in due process principles of fundamental
fairness. The doctrine operates to protect citizens and developers from the
government changing the conditions and requirements that existed and were relied
on when a completed building permit or development proposal was submitted. In
other words, under the doctrine, except under limited circumstances, the
government could not change the rules of the game after it had already been
played. But no laws changed that affected the development in this case. It was
illegal under the Growth Management Act (GMA), chapter 36.70A RCW, and the
State Environmental Policy Act (SEP A), chapter 43.21 C RCW, at all times. The
majority's decision erroneously creates a troubling erosion of the requirements
under the GMA and, more disturbing, SEPA.
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)
The vested rights doctrine has never been applied to circumvent and
eliminate statutory requirements existing at the time a development proposal is
submitted. The GMA controls the development of land and guides a county's
options in planning for growth, development, and expansion. Similarly, SEP A
exists to condition development in order to protect our environment and minimize
the environmental impact caused by development. The majority embraces a radical
departure from our cases and uses the vested rights doctrine as a sword to disregard
the mandates of both the GMA and SEP A. The record in this case establishes that
both the county and developer likely knew their plan would not survive a challenge
unless the anticipated Growth Management Hearings Board's decision to
invalidate their proposal could be cleverly circumvented. No principle of
fundamental fairness applies where the actions of the county and developer are
designed to circumvent the existing requirements of the GMA and SEP A. The
majority allows "vesting" of essentially an illegal development.
Point Wells is an isolated 61-acre site of a century's worth ofpetroleum-
based industrial use on the southwest corner of Snohomish County. It is largely
inaccessible from Snohomish County. Instead, the only access is from the south
through King County and the city of Shoreline along Richmond Beach Drive, a
2
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)
narrow two-lane neighborhood street that dead-ends at Point Wells. This road
cannot provide adequate road access, let alone highway access, but is the only
present or anticipated vehicle access to Point Wells, where BSRE Point Wells, LP
plans to build at least 3,000 housing units as well as commercial and retail space,
with traffic estimated to add 12,860 car trips per day. There are no express or high-
capacity transit routes within 2.5 miles of Point Wells, and although the Sound
Transit light rail line runs through Point Wells, it does not stop in Point Wells, nor
is there a plan to provide a stop. Reasonable access to this type of development is,
and always has been, a requirement, but such access does not exist here and
probably never will.
Point Wells was originally designated as "urban industrial," but upon
BSRE's request, Snohomish County (County) amended its comprehensive plan to
designate Point Wells as "urban center"--the county's most dense mixed-use
designation-·-:·and then amended its development regulations to accommodate Point
Wells as an urban center. Under the County's own comprehensive plan, urban
centers must be "located along an existing or planned high capacity transit route."
Clerk's Papers (CP) at 214. The comprehensive plan also required that urban
centers be "located adjacent to a freeway/highway and a principal arterial road ...
3
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)
or be located on a regional high capacitytransit route." CP at 197. The County was
well aware of such urban center requirements, not only because these requirements
are in its own code but also because the County already had five designated urban
centers, each identified and named by a highway intersection. 1
The town of Woodway and Save Richmond Beach, Inc. petitioned the
Growth Management Hearings Board (Board) to challenge the comprehensive plan
amendments and development regulations, and in August 2010, a hearing was set
before the Board. On February 14, 2011, BSRE submitted a subdivision and land-
disturbing aQtivity permit application with the county. On March 2, 2011, the
hearing before the Board took place. Two days later, BSRE filed a development
permit application with the County.
On April25, 2011, the Board invalidated the county's comprehensive plan
amendments and found the development regulations noncompliant with SEP A. In
its order, the Board stated that it was left with "'a firm and definite conviction that
a mistake ha[ d] been committed.'" CP at 113.
The Board noted that Point Wells was the County's only urban center
without either transit access or the existing road infrastructure to support high-
·-----·---------
1
CP at 107.
4
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)
capacity vehicle access. The County had argued that Point Wells was "'located on
a regional high capacity transit route'" notwithstanding the "lack of existing or
planned access to that route." CP at 108. Understandably, the Board rejected this
argument. .Such an interpretation, the Board reasoned, "le[ d] to an absurd result: an
urban center with limited transportation access." CP at 108. Despite the fact that
;adequate urban services including transit, water, sewer, police, fire, emergency,
and trash collection for Point Wells were neither available nor clearly planned, as
noted by the Board, BSRE had argued that its promise to fund the building of a
transit center, on-site police and fire stations, and a commuter rail station was the
equivalent of the actual governmental commitment required by the GMA. The
Board also rejected this argument, noting that "'Trust Us' is not a GMA Plan." CP
at 137. As a result, the Board invalidated the County's comprehensive plan
amendments. CP at 166.
Finally, the final supplemental environmental impact statement (FSEIS)
submitted by the County, as required by SEPA, considered only two alternatives:
(1) the land use and zoning requested by BSRE or (2) no action. The Board found
the FSEIS inadequate because there were other land use designations the County
could have considered that would have been less dense, generated fewer vehicle
5
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)
trips, and been less of a strain on public facilities and services. CP at 148. As a
result, the Board held that all four ordinances did not comply with SEP A and
remanded them back to the County to take legislative action to comply with SEP A.
CP at 166-67.
According to the majority, however, because BSRE filed two permit
. :• ~ttpplications before the Board could invalidate the proposal, it now has a vested
right to develop Point Wells as an urban center notwithstanding the development's
illegality and clear deficiencies. To the majority, BSRE would have a vested right
regardless of whether it plans to build 3,000 or 30,000 new housing units in Point
Wells. This is not the situation envisioned by the vested rights doctrine or what the
statute provides.
The purpose of the vested rights doctrine is to allow developers to determine
the rules that govern their land development. Once a developer files a complete
permit application, "a city cannot frustrate the development by enacting new
zoning regulations." W Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 51,720
P.2d 782 (1986). The doctrine is supported by notions of fundamental fairness
because "citizens should be protected from the 'fluctuating policy' of the
legislature." W. Main, 106 Wn.2d at 51 (quoting THE FEDERALIST No. 44, at 301
6
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)
(James Madison) (Jacob E. Cooke ed., 1961)). The doctrine is meant to protect the
land owner/developer from the municipality. See Noble Manor Co. v. Pierce
County, 133. Wn.2d 269, 943 P.2d 1378 (1997) (right vested when city changed
zoning .ordinance after r.eceiying short plat subdivision qut before plat was
approved); Parkridge v. City ofSeattle, 89 Wn.2d 454, 573 P.2d 359 (1978)
(developer had vested right, despite incomplete application, because of diligent
efforts to complete application, which were frustrated by the city); Hull v. Hunt, 53
Wn.2d 125,331 P.2d 856 (1958) (right vested day before city's amended zoning
ordinance went into effect); State ex rel. Ogden v. City of Bellevue, 45 Wn.2d 492,
275 P.2d 899 (1954) (right vested when the city attempted to rezone upon
receiving building permit). The majority and legislature fail to see this nuance.
In this case, BSRE needed no such protection from the County because there
was no fluctuation of county legislation during the pendency ofBSRE's permit
applications; the rules and requirements remained unchanged throughout. There
was not even a threat of fluctuating legislation during this time as Snohomish
County was in fact defending to the Board the very legislation requested by BSRE
and under which BSRE claims its development rights vested. No case exists in
which this court has held that a developer has a vested right to build under invalid,
7
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)
site-specific legislation that it specifically requested and subsequently defended on
appeal and of which it is the sole beneficiary.
The majority finds that BSRE has a development right under RCW
36.70A.302(2), which provides:
A determination of invalidity is prospective in effect and does not
extinguish rights that vested under state or local law before receipt of
the board's order by the city or county. The determination of invalidity
does not apply to a completed development permit application for a
project that vested under state or local law before receipt of the
board's order by the county or city or to related construction permits
for that project.
This provision must be read consistent with the vested rights doctrine and not, as
the majority reasons, as an independent, free-standing vesting provision. The
statute is written in the past tense: invalidity does not apply to applications for a
project that vested. It does not create rights. Rather, it protects only rights that
already existed by way of vesting and assumes a separate mechanism by which
those rights are created in the first place, namely our vested rights doctrine.
Because BSRE should not have an illegal development right under our vested
rights doctrine, it cannot use RCW 36.70A.302(2) as a shield to protect its illegal
use.
8
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)
Finally, the majority minimizes the environmental impact ofBSRE's vested
right by noting only that Woodway and Save Richmond Beach "fear that the area
lacks the infrastructure." Majority at 3. As noted by the Board, however, the area
in fact lacks all of the necessary infrastructure to support an urban center. Point
Wells lies on the County's southern border and is not accessible from anywhere
within its own boundaries. The task of providing transportation, utilities, and
police and fire protection, to name a few, in fact fully burdens King County; the
city of Shoreline; and a narrow, inadequate residential road. Such an absurd result
cannot be what the vested rights doctrine was intended to protect.
The GMA was enacted to fight "uncoordinated and unplanned growth,"
RCW 36.70A.010, but in finding that BSRE has a vested right to develop Point
Wells as an urban center, the majority has facilitated such uncoordinated,
unplanned, and in fact illegal growth. The GMA and SEP A should be read in
harmony and given effect, and not, as the majority holds, written out of existence.
The vesting rights doctrine cannot be used as a sword to eviscerate the purpose and
function of the GMA and SEP A.
9
Town of Woodway v. Snohomish County
(C. Johnson, J., dissenting)
Respectfully, I dissent.
10
|
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
THOMAS W. THOMPSON, JR., : No. 30 WM 2014
:
Petitioner :
:
:
v. :
:
:
RANDOLPH PUSKAR, JOSEPH :
DUPONT, DANIEL BURNS, ROBERT :
MCINTYRE AND NEIL FEATHERS, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 7th day of August, 2014, the Petition for Leave to File Petition for
Allowance of Appeal Nunc Pro Tunc is DENIED.
|
3 Cal.App.4th 751 (1992)
4 Cal. Rptr.2d 653
WILBERT J. YUE et al., Plaintiffs and Appellants,
v.
CITY OF AUBURN, Defendant and Respondent.
Docket No. C009412.
Court of Appeals of California, Third District.
January 31, 1992.
*755 COUNSEL
Daniel P. Patterson, Curran & Alschuler and Donald W. Curran for Plaintiffs and Appellants.
Stumbos, Mason & Thomas and Douglas W. Brown for Defendant and Respondent.
OPINION
MARLER, J.
This appeal is taken from an order and judgment of dismissal entered by the trial court after sustaining the general demurrer to plaintiffs' second amended complaint for inverse condemnation without leave to amend. We shall reverse.
FACTS AND PROCEDURAL HISTORY
On May 23, 1986, Richard Yue, on behalf of RHRH, Inc. (doing business as the Shanghai Restaurant and Bar) filed a claim against the city of Auburn alleging that his restaurant and bar, located in the old city portion of Auburn, was damaged on February 18, 1986, by flooding and excessive water "caused by [a] poorly engineered drainage system." This claim was rejected by the city on June 12, 1986.
On December 3, 1986, plaintiffs filed a complaint in superior court alleging a taking by inverse condemnation and a second cause of action for negligence. After a succession of amendments and demurrers, plaintiffs abandoned their negligence cause of action because of their failure to meet the filing requirements of the Government Tort Claims Act (Gov. Code, § 900 et seq.), and ultimately filed a second amended complaint based solely on inverse condemnation. This complaint sought money damages for loss in *756 value to plaintiff Wilbert Yue's ownership interest in the real property and for loss in value of RHRH's business and leasehold interest in the property based on several separate incidents of flooding.
The gravamen of the complaint is as follows: A development known as the Skyline Subdivision Project was built above plaintiffs' property. Defendant "planned, approved, designed, ... constructed, ... and otherwise substantially participated in activities for the public use or benefit including the exercise of dominion and control over drainage courses which included offsite storm drainage facilities both man-made and natural dedicated for public use as a condition for the development of the upstream Skyline Subdivision Project...." The subdivision is in the Brewery Lane drainage basin and plaintiffs' land is below, in the Old Town area. The construction of the subdivision substantially increased impervious surfaces which in turn substantially increased storm water runoff. The maximum inflow from the Brewery basin culvert is 105 cubic feet per second (cfs) while the capacity of the preexisting drainage structure below is 75 cfs. Defendant failed to require the developer of the subdivision to mitigate the storm water runoff and defendant failed to upgrade its drainage facilities to accommodate the increased flow of water. Defendant's drainage facilities are inadequate to handle the increased storm water runoff and plaintiffs' land has been inundated with water repeatedly as a consequence.
On April 11, 1990, the city demurred to the second amended complaint for failure to state a cause of action. This general demurrer was sustained without leave to amend on May 23, 1990, due to plaintiffs' failure to plead that the city's "flood control project failed to work as intended and that the failure was the result of some unreasonable conduct on the part of the public agency." Thereafter, the judgment dismissing the complaint was entered, from which plaintiffs timely appealed.
DISCUSSION
I
(1) The standard of review on an appeal from judgment of dismissal following sustaining of a general demurrer is guided by long settled rules. We treat the demurrer as admitting all material facts properly pleaded, as well as those which reasonably arise by implication, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d 58]; Douglas v. E. & J. Gallo Winery (1977) 69 Cal. App.3d 103, 114 [137 Cal. Rptr. 797]; Beason v. Griff (1954) 127 Cal. App.2d 382, 386-387 [274 P.2d 47].) "Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their *757 context." (Blank, supra, 39 Cal.3d at p. 318.) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action on any theory. (Ibid.; Beason, supra, 127 Cal. App.2d at pp. 386-387.) Moreover, "`the allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties.'" (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486 [229 Cal. Rptr. 324, 723 P.2d 64], quoting Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 244-245 [74 Cal. Rptr. 398, 449 P.2d 462].) A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations. (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 922 [216 Cal. Rptr. 345, 702 P.2d 503].)
II
The dispute on appeal centers on the requirements for pleading an inverse condemnation cause of action based on water damage. That a dispute exists is understandable as there is considerable confusion in the law regarding the requirements for such a cause of action.[1]
(2a) Defendant contends that the trial court was correct in ruling that the second amended complaint is defective because it fails to plead the conjunction of substantial causation and unreasonableness as set forth in Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550 [253 Cal. Rptr. 693, 764 P.2d 1070]. Defendant argues we should follow the trial court's lead and apply the specific holding of Belair that "when a public flood control improvement fails to function as intended and properties historically subject to flooding are damaged as a proximate result thereof, plaintiffs' recovery in inverse condemnation requires proof that the failure was attributable to some unreasonable conduct on the part of the defendant public entities." (Id. at p. 567, italics added.)
Plaintiffs, on the other hand, maintain that they have adequately pleaded a cause of action in inverse condemnation under the requirements applicable to the facts of this case.
For reasons which follow, we conclude that Belair does not apply to the case at bar and that plaintiffs have stated a cause of action in inverse condemnation.
*758 III
There are causes of action for inverse condemnation due to water damage which differ according to the type of water involved. (Van Alstyne, Inverse Condemnation: Unintended Physical Damage (1969) 20 Hastings L.J. 431, 448-465; 4 Witkin, Summary of Cal. Law (3d ed. 1985) Real Property, §§ 797-806, pp. 975-983; Condemnation Practice in Cal., supra, Inverse Condemnation, §§ 13.13-13.17, pp. 348-354; 5 Miller & Starr, Cal. Real Estate Law 2d (1989) Adjoining Landowners, §§ 14.20-14.23, pp. 343-357; 2 Nichols on Eminent Domain (3d ed. 1990) Taking and Damage, § 6.08[3], pp. 6-50 - 6-51.) The policy considerations and pleading requirements vary considerably with each type. Thus, the determination of whether there is a cause of action in inverse condemnation for water damage begins with the traditional analytical approach of finding what type of water caused the damage.
This categorization process originated in tort cases and is followed in inverse condemnation lawsuits as well. (3) "[I]nverse liability of public agencies is determined in the main by the peculiarities of private law rules governing interference with "`surface waters,' `flood waters,' and `stream waters.'[]" (Van Alstyne, op. cit. supra, 20 Hastings L.J. at pp. 448-449.) The legal rights and consequences following such categorization of water types have recently been summarized as follows: "`"`First, one has no right to obstruct the flow onto his land of what are technically known as surface waters .... Second, one has the right to protect himself against flood waters ... and for that purpose to obstruct their flow onto his land, and this even though such obstruction causes the water to flow onto the land of another.... Third, one may not obstruct or divert the flow of a natural watercourse. [Citations.]'"'" (Weaver v. Bishop (1988) 206 Cal. App.3d 1351, 1353-1354 [254 Cal. Rptr. 425] [private litigants], italics added.)
In the present case, the complaint permits the inference, appropriate on general demurrer, that the water which inundated plaintiffs' property was surface water. The complaint describes increased "impervious surfaces," increased "storm water runoff," "storm waters," and a culvert, built upland from plaintiffs land to collect "runoff." In Keys v. Romley (1967) 64 Cal.2d 396 [50 Cal. Rptr. 273, 412 P.2d 529], the Supreme Court described surface water as being "[w]ater diffused over the surface of land, or contained in depressions therein, and resulting from rain, snow, or which rises to the surface in springs.... It is ... distinguishable from ... water collected in an identifiable body, such as a river or lake. The extraordinary overflow of rivers and streams is known as `flood water.'" (Id. at p. 400, italics added.)
The facts alleged in the complaint are very similar to those in other inverse condemnation cases involving property damage caused by the diversion or obstruction of surface waters. For example, in Sheffet v. County of *759 Los Angeles (1970) 3 Cal. App.3d 720 [84 Cal. Rptr. 11] the plaintiff recovered for damages caused by reduction in the natural absorption surface in a new development which created an increased and different pattern of surface flow from the upland tract and concentrated runoff to plaintiff's property. Burrows v. State of California (1968) 260 Cal. App.2d 29 [66 Cal. Rptr. 868] was a case in which defendant's road resurfacing and widening project eliminated a drainage ditch, thus changing drainage patterns of surface water and causing flooding of plaintiff's land.
Frustuck v. City of Fairfax (1963) 212 Cal. App.2d 345 [28 Cal. Rptr. 357] involved damage caused by an accelerated flow of surface water over newly developed land adjoining plaintiff's property, collected in an enlarged culvert and sent through plaintiff's existing ditch. The court noted the basis of the city's liability was its failure to appreciate the probability that the drainage system from the new development to the Frustuck property, functioning as deliberately conceived, and as altered and maintained by the diversion of waters from their normal channels, would result in some damage to private property. (Id. at p. 362.) The drainage system, which the city had accepted and approved, was a public improvement and it did not matter if the city had not been the one that actually physically diverted the water. (Ibid.) "The fact that the work is performed by a contractor, subdivider or a private owner of property does not necessarily exonerate a public agency, if such contractor, subdivider or owner follows the plans and specifications furnished or approved by the public agency." (Id. at pp. 362-363.)
Finally, in Inns v. San Juan Unified School Dist. (1963) 222 Cal. App.2d 174 [34 Cal. Rptr. 903] a school altered its property's natural surface drainage pattern through a wide, vegetation-covered swale to direct water through a 28-inch culvert onto plaintiff's property. Although the plaintiff had always been subject to a "servitude" for the water from the school's land, this court held the increase in volume and velocity of water released into the swale created inverse condemnation liability. (Id. at p. 177, citing LeBrun v. Richards (1930) 210 Cal. 308 [291 P. 825, 72 A.L.R. 336].)
(4) A cause of action for inverse condemnation based on surface water damage must conform to the general inverse condemnation principles set forth in Albers v. County of Los Angeles (1965) 62 Cal.2d 250 [42 Cal. Rptr. 89, 398 P.2d 129], and grounded in California's Constitution.[2] (Sheffet, supra, 3 Cal. App.3d at pp. 731-732.) In certain circumstances, an owner of private property may recover in an inverse condemnation action where *760 actual physical damage is caused to his property by a public improvement as deliberately planned and built, whether or not the damage is foreseeable. (Albers, supra, 62 Cal.2d at pp. 262, 263-264; contra Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d at p. 567 [re Flood Waters]; Holtz v. Superior Court (1970) 3 Cal.3d 296, 306-307 [90 Cal. Rptr. 345, 475 P.2d 441].) In certain circumstances, a governmental agency may be held strictly liable, with or without fault, if the public improvement constitutes a substantial cause of the damage even if only one of several concurrent causes. (Souza v. Silver Development Co. (1985) 164 Cal. App.3d 165, 171 [210 Cal. Rptr. 146]; accord, Belair, supra, at pp. 559-560.)
(2b) The complaint alleges that plaintiffs are owners in fee of certain described real property in the Old Town portion of the City of Auburn, and are lessees of a restaurant sited on that property. Thus, the requirement that plaintiffs have a private property ownership interest in the damaged property is satisfied.
The complaint further alleges that "as a direct and proximate result of [city's design and operation] of the improvements ... and exercise of dominion over man-made and natural watercourses ... for the management and control of storm waters, plaintiffs' ... real properties have since development of upstream properties repeatedly been subject to inundation and invasion by storm waters and suffered damage ... because of the unreasonable activities and conduct of [city]." This satisfies the requirement of alleging damage to plaintiffs' property caused by the project as designed and built.
The complaint alleges that the city "dedicated for public use" the drainage facilities located above plaintiffs' property, thus satisfying the necessity of alleging a public project caused the harm.
Finally, the complaint alleges, albeit somewhat unclearly, that defendant constructed the Brewery basin culvert, with a capacity of 105 cfs, and sent water from the surface runoff of the subdivision through it into a preexisting 75 cfs drainage facility adjacent to plaintiffs' property, and that defendant's "failure to recognize" the existing storm "drainage facilities [were] inadequate" to collect the increased storm water runoff from Skyline Subdivision "proximately and substantially caused" damage to plaintiffs' property. Thus, the Albers requirement of pleading substantial causation is satisfied.
(5) An inverse condemnation cause of action based on damage by surface water is governed by a rule of reasonableness that is peculiar to that genre. (Burrows v. State of California, supra, 260 Cal.2d at pp. 32-33.) *761 Burrows, which first applied the reasonableness rule of private surface water law to an inverse condemnation case, succinctly summarized this rule as follows: "1. If the upper owner is reasonable and the lower owner [is] unreasonable, the upper owner wins; 2. [i]f the upper owner is unreasonable and the lower owner [is] reasonable, the lower owner wins; ... 3. [i]f both the upper and lower owners are reasonable, the lower owner wins." (Burrows, supra, at pp. 32-33; accord Sheffet v. County of Los Angeles, supra, 3 Cal. App.3d at p. 728.)
However, this reasonableness doctrine simply presents a question of fact to be determined in each case upon a consideration of all the relevant circumstances. (Keys v. Romley, supra, 64 Cal.2d at p. 410.) Plaintiffs need not plead defendant's unreasonableness to state a cause of action. (Burrows, supra, 260 Cal. App.2d at p. 33.) Instead, defendant must answer and raise the issue of plaintiffs' unreasonableness to prevail in this case. As the Burrows court wryly notes, there is no incentive "to try to plead and prove that the upper owner's diversion of surface water has been unreasonable. He prevails, whatever the nature of the upper owner's conduct. Why should he undertake the burden of proving the upper owner's diversion to be unreasonable? (6) (See fn. 3.) The reasonable diverter's money spends just as nicely." (Ibid.)[3]
(2c) Inasmuch as the case involves surface waters inundating property that was not subject to historical flooding, defendant's reliance on Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d 550 is misplaced and plaintiffs need not allege defendant's drainage system failed to function as intended. First, as the Belair case deals with flood water (id. at pp. 554-555), another body of law altogether, it is inapposite. Second, the Belair court's use of the phrase "failed to function as intended" was a means of fleshing out the requirement for pleading substantial causation (id. at p. 560) based upon the particular factual underpinnings of the case. In Belair the subject water had escaped from a dike constructed to protect a site that had been historically subject to flooding. (Id. at p. 556.) Therefore, to show that defendant's facility was a substantial cause of injury to that site, it was necessary for the plaintiff in Belair to eliminate the other probable causes of damage, i.e., natural flooding. This in turn required focusing on the functional capability of the failed public project: if the dike had overflowed after *762 it reached its design capacity, instead of when it was still below capacity, the cause of flooding might have been nature alone. (Id. at pp. 558-560.) Although nature had a hand in the injury produced in Belair, the dike there failed to protect plaintiff even when it was not operating at capacity, thus it failed to function as intended, presenting a substantial cause of the injury. (Id. at p. 560.)
The facts of the case at bench present no similar obstacle. The allegations allow the reasonable inference that plaintiffs' property was not subject to historical flooding; the complaint also expressly alleges that the repeated incidents of inundation suffered by plaintiffs dates from the time the upland subdivision was developed.
(7) Third, we note that the policies governing surface water and flood control inverse condemnation cases are different. In flood cases, as Belair states, the purpose of requiring allegations of both substantial causation and unreasonableness on the part of the government entity defendant is to prevent discouraging construction of flood protection facilities. (47 Cal.3d at p. 558.) However, no such concern is involved in surface water cases. If anything, the opposite is true: surface water damage typically follows alteration of natural drainage patterns by a party who has developed a piece of property for profit, in this case a land subdivider, instituting improvements which are later incorporated into a governmental infrastructure. (See, e.g., Frustuck v. City of Fairfax, supra, 212 Cal. App.2d at pp. 362-363.) The courts have held that while this type of development "[is] socially beneficial, there [is] no reason why the economic cost incident to the expulsion of surface waters should be borne by the adjoining landowners, rather than by those undertaking such projects for profit." (Sheffet, supra, 3 Cal. App.3d at p. 731, citing Armstrong v. Francis Corp. (1956) 20 N.J. 320 [120 A.2d 4, 59, A.L.R.2d 413].)
Finally, we note that Belair is inapposite because it deals with unintended damage resulting from breach of a dike and the flooding that occurred thereafter. (Belair, supra, 47 Cal.3d at p. 554.) As Burrows noted, "in ... surface water cases we do not usually deal with unintended, though foreseeable consequences of acts or omissions, but rather with intended results which may or may not be reasonable, depending on all of the circumstances." (Burrows v. State of California, supra, 260 Cal. App.2d at p. 34.)
(2d) The trial court erred in applying Belair's pleading standards to a complaint alleging surface water invasions.
*763 IV
(8) Plaintiffs allege that the city's unreasonable "failure to recognize" the obvious problem in design, and its corresponding unreasonable "failure to upgrade" the existing drainage system, resulted in damage to their property. Defendant contends these allegations undermine plaintiffs' cause of action for inverse condemnation because defendant is under no duty to upgrade existing systems to prevent damage caused by any and all future storms. But defendant is relying on inapposite flood control cases for authority. (E.g., Tri-Chem, Inc. v. Los Angeles County Flood Control Dist. (1976) 60 Cal. App.3d 306 [132 Cal. Rptr. 142]; Shaeffer v. State of California (1972) 22 Cal. App.3d 1017 [99 Cal. Rptr. 861] (overruled on other grounds in County of San Diego v. Miller (1975) 13 Cal.3d 684, 693 [119 Cal. Rptr. 491, 532 P.2d 139]).) The cited cases did not involve a failure to plead a cause of action for inverse condemnation under any possible theory. Instead, they concerned the plaintiffs' failure to prove the defendants' flood control projects caused flood waters to inundate plaintiffs' properties. (Tri-Chem, supra, 60 Cal. App.3d at pp. 310-312; Shaeffer, supra, 22 Cal. App.3d at pp. 1019-1021.) The defendants were not liable because the evidence disclosed the flood control projects decreased the amount of flooding that would otherwise have occurred naturally on the the plaintiffs' lands. (Tri-Chem, supra, at p. 310; Shaeffer, supra, at p. 1019.)
Unlike the cited cases, plaintiffs are not alleging defendant had a duty to build or upgrade a flood control system to prevent naturally occurring flood waters from flowing onto plaintiffs' land. (Tri-Chem, supra, 60 Cal. App.3d at pp. 308-312; Shaeffer, supra, 22 Cal. App.3d at pp. 1019-1021.) Instead, they are contending defendant approved the development of a subdivision, which increased the flow of surface waters, then built a culvert to divert these surface waters even though defendant knew, or should have known, the new culvert would empty into an existing drainage system with a significantly smaller capacity, inevitably causing plaintiffs' land to be flooded. In other words, plaintiffs are alleging defendant had a duty to prevent harm to plaintiffs' land caused by conditions defendant approved or created. Since the cited cases do not hold that a defendant has no duty to upgrade an existing drainage system to accommodate an increase in and diversion of surface waters caused by the defendant, defendant's reliance on these cases is unavailing.
*764 DISPOSITION
The judgment dismissing plaintiffs' second amended complaint should be reversed and the trial court ordered to overrule the general demurrer to the second amended complaint. Plaintiffs should recover their costs on appeal.
Blease, Acting P.J., and Sims, J., concurred.
NOTES
[1] A practitioner's manual warns that "[d]ecisions in water damage cases defy logical synthesis. The practitioner should recognize that each case is decided on its particular factual situation, with little reliance on precedent. The characterization of inverse condemnation decisional law as `muddled and disorderly' [citation] is particularly descriptive of water cases." (Condemnation Practice in Cal. (Cont.Ed.Bar 1973) Inverse Condemnation, § 13.14, p. 350.)
[2] "Private property shall not be taken or damaged for public use without just compensation having first been made to ... the owner...." (Cal. Const., art. I, former § 14.)
[3] Reasonableness in the context of surface water inverse condemnation cases has to do with balancing the utility of the public project against the gravity of the harm caused to the plaintiff. "[T]he gathering of surface waters into a system of impervious storm drains which follow natural drainage routes may result in greatly increased volume, velocity and concentration of water, and thus may constitute an unreasonable method of disposing for such water when weighed against the seriousness of the resulting harm to lower landowners whose property is damaged as a result." (Van Alstyne, op. cit. supra, 20 Hastings L.J. at pp. 451-452, fn. omitted.)
|
Case: 14-15181 Date Filed: 03/24/2016 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15181
________________________
D.C. Docket No. 2:09-cv-00047-RWS-JCF
MARY BECKER,
individually and as Temporary and/or Permanent Administrator
of the Estate of Jason Hewitt Armsden,
Plaintiff - Appellee,
versus
GREGORY A. NEWMAN,
CAROL DAVENPORT,
ROGER PULLIAM,
JILLIAN BAILEY,
JOE RAPER,
Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 24, 2016)
Case: 14-15181 Date Filed: 03/24/2016 Page: 2 of 2
Before TJOFLAT and ROSENBAUM, Circuit Judges, and KAPLAN, * District
Judge.
PER CURIAM:
After thorough briefing and with the benefit of oral argument, we AFFIRM
the District Court’s order denying summary judgment on qualified- and official-
immunity grounds in Becker v. Fannin County, No. 2:09-cv-00047-RWS-JCF,
2014 WL 4925684 (N.D. Ga. Sept. 30, 2014).
AFFIRMED.
*
Honorable Lewis A. Kaplan, United States District Judge for the Southern District of
New York, sitting by designation.
2
|
259 B.R. 458 (2001)
In re INDIAN MOTOCYCLE CO., INC., Indian Motocycle Apparel and Accessories, Inc., Indian Motocycle Mfg. Co., Inc., Debtors.
United States of America, Appellant,
v.
Sterling Consulting Corp., Colorado Receiver and Steven M. Rodolakis, Chapter 7 Trustee, Appellees.
No. MW 00-005.
United States Bankruptcy Appellate Panel of the First Circuit.
March 13, 2001.
*459 Peter Sklarew, U.S. Department of Justice, and Donald K. Stern, U.S. Attorney, on brief for the Appellant.
Joseph H. Baldiga, Paul W. Carey of Mirick, O'Connell, DeMallie & Lougee and Stephan M. Rodolakis, Mark S. Foss of Peters Massad & Rodolakis, on brief for the Appellees.
Before GOODMAN, DE JESฺS, VAUGHN, Bankruptcy Judges.
*460 VAUGHN, Bankruptcy Judge.
This appeal arises out of a bankruptcy court order entered on December 30, 1999 approving the Chapter 7 Trustee's final accounts in these three administratively consolidated bankruptcy cases. For the reasons set out below the order of the bankruptcy court is reversed and the case is remanded for proceedings consistent with this opinion.
I. BACKGROUND
These three bankruptcy cases have been pending since 1993. The history of the cases is too long and varied to accurately summarize here. However, for purposes of this appeal, certain background facts are relevant.
On July 15, 1993, an involuntary Chapter 7 petition was filed against Indian Motocycle Company, Inc. and Indian Motocycle Apparel and Accessories Company, Inc. In February of 1994, Indian Motocycle Manufacturing filed a voluntary Chapter 11 petition which was converted to Chapter 7 on October 23, 1995. At the same time all three estates (collectively "Debtors") were consolidated and a Chapter 7 trustee was appointed. Appellee Stephan Rodolakis (the "Trustee") was appointed successor Chapter 7 trustee of all three estates on August 14, 1997.
Appellee Sterling Consulting Corporation (the "Receiver") is the appointed Receiver of a separate corporation, Indian Motorcycle Manufacturing Corporation, resulting from an action in the Colorado district court commenced in 1995, Eller Industries, Inc. v. Indian Motorcycle Manufacturing, Inc. Civ. Action No. 95-Z-777. In October of 1995, the Receiver purchased 100% of the stock of the Debtors as well as certain claims against the Debtors. Thus, the Receiver is both a creditor and the owner of the Debtors' equity.
After negotiation, the original Chapter 7 trustee in the Massachusetts bankruptcy cases and the Receiver entered an agreement for the joint sale of the assets of the bankruptcy estates and the receivership estate which would allocate sufficient funds from the sale to the bankruptcy estates to pay all claims, with the remainder going to the Receiver as owner of the equity. The agreement was approved by the bankruptcy court on January 19, 1996 and the Colorado district court on January 29, 1996. Ultimately, in late 1998 and early 1999, both courts approved the joint sale of the assets. As part of the sale, the parties agreed that $3.5 million would be allocated to the Debtors and held in escrow in order to satisfy any claims against those estates. The allocation of those proceeds to the Debtors raised potential tax liability that is the subject of the instant dispute.
Following the approval of the sale, the Receiver and the Trustee had multiple disagreements as to the disposition of the $3.5 million held in escrow, including claims by the Receiver that it was entitled to certain of the funds. Ultimately, the Trustee and Receiver negotiated a settlement which was filed with the bankruptcy court on September 8, 1999. As part of the settlement, the Trustee and the Receiver agreed to divide jurisdiction over remaining issues between the Colorado district court and the bankruptcy court. Although the parties agreed that liability for federal taxes of the bankruptcy estates remained with the Trustee, they also agreed that the Colorado district court would be responsible for determining the amount of such taxes. The bankruptcy court approved the settlement agreement on September 21, 1999. It is not disputed that the Internal Revenue Service ("IRS") was not served with the motion to settle and was otherwise unaware of the agreement between the Trustee and the Receiver.
On October 29, 1999, the Trustee filed tax returns on behalf of the bankruptcy estates for the years 1994 to 1998 seeking expedited audits pursuant to ง 505(b) of the Bankruptcy Code, while the Receiver simultaneously filed a motion in the Colorado *461 district court for a determination that the bankruptcy estates owed no taxes for those years and the yet unfinished 1999 tax year. The IRS objected to the motion in the Colorado district court on grounds that it lacked subject matter jurisdiction to determine the taxes of the bankruptcy estates.
On December 22, 1999, the Trustee filed his final report and account and "Trustee's Emergency Motion for Approval of Final Accounts" on the grounds that the Receiver might incur substantial tax liability if the disbursements were delayed beyond the end of the year. The Trustee indicated that he believed that the bankruptcy estates had no tax liability based on communications from the IRS that the estates would be treated as subchapter S corporations, and thus their income would pass through to the Receiver, as owner of the equity.[1] This time the IRS was served with the motion.
A hearing on the final account was held on December 28, 1999, at which the IRS appeared. From the transcript of that hearing the actions giving rise to this appeal are revealed. At the outset the attorney for the IRS indicated that the IRS had made a determination to audit the 1994 to 1998 tax returns filed by the Trustee. She indicated her belief that there could be as much as a $1.2 million tax liability for the Debtors. That figure was apparently based on an assumption by the IRS that the assets of the estates had been sold for $3.5 million and represented the maximum tax at the 34% corporate tax rate. However, the attorney for the IRS made clear that the IRS had not had an opportunity to evaluate the tax returns to determine the amount of any tax liability and that it was relying only on the representations of the Trustee and the Receiver. The attorney for the Receiver argued that even though the maximum amount that could be asserted as a tax liability would be $1.2 million, it was more likely that after taking deductions the tax liability would be closer to $450,000.
At the close of the hearing, the bankruptcy judge and the attorney for the IRS discussed the IRS's concerns. The attorney for the IRS indicated that she did not have authority to agree to a compromise in which the Colorado court would take jurisdiction to entertain the tax matters. Although the bankruptcy judge acknowledged that the IRS was not agreeing to a compromise, he ordered that $1.2 million be placed in escrow and deemed to fully satisfy the IRS's claim.
On December 30, 1999, a telephonic follow-up hearing was held to go over the proposed order. The transcript reveals that the bankruptcy judge ordered that the automatic ten-day stay would be waived so that the Trustee could make immediate distributions in order to avoid having to make distributions after the close of the 1999 tax year. The attorney for the IRS inquired as to what effect that order would have on the IRS's right to appeal, to which the bankruptcy judge indicated that because the IRS was fully protected by the escrow its rights would not be prejudiced.
On December 30, 1999, the bankruptcy court issued its "Findings of Fact, Conclusions of Law and Order Approving Trustee's Amended Final Accounts" (the "December 30, 1999 Order"). In the Order, the bankruptcy judge acknowledged the IRS's objection to the final accounts on the grounds that it had not yet had the opportunity to fully assess the Debtors' tax liability. However, the bankruptcy court found the compromise between the Receiver and the Trustee in the best interest of *462 the estate and ordered that the accounts be approved, distributions be made according to the accounts, and that $1.2 million be distributed to the Receiver to be held in escrow and deemed to satisfy any claim for taxes by the IRS. Furthermore, the order ceded jurisdiction to determine tax liabilities to the Colorado district court and ordered that no stay could be imposed on any basis. The IRS now appeals from that order.
II. APPELLATE JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. งง 158(a) and (c), and Rule 8001-1(d)(1) of the Local Rules for the Bankruptcy Appellate Panel for the First Circuit. 28 U.S.C. งง 158(a) and (c) (1988 & Supp.1998); 1ST CIR. B.A.P.R. 8001-1(d)(1) (1998). The parties, pursuant to Rule 8001-1, have not elected to have their appeal heard by the District Court for the District of Massachusetts. 1ST CIR. B.A.P.R. 8001-1(d)(1). The bankruptcy court's findings of fact are evaluated pursuant to the "clearly erroneous" standard of review and its conclusions of law are reviewed de novo. Grella v. Salem Five Cent Savings Bank, 42 F.3d 26, 30 (1st Cir.1994). The bankruptcy court's interpretation of particular statutes is a question of law. In re Winthrop Old Farm Nurseries, Inc., 50 F.3d 72, 73 (1st Cir.1995). Its application of a statute to the facts before it "poses a mixed question of law and fact, subject to the clearly erroneous standard, unless the bankruptcy court's analysis was `infected by legal error.'" Id. (quoting Williams v. Poulos, 11 F.3d 271, 278 (1st Cir.1993)).
III. ISSUES
A. Is the appeal moot because the IRS did not obtain a stay pending appeal and failed otherwise to preserve the issues now before the panel?
B. Did the bankruptcy court err by ceding jurisdiction to the Colorado district court to determine the Debtor's tax liability pursuant to 11 U.S.C. ง 505?
C. Did the bankruptcy court err by ordering a final distribution of the assets of the bankruptcy estate and capping the claim of the IRS at 1.2 million?
IV. DISCUSSION
A. Is the Appeal Moot?
The Appellees contend that there is no ripe issue or controversy before the panel because the IRS failed to seek a stay pending appeal. As a result, the Trustee distributed the assets of the estate pursuant to the December 30, 1999 Order, consisting of a dividend to unsecured creditors of approximately sixty-two percent of their claims and a distribution to the Receiver of $1.2 million to be held in escrow pending the outcome of the tax liability issue in the Colorado district court. The Trustee argues that it is now unlikely that he would be able to recover all of the payments, and therefore the mootness doctrine should apply.
This panel has "no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. . . . For that reason, if an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal must be dismissed." Church of Scientology of California v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (internal citations omitted).
Following the bankruptcy court's December 30, 1999 Order, no motion for stay pending appeal was filed by the IRS. The IRS contends that such a request would have been futile because the bankruptcy judge ordered that the automatic ten-day stay would be waived in order for distribution to be made before the end of the year. We are not persuaded by the IRS's plea *463 that it was helpless in the wake of the bankruptcy court's order. Although a motion for stay pending appeal is ordinarily brought directly to the bankruptcy judge, Bankruptcy Rule 8005 specifically provides for such motions to be brought directly to the district court or to the bankruptcy appellate panel, the only requirement being "the motion shall show why the relief, modification, or termination was not obtained from the bankruptcy judge." Fed. R. Bankr.P. 8005. Indeed, the bankruptcy appellate panel regularly receives "emergency" motions for stays pending appeal and acts promptly upon those motions.
The IRS's failure to obtain a stay is not fatal, however, as "[t]he failure to obtain a stay is not sufficient ground for a finding of mootness." Rochman v. Northeast Utilities Service Group (In re Public Service Co. of New Hampshire), 963 F.2d 469, 473 (1st Cir.1992), cert. denied, Rochman v. Northeast Utilities Service Co., 506 U.S. 908, 113 S.Ct. 304, 121 L.Ed.2d 226 (1992). The order here did not involve a sale of the Debtor's property pursuant to section 363 of the Bankruptcy Code which ordinarily may not be reversed absent a stay pending appeal. Anheuser-Busch, Inc. v. Miller (In re Stadium Management Corp.), 895 F.2d 845, 847 (1st Cir.1990). Rather, the IRS seeks to reverse the order of the bankruptcy court distributing the assets of the estate pursuant to the Trustee's final account. Of the $3.5 million distribution, $1.2 million was distributed to the Receiver, and is being held by the Receiver in an escrow account. The Order also entitles the Receiver to the interest accruing on the escrowed funds. Where the order appealed involves distribution to a creditor who is a party to the appeal, the appeal is not moot. United States v. Valley National Bank (In re Decker), 199 B.R. 684 (9th Cir. BAP 1996).
The IRS also seeks the reversal of the bankruptcy court's order ceding jurisdiction over the determination of tax liability to the Colorado district court. The issue goes directly to the question of administration of the bankruptcy estate, which it argues rests solely within the jurisdiction of the district of Massachusetts. If the IRS's argument is correct, the Colorado district court cannot, under any circumstances, decide the issue of tax liability. As the Supreme Court noted in Church of Scientology, even where a court cannot return parties to their pre-order status, an appeal is not moot where some form of meaningful relief can be fashioned. See Church of Scientology, 506 U.S. at 12, 113 S.Ct. 447.
Nor do we find that the application of the "equitable mootness" doctrine is appropriate. Courts have applied the "equitable mootness" doctrine where although some relief could be granted, equitable considerations favoring finality of judgments of the bankruptcy court prevail. See Public Service, 963 F.2d at 471-72. The "equitable mootness" doctrine will be applied where an unwarranted failure to seek a stay has allowed a change in circumstances to such a degree that a remedy is impracticable or impossible. Hicks, Muse & Co., Inc. v. Brandt (In re Healthco International, Inc.), 136 F.3d 45 (1st Cir.1998). We have previously indicated that we are capable of fashioning some meaningful relief in this case despite the lack of a stay pending appeal. Therefore, equitable mootness is not applicable.
We also reject the Appellees' contention that the IRS somehow waived its right to appeal by failing to properly object below. In the December 30, 1999 Order the bankruptcy court acknowledged that the IRS objected to the final accounts and was seeking to "enjoin distributions to the claimants in the Debtors' cases" prior to determination of the Debtors' tax liabilities. See Appendix, Doc. # 784 at 12. Furthermore, at the December 28, 1999 hearing, the IRS and the Court discussed the IRS's objection to any settlement ceding jurisdiction over the determination of the tax liability to the Colorado district court. The bankruptcy judge responded that it understood the IRS's position, but *464 that it was "not seeking the agreement of the United States. . . ." See Appendix, Doc. # 789 at 45. This panel finds that to the extent the IRS was required and had the ability to raise objections below, such objections were made and acknowledged by the bankruptcy court.
B. Determination of the tax liability.
The IRS asserts that the bankruptcy court must determine core matters before it and has no authority to cede jurisdiction over matters within the exclusive jurisdiction of the bankruptcy court. Alternatively, even if the bankruptcy court could abstain from hearing core matters, the IRS argues that it did not engage in a proper abstention analysis.
Pursuant to 28 U.S.C. งง 1334(a) and 157(a) bankruptcy courts, via authority passed from the district court, have original and exclusive jurisdiction over bankruptcy cases. The bankruptcy court is empowered to determine core proceedings arising under Title 11 or in a case under Title 11. 28 U.S.C. ง 157(b)(1). The determination of a debtor's administrative tax liability pursuant to ง 503(b) of the Bankruptcy Code is a core proceeding. See id. at ง 157(b)(2)(A)(matters concerning administration of the estate are core proceedings).
Pursuant to 28 U.S.C. ง 1334(c) a bankruptcy court under some circumstances must, and under other circumstances may, abstain from hearing core or non-core matters.[2] Section 1334(c)(2) requires mandatory abstention from non-core matters which can be timely adjudicated in state court in a previously commenced action. Phillips Constructors, Inc. v. City of Burlington (In re S.G. Phillips Constructors, Inc.), 45 F.3d 702, 708 (2nd Cir.1995). Section 1334(c)(1) allows permissive abstention in the "interest of justice, or in the interest of comity with state courts or respect for state law. . . ." 28 U.S.C. ง 1334(c)(1). Permissive abstention may be exercised over core and non-core matters. Id.
The issue here does not invoke mandatory abstention pursuant to 28 U.S.C. ง 1334(c)(2). Therefore, the question is whether the bankruptcy court had discretion to abstain from determining the Debtors' administrative tax liability pursuant to ง 1334(c)(1). We find that the matter was not proper for abstention.
Bankruptcy courts generally exercise their discretion to abstain in order to permit related state court matters to proceed separate from the bankruptcy proceeding. See, e.g., Christensen v. Tucson Estates, Inc. (In re Tucson Estates, Inc.), 912 F.2d 1162 (9th Cir.1990); Williams v. Citifinancial Mortgage Co., (In re Williams), 256 B.R. 885 (8th Cir. BAP 2001). Abstaining from hearing a matter necessarily presumes that another court has jurisdiction to hear that matter. See Williams, 256 B.R. at 893; King, 9 Collier on Bankruptcy ถ 5011.02[1](15th Ed.) (factors in determining whether to abstain include existence of a jurisdictional basis other than the bankruptcy court's jurisdiction). All three Debtors here filed their cases in the District of Massachusetts, where venue was proper pursuant to 28 U.S.C. ง 1408(1). Once a bankruptcy case is commenced in a proper forum court, that court has exclusive jurisdiction over administration of the bankruptcy estate. Congress's intent that only one court should have jurisdiction over matters concerning the administration of the bankruptcy estate is evidenced by the addition of 28 U.S.C. ง 1334(e) which specifies that *465 the court in which a bankruptcy case is filed "has exclusive jurisdiction of the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate." 28 U.S.C. ง 1334(e). This language resolves "not only jurisdictional disputes between bankruptcy and state courts, but also disputes which might arise among the districts." Cook v. Cook, 215 B.R. 975, 978 (Bankr. E.D.Mich.1997).
As this panel previously noted, a bankruptcy court, "exercising the original and exclusive jurisdiction of the district court under 28 U.S.C. ง 1334, cannot abstain from the administration of the case." Sisters of Providence Health System, Inc. v. Summerfield Elm Manor (In re Summerfield Pine Manor), 219 B.R. 637 (1st Cir. BAP 1998). Because the Colorado district court was without jurisdiction to determine the tax liabilities of the bankruptcy estates, which are core matters within the exclusive jurisdiction of the bankruptcy court, the bankruptcy court erred by ceding jurisdiction over those issues to the Colorado district court.[3]
C. Distributions from estate.
The remaining issues pertain to the IRS's objection to the final distribution of funds ordered by the bankruptcy court. Specifically, the IRS contends that the court lacked jurisdiction to distribute funds prior to determining the administrative taxes and lacked jurisdiction to estimate its claim before any tax liability was assessed.
At the outset, we note that the bankruptcy court's inconsistent positions are perplexing. The bankruptcy court on the one hand confers jurisdiction to determine the amount of the Debtors' tax liability to the Colorado district court while on the other endeavors to estimate the amount of the IRS's claim pursuant to ง 502(c) and even retains jurisdiction to approve any settlement between the Debtors' and the IRS. See Appendix, Doc. # 784 at 16. Ordinarily, an estimated claim may have the same preclusive effect as any other order from a court of competent jurisdiction, raising the possibility that the bankruptcy court's order would invoke res judicata or collateral estoppel on the issue of the amount of the taxes. See 4 Collier on Bankruptcy ถ 502.04[3]. However, we also note that under some circumstances an estimated claim may be limited by the court in deference to another court's jurisdiction over a matter. See In re Bicoastal Corp., 122 B.R. 771, 774-75 (Bankr. M.D.Fla.1990). See also 4 Collier on Bankruptcy at ถ 502.04[3]. Thus, we proceed with the understanding that the bankruptcy court was estimating the IRS's administrative tax claim only for the limited purpose of approving the final accounts subject to the Colorado district court's adjudication of the tax liability.
We find that the bankruptcy court erred by applying ง 502(c)[4] to estimate the postpetition tax liability of the Debtors. Although ง 505[5] of the Bankruptcy Code *466 provides specific procedures for the determination of a debtor's tax liability, and thus provides the primary vehicle for litigating tax disputes, we acknowledge that some courts have suggested that ง 502(c) provides an alternative means for determining a debtor's prepetition tax liability. See In re Revco, D.S., Inc., 131 B.R. 615, 621 (Bankr.N.D.Ohio.1990) (debtors could challenge IRS's estimate of prepetition taxes through ง 505 or through ง 502(c)); In the Matter of Carr, 134 B.R. 370, 373 (Bankr.D.Neb.1991) (IRS could seek determination of prepetition claim through ง 505 or ง 502); In re Southern Commodity Corp., 62 B.R. 4, 6 (Bankr.S.D.Fla. 1986) (IRS's restitution claim for improper prepetition refund could be heard pursuant to ง 505 or ง 502(c)). But see 15 Collier on Bankruptcy ถ TX5.05 ("[I]t has not been authoritatively decided whether [ง 502(c)] is applicable to a disputed tax claim."). However, we have not found a single case which has estimated a debtor's postpetition administrative tax claim pursuant to ง 502(c).
The Appellees cite In re Carib-Inn of San Juan Corp., 130 B.R. 6 (Bankr.D.P.R. 1991) and In re MacDonald, 128 B.R. 161 (Bankr.W.D.Tex.1991) to support their position that postpetition taxes may be estimated pursuant ง 502(c). We are not persuaded. The bankruptcy court in Carib-Inn denied a creditor's motion to reconsider an order disallowing an administrative claim for indemnity of a tort action because it was filed beyond the one year statute of limitations for bringing tort claims. Although the parties did not raise the issue, the bankruptcy judge in that case noted that the creditor should have moved for an estimation of the claim pursuant to ง 502(c). Carib-Inn, 130 B.R. at 8. That portion of the decision dealing with ง 502(c) is little more than dicta. To the extent that it could be read to suggest postpetition tax liability should be estimated under ง 502(c), we disagree.
We believe that MacDonald actually supports the view we adopt. There, the court recognized that although ง 502(c) "commends itself as the appropriate vehicle for estimating post-petition claims . . . the section facially applies only to prepetition claims. Post-petition claims are governed by [ง ] 503." MacDonald, 128 B.R. at 165. However, the bankruptcy judge found that under some circumstances the process employed in a ง 502(c) estimation "may be adapted to the handling of contingent or unliquidated administrative claims when the full-blown allowance process under [ง ] 503(b) would unduly delay the administration of the case. . . ." Id. Later in the opinion, the bankruptcy judge makes clear that he is not literally applying ง 502(c) to the administrative claims: "Equally important to recall at this point, however, is that [ง ] 502(c) does not by its own terms apply to post-petition claims. . . . We have merely `borrowed' the estimation procedure under the authority conferred on this court by Bankruptcy Rules 7016 and 9014 to regulate the manner in which evidence is presented in a contested matter." Id. at 167.
The more appropriate counsel from MacDonald is its warning that the procedures of ง 502(c) should not be "borrowed" to estimate administrative claims "where to do so would defeat the legitimate ends of other provisions of the Bankruptcy Code." Id. Although it found that the estimation procedures of ง 502(c) might be appropriate to evaluate the feasibility of a Chapter 11 plan, MacDonald warns that using estimation to determine the "outer limit of a claimant's right of recovery" as with a prepetition claim, would jeopardize *467 due process rights of the holder of an administrative claim. Id. By capping its recovery at $1.2 million, the bankruptcy court here was determining the "outer limit" of the IRS's right of recovery.
We are convinced that the proper statutory construction requires that administrative tax liability be determined according to the provisions of ง 505. Section 505 deals specifically and solely with the determination of a debtor's tax liability. Section 505(a) gives the court broad, and discretionary, authority to determine the amount of any tax liability, subject to certain exceptions, whether or not assessed or paid. Section 505(b) permits a trustee to request a determination of tax liability incurred during the administration of the case and sets out the procedures for doing so. To the extent there is an argument that the general language of ง 502(c) may be stretched to cover even postpetition administrative claims, we follow the established rule of statutory construction that "a more specific statute covering a particular subject is controlling over a statutory subject in more general terms." Balfour Beatty Bahamas, Ltd. v. Bush, 170 F.3d 1048 (11th Cir.1999).
The transfer of assets to the receiver giving rise to the tax liability at issue in this case occurred in September of 1999. In October of 1999 the Trustee requested from the IRS expedited determination of taxes for tax years 1994 to 1998 pursuant to ง 505(b). However, the Trustee did not seek a determination of the 1999 tax liability as he could have done under ง 505. The Trustee's failure to have the tax liability determined in the proper course does not permit the bankruptcy court to assess tax liability outside of the proper statutory framework, despite the concern that a delay would be prejudicial to the Receiver. Therefore, we must reverse the bankruptcy court's order capping the tax liability. Also, because the tax liability has not been properly determined, the order making final distributions must also be reversed.
V. Conclusion
This panel finds that the bankruptcy court erred by ceding jurisdiction over the determination of the Debtors' tax liability to the Colorado district court. We further find that the bankruptcy court lacked jurisdiction to estimate the Debtors' tax liability pursuant to ง 502(c) before the IRS had made any assessment of liability. Accordingly, we must reverse the order of the bankruptcy court approving the final accounts and making final distribution of the Debtors' assets.
NOTES
[1] Based on the assumption that the Debtors would be treated as subchapter S corporations, the Trustee believed the Receiver would be responsible for any tax liability of the Debtors. Thus, the Trustee sought to avoid negative tax implications for the Receiver by making distributions in the 1999 tax year. However, the IRS argued at the December 28, 1999 hearing that the debtor corporations would likely not qualify for subchapter S status because their stock was owned by another corporation.
[2] The December 30, 1999 Order did not invoke 28 U.S.C. ง 1334 in "ceding" jurisdiction over determination of the tax liabilities to the Colorado district court. Rather, the bankruptcy court apparently based its order on its equitable powers pursuant to ง 105 of the Bankruptcy Code. However, in order to "cede" jurisdiction to determine the tax liability of the Debtors, the bankruptcy court had to first abstain from hearing that matter itself. Therefore, we apply 28 U.S.C. ง 1334.
[3] We acknowledge that the Colorado district court has ruled that it does in fact have jurisdiction to determine the tax liabilities of the bankruptcy estates. That decision is currently on appeal to the 10th Circuit. However, the Colorado court's decision is not before us and we decline to address that court's findings.
[4] Section 502(c) provides:
There shall be estimated for purposes of allowance under this section โ
(1) any contingent or unliquidated claim, the fixing or liquidation of which, as the case may be, would unduly delay the administration of the case; or
(2) any right to payment arising from a right to an equitable remedy for breach of performance.
11 U.S.C. ง 502(c).
[5] Section 505 provides in pertinent part:
(a)(1) Except as provided in paragraph (2) of this subsection, the court may determine the amount or legality of any tax, any fine or penalty relating to a tax, or any addition to tax, whether or not previously assessed, whether or not paid, and whether or not contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction.
. . .
(b) A trustee may request a determination of any unpaid liability of the estate for any tax incurred during the administration of the case by submitting a tax return for such tax and a request for such a determination to the governmental unit charged with responsibility for collection or determination of such tax.
. . .
11 U.S.C. ง 505.
|
NOTE: This order is nonprecedential
United States Court of Appea|s for the Federa| Circuit
2010-3099
EUGENE SlV||TH,
Petitioner,
v.
0FF|CE OF PERSONNEL |V|ANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in case no.
DA344309D556-|-1 .
ON MOT|ON
Before L|NN, Circuit Judge.
0 R D E R
Eugene Smith requests that the court appoint counsel to represent him and
moves for reconsideration of the court's order denying his request for leave to proceed
in forma pauperis
Upon consideration thereof,
iT |S ORDERED THAT:
(1) Smith’s request that the court appoint counsel is denied Smith's opening
informal brief (form enclosed) is due within 30 days of the date of filing of this order.
(2) Smith’s motion for reconsideration is denied. Payment of the $450
docketing fee is due within 30 days of the date of filing of this order
FOR THE COU RT
HAY 1 1 2010 t ga lsi Jan Horba|V
Date j jan Horba|y f
Cl€I'k
cc: Eugene Smith (informa| brief form enclosed)
Antonia R. Soares., Esq.
FlLED
u.s. courier or APPEAi.s ron
320 THE 1=EnsRAL crRcurr
MAY 1 1 2010
}AN HORBALY
CLERK
2010-3099 2
|
985 F.2d 567
English (Dennis L.)v.Wade (John)
NO. 91-3476
United States Court of Appeals,Eighth Circuit.
Dec 03, 1991
Appeal From: S.D.Iowa
1
AFFIRMED IN PART, REVERSED IN PART.
|
992 F.2d 1216
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.Deborah Kaye HUDSON, Plaintiff-Appellee,v.WASHINGTON COUNTY, Tennessee, Defendant,Susan Mitchell STANLEY; Stewart L. Cannon, Jr.; John L.Kiener, in their Individual Capacities,Defendants-Appellants.
No. 92-5763.
United States Court of Appeals, Sixth Circuit.
April 5, 1993.
Before JONES and GUY, Circuit Judges, and LIVELY, Senior Circuit Judge.
PER CURIAM.
1
The plaintiff, a former public employee, brought this § 1983 action against her former county agency and several county officials alleging that she was terminated in retaliation for her statements to state investigators exploring possible misconduct in the county agency. The officials appeal the district court's denial of their motions for summary judgment on the ground of qualified immunity. Upon a review of the record, we affirm.
I.
2
Plaintiff, Deborah Hudson, began working for the Washington County, Tennessee, Juvenile Services Office in 1984, first as a volunteer and then as a secretary. In 1985, she was elevated to the rank of Juvenile Court Officer, or Youth Services Officer (YSO), as it was titled at the time of her discharge in 1990. She worked in a small office, which included a director, two YSOs, and a secretary. During most of Hudson's time at the Juvenile Services Office, Buddy Stuart was the director. It was an investigation of Stuart by the Tennessee Bureau of Investigation (TBI) and Hudson's involvement in that investigation which she alleges precipitated her discharge.
3
The TBI launched its investigation of Stuart after a former employee of the Juvenile Services Office publicly questioned Stuart's conduct in office. According to Hudson, she was then contacted by the TBI, and she complied with their request that she give a truthful statement regarding Stuart's behavior while in office. Hudson shared with the TBI her observations of Stuart, which included allegations that he misappropriated funds and equipment, falsified time records and mileage logs, and improperly handled checks and money orders. Hudson never publicly discussed these charges with the press or any other public body.
4
Stuart subsequently resigned from office on February 14, 1990, as part of an agreement with the district attorney that charges against Stuart would not be pursued any further in return for his resignation. At his deposition, the district attorney stated that he elected to reach such an agreement with Stuart in view of the small amount of money involved in the case and the expected cost of trying the matter.
5
After Stuart's resignation, defendant Susan Stanley was promoted to director of Juvenile Services. As director, Stanley was responsible for operation of the office, which is administered under the jurisdiction of the Washington County Juvenile Court and Judges Stewart Cannon and John Kiener, both of whom are defendants in this action. Hudson contends that when Stanley, Cannon, and Kiener became aware of her involvement in the TBI investigation, they harassed and threatened her.
6
Specifically, Stanley allegedly told Hudson that she did not want to work with a "narc," that she intended "to go after" those who made statements against Stuart, and that she would "help take care of" those who cooperated in the investigation of Stuart. Judge Kiener allegedly told Hudson that "he'd better not find out" that Hudson had cooperated in the investigation. All of these statements occurred prior to Stuart's dismissal.
7
After Stuart's discharge, Hudson alleges that the harassment and retaliation continued. Her job responsibilities were lessened, summaries of staff meetings were not distributed to her, and her desk was moved to a back office so that she had less contact with the entire office. In addition, Stanley complained about Hudson's work habits despite her excellent work record compiled prior to the TBI investigation. Finally, on August 31, 1990, she was fired by Judges Cannon and Kiener, who controlled personnel decisions in the office.
8
Defendants contend that several legitimate reasons exist for Hudson's termination which do not implicate the First Amendment. According to the defendants, Hudson's accusations destroyed the harmony in the office and disrupted staff relations. Her alleged insubordination, unprofessionalism, absenteeism, failure to take responsibility, lack of creativity, and lack of a college degree all contributed to her termination.
9
The trial court denied the defendants' motion for summary judgment. In response to the defendants' argument that Hudson's allegations failed to state a claim under the First Amendment, the court stated that "plaintiff's allegations do concern speech which was a matter of public concern, and that balancing of interests does not require a different conclusion at this juncture, because ... 'speech disclosing public corruption is a matter of public interest and therefore deserves constitutional protection,' and this form of alleged disloyalty does not affect the proper functioning of the department if the speech was made because the office was not functioning properly due to malfeasance." (App. 35-36). Finding such a doctrine "well-settled," the court likewise denied the defendants' qualified immunity motion.
II.
10
Defendants argue on appeal that they are entitled to qualified immunity from Hudson's First Amendment claim, because the law on a public employee's First Amendment rights in August 1990 was neither simple nor clear. Moreover, defendants assert that they acted in an objectively reasonable manner in terminating Hudson, because she did much in the intervening period between her First Amendment statements to the TBI and her termination which justified her dismissal.
11
A government official acquires qualified immunity if his or her conduct does not violate clearly established federal "statutory or constitutional rights of which a reasonable person would have known" at the time the action was taken. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The proper inquiry is not whether the claimed right existed in the abstract, but whether a reasonable official would have known that the challenged conduct violated that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Under this test, then, a public official will be immune from suit "if officers of reasonable competence could disagree" on whether the conduct violated the plaintiff's rights. Malloy v. Briggs, 475 U.S. 335, 341 (1986). A reviewing court must therefore examine, first, whether a plaintiff has demonstrated a clearly established right existed that was violated by the defendant; and second, whether a reasonable official in the defendant's position should have known at the time he acted that his conduct violated that right. Meyers v. City of Cincinnati, 979 F.2d 1154, 1156 (6th Cir.1992). Since the applicability of a qualified immunity defense is a pure question of law, we review the district court's decision de novo. Grossman v. Allen, 950 F.2d 338, 341 (6th Cir.1991).
12
At the time of Hudson's termination in August 1990, the general contours of public employees' First Amendment rights were clear. As we stated previously, "speech of a public employee is protected if (1) the speech addresses a matter of public concern, and (2) the employer has no overriding state interest in efficient public service that would be undermined by the speech." Meyers, 979 F.2d at 1157 (citations omitted); see also Connick v. Myers, 461 U.S. 138, 146-50 (1983); Pickering v. Board of Educ., 391 U.S. 563 (1968).
13
On appeal, defendants do not seriously question whether Hudson's speech to the TBI involved a matter of public concern. Nor could they, for we have held previously that speech disclosing public corruption is a matter of public interest. Solomon v. Royal Oak Township, 842 F.2d 862, 865 (6th Cir.1988); Marohnic v. Walker, 800 F.2d 613, 616 (6th Cir.1986) (plaintiff's cooperation with a Kentucky Attorney General's investigation resulting in an admission of fraudulent billing but in no interference with the operation of the agency was protected under the First Amendment). Rather, defendants contest whether Hudson met the second prong of the First Amendment analysis, because the value of her speech on a matter of public concern must be weighed against its impact upon the efficiency, discipline, and proper administration of the Juvenile Services Office. See Pickering, 391 U.S. at 569-70; Marohnic, 800 F.2d at 616.
14
Thus, we must decide whether the defendants reasonably could have believed that the harm to the office's efficiency outweighed Hudson's interest in speaking freely. Gossman, 950 F.2d at 343 n. 2. Having undertaken that analysis, we find that no reasonable public official could have concluded in August 1990 that Hudson's free speech interests were outweighed by concern for office efficiency. Indeed, as we have stated previously, public employees' speech regarding corruption increases efficiency by aiding in the disclosure of fraud and other misconduct. Marohnic, 800 F.2d at 616 ("[W]hen an employee exposes unscrupulous behavior in the workplace, his interests are co-extensive with those of his employer; both want the organization to function in a proper manner"); see also Solomon, 842 F.2d at 866 (rejecting defendnat's claim that plaintiff's speech fails second prong of Pickering analysis, because plaintiff's "statements were made because the office was not functioning properly due to [defendant's] malfeasance").
15
Defendants argue that in August 1990 the law was both unsettled and quite fact specific as to each case, making it impossible for reasonable public officials to determine whether a claimed First Amendment violation was clearly established. They cite McMurphy v. City of Flushing, 802 F.2d 191 (6th Cir.1986), in support of their claims that the law in this area is somewhat confused. We fail to see any inconsistency between McMurphy and other case law in this area which stands for the proposition that disclosure of corruption deserves constitutional protection.
16
McMurphy involved a policeman who had been suspended for disclosing to a newspaper reporter alleged misconduct and cover-ups within the police department. Sixty days later, plaintiff was fired for insubordination and misconduct after he ridiculed the city manager and chief of police and threatened to "get them"; approached council members while in uniform and made disparaging statements about the city manager and chief of police; made critical statements about the chief of police to another chief of police; posted cartoons disparaging the police department; and wrote anonymous inflammatory letters to the local press and councilmen. Id. at 194. Plaintiff challenged his dismissal on First Amendment grounds, and we affirmed summary judgment against the officer.
17
Importantly, we noted at the outset that if the plaintiff had been discharged for telling a newspaper reporter that misconduct existed in the police department, "an entirely different view of [the] case would be required." Id. at 196. However, plaintiff contested only his discharge, and we upheld the district court's conclusion that plaintiff's post-suspension behavior was the result of spite and frustration, and his conduct imparted no information on matters of public concern. Thus, the plaintiff in McMurphy could not cloak himself in the First Amendment's protection.
18
In Guercio v. Brody, 911 F.2d 1179 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 168 (1991), we further clarified the distinction between speech which highlights public corruption and therefore deserves constitutional protection and other speech which is often outweighed by governmental concerns for efficiency. In Brody, a secretary working for a United States bankruptcy judge in the Eastern District of Michigan aided in the investigation of another bankruptcy judge in that court who later resigned after disclosures of corruption. After a replacement had been named but prior to his confirmation, the secretary circulated several newspaper articles to the press and others which discussed the nominee's purported representation of organized crime figures during an earlier stage of his career. The secretary was discharged with the approval of the chief district judge. The secretary then filed suit against both her bankruptcy judge employer and the chief district judge.
19
We granted qualified immunity to the chief judge, but only after considering plaintiff's First Amendment right to leak old newspaper articles to the press against "the public interest in restoring morale, cooperation, public respect and confidence to the Bankruptcy Court for the Eastern District of Michigan." Id. at 1187. Significantly, however, we also stated that, up to the point at which the plaintiff circulated the dated news articles critical of the nominee, "judges of reasonable competence could not but have believed that [plaintiff's] job security was protected by the first amendment as interpreted in Pickering." Id. at 1186. Therefore, where, as here, the alleged First Amendment activity consists solely of aiding an investigation of public officials, a plaintiff's free speech interests outweigh an employer's interest in efficient government service.
20
Defendants next lament the fact that denying them qualified immunity will allow Hudson "to use a colorable First Amendment statement to shield her from any and all future personnel actions." (Defs' Brief p. 27). Our decision does nothing to further that result. Rather, as McMurphy illustrates, the propriety of Hudson's discharge centers on the factual question of whether the defendants had proper motives for their action. In order to establish a prima facie First Amendment violation, Hudson msut demonstrate that her protected conduct motivated the defendants' action. See Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). As the issue of defendants' intent is not before us in this interlocutory appeal of the trial court's denial of qualified immunity, we need not consider it further.
21
AFFIRMED.
|
276 F.2d 344
Isaias Rodriguez RODRIGUEZ, Plaintiff, Appellant,v.SECRETARY OF The TREASURY OF PUERTO RICO, Respondent, Appellee.
No. 5557.
United States Court of Appeals First Circuit.
March 30, 1960.
Elmer Toro-Lucchetti, San Juan, P. R., for appellant.
Carlos G. Latimer, Asst. Solicitor Gen., Santurce, P. R., with whom J. B. Fernandez Badillo, Solicitor Gen., San Juan, P. R., was on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
1
This is an appeal to review a decision of the Supreme Court of Puerto Rico which affirmed, without opinion, a judgment of the Superior Court. The only question before us is whether a decision against appellant Rodriguez, hereinafter called taxpayer, was necessarily wrong. We consider the record, of course, most strongly in favor of appellee Secretary of the Treasury, hereinafter sometimes called the government. At the same time, we cannot disregard findings of fact of the trial court in taxpayer's favor that are supported by evidence, or uncontradicted admissions elicited from government witnesses.
2
In 1947, within the period of the seven-year statute of limitations, a dispute arose concerning taxpayer's 1939-1941 income tax. Appellant and his wife retained an agent, one Villariny, to represent them. A written appointment of Villariny was filed with the government authorizing him to "handle all matters concerning our income-tax returns for the years beginning with 1939." While discussions were proceeding the statute was about to run, and twice Villariny, with taxpayer's approval, executed one-year waivers of the period of limitation. In July 1950, taxpayer, after conferences with officials of the Bureau of Income Tax, paid in some $31,000, the amount administratively determined to be due. However, this figure had not been verified by the final authorities and, to quote the Superior Court, "taxpayer `was informed' in the Bureau that it was still necessary to examine what had been done with respect to figures only." As the statute was again about to run he was requested to execute further waivers, and was given printed forms which were unconditional in terms. The court found that taxpayer was "not inclined to sign," but that Villariny advised him to do so, and "also advised him to restrict or limit his waivers." The court further found that taxpayer "advised Villariny that they would have to be conditioned, otherwise he would have not signed them."
3
Taxpayer signed the waivers and gave them to Villariny to forward to the government. On August 14, 1950, Villariny did so, with a covering letter, reciting that the deficiency as presently determined had been paid in full. He added the following postscript:
4
"We understand that, in any event, these waivers apply exclusively to the deficiencies notified prior to the date of this notice for the years 1939 to 1941."
5
On evidence accepted by the court we must conclude this to have been the understanding of taxpayer, as well as of Villariny. The letter and the three waivers were received in the Bureau that day, and the Treasurer signed the forms in the space provided.
6
In 1951, long after the period of limitation would otherwise have expired, the government assessed new deficiencies for the years 1940-41, unrelated to those under consideration in 1950. Taxpayer has no defense on the merits. He pleads the statute of limitations, claiming that the waivers, in view of the postscript in the forwarding letter, are not applicable. The government's position is that the postscript was without effect, so that the waivers are to be taken as unconditional. Before discussing this contention, some further facts are pertinent. When the government received Villariny's original authorization to represent taxpayer, its practice was to accept waivers although signed only by an agent. Sometime in 1950 what was described by one witness as an "unlucky incident" occurred. According to government trial counsel, "several taxpayers appeared in Court to challenge the capacity of their attorney in fact to sign waivers." As a result the government changed its practice, and concluded not to accept waivers unless signed by the taxpayer himself, or by a representative with a more specific written power of attorney than that here given Villariny. The government admits that it did not make this practice public until 1951. The Bureau witness testified that neither taxpayer, nor Villariny, nor anyone else was notified, and the court so found.1 It is clear that even giving full recognition to the new practice (disclosed or undisclosed) Villariny's authority to represent taxpayer was not varied, so far as the government was concerned, in any other respect. The government also concedes that a taxpayer is free to limit a waiver to any extent he desires. Buscaglia, Treas. v. Tax Court, Ana Maria Sugar Co., Intervenor, 1947, 67 P.R.R. 650; Clinica Julia, Inc. v. Secretary of the Treasury, 1954, 76 P.R.R. 476, 506-08. This does not mean, of course, that the government must accept a limited waiver. And in fact, an official of the Bureau testified that had the waiver been limited on its face, it would not have been accepted. However, this evidence must be taken as a whole, and the balance of his testimony was that had taxpayer not presented an acceptable waiver, a $2,000 jeopardy assessment would have been made as a protection in case the $31,000 payment proved inadequate on final check. In other words, no assessment would have been made with relation to the present matter, some $29,000 additional.
7
We therefore have a record where a government representative asked a taxpayer for a waiver for a special purpose, but gave him an unlimited form, and the taxpayer executed and delivered the form, but instructed his agent whom he authorized to make the delivery to state that he understood that it was for that purpose only, and the government, with knowledge of that understanding, accepted the waiver, but secretly rejected the condition, and is now relying on the waiver to justify an assessment for a different matter, many times the size it would have made had no waiver been tendered. The court held the government had a right to do this. The question presented is whether there is a possible basis for supporting that conclusion.
8
The Superior Court concluded that the government was free to disregard the letter, and treat the waiver as a separate, and therefore unconditional document. Its reasoning was that "For the purposes of the waiver * * *, Villariny was no longer the representative, expressly authorized therefor, of the taxpayer," and that the letter simply stated "Villariny's conclusions and opinions. * * * The defendant [Treasurer], in turn, understood something else." (Ital. in original). All of this, except the last sentence of the second quotation, appears to us contrary to the express findings of fact made by the court. The balance, with all due respect, merely assumes the point. As already mentioned, the Supreme Court, in affirming, wrote no opinion. We proceed, therefore, to consider the government's brief. It makes the following arguments:
9
"A. The waiver signed by the taxpayer is not susceptible of being interpreted as including the condition expressed in Mr. Villariny's letter.
10
"B. The appellant is estopped from claiming that Mr. Villariny's letter limited the effect of the waiver he signed.
11
"C. Whatever power Mr. Villariny had been conferred by the appellant regarding waivers to the period of limitations was automatically revoked when his principal decided to act, and acted personally."
12
In support of point (A) the government says, "It is clear that a waiver of the period of limitations for the assessment of deficiencies which have already been paid by the taxpayer, as had happened in this case in effect waives absolutely nothing. Thus if the appellant's contention is to stand, it must follow that the taxpayer sent a meaningless document to the Treasurer and that the latter accepted it and was satisfied with such meaningless document. * * * [T]he only way to avoid labeling it a futile act was by discarding Mr. Villariny's postscript." This contention overlooks the plain factual findings. As the court said, "it was still necessary to examine what had been done with respect to figures only. * * * [P]rior to August 14, 1950, the Treasurer had [not] determined definitely the exact total amount * * *." Again, it speaks of the prior determination as "merely tentative." (All itals. in original). In other words, a waiver for the express purpose stated in the postscript was not only precisely in accord with what the court found to be the taxpayer's intent, but covered exactly the contingency in which the Bureau professed concern.
13
However, the government does not let the matter rest there, but incorporates the same statement into its next argument, (B), estoppel. It says, "if the taxpayer * * * intended that his agent should render it worthless by limiting it to a situation that could not possibly exist, then his hands are not clean * * *. Clearly every element of estoppel is present." Estoppel is a poor doctrine for the government to invoke. If anything, the shoe is on the other foot. The right to assess a new, wholly unrelated deficiency, is a substantial matter. Cf. Porto Rico Railway, Light & Power Co. v. Buscaglia, Treas., 1943, 62 P.R.R. 572. Here is the government requesting a waiver for an announced special purpose, receiving it back in a letter which states that the taxpayer understands that it is solely for that purpose, and then using the waiver in order to make an assessment for an entirely different purpose. This in the face of unequivocal government testimony that had the waiver not been received it would have made a limited jeopardy assessment of $2,000 (none of which, so far as now appears, would have been required, or is presently involved), rather than for the $29,000 it now seeks. The government's claim of estoppel is without merit.
14
Appellee's final point, (C), is perhaps the nub of its argument — namely that taxpayer's personal execution of the waivers automatically revoked Villariny's authority with relation thereto. The government alleges, as a principle of Puerto Rican law, that an agent's authority "is automatically and necessarily revoked when his principal undertakes to perform the same act." The principle referred to, however, is not peculiar to Puerto Rican law, but, as the government itself states, "is also accepted in Anglo-American Law. Such concept is based on the fact that such conduct by the principal is, necessarily, conduct inconsistent with the agency." We fully accept the principle so defined, if it is understood as merely indicating one method by which the principal may manifest an intent to revoke the agency. 1 Restatement, Agency 2d § 119, Com. (b) (1958). But here again, we have the vice underlying the government's two previous arguments, namely, the assumption that the letter if read into the waiver, destroyed the waiver and made it a "worthless document." Here again, the government overlooks the fact that the letter, rather than being "necessarily . . . inconsistent" with the principal's act, was both consistent, and in accordance with the principal's express instructions. The doctrine on which the government relies, in other words, is not applicable to the facts.
15
We think the difficulties in this case may have stemmed from the government's practice not to accept waivers signed by agents without express written authorization more specific than that here given Villariny. This practice was for the government's protection in case of a claim that the agent had gone beyond his authority in binding the taxpayer to too much. We perceive no basis for applying it to an act by the agent that limits a taxpayer's obligation. But even if the practice were construed to mean the government did not choose to regard any letter from an agent as authorized, such undisclosed practice could not affect the principal. "The taxpayer was entitled to assume that the views of the Treasury Department remained the same until they were changed and the taxpayer was advised thereof." West India Oil Co. v. Buscaglia, Treas., 1948, 68 P.R.R. 733, 735. So far as the record is concerned, taxpayer had no reason to suppose that Villariny was not his recognized agent, with as full powers with respect to waivers as he had had in the past when the waivers themselves had been signed by him. The government might elect not to deal with taxpayer at all if he acted through Villariny. But the delivery of the waivers and the delivery of the letter was a single act, and the government could not accept the one and, by some private practice, choose to overlook the other on the ground of not recognizing the agent's authority with respect to it. The letter must stand on the same basis that it would if taxpayer had written it himself.
16
Nor could the government rely on a policy that it would not accept limited waivers even if executed by the taxpayer. There is no suggestion that the government informed taxpayer of any such policy. Even if it could be said to have done so by the act of giving him an unconditional form, the fact remained that taxpayer tendered a waiver for limited use, and the government accepted it with knowledge of the proposed limitation. Where an offeror presents two contemporaneous writings, even though one is formal and complete on its face, and the other informal, the offer is both. The other party is free to reject both. But it cannot accept the one, and disregard the other. Bond v. Wiegardt, 1950, 36 Wash.2d 41, 216 P.2d 196; V-1 Oil Co. v. Anchor Petroleum Co., 1959, 8 Utah 2d 349, 334 P.2d 760.2 If the government had a practice not to accept limited waivers, and all it received was a limited waiver, it nonetheless could not unilaterally enlarge the waiver it received into something else.3
17
We find ourselves unable to escape the conclusion that the government had no possible right to rely upon a waiver asked for, and tendered for one explicitly expressed purpose only, to support an entirely different purpose. The government is seeking a windfall to which it is not entitled.
18
Judgment will enter vacating the judgment of the Supreme Court of Puerto Rico, and remanding the case for further proceedings.
Notes:
1
"The taxpayer himself would have included the limitation or condition which was attached to Exhibit 8 by J. C. VillarinyIf he had been informed personally of the change in the practice in the Treasury Department, then on August 14, 1950 he would have signed himself the limitation which Villariny added in his letter of that date." (Ital. suppl.) The government seeks to argue, although it admits it is "not completely clear," that there was evidence which "tends to indicate" that taxpayer and Villariny knew of the change in Bureau practice, but we regard such argument impermissible under the circumstances.
2
We find singularly few cases on this subject, but nothing in favor of the government except the dissenting opinion in the V-1 Oil Co. case. That case involved, strictly, a qualified acceptance — a formal document, and covering letter — which the court held constituted a counter-offer, which should have been rejected if the other party was not agreeable thereto. The dissenting judge stated, without citation of authority, that the majority decision violated the parol evidence rule. That is not so. The parol evidence rule merely provides that the integrated contract must stand by itself, but the rule has no place in determining what constitutes the integrated contract. In a discussion of this point by Corbin, The Parol Evidence Rule, 53 Yale Law Journal 603, at 615, it was said,
"Signing a formal agreement and sending it along with a modifying letter to the other party does not so far integrate the contract as to prevent proof of the modifying letter. Retention by the other party and acceptance of performance will operate as an assent to the modification."
This matter is fully dealt with in the Wiegardt opinion. See also 1 Restatement, Contracts § 237, Com. (b) (1932), where the parol evidence rule is set forth so as to exclude its application in the case of contemporaneous writings relating to the same subject matter, because "both form part of the integration."
3
If it be said that a waiver is not a contract, but "a voluntary, unilateral waiver of a defense by the taxpayer," see Cia. Azucarera del Toa, Inc. v. Tax Court, 1951, 72 P.R.R. 850, 861, there is all the less reason for construing it to mean something greater than its stated intended scope. If the waiver was not a contract, the principle of estoppel may become applicable, see Cia. Azucarera, supra, at 863, but in that event, having in mind that it is not the $2,000 assessment the government is now seeking to make, we should be forced to hold that estoppel is presently against the government, not in its favor. The Cia. Azucarera case is also authority for the principle of Puerto Rican law that despite the language of the Income Tax Act of 1924, 13 L.P.R.A. § 779(b), the Treasurer need not sign a waiver. The government can therefore not rely on the fact that the Treasurer's signature was added only to the waivers and not to the letter
|
125 F.3d 851
Chisholmv.Coll*
NO. 97-30032
United States Court of Appeals,Fifth Circuit.
Aug 19, 1997
Appeal From: E.D.La. ,No.96CV976
1
Affirmed.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34-2
|
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 3, 2018
Plaintiff-Appellee,
v No. 335670
Wayne Circuit Court
JASON CONRAD STREATER, LC No. 16-004292-01-FC
Defendant-Appellant.
Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ.
PER CURIAM.
Following a bench trial, the circuit court convicted defendant of first-degree arson, MCL
750.72, assault with intent to commit murder, MCL 750.83, torture, MCL 750.85, and unlawful
use of a chemical irritant device causing serious impairment, MCL 750.200j(2)(d), for luring his
girlfriend downstairs in their home by triggering a smoke detector, then dousing her with
gasoline and setting her on fire. As a result of the crimes, the victim was permanently scarred
and disfigured, and her voice permanently impaired due to a tracheotomy she needed for
treatment. The trial court sentenced defendant to 30 to 60 years’ imprisonment for his arson,
assault, and torture convictions and 2 to 25 years’ imprisonment for the use of a chemical irritant
device conviction.
Defendant raises a number of issues: that the torture conviction cannot stand due to
insufficient evidence; that the sentence imposed was improper, and in a related argument, that
the trial judge should be disqualified and the case remanded to a different judge for resentencing;
and that the presentence investigative report (PSIR) contained errors which should be corrected.
We reverse the torture conviction. We also vacate the sentences imposed and remand for
resentencing in accordance with People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017)
(Steanhouse II), which had not been decided at the time of sentencing in this case. We will not
remand to a different trial judge for resentencing as we find no basis for doing so. And finally,
because on remand the trial court necessarily will have to recalculate the sentencing guidelines, it
will have the opportunity to correct any issues with the PSIR if such issues continue to exist
upon recalculation of the guidelines. Thus, we decline to further address that issue.
-1-
I. TORTURE CONVICTION
On appeal, the prosecution concedes that defendant’s conduct did not meet the statutory
definition of torture and, as a result, concedes that the torture conviction cannot stand. The
prosecution’s concession is well taken. If sufficient evidence of each element of an offense is
not introduced at trial, due process requires that the conviction not stand. People v Hampton,
407 Mich 354, 368; 285 NW2d 284 (1979).
The torture statute, MCL 750.85, provides, in relevant part:
(1) A person who, with the intent to cause cruel or extreme physical or
mental pain and suffering, inflicts great bodily injury or severe mental pain or
suffering upon another person within his or her custody or physical control
commits torture and is guilty of a felony punishable by imprisonment for life or
any term of years.
(2) As used in this section:
* * *
(b) “Custody or physical control” means the forcible restriction of a
person’s movements or forcible confinement of the person so as to interfere with
that person’s liberty, without that person’s consent or without lawful authority.
Defendant did not forcibly cause the victim to come downstairs. He did not directly
apply force to her to restrict her movements or to forcibly confine her to a single area. Rather, he
lured her downstairs by setting off the smoke detector. At that point, the victim could have taken
one of several different actions, none of which involved her forcible confinement. She was not
physically forced downstairs into the kitchen. Instead, she woke up and went downstairs
unrestrained and under her own power to investigate the smell. Thus, while defendant’s actions
constituted a number of serious crimes, torture was not one of them because there was no basis
for finding that the custody or physical control element was met. We therefore reverse that
conviction, and on remand the trial court shall dismiss that charge with prejudice.
II. SENTENCING
Defendant argues that the sentences imposed were improper. Because the sentences were
imposed prior to our Supreme Court’s decision in Steanhouse II, the trial court was unaware of
the sentencing framework established by that case.1 Steanhouse II reaffirmed the principle set
1
The timeline relevant to this case is as follows:
July 29, 2015: the Michigan Supreme Court decided People v Lockridge, 498 Mich 358;
870 NW2d 502 (2015).
October 22, 2015: this Court decided People v Steanhouse, 313 Mich App 1; 880 NW2d
297 (2015) (Steanhouse I), aff’d in part and rev’d in part by Steanhouse II.
-2-
forth in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), that “the legislative
sentencing guidelines are advisory in all applications.” Steanhouse II, 500 Mich at 459.2 In
addition, Steanhouse II held that the sentencing standard to be applied by trial courts to departure
sentences is the principle of proportionality enunciated in People v Milbourn, 435 Mich 630,
661; 461 NW2d 1 (1990). Steanhouse II, 500 Mich at 471.
The dissent observes that “Steanhouse II did not change any of the rules that applied to
trial courts when defendant was sentenced[.]” However, Steanhouse II did significantly settle
what was at that time a highly unsettled state of the law. This Court’s opinion in Steanhouse I
already had issued. But so had Masroor. See note 1, supra. And Masroor had advocated a
significantly different approach to proportionality review and had sought a conflict panel
regarding Steanhouse I pursuant to MCR 7.215(J). While this Court declined to order a conflict
panel, our Supreme Court granted leave in Steanhouse I and Masroor and consolidated the two
cases. Such was the state of the law at the time of sentencing in this case.
In Steanhouse II, the Supreme Court resolved the conflict between Steanhouse I and
Masroor by adopting parts of Steanhouse I and rejecting other parts of Steanhouse I.
Importantly, it expressly repudiated “dicta in our proportionality cases [that] could be read to
have ‘urg[ed] that the guidelines should almost always control[.]’ ” Steanhouse II, 500 Mich at
474 (citations omitted). Additionally, Steanhouse II reaffirmed that “the key test is whether the
November 24, 2015: this Court decided People v Masroor, 313 Mich App 358; 880
NW2d 812 (2015), aff’d in part and rev’d in part by Steanhouse II.
May 25, 2016: Michigan Supreme Court granted leave to appeal in Steanhouse I and
Masroor and consolidated them for argument and submission. People v Steanhouse,
499 Mich 934 (2016).
August 30, 2016: Defendant found guilty after a trial.
September 22, 2016: Defendant sentenced.
July 24, 2017: the Michigan Supreme Court decided Steanhouse II, 500 Mich 453,
affirming in part, reversing in part, and remanding.
December 5, 2017: this Court decided People v Steanhouse (On Remand), 322 Mich App
233; 911 NW2d 253 (2017) (Steanhouse III).
2
At sentencing in this case, the trial court commented that although there previously had been
sentencing guidelines, there were “now no guidelines.” As discussed more fully below, this case
would have to be remanded for consideration of the principle of proportionality as set forth in
Steanhouse II no matter what, but we note that the trial court’s formulation, whether it was due
to simply misunderstanding Lockridge or to an inartful expression of the fact that the guidelines
are no longer mandatory, was incorrect as stated. “[T]he guidelines ‘remain a highly relevant
consideration in a trial court’s exercise of sentencing discretion’ that trial courts ‘must consult’
and ‘take . . . into account when sentencing.’ ” Steanhouse II, 500 Mich at 474-475, quoting
Lockridge, 498 Mich at 391.
-3-
sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres
to the guidelines’ recommended range.” Id. at 475. Thus, “[r]ather than impermissibly
measuring proportionality by reference to deviations from the guidelines, our principle of
proportionality requires ‘sentences imposed by the trial court to be proportionate to the
seriousness of the circumstances surrounding the offense and the offender.’ ” Id., quoting
Milbourn, 435 Mich at 636. Indeed, even today, the question of “to what extent the sentencing
guidelines should be considered to determine whether the trial court abused its discretion in
applying the principle of proportionality under [Steanhouse II]” is in fact an unsettled question,
causing the Supreme Court to consider whether to grant leave to answer it. People v Dixon-Bey,
___Mich ___ (Docket No. 156746) (2018).3
The net effect of all of this is that, at the time of sentencing, the entire sentencing
framework was unsettled. Under these circumstances, we think the proper approach is to vacate
the sentence and permit the trial court to articulate its rationale for why the principle of
proportionality as articulated in Steanhouse II and Milbourn justifies the sentence it imposes,
rather than our doing so in the first instance, as the dissent would have it. Contrary to the
dissent, this is not a Crosby4 remand; we are remanding because the contours of the principle of
proportionality and their relation to the guidelines were changed in some respects by Steanhouse
II, and we think the trial court should first have the opportunity to consider them before its
decision is reviewed for error.5 On remand, the trial court must properly calculate the guidelines
3
The dissent bases its analysis almost exclusively on the sentence’s departure from the
guidelines’ recommended range rather than whether it is proportionate to the seriousness of the
matter. The dissent states, “A common thread in the line of sentencing cases both before and
after Lockridge is that a court may not depart from the guidelines range based on factors already
taken into account by the guidelines unless the court articulates a legitimate reason for doing so.”
The dissent’s approach seems to fly in the face of Lockridge’s holding that “[w]e also strike
down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable
guidelines range must articulate a substantial and compelling reason for that departure.”
Lockridge, 498 Mich at 364-365. The dissent’s analysis is based almost entirely on the fact that
the sentence departed from the guidelines or, in the dissent’s view, that the factors at issue
already were considered by the guidelines, rather than whether the sentences were proportionate.
We have serious doubts about the dissent’s approach to this issue, but in light of our disposition
of the case need not decide that issue.
4
United States v Crosby, 397 F3d 103 (CA 2, 2005).
5
We note that this Court’s opinion in Masroor, which our dissenting colleague joined,
considered noteworthy the fact that “[n]either trial nor appellate counsel had the benefit of
Lockridge when they formulated their objections to defendant’s departure sentences.” Masroor,
313 Mich App at 371. We read the point cited from Masroor as supporting the proposition that
parties, and by implication, a court, should in the first instance have an opportunity to apply a
legal principle which it has not had a fair opportunity to apply to ongoing litigation, and which
renders the law unclear. Here, of course, the trial court had not “had the benefit of [Steanhouse
II] when it formulated” its sentence. This was particularly significant as one of the issues on
-4-
range, of course without reference to the now-vacated torture conviction. The trial court must
then proceed to resentence defendant in accordance with the principle of proportionality as set
forth in Steanhouse II and Milbourn, and must provide its reasons for the sentence imposed so
that reviewing courts may engage in appropriate review. See Steanhouse II, 500 Mich at 476;
People v Smith, 482 Mich 292, 304-305; 754 NW2d 284 (2008). Because any review would be
for an abuse of discretion, see Steanhouse II, 500 Mich at 471, and “[a]t its core, an abuse of
discretion standard acknowledges that there will be circumstances in which there will be no
single correct outcome; rather, there will be more than one reasonable and principled outcome,”
People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003), the trial court must provide
reasons for why its particular decision is reasonable. In that regard, it may be helpful for the trial
court to discuss why it views its decision as more reasonable than other alternatives which
themselves also could be deemed reasonable. However, none of this should be taken by the
sentencing court as requiring any particular procedure other than a proper calculation of the
guidelines, a proper consideration of the principle of proportionality, and a sufficient statement
of reasons so that any sentence imposed may be properly reviewed on appeal.
III. JUDICIAL DISQUALIFICATION
Defendant contends that resentencing should be assigned to a different judge as the
current judge would have difficulty setting aside her previously expressed views. We disagree.
In deciding whether resentencing should occur before a different judge, this Court
considers:
(1) whether the original judge would reasonably be expected upon remand to have
substantial difficulty in putting out of his or her mind previously-expressed views
or findings determined to be erroneous or based on evidence that must be rejected,
(2) whether reassignment is advisable to preserve the appearance of justice, and
(3) whether reassignment would entail waste and duplication out of proportion to
any gain in preserving the appearance of fairness. [People v Hill, 221 Mich App
391, 398; 561 NW2d 862 (1997) (quotation marks and citations omitted).]
In cases in which the trial court’s errors during sentencing stem primarily from an
“incorrect understanding of the new sentencing structure that now exists . . . and not to any
prejudices or improper attitudes regarding this particular defendant,” reassignment is
unwarranted. People v Hegwood, 465 Mich 432, 440 n 17; 636 NW2d 127 (2001). However,
“[a] case should be assigned to a different judge if it would be unreasonable to expect the trial
judge, given her handling of the matter, to be able to put previously expressed findings out of
mind without substantial difficulty.” People v Pillar, 233 Mich App 267, 270-271; 590 NW2d
622 (1998).
which our Supreme Court granted leave was “what standard applies to appellate review of
sentences following the decision in [Lockridge].” Steanhouse, 499 Mich at 934.
-5-
The trial judge here committed no error cognizable at this stage of the proceedings, nor
has any finding or statement that she made been determined to be erroneous. Rather, we are
remanding for resentencing only because Steanhouse II clarified the sentencing regime after
sentencing had taken place. Thus, this case is one step removed even from Hegwood because the
sentencing judge did not and obviously could not have had an “incorrect understanding of the
new sentencing structure which now exists” as a result of Steanhouse II, as Steanhouse II had not
yet been decided at sentencing. We do not determine that any views or findings must be rejected
on remand as the trial court has not yet articulated its reasoning in applying the principle of
proportionality with the benefit of Steanhouse II. Thus, there is no basis for concluding in any
respect that the trial judge should not handle the resentencing, let alone a basis for overcoming
the “heavy presumption of judicial impartiality.” People v Wells, 238 Mich App 383, 391; 605
NW2d 374 (1999).
Nonetheless, the dissent goes on to argue for reassignment to a different judge, stating
that “given the trial court’s undisguised loathing of defendant, the court is unlikely to put aside
its views and sentence him on a clean slate.”6 The dissent also states that “reassignment is
necessary to preserve the appearance of justice. Defendant committed a terrible crime. But by
calling defendant a ‘monster’ and a predator the trial court has signaled that it finds him
unworthy of the balanced consideration required by Milbourn.”
In arguing for the recusal of the trial judge on remand, the dissent cites Commonwealth v
Spencer, 344 Pa Super 380, 399; 496 A2d 1156 (1985) (SHOYER, J., concurring), for the
proposition that “[t]he sentencing judge should appear as the fountainhead of justice, not the
spirit of revenge.” Setting aside that Spencer (a concurring opinion no less) is obviously not
controlling in a Michigan court, the level of generality of the quoted statement is both non-
objectionable and of little guidance; we simply disagree that the trial judge here displayed overt
bias and partiality.
We also note that the dissent avoids saying anything about what the sentencing judge
actually said in in Spencer. The defendant in Spencer was a sixteen year old who, despite being
a juvenile, was being prosecuted as an adult. Spencer, 344 Pa Super at 388-390. He had a
history of arrests beginning at age 13, and from the ages of 15 and 16 was convicted twice for
burglary, as well as theft and attempted burglary. In sentencing the defendant, the trial judge in
Spencer stated:
[A]fter reviewing in detail the facts concerning this crime, once again stating that
it is one of the most despicable crimes I have seen in six years on the bench, I feel
that the defendant as a result of his activity has forfeited his right to exist in this
6
Although the dissenting judge states that she “will not presume to read the trial court’s mind,”
the only basis for finding that the trial judge here “loathed” defendant would in fact be reading
the trial judge’s mind. The trial court did consider the nature of the offenses and the impact of
the crimes on the victim, but considering such factors is entirely appropriate and thus can in no
way be deemed to constitute personal animus towards a defendant.
-6-
community, on the street at least, and that the elderly of this City must be
protected from animals such as this. And I shouldn’t use the term “animals”
because, as I have said, it denigrates the animal kingdom when referring to people
like this.
If there was ever a case where the death penalty should be imposed, I would
gladly pull the switch on you, Chief. I can’t think of anything worse that you
could do to human beings than what you did to these elderly people. And you
consistently did it. You went back and went back. It wasn’t an isolated instance.
You took advantage of people on their death beds. I think the youngest victim
was 79. The oldest was 89, who subsequently died as a result of your activity.
But that’s not the case before me. That’s just another one of your little asides.
Elderly people in this City must be protected from animals like you. When you
get out of prison, you are going to be part of that elderly, I hope anyhow.
Thus, the sentencing judge in Spencer (1) compared the defendant unfavorably to animals; (2)
advocated for the death penalty for the defendant and would have gladly carried it out
personally; (3) referred to the defendant with the derogatory name “Chief”; (4) and expressly
hoped that the defendant would be elderly when released from prison.
By contrast, the sentencing judge here expressed her view of defendant’s relationship
with the victim; noted that the victim was, in the judge’s opinion, vulnerable psychologically;
noted the impact on the victim’s daughter of seeing her mother burned and scarred, with lifelong
disfigurement; and once referred to defendant as “a monster.” Other than the monster reference,
none of the trial court’s comments is even arguably improper as they all relate to appropriate
considerations at sentencing. This Court has stated that “[t]he impact of a crime on a victim is a
valid sentencing consideration.” People v Jones, 179 Mich App 339, 342; 445 NW2d 518
(1989). “We do not believe that the judge’s consideration of the impact of the crime on the
victim amounted to a prejudice or bias that deflected him from making a sentencing decision
within” proper considerations. Id. at 343. This Court also has noted that “[s]entencing is the
time for comments against felonious, antisocial behavior recounted and unraveled before the
eyes of the sentencer. At that critical stage of the proceeding when penalty is levied, the law
vindicated, and the grievance of society and the victim redressed, the language of punishment
need not be tepid.” People v Antoine, 194 Mich App 189, 191; 486 NW2d 92 (1992). While it
may have been preferable for the judge to refrain from using the “monster” label, had the court
simply said that defendant’s crime was “monstrous,” rather than saying that defendant himself
was a “monster,” no plausible argument could have been made that the judge had acted
improperly. Indeed, Michigan courts at all levels have, in different cases, referred to particular
defendants’ actions as “monstrous,” without anyone challenging those judges’ impartiality. See
People v Starr, 457 Mich 490, 499, 577 NW 2d 673 (1998) (defendant’s acts were “depraved”
and of “monstrous repugnance”); People v Freese, unpublished per curiam opinion of the Court
of Appeals, issued April 25, 2017 (Docket Nos. 329673 & 332141), p 7 (affirming upward
departure from sentencing guidelines where trial court stated that it “conclude[d] that this
activity over such a period of time is nothing less than monstrous”); People v Nealy, unpublished
per curiam opinion of the Court of Appeals, issued July 19, 2002 (Docket No. 228703), pp 6-7
-7-
(the trial court’s statement that “[t]he victims in this case . . . have certainly endured as
monstrous a crime as you can imagine” was part of the basis for this Court upholding the upward
departure from sentencing guidelines). Nonetheless, the distinction between a defendant acting
in a “monstrous” manner and being a “monster” is not sufficiently strong as to require that a case
be reassigned from a trial judge who used the latter term.
Given this record, we find no basis for concluding that the strong presumption that the
trial court acted improperly has been overcome. Wells, 238 Mich App at 391. We decline to
order the case assigned to a different judge on remand.
IV. CORRECTION OF PSIR
Defendant argues that the trial court erred in failing to correct the PSIR after stating on
the record that it would do so based on various guideline calculations. We find it unnecessary to
decide this issue.
It is “imperative” that a “PSIR accurately reflect the sentencing judge’s determination
regarding the information contained in the report” because the department of corrections relies
on and uses information in the report when making critical decisions regarding a defendant’s
status. People v Lloyd, 284 Mich App 703, 705-706; 774 NW2d 347 (2009). “At a sentencing
hearing, either party may challenge the accuracy or relevancy of information contained in the
[report].” Id. at 705, citing MCL 771.14(6). “ ‘If the court finds on the record the challenged
information is inaccurate or irrelevant, that finding shall be made a part of the record, the
presentence investigation report shall be amended, and the inaccurate or irrelevant information
shall be stricken accordingly before the report is transmitted to the department of corrections.’ ”
Lloyd, 284 Mich App at 705, quoting MCL 771.14(6).
Because we are remanding for resentencing, we trust that the trial court will correct any
error with the PSIR at that time. Indeed, the prosecution has stated on appeal that it has “no
objection to a direction for administrative correction of the PSIR.”
V. CONCLUSION
We reverse defendant’s conviction for torture and remand for resentencing consistent
with this opinion. We do not retain jurisdiction.
/s/ Mark T. Boonstra
/s/ Jonathan Tukel
-8-
|
728 S.W.2d 529 (1987)
Clarence K. KIRK, Appellant,
v.
KIRK'S AUTO ELECTRIC, INC., Billy H. Bone, Raymond Miller, André Bone, Joe T. Bone, Appellees.
Supreme Court of Kentucky.
April 30, 1987.
C. Thomas Poole, Bowling Green, for appellant.
G.D. Milliken, Jr., Bowling Green, for appellees.
*530 REVERSING
LAMBERT, Justice.
The issue before this Court is whether shares of common stock issued by a corporation in exchange for unsecured promissory notes are void or voidable. The Court of Appeals held that such shares were merely voidable and that appellant's participation in the issuance of such shares precluded his claim. We disagree and reverse.
In 1970, Kirk's Auto Electric, Inc. issued 11 shares of its common stock to appellee, Billy H. Bone. In 1977, the corporation issued 10 shares to appellee, André Bone, and 5 shares to appellee, Joe T. Bone. In exchange for the issuance of these shares, appellees, Bones, executed and delivered to the corporation unsecured interest-bearing promissory notes payable on demand. At the time these shares were issued, appellee, Billy H. Bone, was a director and president of the corporation, and appellant, Kirk, was a director and secretary. Appellee, Billy H. Bone, and appellant, Kirk, each signed the stock certificates on behalf of the corporation. It is undisputed that only the promissory notes were given in payment for the shares and that no payment was made upon the notes prior to commencement of litigation. After litigation was commenced, some small irregular payments were made.
Section 193 of the Constitution of Kentucky states:
No corporation shall issue stock or bonds, except for an equivalent in money paid or labor done, or property actually received and applied to the purposes for which such corporation was created, and neither labor nor property shall be received in payment of stock or bonds at a greater value than the market price at the time such labor was done or property delivered, and all fictitious increase of stock or indebtedness shall be void.
At the time of issuance of the 11 shares to Billy H. Bone, KRS 271.185 was in effect and is as follows:
271.185. Payment for shares. (1) A certificate of stock shall not be issued until the shares represented thereby have been fully paid for.
(2) Shares allotted as stock dividends, or issued in lieu of accrued dividends, and shares for which the agreed consideration has been paid, delivered or rendered to the corporation shall be fully paid shares and nonassessable.
(3) When a corporation has received a note or uncertified check as part or full consideration for shares, the shares shall not be considered as fully paid for until the note or check has been paid.
This statute was repealed in 1972, but is fully applicable to the stock issued to Billy H. Bone. See KRS 271A.680. In 1972 (effective July 1, 1972), the General Assembly adopted the "Kentucky Business Corporations Act" and KRS 271A.095 of the Act is as follows:
271A.095. Payment for shares. (1) The consideration for the issuance of shares by a corporation may be paid only by an equivalent in money paid or labor done, or property actually received and applied to the purposes for which such corporation was created, and neither labor nor property shall be received in payment of consideration for the issuance of shares at a greater value than the market price at the time such labor was done or property delivered. When payment of the consideration for which shares are to be issued shall have been received by the corporation, such shares shall be deemed to be fully paid and nonassessable.
(2) In the absence of fraud in the transaction, the judgment of the board of directors or the shareholders, as the case may be, as to the market price of the consideration received for shares shall be conclusive unless the person questioning the market price shall by a clear preponderance of the evidence establish a different market price.
This statute applies to stock issued to appellees, André Bone and Joe T. Bone.
The constitutional and statutory provisions quoted herein evince a strong *531 policy in this Commonwealth toward protecting corporations, shareholders and corporate creditors from the dissipation of corporate assets. The issuance of shares must be attended by good faith and the corporation must receive value not disproportionate to the value of the shares issued. Goff v. Henry Goff & Co.'s Assignee, 257 Ky. 519, 78 S.W.2d 758 (1935), People's State Bank v. Jacksonian Hotel Co., 261 Ky. 166, 87 S.W.2d 111 (1935), and Mazer, et al. v. Hazard Realty Corporation, et al., 283 Ky. 283, 140 S.W.2d 1033 (1940). See also Clarke v. Lexington Stoveworks, 24 Ky. Law Rptr. 1755, 72 S.W. 286 (1903), which held that a promissory note secured by a life insurance policy with a cash surrender value exceeding the amount of the indebtedness was sufficient payment for the subscription of common stock under Section 193 of the Constitution of Kentucky.
The promissory notes received by Kirk's Auto Electric, Inc. were unsecured and were payable only upon demand. The only persons eligible to demand payment from the makers of the notes were the members of the board of directors, appellant, Kirk, and appellee, Billy H. Bone, the same persons who authorized issuance of the shares and acceptance of the unsecured notes. Appellee, Billy H. Bone, was himself maker of one of the notes. Therefore, appropriate vigilance would be less than assured. This transaction well illustrates the need for strict enforcement of the constitutional and statutory requirements.
Our holding in this case may appear to be too restrictive and represent an interference with the power of a corporation to conduct its business affairs. In ordinary commercial transactions, unsecured promissory notes are essential and undoubtedly constitute valuable consideration. Nevertheless, "[t]he (constitutional and statutory) provisions are impressed with a public interest and their primary purpose is to prevent fraud and to protect creditors or purchasers of stock or securities of corporations." Mazer, et al. v. Hazard Realty Corporation, et al., supra, 140 S.W.2d at 1037. If the public interest is to be protected, strict adherence to the law must be required.
We believe Section 193 of the Constitution of Kentucky is plain and unambiguous. Stock issued by a corporation must be "for an equivalent in money paid or labor done, or property actually received." Otherwise, stock issued by a corporation is a "fictitious increase" which is void.
Our holding renders it unnecessary to address appellant's other assignments of error. The judgment of the Court of Appeals is reversed and this cause is remanded to the Warren Circuit Court for further proceedings not inconsistent with the opinion.
STEPHENS, C.J., and GANT, STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur.
LEIBSON, J., dissents by separate opinion.
LEIBSON, Justice, dissenting.
Respectfully, I dissent.
There was no fraud or overreaching on the part of the appellees causing the stock issuance, and in these circumstances it is a miscarriage of justice to allow Kirk a loophole to escape his deal.
I would adopt Judge Wilhoit's Court of Appeals Opinion to the effect that the stock issued to the Bones' was voidable, but Kirk has no standing to have the stock declared void because he actively participated in causing it to be issued.
|
121 F.3d 704
Goldenv.City of Gulfport
NO. 96-60562
United States Court of Appeals,Fifth Circuit.
July 11, 1997
Appeal From: S.D.Miss. ,No.1:94CV409
1
Affirmed.
|
952 F.2d 404
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.Jesus MANUEL DELEMOS, Defendant-Appellant.
No. 91-3270.
United States Court of Appeals, Sixth Circuit.
Jan. 9, 1992.
Before DAVID A. NELSON and SUHRHEINRICH, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
PER CURIAM.
1
Section 5E1.2(a) of the United States Sentencing Guidelines provides that after a defendant in a federal criminal case has been convicted, a fine in an amount determined under § 5E1.2(c) must be imposed except as provided in § 5E1.2(f). Subsection (f) authorizes the sentencing court to reduce or waive the required fine if the defendant establishes that he could not pay it. U.S.S.G. § 5E1.2(i) provides that "subject to the provisions of subsection (f) herein, the court shall impose an additional fine amount that is at least sufficient to pay the costs to the government of any imprisonment, probation, or supervised release ordered."
2
The defendant in the instant case was a major drug dealer who, after pleading guilty to a drug conspiracy charge, was sentenced to imprisonment for 235 months. The district court believed that the defendant had profited substantially from his participation in the conspiracy, but no one knew what had become of the defendant's illicit earnings; the defendant appeared to be destitute at the time of sentencing.
3
Because of the defendant's "apparent present financial condition," the district court decided not to impose a fine calculated in accordance with U.S.S.G. § 5E1.2(c). Pursuant to U.S.S.G. § 5E1.2(i), however, the court imposed an "additional" fine of $1,415.66 per month to cover imprisonment costs.
4
The main question presented in this appeal is whether the guidelines gave the district court authority to impose an "additional" fine without imposing a primary fine. Concluding that this question must be answered in the negative, we shall remand the case for resentencing.
5
* The defendant, Jesus Manuel Delemos, was arrested in December of 1989 for distributing two kilograms of cocaine. A grand jury subsequently returned a nine-count indictment against him and a number of co-defendants. On May 25, 1990, Mr. Delemos entered into a plea bargain under which he agreed to plead guilty to Count 1 of the indictment, admitting that he had participated in a narcotics conspiracy with at least five other people over a period of more than four years. The remaining counts naming Mr. Delemos were dismissed.
6
A probation officer prepared a presentence report in which he recommended attributing more than 70 kilograms of cocaine to Mr. Delemos. This would produce a base offense level of 36. The officer further recommended a two-level reduction for acceptance of responsibility and a four-level increase for Delemos's role as a leader.
7
Mr. Delemos objected to the amount of cocaine attributed to him and to the leadership role increase. After an evidentiary hearing, the district court overruled the objections and accepted the probation officer's recommendations. Using an offense level of 38 and the lowest criminal history category, the court determined that the guideline range prescribed by the sentencing table was imprisonment for 235-293 months. The court imposed a sentence at the bottom of that range.
8
The probation officer had calculated the range of the primary fine called for by the guidelines as between $25,000 and $1 million. The officer's presentence report went on to note that the Administrative Office of the United States Courts suggested using a figure of $1,415.56 as the monthly cost of imprisonment. As indicated above, the district court waived the imposition of any primary fine "because of [the defendant's] present financial condition or apparent financial condition." The court stated that it would order the defendant to pay the cost of his incarceration in the amount of $1,415.66 per month, however, and went on to make the following statement:
9
"That may well sound both unrealistic and even ridiculous due to the fact that the Defendant is in bankruptcy. This Court, however, is not so naive [as] to believe that this money simply disappeared from the face of the earth, and with that kind of a financial obligation, if that money is ever uncovered by the IRS or any other government agency, either here or in the Dominican Republic, that money will be spoken for because of the Defendant's costs of incarceration."
10
The defendant perfected a timely appeal from the sentence. In addition to contending that the district court erred in imposing the "additional" monthly fine, he argues that the court miscalculated the quantity of drugs for which he was responsible.
II
11
Under U.S.S.G. § 5E1.2(f), it is the defendant who has the burden of establishing inability to pay a fine. See United States v. Rafferty, 911 F.2d 227, 232 (9th Cir.1990). In the case at bar the district court acknowledged that the defendant's "apparent" financial condition left him unable to pay any fine. The court was evidently not persuaded, however, that the appearance reflected the reality of the defendant's financial situation: "This court ... is not so naive [as] to believe that this money simply disappeared from the face of the earth...."
12
Either the defendant was able to sustain his subsection (f) burden of establishing inability to pay a fine or he was not. If the defendant was not able to sustain the burden, the district court was required to impose a fine under U.S.S.G. §§ 5E1.2(a) and (c). If the defendant was able to sustain the burden with respect to subsections (a) and (c), on the other hand, and if the fine called for by those sections was waived as a result, we do not read the guidelines as authorizing the imposition of an "additional" fine under subsection (i). "Although (f) is not mandatory," as the Court of Appeals for the Tenth Circuit observed in United States v. Labat, 915 F.2d 603, 607 (10th Cir.1990), "it makes no sense to waive the punitive fine and impose the 'additional' fine." The Labat court went on to observe that "fundamental semantics dictates that a subparagraph (i) fine cannot be 'additional,' unless it augments another fine. The guideline simply permits no other reading." Id.
13
We agree with the Labat court's reading of the guidelines. A fine imposed under subsection (i) has to be additional to something--and in the context of the section as a whole, it seems clear that a subsection (i) fine can only be additional to a fine imposed under subsection (a) and calculated in accordance with subsection (c). Just as it was impossible at common law for a grantor of real property to convey a remainder interest that was not preceded by the limitation of a particular freehold estate, see Cheshire's Modern Real Property at 240-41 (7th ed. 1954), so is it impossible under § 5E1.2(i) of the Sentencing Guidelines to impose an "additional" fine that is not preceded by a primary fine.
14
On remand, the district court should revisit U.S.S.G. § 5E1.2(f) and determine whether the defendant has established an inability to pay what that subdivision refers to as "all or part of the fine required by the preceding provisions...." If the defendant may be able to pay such a fine, and if the defendant has failed to establish that it would unduly burden his dependents, the court should impose that fine first. If the court does not impose a fine that reaches at least the bottom of the range prescribed by the subsection (c)--$25,000 in this case, according to the probation officer--the court should not impose any fine under subsection (i). If the court imposes a fine of at least $25,000, however, it should then go on to consider imposing an additional fine under subsection (i). Any such additional fine should cover the full cost of the defendant's imprisonment unless the court decides to waive or reduce the additional fine pursuant to subsection (f).
III
15
The only question that remains is whether the district court committed clear error in determining the quantity of drugs for which the defendant was to be held accountable.
16
"A district court's finding as to the amount of drugs a defendant is to be held accountable for is a factual finding which must be accepted by this court unless clearly erroneous." United States v. Paulino, 935 F.2d 739, 756 (6th Cir.1990), cert. denied, 112 S.Ct. 315 (1991). In calculating the quantity of drugs for which the defendant is accountable, "the amount of the drug being negotiated, even in an uncompleted distribution, shall be used to calculate the total [a]mount in order to determine the base level." United States v. Perez, 871 F.2d 45, 48 (6th Cir.), cert. denied, 109 S.Ct. 3227 (1989). All drug quantities that were part of the same course of conduct must be considered, not just the quantities in the count or counts on which the defendant was convicted. United States v. Smith, 887 F.2d 104, 107 (6th Cir.1989).
17
Comment 2 to § 2D1.4 of the Sentencing Guidelines provides as follows:
18
"Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination, the judge may consider, for example, the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved."
19
Having examined the record of this case in light of the foregoing principles, we are satisfied that the district court was not clearly erroneous in its finding as to the quantity of drugs for which Mr. Delemos was to be held accountable under the guidelines.
20
The sentence is therefore AFFIRMED except insofar as the fine is concerned. The fine portion of the sentence is VACATED, and the case is REMANDED for further proceedings not inconsistent with this opinion.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6060
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HASSAN GENELL HINES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00323-BO-1)
Submitted: March 14, 2017 Decided: March 17, 2017
Before FLOYD and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Hassan Genell Hines, Appellant Pro Se. Matthew Fesak, Thomas B.
Murphy, Stephen Aubrey West, Assistant United States Attorneys,
Michael Gordon James, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hassan Genell Hines was convicted by a federal jury of
several drug and firearm charges and in January 2009, the
district court sentenced Hines to a total of 480 months of
imprisonment. On direct appeal, this court affirmed the
judgment. United States v. Hines, 380 F. App’x 320 (4th Cir.
2010) (No. 09-4060). In January 2017, Hines filed a second
notice of appeal of the criminal judgment. However, because we
have previously affirmed this criminal judgment, we dismiss the
appeal as duplicative and untimely. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid in the decisional process.
DISMISSED
2
|
FILED
NOT FOR PUBLICATION DEC 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10429
Plaintiff - Appellee, D.C. No. 1:07-cr-00316-LJO-SKO
v.
XI ANDY LIENG, AKA Andy Lieng, MEMORANDUM*
AKA Andy Xi Lieng, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted November 5, 2013
San Francisco, California
Before: THOMAS and RAWLINSON, Circuit Judges, and DUFFY, District Judge.**
1
Xi “Andy” Lieng, a Vietnam native, appeals his jury conviction and sentence
imposed for conspiring to manufacture, distribute and possess with the intent to
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
distribute marijuana, and manufacturing marijuana. We presume the parties’
familiarity with the facts of the case and proceedings below. This Court has
jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s decision.
I. The Statutory and Constitutional Right to a Courtroom Interpreter
The use and availability of interpreters in the courtroom is a matter within the
trial court’s discretion. United States v. Lim, 794 F.2d 469, 471 (9th Cir. 1986). A
district court’s ruling on the use of a courtroom interpreter should be reversed only for
clear error. Gonzalez v. United States, 33 F.3d 1047, 1050 (9th Cir. 1994). The Court
Interpreters Act (“CIA”) requires that “[t]he presiding judicial officer. . . shall utilize
the services of [a] certified interpreter. . . in judicial proceedings instituted by the
United States, if the presiding judicial officer determines on such officer’s own
motion or on the motion of a party that such party (including a defendant in a criminal
case). . . speaks only or primarily a language other than the English language.” 28
U.S.C. § 1827(d)(1)(A). Lieng made no mention of his difficulty comprehending the
proceedings against him until sentencing, and the record reflects he had no difficulty
speaking and understanding English. Therefore, we affirm the district court’s
determination that Lieng did not need the assistance of a courtroom interpreter.
II. The Four-Level Sentencing Enhancement for a Defendant’s Role in the
Offense
2
A district court’s four-level leadership adjustment is reviewed for clear error.
United States v. Maldonado, 215 F.3d 1046, 1050 (9th Cir. 2000). The United States
Sentencing Guideline § 3B1.1(a) provides for a four-level increase in a defendant’s
offense level “[i]f the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a).
“It is not necessary that the district court make specific findings of fact to justify
the imposition of the role enhancement. There must, however, be evidence in the
record that would support the conclusion that the defendant exercised [a]. . . level of
control.” United States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012) (internal
citations omitted). Here, there was evidence that Lieng exerted some level of control
over other individuals involved in the criminal enterprise. See United States v.
Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007). We thus affirm the district court’s
decision to apply a four-level sentencing enhancement.
III. Rule 32 of the Federal Rules of Criminal Procedure
Under Rule 32(i)(3), “[a]t sentencing, the court: may accept any undisputed
portion of the presentence report as a finding of fact; [and] must—for any disputed
portion of the presentence report or other controverted matter—rule on the dispute or
determine that a ruling is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in sentencing.” Fed. R.
3
Crim. P. 32(i)(3)(A), (B). Because Lieng’s objections to the Presentence Report were
resolved by the district judge in the government’s favor at Lieng’s sentencing, Lieng’s
argument that the district court failed to comply with Rule 32 lacks merit.
IV. Rule 33 Motion for a New Trial Based on Newly Discovered Evidence
This court reviews a district court’s denial of a motion for a new trial based on
newly discovered evidence for an abuse of discretion. United States v. Sarno, 73 F.3d
1470, 1488 (9th Cir. 1995). On appeal, “the defendant carries a ‘significant burden’
to show that the district court abused its discretion in denying a new trial” based on
newly discovered evidence. United States v. Endicott, 869 F.2d 452, 454 (9th Cir.
1989) (quoting United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985)).
Federal Rule of Criminal Procedure 33(a) provides that “[u]pon the defendant’s
motion, the court may vacate any judgment and grant a new trial if the interest of
justice so requires.” Rule 33(b)(1) provides that “[a]ny motion for a new trial
grounded on newly discovered evidence must be filed within 3 years after the verdict
or finding of guilty.” All other grounds for a motion for new trial are filed under Rule
33(b)(2) and must be filed within 14 days after the verdict or finding of guilty. In
order for a criminal defendant “[t]o prevail on a Rule 33 motion for a new trial based
on newly discovered evidence, a defendant must satisfy a five-part test: ‘(1) the
evidence must be newly discovered; (2) the failure to discover the evidence sooner
4
must not be the result of a lack of diligence on the defendant’s part; (3) the evidence
must be material to the issues at trial; (4) the evidence must be neither cumulative nor
merely impeaching; and (5) the evidence must indicate that a new trial would probably
result in acquittal.’” United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005)
(quoting United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir.1991)). Lieng did not
satisfy this test, so the district court did not abuse its discretion in denying Lieng’s
Rule 33 Motion for a new trial on the basis of newly discovered evidence.
AFFIRMED.
5
|
359 U.S. 171 (1959)
SERVICE STORAGE & TRANSFER CO., INC.,
v.
VIRGINIA.
No. 92.
Supreme Court of United States.
Argued February 26, 1959.
Decided March 30, 1959.
CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA.
*172 Francis W. McInerny argued the cause and filed a brief for petitioner.
Robert D. McIlwaine, III, argued the cause for respondent. On the brief were A. S. Harrison, Jr., Attorney General of Virginia, and Reno S. Harp, III, Assistant Attorney General.
Austin L. Roberts, Jr. and R. Everette Kreeger filed a brief for the National Association of Railroad and Utilities Commissioners, as amicus curiae, urging affirmance.
MR. JUSTICE CLARK delivered the opinion of the Court.
Petitioner, an interstate motor carrier certificated by the Interstate Commerce Commission, but without a permit from Virginia allowing intrastate operations, was fined $5,000 by the State Corporation Commission for carrying 10 shipments of freight alleged to have been of an intrastate character and, therefore, in violation of Chapter 12, Title 56, of the Code of Virginia.[1] The shipments in question originated at Virginia points and were destined to Virginia points but were routed through Bluefield, West Virginia, where petitioner maintains its main terminal. They were transported in a vehicle with freight destined to points outside of Virginia. Upon arrival at Bluefield the freight destined to Virginia was removed and consolidated with freight coming to the *173 terminal from non-Virginia origins. It then moved back into Virginia to its destinations. The Corporation Commission found that the routes thus employed through Bluefield were a subterfuge to evade state law. The Virginia Court of Appeals agreed but directed that the fine be reduced to $3,500 because of a failure of the Commonwealth's case on three of the shipments. 199 Va. 797, 102 S. E. 2d 339. Petitioner pleads that Virginia's interpretation of its operations conflicts with its interstate certificate as well as an interpretation thereof by the Interstate Commerce Commission. It claims that respondent was without power thus to impose criminal sanctions on its certificated interstate operations. We granted certiorari, 358 U. S. 810, to test out the conflicting contentions. We agree with the petitioner that under the facts here the interpretation of petitioner's interstate commerce certificate should first be litigated before the Interstate Commerce Commission under the provision of § 204 (c) of the Interstate Commerce Act, 49 U. S. C. § 304 (c).[2]
Petitioner operates its truck lines in parts of Virginia and West Virginia. Its activity is carried on under a certificate of convenience and necessity issued by the Interstate Commerce Commission. The petitioner's present *174 I. C. C. certificate is a combination of its original 1941 certificate and a second certificate issued in 1943 upon its purchase of the operating rights of another carrier. Neither it nor its predecessor held a certificate from the State Corporation Commission authorizing any intrastate carriage. It is authorized under the relevant parts of its interstate certificate to transport general commodities as a motor common carrier in interstate commerce:
"Between Bluefield, Va., Bluefield, W. Va., and points and places within five miles of Bluefield, W. Va. "Between Bluefield, Va., and points and places within five miles of Bluefield, Va., and those within five miles of Bluefield, W. Va., respectively, on the one hand, and, on the other, points and places in that part of Virginia and West Virginia within 75 miles of that territory. Between Bluefield, W. Va., on the one hand, and, on the other, points and places in West Virginia, that part of Virginia west of U. S. Highway 29 and south of U. S. Highway 60 including points and places on the indicated portions of the highways specified, and that part of Virginia north of U. S. Highway 60 which is within 80 miles of Bluefield, W. Va."
Petitioner's method of operation is uncontradicted in the record. It maintains its headquarters in Bluefield, West Virginia, and terminal points in Virginia at Bristol and Roanoke. Its main activity is the movement of freight of less-than-truckload shipments. In order to gather the shipments and, by combining them, make up a full truck load it operates "peddler runs" from its Virginia terminals which serve as pick ups for freight in the vicinity. All of the traffic is directed through the Bluefield, West Virginia, terminal. About three percent of the traffic consists of shipments destined from one Virginia point to another while the remainder is directed *175 from points within to those outside that State. The freight gathered by the "peddler runs" is combined at a terminal and placed in an "over the road" tractor trailer unit and carried to Bluefield, West Virginia. There it is broken down and combined with other shipments received from all of the other runs of petitioner. That part destined to points in and around Bluefield is delivered locally through "peddler runs" operated from that terminal. The remainder is sorted out for forwarding to the terminal nearest its destination and is "filed out" by "over the road" operation. Upon arrival at the latter terminal it is delivered by "peddler runs" to its local destination.
The Commonwealth's criminal case is bottomed on shipments the origin and final destination of which are in Virginia. While it stipulated that all of these shipments were routed through Bluefield, West Virginia, and were, therefore, on their face interstate shipments,[3] Virginia takes the position that they were clearly intrastate in character because had they been moved over direct routes none would ever have left the Commonwealth. It contends that petitioner's circuitous and unnecessarily long routes were a mere subterfuge to escape intrastate regulation and evade its jurisdiction. Aside from the testimony of highway officers as to the actual shipments, none of which is disputed, the Commonwealth's evidence consisted solely of maps substantiating its position that petitioner's routes were circuitous and often long, sometimes exceeding twice the shortest possible route. However, it offered no direct evidence of bad faith on the part of petitioner in moving its traffic through Bluefield, West Virginia.
On the other hand, petitioner offered the testimony of its manager and others as to the bona fides of its operation. *176 It proved that it and its predecessor-operator had been carrying on its business in Virginia in a similar manner for many years and that it enjoyed certificates from the Interstate Commerce Commission authorizing its operations. Petitioner admits that some of its routes are circuitous but claims this is because of its method of gathering less-than-truckload shipments regardless of final destination and routing them through its "gateway" terminal at Bluefield where they are assorted according to final destination. It stands uncontradicted that its operation is not only practical, efficient and profitable, but also that the creation of this "flow of traffic" is a timesaver to the shipper since there is less time lost waiting for the making up of a full truck load. It also claims a unique service for less-than-truckload shipments of central Virginians who ship commodities to southwest Virginia and Kentucky and who otherwise would suffer long delays on deliveries or would be obliged to ship by special truck at higher rates. While these considerations are not controlling, they throw light on petitioner's claim of bona fides.
In Castle v. Hayes Freight Lines, 348 U. S. 61, 63-64 (1954), we observed that "Congress in the Motor Carrier Act adopted a comprehensive plan for regulating the carriage of goods by motor truck in interstate commerce." We pointed out that 49 U. S. C. § 312 provides "that all certificates, permits or licenses issued by the Commission `shall remain in effect until suspended or terminated as herein provided' . . . . Under these circumstances, it would be odd if a state could take action amounting to a suspension or revocation of an interstate carrier's commission-granted right to operate." To uphold the criminal fines here assessed would be tantamount to a partial suspension of petitioner's federally granted certificate. Even though the questioned operations constitute only a minor, i. e., three percent, portion of the petitioner's business, that *177 portion is nevertheless entitled to the same protection as are the other operations which are conducted under the certificate. In fact, the method of handling is identical and the freight is often transported in the same vehicle. The certificate on its face covers the whole operation. In fact, in 1953, in approving the acquisition of petitioner by another carrier, the I. C. C. expressly approved the very type of operation now being carried on. In its unpublished report, the Commission noted:
"Under its existing authority, Service Storage may lawfully perform a cross-haul service under a combination of its radial rights by operating, for example, between points in West Virginia within 75 miles of the base area, on the one hand, and, on the other, points in Virginia on and west of U. S. Highway 29 and on the south of U. S. Highway 60, and points in the three Kentucky counties provided such operations under a combination of the various rights are routed through Bluefield as a gateway." MC-F-5361, Smith's Transfer Corporation of Staunton, Va.Control Service Storage and Transfer Company, Inc., 59 M. C. C. 803 (report not published.)
It appears clear that interpretations of federal certificates of this character should be made in the first instance by the authority issuing the certificate and upon whom the Congress has placed the responsibility of action. The Commission has long taken this position. Compare Atlantic Freight Lines, Inc., v. Pennsylvania Public Utility Comm'n, 163 Pa. Super. 215, 60 A. 2d 589, with Atlantic Freight Lines, Inc.,Petition for Declaratory Order, 51 M. C. C. 175. The wisdom of such a practice is highlighted by the facts of this case. Between the close of the hearing, and the announcement of the Virginia Commission's decision, Service petitioned the I. C. C. for a declaratory order interpreting its certificate. The *178 Commonwealth, although it had notice of the I. C. C. proceeding, elected not to participate. After the Virginia Commission had found petitioner to be operating in intrastate commerce and fined it for such operation, the I. C. C. issued an opinion, 71 M. C. C. 304, in which it construed petitioner's certificate as authorizing Virginia-to-Virginia traffic routed through Bluefield, West Virginia.[4] This was but a reaffirmation of its prior interpretation of the certificate. 59 M. C. C. 803, supra. Such conflicts can best be avoided if the interpretation of I. C. C. certificates is left to the Interstate Commerce Commission.
Nor is Eichholz v. Public Service Comm'n, 306 U. S. 268 (1939) to the contrary. There Missouri revoked a carrier's interstate permit because it crossed state lines into Kansas City, Kansas, for the sole purpose of creating an interstate operation. Eichholz, however, had no certificate from the Interstate Commerce Commission, and this Court's opinion was premised on this fact rather than that the interstate operations were merely a subterfuge and hence not bona fide. The words of Chief Justice Hughes there clearly distinguish that case from the present:
"When the [Missouri] Commission revoked the permit, the Interstate Commerce Commission had not acted upon appellant's application under the Federal *179 Motor Carrier Act and meanwhile the authority of the state body to take appropriate action under the state law to enforce reasonable regulations of traffic upon the state highways had not been superseded." 306 U. S., at 273.
Eichholz followed naturally from the holding of the Court in Welch Co. v. New Hampshire, 306 U. S. 79 (1939), that the enactment of the Motor Carrier Act did not, without more, supersede all reasonable state regulation, the latter continuing in effect until the Interstate Commerce Commission acted on the same subject matter. That it has admittedly done here.
Finally, the Commonwealth is not helpless to act. If it believes that petitioner's operation is not bona fide interstate but is merely a subterfuge to escape its jurisdiction, it can avail itself of the remedy Congress has provided in the Act. Section 204 (c), supra, note 2, authorizes the filing of a "complaint in writing to the Commission by any . . . State board . . . [that] any . . . carrier. . ." has abused its certificate. See also Castle v. Hayes Freight Lines, supra. Thus the possibility of a multitude of interpretations of the same federal certificate by several States will be avoided and a uniform administration of the Act achieved.
The judgment is
Reversed.
NOTES
[1] Va. Code, 1950, § 56-278, provides:
"No common carrier by motor vehicle or restricted common carrier by motor vehicle not herein exempted shall engage in intrastate operation on any highway within the State without first having obtained from the Commission a certificate of public convenience and necessity authorizing such operation, and a statement of the State Highway Commission that the law applicable to the proposed route or routes has been complied with as to size, weight, and type of vehicles to be used, and a like statement as to any increase in size, weight, and type of vehicles proposed to be operated by the applicant after such application is granted."
[2] That section provides:
(c) "Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier or broker has failed to comply with any provision of this chapter, or with any requirement established pursuant thereto. If the Commission, after notice and hearing, finds upon any such investigation that the motor carrier or broker has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the carrier or broker to comply therewith. Whenever the Commission is of opinion that any complaint does not state reasonable grounds for investigation and action on its part, it may dismiss such complaint." 49 U. S. C. § 304 (c).
[3] 49 U. S. C. § 303 (10) defines "interstate commerce" as including "commerce . . . between places in the same State through another State, . . . ." 49 Stat. 544.
[4] In its declaratory opinion the Commission noted:
"In the absence of any showing that petitioner's use of its authorized route is a subterfuge to avoid State regulation, or other than a logical and normal operation through the carrier's headquarters, we are of the opinion that petitioner's operations, in the manner described, constitute bona fide transportation in interstate commerce.
.....
"We find that the operations described between points in Virginia through Bluefield, W. Va., are bona fide operations in interstate commerce within the authority granted to petitioner in certificate No. MC30471." Service Storage & Transfer Co., Inc.Petition for Declaratory Order, 71 M. C. C. 304, 306.
|
582 F.Supp. 1209 (1984)
Elizabeth MAIDEN, Trustee of the Pound Ridge Trust, et al., Plaintiffs,
v.
Carl BIEHL, et al., Defendants.
No. 74 Civ. 4690(CES).
United States District Court, S.D. New York.
March 16, 1984.
*1210 Anderson, Russel, Kill & Olick, New York City, for plaintiffs IIT & Its Liquidators.
Laszlo Kormendi, New York City, for plaintiff Maiden.
Stillman, Friedman & Shaw, New York City, for defendants Burkley, Carpenter & Moran.
Sullivan & Cromwell, New York City, for defendant Deloitte Haskins & Sells.
Shea & Gould, New York City, for defendant Casey.
*1211 Gilbert, Segall & Young, New York City, for defendant Biehl.
James H. and Betty M. Swinney, Joseph S. Zuccaro, pro se.
MEMORANDUM DECISION.
STEWART, District Judge:
Plaintiffs filed this action on October 24, 1974 to recover damages allegedly incurred in connection with their purchase of Ivanhoe Associates securities in October 1968. Ivanhoe Associates, a now defunct agribusiness, was later named Multiponics, Inc. Plaintiff International Investment Trust ("IIT") sues on its own behalf and on behalf of its fundholders, and the seven class plaintiffs sue in their individual capacities as well as on behalf of all other owners and holders of Multiponics securities. The complaint names four categories of defendants: 1) the organizers and promoters of Multiponics, consisting of Messrs. Biehl, Burkley, Carpenter, Casey, Moran, Orbe, Swinney and Zuccaro; 2) the "Staatscorp" defendants, consisting of entities and individuals who were all connected with the securities brokerage firm of Glove Forgan, William R. Staat, Inc.; 3) Deloitte, Haskins and Sells, the independent auditor for Multiponics; and 4) the officers of IIT, who were in control of the Fund at the time IIT made the Multiponics investment.
The background of the transactions underlying these claims is fully set forth in our previous decisions. See Maiden v. Biehl, [1981-1982 Transfer Binder] Fed. Sec.L.Rep. (CCH) ¶ 98,226 at 91,522 (S.D. N.Y. May 19, 1981); ¶ 98,347 at 92,150 (S.D.N.Y. Nov. 6, 1981). Before us now are motions by most of the promoter defendants seeking partial summary judgment dismissing: 1) all claims by plaintiff IIT; 2) all claims by plaintiffs in their representative capacity; and 3) all claims in their individual capacities by any plaintiffs who are not residents of New York. One defendant, Deloitte, Haskins and Sells seeks summary judgment with respect to all claims. Lastly, plaintiffs seek class certification. We will address each of these motions in turn.
Background Factual Discussion
The chronology of certain undisputed events after the sale of the Multiponics securities is relevant to the motions under consideration. The closing of the purchase of the securities took place on October 25, 1968. The first sign of trouble was on October 15, 1970, when First National City Bank ("Citibank"), serving as Indenture Trustee for the Multiponics debenture holders, mailed notice to the holders stating that Multiponics failed to make an interest payment and was unable to continue operations. On October 23, 1970, Citibank notified the holders that Multiponics intended to liquidate. The debenture holders formed a committee on October 28, 1970 to represent them in the Multiponics liquidation proceedings.
In February of 1971, Multiponics filed the petition for reorganization in Louisiana. Sherman & Sterling acted as counsel for Citibank, and Mr. Dineen of the firm kept the debenture holders apprised of the bankruptcy proceedings. The Reorganization Trustee's Report, sent to debenture holders on December 23, 1971, made specific disclosure of two of the facts which plaintiffs assert were misstated or omitted from the offering circular: Multiponics assumption of debt as part of the acquisition price of farming properties and the operating status of the properties. Mr. Dineen wrote to the Reorganization Trustee in February of 1972, specifically comparing discrepancies between the offering circular and the registration statement.
Background Legal Discussion
The instant motions for summary judgment are all based on the timeliness of the plaintiffs' claims. While each claim presents different issues, the basic legal framework for the defendants' statutes of limitations defense is the same. The federal securities laws under which most of these claims are brought do not provide for a limitations period.[1] To determine the *1212 timeliness of the action, we must refer to the statute of limitations of the forum state, which includes reference to New York's borrowing statute, N.Y.Civ. Prac.Law § 202.[2]Arneil v. Ramsey, 550 F.2d 774, 779 (2d Cir.1977). Under the borrowing statute, if the plaintiff is a non-resident of New York and the cause of action accrued outside of the state, New York courts will apply either the limitations period of the state where the action accrued, or the New York statute, whichever is shorter.
Under New York law, plaintiffs' claims would be timely insofar as they were brought within 6 years, the applicable statute of limitations for fraud actions and 10b-5 lawsuits. Maiden v. Biehl, supra, ¶ 98,226 at 91,528. For non-New York residents, the critical question for borrowing statute purposes is where the cause of action accrued. Plaintiffs argue that all of the claims accrued in New York, making the borrowing statute inapplicable. Our previous decision noted that New York and federal courts were grappling with two different approaches to the question of how to decide where a cause of action accrued for the purposes of the borrowing statute. At that time, the Second Circuit had held that the test for fraud was, "where the economic impact is felt, normally the plaintiff's residence." Sack v. Low, 478 F.2d 360, 366 (2d Cir.1973). At the same time, courts were shifting toward another possible analysis, which would be to apply modern choice of law tests. State Teachers Retirement Board v. Fluor Corp., 500 F.Supp. 278 (S.D.N.Y.1980), modified, 654 F.2d 843 (2d Cir.1981). That approach to determining where a cause of action accrued would take into account a variety of factors, such as where the stock transactions took place, the state of incorporation and principal place of business of defendants, and where the fraud occurred. State Teachers, supra, 500 F.Supp. at 287. Issues of fact relevant to either analysis precluded summary judgment at that time.
Since our last decision, the Second Circuit has made it clear that choice of law principles based on grouping of contacts do not apply to borrowing statute analysis. Industrial Consultants Inc. v. H.S. Equities, 646 F.2d 746 (2d Cir.), cert. denied, 454 U.S. 838, 102 S.Ct. 145, 70 L.Ed.2d 120 (1981); Stafford v. International Harvester Co., 668 F.2d 142 (2d Cir.1981). See also Freschi v. Grand Coal Venture, 551 F.Supp. 1220 (S.D.N.Y.1982). To determine where a cause of action accrued in a fraud case, the test is not where the misrepresentations were made, or other factors relevant to the fraudulent activity itself, but where "the loss resulting from the misrepresentation was sustained." Industrial Consultants, supra, 646 F.2d at 747. While economic impact is usually felt at the place of residence, there is no indication that this is a mechanical test. Where a cause of action accrues still depends on the facts of each case, but the question is always where the plaintiff felt the economic impact of the fraud. Sack v. Low, 478 F.2d 360, 368 (2d Cir.1973); Arneil v. Ramsey, 550 F.2d 774, 780 (2d Cir.1977).
Plaintiffs' general argument that all of the claims are timely because of the New York events connected with the fraud must therefore fail. Each claim of the non-New York residents must be assessed independently, in terms of the place of accrual and the applicable statute of limitations. We turn to a consideration of each plaintiff's claim in an individual capacity.
*1213 Plaintiffs in Their Individual Capacities
Shareholders Associates and Shareholders Capital Corporation[3]
On October 28, 1968, Roger Bensen, a Connecticut resident, signed a Purchase Agreement for 8,500 units of Ivanhoe as attorney in fact for "Shareholders Associates, a California partnership." On that date, "it was contemplated that the purchaser would be an investment partnership to be formed under the name of Shareholders Associates," Aff. of Roger Bensen, ¶ 4, but no such partnership in fact existed. On October 30, 1968, a corporation, Shareholders Associates, Inc. ("Shareholders Associates"), was incorporated in Delaware. Bensen was elected to its three-member Board of Directors. The principal place of business of Shareholders Associates from November 1, 1968 through at least June 29, 1969 was in New York City.
On November 1, 1968, the Board of Shareholders Associates passed a resolution providing:
the corporation ratif[ied] and adopt[ed] as its own the Purchase Agreement dated October 25, 1968 for the acquisition of $850,000.00 principal amount of 7½% subordinated debentures due October 1, 1983, 59,500 shares of common stock and stock purchase warrants for the purchase of 68,000 shares of common stock ...
Shareholders Associates paid the $850,000.00 to Ivanhoe on November 20, 1968.
Plaintiff argues that the timeliness of its action is to be judged by the six year period provided in N.Y.Civ.Prac.Law § 213(8), measured from November 20, 1968, the time of payment. Asserting that it is a resident of New York and that its claim arose in this state, plaintiff argues that New York's borrowing statute is inapplicable.
To determine whether the borrowing statute applies, we must determine the place where the claim sued upon originally accrued. United States Fidelity and Guaranty Co. v. E.W. Smith Co., 46 N.Y.2d 498, 387 N.E.2d 604, 607, 414 N.Y. S.2d 672, 675 (1979). "If a cause of action accrues to a non-resident who later assigns the claim to a New York resident, the borrowing statute will apply." Gluck v. Amicor, Inc., 487 F.Supp. 608, 612 (S.D.N.Y. 1980) (quoting McLaughlin's Practice Commentary (202:3 (1979) at N.Y.Civ.Prac. Law § 202 (McKinney Supp.1979-80)).
In this case we find the cause of action concerning the purchase of 850,000 units of Ivanhoe under the Purchase Agreement signed October 25, 1968 originally accrued on that date in Connecticut in favor of Roger Bensen. When Bensen signed the Purchase Agreement on behalf of a non-existent principal, ("Shareholders Associates, a California partnership"), he became personally liable under that Agreement. Imero Fiorentino Associates, Inc. v. Green, 85 A.D.2d 419, 447 N.Y.S.2d 942, 943 (1982). If Bensen was induced by fraud to enter into that contract, a right to sue accrued on that date. Maiden v. Biehl, [1981-82 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 98,226 at 91,529 (S.D.N.Y. May 19, 1981). See also Gilman Brother, Inc. v. Peat, Marwick, Mitchell & Co., 486 F.Supp. 785, 787 (S.D.N.Y.1980); Rice v. Baron, 456 F.Supp. 1361, 1368 (S.D.N.Y. 1978). Given Bensen's Connecticut residency, with no facts indicating that he would have personally suffered the loss elsewhere, his claim accrued in that state. Sack v. Low, 478 F.2d 360, 365-66 (2d Cir.1973). Accordingly, we conclude that the cause of action upon which Shareholders Associates seeks to sue originally accrued in Connecticut in favor of a non-resident of New York.
The relevant Connecticut limitations period is two years. While there have been intimations that Connecticut's general fraud statute could be the one applicable to 10b-5 actions, see Bache Halsey Stuart Inc. v. Namm, 446 F.Supp. 692, 697 (S.D.N. *1214 Y.1978) (three years under Conn.Gen.Stat. § 52-577 (1975)), the weight of authority holds that the two year statute of limitations of Conn.Gen.Stat. § 36-346(e) is applicable.[4]Hitchcock v. deBruyne, 377 F.Supp. 1403 (D.Conn.1974); Campbell v. Upjohn Co., 676 F.2d 1122, 1125 (6th Cir. 1982); Dandorph v. Fahnestock & Co., 462 F.Supp. 961, 983 (D.Conn.1979).
While Connecticut law determines the length of the statute of limitations, federal law determines when the period begins to run. Arneil v. Ramsey, 550 F.2d 774, 780 (2d Cir.1977) (citing Moviecolor Limited v. Eastman Kodak Company, 288 F.2d 80, 83 (2d Cir.), cert. denied, 368 U.S. 821, 82 S.Ct. 39, 7 L.Ed.2d 26 (1961)). The starting point is "not the time at which a plaintiff becomes aware of all the various aspects of the alleged fraud, but ... the time at which plaintiff should have discovered the general fraudulent scheme." Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 410 (2d Cir.1975). See also Stull v. Bayard, 561 F.2d 429 (2d Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 783 (1978); Arneil v. Ramsey, 550 F.2d 774, 780-781 (2d Cir.1977). It is clear that by October of 1972, plaintiffs should have known of the fraud, since by December of 1971, the Reorganization Trustee's Report had been issued, which fully disclosed the misstatements and omissions at issue. Under the Connecticut statute, Shareholders Associates claim is not timely.
IIT
IIT is an International Investment Trust, organized under the laws of the Grand Duchy of Luxembourg with its principal place of business in Switzerland. IIT's cause of action accrued wherever the loss resulting from the misrepresentations was sustained. Industrial Consultants, Inc. v. H.S. Equities, Inc., 646 F.2d 746, 747 (2d Cir.), cert. denied, 454 U.S. 838, 102 S.Ct. 145, 70 L.Ed.2d 120 (1981); Sack v. Low, 478 F.2d 360, 365 (2d Cir.1973); Arneil v. Ramsey, 550 F.2d 774 (2d Cir.1977). Courts have described IIT as an open-ended mutual fund or a business trust. See IIT v. Vencap, 519 F.2d 1001, 1003 n. 1 (2d Cir. 1975); IIT v. Cornfeld, 619 F.2d 909, 913 n. 4 (2d Cir.1980). For the purposes of the borrowing statute, the place of injury for a mutual fund is the principal place of business of the fund, and not the residence of the fundholders. Korn v. Merrill, 403 F.Supp. 377, 385-86 (S.D.N.Y.), aff'd, 538 F.2d 310 (2d Cir.1976). Using Judge Medina's language of Arneil v. Ramsey, supra, 550 F.2d at 780, to the extent IIT became a poorer mutual fund as a result of the Multiponics investment, it became a poorer mutual fund in Switzerland.
A preliminary question, seriously relevant only to IIT's claims, is whether Stafford v. International Harvester Co., 668 F.2d 142 (2d Cir.1981) makes the borrowing statute totally inapplicable.[5]Stafford considered "whether a New York court would hold that a cause of action accrues (for the purposes of applying its borrowing statute) in a jurisdiction which could not exercise jurisdiction over it." Stafford, 668 F.2d at 150. Stafford itself was a diversity case and, although the cause of action accrued in Pennsylvania, one of the defendants would not have been able to have been sued there because of lack of personal jurisdiction. The Court concluded: "We believe that New York's borrowing statute would be read as applying only to statutes of limitations of states `where suit could have been brought' in order to effectuate the purpose which the *1215 statute was designed to serve." Id., 668 F.2d at 151.
With respect to the effect of Stafford on IIT's claims, two Swiss statutes are offered by the parties as applicable to the question of jurisdiction: Articles 57(1)(c) and 57(2) of the Court Constitution Law (Loi Sur L'Organisation Judiciaire) of the Canton of Geneva. We decide that under Article 57(2) a Geneva court would have exercised jurisdiction over all the defendants.[6] Pursuant to that Article, a Geneva court would decide whether to exercise personal jurisdiction over these defendants by looking to the jurisdictional law of the non-resident defendant's domicile. According to the experts, the Geneva court would exercise jurisdiction over the defendants in this case if a United States court would exercise jurisdiction over similar Swiss defendants a comparable Geneva accounting firm, or a Geneva individual under the circumstances alleged in the Second Amended complaint.
While the parties go into intricate detail with respect to the state law of each defendant's domicile, we find that there would be personal jurisdiction over these defendants in any federal court pursuant to Section 27 of the Securities Exchange Act, 15 U.S.C. § 78aa. Under that section of the Act, personal jurisdiction extends "to the full reach permitted by the due process clause." Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1339 (2d Cir.1972); Securities and Exchange Commission v. Gilbert, 82 F.R.D. 723, 725 (S.D.N.Y.1979). However, because personal jurisdiction in the securities laws is national in scope, these hypothetical Swiss defendants must have had the minimum contacts with the relevant forum required of International Shoe. Our specific focus is: 1) whether the defendants committed some act which shows that they purposely availed themselves of the privilege of conducting activities and invoking the benefits of the forum state; and 2) whether defendants' contacts with the forum are such so as to make it reasonable to require them to defend the particular suit there. Securities and Exchange Commission v. Gilbert, 82 F.R.D. 723 (S.D.N.Y. 1979) (citing Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1957); Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).
The analogous Swiss defendants must only have had the minimal contacts with the United States, not with the state of domicile of each defendant. Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1340 (2d Cir.1972). Since many acts connected with the alleged securities fraud occurred in the United States, and each defendant allegedly participated in fraudulent activities in this country, if every defendant in the case were Swiss rather than American, those contacts would easily satisfy due process requirements. In conclusion, because hypothetical Swiss defendants would have been subject to the jurisdiction of American courts, a Swiss court would exercise jurisdiction over these defendants in Geneva.
Since Stafford does not preclude the application of the borrowing statute, the next question is which Swiss statute should be "borrowed." In evaluating the alternative statutes, we remain mindful of guidelines that have been used in evaluating *1216 which state statute to apply or to borrow:
The most important consideration in picking a state statute of limitations to apply to rule 10b-5 actions is to compare the state causes of action to a rule 10b-5 action and to choose the statute of limitations applicable to that state cause of action which is most similar to the federal cause of action under rule 10b-5 and which best effectuates the rule's purpose. Berry Petroleum Company v. Adams & Peck, 518 F.2d 402, 407 (2d Cir.1975).
In a substantive sense, Article 752 of the Swiss Code of Obligations is the most analogous provision: it clearly is the Swiss equivalent of our securities fraud laws.[7] Article 760 is the applicable limitations period for Article 752 cases: it provides for five years from the date of discovery of the fraud, or at the most ten years.[8]
Defendants object to this particular provision on a number of grounds, none of which we find persuasive. They argue that Article 752 only applies to Swiss corporations, so that Multiponics could never have been sued under that statute. Their experts also assert that the Article only applies to the issue of shares and bonds and not their sale. These objections, while perhaps true as a matter of Swiss law, are not dispositive. We have already determined that a Swiss court would have personal jurisdiction over these defendants; presumably, if IIT chose to sue there, the Swiss court would apply our federal laws. The question is which statute of limitations a Swiss court would apply to fill the gap in our securities laws, not what specific provision of Swiss law would give IIT a cause of action, and would substantively govern the behavior of the defendants.
Moreover, the alternative offered by the defendants is unworkable, and leads to absurd results. Article 41 provides in general terms that "whoever unlawfully causes damage to another, whether willfully or negligently, shall be liable for damages."[9] Article 60 sets out a one year limitations period for those actions, unless the behavior is also prosecutable criminally, in which case the statute for civil actions is ten years.[10] Since the allegations in the complaint could amount to criminal behavior, the ten year provision would be applicable. To avoid that result, defendants' experts state that only natural persons can be criminally liable. Taking this step by step, if we were to try to find the exact Swiss cause of action, with its relevant statute of limitations, which could actually be brought against each defendant in Switzerland, we *1217 would find IIT's cause of action timely as to some defendants, and untimely as to others. On the facts of this case, where the only Swiss connection with the lawsuit is the residency of the plaintiff, and the complaint alleges securities fraud in the United States by American defendants, that type of fractionalizing of a cause of action is absurd. We further find the one year Article to be an inappropriate statute to apply insofar as it is a shorter limitations period than all statutes encountered in our research. In a case of first impression as to which Swiss period to apply, that option would be inconsistent with the "broad remedial policies of the federal securities laws," which "`are best served by a longer, not shorter statute of limitations.'" Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 409 (2d Cir.1975) (quoting United California Bank v. Salik, 481 F.2d 1012, 1015 (9th Cir.), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973)).
In sum we find the Swiss securities provision applicable. While state, or in this case, Swiss law controls as to the length of the period, federal law determines when the period begins to run. See discussion, supra, p. 1214. As noted above, the very first sign of trouble was in October of 1970, and the lawsuit was filed on October 24, 1974. IIT's claim is timely.
The Pound Ridge Trust
Plaintiff Elizabeth Maiden, a resident of New York, is the Trustee of the Pound Ridge Trust. Her predecessor, Thomas Hugh Byrd, was the Trustee at the time of the purchase of the Ivanhoe securities. While Mr. Byrd was a New Jersey resident, he conducted all his business activities, including the performance of his duties as Trustee, in New York. The Trust was created in New York, with a New York settlor. While the Trust originally had a New York trustee and New York beneficiaries, at the time of the purchase, all four of the beneficiaries lived in Connecticut. The Trust instrument states that the Trust is to be construed according to New York law. Lastly, the Trust files New York State and City tax returns.
Defendants argue for the applicability of either New Jersey or Connecticut law under the borrowing statute, either of which could bar the action. We need not reach the question of whether current New Jersey law has a two or a three year limitations period insofar as we decide that the cause of action accrued within New York.
Initially, we agree with defendants' argument that the New York residency of plaintiff Maiden is not relevant to the question of the applicability of the borrowing statute. Ms. Maiden was not the trustee at the time the cause of action accrued. Gluck v. Amicor, 487 F.Supp. 608, 612 (S.D.N.Y.1980). However, the New Jersey residency of the Trustee at that time is also not dispositive, since New Jersey is not where the economic impact of the fraud was felt. Sack v. Low, 478 F.2d 360, 366 (2d Cir.1973).
As previously outlined, usually the place where the economic loss of a fraud would be felt is the plaintiff's residence: no cases hold that the residency of the plaintiff always determines where a cause of action accrued. Where the plaintiff is a trust, the use of the residency of the trustee as the sole factor to determine the place of accrual does not make sense as a practical matter, and is not required legally.
While the residence of a trustee determines the residence of a trust for the purpose of determining whether diversity jurisdiction exists, Navarro Savings Association v. Lee, 446 U.S. 458, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980), in the context of the borrowing statute, residency is merely a shorthand method to decide where economic impact is felt.[11] Defendants argue that because a trustee can be subject to a surcharge for failure to pursue claims on behalf of the trust, it is the trustee who *1218 suffers an economic loss. The nature of a trustee's liability for investment decisions on behalf of a trust, and whether a claim for securities fraud is the type of claim that would subject a trustee to a surcharge are highly speculative issues. Defendants' focus on the internal workings of trusts also misses the thrust of the inquiry who became poorer, and where did they become poorer, as a result of the investment in Multiponics securities. See Arneil v. Ramsey, 550 F.2d 774, 779 (2d Cir.1977).
Defendants' alternative analysis that the residence of the beneficiaries is the situs of the loss has appeal because these are the individuals who lost money. While all four beneficiaries are currently Connecticut residents, they used to live in New York. It would appear to be pure happenstance that all the beneficiaries now live in the same state. If the beneficiaries were scattered, it would be unworkable to fractionalize one claim because some parts were timebarred.
We are persuaded that it is the Trust itself that suffered the loss, and the loss was felt in New York. While a trust is not a distinct legal entity like a corporation, it is a set of legal relationships with respect to property. I Scott on Trusts, § 2.3 at 38 (3rd Ed.1967). The corpus of the Trust diminished as a result of the investment in this case. From all the facts presented on this motion, it is clear that the Trust is located in New York. New York is where taxes are paid, where its investment decisions are made, and where the securities are physically kept. For the purpose of determining the applicability of the borrowing statute, New York is where the cause of action accrued. Since the borrowing statute is not applicable, New York's six year limitations period applies, and plaintiff Maiden's claim on behalf of the Pound Ridge Trust is timely.
Massachusetts Plaintiffs
The three class plaintiffs from Massachusetts are Karl E. Schlacter, Marion P. Schlacter and Worcester County National Bank. Bay Colony Management Corp., also a Massachusetts resident, acted as agent and nominee for these purchasers and presented an uncertified check at the closing on October 25, 1968. The securities were placed in escrow at the closing and released on October 31, 1968 after the check cleared. Subsequently, Bay Colony requested the reregistration of the units held in its name to other parties, including Worcester County National Bank (900 units) and the Schlacters, as joint tenants with rights of survivorship (10 units).
There is no dispute with respect to the Massachusetts residency of either Bay Colony or the plaintiffs. We have already rejected plaintiffs' general argument that the borrowing statute is entirely inapplicable to the non-New York residents on the basis of a grouping of contacts analysis. See p. 1212, supra. Plaintiffs made no argument indicating that these particular individuals or the Bank felt the economic loss of their investment somewhere other than their residences. Sack v. Low, 478 F.2d 360, 366 (2d Cir.1973). Therefore, we look to Massachusetts law, which has a two year limitations period for claims arising on or before January 1, 1974. Cook v. Avien, 573 F.2d 685, 694 (1st Cir.1978); Sleeper v. Kidder Peabody, 480 F.Supp. 1264, 1265 (D.Mass.1979), aff'd, 627 F.2d 1088 (1st Cir. 1980). Applying federal law, and starting the limitations period at the time at which it is indisputable that there was actual knowledge of the fraud, in February of 1972, the claims of the Massachusetts plaintiffs, in their individual capacities are clearly time-barred.
Deloitte Haskins and Sells Separate Motion for Summary Judgment
Deloitte Haskins and Sells moves separately for summary judgment on all the plaintiffs' claims, including the New York residents. The facts pertinent to their unique statute of limitations defense are as follows. The original complaint was filed on October 24, 1974 and named Multiponics auditors as a John Doe defendant. Twenty days later, on November 14, 1974, plaintiffs filed an amended complaint naming *1219 Deloitte, Haskins and Sells[12] specifically as the auditor defendant and promptly served them with process. The amended complaint alleged that Deloitte Haskins and Sells was Multiponics "public accounting firm," which approved the contents of the offering circular, participated in its preparation and also participated in the solicitation of plaintiffs' purchases of Multiponics securities.
Plaintiffs must satisfy the requirements of Fed.R.Civ.P. 15(c) to determine whether their amended complaint can relate back to the date of the original pleading. The first requirement of the rule is that the amended claim must arise out of the same transaction or occurrence set forth in the original pleading: this requirement is obviously met. Whether a John Doe complaint should be treated as a misnomer or otherwise is irrelevant, since the Second Circuit has held that all amendments affecting the designation of parties must satisfy the criteria of Rule 15(c). Ingram v. Kumar, 585 F.2d 566, 570 (2d Cir.1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979).
Defendant was properly named and served within twenty days of the running of the statute of limitations. The Second Circuit has explicitly held that "the period within which `the party to be brought in' must receive notice of the action includes the reasonable time allowed under the federal rules for service of process." Ingram v. Kumar, id., 585 F.2d at 572. Twenty days after the statute of limitations has expired is well within the reasonable limits accepted by other courts. Calabretta v. National Airlines, 528 F.Supp. 32 (S.D.N. Y.1981) (2-3 weeks); Davis v. Krauss, 478 F.Supp. 823 (E.D.N.Y.1979) (2 months reasonable). Defendants have also not shown any serious prejudice as a result of the failure to name them specifically twenty days earlier. Lastly, with respect to the knowledge requirement of Fed.R.Civ.P. 15(c), defendant argues that they had no knowledge of this litigation until the amended complaint was filed against them. The language of the rule does not require actual knowledge for an amendment to relate back: the question is whether the party "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him." Fed.R.Civ.P. 15(c)(2). Whether Deloitte Haskins and Sells "should have known that they were included in the complaint" is an issue for trial, since it involves a disputed question material to the motion. Plaintiffs note that Deloitte Haskins and Sells was participating in the Louisiana bankruptcy proceedings, and that it is disingenuous for defendant to argue that they had no idea about the litigation. Drawing all reasonable inferences favorable to the plaintiff, the defendant has not met their burden of showing an absence of issues for trial. See generally Cali v. Eastern Airlines, Inc., 442 F.2d 65 (2d Cir.1971).
Class Action Certification
Plaintiffs also move for class certification. For the following reasons, this motion is denied.
First, plaintiffs fail to meet the third prerequisite to a class action as set forth in Rule 23(a) Fed.R.Civ.P. that the class be "so numerous that joinder of all members is impracticable." By their own account, resolving all relevant disputed issues of law in favor of the plaintiffs, the putative class numbers 37. By granting partial summary judgment with respect to some of the plaintiffs' claims in this decision, the class is reduced to a total of 33 members. Moreover, based on the residencies of other members of the class, it would appear that the 5 absent class members from Massachusetts would also be timebarred, unless plaintiffs produce some evidence that those class members suffered the economic impact of the fraud someplace other than their residences. This leaves us with a total of 28 class members, *1220 some of whose claims could very well be time-barred, insofar as they reside in states other than New York whose applicable limitations period could be shorter.
While there is no magic number that makes a class appropriate or inappropriate, Rule 23(a)'s numerosity requirement is a prerequisite to the maintenance of a class action. Plaintiff has the burden of proving that joinder would be impracticable because of the number of class members. Demarco v. Edens, 390 F.2d 836, 845 (2d Cir.1968). Beyond stating that because absent class members are from a variety of states, and therefore not subject to compulsory joinder, plaintiff makes no other argument as to why joinder is impracticable. To date, geographic diversity has not prevented purchasers of Multiponics securities from getting together. Five of the present plaintiffs joined the lawsuit after the initial complaint was filed, which indicates that joinder is practicable, rather than impracticable.
Even were we to find that plaintiffs met their burden on the numerosity requirement, and could satisfy the prerequisites of Rule 23, certification of a class is not warranted. We are not persuaded that the common issues predominate over the individual issues, which include the issues of reliance and timeliness. We recognize that the Second Circuit has stated that individual issues of reliance should not always bar class certification. The result obviously would be to "negate any attempted class action under Rule 10b-5." Green v. Wolf Corp., 406 F.2d 291, 301 (2d Cir.1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969). But we have already held that the question of reliance on specific misrepresentations in the offering circular will not be presumed. See Maiden v. Biehl, [1981-1982 Transfer Binder] Fed. Sec.L.Rep. (CCH) ¶ 98,347 at 92,150, 92,152-92,153 (S.D.N.Y. Nov. 10, 1981). This lawsuit involves a private placement to a relatively small number of investors. While the parties dispute whether oral misrepresentations were made, any questions with respect to oral misrepresentations would individualize the questions of reliance to an even greater extent. The individual nature of the timeliness issue should be apparent.
Plaintiffs have not met their burden with respect to the prerequisites for a class action, nor have they made any showing as to why a class action would be "superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3). Relatively few in number, with sizeable individual claims, absent class members are free, and have been free for the 10 year pendency of this lawsuit, to intervene.
CONCLUSION
Defendants are granted their motion for partial summary judgment with respect to the claims of Shareholders Associates, Shareholders Capital Corporation, Karl E. Schlacter, Marion P. Schlacter and Worcester County National Bank. Deloitte, Haskins and Sells is granted partial summary judgment to the same extent as the promoter defendants, but is denied its separate motion for summary judgment. Insofar as the partial summary judgment motion disposes of the federal claims of the plaintiffs, we decline to exercise pendent jurisdiction over their state claims: the cases brought by the above mentioned plaintiffs are dismissed. Lastly, the plaintiffs' motion for class certification is denied.
SO ORDERED.
NOTES
[1] The claims brought under Section 12 of the Securities Act of 1933 are time-barred. Section 13 of the Securities Act of 1933, 15 U.S.C. § 77m, provides that claims brought under Section 12 can in no event be brought later than three years from the sale of the securities. Plaintiffs concede that the Section 12 claims are not timely. Therefore, defendants are granted summary judgment on the first and seventh causes of action in the second amended complaint.
[2] The borrowing statute, N.Y.C.P.L.R. § 202 (McKinney), provides in full:
An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.
[3] Shareholders Capital Corporation was the sole shareholder of Shareholders Associates, Inc., which assigned and transferred the interest in the Multiponics securities in December of 1973. They sue as co-plaintiffs to avoid any questions as to which is the real party in interest.
[4] Conn.Gen.Stat. § 36-346(e), now repealed, would still govern this case as it was effective from July 1, 1967 to October 1, 1977. In Connecticut, the statute of limitations in effect at the time of filing controls. Dandorph v. Fahnestock & Co., 462 F.Supp. 961, 963 (D.Conn.1979) (citing Bohun v. Kinasz, 124 Conn. 543, 547, 200 A. 1015 (1938). The successor statute, Conn. Gen.Stat. § 36-498 retains the two year period.
[5] Stafford does not affect the claims of American plaintiffs, insofar as the applicable securities laws provide for nationwide personal jurisdiction. See Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir.1974).
[6] Article 57 provides as follows:
(1) In civil matters and under reservations of rights in the federal constitution, in the federal laws and in international treaties, the courts of the canton [of Geneva] have jurisdiction of the following cases:
* * * * * *
(c) in suits against foreigners, even non-residents of the canton, arising from obligations which they have entered into [in Geneva] with respect to persons domiciled in the canton.
(2) In all other cases, one follows, as regards foreigners not domiciled or residing in the canton, the same jurisdictional rules which are observed in their countries regarding residents of Geneva.
The parties' experts directly contradict each other on the applicability of Article 57(1)(c) to a tort action, so we rely on 57(2).
[7] Article 752 as translated by the plaintiffs' expert, provides:
If, on the occasion of the formation of a company, or of the issuance of shares or bonds, there have been made or divulged statements in a prospectus (Arts. 631, 651), or in circulars, or similar notifications, which are incorrect or do not comply with the legal requirements, anyone who has cooperated intentionally or negligently in this connection will be liable to the individual stockholders or bondholders for damage caused thereby.
[8] Article 760 reads as follows:
The claim for damages against persons responsible according to the above provisions is barred after five years from the day on which the aggrieved party has received knowledge of the damage and of the person responsible, but in no case later than ten years from the day of the damaging action.
If the claim is based on a criminal action for which the criminal law provides a longer limitation, this is valid for the civil claim as well.
[9] Article 41, Swiss Code of Obligations, states:
Whoever unlawfully causes damage to another, whether willfully or negligently, shall be liable for damages. Equally liable for damages is any person who willfully causes damage to another in violation of nonae mores.
[10] Article 60, Swiss Code of Obligations, states, in pertinent part:
The claim for damages or reparations is barred by the statute of limitations (Article 127 et seq.) after one year from the date when the damaged person has received knowledge of the damage and of the identity of the person who is liable, but, in any event, after ten years from the date when the act causing the damage took place.
If the claim results from an act which is illegal under criminal law, however, and which, in accordance with criminal law is subject to a longer period of limitation by statute, then the latter period of limitation shall also apply to the civil claim.
[11] Freschi v. Grand Coal Venture, 551 F.Supp. 1220 (S.D.N.Y.1982) is not to the contrary. Judge Sweet did not make any specific rules with respect to where trusts suffer injury, but also analyzed all the facts of that case, taking into account the same factors we have.
[12] Deloitte Haskins and Sells changed its name from "Haskins & Sells" in May of 1978. It was actually sued under its old name in this action.
|
793 F.2d 1288
*State of Miss.v.Bennett
86-4072
United States Court of Appeals,Fifth Circuit.
6/23/86
1
U.S.Dept. of Educ.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2.
|
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
10-JUL-2019
09:36 AM
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
________________________________________________________________
STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee,
vs.
SHANE K. IOANE, Petitioner/Defendant-Appellant.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-16-04180)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner/Defendant-Appellant Shane K. Ioane’s
application for writ of certiorari filed on May 27, 2019, is
hereby rejected.
DATED: Honolulu, Hawai‘i, July 10, 2019.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
|
206 So.2d 897 (1966)
Gene WARD
v.
STATE.
6 Div. 99.
Court of Appeals of Alabama.
December 6, 1966.
Rehearing Denied March 28, 1967.
*899 Rogers, Howard, Redden & Mills, Birmingham, for appellant.
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
CATES, Judge.
This appeal was submitted May 5, 1966, on written argument.[1]
In a true bill filed June 5, 1964, the Grand Jury of Jefferson County (Birmingham Division) indicted Ward for the first degree murder of Harry S. Trent.
January 16, 1965, a petty jury, after a trial begun January 11, found Ward guilty of second degree murder and fixed his punishment at the minimum prescribed, ten years in the penitentiary. Ward appeals from judgment entered on the basis of this verdict and from a judgment of October 29, 1965, overruling his motion for new trial.
The transcript of the evidence encompassing 530 pages of 16" × 10½" transcript paper was filed in the circuit clerk's office December 27, 1965, and the record itself, another 64 pages embracing the pleadings and minute entries, was certified February 8, 1966, and came here February 10, 1966.
I.
The Evidence
May 14, 1964, appellant's wife was staying at least some nights with her brother's family, apart from Ward. About 9:30 or 10:00 P.M. Ward went to the apartment where Mrs. Ward stayed. Ward, on being told by Aaron Slayton, the wife's brother, that she was out, said he was going to kill her.
Slayton phoned the police. In a few minutes he heard several shots fired. He again called the police.
Looking out his front door Slayton saw Ward by "a car backed off to the curb over *900 there," standing on the side opposite the driver.
Birmingham police officers, C. W. Hanks and K. S. Zassoda, were patrolling in the Birmingham Southern-Bush Hills section. About 10:45 P.M. they received a call to go to 2102 Tenth Place West, Slayton's address.
As they drove up Ward appeared. He gave Hanks a .45 automatic pistol.
According to Zassoda's testimony the two came to a place where Zassoda saw "a couple of vehicles in front of us." Then:
"Q After the car stopped, did you get out?
"A Yes, sir.
"Q Did Officer Hanks get out?
"A Yes, sir.
"Q Did you get out of the vehicle on the same or opposite side of the automobile?
"A Opposite side.
"Q When you got out, did you see anyone?
"A After I got out of the automobile, I saw an officer coming towards us.
"Q In your judgment, how far was the officer from you when you saw him?
"A Maybe five or ten feet from the car.
"MR. ROGERS: From your car?
"A From the police car, yes, sir.
"Q You later found out the name of this officer?
"A Yes, sir. He identified himself.
"Q And was that person Officer Ward?
"A Yes, sir.
"Q Now, did Officer Wardwhich side of the car you were in did he approach?
"A He approached the driver's side. I was on the right side.
"Q What did you do as he approached the driver's side?
"A I got out and walked towards the front of the car, and he identified himself to us.
"Q Was he standing in front of the car when he identified himself?
"A Yes, sir.
"Q Where was Officer Hanks at that time?
"A Standing by his door.
"Q Did you have a conversation with Mr. Ward there at that time and place?
"A Officer Ward made a statement to us there. He said, I' am Officer Ward, of the Homewood Police Department,' and he said, `I just shot and killed a man.' And he pointed towards a Ford automobile, and he said, `I shot him seven times.'
"Q Did he say anything with reference to any weapon which he might have had?
"A At this time he said, `I guess you want this,' and he took his.45 Automatic and handed it to Officer Hanks, and Officer Hanks put it in his pocket, and we went over to the car."
The prosecution, after extensive predicatory examination under the totality test,[2] Ward told Zassoda that he had been waiting for his wife; he had parked his car so as to force "the oncoming car that came in there would have to back out to get out."
Ward pointed out the approximate place where he shot Trent. Mrs. Ward had been in the car with Trent.
Ward told Zassoda:
"He said after the Ford automobile came up into the area he heard some screaming *901 coming from the car, and the door opened, and his wife came running by where his car was, and he walked up to the car."
Hanks gave the gun to Sgt. McBridge.
Mr. Charles Pierce, a detective for the City of Birmingham, went to the Slayton address. There Sgt. McBride handed him a .45 automatic.
Pierce also found in Trent's car three spent hulls and a bullet which had lodged in the left front door. He gave these and the gun to Robert B. Johnson.
Johnson, a State toxicologist, without objection, testified that he fired a test bullet through the gun and under a microscope compared its striations and those of the bullet given him by Pierce. He testified that the result demonstrated that the "evidence" bullet was fired from the automatic. (R. 186.)
Pierce also found in Trent's car a pint bottle partly filled with vodka and two paper cups. One of the cups was empty, dry and did not have an odor. The other, found to the right of Trent's body, was between one-fourth and one-half full of vodka and some mixer.
The only statement which Ward gave in Pierce's hearing at the scene related to Ward's arranging for his son, Joe Ward, to take Ward's car. Later at the Birmingham City Hall in Pierce's office, Pierce told Ward "in substance," that he did not have to make a statement at that time if he didn't want to. Pierce did not mention a lawyer.
Pierce's interrogation continued as follows:
"Q What statement, if any, did Mr. Ward make to you at that time?
"A I asked Mr. Ward what his name was, and he told me, and I asked him how old he was, and he told me he was forty, and I asked him his address, and he gave me that.
"I then told him that he was charged with the murder of Mr. Harry Trent, and asked him if he wanted to make any statement in regard to this homicide, or words to that effect, and he said he didn'tthat he would make a statement, and then I further told him that he realized that any statement he gave me could be used either for or against him in court, and he then said that he would rather not make any statement until he talked to Mr. Rogers [defense counsel].
"Q And you attempted to take no further statement from him at that time?
"A I then asked him if Mrs. Esther Ward was his wife, and he said she was, and I asked him if he had any children, and he said he did, and I made no further effort to take any statement from him." (Italics and bracketed matter added.)
Joe Ward, appellant's son, testified that, based on a number of incidents which he enumerated, his father was insane on May 14, 1964. These incidents consisted of crying spells, protesting when Mrs. Ward worked, when she got phone calls, ripping the phone cord from the wall, refusing to go to a daughter's wedding, shooting through a bed, putting a drinking glass to his stomach and falling on it, painting his boat "practically" every time after he used it, and several other episodes.
After the shooting, Ward went for three weeks into University Hospital in Birmingham. From there he went to Bryce Hospital in Tuscaloosa, staying there "close to three months." (R. 209.)
The son testified that on the night of May 14 he saw his father outside the Slayton apartment. Ward did not appear to recognize his son nor did he respond in any way to him as Joe tried to talk to him.
This witness further related he saw his father later walking toward a moving car:
"A I saw him walking towards the car, and I started screaming, telling them to back up.
*902 "Q You started screaming, telling them to back up?
"A Yes, but the car kept coming right on.
"Q Did it hit your father?
"A He was standing right in front, by the side of the car. The car knocked him down.
"Q What happened then?
"A The car seemed like it immediately backed up.
"Q Joe, tell us, in your best judgmentcan you see that from here (indicating)?
"A Yes.
"Q This little mark (indicating) indicates where the car came to rest. You know where that is, don't you?
"A Yes.
"Q Where it stopped?
"A Yes.
"Q This is your uncle's appartment, here (indicating), where the red mark is.
"Now, where, in this distance between the apartment and where the car came to rest, was it that Mr. Trent started backing the car up?
"A About the middle of the distance.
"Q About halfway?
"A Yes.
"Q About halfway?
"A Yes.
"Q All right. Did you see your father get up, or what did he do?
"A The car had backed up then, when I was still going towards the car.
"Q You were going towards the car?
"A Yes.
"Q Were you running, or walking?
"A I guess I was running.
"Q You don't know? What did you do? Did you go to the car?
"A I went to the car and got my mother out of the car.
"Q You got your mother out of the car?
"A Yes.
"Q Did you open the door, or did she open the door, or do you know?
"A I don't know.
"Q What did you do then?
"A Well, I got her out of the car and ran down the street.
"Q Did you go back the way the car had come, or how?
"A I can't say positively, but I am almost sure I went the way the car came and around to the other apartments.
"Q On the far side?
"A Yes.
"Q Did you see the shooting?
"A No.
"Q Did you hear it?
"A Yes."
Loyal Perry, who had married a sister of Mrs. Ward, testified for the defense. On the night of concern, he had seen Mrs. Ward get into a light colored Ford. He had followed the car, got the tag number, and phoned this information to Ward.
Bobbie Jean Bowman, a daughter of appellant, testified that on the day of her wedding in March, 1963, her father locked himself in his room for the day. (JR. 395.) She also told some of the same incidents which her brother, Joe Ward, had related.
In the Spring of 1964, she lived in Cocoa Beach, Florida. Appellant made numerous phone calls to her:
"He would always be crying when he called, and he would always say he *903 didn't know how much more he could take from my mother, and he always tried to get me to write to her and try to get her to do better."
She also testified that, from her observations, contact, and conversations with her father, he was insane on May 14, 1964.
The defense called Dr. Benjamin F. Morton, a licensed physician engaged since 1937 in the practice of psychiatry, a member of the American Psychiatric Association and other professional societies.
We excerpt from Dr. Morton's direct examination:
"A Mr. Ward, a forty year old white male was seen at my office on June 9, 1964, for neuro-psychiatry evaluations. He gave a history of being very nervous and depressed ever since May 14, 1964, when he admittedly shot and killed a man in a car who was with his wife. They had been married twenty-one years and had four children, ranging in ages from twenty-one to eight.
"His wife had left him fifteen years ago and was gone for a period of approximately three weeks, and, in the interval of the time he admitted that he had been suspicious and had followed her at times because of the feeling that she was stepping out on him. However, he could give no definite, concrete example.
"Now, he had been a police officer in the Homewood Police Department for about eight years. Prior to that he had driven a truck.
"Now, in our initial examination we felt that we were dealing with a marked mood depression.
* * * * * *
"We were suspicious of a paranoid personality because of his attitude towards his wife, but, in the absence of other information, we couldn't take a definite stand on that particular subject.
"Patient was seen again by me on June 25, 1964. His condition was unimproved, and, because of deep depression, I recommended institutionalization. I felt he could get the benefit of treatment, meaning, specifically, commitment to Bryce's Hospital. I felt he could get treatment at Bryce's and be further studied psychiatrically and, as a matter of fact, on two occasions I wrote letters recommending commitment to Bryce's Hospital.
"I was called in July, asking if it was possible for me to take him on as a patient, if I would take him on as a patient and treat his depression. And, on July 15th, 1964, he was admitted to the Psychiatry Wing of * * * University Hospital. The following morning he was begun on a course of electric shock treatment. He received the shock treatment on three successive days, and the fourth day he did not receive shock treatment.
"He was markedly improved and was smiling and laughing for the first time since he had been under my observation, and, as a matter of fact, at that time we were very pleased with the results.
"He was given another treatment following that, which was the fourth shock treatment, and that evening I was called by the nurse on the floor and was told that the patient had become emotionally disturbed and, as a matter of fact, violent, and had picked up the chair and threatened to kill the orderly on the floor. I asked her what happened, and, from her description, the orderly had merely asked him to move out of the way while he cleaned. Mr. Wardhe was in a five bedroom wardand, for no apparent reason that they could tell he became violent and threatened to kill the orderly.
"I ordered heavy sedation and told the nurse if he had not quited down in thirty or sixty minutes to call me back and I would come over there, and he quieted down and I did not see him again until *904 the following morning. The following morning he was very hostile and belligerent. He had not changed in his attitude towards the orderly, and he felt that the orderly was abusive to him, and he said if he got his hands on himmeaning, `I will take care of him,' `I will pick up the chair and hit him over the head if I ever see him again.'
"We felt we could not manage him under those conditions, and the patient was removed from the floor, and another letter was written, making recommendation for his commitment to Bryce Hospital. He was committed to Bryce Hospital on August 4th, and it is my information he was discharged on October 12th.
* * * * * *
"Since being out of Bryce Hospital, I saw him November 16, 1964, and again on December 14, 1964. The mood depression is definitely improved, outwardly. He shows no unusual personality manifestations. That is, the mood is within normal limitations, and we were not able to elicit any psychotic manifestation at that time, that is, * * * December 14, 1964.
"* * * Now, on the basis of the overall picture, based on my examinations and observations, my final diagnosis in the case is affective mood depression. That is the mood depression I previously referred to, and paranoid personality reaction.
* * * * * *
"Paranoid personality reaction is an individual that exhibits certain traits, such as a tendency to be suspicious, insecure, stubborn, argumentative, at times secretive, uncompromising in his attitudes, and not tolerant of criticism. They also show a common tendency to blame others for their own inadequacies. Outwardly they show no change in their personality, and they may continue with their everyday activities without showing any apparent evidence of their underlying personality.
"They show a tendency to blame others, and this is characterized by an hostile or aggressive attitude or action to others, and they take what they consider defensive action, which is attack.
"Q Is it your opinion that Gene Ward had this paranoid personality reaction on the 14th day of May, 1964?
"A It is my opinion that he has always had it.
"Q That he has always had it?
"A Yes, sir.
"Q It is a continuing condition?
"A Yes, sir, but it hadn't been overly manifested. But, in my observation, it was definitely manifested in my examination at the hospital, after this incident in the ward.
"I may add that I was suspicious of it on the basis of his attitude towards his wife, but I did not have any benefit of any history.
* * * * * *
"We were impressed with the other possibility, but not having any confirmatory information from other sources we did not put that in our initial impression.
"Q At the time of your first examination of him, did you have the benefit of any history or background from any person other than the patient?
"A I talked to his brothers briefly, and the information that I could get out of them was his tendency to be suspicious of his wife, and apparently there may have been some justification for that, but I could get a great deal more information from that source.
"Q You didn't, at that time, have the benefit of any information from his wife or children or other close associates?
"A No, sir.
*905 "Q Now, is this paranoid personality reaction sometimes difficult to diagnose?
"A Yes, sir, because, as I said earlier, frequently to outward appearance they are perfectly normal individuals, except some of these little traits that may be manifested under stress. When subjected to any undue stress, we then have an exaggeration of these traits, and he is not normal."
Mr. George Harris testified that, about three weeks before May 14, 1964, he had seen Mrs. Ward at the Jewel Box, Tutwiler Hotel. She was with a man whom she introduced to Harris as Harry Trent.
About a week later, between 6:30 and 7:30 in the morning, Harris had seen her in a light colored car driven by a man.
Bert Ward, Jr., and Lloyd Ward, brothers of appellant, testified that they had given hospital workers at Bryce's their separate recollections of Ward's unusual behavior.
The defendant did not take the stand.
When the defense rested, the State called as a rebuttal witness a stenographer of the Birmingham Police Department who had taken Joe Ward's statement the night of May 14-15.
Strictly, this testimony was used in impeachment. Young Ward, on cross, had repeatedly said that he neither recalled the questions nor the answers on that occasion with a few minor exceptions. (R. 285 et seq.)
Through the testimony of E. J. Cagle, a fellow officer with Ward on the Homewood City police force, the defense sought to show that Ward had encountered harassing domestic difficulties and was extremely nervous (or anxious) after his wife left him in the Spring of 1964.
The State, in rebuttal, called other Homewood policemen, all of whom, on cross, conceded that Ward was a quiet man.
Dr. T. H. Patton, Jr., of Bryce Hospital was called by the prosecution. Through his testimony a question and answer interrogation of the appellant by members of the professional staff came into evidence.
Dr. Patton considered Ward schizoid with "some paranoid coloring. * * * or tendencies." On cross, Dr. Patton stated that by himself he had had two long interviews with Ward.
His opinion, in part, was elicited by the State on redirect:
"Q (BY MR. HAWKINS) Doctor, I believe your conclusion in your diagnosis was that this man was, on May 14, 1964, a sane man and had been at all times?
"A Yes, sir. He shows no evidence of a psychosis. I don't think that the act with which he is accused was based on delusions or hallucinations at all. There is no reason to think that he was not competent, and I feel that he did know what he was doing at the time. It was not based on delusions and not based on illusions."
II.
Appellant's first claim of harmful error arises from the trial judge's refusal to let defense counsel question each member of the venire singly "as to any bias, or prejudice." Instead, the court permitted questions to be addressed to them in groups of thirteen, adding
"However, I realize that there are some questions which may be individual to a juror, because of certain peculiarities, experience, or employment, residence, and things of that sort, and, in that event, you may examine the juror individually.
"However, I will require you, generally, to examine at least in groups of thirteen."
The root of this question lies in Code 1940, T. 30, § 52:
"§ 52. In civil and criminal cases, either party shall have the right to examine *906 jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict."
This section was written by the Code Committee as § 8662 of the 1923 Code. It seems to stem from Bowen v. State, 8 Ala.App. 103, 62 So. 1022, where we find:
"It is the better practice for the presiding judge, in examining the persons who appear in court to serve as jurors in a case that may be punished capitally, to examine them separately on their voir dire examinations touching their qualifications and competency, and not to qualify them in a body, as is shown by the bill of exceptions to have been done in this case; but at most this could only be considered as an authorized but illchosen expedient adopted by the court for facilitating the trial, for there is no requirement of law that the examinations shall be separately made. The action of the court in this particular, although shown to be against the objection of the defendant, would not constitute error that would require a reversal of the judgment appealed from."
See also 24A C.J.S. Crim.Law § 1900, and Anno. 73 A.L.R. 1208.
In § 52, supra, we find two "rights" of examination: (1) as to qualifications, interest or bias affecting the trial; and (2), under the court's direction, as to any matter which might affect the verdict.
We consider that the proviso which the trial judge added to his ruling above correctly reflected the spirit of § 52. Aaron v. State, 273 Ala. 337, 139 So.2d 309; Burns v. State, 226 Ala. 117, 145 So. 436; Gholston v. State, 221 Ala. 556, 130 So. 69; Rose v. Magro, 220 Ala. 120, 124 So. 296; Smith v. State, 36 Ala.App. 624, 61 So.2d 698 (reversed on another point 258 Ala. 86, 61 So.2d 707).
We are influenced, also, by counsel's couching his request in general terms, i. e., "as to any bias, or prejudice." A challenge too general is subject to demurrer. R. V. Hughes, 1 Car. & K. 235. Code 1940, T. 30, § 55, lists express grounds and others were known to the common law, even as to the name which a man chose for his dog.
In Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734, Mr. Justice Minton observed:
"No question of actual bias is before us. The way is open in every case to raise a contention of bias from the realm of speculation to the realm of fact. * * *"
The court there refused to decide that, as a matter of law, a statute making Federal employees eligible to serve on District of Columbia juries made them biased per se.
At the same term, a trial court's refusal of interrogation regarding the impact of Executive Order 9835 was held to have denied an impartial jury and led to reversal in Morford v. United States, 339 U.S. 258, 70 S.Ct. 586, 94 L.Ed. 815.
We hold there was no error on this point.
III.
Coroner as Expert on Cause of Death
Proof of cause and effect as between Ward's several shots into the body of deceased was formally pronounced by a layman, the Coroner of Jefferson County.
Appellant argues that the cause of death of a human being is a subject which lies only within the realm of expert testimony citing Phillips v. State, 248 Ala. 510, 28 So.2d 542, and McMurtrey v. State, 39 Ala.App. 319, 101 So.2d 88.
*907 The argument for its factual premise goes as follows:
"Mr. Butler was shown to be the Coroner of Jefferson County since 1959. From 1951 to 1959 he had been Deputy Coroner. During that period of time he had seen many dead bodies that had wounds on them. He had also been present at many autopsies. Beyond this Mr. Butler was not shown by the Record to have any special education, training, or experience. He was not shown to have any specific experience in the examination of bodies with wounds that had caused death."
The appellant does concede that, where experiential qualifications are shown, a person who is a coroner or undertaker may be qualified to testify to the cause of a particular person's death.
Mr. Butler was a Deputy Coroner in Jefferson County from 1951 to 1959. In the latter year he ascended to his present office, and at the time of the trial had some thirteen or fourteen years of experience from this employment.
Mr. Butler testified that he had had occasion to see "many dead bodies that had wounds on the bodies"; that he had been present at many autopsies; and had testified in court on many occasions as to the cause of death of people who died as a result of some injury. He then testified that he examined the body of the deceased.
On page 87 of the recorda matter ignored by the State in briefwe find the following question, objection, ruling and answer:
"Q I will ask you, Mr. Butler, if the wounds you saw on the body of Harry S. Trent, on the night you examined his body in the Brown Service Funeral Home, was sufficient within themselves to cause his death?
"MR. ROGERS: We object to that. Calls for expert witness. Calls for medical testimony over and beyond the qualifications of this witness. It would be illegal and incompetent evidence.
"THE COURT: Overrule.
"MR. ROGERS: We except.
"A It would, sir.
"MR. HAWKINS: That's all."
An expert witness is one who is shown, either by training or experience, to be better informed than the hypothetical average juror.
One factor which is not discussed by either party in brief here is that Mr. Butler was shown by the Assistant District Attorney to have been accepted in other courts as an expert witness with reference to the cause of death of people who dired as a result of injury. Considering the fact that Ward fired six or seven bullets from his pistol into the body of Trent, we do not think there was an error in allowing Mr. Butler to give his opinion as to the cause of death. Supreme Court Rule 45.
IV.
Defense counsel contends that two policemen, Zassoda and Hanks, should have been first examined as to the proper predicate to show voluntariness before the admission of Ward's statement that he had fired seven bullets into Trent's body.
This trial occurred before June 13, 1966, but after Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, had been delivered by the Supreme Court of the United States, i. e., the trial began January 11, 1965.
The Supreme Court of Alabama has chosen to adhere to its former views of confession as shown by Mathis v. State, 280 Ala. 16, 189 So.2d 564. Moreover, the way in which this particular testimony came into evidence shows that it was a spontaneous exclamation which in our cases, is sometimes distinguishable from an inculpatory statement extracted by interrogation. See *908 McElroy, Evidence, 2d Ed. § 200.02(3), for a full discussion of the spontaneous exclamation rule in Alabama.
Moreover, Officer Zassoda's testimony fails to show that Ward was in anywise under arrest or in custody before or while making the statement claimed not to have been established as altogether voluntary. Too, there was some evidence that Ward telephoned the Birmingham police headquarters to report that he had shot Trent.
V.
During the cross-examination of Mr. C. L. Pierce, a detective on the Birmingham police force, the following appears in the record, pages 175-176:
"Q And you have made arrangements with the State Toxicologist, you have carried everything to him, you have done a lot of work in the preparation of this case, is that right?
"MR. HAWKINS: I object. Immaterial whether he has carried it to anybody and furnished reports to anyone. It is his duty.
"MR. ROGERS. I have a right to show what happened, Judge.
"THE COURT: Sustain."
The Assistant District Attorney's objection is well put. The State Toxicologist is not an adversary, nor is he a tame witness of the prosecution. Yet, this aspect of the enquiry was not material to the examination of the detective.
Moreover, the question has at least two perhaps three, aspects, i. e., contact with the Toxicologist and Mr. Pierce's doing a lot of work in preparation of the case. We consider the court's ruling was correct in the circumstances.
VI.
The State objected to certain questions put on direct examination to the defendant's witness, Mrs. Jacobs, and excluded certain testimony of defense witness, George Harris, which related to finding Mrs. Ward with the deceased on two occasions. This information was not shown to have been communicated to the defendant.
Judge Gibson in his ruling stated as follows:
"Well, I do rule, if it wasn't communicated to this defendant it would have no bearing on the issue involved here, or as to his mental condition. I do sustain the motion on the part of the State to exclude it, and I do instruct the jury not to consider the evidence of this man's having seen or not having seen the wife of this defendant and some other party. It would have no relevancy. The law is not concerned with the truth of that situation, other than if it came to the attention of Mr. Ward and would have a bearing on his mental condition."
We consider there was no error in this even under the wide latitude allowed because of Ward's pleading not guilty by reason of insanity.
VII.
The State, in refuting the tendency of the defense as to Ward's claim of insanity, used a fellow member of the Homewood police force, Mr. Monroe, as a witness. On cross-examination defense counsel propounded the following hypothesis for testing Monroe's opinion as to Ward's being sane:
"Qon the several days before the shooting, would it have made any difference, or would it have led you to form an opinion had you known that another man had taken his wife off, left with her, and that he was at home with two little children, and he had to go home in the morning, wash the children, and cook breakfast, and get them off to school, and he had to get the permission of his Chief to do that?
*909 "Would that have helped you form an opinion?"
This question is proper for an expert witness who testifies from the basis of history and information. However, the lay witness testifying on another's sanity is required under Grissom v. State, 33 Ala.App. 23, 30 So.2d 19, to form his opinion from observations and not from hypothetical predicates.
Cross-examination of State's witness McCormack ran into the same obstacle. There was no error in the rulings of the trial court. Grissom, supra. Ford v. State, 71 Ala. 385 (hn. 8 and 9).
VIII.
The State, to rebut the effect of Dr. Morton, used Dr. Patton of the staff of Bryce Hospital, Tuscaloosa. (See Code 1940, T. 45, § 189 et seq.)
Appellant claims error in the following rulings by the trial judge:
"Q Is that the official chart (indicating) of this patient, Gene Ward, at the University Hospital?
"MR. MILLS: We object to that. I don't think Dr. Patton is the custodian of the records.
"THE COURT: Overrule. If he knows let him answer.
"A Not the University Hospital; Bryce's Hospital.
"Q Bryce's Hospital.
"A Yes, sir.
"Q And is that chart kept in the regular course of medical treatment of a patient at Bryce's Hospital?
"A Yes, sir.
"Q And is that the hospital's chart, which I have, recording the various examinations, interviews, and so on, with reference to this patient?
"A Yes.
"Q And it is a true and correct hospital chart of Bryce's Hospital, of Gene Ward, during the time of his stay in the hospital?
"MR. MILLS: We object to that, if the Court please. This witness hasn't been shown to have the necessary knowledge; not shown to be the custodian of the records there.
"THE COURT: You asked him if it is a true and correctI don't know whether the Doctor made all the entries on there, or not.
"Q Was it kept in the regular course of the operation of the hospital?
"A Yes, it was. It is the only record we have.
"MR. ROGERS: Judge, did he withdraw his question?
"MR. HAWKINS: Yes, sir, and asked him if it was kept in the regular course of the operation of the hospital?
"THE WITNESS: Yes.
"Q Would you state to the juryif you don't have an independent recollection, refer to the chartthe first history you received of this patient when he got to the hospital, if that was the first thing that occurred with reference to him being there.
"MR. MILLS: We object to that. I don't know whether Dr. Patton took the history. If he took it, himself, we don't have any objection to it, but, taken by someone else, it would be hearsay, and we object to it.
"THE COURT: Doctor, let me ask you this: you are on the staff there at the hospital?
"A Yes, sir.
"THE COURT: And all these various charts and records, as a member of the staff, do you have control and supervision over them?
"A I don't have supervision of them. The custodian has the supervision. All *910 the charts at the hospital have entries made by various departments. Otherwise, we couldn't operate.
"THE COURT: Are those departments under the supervision of the staff doctors? Is the overall work supervised by the staff members, including yourself?
"A Yes, sir. I have charge of the whole west side, which is the men's division, to see that the information is obtained and placed on the chart.
"THE COURT: I will overrule the objection.
"MR. MILLS: If Your Honor please, may I question him on voir dire examination?
"THE COURT: Yes, sir.
"MR. MILLS: Doctor, you said there is a medical record librarian who has the control over the medical records at Bryce's Hospital?
"A Yes.
"MR. MILLS: And, actually, that person is the custodian of all the records there at Bryce's Hospital, I assume.
"A Yes.
"MR. MILLS: And you are not the medical record librarian?
"A Yes. (sic)
"MR. MILLS: We object to any question based on the record, Your Honor.
"THE COURT: Overrule.
"MR. MILLS: On the ground that they have not been properly identified and have not been properly authenticated, and have not been testified to by the proper custodian.
"THE COURT: Overrule.
"Q Doctor, would you state to the jury the first history which the hospital had on this patient, Gene Ward, as he entered Bryce's Hospital?
"MR. MILLS: We object unless it is a personal history taken by this doctor.
"THE COURT: Overrule."
In Metropolitan Life Ins. Co. v. Fox, 37 Ala.App. 31, 64 So.2d 122, we find:
"The records of Ochsner Clinic were introduced into evidence through Mrs. Shelby Harvey McCaffrey. Mrs. McCaffrey testified that the Ochsner Clinic makes records and memoranda in regular course of business of patients examined at the clinic. These memoranda are dictated by the doctor as soon as possible, and are typed up in the secretarial pool. Mrs. McCaffrey testified that as medical record librarian of the Ochsner Clinic she has physical custody of such records, and they have been safely kept during her employment. These records disclose that Charles James Fox was a patient in such clinic around 13 October 1944.
"We think that under the above testimony the records of Ochsner Clinic were properly received in evidence. Section 415, Title 7, Code of Alabama 1940."
This latter statute (§ 415, supra) is taken virtually verbatim from Prof. Morgan's 1927 Commonwealth Fund Committee's Report, page 63, and reads:
"§ 415. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence in proof of said act, transaction, or event, if it was made in the regular course of any business, and it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term, `business' shall include business, *911 profession, occupation, and calling of every kind."
See Bailey v. Tennessee Coal Iron & R. Co., 261 Ala. 526, 75 So.2d 117 (hn. 7).
From Hall v. State, 248 Ala. 33, 26 So.2d 566 (hn. 13), we quote:
"Dr. Partlow, a witness called by the defendant, was asked for the record of defendant when an inmate of the home for the feeble-minded. He had the record with him. Defendant offered to show Dr. Partlow's familiarity with the records, and that they were made in the regular course of business of the institution, and were so made under his supervision. The definition of those persons admissible to this institution is found in Sec. 236, Title 45, Code 1940, and includes idiots, imbeciles, morons and the like; and the following section makes provision for transfer of any patient therein to the authorities of the insane hospital when such patient shall become insane, violent or unmanageable.
"Considering the wide latitude allowed upon the question of insanity, we are of the opinion Dr. Partlow should have been permitted to testify as to these records. The provisions of Sec. 415, Title 7, Code 1940, were given application to hospital records in Wilson v. State, 243 Ala. 1, 8 So.2d 422, as disclosed by the tenth headnote. Under this statute, as thus construed, there was error to reverse in the rejection of the evidence sought to be elicited from Dr. Partlow."
See Nelson v. Lee, 249 Ala. 549, 32 So.2d 22 (hn. 7, 8), which sketches the background of § 415, supra; also Liberty National Life Ins. Co. v. Reid, 276 Ala. 25, 158 So.2d 667, and McElroy, Evidence (2d Ed.), § 254.01(9).
The custodian, as a witness, would merely have authenticated the record as one contemporaneously made and kept in the regular course of the hospital's operations. Dr. Patton, though not custodian of the records, was competent as a witness because he was familiar with Ward's examination, diagnosis and treatment as a patient at Bryce. Dr. Patton was able to fill a dual role as a witness; one from personal knowledge of Ward and his therapy and the other, from supervising the custodian of the records of the men's division. Mitchell v. City of Mobile, 244 Ala. 442, 13 So.2d 664.
In Aaron v. State, 271 Ala. 70, 122 So.2d 360 (hn. 38), the court divided 5-2 against a contention that the hospital record of the victim of Aaron's ravishment was partially inadmissible.
Lawson and Stakely, JJ., thought that, so far as the record repeated the prosecutrix's detailing of the attack, there was error because of violating the rule against allowing details of a complaint. The majority, however, found the record came in only by the defendant's consent on the issue of force, vel non.
Here we consider it proper for Dr. Patton to have read from the hospital records rather than merely authenticate them and thus leave it in a "raw" state for the jury. He was testifying not from hearsay but on his own as an expert.
The Opinion Rule can be subserved even if the opinion is one filed in writing under the Business Records Act. McElroy, Evidence (2d Ed.), § 254.01(5).
The Business Records Act (§ 415, supra) has come not to destroy but to fulfill. It is cumulative as to any other mode of proof. Thus, Dr. Patton could both give authentication of the hospital record and, having been qualified as a psychiatrist, give his opinion quite apart from the rest of the hospital records.
Defense counsel in brief advance the following matter of serious concern:
"A portion of the interview [with Ward by the staff of Bryce Hospital at which Patton was present and participating] which Dr. Patton read related to an account *912 of the alleged homicide the Defendant gave in the interview. The Defendant interposed a specific objection to the reading * * * on the ground that no predicate had been laid for the admission of a confession. (Tr. 535.) This objection was overruled."
In overruling, the trial judge gave the jury the following instruction:
"I will say this to the jury at this point: the file herenothing that the doctor testifies has been stated to himnone of his testimony is to be considered as a confession.
"We are primarily concerned with the information that the doctor is able to furnish us, within the rules of law, which would have a bearing on the mental condition of the defendant. This material is not admitted to you in the nature of a confession.
"Overrule."
Ward went into Bryce Hospital on the basis of the request of members of his family and on a letter opinion by Dr. Morton. The Probate Judge of Jefferson County signed the authorizing papers.
The prosecution, either law officers or District Attorney, did not seek to compel Ward's examination under order of the Circuit Court. Code 1940, T. 15, § 425.
Hence, Ward's interrogative custody at Bryce Hospital, though an institution of the State of Alabama, should not be equiparated with the back-room-of-the-police-station questioning condemned in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
Unless the defense showed the accused to have been mentally unfit to plead, Ward by pleading not guilty by reason of insanity introduced a subsidiary but separate issue. By his plea the defendant, in effect, concedes arguendo the act but denies its felonious quality. When made with a plea of not guilty, a plea of not guilty by reason of insanity is a "rolled-up" plea, i. e., in confession and avoidance conditioned on the jury's first finding the defendant guilty.
Thus we distinguish State v. Hathaway, 161 Me. 255, 211 A.2d 558. See Hall v. State, 209 Ark. 180, 189 S.W.2d 917; French v. District Court, 153 Colo. 10, 384 P.2d 268; State v. Myers, 220 S.C. 309, 67 S.E.2d 506; Anno. 32 A.L.R.2d 434, 447.
We see no need to try to devise any general rule of admissibility of inculpatory disclosure necessarily made by the accused in the course of psychiatric examination. Hunt v. State, 248 Ala. 217, 27 So.2d 186, is still valid though cases such as Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, require somewhat more complicated discussion of the due process question.
X.
Appellant's brief argues that the defendant was prejudiced in the closing argument by the deputy district attorney's alluding substantially as follows: "You have read of cop killers," and proceeded to refer to the defendant as a "killer cop."
Technically, the only request to the court made in consequence of this allusion was to move for a mistrial on the ground of the argument (R. 572).
This statement was made toward the end of the State's rebutting argument. The jury was excused for lunch at 12:15 P.M. and returned at 1:35 in the afternoon, at which time the trial judge (R. 574) proceeded to charge the jury at length.
The judge began his charge by expressly telling the jury not to consider the statement, winding up, "I strongly urge you gentlemen not to consider that, not to think of it, and to completely exclude it from your minds, as if you never heard it."
This direction came promptly enough after the statement and was emphatic enough to constitute an effective prophylaxis of any prejudice which might have occurred from the possibility of some inference *913 being brought in from outside of the record. The undisputed evidence was that Ward at the time of the charged offense was a policeman, "a cop."
We consider the trial judge's action removed any consideration of error.
XI.
Responsibility by reason of mental incapacity is determined in Alabama neither by the narrow M'Naghten[3] formula nor by the latitudinarian Durham[4] rule of the District of Columbia.
In Lokos v. State, 278 Ala. 586, 179 So.2d 714 (1965), we find the court, per Lawson, J., reaffirming the 1887 formulation of Mr. Justice Somerville in Parsons v. State, 81 Ala. 577, 2 So. 854:
"As excuse for the crime, the burden was on the defendant to prove clearly to the reasonable satisfaction of the jury that he was so afflicted by disease of the brain when the offense was committed as to render him so insane that he did not know right from wrong with respect to the particular offense charged, or by reason of such mental disease he could not resist doing the wrong; and the crime must have been the product solely of such mentally diseased condition. * * *"
We have been cited no Alabama case undertaking to define the expression "disease of the brain."
In the course of the oral charge, the court gave the following direction as to the measurement of sanity and the extent of departure therefrom to avoid criminal responsibility:
"Now, gentlemen, that brings us down to the law as it applies to the plea of not guilty by reason of insanity. Under our law, the question of the accountability of a person for criminal action can be triable only under a special plea of insanity interposed at the time of the arraignment of the defendant. The defense of insanity must be specially pleaded, as it is pleaded in this case, because the plea of not guilty does not put in issue the question of the irresponsibility of the accused by reason of the alleged insanity, and without this special plea the defendant could not offer evidence of his sanity, or insanity. The purpose of the statute has been said to be to separate as far as possible the two defenses, that is, not guilty and not guilty by reason of insanity, and to have the proof directed to each of the two defenses, and the verdict to respond to each of such defenses.
"Now, every man is presumed to be sane, that is, of natural and normal mental condition, and I charge you that under the laws of Alabama every person over fourteen years of age, charged with crime, is presumed to be responsible for his acts. The burden of proving that he is irresponsible is cast upon the accused, and under the law he has the burden of clearly proving to the reasonable satisfaction of the jury, from the evidence, his defense of insanity.
"Now, gentlemen, in every criminal trial where the defense of insanity is imposed, the inquiry is,
"First: was the defendant at the time of the commission of the alleged crime, as a matter of fact, afflicted with a disease of the mind, so as to be either idiotic, or otherwise insane.
"Second: if such be the case, did he knew right from wrong as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible.
"Third: if he did have such knowledge, he may nevertheless not be legally responsible *914 if the two following conditions concur:
"First: if, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed.
"Second: and if, at the time the alleged crime was so connected with such mental disease, in the relation of cause and affect [sic], as to have been the product of it solely.
"Now, an irresistible impulse generated by wicked propensities will not excuse the violation of law. Depravity is not a disease. High temper, hot blood, and passion are not such mental ailments as will excuse the commission of crime. The so-called emotional insanity is not recognized as a defense in a criminal case.
"I charge you that insanity, to be a defense to a crime, must be the result of a disease of the mind and of such a nature as to dethrone his reasonin other words, to make him crazy-to destroy his reason to such an extent that he cannot distinguish right from wrong, or if he can distinguish right from wrong, that the disease has such a compelling power over him that he is forced to commit a crime; that he cannot resist the impulse to commit this particular crime, because of the diseased condition of his mind, but it must be either one or the other; that the disease has so destroyed his mental capacity that he cannot distinguish right from wrong and does not know that he is doing wrong, or that the disease of the mind must have so destroyed his reasoningso undermined his mental capacity that he could not resist the impulse to do the wrongful act. The law of Alabama does not recognize temporary or emotional insanity or insane jealousy. Jealousy is no defense to crime in Alabama. It must be such insanity that would destroy his reason or his mind so weakened that he cannot resist the doing of a particular act with which he is charged. And, as I said, it must be of a fixed or prolonged nature, rather than momentary or fleeting; not temporary or effervescent in naturesarle one minute and insane anothermore permanent than transient; more or less prolonged as distinguished from effervescent; it must be a disease of the mind in all cases and be of such nature as to destroy his reason; that he does not know right from wrong; or some mental hallucination, the result of the disease; this hallucination must be of such strong and compelling power that he cannot resist the impulse to commit the particular crime with which he is now charged.
"That is the question that is submitted to you for your determination. Was this defendant, at the time of the commission of the act with which he is charged, insane as I have defined insanity to you? Was he suffering from a disease of the mind that had so dethroned his reason that he could not distinguish right from wrong, or had such mental hallucination so overpowered himhad such overwhelming power over himthat he could not resist the impulse to commit this particular crime? If so, that is a defensive [defense to] crimeif either one of those conditions existed, and you are reasonably satisfied of that, he would be entitled to a verdict at your hands of not guilty by reason of insanity.
"In criminal cases, in order to absolve the party from guilt, a higher degree of insanity must be shown than would be sufficient to discharge him from the obligations of his contract. In these cases, the rule of law is understood to be this: that a man is not to be excused from responsibility, if he has capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act he is then doing; a knowledge and consciousness that the act he is then doing is wrong and criminal, and will subject him to punishment. In order to be responsible, he must have sufficient *915 power of memory to recollect the relation in which he stands to others, and in which others stand to him; that the act he is doing is contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty. On the contrary, although he may be laboring under partial insanity, if he still understands the nature and character of his act and its consequences, if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and will receive punishment, such partial insanity is not sufficient to exempt him, from responsibility for criminal acts. If, then, it is proved to the satisfaction of the jury, that the mind of the accused was in a diseased and unsound state, the question will be whether the disease existed to so a high degree, that, for the time being, it overwhelmed the reason, conscience, and judgment, and whether the prisoner, in committing the homicide, acted from an irresistible and uncontrollable impulse; if so, then the act was not the act of a voluntary agent, but the involuntary act of the body without the concurrence of a mind directing it." (Bracketed matter and italics added.)
To this the defense excepted as follows:
"MR. MILLS: May it please the Court, we except to the following portion of the Court's oral charge where the Court said:
"First: `Was the defendant at the time of the commission of the alleged crime, as a matter of fact, afflicted with a disease of the mind, so as to be either idiotic, or otherwise insane?'
"And further except to the portion of the charge where the Court said: `Depravity is not a disease.' And we further except to the portion of the charge where the Court said: `The so-called emotional insanity is not recognized as a defense in a criminal case.
"We further except to the portion of the charge which says: `The law of Alabama does not recognize temporary or emotional insanity or insane jealousy.'
"And we further except to the portion of the charge where the Court said: `And, as I said, it must be of a fixed or prolonged nature rather than momentary or fleeting, not temporary or effervescent in naturesane one minute and insane anothermore permanent than transient; more or less prolonged as distinguished from effervescent.'
"And we further except to the portion of the charge where the Court said: `In criminal cases, in order to absolve a party from guilt, a higher degree of insanity must be shown than would be sufficient to discharge him from the obligations of his contracts.'"
Also, the following requested charges submitted in writing were given:
46. "If the jury believe from the evidence that the defendant, at the time he fired the fatal shots, was acting under duress of a mental disease which destroyed his free agency, so that his power to resist killing Harry Trent was at the time lost, and the killing was the offspring of such mental disease wholly, they should acquit the defendant."
49. "If the jury believe from the evidence, that the defendant at the time he fired the fatal shots, was acting under the duress of a dormant disease of the mental faculty which appeared only under grief, fear and excitement, and it's development resulted in the killing, having been brought about by statements, of the deceased, and the killing was the off-spring of such mental disease solely, the jury should acquit the defendant."
52. "If, by a preponderance of the evidence, the jury are satisfied that, at the time of the fatal encounter, defendant was afflicted with a mental disease, and that by reason of the duress of such mental disease he had so far lost the *916 power to choose between right and wrong (although he may have known right from wrong as applied to the killing), and the alleged killing was so connected with such mental disease in the relation of cause and effect as to have been the product of it solely, the jury should acquit the defendant."
75. "I charge you, gentlemen of the jury, that if you find from the evidence that the defendant's wife had been guilty of misconduct with the deceased, and that this misconduct had been communicated to the defendant, then you may consider this evidence in determining the sanity or insanity of the defendant at the time of the shooting."
76. "I charge you, gentlemen of the jury, that if you find from the evidence in this case that the defendant's wife had abandoned him and abandoned the children of the marriage prior to the shooting, then you may consider this evidence in determining the mental condition of the defendant at the time of the shooting."
77. "I charge you, gentlemen of the jury, that if you find from the evidence that the defendant's wife had been guilty of misconduct with the deceased, and that this misconduct had been communicated to the defendant, then you may consider this evidence in determining the mental condition of the defendant at the time of the shooting."
78. "I charge you, gentlemen of the jury, that it is not necessary for insanity to have existed for an [sic] definite period of time prior to the shooting in this case in order to be a defense to this prosecution, but that it is sufficient as a defense if it existed when the act occurred."
The trial court refused to give the following relevant charges which the defendant requested before the case went to the jury:
47. "If the jury believe from the evidence that the defendant, at the time he fired the fatal shots, was acting under duress of a mental illness which destroyed his free agency, so that his power to resist killing Harry Trent was at the time lost, and the killing was the offspring of such mental illness wholly, they should acquit the defendant."
48. "If the jury believe from the evidence that the defendant, at the time he fired the fatal shots, was acting under duress of a mental derangement which destroyed his free agency, so that his power to resist killing Harry Trent was at the time lost, and the killing was the offspring of such mental derangement wholly, they should acquit the defendant."
50. "If the jury believe from the evidence, that the defendant at the time he fired the fatal shots, was acting under the duress of a dormant illness of the mental faculty which appeared only under grief, fear and excitement, and it's [sic] development resulted in the killing, having been brought about by statements, of the deceased, and the killing was the offspring of such mental illness solely, the jury should acquit the defendant."
51. "If the jury believe from the evidence, that the defendant at the time he fired the fatal shots, was acting under the duress of a dormant derangement of the mental faculty which appeared only under grief, fear and excitement, and it's [sic] development resulted in the killing, having been brought about by statements, of the deceased, and the killing was the offspring of such mental derangement solely, the jury should acquit the defendant."
53. "If, by a preponderance of the evidence, the jury are satisfied that, at the time of the fatal encounter, defendant was afflicted with a mental illness, and that by reason of the duress of such mental illness he had so far lost the power to choose between right and wrong (although he may have known right from wrong as applied to the killing), and the alleged killing was so connected with such mental illness in the relation of *917 cause and effect as to have been the product of it solely, the jury should acquit the defendant."
54. "If, by a preponderance of the evidence, the jury are satisfied that, at the time of the fatal encounter, defendant was afflicted with a mental derangement, and that by reason of the duress of such mental derangement he had so far lost the power to choose between right and wrong (although he may have known right from wrong as applied to the killing), and the alleged killing was so connected with such mental derangement in the relation of cause and effect as to have been the product of it solely, the jury should acquit the defendant."
57. "I charge you, gentlemen of the jury, that if you believe from the evidence that the defendant at the time he fired the fatal shot was acting under the duress of a dormant disorder of the mental faculty which appeared only under grief, fear and excitement, and its development resulted in the killing, having been brought about by the statements and conduct of the deceased, and the killing was the offspring of such mental disorder solely, the jury should acquit the defendant."
A fairly wide range of questioning was permitted both defense and prosecution. We find no error under the Parsons rule in this case. We are found to follow it. Code 1940, T. 13, § 95.
Analyzing the charges refused in the light of those given both in writing and in the oral charge, we conclude that the jury was adequately charged on the defense of insanity to crime under the decisions of the Supreme Court of Alabama. Indeed, parts could be considered as too favorable to the defendant.
We have carefully reviewed the entire record under Code 1940, T. 15, § 389, and consider the judgment below should be
Affirmed.
ON REHEARING
XII.
Appellant says we have failed to go into the claimed errors all of which came about from the trial judge's sustaining objections made by the State. The occasion was on qualifying the venire. The questions as given in brief are:
"Q Do you think it is morally wrong to take another man's wife and take her away from the home?"
"Q I would like to ask the jury if it would make any difference with them, as to their opinion, if it were developed by the evidence that this deceased was out with the defendant's wife at the time of the shooting, at 11:00 o'clock at night, or approximately thereabouts."
"Q Would you gentlemen consider a plea of insanity, interposed by the Defendant, where the facts would show that there was an occurrence which could, in a way, affect him mentally in such a way he would be unable to resist an impulse to commit some act?"
"Q If you were informed by the Court that the defendant is presumed to be innocent, and that the law presumes him to be innocent, would you give him the benefit of a doubt in that event?"
In order to afford a proper certiorari setting, we elaborate to show the entire pertinent part of the record from the transcript of evidence:
"PROCEEDINGS
"(WHEREUPON, a jury venire was brought in, qualified, identified, and the following proceedings were had and done:)
"THE COURT: Now, gentlemen, that brings us down to the voir dire examination, both for the State and for the defense.
*918 "Does the State have questions on voir dire?
"MR. HAWKINS: Yes, sir.
"(Thereupon, special questions were asked by Mr. Hawkins, following which the following proceedings were had and done:)
"THE COURT: Mr. Rogers?
"MR. ROGERS: Judge, at this time, I would like, respectfully, to ask the Court if it would let me question each juror individually as to any bias, or prejudice, and, I might state, in view of the fact that the defendant was a policeman at the time the offense with which he is charged was committed, I believe it would better serve justice if I could ask each juror individually.
"THE COURT: Mr. Rogers, I won't permit you to examine each juror individually. I will permit you to examine them in panels of thirteen.
"However, I realize that there are some questions which may be individual to a juror, because of certain peculiarities, experience, or employment, residence, and things of that sort, and, in that event, you may examine the juror individually.
"However, I will require you, generally, to examine at least in groups of thirteen.
"MR. ROGERS: The three panels?
"THE COURT: That is correct.
"Mr. ROGERS: May we reserve an exception to that?
"THE COURT: Yes, sir.
"(Thereupon, Mr. Rogers asked special questions of the jury venire, during which the following proceedings were had and done:)
"MR. ROGERS: I believe Mr. Hawkins asked you the question that, if you thought it was morally wrong to drink and I believe, Mr. Woods, you said you did.
"Now, I will address these twelve men with this question: Do you think it is morally wrong to take another man's wife and take her away from the home?
"MR. HAWKINS: Don't answer that. We object to that, if the Court please.
"THE COURT: I can't hear you.
"MR. HAWKINS: We object to that as being an improper question. It doesn't furnish information which would shed any light on striking a jury in this case. It is an argument which should come at the conclusion of the testimony, during the trial of the case, and not as for information at the present time or such a subject as that, that it is wrong to take a man's wife away. No evidence of that fact in this case.
"MR. ROGERS: May I say this to the Court
"THE COURT: I don't want you to try to argue the case, and
"MR. ROGERS: May I say this: May it please the Court, I was not arguing that. I was asking the question as to whether they thought it was morally wrong, in view of Mr. Hawkins' opening up that avenue, if they thought it was morally wrong to drink.
"I think I have just as much right as he does to go into that various aspect of it. I feel like it is my duty to get as much information about this, and that is the only way I know how to ask it.
"THE COURT: Sustain the objection.
"MR. ROGERS: Judge, may I ask another question along that line. I want to ask it, but I do want to protect the record on it, and I am not trying to impose on the Court or record, either.
"MR. HAWKINS: I would like to ask you to ask the question in the Court's chambers, if it is of such a nature as that.
"THE COURT: I think if you would confine yourself to general objections, *919 rather than trying to tell me how to run court, Mr. Hawkins, we can get along better.
"I was going to ask you to step over here and tell me what the question is.
"(Thereupon, ensued an off the record discussion, out of the hearing of the jury, following which the following proceedings were had and done:)
"THE COURT: What was the question, George?
"MR. ROGERS: I would like to ask the jury if it would make any difference with them, as to their opinion, if it were to be developed by the evidence that this deceased was out with the defendant's wife at the time of the shooting, at 11:00 o'clock at night, or approximately thereabouts.
"THE COURT: And I sustain the objection to that question.
"MR. ROGERS: And I reserve an exception.
"(Thereupon, Mr. Rogers continued asking special questions of the jury venire, during which the following proceedings were had and done:)
"MR. ROGERS: Gentlemen, for your information, there is a plea of insanity interposed in this case by this defendant.
"I would like to ask any of you gentlemen if you have any fixed opinion, with respect to a plea of insanity on the part of a defendant charged with an offense, that would prejudice the rights of this defendant in any way?
"If you have such an opinionI am addressing myself to the twelve in the box. If you have such an opinion, would you please let me know it.
"Would you gentlemen consider a plea of insanity, interposed by the defendant, where the facts would show that there was an occurrence which could, in a way, affect him mentally in such a way he would be unable to resist an impulse to commit some act?
"MR. HAWKINS: Your Honor, if the Court please, I think the question of insanity as depicted here, as an irresistible impulse, wouldn't be a matter of materiality and information.
"THE COURT: Sustain the objection. I might state this to you gentlemen at this time: It will be a ruleit is a rule that jurors may not be questioned concerning anticipated instructions or theories of law, and jurors may not be asked what kind of verdict they might render under any circumstances.
"That will be the ruling. It is the ruling of the Court, and it might help expedite matters if I state that at this time.
"MR. ROGERS: I understand that, but I didn't think my words would bias or prejudice on the jury.
"THE COURT: I sustain the objection.
"MR. ROGERS: Reserve and exception.
"(Thereupon, Mr. Rogers continued asking special questions of the jury venire, during which the following proceedings were had and done:)
"MR. ROGERS: Gentlemen, I am going to address this toin order to expedite mattersto the venire out here. That means all thirty-nine of you, the three panels.
"If you were informed by the Court that the defendant is presumed to be innocent, and that the law presumes him to be innocent, would you give him the benefit of a doubt in that event?
"MR. HAWKINS: I object to the question on the ground it is a question of law. It is seeking information on a question of law, which the Court will give to the jury at the conclusion of the trial.
"THE COURT: I sustain the objection.
"MR. ROGERS: Reserve an exception.
*920 "(Thereupon, Mr. Rogers continued and concluded asking special questions of the jury venire, following which the following proceedings were had and done:)
"MR. ROGERS: I believe that's all right now, Judge.
"(Thereupon, proceedings were in abeyance, following which special questions were asked by Mr. Gwin, following which the following proceedings were had and done:)
"THE COURT: All right, gentlemen, you may proceed to strike."
We cannot here assume that the last quotation contains all the voir dire questions put to the prospective jurors. Thus we note that Mr. Rogers (R. 66) complained that the Deputy District Attorney, Mr. Hawkins, had asked if they thought it was morally wrong to drink. No prior reference is made as to what questions Mr. Hawkins posed.
There is confusion in the Alabama opinions as to the latitude of voir dire examination. In 1923 the Code Committee, to modify the English rule (see Anno. 99 A.L.R.2d 7, 16, § 2(a)) as shown in Bales v. State, 63 Ala. 30, enacted what is T. 30, § 52, of the present Code.
We find Brickell, C. J., saying in Bales, 63 Ala. at p. 38:
"The proposed examination of Smith, Tucker and Strange, to ascertain whether they were subject to challenge for cause, after they had been examined by the court, was properly refused. We know of no authority, and we perceive no reason for any such speculative, inquisitorial practice, consuming needlessly the time of the court, and offensive to the persons subjected to it. The rule is ancient, that neither party has a right to interrogate a juror before he is challenged.1 Chitty's Cr.Law, 543-44; King v. Edmonds, 4 Barn. & Ald. 671."
As late as 1908, we find this rubric relied on by Denson, J., in Walker v. State, 153 Ala. 31, 45 So. 640:
"After a juror has been sworn and examined by the court touching his qualifications for service, and declared competent, the court may as matter of grace allow the defendant to ask him additional questions; but it is not a matter of right, and the refusal by the court to allow additional questions will not constitute error. * * *"
Perhaps Tyson, J., in Jarvis v. State, 138 Ala. 17, 34 So. 1025, stated the principle extant before 1923 more forcefully:
"While it is doubtless true that the rule prevailing in this state is that, before challenge, neither party has a right to interrogate a juror to ascertain whether he is subject to challenge (Bales v. State, 63 Ala. 30; Hawes v. State, 88 Ala. 37, 66, 2 So. 302; Lundy v. State, 91 Ala. 100, 9 So. 189; Hornsby v. State, 94 Ala. 55, 10 So. 522), yet, the court, in the exercise of its discretion, may permit it to be done and, when allowed, is not revisable. Mann v. State, 134 Ala. 1, 32 So. 704; State v. Lautenschlager, 22 Minn. 514; 1 Thompson on Trials, § 101, p. 100. The action of the court in allowing the solicitor to interrogate jurors Rabby and McMillan as to their relation, either by blood or by marriage, with the defendant, and in permitting the solicitor to ask Juror Curtis Bush, `Are you opposed to capital punishment in a case of murder?' is not revisable. * * *"
Carefully analyzing the operation of § 52, supra, as construed by cases such as New York Times v. Sullivan, 273 Ala. 656, 144 So.2d 25, and Aaron v. State, 273 Ala. 337, 139 So.2d 309, we consider that our Supreme Court has avulsed the mandatory "shall have the right" twice used in § 52 into a mere precatory adjuration to the humane instincts of the trial judge. The question of the voir dire examination of would be jurors allowed or disallowed below is not subject to review on appeal. Rose v. Magro, 220 Ala. 120, 124 So. 296 (hn. 10). (Italics added.)
*921 Being conformed by the majority opinion in Ballard v. State, 236 Ala. 541, 184 So. 260, we forego considering the due process implications of this conclusion. Code 1940, T. 13, § 95; Redus v. State, 243 Ala. 320, 9 So.2d 914.
Moreover, the use of hypothetical questions is of doubtful propriety certainly where one aspect of the putative evidence is singled out to probe for a sympathetic commitment as much as to explore for an impartial mind. Thus the summary to the Annotation, "Propriety and Effect of Asking Prospective Jurors Hypothetical Questions, on Voir Dire, as to how they Would Decide Issues of Case," 99 A.L.R.2d 7, at page 18, states:
"For a wide variety of reasons, however, certain hypothetical questions have often been considered improper. Some questions have been so considered because of their underlying purpose, and others because of their form. Although occasional decisions indicate disapproval of all hypothetical questions to jurors, it is generally agreed that the mere fact that a question is hypothetical does not make it improper. The main reasons for considering certain hypothetical questions improper appear to be essentially as follows: (1) they tend to entrap, influence, commit, or obtain a pledge from jurors, or to ask them for their decision in advance of their hearing any testimony; (2) they are irrelevant, because they cannot be expected to result in an answer having any bearing upon a juror's impartiality or other qualifications, or because they are designed to ask about matters of law or other matters which are adequately covered by the judge's instructions, and which it is therefore unnecessary to ask the jurors about on voir dire, since it can be assumed that they will follow the instructions; or (3) they are faulty in form, for example, because they are ambiguous, obscure, confusing, or inconsistent, or because they contain an incorrect or inadequate statement of law."
XIII.
It is contended that the Deputy District Attorney, in closing argument, breached the command of Code 1940, T. 15, § 305, which reads:
"§ 305. On the trial of all indictments, complaints, or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness; and his failure to make such request shall not create any presumption against him, nor be the subject of comment by counsel."
The record fails to give the verbatim text of the prosecutor's remarks. All we find in the record is:
"THE COURT: * * * As I understand it, the argument that the defense objected to was an argument wherein Mr. Gwin stated, in effect, that the defendant, as an officer, had arrested many, and that sort of thing, speaking of duties of a Police Officer, and he had testified in many cases.
"MR. MILLS: I believe I wrote it down almost verbatim. He said this man has testified in Court on many occasions in many cases.
"THE COURT: To put it in context
"MR. MILLS: He had previously stated he had made many arrests.
"THE COURT: He started off by saying he had been a policeman some eight years, and he went into the question of arrests, and had been a witness in many cases, and
"MR. MILLS: And testified on many occasions.
"THE COURT: The Court overrules the objection. The defendant had objected and the grounds to that portion of the State's argument, on their objection, was, in the defendant's words, that there was reference to the fact that, either directly or indirectly the defendant *922 hadn't taken the witness stand." (R. 573, 574.)
This line of argument could be directed to Ward's sanity as much as to his not taking the stand. We find no error in either the overruling shown above or in denying the defense motion for mistrial.
XIV.
In view of the giving of defendant's charge 44 and the tenor of the pertinent part of the oral charge, the refusal of requested charge 45 was not error.
XV.
In Carr v. State, Ala.App., 198 So.2d 791 (6 Div. 157), we reviewed the "irresistible impulse" modification of M'Naghten as recognized in Alabama. In Report of the Royal Commission on Capital Punishment, September, 1953, Cmd. 8932, Appendix 9B, at p. 410, the Parsons opinion is described as "the leading judicial exposition of the irresistible impulse doctrine."
This commentary notes that only one other American state has followed Alabama in requiring the defense to prove that uncontrollable impulse was the sole cause of the act. This point, too, was before us in Carr, supra.
In requested charges 46, 49, and 52, the defendant used "wholly" or "solely" to modify the product of mental disease. However, in certain parts of the oral charge (see quotation, supra) the trial judge omitted "solely" in stating the rule of excusing mental disease.
Either the Legislature or the Supreme Court of Alabama is the proper forum for any radical departure from the Parsons rule. The welter of confusing psychiatric opinion ranging from Szaz to Overholser and Cleckley justifies caution.
We consider the application for rehearing must be
Overruled.
NOTES
[1] Appellant postponed his request for oral argument until he filed his reply brief. Uniform practice under Supreme Court Rule 4 requires such a request on the first brief filed.
[2] This trial began January 11, 1965. See Mathis v. State, 280 Ala. 16, 189 So.2d 564.
[3] (1843) 10 Cl. & F. 200.
[4] 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430.
|
Filed 7/15/11 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2011 ND 145
Julie E. Glass, Plaintiff and Appellant
v.
Darin M. Glass, Defendant and Appellee
No. 20100260
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
AFFIRMED.
Opinion of the Court by Sandstrom, Justice.
Brenda A. Neubauer, P.O. Box 1015, Bismarck, N.D. 58502-1015, for plaintiff and appellant.
Suzanne Marie Schweigert (argued) and Stacy Mae Moldenhauer (on brief), P.O. Box 460, Bismarck, N.D. 58502-0460, for defendant and appellee.
Glass v. Glass
No. 20100260
Sandstrom, Justice.
[¶1] Julie E. Glass appeals from a judgment changing primary residential responsibility of her three children from her to their father, Darin M. Glass. We affirm, concluding the district court’s decision to change primary residential responsibility is not clearly erroneous and the court did not abuse its discretion in denying Julie Glass’s request for a continuance.
I
[¶2] The parties lived together in Bismarck at the time of their divorce in 2005. The divorce judgment incorporated the parties’ “Property Settlement and Custody Agreement,” which awarded Julie Glass primary residential responsibility of the couple’s three sons, who were 16, 13, and 8 years old during the post-divorce proceedings in this case. The oldest child has attention deficit hyperactivity disorder and a form of Asperger’s syndrome. The youngest child also has Asperger’s syndrome. Darin Glass was ordered to pay child support and was awarded reasonable parenting time.
[¶3] Julie Glass moved with the children to Casselton in June 2006 and married Mark Hopewell in July 2007, but the couple divorced in February 2009 after Hopewell lost his job in Fargo and moved to Colorado to seek employment. Julie Glass began dating Steve McNab in March 2009, and he moved into Julie Glass’s home two months later. McNab is divorced and has three children through his prior marriage, and during his parenting weekends, McNab’s children resided with Julie Glass and her children. Darin Glass remarried in February 2009 and lives with his wife, Debbie Glass, in Mandan. After his divorce, Darin Glass exercised sporadic parenting time with his children until his remarriage, when he began exercising parenting time about one weekend per month.
[¶4] On December 31, 2009, Darin Glass moved for an ex parte interim order to immediately change the primary residential responsibility of his three children, which was followed by a motion to modify the parties’ divorce judgment to grant him primary residential responsibility of the children. The motions were triggered by two incidents that occurred at Julie Glass’s Casselton home in late 2009. The first incident occurred in late October 2009 when the oldest son, who has been described as “suffer[ing] from a lack of judgment and insight,” took a gun from his bedroom and pointed it at McNab’s children. Investigating law enforcement officers searched the son’s bedroom and found more than ten firearms, ammunition, a used pipe containing an unidentified substance, two empty alcohol bottles, and prescription medications. As the result of this incident, McNab was restricted to supervised parenting time with his children. The second incident occurred in the middle of the night in late December 2009 after Julie Glass and McNab had been drinking alcohol. McNab got into a physical altercation with Julie Glass and a verbal altercation with the oldest son when Julie Glass tried to stop McNab from confronting the son about the gun incident. All of the children were present in the home, and the younger children were awakened by the disturbance. Julie Glass called 911 and informed the operator that McNab had punched or kicked her in the stomach and that McNab would kill her. Although charges were filed against McNab, those charges were ultimately dismissed.
[¶5] While staying with Darin Glass temporarily in January 2010, the oldest child called 911 and claimed Debbie Glass was threatening him. A law enforcement officer was dispatched to the residence but took no action. The oldest child was argumentative with and disrespectful to the officer and Debbie Glass at the time. Social Services investigated and determined no services were required.
[¶6] A parenting investigator’s report was submitted on May 28, 2010, less than 30 days before the scheduled June 22 and 23, 2010, evidentiary hearing. The parenting investigator recommended:
The children should remain in Julie’s primary residential responsibility if and only if she terminates her involvement with Steven McNab immediately. She needs to make her children her priority, and dedicate herself to their welfare at this time in their young lives. If she is not willing to do that, then Darin shall have primary residential responsibility.
[¶7] The district court denied Julie Glass’s request for a continuance of the scheduled hearing, and Julie Glass declined the court’s offer to delay the parenting investigator’s testimony until July 1, 2010, after the 30-day time period in N.D.C.C. § 14-09-06.3(3) and N.D.R.Ct. 8.6(c)(9) had passed. Numerous witnesses testified at the evidentiary hearing, including the two oldest children. The children testified that they wanted to live with Julie Glass. Julie Glass testified that she “hope[d]” to continue her relationship with McNab. Following the hearing, the court granted Darin Glass’s motion and awarded him primary residential responsibility of the children.
[¶8] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Julie Glass’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.
II
[¶9] Julie Glass argues the district court erred in changing primary residential responsibility of the children to Darin Glass.
[¶10] Section 14-09-06.6(6), N.D.C.C., governs motions to modify primary residential responsibility after two years from the entry of a previous order:
The court may modify the primary residential responsibility after the two-year period following the date of entry of an order establishing primary residential responsibility if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.
[¶11] In
Lechler v. Lechler
, 2010 ND 158, ¶ 9, 786 N.W.2d 733, we explained the two-step analysis for a motion to modify primary residential responsibility:
The party seeking to change primary residential responsibility has the burden of proving there has been a material change in circumstances and a change in primary residential responsibility is necessary to serve the child’s best interests.
Frueh v. Frueh
, 2009 ND 155, ¶ 8, 771 N.W.2d 593. We have defined a “material change in circumstances” as “an important new fact that was not known at the time of the prior custody decree.”
Siewert v. Siewert
, 2008 ND 221, ¶ 17, 758 N.W.2d 691. If a district court determines no material change in circumstances has occurred, it is unnecessary for the court to consider whether a change in primary residential responsibility is necessary to serve the children’s best interests.
See
Machart v. Machart
, 2009 ND 208, ¶ 11, 776 N.W.2d 795. A district court’s decision whether to modify primary residential responsibility is a finding of fact which will not be reversed on appeal unless clearly erroneous.
Dunn v. Dunn
, 2009 ND 193, ¶ 6, 775 N.W.2d 486. A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made.
Id.
See also
Gussiaas v. Neustel
, 2010 ND 216, ¶ 5, 790 N.W.2d 476.
A
[¶12] Julie Glass argues the district court failed to conduct the appropriate two-step analysis, because it did not make findings that any of the facts presented constituted a material change in circumstances.
[¶13] “‘A material change of circumstances can occur if a child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.’”
Siewert v. Siewert
, 2008 ND 221, ¶ 17, 758 N.W.2d 691 (quoting
Stanhope v. Phillips-Stanhope
, 2008 ND 61, ¶ 6, 747 N.W.2d 79). If domestic violence does not rise to the level necessary to invoke the presumption against primary residential responsibility contained in N.D.C.C. § 14-09-
06.2(j), there may nevertheless be a material change of circumstances to justify a change in primary residential responsibility under N.D.C.C. § 14-09-06.6.
See
Lechler
, 2010 ND 158, ¶ 17, 786 N.W.2d 733;
Niemann v. Niemann
, 2008 ND 54, ¶ 14, 746 N.W.2d 3. The relocation of a parent with primary residential responsibility,
see
Neustel
, 2010 ND 216, ¶ 8, 790 N.W.2d 476, that parent’s history of relationships with significant others,
see
id.
at ¶ 9, and improvements in a noncustodial parent’s situation,
see
Ehli v. Joyce
, 2010 ND 199, ¶ 8, 789 N.W.2d 560, when accompanied by other relevant circumstances, may also constitute material changes in circumstances.
[¶14] Here, the district court focused on Julie Glass’s move with the children from Bismarck to Casselton, an improvement in the stability of Darin Glass’s life, Julie Glass’s relationship with McNab shortly after her divorce from Hopewell, the gun incident with the oldest child, and McNab’s “domestic assault” of Julie Glass. The court found that “sufficient facts as set out above have arisen since the prior order was issued that a modification is necessary to serve the best interests of the children.” Although the court did not use the terms “material change in circumstances,” it is obvious from the court’s analysis that it found a material change of circumstances had occurred. We are satisfied the court was not laboring under a misapprehension of the law and conclude its finding that a material change in circumstances had occurred is not clearly erroneous.
B
[¶15] Julie Glass argues the district court erred in finding any changed circumstances required a modification of primary residential responsibility, because the children had been living with her for the past five and one-half years.
[¶16] If a district court finds a material change of circumstances has occurred, the court cannot change primary residential responsibility of the children unless the court further finds that the modification is necessary to serve the best interests of the children.
See
Neustel
, 2010 ND 216, ¶ 12, 790 N.W.2d 476;
Dufner v. Trottier
, 2010 ND 31, ¶ 12, 778 N.W.2d 586. “[T]he added requirement of showing a change of [primary residential responsibility] is compelled or required gives some finality to a trial court’s original custody decision and helps ensure that a child is not bounced back and forth between parents as the scales settle slightly toward first one parent and then the other.”
Neustel
, at ¶ 12 (internal quotations omitted). Consequently, “[b]ecause of the importance accorded custodial stability and continuity, courts in a modification proceeding must weigh the statutory best-interest factors against the backdrop of the stability of the child’s relationship with the custodial parent.”
Lovin v. Lovin
, 1997 ND 55, ¶ 17, 561 N.W.2d 612.
[¶17] In this case, the district court analyzed the statutory best interest factors under N.D.C.C. § 14-09-06.2(1) and found factors (b) (ability of each parent to assure child receives adequate shelter and safe environment), (d) (sufficiency and stability of each parent’s home environment and desirability of maintaining continuity), and (k) (interaction and interrelationship of the child with people who are present in the household of a parent’s home who may significantly affect the child’s best interests) favored Darin Glass. The court found factors (c) (child’s developmental needs and ability of each parent to meet those needs) and (h) (home, school and community records of the child and potential effect of any change) favored Julie Glass. The court found the remaining factors favored neither party.
[¶18] Julie Glass argues the district court erred in finding neither party was favored under N.D.C.C. § 14-09-06.2(1)(i) (preference of a mature child), because the oldest children expressed their preferences to live with Julie Glass. A mature child’s preference should be considered by a court, but only if there are persuasive reasons for that preference.
See
Machart
, 2009 ND 208, ¶ 12, 776 N.W.2d 795;
Haugrose v. Anderson
, 2009 ND 81, ¶ 15, 765 N.W.2d 677. Here the court noted the “children have flip flopped with their desires at different times” and chose to discount their stated preferences because “they appear to have actually misrepresented to this Court or other agencies what actually has occurred in their home in the past.” The court’s finding that there were not persuasive reasons for the preferences is supported by the record.
[¶19] Julie Glass argues the district court recognized that this case was a “close call” and, therefore, primary residential responsibility of the children should have remained with her. We have often stated that “close calls” in disputes over changing primary residential responsibility should be resolved in favor of continuing primary residential responsibility.
See, e.g.
,
Mayo v. Mayo
, 2000 ND 204, ¶ 26, 619 N.W.2d 631;
Myers v. Myers
, 1999 ND 194, ¶ 10, 601 N.W.2d 264. Nevertheless, cases that are “close calls” may result in a change of primary residential responsibility when other considerations are weightier than the custodial stability factor.
See
Mayo
, at ¶¶ 27-
30.
[¶20] It is clear from the district court’s decision, the primary considerations that outweighed custodial stability and continuity were the presence of McNab in Julie Glass’s life, her refusal to terminate the relationship unless ordered by the court, and her failure to realize how her relationships impact the children. Even under the factors the court found favored Julie Glass, the court continued to note her “inability to see how her relationships affect the children.”
[¶21] In finding Darin Glass was favored under N.D.C.C. § 14-09-06.2(1)(b), the district court stated:
The parties are equal in this factor except for the ability to provide a safe environment. Julie has provided the food, clothing, shelter, medical care to the children, yet there is no indication Darin will not be able to assure the children receive these necessities. Darin is favored in the ability to provide a safe environment given the domestic incidents, which have occurred while the children have been in Julie’s custody.
[¶22] In finding Darin Glass was favored under N.D.C.C. § 14-09-06.2(1)(d), the district court stated:
Again this factor is a close call. The children have lived with Julie for the past five years. Now those years have had instability as different men enter the home through Julie’s relationships and the children were moved to Casselton to further Julie’s relationship with Hopewell. They have lived in the same area and gone to the same school for the last four years. Darin has the benefit of extended family in or near his home. Julie might be slightly favored in this factor as changing the children’s home environment would impact their academic and social environment yet this is outweighed in the Court’s opinion by Julie’s actions in changing the children’s environment by moving and bringing in different men into the children’s lives and home.
[¶23] In finding Darin Glass was favored under N.D.C.C. § 14-09-06.2(1)(k), the district court stated:
The Court finds McNab is a negative impact on the children given the domestic violence situation. This incident may be minimized by all involved, but the fact it occurred at all is significant to this Court. The Court also sees the use of alcohol and the possible slap incident in front of [the middle child] as extremely concerning as he makes the statement to social services and now recants the statement. Although[] there is evidence of positive effects with Julie and the children it is obvious to this Court Julie[’]s choice is for Julie and not for the best interests of the children. The Court has attempted to resolve[] this by requiring McNab to not be near the home or the children. This has been complied with. Julie has not ended her relationship with McNab, though she states she will if the Court so requires. Julie needs to make her own positive choices without the Court controlling those choices. Again, in the Court’s opinion Julie chooses her relationship over the children’s best interests. Debbie appears to have had a positive impact on the children as a step mother until this action was started. The one incident of [the oldest child] calling 911 due to Debbie’s actions appear to this Court to be [the oldest child’s] manipulating the situation to his advantage. Darin’s family is in the Mandan area and will have a positive influence on the children.
[¶24] We do not reweigh evidence or reassess witness credibility when the evidence supports the district court’s findings.
See
Dufner
, 2010 ND 31, ¶ 6, 778 N.W.2d 586. The court’s findings are supported by the evidence in the record. We conclude the court’s decision to change primary residential responsibility of the children to Darin Glass is not clearly erroneous.
III
[¶25] Julie Glass argues the district court erred in denying her request for a continuance, because the parenting investigator’s report was received less than 30 days before the evidentiary hearing.
[¶26] Section 14-09-06.3(3), N.D.C.C., provides in relevant part that the “court shall mail the investigator’s report to counsel and to any party not represented by counsel at least thirty days before the hearing.”
See also
N.D.R.Ct. 8.6(c)(9) (“parenting investigator shall . . . file the written report with the court and serve it on the parties at least 30 days prior to the hearing”). At a pretrial conference on June 3, 2010, Julie Glass moved for a continuance of the hearing, which had been scheduled for June 22 and 23, 2010, because these dates were less than 30 days from her receipt of the parenting investigator’s report. The district court denied the continuance but scheduled a third hearing date for July 1, 2010, more than 30 days after receipt of the report, to allow the parenting investigator to testify. Julie Glass’s attorney requested that the July 1, 2010, hearing date be cancelled because she had a conflict. The parenting investigator testified on June 23, 2010, and a third hearing date was added on June 24, 2010.
[¶27] A district court’s decision to grant or deny a motion for continuance will not be reversed on appeal absent an abuse of discretion.
Clark v. Clark
, 2006 ND 182, ¶ 7, 721 N.W.2d 6. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process.
Id.
Julie Glass argues the court’s proposed solution to the untimely report did not comply with the 30-day requirement, because the 30-day requirement applies to the “hearing,” and the hearing commenced on June 22, 2010. The purpose of the 30-day requirement in N.D.C.C. § 14-09-06.3(3) is to give a party adequate opportunity to prepare to cross-examine the parenting investigator and any person the investigator has consulted for the report.
See
Green v. Green
, 1999 ND 86, ¶ 9, 593 N.W.2d 398. The court’s proposed solution complied with the purpose of the 30-day requirement. Moreover, Julie Glass must show prejudice resulted from the court’s denial of the motion for continuance.
See
Flattum-Riemers v. Peters-
Riemers
, 2001 ND 121, ¶ 15, 630 N.W.2d 71. The parenting investigator recommended that Julie Glass retain, on condition, primary residential responsibility. Julie Glass has not shown she was unable to adequately review the report or shown she would have defended Darin Glass’s motion any differently if the continuance had been granted.
[¶28] We conclude the district court did not abuse its discretion in denying Julie Glass’s request for a continuance.
IV
[¶29] It is unnecessary to address the other allegations made by Julie Glass because they either lack merit or are unnecessary to the decision. We deny Darin Glass’s request for attorney fees on appeal. We affirm the judgment.
[¶30] Dale V. Sandstrom
Carol Ronning Kapsner
Ronald E. Goodman, S.J.
Gerald W. VandeWalle, C.J.
[¶31] The Honorable Ronald E. Goodman, S.J., sitting in place of Crothers, J., disqualified.
Maring, Justice, concurring in part and dissenting in part.
[¶32] I concur in Part III, but respectfully dissent from Part II.B. of the opinion, which affirms the trial court’s decision to change primary residential responsibility of the three minor children to Darin Glass. Based on the entire record, I am left with a definite and firm conviction a mistake has been made and, therefore, I would reverse.
[¶33] The trial court found “Julie [Glass] [] provided the food, clothing, shelter, [and] medical care to the children” and served as the children’s primary caretaker since the parties’ divorce in 2005. The trial court explained Julie Glass “has shouldered the majority of the children’s needs for medical appointments, schooling, special needs of the children, sports and activities” since the divorce and acknowledged Darin Glass “has not been greatly involved with the children’s schooling, medical needs, activities and sporting events until the beginning of this year when this action started.” The trial court further found Darin Glass “has not exercised the type of concern and/or parenting with his children as a parent should.” Yet, relying almost exclusively on the domestic assault incident against Julie Glass, the trial court concluded a modification of primary residential responsibility is warranted.
See
Majority
, at ¶ 20 (stating the trial court’s primary reasons for modifying primary residential responsibility were “the presence of McNab in Julie Glass’s life, her refusal to terminate the relationship unless ordered by the court, and her failure to realize how her relationships impact the children”). I cannot agree with the trial court’s conclusion.
[¶34] A parent’s ability to provide her children with an environment that is free of any physical or emotional harm is undoubtedly an important consideration in modification proceedings, but taking away Julie Glass’s primary residential responsibility of her children on the ground she “
chooses
her [abusive] relationship over the children’s best interest,” shows little insight into the complexities of domestic violence and revictimizes an already victimized mother. (Emphasis added.)
See
Nicholson v. Williams
, 203 F.Supp.2d 153, 200-05 (E.D.N.Y. 2002) (recognizing abused mothers are often accused of “failure to protect” their children);
see also
Megan Shipley,
Reviled Mothers: Custody Modification Cases Involving Domestic Violence
, 86 Ind. L.J. 1587, 1589 (2011) (arguing that taking custody away from an abused mother seems to penalize her for being a victim of domestic violence). I am of the opinion the trial court’s decision to take away Julie Glass’s primary residential responsibility of her children penalizes Julie Glass for being the victim of domestic violence and ignores the steps she has taken to assure a safe environment for her children.
[¶35] The trial court found Steve McNab has not been near Julie Glass’s home or near the children since the domestic violence incident. However, focusing on what it described as Julie Glass’s refusal to end her relationship with Steve McNab, absent a court order, the trial court concluded: “Julie [Glass] needs to make her own positive choices without the [c]ourt controlling those choices.” I disagree. The trial court’s conclusion erroneously assumes Julie Glass actually has a choice of leaving her abuser and mischaracterizes her trial testimony to mean that she could leave, but would not leave, an abusive relationship for the sake of her children. Contrary to the trial court’s conclusion, Julie Glass’s trial testimony shows her children are her primary concern:
Q: What — now, again, what would you like to see as a possibility for you and Mr. McNab?
A: I would like for us to be able to continue counseling and see where that would lead.
Q: Do you have any intentions to allow him back in the house?
A: No.
Q: What if the Court conditions custody of the children on you letting — getting out of the romantic relationship and says this has to stop, do not see him anymore?
A: Then that’s what I would do.
Q: What is the most important thing to you?
A: My children.
[¶36] Moreover, the record shows, and the trial court agrees, the children have done well academically and socially while in the care of Julie Glass. The trial court further found “Julie [Glass] has done a remarkable job with the children” and concluded she has had “positive effects” on their development. Based on the entire record, I am left with a definite and firm conviction the trial court made a mistake by changing the primary residential responsibility of the children to Darin Glass. By taking away Julie Glass’s primary residential responsibility of her children, the trial court penalizes Julie Glass for being a victim of domestic violence and effectively revictimizes her. I cannot affirm a decision that not only revictimizes an abused mother, but is also likely to discourage other victims of domestic violence from coming forward with reports of abuse, in fear that they, too, might lose primary residential responsibility of their children.
[¶37] Mary Muehlen Maring
|
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
JASON VOGEL, )
)
Plaintiff, )
)
v. ) Case No. 16-cv-1598 (APM)
)
GO DADDY GROUP, INC., et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
Before the court is Plaintiff Jason Vogel’s motion for leave to amend his complaint.
Plaintiff wishes to voluntarily dismiss Defendant Go Daddy Group, Inc., and to add facts that he
contends suffice to establish the court’s subject matter jurisdiction in a lawsuit continuing only
against four unnamed “Doe” defendants. Prospective Amicus Freedman + Taitelman LLP, a Los
Angeles-based law firm, received a subpoena from Plaintiff as part of Plaintiff’s efforts at early,
jurisdictional discovery. It argues in proposed amicus briefs that it need not comply with that
subpoena because this court lacks jurisdiction over Plaintiff’s lawsuit.
For the reasons that follow, the court concludes allowing Plaintiff leave to amend would
be futile because his proposed amended complaint does not plausibly allege that this court has
subject matter jurisdiction. Accordingly, the court denies Plaintiff leave to amend, denies as moot
Freedman + Taitelman LLP’s motions for leave to file as amicus curiae, and dismisses the case.
I. BACKGROUND
Plaintiff filed suit in this court on August 5, 2016, seeking relief under state law against
The Go Daddy Group, Inc. (“GoDaddy”), and four unnamed defendants (“the Doe Defendants”).
See Compl., ECF No. 1 [hereinafter Compl.]. According to Plaintiff’s Complaint, Plaintiff is a
citizen of California who owns and manages real estate in Washington, D.C., New Mexico, and
California. Id. ¶ 1. In early 2016, the four Doe Defendants purportedly created a website called
“www.TheRealJasonVogel.com,” hosted by GoDaddy, on which they anonymously posted
tortious and defamatory statements about Plaintiff, including accusing him “of being a ‘penny-
pinching’ ‘slum-lord’” who evicted his tenants without cause. See id. ¶¶ 3, 9–10, 14–16.
Additionally, on or about July 1, 2016, the Doe Defendants allegedly distributed flyers in
Plaintiff’s neighborhood that contained a photograph of Plaintiff and “a large heading reading
‘I want to rip you off’” and directed the reader to “www.TheRealJasonVogel.com.” Id. ¶¶ 18–19.
These accusations also appeared on Twitter and Facebook, in addition to accusations that Plaintiff
did not maintain or improve his properties. See id. ¶¶ 3–6, 21–23. Plaintiff seeks relief against
the Doe Defendants for defamation, tortious interference with business relations, false light,
intentional infliction of emotional distress, and trespass. See id. ¶¶ 26–53. Additionally, Plaintiff
seeks preliminary and permanent injunctions against All Defendants that require them to remove
the online statements, retract those prior statements, and prevent the Doe Defendants from posting
new defamatory statements online or disseminating defamatory fliers. See id. at 9–10. Plaintiff
claims $1 million in damages. Id. at 9.
This court extended the deadline by which Plaintiff had to serve All Defendants and
permitted Plaintiff to seek limited early discovery. The Complaint maintained that the court had
subject matter jurisdiction over the case under the diversity statute, 28 U.S.C. § 1332(a), because
Plaintiff is a resident of California and GoDaddy is incorporated in Delaware and headquartered
in Arizona. See id. ¶¶ 1, 2, 8. Although Plaintiff could not list the Doe Defendants’ places of
citizenship at the time he filed the Complaint, the Complaint states that Plaintiff “intends to seek
2
immediate discovery from Defendant website host GoDaddy, and also from non-defendants
www.Facebook.com, and www.Twitter.com to determine the identity of” each Doe Defendant.
Compl. ¶¶ 3–6. The court granted Plaintiffs’ three motions for extension of time and provided
Plaintiff the opportunity to conduct early discovery to learn the Doe Defendants’ identities.
See Order, ECF No. 8; Order, ECF No. 6; Minute Order, Nov. 4, 2016.
Plaintiff’s early discovery efforts prompted the present inquiry into whether the court has
jurisdiction to hear this case. After receiving a subpoena from Plaintiff, the law firm of Freedman
+ Taitelman LLP (“Prospective Amicus”) filed a motion for leave to proceed as amicus curiae,
opposing the court’s continued extensions of time for Plaintiff to serve the Doe Defendants on the
ground that the court lacks jurisdiction over the case. Prospective Amicus’s brief asserts that this
court lacks subject matter jurisdiction because Plaintiff’s Complaint does not allege complete
diversity amongst the parties; GoDaddy purportedly is immune from suit, and diversity jurisdiction
does not exist when the only remaining defendants are the unnamed Doe Defendants. See Mot.
for Leave to File as Amicus Curiae, ECF No. 9, Proposed Amicus Br., ECF No. 9-2, at 4–6. Even
if complete diversity exists, the brief concludes, the court lacks personal jurisdiction over the Doe
Defendants based on the limited factual allegations in the Complaint. Id. at 6–8.
The court did not rule on Prospective Amicus’s Motion but stayed discovery and directed
Plaintiff to file a brief that addressed the court’s jurisdiction. Order, ECF No. 11. Plaintiff
responded to the court’s Order by seeking leave to amend his Complaint. Plaintiff’s proposed
amendment voluntarily dismisses GoDaddy from the suit and states that each Doe Defendant “is
believed to be a resident of” either Virginia, Texas, or Illinois, based on IP addresses Plaintiff
uncovered during early discovery. See Pl.’s Mot. for Leave to Am. Compl., ECF No. 12
3
[hereinafter Pl.’s Mot. for Leave to Am.], Am. Compl., ECF No. 12-2 [hereinafter Am. Compl.],
¶¶ 3–6, 29–32.
Prospective Amicus then filed a second motion for leave to proceed as amicus curiae,
opposing Plaintiff’s Motion and the continuation of the case. This Second Motion renews the
arguments raised in Prospective Amicus’s original Motion and contends that Plaintiff’s reliance
on IP addresses does not demonstrate the court has jurisdiction. See Second Mot. for Leave to File
as Amicus Curiae, ECF No. 13, Second Proposed Amicus Br., ECF No. 13-1 [hereinafter Second
Proposed Amicus Br.], at 3–9. Specifically, Prospective Amicus highlights that an IP address can
provide evidence of an Internet user’s physical location, but that data is not equivalent to evidence
of “citizenship.” Id. at 4–5. Moreover, according to Prospective Amicus, the court lacks personal
jurisdiction over the Doe Defendants because the IP addresses Plaintiff identified place the Doe
Defendants outside the District of Columbia and Plaintiff has not alleged that they “regularly do[]
or solicit[] business, engage[] in any other persistent course of conduct, or derive[] substantial
revenue from goods used or consumed, or services rendered, in the District of Columbia.” Id. at
7–8 (quoting Forras v. Rauf, 812 F.3d 1102, 1106 (D.C. Cir. 2016)).
Plaintiff responded to the Second Amicus Brief with a filing titled “Praecipe,” which asked
the court to accept a “Revised Amended Complaint.” The Revised Amended Complaint is
substantially the same as the Amended Complaint, except that Plaintiff now alleges each Doe
Defendant “is believed to be a citizen of” Virginia, Texas, or Illinois, based on the same IP
addresses Plaintiff uncovered during early discovery. See Praecipe, ECF No. 14 [hereinafter
Praecipe], Rev. Am. Compl., ECF No. 14-1 [hereinafter Rev. Am. Compl.], ¶¶ 3–6, 30–33
(emphasis added).
4
II. LEGAL STANDARD
At every stage in litigation, a federal court must determine that is has jurisdiction to hear
the case before it. Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 706 (D.C. Cir. 2008); Brown
v. Jewell, 134 F. Supp. 3d 170, 176 (D.D.C. 2015). “A federal court presumptively lacks
jurisdiction in a proceeding until a party demonstrates that jurisdiction exists. A party must
therefore affirmatively allege in its pleadings the facts showing the existence of jurisdiction, and
the court must scrupulously observe the precise jurisdictional limits prescribed by Congress.”
Commodity Futures Trading Comm’n v. Nahas, 738 F.2d 487, 492 n.9 (D.C. Cir. 1984); accord
Loughlin v. United States, 393 F.3d 155, 172 (D.C. Cir. 2004).
Subject matter jurisdiction exists if the parties in the litigation are citizens of different states
and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Strawbridge v. Curtiss,
7 U.S. (3 Cranch) 267, 267 (1806). A party is a citizen of the place where he or she is domiciled.
Prakash v. Am. Univ., 727 F.2d 1174, 1180 (D.C. Cir. 1984). Domicile, in turn, “is determined by
two factors: physical presence in a state, and intent to remain there for an unspecified or indefinite
period of time.” Id. A suit invoking a federal court’s diversity jurisdiction cannot be brought
solely against Doe defendants because their place of citizenship is not known. See Sinclair v.
TubeSockTedD, 596 F. Supp. 2d 128, 132–33 (D.D.C. 2009); Meng v. Schwartz, 305 F. Supp. 2d
49, 55 (D.D.C. 2004); see also Howell by Goerdt v. Tribute Ent. Co., 106 F.3d 215, 218 (7th Cir.
1997).
A plaintiff may amend his complaint to fix a deficiency that goes to whether the court has
jurisdiction. 28 U.S.C. § 1653; Johnson v. Panetta, 953 F. Supp. 2d 244, 248 (D.D.C. 2013).
Under Rule 15 of the Federal Rules of Civil Procedure, the plaintiff may amend his complaint
once, as of right, within 21 days of when the opposing party serves its responsive pleading. Fed.
5
R. Civ. P. 15(a)(1)(B). Otherwise, the plaintiff may amend his complaint with the opposing party’s
written consent or leave of court. Fed. R. Civ. P. 15(a)(2). The Rules direct the court to “freely
give leave [to amend] when justice so requires.” Id.
When the only issue before the court is whether the plaintiff’s proposed amended complaint
would establish the court’s jurisdiction, the court’s resolution of the plaintiff’s motion for leave to
amend necessarily dovetails with its assessment of whether it actually possesses jurisdiction. If
the plaintiff’s proposed pleading contains statements of fact plausibly alleging that the court has
jurisdiction, then the court has jurisdiction to allow Plaintiff leave to make those necessary
amendments. Alternatively, if Plaintiff’s proposed pleading does not plausibly allege that the court
possesses jurisdiction, then the court must dismiss the case. See Fed. R. Civ. P. 12(h)(3);
cf. Loughlin, 393 F.3d at 171–72.
III. DISCUSSION
Plaintiff could amend his initial Complaint once as a matter of right because it is a pleading
to which a response is required, and no response has been filed. See Fed. R. Civ. P. 15(a)(1)(B).
Accordingly, Plaintiff need not have sought leave of court to amend the initial Complaint; the
“Amended Complaint” is the operative pleading in this matter. The court, however, treats
Plaintiff’s “Praecipe” as a motion for leave to amend under Rule 15(a)(2), because Plaintiff plainly
filed the Praecipe and the attached Revised Amended Complaint to cure the jurisdictional pleading
deficiencies asserted in Prospective Amicus’ Second Motion to file an amicus brief. Compare
Second Proposed Amicus Br. at 3–4 (arguing that the Amended Complaint lacks allegations
concerning the citizenship of the Doe Defendants), with Praecipe at 1 (seeking to add the purported
citizenship of the Doe Defendants). Accordingly, the question before the court is whether to grant
6
the Praecipe, i.e., Plaintiff’s motion for leave to amend, and accept the Revised Amended
Complaint as the operative pleading in this matter.
Plaintiff’s Revised Amended Complaint asserts subject matter jurisdiction based on
diversity. The following statements encompass the whole of Plaintiff’s factual allegations
addressing the court’s diversity jurisdiction:
1. Jason G. Vogel (hereinafter “Plaintiff”) is an individual who
resides in Laguna Beach, California. The Plaintiff is a citizen of
California. He is a native of Washington, DC. He has family
in the DC metropolitan area.
....
3. Defendant John Doe 1 is believed to be a citizen of Virginia,
living in or near Herndon, VA, near Washington, DC.
4. Defendant John Doe 2 is believed to be a citizen of San Antonio,
Texas.
5. Defendant John Doe 3 is believed to be a citizen of El Paso,
Texas.
6. Defendant John Doe 4 is believed to be a citizen of Illinois,
living in or near Chicago or Naperville, which is a suburb of
Chicago.
....
9. This Court also has subject matter jurisdiction because the
amount in controversy exceeds $75,000 exclusive of interest and
costs, and the controversy is between citizens of different states,
per 28 U.S.C. § 1332(a)(1).
....
29. A web site called NextDoor is designed to facilitate interactions
and discussions of interest to members of the local community.
A person who self-identified herself as Sally Forsythe joined
two NextDoor communities in proximity to the Plaintiff’s
property in Los Angeles. Sally Forsythe may be her real name.
It is also possible that Sally Forsythe is an alias for someone else.
The reason that the Plaintiff questions the real name of Sally
Forsythe is because she signed up for two separate Nextdoor
[sic] accounts using two different home addresses. NextDoor
7
has no records that they actually verified Sally Forsythe’s
address. In one case, the physical address does not exist. For the
other NextDoor account, the listed address is a post office.
30. Sally Forsythe e-mailed derogatory information about the
Plaintiff to the Los Angeles City Government. Internet Protocol
(IP) addresses obtained though discovery indicate that Ms.
Forsythe lives in or around Herndon, Virginia, a suburb of
Washington, D.C.
31. The Plaintiff has reason to suspect that John Doe 1 may be
named Sally Forsythe. However, the Plaintiff does not yet have
proof to support his suspicion. Early discovery is required to
obtain more information regarding the specific location in
Herndon, VA where Sally Forsythe, or the person who is using
the name Sally Forsythe, resides.
32. IP addresses indicate that Doe 2 lives in San Antonio, Texas;
Doe 3 lives in El Paso, Texas and Doe 3 lives in Chicago, Illinois
or in nearby Naperville, Illinois.
....
Rev. Am. Compl. ¶¶ 1, 3–6, 9, 29–32. These paragraphs make plain that Plaintiff “believes” the
Doe Defendants to be residents of Virginia, Texas, and Illinois, respectively, based solely on IP
addresses he obtained during early discovery. See id. ¶¶ 30, 32. The Doe Defendants are the only
parties that remain in the amended pleading. As such, the Revised Amended Complaint alleges
Plaintiff and the Doe Defendants are completely diverse parties because no defendant is affiliated
with an IP address in California. See Strawbridge, 7 U.S. (3 Cranch) at 267.
The Revised Amended Complaint does not, however, plausibly allege that the court has
diversity jurisdiction because it does not aver sufficient facts to establish the Doe Defendants’
places of citizenship. A suit invoking a federal court’s diversity jurisdiction cannot, as here, be
brought solely against Doe defendants because their place of citizenship is not known. See
Sinclair, 596 F. Supp. 2d at 132–33; Meng, 305 F. Supp. 2d at 55; see also Howell by Goerdt, 106
F.3d at 218. Plaintiff does not dispute that jurisdictional principle. See Pl.’s Mot. for Leave at 6.
8
Instead, he submits that the IP addresses he has acquired for each Doe Defendant, and the
corresponding geolocation information those IP addresses contain, is sufficient evidence to
establish diversity jurisdiction. See id. That argument is unpersuasive. As the D.C. Circuit
recently explained, an IP address provides some geolocation information, but not as to a particular
person:
Every device connected to the Internet and every web page on the
Internet is identified by an IP address. The IP address appears as a
string of numbers separated by periods, for example,
“100.200.123.234.” It identifies the location, i.e., a particular
computer-to-network connection of an end-user’s computer and also
serves as the routing address for requests to view a web page.
Weinstein v. Islamic Republic of Iran, 831 F.3d 470, 473 (D.C. Cir. 2016) (alteration adopted)
(citation and internal quotation marks omitted). In other words, an IP address pinpoints the
location of a computer; it does not pinpoint a particular computer user. Many people can, and do,
use the same computer—e.g., public library computers. Even assuming, as Plaintiff does, that the
IP addresses he found plausibly allege the locations of specific computer users, as opposed to the
computers used to commit the alleged tortious acts, those IP addresses still provide no information
regarding the user’s intent to remain in the location affiliated with the IP address. In order to
establish each Doe Defendant’s place of citizenship, Plaintiff must provide plausible factual
allegations concerning not only each Doe Defendant’s presence in a particular state, but also his
or her intent to remain there. See Prakash, 727 F.2d at 1180. Reliance an IP address alone cannot
establish such intent. Accordingly, because the Revised Amended Complaint alleges, at most, that
the Doe Defendants were present in the states of Virginia, Illinois, and Texas on a particular day,
9
the court concludes Plaintiff has not plausibly alleged whether the Doe Defendants are citizens of
states other than California. 1
Although Plaintiff argues that through continued early discovery he can gather additional
evidence to identify the Doe Defendants’ places of citizenship, that argument does not save
Plaintiff’s Revised Amended Complaint. Indeed, as another member of this Court wrote, “a
diversity action cannot be brought against Doe defendants in hopes of later discovering that the
requisite diversity of citizenship actually exists.” Sinclair, 596 F. Supp. 2d at 132–33. Here, the
court originally could allow Plaintiff to take early discovery because GoDaddy’s presence as a
defendant created diversity jurisdiction. Now, however, given Plaintiff’s dismissal of GoDaddy,
this court lacks subject matter jurisdiction over this case, and Plaintiff cannot continue to use the
tools of discovery otherwise available to a plaintiff properly in federal court to uncover the
requisite jurisdictional facts. See id. at 134.
For this reason, the court denies as futile Plaintiff’s Praecipe requesting leave to file his
Revised Amended Complaint and dismisses the case for want of jurisdiction.
1
The cases Plaintiff cited in his first motion for leave to amend—Malibu Media, LLC v. John Doe, No. 16-639, 2016
WL 1698263 (D.D.C. Apr. 27, 2016), and Nu Image, Inc. v. 1-23,322, 799 F. Supp. 2d 34 (D.D.C. 2011)—do not
compel a different result. See Pl.’s Mot. for Leave to Am. at 7. In each case, the court’s subject matter jurisdiction
was premised on federal question jurisdiction and only its personal jurisdiction was at issue. See Malibu Media, 2016
WL 1698263, at *1; Nu Image, Inc., 799 F. Supp. at 36. In that context, those courts found that an IP address suffices
to provide “some basis” or a “good faith basis” to believe that a John Doe resides in the District of Columbia and the
District Court for the District of Columbia may exercise personal jurisdiction over the unnamed defendant. Malibu
Media, No. 2016 WL 1698263, at *2; accord Nu Image, Inc., 799 F. Supp. 2d at 41. Here, on the other hand, the
court’s subject matter jurisdiction is premised on diversity and is at issue—an entirely different context in which the
court must evaluate the evidentiary value of an IP address. Merely offering “some basis” of each John Doe’s
citizenship does not satisfy Plaintiff’s burden to establish subject matter jurisdiction.
10
IV. CONCLUSION
In light of the foregoing, the court concludes it lacks subject matter jurisdiction and
dismisses the case without prejudice. A separate Order accompanies this Memorandum Opinion.
Dated: July 19, 2017 Amit P. Mehta
United States District Judge
11
|
NO. 07-11-00277-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 16, 2011
JAMES DARIN MEACHAM, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY;
NO. CR2010-425; HONORABLE DIB WALDRIP, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, James Darin Meacham, appeals from a judgment convicting him of
unauthorized use of a motor vehicle. Due to a defect in the trial court’s certification of
defendant’s right of appeal, this Court abated the case and remanded it back to the trial
court to cure the defect. See Meacham v. State, No. 07-11-0277-CR, 2011 Tex.App.
LEXIS 7508 (Tex.App.—Amarillo Sept. 14, 2011) (order). In response, this Court
received a supplemental clerk’s record that contains an Amended Certification of
Defendant’s Right of Appeal that indicates that appellant has waived his right of appeal.
This certification is in the proper form, is signed by appellant, and is supported by the
record.
By letter dated November 9, 2011, this Court notified appellant that the
certification reflected that appellant had no right of appeal. By this letter, the Court
further notified appellant failure to file an amended certification showing a right of appeal
or other grounds for continuing the appeal on or before December 9, 2011, would result
in dismissal of the appeal pursuant to Rule 25.2(a)(2) and (d) of the Texas Rules of
Appellate Procedure. No response or amended certification reflecting appellant’s right
of appeal has been made part of the record.
Consequently, the appeal is dismissed.
Mackey K. Hancock
Justice
Do not publish.
2
|
ACCEPTED
05-15-00769-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
6/22/2015 12:00:00 AM
LISA MATZ
CLERK
FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
6/21/2015 7:16:00 PM
LISA MATZ
Clerk
|
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________________________
No. 97-20387
(Summary Calendar)
____________________________________
BARBARA ALANIES,
Plaintiff-Appellant,
versus
O’QUINN, KERENSKY, MCANINCH
& LAMINACK; ET AL Defendants
O’QUINN, KERENSKY, MCANINCH
& LAMINACK, and JOHN M.
O’QUINN, P.C.,
Defendants-Appellees.
_______________________________________________
Appeal from the United States District Court
for the Southern District of Texas
No. 4:95-CV-5802
_______________________________________________
March 19, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
Per Curiam:*
In this employment discrimination case, Plaintiff-Appellant
Barbara Alanies appeals the district court’s grant of summary
judgment in favor of Defendant-Appellee O’Quinn, Kerensky, McAninch
& Laminack (law firm), holding that Alanies’s claim was precluded
*
Pursuant to 5TH CIRCUIT RULE 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4.
by the release provisions of the Separation Agreement she signed at
the termination of her employment with the law firm. Alanies
asserts that the district court erred, as (1) the release was not
supported by adequate consideration, and (2) she promptly returned
the contract consideration and therefore did not ratify the
Separation Agreement. After a de novo review of the record,1 we
find no merit in either of these arguments and, accordingly,
affirm.
Alanies contends first that she received no consideration for
her release of all claims against the law firm, as the Separation
Agreement provides that Alanies’s severance pay was tendered “in
lieu of notice.” She maintains that, inasmuch as the severance pay
was consideration for lack of notice to her prior to termination,
it could not also be sufficient consideration for the release. But
the Separation Agreement expressly provides that
[b]y acceptance and negotiation of the severance check
and by the signature below, the undersigned . . .
releases and forever discharges Law Firm for any claim of
any kind known or unknown, whether in contract or tort,
property damages and any other damages which have accrued
or may ever accrue to the undersigned arising out of the
employment.
As the district court noted, a single consideration is sufficient
1
This court reviews the granting of a summary judgment de novo
under well-established standards. Blakeney v. Lomas Info. Sys.,
Inc., 65 F.3d 482, 484 (5th Cir. 1995), cert. denied, 116 S. Ct.
1042 (1996).
2
to support multiple promises bargained for in an agreement.2 After
a review of the plain language of the Separation Agreement, we
reach the same conclusion as did the district court —— that
Alanies’s receipt of severance pay was sufficient consideration to
support all of Alanies’s promises in the Separation Agreement, not
just her waiver of notice.
Alanies also asserts that the Separation Agreement is
unenforceable because (1) she was suffering from an impaired
physical and emotional condition and was coerced into signing it,
and (2) the law firm misrepresented to her that it would continue
her medical benefits for three weeks. The law firm insists that,
even if the agreement was voidable, Alanies ratified it by failing
to return the severance pay within a reasonable time after learning
that the release was voidable.
We have held that to rescind a release agreement, an employee
must (1) restore the status quo ante, and (2) return the
consideration shortly after the discovery of the alleged
deficiency.3 Failure to return the consideration given in exchange
for the covenant not to sue manifests an intention to be bound by
2
Birdwell v. Birdwell, 819 S.W.2d 223, 228 (Tex. App. —— Fort
Worth 1991, writ denied); Restatement (Second) of Contracts § 80
cmt. a (1981) (“A single performance or return promise may thus
furnish consideration for any number of promises.”).
3
Blakeney, 65 F.3d at 485.
3
the terms of the waiver.4 Although we have not “prescribe[d] a
precise timetable for tender” of consideration,5 we have held that
summary judgment was appropriate when one plaintiff waited two
years6 and when another waited twenty-two months7 to return the
benefits of the release.
By Alanies’s own calculations, her tender of the severance
payment came more than sixteen months after she became free of
those physical impairments and oppressive circumstances that
purportedly compromised her free will and led her to sign the
release. Even under Alanies’s alternate contention, more than nine
months elapsed between her discovery of the law firm’s alleged
misrepresentation about her health insurance and her return of the
money. In the interval between her signing the release and her
tender of the lump sum settlement payment, Alanies (1) wrote
several letters to the law firm, detailing her claim and demanding
settlement; (2) obtained legal counsel; (3) engaged in settlement
negotiations; (4) received a letter from counsel for McAninch, a
4
Wamsley v. Champlin Ref. & Chems., Inc., 11 F.3d 534, 540
(5th Cir. 1993), cert. denied, 514 U.S. 1037 (1995); see also
Williams v. Phillips Petroleum Co., 23 F.3d 930, 937 (5th Cir.),
cert. denied, 513 U.S. 1019 (1994)(“Even if a release is tainted by
misrepresentation or duress, it is ratified if the releasor retains
the consideration after learning that the release is voidable.”).
5
Blakeney, 65 F.3d at 485 n.3.
6
See Grillet v. Sears, Roebuck & Co., 927 F.2d 217, 221 (5th
Cir. 1991), overruled on other grounds, Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863 (1994).
7
See Blakeney, 65 F.3d at 485 n.3.
4
partner at the law firm, pointing out that she had “never attempted
to revoke her release, much less return the consideration she
received for signing it;” and (5) filed an EEOC charge. Taking
into consideration all these factors, we agree with the district
court that
as a matter of law . . . her failure to return the cash
consideration within sixteen or seventeen months after
being fully cognizant of most of the claims that she has
now sued on, and within nine months after discovering the
additional claim of misrepresentation that her medical
insurance would be continued for three weeks, is a
passage of time that fails separately and in the
aggregate to meet the Grillet requirement that she return
the consideration “shortly after” or “soon after”
discovering the misrepresentation.
Our de novo review leads us to agree with the conclusion of
the district court that Alanies’s claims are barred by the terms of
her release and that she ratified it. Consequently, the judgment
of the district court should be, and therefore is,
AFFIRMED.
5
|
537 U.S. 821
SMITHv.PRINCIPI, SECRETARY OF VETERANS AFFAIRS.
No. 01-1775.
Supreme Court of United States.
October 7, 2002.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT.
2
C. A. Fed. Cir. Certiorari denied. Reported below: 281 F. 3d 1384.
|
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TUNI DEE HERNANDEZ, No. 15-17028
Plaintiff-Appellant, D.C. No. 2:14-cv-02142-CKD
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Carolyn K. Delaney, Magistrate Judge, Presiding
Argued and Submitted July 11, 2017
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and LYNN,** Chief District Judge.
Tuni Dee Hernandez appeals the district court’s order affirming an
administrative law judge’s (“ALJ”) denial of her applications for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
Security Act, 42 U.S.C. §§ 401–34, 1382–1385. We affirm.
1. The ALJ did not err by rejecting the opinions of Hernandez’s treating
physicians, Doctors Kathleen King and Dennis Hart. The ALJ’s determination that
Doctor Hart’s own treatment notes did not support the level of severity endorsed in
his opinion was a “specific and legitimate reason[] supported by substantial
evidence” for rejecting his opinion. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d
685, 692–93 (9th Cir. 2009). Moreover, although the ALJ mistakenly referred to the
treatment notes of Hernandez’s orthopedic surgeon and physical therapist as
belonging to Doctor King, Dr. King’s notes nonetheless did not support the level of
severity she endorsed. Thus, the ALJ properly rejected Doctor King’s opinion, and
his error in misidentifying her treatment notes was harmless. See Molina v. Astrue,
674 F.3d 1104, 1111 (9th Cir. 2012) (“[W]e may not reverse an ALJ’s decision on
account of an error that is harmless.”).
2. The ALJ also did not err by rejecting Hernandez’s testimony regarding
the severity of her symptoms.1 The inconsistencies between Hernandez’s testimony
and the objective medical evidence, including her doctors’ treatment notes and an
MRI of her lumbar spine, were “clear and convincing reasons” for rejecting
Hernandez’s testimony. Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 599–
1
Hernandez testified that she could neither sit nor stand for more than fifteen
minutes at a time because of pain in her back and right ankle.
2
600 (9th Cir. 1999). So were the inconsistences between her testimony and her self-
reported daily activities, which included doing her laundry, cleaning the kitchen,
driving short distances, and sitting on the couch and watching her three-year-old
nephew play games.
3. Finally, the district court correctly concluded that any error committed
by the ALJ at step five of the disability analysis was harmless. See Molina, 674 F.3d
at 1111. There was no apparent conflict between the ALJ’s residual functional
capacity (“RFC”) determination that Hernandez was “limited to simple, repetitive
tasks” and the vocational expert’s testimony that she could work as an envelope
addresser, a job which the U.S. Department of Labor’s Dictionary of Occupational
Titles describes as requiring “Level 2” reasoning.2 See Abrew v. Astrue, 303 Fed.
App’x 567, 569 (9th Cir. 2008) (unpublished) (“[T]here was no conflict between the
ALJ’s step five determination that [the claimant] could complete only simple tasks
and the vocational expert’s testimony that [the claimant] could do
jobs . . . categorize[d] at ‘Reasoning Level 2.’”); see also Moore v. Astrue, 623 F.3d
599, 604 (8th Cir. 2010) (finding no apparent conflict between an ALJ’s RFC
determination that a claimant could “perform[] ‘simple, routine and repetitive work
2
Level 2 reasoning requires, inter alia, the ability to “[a]pply commonsense
understanding to carry out detailed but uninvolved written or oral instructions.” See
U.S. Department of Labor, Dictionary of Occupational Titles app. C, 1991 WL
688702 (4th ed. 1991) (hereinafter “DOT”).
3
activity . . . ’” and a vocational expert’s testimony that the claimant could perform
jobs that require Level 2 reasoning).3 Thus, even if the ALJ erred by failing to resolve
an apparent conflict between Hernandez’s RFC and the vocational expert’s
testimony that Hernandez could perform two other jobs that require Level 3
reasoning,4 see Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (finding an
apparent conflict between an ALJ’s RFC determination that a claimant was limited
to “simple, repetitive tasks” and a vocational expert’s testimony that the claimant
could perform jobs that required Level 3 reasoning), any such error was harmless.
AFFIRMED.
3
Nor did the opinion of Doctor T. Renfro, a government psychologist, that
Hernandez was “able to understand, remember, and carry out simple one or two-step
job instructions,” raise an apparent conflict with the vocational expert’s testimony.
True, this Court has found an “apparent conflict” between an ALJ’s finding that a
claimant is “limit[ed] . . . to performing one- and two-step tasks” and a vocational
expert’s testimony that the claimant can meet “the demands of Level Two
reasoning[.]” Rounds v. Comm’r. Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir.
2015) (“The conflict between [the claimant’s] RFC and Level Two reasoning is
brought into relief by the close similarity between [the claimant’s] RFC and Level
One reasoning[,] [which] . . . requires a person to apply ‘commonsense
understanding to carry out simple one- or two-step instructions.’”). Here, however,
the ALJ never adopted Doctor Renfro’s opinion that Hernandez was limited to
“simple one or two-step job instructions.” Thus, Rounds is inapposite.
4
Level 3 reasoning requires, inter alia, the ability to “[a]pply commonsense
understanding to carry out instructions furnished in written, oral or diagrammatic
form.” See DOT app. C, 1991 WL 688702.
4
|
339 F.Supp. 375 (1972)
Dr. Harry W. THERIAULT, Bishop, Church of the New Song of Universal Life, and Rector, The Fountainhead Seminary, Rev. Jerry M. Dorrough, Vice-Rector, The Fountainhead Seminary, and Minister, Church of the New Song of Universal Life, et al.
v.
Norman A. CARLSON, Director, Bureau of Prisons; Rev. Frederick Silber, Director of Chaplaincy Services, Bureau of Prisons; J. D. Henderson, Warden, United States Penitentiary, Atlanta, Georgia; Rev. Jack A. Hanberry, Protestant Chaplain, United States Department of Justice, Bureau of Prisons, United States Penitentiary, Atlanta; Fr. Raymond A. Beane, O.M.F., Catholic Priest, United States Department of Justice, Bureau of Prisons, United States Penitentiary, Atlanta.
Civ. A. No. 13872.
United States District Court, N. D. Georgia, Atlanta Division.
February 25, 1972.
*376 *377 Harry W. Theriault, pro se (Glenn Zell, Atlanta, Ga., of counsel), for plaintiffs.
John W. Stokes, Jr., U. S. Atty., P. Bruce Kirwan, Asst. U. S. Atty., Atlanta, Ga., for defendants.
OPINION AND ORDER
OPINION
EDENFIELD, District Judge.
Harry William Theriault, self-styled Bishop of Tellus[1] and self-proclaimed leader of a group designated by petitioners as the Church of the New Song,[2] is also a federal prisoner incarcerated presently in the Atlanta federal penitentiary on "holdover" status from the Marion (Illinois) federal penitentiary. For a year and a half he has sought to compel prison officials in Atlanta and Marion to grant him the right to hold religious services in prison for those who shared his belief in the Eclatarian faith,[3] a faith of which he is the supreme exponent. The prison authorities denied his requests and his appeals to respondent Silber, Director of Chaplaincy Services for the Bureau of Prisons, and respondent Carlson, Director of the Bureau of Prisons, were unsuccessful. Petitioners then filed this class action here and the court, predicating its jurisdiction upon 28 U.S.C. § 1361 (1970), held four full days of hearings on the matter. Walker v. Blackwell, 360 F.2d 66 (5th Cir. 1966). ("Walker I".) The court has concluded that petitioners and the class they represent have been denied First Amendment rights, and it will order relief.
A full recitation of the history of this case is unnecessary. Briefly, Theriault and co-petitioner Dorrough founded the Church of the New Song and the Fountainhead Seminary in 1970 while incarcerated in Atlanta. They had obtained "doctor of divinity" certificates from a mail-order organization and, as a "game", they decided to challenge the chaplaincy program in the federal prisons and, at the same time, to develop a new religion of their own. The petition filed in this court alleged that the Government had established religion in the Atlanta penitentiary and was also prohibiting its free exercise by those prisoners who belonged to the Church of the New Song. Petitioners claimed that a "pall of establishment orthodoxy" had been cast over their lives because respondents *378 Hanberry and Beane, the Protestant and Catholic chaplains, respectively, who were members of the prison staff and federal employees, regularly submitted reports on the religious activities of the prisoners which had a direct bearing on the grant or denial of parole. They also contended that the chaplains were promoting the majority faiths at the expense of minority faiths by failing to grant religious standing to the Church of the New Song. The petition was supported by the signatures of 165 prisoners.
Immediately after the petition was allowed filed in this court, Theriault was transferred to Marion which houses the most severe security risks in the federal system. Theriault now began to take his own religious claims seriously and attempted to explain them to the prisoners and staff at Marion. The Chief of Classification and Parole at Marion testified in this court that, at this point, Theriault's activities were truly religious in nature. Theriault approached the Protestant chaplain at Marion for permission to hold religious services for himself and his followers, but the request was denied because the chaplain felt the Church of the New Song was not "recognized." Theriault attempted to meet this objection by assuring the chaplain he would obtain an official church charter from the Universal Life Church, Inc., the mail-order organization which supplied Theriault with his "doctor of divinity" degree. The chaplain brought the matter to the attention of respondent Silber,[4] and Rev. Silber testified in court that he upheld the decision of the Marion chaplain because the Church of the New Song and the Eclatarian faith were not "recognized." Theriault also wrote to respondent Carlson but received only a form response directing him to the institutional staff.
As Theriault continued his activities among the Marion prisoners, the staff began to suspect that he was actually organizing a radical political movement. One staff member filed a memorandum on the subject and urged that something be done to control Theriault's activities.[5]*379 Three days after the memorandum was filed, Theriault was placed in punitive segregation ("H-Unit") for failing to obey the order of a security officer to move. He was subsequently released and later cited for a minor violation and for threatening a security officer. On April 1, 1971 Theriault approached Mr. J. Culley, a correctional supervisor, and demanded a place to hold religious services. Culley discussed the matter with Theriault but refused to accede to his demand. Then, "as a preventive measure," Culley had Theriault placed in punitive segregation ("H-Unit").[6] Theriault remained in H-Unit from that *380 night until he was transferred to Atlanta for the hearings before this court.[7] The day Theriault was received back in Atlanta he was immediately placed in the segregation unit and he is still there today.[8] The court finds as fact that the sole basis for the punitive segregation of Theriault was his demand to hold religious services.
A. The "Establishment" Claim
The "establishment" claim raised by petitioners is, for the most part, without merit. The Bureau of Prisons is statutorily charged with the responsibility of providing for the care, subsistence, protection, instruction and discipline of federal prisoners. 18 U.S.C. § 4042 (1970). The Bureau has carried out this responsibility by creating programs to meet the needs of the inmates be they physical, mental, or spiritual needs. In order to effectuate these programs the Bureau, of course, must hire professional staff doctors, social workers, teachers, and clergymen. The Bureau cannot maintain a full complement of medical, educational, or religious professionals on the prison staffs, and a representative selection must necessarily suffice. The ordained clergymen on the federal payroll who serve as chaplains in the federal prison system are hired to provide for the spiritual needs of all prisoners, whatever their religious denomination, and they are not merely the emissaries of their respective churches. As Mr. Justice Brennan has written:
"There are certain practices, conceivably violative of the Establishment Clause, the striking down of which might seriously interfere with certain *381 religious liberties also protected by the First Amendment. Provisions for churches and chaplains at military establishments for those in the armed services may afford one such example. The like provision by state and federal governments for chaplains in penal institutions may afford another example. It is argued that such provisions may be assumed to contravene the Establishment Clause, yet be sustained on constitutional grounds as necessary to secure to the members of the Armed Forces and prisoners those rights of worship guaranteed under the Free Exercise Clause. Since government has deprived such persons of the opportunity to practice their faith at places of their choice, the argument runs, government may, in order to avoid infringing the free exercise guarantees, provide substitutes where it requires such persons to be....
"Such activities and practices seem distinguishable from the sponsorship of daily Bible reading and prayer recital. For one thing, there is no element of coercion present in the appointment of military or prison chaplains; the soldier or convict who declines the opportunities for worship would not ordinarily subject himself to the suspicion or obloquy of his peers. Of special significance to this distinction is the fact that we are here usually dealing with adults, not with impressionable children as in the public schools. Moreover, the school exercises are not designed to provide the pupils with general opportunities for worship denied them by the legal obligation to attend school. The student's compelled presence in school for five days a week in no way renders the regular religious facilities of the community less accessible to him than they are to others. The situation of the school child is therefore plainly unlike that of the isolated soldier or the prisoner.
"The State must be steadfastly neutral in all matters of faith, and neither favor nor inhibit religion. In my view, government cannot sponsor religious exercises in the public schools without jeopardizing that neutrality. On the other hand, hostility, not neutrality, would characterize the refusal to provide chaplains and places of worship for prisoners and soldiers cut off by the State from all civilian opportunities for public communion, the withholding of draft exemptions for ministers and conscientious objectors, or the denial of the temporary use of an empty public building to a congregation whose place of worship has been destroyed by fire or flood. ..." Abington School District v. Schempp, 374 U.S. 203, 296-299, 83 S.Ct. 1560, 1610, 10 L.Ed.2d 844 (1963) (concurring opinion).
The court concludes that the maintenance by the Bureau of Prisons of chaplains at the Atlanta federal penitentiary is not unconstitutional. See Horn v. People of California, 321 F. Supp. 961 (E.D.Cal.1968).
Notwithstanding this conclusion, the court does find merit in petitioners' claims about the filing of religious reports by respondents Hanberry and Beane. The testimony before this court established that Rev. Hanberry and Fr. Beane regularly submit reports to the caseworkers at the Atlanta penitentiary in which they comment on the inmates' participation or lack of participation in their respective religious activities. These reports, together with reports from other staff members, are culled by the caseworkers and form part of the inmates' profiles which are presented to the Board of Parole when the inmates are being considered for release on parole. It is not inconceivable that the grant or denial of parole is based, to some degree, on the religious reports submitted by the chaplains.
In the court's view, the submission of religious reports by respondents Hanberry and Beane involves the Government in a violation of the neutrality it must maintain with respect to religion. There can be no doubt that an inmate whose file contains a positive religious *382 report stands a better chance of being released on parole than an inmate with a neutral or negative religious report. Indeed, it is likely that the inmates' very knowledge of the existence of these religious reports may compel some to participate in religious activities. The Government, by allowing these religious reports to be submitted, is in effect promoting religion among inmates and indirectly punishing the atheist, agnostic, or Eclatarian who declines to participate in these religious programs. This is unconstitutional. As the Supreme Court has declared:
"Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." Epperson v. Arkansas, 393 U.S. 97, 103-104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968).
The court will accordingly enjoin the submission of these religious reports by respondents Hanberry and Beane.
B. The "Free Exercise" Claim
The chaplains at Atlanta and Marion, as well as Rev. Silber, denied Theriault's requests to hold religious services because they felt the Church of the New Song and the Eclatarian faith were not "recognized." The insistence by these federal employees that Theriault and his followers meet this "recognition" standard before they might freely exercise their religious beliefs runs squarely afoul of the First Amendment.[9] One of the purposes of the First Amendment was to prohibit the imposition by government of any standard as a prerequisite to the free exercise of religion. As the Supreme Court has noted:
"By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and States. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval from each King, Queen, or Protector that came to temporary power." Engel v. Vitale, 370 U.S. 421, 429, 82 S.Ct. 1261, 1266, 8 L.Ed.2d 601 (1962).
But respondents go further. They argue that Theriault's "religion" is not a religion at all but merely a random amalgamation of pseudo-political notions; that his "church" is nothing but a collection of some of the worst prisoners in the federal system. Similar arguments were offered by prison officials when so-called Black Muslim prisoners began suing in federal court for religious freedom. One of the first courts to deal with these arguments responded as follows:
"Under freedom of religion in this country a person has an absolute right to embrace the religious belief of his choice. The Constitution does not define `religion' and reference to standard sources of the meaning of words indicates that there is not complete *383 agreement on even a definition of the term. Nor is it the function of the court to consider the merits or fallacies of a religion or to praise or condemn it, however excellent or fanatical or preposterous it may be. Whether one is right about his religion is not a subject of knowledge but only a matter of opinion.
"It is sufficient here to say that one concept of religion calls for a belief in the existence of a supreme being controlling the destiny of man. That concept of religion is met by the Muslims in that they believe in Allah, as a supreme being and as the one true god. It follows, therefore, that the Muslim faith is a religion." Fulwood v. Clemmer, 206 F.Supp. 370, 373 (D.D.C.1962).
The record in this case amply reflects the tenets, such as they are, of the Church of the New Song and the Eclatarian faith. The Eclatarian faithful worship a divine and universal spirit which they identity as "Eclat" and which they believe manifests itself in all animate and inanimate objects. Since each person is thought to possess some of this universal spirit, the Eclatarians believe that loneliness may be overcome and true brotherhood achieved if people became more conscious of Eclat. Petitioners have their own Eclatarian Bible, their own Eclatarian newsletter ("The Leaves"), their own religious nomenclature, and various other religious paraphernalia. A number of inmates testified before this court that Theriault and his teachings have had a positive, rehabilitative effect upon their lives and have inspired them religiously. This court is not unmindful of the very real possibility that petitioners are still engaging in a "game" and attempting to perpetrate a colossal fraud upon both this court and the federal prison system. Nevertheless, with all due respect to respondents, the court cannot declare petitioners' religion illegitimate.
Respondents contend, however, that even if the Eclatarian faith is not illegitimate, they need not permit its free exercise in prison because Theriault and his followers are violent and threaten the security of the prison. Certainly if respondents could show that a compelling and substantial public interest required the subjugation of petitioners' First Amendment rights, they would prevail. Walker v. Blackwell, 411 F.2d 23 (5th Cir. 1969) ("Walker II").[10] But the burden upon respondents is heavy, and a cursory review of the Black Muslim cases reveals how very heavy that burden is.
In Cooper v. Pate, 324 F.2d 165 (7th Cir. 1963), a state prisoner had filed a civil rights claim alleging that he was confined in punitive segregation and deprived of religious rights because he was a Black Muslim, and the district court had dismissed the prisoner's petition. On appeal the Attorney General of the State of Illinois asked the Seventh Circuit to take judicial notice of certain social studies purporting to show that, "despite its pretext of a religious facade," the Black Muslim Movement was an organization dedicated to the overthrow of the white race and to the incitement of riots and violence inside *384 prison walls. The Attorney General also asked the court to take judicial notice of an official police study which documented numerous acts of violence committed by members of the Black Muslim Movement in a variety of state and federal prisons, including the Atlanta federal penitentiary. The Seventh Circuit agreed to take judicial notice of these studies and affirmed the lower court's dismissal of the petition. The Supreme Court reversed and held that the petition stated a valid cause of action. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964). On remand, the district court enjoined prison officials from denying the petitioner and other Black Muslim prisoners the right to communicate with and visit ministers of their faith and the right to attend religious services conducted by them. The Seventh Circuit affirmed. Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967).
Similarly, in Long v. Parker, 384 U.S. 32, 86 S.Ct. 1285, 16 L.Ed.2d 333 (1966), the Supreme Court vacated the judgment of a district court, which had been affirmed by the Third Circuit, dismissing the petition of a Black Muslim prisoner at the federal penitentiary in Lewisburg, Pennsylvania who complained of the deprivation of religious rights. On remand, the district court denied relief and relied on its decision in Desmond v. Blackwell, 235 F.Supp. 246 (M.D.Pa.1964). In Desmond the district court found that Black Muslim meetings were devoted to the doctrine of hate, that those attending such meetings referred to staff as "monsters of inferior intelligence," "devils," and "skunks," that the supervision of such meetings caused a depletion in the staff force and made it less available for other duties, that militarily-trained prisoners known as the Fruit of the Islam stood guard at the entrance to the meetings, that some Black Muslims assaulted and stabbed another prisoner in order to induce him to join their faith, and that when disciplinary action had to be taken against one member of the group the entire membership approached the control center of the institution and demanded his release from administrative segregation. On appeal, however, the Third Circuit vacated the judgment of the district court and remanded the case for further proceedings. Long v. Parker, 390 F.2d 816 (3d Cir. 1968). The court found that the district court's reliance on Desmond was misplaced and that:
"Mere antipathy caused by statements derogatory of, and offensive to the white race is not sufficient to justify the suppression of religious literature even in a prison. Nor does the mere speculation that such statements may ignite racial or religious riots in a penal institution warrant their proscription." At 822.
No one has testified that the Church of the New Song preaches hate. There was evidence that Theriault kicked a prison official, destroyed government property, threatened security officers,[11] and sent vile letters to a federal district judge in Illinois.[12] However, in view of the Black Muslim cases, this court cannot say on the basis of this evidence that Theriault or his group are so menacing that they should not be allowed to freely exercise their religion.
The court finds that respondents have failed to show a sufficiently compelling *385 public interest requiring the subjugation of petitioners' First Amendment rights.[13]Walker II, supra. Accordingly, it must grant petitioners appropriate relief so they may freely exercise their rights within the context of a prison community.
1. Religious activities
This court interprets the First Amendment as guaranteeing the right of federal prisoners who share a common religion to gather for devotional meetings and to study the teachings of that religion. This right cannot be denied the members of the Church of the New Song. Since respondent Carlson has already promulgated a detailed policy statement Bureau of Prisons Policy Statement 7300.43A concerning the religious rights of federal prisoners, the court need only order him to direct prison authorities to apply that policy to petitioners.
Policy Statement 7300.43A authorizes the scheduling of worship services, religious activities, and meetings of a religious nature "with reasonable frequency" for all committed offenders under supervisory procedures established by the warden. It also directs the prison chaplains to allocate a proportionate share of the funds they receive to meet the religious needs of interested faith groups. Thus, for example, the Black Muslims at the Atlanta penitentiary are given meeting space and permitted to meet twice weekly. Respondent Beane, who serves as their advisor in religious matters, reproduces religious material for the Muslims on institutional equipment, permits them the use of a tape recorder, and coordinates the purchase of various religious books from the funds of the institution. Bethea v. Daggett, 329 F.Supp. 796 (N.D.Ga.1970), aff'd. 444 F.2d 112 (5th Cir. 1971). This is not to say, of course, that respondents must pay for all the printing petitioners seek or that the members of the Church of the New Song may collect "tithes" to fund their own activities. As in other areas, prison officials should wisely use their discretion in the handling of these matters.
Since there are no ministers of the Eclatarian faith outside prison walls, prison authorities may not disqualify Theriault from leading religious services for his Church. See Bethea v. Daggett, supra. This does not mean Theriault is to be treated as a privileged person; he has no more "right" to a beard than any other inmate. Brooks v. Wainwright, 428 F.2d 652 (5th Cir. 1970); Brown v. Wainwright, 419 F.2d 1376 (5th Cir. 1970). And while Theriault may preach the doctrines of his faith including the "Eclatarian Demandate of Natural Rights" at his religious gatherings, any proclamations by him urging violence, riots, or insurrection, may be suppressed by prison authorities and may afford the authorities with a sufficient reason to discontinue the activities of the Church of the New Song. Knuckles v. Prasse, 302 F.Supp. 1036 (E.D.Pa.1969), aff'd. 435 F.2d 1255 (3d Cir. 1970), cert. denied, 403 *386 U.S. 936, 91 S.Ct. 2262, 29 L.Ed.2d 717 (1971).
2. Religious Correspondence
The Fifth Circuit has held that Black Muslims and other federal prisoners may correspond with their religious leaders for spiritual guidance and advice. Walker II, supra. It follows that members of the Church of the New Song may correspond with their religious leader Theriault for spiritual guidance and spiritual advice.
Of course, prison authorities may ascertain the contents of such correspondence to make certain that what is sought is spiritual guidance and spiritual advice. However, they may not simply characterize all correspondence of the members of the Church of the New Song as "nonreligious" because of their subjective evaluations of the Eclatarian faith.
Theriault has no "right" to correspond with famous personalities to solicit funds for his Church. Such correspondence falls outside the scope of First Amendment protection and may be controlled by prison officials in the customary manner. Shack v. Wainwright, 391 F.2d 608 (5th Cir.), cert. denied, 392 U.S. 915, 88 S.Ct. 2078, 20 L.Ed.2d 1375 (1968).
3. Punishment for Religious Activities
This court has found as fact that Theriault was placed in punitive segregation at Marion on April 1, 1971 solely to prevent him from holding religious services for himself and his followers. He remained in punitive segregation thereafter and upon his transfer to Atlanta for the hearings before this court he was summarily placed in punitive segregation, where he is today.
Since the Marion authorities unconstitutionally denied Theriault his First Amendment rights and confined him in punitive segregation solely because he sought to exercise those rights, his present confinement in punitive segregation is unlawful and he must be restored to the general prison population. Cooper v. Pate, 382 F.2d 518 (7th Cir. 1967); Howard v. Smyth, 365 F.2d 428 (4th Cir. 1966), cert. denied, 385 U.S. 988, 87 S.Ct. 599, 17 L.Ed.2d 449 (1966).[14]The court reiterates that authorities may take whatever disciplinary measures are necessary including the imposition of punitive segregation if Theriault or his group begin to preach insurrection or violence or if they violate institutional rules and regulations requiring punishment subsequent to the date of this opinion and order.
4. Other Matters
Petitioners have raised four other issues which the court finds are unrelated to the central claim. They pray for:
(1) The right to give legal advice to all members of their faith:
(2) The right, at disciplinary hearings, to:
(a) a written copy of the charge,
(b) a hearing before an impartial official,
(c) cross-examine accusers, call witnesses, and have legal counsel or counsel substitute, and
(d) written decisions with specific findings and supporting conclusions;
(3) The right to subscribe to and receive an Atlanta weekly publication called "The Great Speckled Bird"; and
(4) The right to freely communicate with the press and the publishing media.
There has been no showing that respondents have prevented inmates whether they be members of the Church of the New Song or not from *387 furnishing legal assistance to other inmates in contravention of Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L. Ed.2d 718 (1969), and Wainwright v. Coonts, 409 F.2d 1337 (5th Cir. 1969). Of course, prison officials may regulate the legal activities of inmates and petitioners have not shown that respondents have arbitrarily or capriciously regulated their legal activities. See Arey v. Peyton, 378 F.2d 930 (4th Cir. 1967).
This court is aware that some recent decisions dealing with state prisons have granted the procedural due process rights sought by petitioners. E. g., Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971); Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal.1971). Nevertheless, the court finds itself in agreement with the observation of the Second Circuit that the federal prisons already afford inmates due process in disciplinary hearings (see Bureau of Prisons Policy Statements 7400.6A) and that those procedural rights which are not afforded are not constitutionally mandated. See Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), petition for cert. filed, 40 U.S.L.W. 3170 (U.S. Aug. 18, 1971) No. 71-246).
No evidence was adduced at the hearings that petitioners ever requested "The Great Speckled Bird" or that such requests, if made, were denied. Petitioners do not contend that this publication is a religious newsletter of the Church of the New Song and no "free exercise" issue is involved. Cf. Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968). Prison officials may make reasonable regulations as to the circulation of magazines and newspapers and this court will not interfere with such administrative matters. Royal v. Clark, 447 F.2d 501 (5th Cir. 1971).
Finally, the court notes that Bureau of Prisons Policy Statement 1220.1A (February 11, 1972) now permits federal prisoners full access to the news media through the Prisoners Mail Box. The court also notes that under Bureau of Prisons Policy Statement 7300.46 federal prisoners may submit manuscripts for publication so long as they do not deal with the details of the author's life, other inmates, criminal careers, and matters currently in litigation, and so long as they do not jeopardize the security and discipline of federal prisons. The court does not find the limitations in Policy Statement 7300.46 unconstitutional and will not interfere with it. Royal v. Clark, supra.
ORDER
For the foregoing reasons petitioners' petition for injunctive and other relief is granted in part and denied in part. It is granted in part as follows:
(1) Respondents Hanberry and Beane are enjoined from preparing or submitting oral or written reports to other staff members of the Atlanta federal penitentiary concerning the religious activities of individual inmates at that penitentiary;
(2) Respondent Carlson and respondent Silber are ordered to direct prison authorities under their jurisdiction to grant petitioners the right to freely exercise their religion, including the right to correspond with petitioner Theriault for the purpose of seeking spiritual guidance, as regulated by Bureau of Prisons Policy Statement 7300.43A and in accordance with the opinion of this court;
(3) Respondent Henderson is hereby ordered to immediately release petitioner Theriault from confinement in punitive segregation and restore him to the general prison population; and
(4) Respondent Carlson is hereby ordered to instruct prison authorities under his jurisdiction that they may not re-impose confinement in punitive segregation upon petitioner Theriault unless Theriault violates an institutional rule or regulation requiring such confinement subsequent to the *388 date of this opinion and order or incites riot or insurrection during the conduct of his religious activities subsequent to the date of this opinion and order.
In all other respects it is denied.
It is so ordered.
NOTES
[1] Theriault testified that he derives his authority to be "Bishop of Tellus" (Bishop of the Earth) from the Book of Revelations of the New Testament. Chapter 3, Verse 3 of the Book of Revelations states:
"Remember then what you received and heard; keep that, and repent. If you will not awake, I will come like a thief, and you will not know at what hour I will come upon you." (Emphasis added.)
Theriault, who is incarcerated for robbery, claims that he is that "thief".
[2] Theriault testified that the name of the Church is derived from the "new song" that the younger generation is now singing as well as from the "new song" of the new era described in the Book of Revelations, 5:9 and 14:3 ("... and they sang a new song.").
[3] According to Theriault, Eclat is the "new name" of the divinity referred to in the Book of Revelations, 3:12. The Eclatarian faithful, aside from one secretary, are to be found only in the federal penitentiaries of Atlanta and Marion.
[4] The text of the chaplain's letter to Rev. Silber is as follows:
"FREDERICK SILBER, 25 Sept 70
DIRECTOR OF CH. SERV.
BUREAU OF PRISONS,
WASHINGTON, D. C.
WILLIAM G. EZELL,
PROTESTANT CHAPLAIN,
U. S. PENITENTIARY,
MARION, ILLINOIS
RECOGNITION OF CHURCH
GROUPS
As you know, Harry Theriault, #90987, was transferred to Marion from the Atlanta penitentiary. He represents himself as a Bishop in the Church of the New Song.
His initial moves to have use of the chapel, distribute literature and hold study classes have been denied. The reason for such denial is that he is not recognized as a church. He now comes with a letter addressed to a Universal Life Church in Modesto, California requesting a church charter, etc. It is reported that he has this kind of charter for the church he had in the penitentiary in Atlanta. There are no doubt `diploma mills', etc., who for fees or favors would send him the necessary papers and documents. We will have a check by a probation officer in this area made on this particular man and church.
When Theriault is denied one place, he goes another. He has some of our staff involved now in his requests for recognition. There is little question that if we deny his efforts to secure documents that there will be writs, etc. Therefore, if you have previous experience in similar cases or could advise us it would be appreciated. Also, we want to advise you of this case so you would not be unaware.
The move with him has been made with diplomacy and while it is not an emergency, it could develop. Any help in this matter would be appreciated.
WGE: kw"
[5] The text of the memorandum is as follows:
"SUBJECT: Theriaults activities and organization of inmates. (XXXXX-XXX)
During the past quarter in `F' unit, I have observed Theriaults activities, both in and out of the unit. Following is a listing of incidents and observations that has led me to believe he has formulated a strong, radical power structure in this institution and others. Also, it would not be hard to believe, he may have some followers on the outside.
Theriault has organized a group called `The New Church of World Song' or something similar to this. He is the leader and members address him as the Bishop. Others have been ordained as ministers by him. I have no idea, as to how large this organization might be. Some investigation would reveal this.
Kessler 1707-135, E-B-10, attempted to assist Theriault in his duties as F orderly, a few weeks ago. Both were warned and Kessler sent out of the unit. This time I was informed Kessler was one of his ministers and as such should be allowed to assist him.
Theriault was greatly upset, when Gomez F-C-18, was taken to H unit the first time and became very inquisitive after informing me this was another of his ministers and seemed to convey to me that he should be given this information because he was Gomez Bishop.
He has constantly kept occupied, writing writs and other legal papers for the inmate population. This seems to be a very big business, that occupies most of his time.
Arnold from I unit recently made an attempt to assist in the orderly work and again both were warned. Minshew F-A-9 has assisted Theriault on a few occasions, before being assigned to the Food Service detail.
Mr. Tremper returned some papers to him recently, advising him they could not be sent out. He immediately asked me to call Mr. Keohane. I complied and was advised that Mr. Edmonds was in charge that day. Mr. Edmonds would not give Theriault permission to send the papers out. Theriault became very upset and proceeded to say this was a conspiracy to prevent him from mailing this material. He proceeded to use several colorful adjectives to describe Mr. Edmond to Welty F-A-8. I advised him to be careful in using these terms in relation to staff members. His comment was `Freedom of speech, man.' During the discussion, Welty advised him, the matter should be taken to the Warden and not mess with these people.
Theriault became quiet frustrated after not being allowed to visit Alderisio XXXXX-XXX in the hospital (12-10-70). He seemed to think regulations does not apply to him as one befitting his position.
I was told he held a meeting in the V.T. building (12/11/70), with several members of his group. This can be verified by the Supervisor of the evening watch and the V.T. officer. He left the unit 12/12/70 with a Bible. I believe he conducted a meeting somewhere on this date. This would need some checking. Gomez attempted to attend Mr. Sumners group on this date but suddenly changed his mind. He seemed to have some purpose in checking the group.
I have observed Cappola 1642-135, Heard, Kolburg XXXXX-XXX and several other inmates, either contacting or being contacted by Theriault.
Considering these incidents and other information gathered during these past days, I feel Theriault has shown great disregard for the institutional authority and regulations and has went about setting up this organization, with him as the central power figure, utilizing the talents of several key figures as ministers. This group has members of all races and has the characteristics of an extremist group on the far left, completely against the system (whatever it may consist of) and will let nothing stop or stand in its way.
It is my opinion, that if something is not done to control the activities of Theriault, we will have an incident in the near future causing damage to the institution proper or injuries to personnel to compel agreement to the groups demands."
[6] The text of the report prepared by Culley on the incident is as follows:
"At approximately 5:30 p m this evening Theriault approached Mr. J. White C/S and myself in the east corridor and demanded a place to hold a religious service. I explained to him that to hold a meeting of a religious nature he would have to obtain approval of the Administration by working through the Chaplain. He would not accept this as an answer to his question or demand. At this time he appeared to be getting emotional, so I asked him to step into the office and we would discuss the matter.
"To take away the opportunity of Theriault creating an incident, if he so desired, I kept him in the office until the evening yard was closed and we had began to count.
"During our talk in the office, Theriault still demanded to be permitted to worship his lord in a place where other inmates could come if they so desired.
"He stated he would hold his services and if I attempted to break it up, I would have to resort to violence because no one would leave if I instructed them to leave. As Theriault left the office for count he commented, I will do what I feel I have to.
"As a preventive measure toward any type of incident taking place as he indicated, I placed him in H-Unit immediately after count before the general population was released for evening activities.
"Theriault offered no resistance during the move. He asked if this was my decision or had I called someone. I told him it was mine. He then stated, `Can't we come to an understanding, I didn't say I was going to do it tonight.' He further stated that he would do as I instructed.
"In H-Unit Theriault refused to remove his clothing for a shakedown. It was very clear that he wanted the staff to man-handle him. His pockets were emptied, belt removed and he was given a very thorough frisk shakedown. To assure the chance of contraband not being introduced into the unit, Theriault was placed in a closed front cell.
NOTE: At approximately 9:00 p m I visited with Theriault in H-Unit. I asked if he was willing to submit to a strip shakedown. He stated, `I am not playing your silly games and if you try something there will be violence.' I advised him again why he was in the closed front cell and if he submitted to the shake-down I would move him to the front at this time. He would not have anything to do with the request.
/s/ JC"
[7] That night Theriault destroyed part of his H-Unit cell and the next day both kicked and threatened a security officer.
[8] On October 28, 1971, prior to Theriault's transfer to Atlanta, the Special Intelligence Supervisor at the Atlanta penitentiary circulated a memorandum advising all staff that Theriault was to be placed in segregation upon his reception at Atlanta and was not to be removed from segregation without the approval of the Associate Warden Controls. When Theriault was received back at Atlanta on November 6, 1971, he was placed in the Segregation Unit in accordance with the October 28th memorandum.
[9] It appears also to run afoul of Policy Statement 7300.43A of the Bureau of Prisons which was issued by respondent Carlson. That Statement commits the Bureau to extending the greatest amount of religious freedom possible within a prison context to committed offenders, and assisting them in the practice of "the religion of their choice." Nowhere in that Statement is there an indication that only "recognized" religions can be practiced.
[10] This same standard has been applied in cases dealing with state institutions. E. g., Brown v. Peyton, 437 F.2d 1228 (4th Cir. 1971). In Long v. Parker, 390 F.2d 816 (3d Cir. 1968), and Banks v. Havener, 234 F.Supp. 27 (E.D.Va.1964), however, a "clear and present danger" test was enunciated. In a thoughtful note, Judge Higginbotham has suggested that the "clear and present danger" test might be inapplicable in the context of a prison community and that a less rigorous "clear and probable danger" test might be more appropriate so that prison officials need not suffer a catastrophic riot in order to create a factual record sufficient to justify the imposition of restraints. Knuckles v. Prasse, 302 F.Supp. 1036, 1048-1049 (E.D.Pa.1969). aff'd 435 F.2d 1255 (3d Cir. 1970), cert. denied, 403 U.S. 936, 91 S.Ct. 2262, 29 L.Ed.2d 717 (1971).
Judge Higginbotham's observations have much appeal. However, in the instant case, this court concludes that respondents have not even shown a clear and probable danger emanating from Theriault or the Church of the New Song.
[11] Prison officials from Marion testified that Theriault's threats caused them to fear he and his group might engage in violent and disruptive actions, and they characterized Theriault as a serious security risk. However, in response to questions from the bench, these officials admitted that they would characterize all the inmates at Marion as serious security risks, and that regular worship services are held at Marion for these inmates.
[12] It is a federal offense to send any mail which threatens to injure the person of the addressee. 18 U.S.C. § 876 (1970). A person who commits this offense is liable to a $10,000 fine or up to five years in prison. The vile letters which Theriault sent to the judge were brought to the attention of the warden at Marion and respondent Carlson. Nevertheless, the letters were apparently not deemed sufficiently threatening to warrant criminal prosecution.
[13] The issues involved in this case might also be cast in an "equal protection" setting. Although the instant case involves a federal penal institution and the actions of federal employees so that the Equal Protection Clause of the Fourteenth Amendment is inapplicable, the Supreme Court has read "equal protection" notions into the Due Process Clause of the Fifth Amendment (which does apply to the federal government) and has held that federal action may be so discriminatory as to be violative of due process. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).
Nevertheless, since this court finds ample room within the Free Exercise Clause to cover the issue in this case (see Brown v. Peyton, supra) and since the Supreme Court itself has warned that the "equal protection" and "due process" concepts may not be always interchangeable (Bolling v. Sharpe, supra at 499, 74 S.Ct. 693), the court will rest its conclusions on the First Amendment.
[14] There is no basis in the record to support Theriault's claim that he was transferred to Marion in 1970 solely because he filed his petition in this court. Had there been such a basis, the court might have branded the transfer an abuse of administrative discretion. Cf., Lawrence v. Willingham, 373 F.2d 731 (10th Cir. 1967).
|
540 U.S. 974
JOHNSON, AKA MILLNERv.UNITED STATES.
No. 03-6335.
Supreme Court of United States.
October 20, 2003.
1
Appeal from the C. A. 3d Cir.
2
Certiorari denied. Reported below: 66 Fed. Appx. 320.
|
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1317
State of Minnesota,
Respondent,
vs.
John Paul Warzecha,
Appellant.
Filed June 15, 2015
Affirmed
Minge, Judge
Mille Lacs County District Court
File No. 48-CR-12-1806
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and
Joe Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Minge,
Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
MINGE, Judge
Appellant John Warzecha was convicted of third- and fourth-degree criminal
sexual conduct for actions perpetrated against K.G. Appellant asserts that the prosecutor
committed misconduct during her closing statement by disparaging appellant’s consent
defense. Because the prosecutor did not commit plain error, we affirm.
FACTS
On August 18, 2012, K.G. and some friends walked to Muggs, a local bar in
Wahkon, Minnesota. K.G. testified that appellant, whom K.G. had never met, approached
her at Muggs, offered her a hundred dollar check, said: “This is to come home with me
tonight,” and that she told appellant to leave her alone. After Muggs closed, K.G. walked
to her apartment building with one of her friends.
K.G.’s apartment was small. The living room was divided by a curtain that had an
area that served as a makeshift bedroom. K.G. slept in this area. Her three teenage boys
slept in the regular bedroom. During the weekend of August 18-19, 2012, only K.G.’s
oldest son, 18-year-old B.G., was at the apartment. After K.G. arrived at her apartment,
she discovered that appellant had gone to the apartment building with some of her
friends, who also lived there, because he needed a place to sleep. After some discussion
among the friends, K.G. agreed to let appellant sleep on her couch in the living room
area. K.G. went into her makeshift bedroom area, and appellant stayed on the couch. B.G.
was in the boys’ bedroom listening to music with earphones.
2
K.G. testified that she awoke to appellant kissing her, that she told him to “go
away, to just stop,” but that appellant continued kissing her on the face and “further
down,” that appellant then removed the blankets and began performing oral sex on her,
that she told appellant to stop and attempted to scream, but that he covered her mouth
with a pillow, and that appellant penetrated K.G. with his fingers and penis. During this
incident having heard some unusual sounds, K.G.’s male friend from downstairs entered
her apartment, saw appellant in K.G.’s bed, and pulled him off K.G. Hearing the activity,
B.G. entered the living room. The male friend and B.G. pushed appellant out of the
apartment and forced him down the stairs and out to the parking lot. B.G. called the
police. K.G. was taken to a hospital where an examination was performed and a DNA
sample was taken. Minnesota Bureau of Criminal Apprehension test results later
disclosed appellant’s DNA was on K.G.’s face and neck.
Appellant disputes K.G.’s version of events. Appellant claimed that K.G.
approached him at Muggs on two different occasions. He denied writing her a check.
Appellant claims that K.G. invited him into her apartment and came from her sleeping
area in the middle of the night and tried to kiss him. Appellant insisted that any sexual
acts were consensual.
The state charged appellant with third- and fourth-degree criminal sexual conduct.
Appellant pleaded not guilty and the matter proceeded to trial. The jury found appellant
guilty and the district court imposed a 74-month prison sentence. This appeal followed.
3
DECISION
The issue on appeal is whether certain unobjected-to statements by the prosecutor
constituted such misconduct as to call for reversal. In reviewing claims of unobjected-to
prosecutorial misconduct, we apply a modified four part plain-error test. State v. Ramey,
721 N.W.2d 294, 298-99 (Minn. 2006). To establish plain error, appellant must first
prove that the prosecutor’s conduct constituted error and second that the error was
plain—that is, “[it] contravenes case law, a rule, or a standard of conduct.” Id. at 302.
Then, if appellant satisfies his burden, the third prong requires the state to prove that the
error did not affect appellant’s substantial rights. Id. The state must show there is no
reasonable likelihood that the absence of the misconduct would have a significant effect
on the jury’s verdict. Id.; see State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998) (noting
that an error affects substantial rights when it is “prejudicial and affect[s] the outcome of
the case”). If all of the first three prongs are met, the fourth prong requires that the
reviewing court assess whether the error must “be addressed to ensure fairness and the
integrity of the judicial proceedings.” Ramey, 721 N.W.2d at 302. Ultimately, we will
reverse a conviction “only if the [prosecutorial] misconduct, when considered in light of
the whole trial, impaired [appellant’s] right to a fair trial.” State v. Powers, 654 N.W.2d
667, 678 (Minn. 2003).
Appellant asserts that the misconduct was statements by the prosecutor that
improperly disparaged his defense. Appellant points to the prosecutor’s statement “that
because ‘we have DNA . . . the defendant has to claim it was consensual. He can’t deny
4
he was there.’” This statement was contained in the following part of the prosecutor’s
closing argument:
He wants you to believe there are no eye witnesses, but there
were. There were witnesses that heard key important things.
[The friend downstairs] heard the muffled sounds and are
consistent with what [K.G.] told you, that the pillow was
being put over her mouth or that the [appellant] kept putting
his fists in her mouth to stop her from yelling out, and that
would be creating muffled sounds. [The friend] heard that. He
told the responding officer that initially on August 19th. He
told Deputy Barnes that a few days later, and [B.G.] also did
the same thing. [B.G.] heard his mom yelling out. She said
repeatedly [the friend’s] name, and he said when asked, was
she yelling? As you recall, he had his music playing, but he
said it definitely was not a conversational tone and that it was
repeated and obviously we have the DNA, so of course the
defendant has to claim it was consensual. He can’t deny he
was there.
Now, we have corroboration, corroboration to support
what [K.G.] is saying.
(Emphasis added.)
Appellant argues that these statements so disparaged his consent defense as to
deny him a fair trial. Appellant correctly argues that disparaging a defense can constitute
prosecutorial misconduct. State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993).
However, prosecutors may argue that a defense theory has no merit or is implausible in
view of the evidence offered at trial. Id.
Here, the prosecutor did not characterize appellant’s consent defense as a formula-
driven stock defense. Rather, the prosecutor’s statements suggested that appellant was
claiming consent because the strength of evidence presented at trial—the friend’s and
B.G.’s eyewitness testimony, along with the DNA test results—was enough to prove that
5
appellant engaged in a sexual act with K.G. In this setting, an obvious issue would be
whether appellant’s sexual contact with K.G. was consensual.
Although the prosecutor’s specific comment may have been direct and strong, it
was harmless because the comment was brief in light of the closing argument as a whole.
We review closing arguments in their entirety when determining whether prosecutorial
misconduct occurred. State v. Vue, 797 N.W.2d 5, 15 (Minn. 2011). Here, the
prosecutor’s closing argument spanned 15 pages in the trial transcript. Appellant
challenged a single phrase, which was minor with the prosecutor’s entire closing
argument. Moreover, consent was the central issue at trial. The jury heard evidence from
K.G., from the eyewitnesses that corroborated her testimony, and from appellant. In this
context, the prosecutor’s comment did not dismiss appellant’s consent defense, but
merely explained the parties’ arguments based on the developments in the investigation
of the incident and the evidence presented at trial. We therefore conclude that the
prosecutor did not commit plain error that affected appellant’s substantial rights or
impaired appellant’s right to a fair trial. Because the state met its burden, we do not
address prong four.
Appellant filed a pro se supplemental brief presenting eight alternative claims
without discussion or legal argument. None of the claims was presented to the district
court. We generally refuse to consider arguments that are not presented to and decided by
the district court, Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996), but exceptions may
be made for pro se criminal appellants. See Dale v. State, 535 N.W.2d 619, 624 (Minn.
1995) (considering pro se arguments raised on appeal).
6
Seven of appellant’s claims assert ineffective assistance of counsel. A defendant
has the right to effective assistance of counsel, which we examine under a two-prong
analysis. State v. Bobo, 770 N.W.2d 129, 137 (Minn. 2009). First, a “defendant must
show that counsel’s representation fell below an objective standard of reasonableness.”
Strickland v. Washington, 446 U.S. 668, 687–88, 104 S. Ct. 2052, 2064 (1984). We apply
“a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689, 104 S. Ct. at 2065. Second, a “defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068.
In reviewing appellant’s ineffective-assistance-of-counsel claims, we observe that
they focus on defense counsel’s trial strategy. We ordinarily “give trial counsel wide
latitude to determine the best strategy for the client.” State v. Nicks, 831 N.W.2d 493, 506
(Minn. 2013). “Particular deference is given to the decisions of counsel regarding trial
strategy. ‘Which witnesses to call at trial and what information to present to the jury are
questions that lie within the proper discretion of the trial counsel.’” State v. Lahue, 585
N.W.2d 785, 789–90 (Minn. 1998) (quoting State v. Heinkel, 322 N.W.2d 322, 326
(Minn. 1982)). When considering trial counsel’s performance in this case, appellant’s
claims are not persuasive and do not satisfy the two-prong analysis.
Appellant also claims that the district court abused its discretion by sentencing him
to 74 months. Generally, we will not “review a district court’s exercise of its discretion to
sentence a defendant when the sentence imposed is within the presumptive guidelines
range.” State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn.
7
July 20, 2010). Because the district court sentenced appellant within the range provided
in the applicable box on the sentencing guidelines’ grid and because appellant made no
showing of compelling reasons to depart from the presumptive range, we conclude that
the district court did not abuse its discretion when sentencing appellant to 74 months.
Affirmed.
8
|
346 B.R. 585 (2006)
In re Holly POIRIER, Debtor.
Holly Poirier, Plaintiff,
v.
Educational Credit Management Corporation, Defendant.
Bankruptcy No. 03-42421 JBR, Adversary No. 05-4063.
United States Bankruptcy Court, D. Massachusetts.
August 1, 2006.
*586 *587 Craig T. Ornell, Worcester, MA, for Debtor.
ORDER ON REQUEST OF THE DEFENDANT, EDUCATIONAL CREDIT MANAGEMENT CORPORATION, FOR THIS HONORABLE COURT TO TAKE JUDICIAL NOTICE AT THE TRIAL OF THIS MATTER
JOEL B. ROSENTHAL, Bankruptcy Judge.
This matter came before the Court on the Request of the Defendant, Educational Credit Management Corporation, For This Honorable Court to Take Judicial Notice at the Trial of This Matter [# 10] and ECMC's Supplemental Exhibits [# 14]. Specifically Educational Credit Management Corporation ("ECMC") requests that the Court take what ECMC describes as "judicial notice under Federal Rule of Evidence 201" of 29 enumerated requests and the various exhibits attached thereto as well as. two supplemental exhibits in this adversary proceeding to determine whether the Debtor's student loan is dischargeable.
Before addressing which of the enumerated "facts" the Court will judicially notice, it is important to distinguish between judicial notice of adjudicate facts, which is governed by Fed.R.Evid. 201, and judicial notice of the law, which is generally governed by the rules of procedure. Although ECMC frames its Request as judicial notice of adjudicative facts, the Request seeks judicial notice of both law and adjudicative facts.
Courts routinely take judicial notice of the law as set forth in federal and state constitutions, statutes, and court decisions. See generally Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 321 (1st Cir.2004)(concurring opinion by Judge Lipez). Moreover, judicial notice of the federal agencies' regulations that are required to be published in the Federal Register must be judicially noticed. 44 U.S.C. § 1507 ("The contents of the Federal Register shall be judicially noticed and without prejudice to any other mode of citation, may be cited by volume and page number.") A number of ECMC's requests fall directly under this category. Indeed much of what it asks the Court to notice is contained within the statutes and regulations governing various student loan programs, including repayment options. The relevant regulations of the Department of Education ("DOE") have been published in the Federal Register. Notice of the foregoing law is appropriate; it is the kind of notice courts take virtually everyday. It is not, however, to be confused with judicial notice of adjudicative facts.
Judicial notice of adjudicative facts is governed by Fed.R.Evid. 201. The Court is required to take judicial notice of adjudicative facts if a party requests it and *588 supplies the Court with the necessary information provided that the fact to be noticed is "not subject to reasonable dispute." That a fact is not subject to reasonable dispute can be established in one of two ways: it is either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201. It is the latter which ECMC argues supports a finding that the facts it is seeking to have judicially noticed, including the ultimate finding of what the Debtor's payments would be under each of the four repayment plans available through the William D. Ford Direct Loan Program.
The Court will take judicial notice as requested except and to the extent discussed below.
Request Nos. 2 and 3 will be addressed together and read as follows:
2. As a department of the United States Federal Government, the DOE maintains its own website which may be accessed at www.ed.gov.
3. ECMC submits that the accuracy of the information set forth within the DOE's own website may not be reasonably questioned and ECMC submits that this Court can readily take judicial notice of the DOE's website. See also Federal Rule of Evidence 902(5).
Although Exhibit A, which the Request identifies as a copy of the DOE webpage, may be an accurate representation of the DOE's website at the time the exhibit was printed, the website indeed changes. Although many of the links remained unchanged, the home page as viewed by the Court on 7/27/2006 is not identical to that attached by ECMC as Exhibit A, which appears to have been printed on 2/17/2006. The Court will take judicial notice that the DOE maintains a website at www.ed.gov., albeit that Internet address provides access to a DOE home page that is not fixed. Taking judicial notice of the "information" on the entire DOE website, however, is more problematic.
The Court acknowledges that courts take judicial notice of federal agencies' websites and the information on them, treating these websites as public records. "Courts have defined a public record to include published reports of administrative bodies. The fact that an agency report is `published' on the world wide web does not affect the Court's ability to take judicial notice of the contents of that report." In re Wellbutrin SR/Zyban Antitrust Litigation, 281 F.Supp.2d 751, 755 (E.D.Pa.2003)(taking judicial notice of certain drugs on FDA's list of new and approved drugs). See also McLaughlin v. Volkswagen of Am., Inc., 2000 WL 1793071, at *1 (E.D.Pa.2000)(taking judicial notice of National Highway Traffic Safety Administration's website description of vehicle recall); In re AgriBiotech Sec. Litig., 2000 WL 1277603, at *2, 2000 U.S. Dist. LEXIS 5643, at *4-5 (D.Nev. 2000) (taking judicial notice of official government documents available on the world wide web). Indeed, bankruptcy courts dealing with student loans cases appear to take judicial notice of the Department of Education's website, including the William D. Ford Direct Loan repayment program, the loan calculator, and the actual amounts debtors would be required to repay using the loan calculator, without actually discussing the issue of judicial notice. See, e.g., Cota v. U.S. Dep't of Education (In re Cota), 298 B.R. 408 (Bankr.D.Ariz.2003)(taking judicial notice of Department's interactive loan calculator *589 and amount debtor would be required to pay).[1]
Taking judicial notice of an agency's website and the information on it appears to be a relaxation of Fed. R. Evid 902[2] because, as noted, the home page, at least in this case, is not a constant. Moreover the DOE's website has links to many "documents" which are still part of the DOE website but contain more than can reasonably be called "official records," "reports," or a "publication issued by public authority." The website contains information on a wide range of topics such as emergency planning for a pandemic flu, teaching aids, surveys to rate user satisfaction with the DOE website, advice about career colleges and technical schools in addition to information about educational loans. The array of information is seemingly endless. Much of the material cannot be reasonably described as public record or official publication. See, e.g., http://www.ed.gov/news/opeds/edit/index.htm/?src=ln, a section of the DOE website at which various opinion pieces, editorials, and letters to editors are republished.
Given the breadth of Request No. 3, the Court denies this Request without prejudice.
Request No. 8. The DOE's website sets forth detailed information about the Ford Program. (ECME cites www. ed. goy/offices/OSFAP/DirectLoan and attached a copy of what it identifies as the DOE web page with the Ford Program information as Exhibit B).
The DOE's website at www.ed.gov/offices/OSFAP/DirectLoan provides information about the Ford Program. Whether it's "detailed" may be a matter of what ECMC means by "detailed." The Court will take notice that the DOE's website provides information about the Ford Program without determining whether such information is "detailed."
Request No. 10. Congress established the calculations for determining monthly repayment amounts and terms for the Ford Program Standard Plan, Extended Plan, Graduated Repayment Plan, and Income contingent Repayment Program at 34 CFR 685.208 and 34 CFR 685.209.
Congress did not establish the "calculations." Congress established the DOE and the parameters set forth in 20 U.S.0 § 1087e(d) but vested the responsibility for drafting regulations that may affect the *590 calculation of the monthly repayment amount in the Secretary. See, e.g., 20 U.S.C. § 1087e(e)(5)("The balance due on a loan made under this part that is repaid pursuant to the income contingent repayment shall equal the unpaid principal amount of the loan, any accrued interest, and any fees such as late charges, assessed on such loan. The Secretary may promulgate regulations limiting the amount of interest that may be capitalized on such loan, and the timing of such capitalization.") (Emphasis added).
Requests Nos. 13, 14, and 15 ask the Court to take notice of the interactive loan calculator which may be accessed on the DOE's website.
Request No. 13. The DOE's website provides a calculator that automatically calculates the monthly repayment amounts and terms for the four consolidation options offered under the Ford Program and as required by Congress in 34 CFR 685.208 and 685.209. See http://www/ed.gov/offices/OSFAP/Direct-Loan/calc.html
Request No. 14. At the top of the DOE calculator web page a borrower inputs the type of student loan that the borrower has, amount due on the loan, and the interest rate on the loan, and then clicks "Add" on the webpage, at which point the loan information is entered into the DOE webpage for calculation.
Request No. 15. The borrower then clicks "Consolidate Loan Amount" which is in the middle of the DOE web page, at which point the DOE calculator provides monthly payment amounts and terms for consolidation under the Ford Program Standard Plan, Extended Plan, and Graduated Payment Plan.
Assuming that a debtor knows and inputs all of the necessary information, following the above steps yields numbers that purport to be the repayment terms under the repayment plans. The repayment terms obtained via such method, however, come with the following caveat: "Calculations are estimates. Values may not reflect the actual amount computed by the direct loan servicing center." Thus to the extent ECMC is asking the Court to take judicial notice that the repayment terms obtained by using the interactive calculator available on the DOE's website are accurate, the Request is denied. The Doe's website, itself, acknowledges such numbers are merely estimates.
18. The payment amounts and percentage factors for determining the Income Contingent Repayment Option are adjusted annually by the United States Department of Education and also factor in the annually adjusted Federal HHS Poverty Guidelines. See 34 CFR 685.209.
There are annual adjustments. ECMC has not demonstrated that the loan calculator is updated to reflect the annual adjustments nor when such adjustments occur and the Court will not assume that the interactive loan calculator is current, especially in view of the website's caution that calculations obtained using the interactive calculator are estimates.
Request No. 22. The Debtor in the case at bar has one (1) Federal Consolidation loan, which loan is eligible for consolidation in the DOE Ford Loan Program. See DOE website http://www.ed/gov/offices/OSFAP/Direct-Loan/calc.html (Exhibit F) and click "Choose Loan Type" at the top of the web page which confirms that a Federal Consolidation loan is eligible for consolidation with the Ford Program.
The Debtor does not allege what kind of loan it is in the complaint. The *591 Joint Pretrial Memorandum states: "ECMC holds one Federal consolidation loan of the Plaintiff . . ." Moreover the attachment which ECMC states is a copy of the relevant promissory note is illegible. "The Debtor's "Application/Promissory Note Consolidation Loan," which is the first page of Exhibit H simply refers to the loans the Debtor is consolidating as "all CityBank Loans."
Section 1087e designates loans "under this part," that is the William D. Ford Direct Loan Program as:
Federal Direct Stafford Loans;
Federal Direct PLUS Loans;
Federal Direct Consolidation Loans; and
Federal Direct Unsubsidized Stafford Loans.
Because the word "direct" is missing from the description of the loan the Pretrial Memo, ECMC has failed to supply the Court with the information necessary to take judicial notice of this fact as required by Fed.R.Evid. 201 and thus the Request is denied.
Request No. 23. A copy of the Debtor's Federal Consolidation loan promissory note is attached hereto as Exhibit H
Exhibit H is illegible. The Request is denied.
Request No. 24. Per 34 CFR 685.220(b)(15) a Federal Consolidation Loan is eligible for consolidation into the Ford Program. 34 CFR 685.220 is contained within the Federal Register at 59 FR 61690, Dec. 1, 1994. Redesignated and amended at 64 FR 58969, 58970, 59044, Nov. 1, 1999; 65 FR 37045, June 13, 2000. Redesignated at 65 FR 65629, Nov. 1, 2000, as amended at 66 FR 34765, June 29, 2001; 67 FR 67082, Nov. 1, 2002; 68 FR 75430, Dec. 31, 2003.
Per 34 CFR 685.220(b)(15) a Federal Consolidation Loan is eligible to be consolidated into a Direct Consolidation Loan and thus ECMC's statement of the law, as far as it goes, is correct. Per 34 CFR 685.220(c)(3), a Federal Consolidation Loan is also eligible to be consolidated into a Direct Unsubsidized Consolidation Loan and a Direct Subsidized Consolidation Loan if certain eligibility criteria are met.
Request No. 26. As of April 14, 2006 the Debtor owed $70,385.54, on her ECMC held student loan, with a per diem of $14.57. (ECMC attaches as Exhibit J a one page document with no letterhead and is of unknown origin.)
In the Pretrial Memo, the Debtor reserves the right to challenge the amount ECMC claims is owed. In her trial memo the Debtor argues the amount owed as $69,864.59. The Court will not take judicial notice of the amount of the loan because Fed. R. Evid 201 is not satisfied.
Request No. 27. Per the information provided herein by the Debtor, the Debtor is not married, has a total family size (including herself) of two, and had a taxable income of $240.00 a month, amounting to an approximate annual adjusted gross income of $2,880,00.
ECMC cites to Debtor's responses to Interrogatories, attached as Exhibit K, as support for this finding. The Debtor's Answer 3(E) states that she earned "$60 weekly (2005). . . ." She does not state how many weeks she worked. Therefore the Court cannot assume that annualizing her weekly income gives an accurate indication of what her annual adjusted gross income was and cannot take judicial notice as ECMC has not met its burden under Fed. R.Evid. 201.
Request No. 28. Entering the information concerning the loan amount and the Debtor into the DOE website calculator *592 produced the attached DOE repayment schedule for the Debtor's student loans under the Ford Program Standard Plan, Extended Plan, Graduated Repayment Plan, and Income Contingent Repayment Plan.
ECMC attaches its calculations as Exhibit L. The calculations are meaningless as they are based on unsubstantiated premises about the Debtor. It may be that ECMC will be able to establish the necessary information at trial but that information is not currently before the Court.
Request No. 29. According, ECMC requests that at the trial of this matter this Honorable Court take judicial notice of the: 1() DOE produced repayment schedule for the Debtor's payments under the Ford Program; 2() the existence of the United States Department of Education as a department of the United States Federal Government; 3() the website for the United States department of Education; 4() the William D. Ford Direct Loan Repayment Program as enacted by Congress pursuant to 20 U.S.C. § 1087a, et seq. and contained with [sic] the code of federal regulations at 34 CFR 685, sections 685.100 through 402; 5() any matter referenced herein that is contained within the Federal Register; 6() the federal 2006 Department of Health and Human Services (HHS) Poverty Guideline; and 7() all of the attachments hereto as this Honorable Court deems proper.
For the reasons set forth above the Court will not take judicial notice of 1(), and, with respect to 7(), will not take judicial notice of the attachments which purport to accurately reflect the amounts the Debtor would pay under any of the four repayment plans available under the William D. Ford Loan Program.
Following the filing of its Request, ECMC filed its Supplemental Request asking the Court to take judicial notice of the following two "facts."
Request A. Exhibit M is a United States Department of Education produced repayment schedule in which the Debtor's adjusted gross income is $8,133.00 and shows an income contingent repayment figure of zero (-0-) dollars per month.
Request B. Exhibit N is a United States Department of Education produced repayment schedule in which the Debtor's adjusted gross income is $13,000 and shows an income contingent repayment figure of five ($5.00) dollars per month.
ECMC does not identify who at the DOE produced Exhibit M but it appears the exhibit was done using the website's loan calculator. ECMC apparently bases these new calculations on statements in the Debtor's trial memorandum that her 2004 income was approximately $8,133.00 and the her 2005 income was approximately $13,000, and the list of the Debtor's monthly expenses. income was approximately 2005. As with the use of her 2004 income, there is nothing to say that the income is adjusted. For the reasons set forth above, including the fact that the principal balance is in dispute, ECMC has not met its burden under Fed.R.Evid. 201 and thus the Court will not take judicial notice of these calculations.
NOTES
[1] In Cota it appears that the Department did not offer any witnesses. In fact the Court stated that "ECMC's counsel did not know which of the William D. Ford programs the debtors might qualify for, but suggested that they would probably be eligible for the Income Contingent repayment Plan (IRC). ECMC's counsel further suggested that under the IRC, due to the large number of dependants, the Debtors would probably not currently have to make any payments on the Student Loan Obligation." Id. at 414.
[2] Rule 902 deals with self-authentication and provides in part:
Extrinsic evidence of authenticity as a condition precedent to admissibility is notrequired with respect to the following:.
(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilation in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of the rule or complying with any Act of congress or rule prescribed by the supreme Court pursuant to statutory authority.
(5) Official Publications. Books, pamphlets, or other publications purporting to be issued by public authority.
|
97 Mich. App. 532 (1980)
296 N.W.2d 94
REGENTS OF THE UNIVERSITY OF MICHIGAN
v.
WASHTENAW COUNTY COALITION AGAINST APARTHEID
Docket No. 44729.
Michigan Court of Appeals.
Decided May 19, 1980.
Davis & Fajen (Roderick K. Daane, General Counsel, University of Michigan, of counsel), for plaintiff.
O'Brien, Moran & Dimond, for defendant.
Before: M.J. KELLY, P.J., and D.F. WALSH and BEASLEY, JJ.
M.J. KELLY, P.J.
Defendants appeal as of right from a declaratory judgment and order denying injunctive relief issued in Washtenaw County Circuit Court on April 11, 1979.
The Regents of the University of Michigan (the Regents), the governing body of that educational institution, is a Michigan constitutional corporation having substantial holdings in corporations which do business in South Africa. The Washtenaw County Coalition Against Apartheid (WCCAA) is an unincorporated voluntary association composed of unnamed officers and members (designated as John Doe, through 50, and Mary Roe, through 50), university students and others who are opposed to the apartheid racial policies of the government of South Africa.
The Regents meets every month (save August) in Ann Arbor. On Thursday, March 15, 1979, the Regents held a scheduled meeting at its regular location, 503 Thompson Street, Ann Arbor. Approximately *535 50 unidentified members of the WCCAA, along with approximately 150 unidentified supporters, appeared at the meeting and disrupted it to the extent that the Regents could not conduct its business. On the following day, March 16, the WCCAA again appeared at and disrupted the Regents' meeting; two arrests resulted from this confrontation.
On March 16, 1979, the second day of disruptions, the Regents filed a complaint seeking a declaratory judgment, an injunction and other relief, alleging that the WCCAA disruptions were violent in nature, threatened the public peace and safety, and caused irreparable harm. The complaint also requested issuance of a temporary restraining order authorizing the Regents to move the location of its meetings, to close the meetings to those persons who should be excluded in the discretion of the Regents, and to restrain the WCCAA from interfering with the Regents' meetings. Following a brief hearing at which a portion of a tape recording of the disruptions was aired and the testimony of two of the Regents' witnesses was taken, Judge Van Domelen issued an ex parte temporary restraining order. The ex parte temporary restraining order enjoined the WCCAA from interfering with the Regents' meetings in any way pending a hearing; authorized the Regents to relocate its meetings from the Regents Room at 503 Thompson Street to another safe location pending further order of the court; and gave permission to the Regents to admit only members of the press and other members of the public within the discretion of the Regents, and to lock the meeting room doors. The order recited that it was granted without notice because of the immediacy required to preserve public peace and safety and to prevent *536 injury. Pursuant to the TRO, the Regents conducted its afternoon session of the March 16 meeting in the smaller President's Room on the second floor of the building at 503 Thompson. According to the Regents, officials were posted at the Regents Room to advise the press and members of the general public of the room change. The WCCAA claims that the afternoon session was held in an undisclosed location and was not open to members of the public.
On March 20, 1979, the WCCAA moved to dissolve the temporary restraining order and counterclaimed for an injunction to restrain the Regents from alleged further non-compliance with the provisions of the Michigan Open Meetings Act and for damages. After hearing argument from counsel for both parties on March 23, Judge Kent noted that the TRO had enabled the Regents to accomplish its objective of holding an orderly meeting and ordered the TRO dissolved without deciding its constitutionality or legality. Judge Kent declined to pass on either the Regents' request for an injunction to restrain disruptions at future meetings, or the WCCAA's counterclaim and motions for an injunction against "further" violations of the Open Meetings Act.
On April 3, 1979, the Regents moved for a "partial summary declaratory judgment" asking the trial court to rule that the Open Meetings Act permits the Regents to recess, move its location and exclude from attendance those persons who breach the peace, and requesting summary judgment on the WCCAA's counterclaim on grounds that there existed no genuine issues of material fact. A hearing on the motion was held on April 9, 1979, before Judge Campbell. On April 11, Judge Campbell issued a declaratory judgment and order denying injunctive relief. In his written opinion, *537 the trial judge reasoned that the fundamental purpose of the Open Meetings Act, to extend to the public the opportunity to observe public business and to address public bodies, does not give the general public the right to participate in the bodies' deliberations or to disrupt a meeting, no matter how worthy the cause. The court declared that the procedure proposed by the Regents, a recess of less than 36 hours followed by removal of the meeting to a new location and an announcement of the new location and time of reconvening of the meeting to all who are present at the original place, was within the spirit of, and would not violate, the Open Meetings Act. The Regents' request for an injunction was denied in view of the adequate legal remedy afforded. The damages and injunction prayed for in the counterclaim filed by the WCCAA were likewise denied as "[t]he pleadings * * * do not allege facts sufficient to support the defendant's claim that the plaintiff has failed or will hereafter fail to comply with the Open Meetings Act".
Of the five issues raised in the appellate briefs, only those which were actual questions in controversy below will be address by this Court. To the extent that the lower court opinion discusses areas not originally disputed by the parties, we decline to decide: whether the lower court's definition of "breach of the peace" is unconstitutionally vague and overbroad, whether a public body may condition admission to a public meeting upon a consensual search for weapons, or whether a public body must make every reasonable attempt to accommodate the number of people who may wish to attend its meetings.
The first issue for our consideration is whether the trial court erroneously interpreted the Open *538 Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., to permit plaintiff to exclude from a meeting those members of the general public committing a breach of the peace, to recess the meeting for a brief period of time, and to remove the meeting to another location conditioned upon an announcement of the new location and time of reconvening. The Open Meetings Act clearly provides for exclusion of a person from a public meeting for a breach of the peace actually committed at the meeting. MCL 15.263; MSA 4.1800(13). At issue here is the "recess and remove" procedure for exclusion employed by the Regents. Defendants' major contention is that when a public body recesses its meeting for a brief time it cannot remove to a new location without satisfying the notice requirements pertaining to "rescheduled" meetings. The act's notice provisions are as follows:
"Sec. 5. (1) A meeting of a public body shall not be held unless public notice is given as provided in this section by a person designated by the public body.
"(2) For regular meetings of a public body, there shall be posted within 10 days after the first meeting of the public body in each calendar or fiscal year a public notice stating the dates, times, and places of its regular meetings.
"(3) If there is a change in the schedule of regular meetings of a public body, there shall be posted within 3 days after the meeting at which the change is made, a public notice stating the new dates, times, and places of its regular meetings.
"(4) For a rescheduled regular or a special meeting of a public body, a public notice stating the date, time, and place of the meeting shall be posted at least 18 hours before the meeting. The requirement of 18 hour notice shall not apply to special meetings of subcommittees of a public body or conference committees of the state legislature. A conference committee shall give a 6 hour *539 notice. A second conference committee shall give a 1 hour notice. Notice of a conference committee meeting shall include written notice to each member of the conference committee and the majority and minority leader of each house indicating time and place of the meeting.
"(5) A meeting of a public body which is recessed for more than 36 hours shall be reconvened only after public notice, which is equivalent to that required under subsection (4) has been posted. If either house of the state legislature is adjourned or recessed for less than 18 hours, the notice provisions of subsection (4) are not applicable. Nothing in this section shall bar a public body from meeting in emergency session in the event of a severe and imminent threat to the health, safety, or welfare of the public when 2/3 of the members serving on the body decide that delay would be detrimental to efforts to lessen or respond to the threat." MCL 15.265; MSA 4.1800(15).
Defendants argue that because subsection (5) above does not expressly permit a change of location of a recessed meeting, it is forbidden and that the change of location that occurred here converted the meeting from "recessed" to "rescheduled" under the act. Principles of statutory construction do not support this position. Each of the above five subsections deals with a distinct topic and does not require interpolation of language from the other clearly independent provisions except when expressly referred to. See 2A Sutherland, Statutory Construction (4th ed), § 47.02, p 71. Furthermore, the language of subsection (5), which pertains to recessed meetings, is clear and unambiguous; the plain meaning controls. Sutherland, supra, § 46.01, p 48. A meeting that is recessed in excess of 36 hours must comply with the notice rules applicable to rescheduled meetings; a shorter recess, as occurred here, does not trigger application of those rules. As the trial court opinion *540 correctly points out, a multitude of reasons might necessitate a meeting's brief recess and relocation: fire, cessation of utility service, unrelated noise interference, etc. Viewed in this context, defendants' position is clearly untenable; the act does not contemplate 18-hour notice requirements under such circumstances. We find no support for the position advanced by defendants that relocation changes the meeting's categorization from "recessed" to "rescheduled".
We do, however, share the concern obviously felt by defendants and the trial court that a meeting which is recessed remain open to the public. In order to remain faithful to the spirit and purpose of the Open Meetings Act the Regents were required to provide notice of the new time and place of the reconvened meeting. Plaintiff complied with the court order to this effect by posting officials at the Regents Room to advise the press and members of the general public of the room change. Therefore, we find no conflict with MCL 15.268; MSA 4.1800(18), which permits closed sessions only for the limited purposes specified therein.
A construction of the act as outlined above does not do violence to its spirit or purpose; rather, it represents a comfortable balancing of the public's need to know and the public body's duty to make decisions and effectively carry out its tasks. Certainly, the Regents should not be required to have demonstrators who breach the peace at a meeting physically and forcefully expelled by law enforcement officials. Confrontation is not mandated by the act. We hold that a peaceful alternative, such as "recess and remove" is an appropriate expedient.
Defendants also claim error in the trial court's *541 decision to dismiss their counterclaim for damages and injunctive relief against alleged further noncompliance with the Open Meetings Act. We are not persuaded by defendants' claim of surprise with regard to the trial judge's dismissal of their counterclaim against the Regents. The Regents' "motion for partial summary declaratory judgment and alternative motion for speedy hearing of action for declaratory relief", although somewhat ambiguously titled, adequately put the WCCAA on notice that the essential issue at stake whether the act permitted the Regents to "recess and remove" to exclude members of the WCCAA who breached the peace would be argued and decided at the motion hearing. The WCCAA was given ample opportunity at the hearing to assert its counterclaim against the Regents, and cannot be heard to complain that its claim was ignored by the trial judge. Moreover, any error is harmless, since the declaration by the trial court that the Regents' actions were authorized by the act effectively precludes recovery by the WCCAA on its counterclaim, i.e., it cannot enjoin "further" noncompliance where there was never a failure to comply, nor can it recover damages for action taken by the Regents that was legal in all respects.
We also reject the WCCAA's claim that it is entitled to costs and attorney fees. MCL 15.271; MSA 4.1800(21) provides for such recovery only when the party commencing a civil action for injunctive relief succeeds in that action. The WCCAA's dissolution of the ex parte TRO entered in behalf of the Regents does not fall within the class of actions for which costs and attorney fees may be obtained as outlined above.
Affirmed.
|
78 F.Supp.2d 610 (1999)
UNITED STATES of America, Plaintiff,
v.
Abdul-Wahaly ORE-IRAWA, Defendant.
No. 99-80332.
United States District Court, E.D. Michigan, Southern Division.
December 3, 1999.
*611 Cynthia Oberg, Asst. U.S. Attorney, Detroit, MI, for Plaintiff.
Andrew Densemo, Federal Defender Office, Detroit, MI, for Defendant.
OPINION AND ORDER
FEIKENS, District Judge.
I. INTRODUCTION
Defendant Abdul-Wahaly Ore-Irawo (Ore-Irawo), a Nigerian national, is charged with a total of ten counts of credit card fraud, bank fraud, and aiding and abetting the same. He has filed a motion to suppress evidence seized from his residence on Fourth Amendment grounds. He has also filed a motion to dismiss the indictment and/or to suppress evidence based on an alleged violation of the Vienna Convention on Consular Relations. For the reasons that follow, both motions are denied.
II. FACTS
After an evidentiary hearing held on November 30, 1999, I find the following essential facts in accordance with Federal Rule of Criminal Procedure 12(e):
On January 31, 1997, United States Secret Service Agents obtained a complaint and arrest warrant for Ore-Irawo. The testimony of Special Agent Michael Evans established that on February 6, 1997, the agents determined that Ore-Irawo was at home in his apartment. They knocked on the door, and when defendant opened the door they entered with the arrest warrant *612 and arrested him. The agents did a protective sweep of the apartment and Evans secured Ore-Irawo in handcuffs. Defendant was given his Miranda warnings and declined to make a statement. Ore-Irawo did, however, sign a form giving consent to the agents to search the apartment. Subsequently, the agents seized several items as evidence of credit card fraud. (See Government's Ex. 3.)
Ore-Irawo was taken into custody and brought before a magistrate within hours of his arrest. He was thereafter released on $20,000 unsecured bond. At no time, either during the time the agents spent in the apartment or prior to his release on bond, was Ore-Irawo informed of his right, pursuant to Article 36 of the Vienna Convention, 21 U.S.T. 77, to contact the Nigerian consul and request assistance.
III. DISCUSSION
A. THE FOURTH AMENDMENT MOTION TO SUPPRESS
Defendants apartment was searched pursuant to voluntary consent obtained in writing from Ore-Irawo. (See Government's Ex. 1.) Ore-Irawo contended, however, that the agents first searched the apartment and only then did they obtain his consent. Defendant also intimated that he had not understood the nature of the consent form he had signed that the form had not been explained to him and that he had not read the form before signing it.
I find defendant's testimony in this regard inherently incredible and I do not accept his version of events. Defendant directly contradicts the testimony of Special Agent Evans who testified that the search of the apartment was done only after consent to search was obtained. Having listened to both witnesses, I perceive no basis for disbelieving the agent's testimony or doubting his credibility.
Defendant testified that he understands and reads English, and he was articulate when testifying. He conceded that he had not been coerced or threatened. Under the totality of the circumstances, I find that his consent was knowing and voluntary. See United States v. Erwin, 155 F.3d 818, 823 (6th Cir.1998) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The search pursuant to consent was valid; defendant's motion to suppress evidence based on the Fourth Amendment is denied.
B. THE VIENNA CONVENTION MOTION TO DISMISS AND/OR SUPPRESS
The Vienna Convention on Consular Relations, 21 U.S.T. 77, provides, in relevant part, in Article 36:
[I]f [the defendant] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody, or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.
(emphasis added). Article 36 thus requires that governmental authorities inform an arrested suspect of his right to contact the consular post of his nationality and request assistance. See Villafuerte v. Stewart, 142 F.3d 1124, 1125 (9th Cir. 1998).
The parties concede that defendant was not informed, at any time relevant to this motion, of his right to request assistance from the Nigerian consular post. Defendant contends that this violation of Article 36 of the Vienna Convention warrants dismissal of the case or, alternatively, suppression of the evidence obtained. Defendant has advanced two arguments in favor *613 of this result: (1) the government's failure to inform him of his right to request consular assistance deprived him of the opportunity to request or waive consular assistance before consenting to the search of the apartment, thus vitiating defendant's otherwise knowing and voluntary consent; and (2) dismissal and/or suppression is a prophylactic remedy necessary to enforce the Vienna Convention.
The difficulty with defendant's first argument is two-fold. First, nothing in the text of Article 36 of the Vienna Convention requires that an arresting officer inform a defendant of his rights under the Vienna Convention immediately upon arrest or before requesting consent to search. Rather, the Convention requires only that a defendant be informed of his rights "without delay." As the government noted in its brief, available authorities suggest that the term "without delay" refers to a time-period of one to three days. See United States Dept. of State, Consular Notification and Access (1998) (stating that notification should be given at booking); Consular Convention between the United States and the [former] Soviet Union, 19 U.S.T. 5018 Art. 12 (stating that notification may be given within one to three days). Thus, the fact that the government eventually failed to adhere to the provisions of Article 36 has no causal relationship to the validity of defendant's consent.
Second, several courts have noted that in order to seek suppression and/or dismissal as a remedy for a violation of Article 36 of the Vienna Convention, actual prejudice must be shown. See, e.g., United States v. Ademaj, 170 F.3d 58, 67 (1st Cir.1999); United States v. Esparza-Ponce, 193 F.3d 1133, 1138 (9th Cir.1999);[1]see also United States v. Ediale, 1999 WL 991435, *1, unpublished, (4th Cir.1999). In order to show actual prejudice under the Vienna Convention, a defendant must show (1) that he did not know of his right to consular assistance; (2) that he would have availed himself of that right; and (3) that there was a likelihood that the contact with the consul would have resulted in assistance to him. See Esparza-Ponce, 193 F.3d 1133, 1138 (quoting United States v. Rangel-Gonzales, 617 F.2d 529, 533 (9th Cir.1980)); United States v. Alvarado-Torres, 45 F.Supp.2d. 986, 990 (S.D.Cal. 1999). Defendant's motion did not allege, much less did the evidentiary hearing establish, the existence of any of these factors. Most notably, there has been no showing that had Ore-Irawo contacted the consular post, assistance would have been provided.
Were this not sufficient, there are two more reasons why defendant has failed to show prejudice in this case. First, the fact that defendant was advised of his rights under Miranda before consent to search was requested of him seriously undermines any claim of prejudice. See Esparza-Ponce, 193 F.3d at 1138. Second, given my earlier observation that the agents need not have apprised defendant of his Article 36 rights prior to requesting consent to search, it is difficult if not impossible to understand how defendant could have been prejudiced by their failure to do so.
Defendant's second argument is that dismissal and/or suppression of the evidence is necessary as a prophylactic measure to ensure compliance with Article 36 and to "manifest integrity" in the treaty. (Defendant's Brief, p. 3.) In making this argument, however, defendant fails to apprehend the critical difference between fundamental, constitutional rights and those rights created by statute or treaty. I find persuasive the language of district *614 court in United States v. Chaparro-Alcantara, 37 F.Supp.2d 1122 (N.D.Ill.1999):
It is clear that Article 36 does not create a "fundamental" right, such as the Sixth Amendment right to counsel, or the Fifth Amendment right against self-incrimination which originates from concepts of due process. See Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir.1993) ("[a]lthough compliance with our treaty obligations clearly is required, we decline to equate such a provision with fundamental rights ..."); Esparza-Ponce, 7 F.Supp.2d at 1097 (refusing to equate a violation of Article 36 to a Miranda violation). Thus, the suppression remedy must be available, if at all, from the Vienna Convention itself. The Court, however, finds nothing in the Vienna Convention that provides for the exclusionary rule as a remedy for violation of its provisions.
Id. at 1125-6. See also Alvarado-Torres, 45 F.Supp.2d at 994. On these facts, I decline defendant's invitation to engraft an exclusionary rule, much less a rule requiring dismissal of this case, upon the terms of Article 36 of the Vienna Convention.[2]
IV. CONCLUSION
For the foregoing reasons, defendant's motion to suppress evidence and his motion to suppress evidence and/or dismiss the indictment are denied.
IT IS SO ORDERED.
NOTES
[1] One should note, however, that the principal case relied upon by the Ninth Circuit in Esparza-Ponce, United States v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir.1999), has been withdrawn and will be reheard en banc. See United States v. Lombera-Camorlinga, 188 F.3d 1177, 1177-8 (9th Cir.1999).
[2] Given this resolution of defendant's motion, I have not and need not address the government's argument that the Vienna Convention does not bestow upon defendant private, enforceable rights.
|
942 So.2d 589 (2006)
Maggie HARPER, Plaintiff-Appellant,
v.
HORSESHOE CASINO, Defendant-Appellee.
No. 41,470-WCA.
Court of Appeal of Louisiana, Second Circuit.
October 19, 2006.
*590 William R. Long, Bossier City, for Appellant.
Cook, Yancey, King & Galloway, by Lila E. Johnson, Robert Kennedy, Shreveport, for Appellee.
Before BROWN, CARAWAY, and MOORE, JJ.
BROWN, Chief Judge.
Claimant, Maggie Harper, has appealed from a judgment finding that her claim for workers' compensation benefits from her employer, Horseshoe Casino, has prescribed. For the reasons set forth below, we reverse and remand for further proceedings.
*591 Factual and Procedural Background
Maggie Harper was first employed at Horseshoe Casino as a slot attendant on June 20, 1994. As a result of repetitive work performed over several years, she began experiencing difficulties with her arms, wrists, hands, fingers, and thumbs. Ms. Harper consulted Dr. John T. Knight on May 15, 2000. On May 18, 2000, she reported her problem to Horseshoe, stating that she had been experiencing pain in both hands for several months. At that time, La. R.S. 23:1031.1 provided that a claim for an occupational disease was barred unless filed with the employer within six months of a determination of disability. Horseshoe admits that timely notice was filed. Thereafter, all expenses associated with Ms. Harper's medical treatment and costs of related procedures were paid by Cannon Cochran Management Services, Inc. ("CCMSI"), a third party administrator, on behalf of Horseshoe. Ms. Harper continued to work at Horseshoe.
On June 23, 2000, Dr. Knight performed surgery, a resection arthroplasty of the right trapeziometacarpal joint, on Ms. Harper's right hand. The same surgery was performed on her left hand on September 15, 2000. Ms. Harper continued to work at Horseshoe, but after the second surgery, she was assigned office duties and was paid a wage equal to what she had been paid as a slot attendant. We note that Ms. Harper used her vacation time for the surgeries.
Dr. Knight performed an impairment and disability determination ("IDR") on February 12, 2001. He concluded that Ms. Harper had a 23% impairment of her right upper extremity and a 22% impairment of her left upper extremity. Dr. Knight discussed this determination with Ms. Harper during a follow-up visit on February 20, 2001. Ms. Harper, who had settled into her new position, continued to work at Horseshoe at her prior wage. She also continued to see Dr. Knight on a regular basis.
When Dr. Knight relocated his office in 2001, Dr. Michelle Ritter took over Ms. Harper's treatment. Pursuant to a request by Dr. Ritter, Dr. Raymond Dennie performed a second IDR on April 10, 2002, and Ms. Harper was given a permanent partial disability ("PPD") rating of a 15% impairment in both upper extremities, amounting to a whole person impairment of 17%. At this time, La. R.S. 23:1031.1, which had been amended in 2001, provided a one-year prescriptive period for filing a disputed claim for compensation with the Office of Workers' Compensation.
On February 14, 2003, Allison Roberts, a claims representative with CCMSI, sent a letter to Ms. Harper offering a full and final settlement in the amount of $20,860.20, a figure based on the PPD rating provided by Drs. Ritter and Dennie. On February 25, 2003, Ms. Roberts sent Ms. Harper a second letter rescinding the original settlement offer. This second communication informed Ms. Harper that the PPD rating was incorrect and that a clarification from Dr. Ritter was needed, or failing that, Ms. Harper would be sent to another doctor for a new PPD rating determination. The letter did not inform Ms. Harper that she could or should take any further action.
After receiving this last letter, Ms. Harper contacted Dr. Ritter's office on three separate occasions to determine whether Dr. Ritter had been contacted by Ms. Roberts regarding a clarification of Ms. Harper's PPD rating. Personnel in Dr. Ritter's office informed Ms. Harper that they had not been contacted by Ms. Roberts or anyone else regarding her PPD rating.
On January 15, 2005, Ms. Harper sent a letter to Ms. Roberts inquiring about the *592 status of the payment for her impairment. Ms. Roberts, however, was no longer employed by CCMSI. Kim Doucette responded on February 15, 2005, informing Ms. Harper that no benefits would be paid since the prescriptive period for her claim had expired. Throughout this time, Ms. Harper continued to work full-time for Horseshoe at a wage equal to what she had earned as a slot attendant.
On February 21, 2005, Ms. Harper filed a disputed claim for compensation with the Office of Workers' Compensation alleging that Horseshoe Casino had failed to pay benefits for her permanent partial disability. The case was submitted to a Workers' Compensation Judge ("WCJ") on stipulations and deposition testimony. The WCJ entered judgment dismissing Ms. Harper's claim with prejudice on the basis of prescription. The WCJ found that Ms. Harper first experienced pain on November 1, 1999, and that her claim prescribed one year later on November 1, 2000. The WCJ further found that Ms. Harper failed to carry her burden of demonstrating that the prescriptive period was interrupted, suspended, or renounced. Ms. Harper has timely appealed from this adverse judgment.
Discussion
The employer does not question that Ms. Harper suffered a job-related occupational injury. Horseshoe has paid and continues to pay all medical expenses related to the injury. Ms. Harper, however, was a retained employee. She has continued to work, albeit in a different capacity, at her full wage. She works a full day at a legitimate job. She has settled into this new position and her wages are "earned" rather than "unearned" or a substitute for compensation.
The Workers' Compensation Act is to be liberally construed in favor of protecting workers from the economic burden of work-related injuries. Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859 (La.04/10/95), 652 So.2d 1323. An employee who suffers a work-related injury that later develops into a disability, has a viable cause of action. Prescription starts to run from the development of the disability, rather than from the first appearance of symptoms or from the first date of treatment. Id.; Smith v. Fruehauf Trailer Operations, 27,864 (La. App.2d Cir.01/24/96), 666 So.2d 1246. The finding of disability within the framework of the workers' compensation law is a legal rather than a purely medical determination. Taylor v. Garrett, 28,729 (La.App.2d Cir.10/30/96), 682 So.2d 831; Manson v. City of Shreveport, 577 So.2d 1167 (La. App. 2d Cir.1991), writ denied, 580 So.2d 928 (La.1991).
La. R.S. 23:1031.1(E), as amended in 2001, provides:
E. All claims for disability arising from an occupational disease are barred unless the employee files a claim as provided in this Chapter within one year of the date that:
(a) The disease manifested itself.
(b) The employee is disabled from working as a result of the disease.
(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.
Prior to the 2001 amendment to La. R.S. 23:1031.1, the statute provided that a claim for an occupational disease was barred unless filed with the employer within six months of the occurrence of all of the three factors listed. As previously stated, Ms. Harper timely reported her disease within this six-month period. This version of the statute was silent as to when a disputed claim had to be filed with the Office of Workers' Compensation. The Supreme Court in LaCour v. Hilti Corp., *593 98-2691 (La.05/18/99), 733 So.2d 1193, answered that question, applying the one-year prescription set forth in La. R.S. 23:1209(A).
Existence of all three of the factors listed in La. R.S. 23:1031.1 is necessary to trigger the running of the prescriptive period. Bynum v. Capital City Press, Inc., 95-1395 (La.07/02/96), 676 So.2d 582; LaCour, supra. Because Ms. Harper was able to earn wages in excess of 90% of her prior wage (in fact, she earned 100% of her prior wage), she was not entitled to Supplemental Earnings Benefits (SEB) and she was not "disabled from working as the results of the disease." Therefore, prescription, whether under La. R.S. 23:1031.1 as amended in 2001 or under La. R.S. 23:1209(A) had not yet begun to run.
Louisiana's Compensation Act provides for three types of loss. First is an entitlement to compensation for loss of earning capacity, La. R.S. 23:1221(1)-(3); second, is an entitlement to medical and hospital expenses, La. R.S. 23:1226; and third, are schedule losses, now called permanent partial disability "for anatomical loss of use or amputation," La. R.S. 23:1221(4).
Over a continuing period of development, Ms. Harper was diagnosed and found to be permanently disabled by Dr. Dennie, who determined that Ms. Harper had a PPD rating of 15% impairment in both upper extremities (improved from 22% and 23%), amounting to a whole person impairment of 17%, based on the second IDR performed on April 10, 2002.
Because Ms. Harper suffers from a permanent partial disability, but was never too disabled to work or to earn 90% of her former wages, the subject matter of her claim is covered by La. R.S. 23:1221(4), which provides compensation "solely for anatomical loss of use or amputation." Subparagraph four is distinguished from the other subparagraphs of 23:1221, as subparagraphs one through three provide compensation for a disabled employee's reduced ability to earn wages, whereas 23:1221(4) is "solely" concerned with compensation for the "anatomical loss" itself, not an economic harm resulting from the anatomical loss.
Horseshoe does not question that Ms. Harper has suffered an anatomical loss of use but claims that the time limitation for filing this claim has passed. As stated, a claim for SEB has not prescribed as the criterion set out in La. R.S. 23:1031.1 has not occurred, that is, she is not disabled from working and earning 90% of her prior wages. However, an anatomical loss of use is an independent item of recovery even if the claimant is not disabled from working.
CCMSI sent Ms. Harper the February 14, 2003, letter to notify her of the compensation due her for her anatomical loss based on the final IDR from Dr. Dennie. Since Horseshoe never terminated Ms. Harper, and since her disability substantially improved over time, we find this second medical diagnosis on April 10, 2002, to provide the date Ms. Harper's developing injury became, with certainty, permanently disabling for the purpose of prescription as provided by the applicable statutory provisions and jurisprudence.
Therefore, Ms. Harper's claim for an anatomical loss would have prescribed on April 10, 2003, and she did not file her claim until February 23, 2005. This conclusion, however, fails to take into account the matter of the two letters sent to Ms. Harper by CCMSI on February 14 and 25, 2003. The first letter offered a full and final settlement based on Dr. Dennie's PPD rating. The second letter rescinded that offer, informing Ms. Harper that the PPD rating was flawed; stating that *594 CCMSI would correct the flaw; implying that Ms. Harper should simply wait; and further, putting Ms. Harper on notice that Dr. Ritter may be replaced as Ms. Harper's diagnosing physician. Thereafter, CCMSI conspicuously did nothing until Ms. Harper's letter of inquiry to them dated January 15, 2005.
The exception of estoppel is recognized by Louisiana courts when an employee is lulled into a false sense of security by the employer/insurer and is induced to forgo the filing of her claim until the prescriptive period has expired. See Millican v. General Motors Corporation, 34,207 (La.App.2d Cir.11/01/00), 771 So.2d 234, writ denied, 01-0001 (La.03/23/01), 788 So.2d 426. The claimant must show that words, action or inaction on the part of the employer/insurer induced her to withhold suit until the time for prescription had passed. If the claimant prevails on this point, the employer/insurer is estopped from raising prescription as a defense. Id. It is not necessary for a claimant to prove that she was intentionally lulled into a false sense of security by the employer/insurer. Rambin v. Shreveport Refrigeration, Inc., 39,592 (La.App.2d Cir.05/04/05), 902 So.2d 1129.
In the instant case, we find that Ms. Roberts' letter dated February 25, 2003, was written in such a manner that it lulled Ms. Harper, through its actual content and through the absence of specific words or notice, into a false sense of security. We reach this conclusion notwithstanding that Ms. Harper waited almost two years from when the letters were written to file her claim. Considering Ms. Harper's continued employment with Horseshoe and Horseshoe's previous acceptance and voluntary payment for the treatment of her occupationally-induced injury, we do not find, under the circumstances of this case, that Ms. Harper was unreasonable in waiting for Ms. Roberts to follow up as implied in her second correspondence to Ms. Harper. Therefore, Horseshoe is estopped from raising prescription as a defense.
Conclusion
For the reasons set forth above, the WCJ's judgment dismissing Maggie Harper's claim on the basis of prescription is reversed. The matter is remanded for further proceedings consistent with this ruling. Costs of this appeal are to be borne by defendant, Horseshoe Casino.
REVERSED AND REMANDED.
CARAWAY, J., concurs with written reasons.
CARAWAY, J., concurring.
I respectfully concur, concluding that the operation of the statute alone precluded the running of prescription.
Despite Harper's election to seek permanent partial disability benefits, her disability could eventually lead to a claim for wage benefits in the form of supplemental earnings benefits (SEBs). The jurisprudence indicates that both partial disability benefits and SEBs may be awarded depending upon which one is more favorable to her at a given time. Andrews v. Pine Hill Wood Co., 426 So.2d 196 (La.App. 2d Cir.1982), writ denied, 432 So.2d 267 (La. 1983); Lee v. Gaffney Construction. Co., 474 So.2d 994 (La.App. 5th Cir.1985), writ denied, 477 So.2d 706 (La.1985); Fielder v. Triple S. Masonry, 438 So.2d 642 (La.App. 2d Cir.1983); Guidry v. Boh Bros. Construction Co., 545 So.2d 538 (La.App. 5th Cir.1989); Wex S. Malone & H. Alston Johnson, III, Workers' Compensation Law and Practice, § 279, in 13 Louisiana Civil Law Treatise (4th Edition 2002). There is an interrelationship between the two forms of benefits for her protection along with a credit to the employer for payments made for partial disability benefits against any future SEBs. Malone & Johnson, supra.
*595 This somewhat unique and complicated benefit structure becomes more difficult when, instead of a work-related accident triggering the entitlement, the gradual onset of an occupational disease precipitates the need for these benefits. The gradual disabling effect of an occupational disease results in the special test for prescription embodied in La. R.S. 23:1031.1(E). Until the employee with the occupational disease becomes "disabled from working," the statute provides that prescription on "[a]ll claims for disability" benefits does not begin to run. I agree with the majority that prescription has not yet begun to run. This is clearly seen with regard to potential SEB benefits, and because of the interrelationship of the administration of both partial disability benefits and SEBs, prescription does not run against Harper's present claim until she becomes "disabled from working."
|
141 F.2d 599 (1944)
WILSON
v.
WILSON et al.
No. 5214.
Circuit Court of Appeals, Fourth Circuit.
March 31, 1944.
J. Alex. Neely, Jr., of Anderson, S. C., for appellant.
Louise Foster, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Robert N. Anderson, and Mills Kitchin, Sp. Assts. to Atty. Gen., and O. H. Doyle, U. S. Atty., of Anderson, S. C., on the brief), for appellees W. P. Bowers, Collector of Internal Revenue for the State of South Carolina, and Guy T. Helvering, Commissioner of Internal Revenue.
Alfred F. Burgess, of Greenville, S. C., for appellee Clarice T. Wilson.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal from an order dismissing a suit instituted to obtain a declaratory judgment as to federal tax liability. The suit was instituted by the plaintiff, W. H. Wilson, against his wife and daughter, who were alleged to own interests with him in a business partnership, two other persons alleged to own interests in the partnership, and the Commissioner of Internal Revenue of the United States and the Collector for the District of South Carolina, who were alleged to have notified plaintiff that they proposed to assess income taxes against him on the basis that he was the owner of the interests in the partnership alleged to belong to his wife and daughter. The prayer for relief was as follows:
"That the Court find and determine who are the partners of W. H. Wilson Company and the percentage ownership of each and if any of the defendants are found not to be partners that the plaintiff have judgment against them for the portion of the income previously paid to them and that the defendant Guy T. Helvering, Commissioner of Internal Revenue, and W. P. Bowers, Collector of Internal Revenue for the State of South Carolina, be required to tax the members of the partnership in accordance with the findings of this Court; and for such other and further relief as to the Court may seem just and equitable."
Answers filed by plaintiff's wife and daughter admitted the interests in the *600 partnership to be as alleged by plaintiff, and no controversy with respect thereto was raised by either of the other defendants who were alleged to own interests. The suit manifestly had no purpose other than to obtain a judgment declaratory of the interests in the partnership owned by Wilson and his wife and daughter so that it would be binding upon the Commissioner and Collector in assessing and collecting taxes on the partnership income. The prayer of the complaint was that the Commissioner and Collector "be required to tax the members of the partnership in accordance with the findings of the Court". There can be no question but that, this being its purpose, the suit was properly dismissed.
In so far as the suit sought a declaratory judgment, it is clear that this was sought as to a controversy which existed with respect to liability for federal taxes. The federal courts are given power to render declaratory judgments only in cases of "actual controversy", and there was no controversy of any sort here except with respect to liability for federal taxes on the partnership income. Such a controversy, however, could not serve as a basis for a declaratory judgment because of the express inhibition of the statute, 28 U.S.C.A. § 400, which provides:
"(1) In cases of actual controversy (except with respect to federal taxes) the courts of the United States shall have power upon petition, declaration, complaint, or other appropriate pleadings to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such." (Italics supplied.)
In so far as the suit sought to require the Commissioner and Collector to tax the members of the partnership in accordance with the findings of the court, it was a suit to control them in the discharge of their official duties and hence a suit against the United States with respect to a matter as to which it had not consented to be sued. Ferris v. Wilbur, 4 Cir., 27 F.2d 262, 264; Appalachian Electric Power Co. v. Smith, 4 Cir., 67 F.2d 451, 457; Morrison v. Work, 266 U.S. 481, 488, 45 S.Ct. 149, 69 L.Ed. 394. If, moreover, the prayer asking such relief be construed as asking a writ of mandamus, the court was without power to grant such relief. Appalachian Electric Power Co. v. Smith, supra; Branham v. Langley, 4 Cir., 139 F.2d 115. If it be construed as asking a mandatory injunction, the suit was expressly forbidden by statute. 26 U.S.C.A. Int.Rev.Code, § 3653.
The Congress has provided ample machinery for the settlement of income tax controversies. If dissatisfied with the assessment made by the Commissioner, the taxpayer may, without paying the tax, petition the Tax Court for a redetermination, 26 U.S.C.A. Int.Rev.Code, § 272, or he may pay the tax, file claim for refund and sue to recover the tax if the claim is denied, 26 U.S.C.A. Int.Rev.Code, §§ 3770-3772. There is no provision, however, for suit against the Commissioner or Collector in advance of assessment for the purpose of controlling their official actions; and in the nature of things there ought not be any such provision. The collection of the public revenues would be greatly disturbed and hindered, if the Commissioner and the various collectors were subject to control in the exercise of their duties by suits of this character.
There was no error, and the order dismissing the suit will be affirmed.
Affirmed.
|
760 A.2d 942 (2000)
STATE
v.
Adalberto VILLAFANE.
No. 99-20-C.A.
Supreme Court of Rhode Island.
October 27, 2000.
*943 Present: WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Virginia M. McGinn, Aaron L. Weisman, Providence, for Plaintiff.
Paula Lynch Hardiman, Providence, Paula Rosin, for Defendant.
OPINION
PER CURIAM.
This case came before the Supreme Court for oral argument on September 26, 2000, pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. The defendant, Adalberto Villafane, has appealed a judgment of conviction for which he was sentenced to thirty years at the Adult Correctional Institutions (ACI), with twelve years suspended with probation and eighteen to serve on count 1, first-degree child molestation, and fifteen years to serve on count 2, assault with the intent to commit first-degree sexual assault, both to run concurrently. After hearing arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has not been shown and that the issues raised by this appeal should be decided summarily.
At trial before a jury while being cross-examined by defendant's counsel, the victim, whom we shall call Jill, made reference to a polygraph test that was administered to her in 1985, shortly after she reported the incidents that led to defendant's conviction. The exchange at trial was as follows:
"Q So on August 2, 1985, you told Trooper Lacouture that Mr. Villafane had tried to rape you, right?
"A Yes, sir.
"Q But you did not tell your mother at that point in time?
"A She was sitting right there.
"Q She was sitting right there?
"A She was in the police station there with us, with me. We discussed it in the cruiser over, only that she said, `Are you okay? Are you going to be able to do this? We'll talk about it later. Just tell them the truth.' I said, `Okay, mom.'
"Q Okay. She said tell him the truth? Tell them the truth?
"A Yes.
"Q That was on August 2, 1985?
"A Yes.
"Q When you went to the barracks and discussed the domestic assault
"A Yes, sir.
"Q and you went back to the barracks on September 10, 1985 to give a statement, didn't you?
"A Was that the statement or was that the polygraph?"
At that point, defendant's motion to strike was made and granted by the trial justice. The trial justice also immediately gave a curative instruction: "Jury instructed to disregard her response to Mr. Levy's question, was that the statement or the polygraph. Strike that from your mind." The next morning, upon reflection, defense counsel asked that the case be passed. He argued that a cautionary instruction could *944 not cure the prejudice to the defendant in this case. His motion was denied upon the trial justice's finding that he did not think "this matter has reached a point where this defendant's rights would be prejudiced by going forward." The judge gave further instruction on the issue before deliberations: "[I]f I ordered any testimony to be stricken, or to have you ignore from the record, you must follow my instruction in that regard. Any testimony that was ordered stricken cannot in any way influence your deliberations. As to assessing evidence in this case, you are also forbidden to discuss stricken testimony or to speculate on its meaning or relevance to this case."
It is well settled that a decision to pass a case and declare a mistrial lies within the sound discretion of the trial justice. State v. Kryla, 742 A.2d 1178, 1186 (R.I.1999); State v. Figueroa, 673 A.2d 1084, 1091 (R.I.1996). Because "he or she possesses a `front row seat' at the trial and can best determine the effect of the improvident remarks upon the jury," the trial justice's determination will be given great weight and will not be disturbed unless it is shown to be clearly wrong. Kryla, 742 A.2d at 1186 (quoting State v. Tempest, 651 A.2d 1198, 1200 (R.I.1995)).
We have held that because test results of polygraph examinations have not been established as scientifically accurate and reliable, and that because such results would be misleading to a jury, it is improper for them to be introduced for any purpose. State v. Dery, 545 A.2d 1014, 1017-18 (R.I.1988). The issue in this case, however, is whether the mere mention of the word "polygraph," when no results were divulged, "so inflame[d] the passions of the jury as to prevent their calm and dispassionate examination of the evidence." State v. Kholi, 672 A.2d 429, 432 (R.I.1996) (quoting State v. Brown, 522 A.2d 208, 211 (R.I.1987)). We are of the opinion that the trial justice did not abuse his discretion in finding that it did not.
The defendant argued that the sole utterance of the word polygraph by Jill in such close proximity to her reference to being admonished to tell the truth presented a strong inference that she was to be believed over defendant and that because this was a case of "he said/she said" the credibility of the witnesses was pivotal, and the judge's curative attempts were insufficient.
It is our conclusion that the mere mention of the word polygraph was insufficient to reverse the conviction and provide a new trial. This Court stated in Powers v. Carvalho, 109 R.I. 120, 128, 281 A.2d 298, 302 (1971), that "the giving of a strong cautionary or curative instruction by the court to the jury might negative [the mention of the word polygraph]." Here, the trial justice gave not one, but two curative instructions, one immediately after the reference, and one before jury deliberations. Moreover, the statement only ambiguously implied that Jill was the subject who took the polygraph test. Further, we believe that the evidence against defendant was overwhelming. See Kholi, 672 A.2d at 432 ("We agree with the trial justice that the prosecutor's question in the instant case was unlikely to have inflamed the jurors' passions against defendant. The evidence against defendant in respect to his sexual abuse of Amy and Julie was overwhelming"). Thus, the trial justice, who was in the best position to assess the impact the reference had on the jury, did not abuse his discretion in refusing to pass the case.
The defendant also argued that the trial justice erroneously denied his motion for judgment of acquittal on count 2, assault with intent to commit first-degree sexual assault. The defendant essentially argued that no reasonable juror could conclude beyond a reasonable doubt from the evidence presented at trial that he had the specific intent to commit first-degree sexual assault. We disagree.
When considering a motion for a judgment of acquittal this Court, like the trial court, "must view the evidence in the *945 light most favorable to the state, draw all reasonable inferences that are consistent with guilt, without assessing the credibility of witnesses or assigning weight to the evidence." State v. Brezinski, 731 A.2d 711, 715 (R.I.1999). If that examination reveals sufficient evidence to warrant a jury verdict of guilt beyond a reasonable doubt, the trial court properly denied the motion. Id.
In this case, we affirm the trial justice's ruling on the motion for a judgment of acquittal. Jill testified that during the incident on which count 2 is based, the defendant pushed her down onto the bed, pulled off her pants and her underwear, and climbed on top of her. Although Jill testified that she was able to get away before a first-degree sexual assault was committed, we believe that on this evidence one could reasonably infer that the defendant intended to commit first-degree sexual assault at that time.
Therefore, we deny and dismiss the defendant's appeal and affirm the judgment of the Superior Court, to which the papers in this case are remanded.
|
104 Cal.App.3d 615 (1980)
163 Cal. Rptr. 848
In re PATRICK W., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,
v.
PATRICK W., Defendant and Appellant.
Docket No. 31806.
Court of Appeals of California, Second District, Division Four.
April 15, 1980.
*616 COUNSEL
Jerry D. Whatley and Lonnie B. Springer, Jr., for Defendant and Appellant.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, Jay M. Bloom and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KINGSLEY, Acting P.J.
The minor was found by the juvenile court to be a person coming under section 602 of the Welfare and Institutions *617 Code in that he had committed murder in violation of section 187 of the Penal Code. He was committed to the Youth Authority; he has appealed; we reverse.
The case for the People[1] is that, angry at his father, a police officer, the minor had intentionally shot and killed him. Alerted by school authorities and other persons, deputy sheriffs arrested the minor and took him to the station for interrogation. Admittedly they gave him the formal Miranda rights and also asked if he desired to talk to the "parents." Quite understandably, the minor declined to face his mother, whom he had just widowed. (1a) It is the contention of the minor here that, since his grandparents were available and had sought to speak to the minor, the deputies were under an obligation to ask him if he desired to talk to them and that the deputies had not done so.
This is the second time that this case has been before this court. On September 1, 1978, we held that the order of commitment must be reversed because of that failure. (In re Patrick W. (1978) 84 Cal. App.3d 520 [148 Cal. Rptr. 735].) On October 23, 1978, our Supreme Court denied hearing. The People then sought certiorari and, on June 25, 1979, the United States Supreme Court remanded the case to us "for further consideration in the light of Fare v. Michael C. (1979) 442 U.S. 707 [61 L.Ed.2d 197, 99 S.Ct. 2560]."
In In re Michael C. (1978) 21 Cal.3d 471 [146 Cal. Rptr. 358, 579 P.2d 7], our Supreme Court had held that a confession obtained from a minor after his request to see his probation officer had been denied, was obtained in violation of the minor's Miranda rights. It was that holding which the United States Supreme Court reversed, primarily on the ground that a probation officer, by virtue of his dual allegiance, was not the kind of person on whom a minor was entitled, within the purpose of Miranda, to rely.
It is clear that the United States Supreme Court's decision in Michael C. rests on facts distinguishable from those before us on this appeal. The grandparents here did not have the official ambivalence that the Supreme Court saw in the Michael C. case. They fall more in the group of which our Supreme Court said, in People v. Burton (1971) 6 Cal.3d 375, at page 382 [99 Cal. Rptr. 1, 491 P.2d 793], "person to *618 whom he [a minor] normally looks" for help.[2] Admittedly there is language in the Supreme Court opinion that might be interpreted as indicating that that court would take a similar view of a right to see grandparents. However, in its action in the case before us, the United States Supreme Court did not reverse our judgment on the authority of Michael C. but merely directed us to reconsider our opinion "in the light of" that opinion. We have obeyed that direction.
(2) It is now well settled that, although a California court must give to a defendant at least as full rights as the Constitution of the United States, as construed by the United States Supreme Court, requires, a California court may, in applying our own state constitutional requirements, afford to a defendant rights greater than those required by the federal Constitution. In the context of this case, a requirement of warnings similar to those required by Miranda, were earlier required by the Supreme Court of California. (People v. Dorado (1965) 62 Cal.2d 338 [42 Cal. Rptr. 169, 398 P.2d 361].)
As we have pointed out below, the California Supreme Court has held that Miranda extends to a right to consult with parents; the decision in Michael C. does not hold that that interpretation of Miranda is federally incorrect.
(1b) In the present status of this case and of the California decisions, we conclude that it is our duty, as an intermediate appellate court, to follow and apply what we regarded, and still regard, as the applicable California law. If our Supreme Court decides, in light of the language in Michael C., either to overrule or to distinguish Burton, it will then face the issue, not here properly before us, of whether it should construe our own state Constitution as requiring, in a California prosecution, the right of consultation herein involved.
The People argue that the minor's confession to the deputies was immaterial since he had, earlier, made a confession to a school official. However, there was a serious issue as to a defense of diminished capacity and the record makes it clear that the confession to the deputies was heavily relied on by the People to rebut that defense. Under those circumstances, as we said in our earlier opinion, the admission of the *619 confession to the deputies cannot be said, beyond a reasonable doubt, to be nonprejudicial.
The judgment is reversed.
JEFFERSON (Bernard), J.[*]
I agree with the result and the reasoning set forth in the opinion of Justice Kingsley. However, I would add additional reasons for reaching the result that the minor's confession was obtained by the police in violation of his constitutional rights.
In the case at bench we are dealing with a 13-year-old minor and he stands in a different light than that of an adult or of an older minor. I have had occasion to express my views of the law on this subject recently, but I feel impelled to reiterate these views in this case now before us.
I
Any Interrogation of a 13-year-old Minor in the Absence of Counsel Is Invalid Irrespective of Miranda Warnings and an Asserted Waiver Thereof
I am unable to accept the assumption indorsed by the dissent in the instant case that a 13-year-old minor stands in the position of an adult insofar as the principle of law is concerned that a suspect may waive his constitutional right to remain silent and to have an attorney pursuant to the requirements of Miranda. Such a principle of law should have no application to a 13-year-old minor. Irrespective of what the Supreme Court of the United States might hold with respect to the rights of minors under the federal Constitution, I am of the opinion that the California Constitution should be interpreted to preclude the application of a Miranda waiver to any minor who is not more than 13 years of age. It is an erroneous assumption to couch a principle of law in terms that such a minor is capable of understanding the constitutional rights involved in the Miranda warnings and in holding that he has the capacity to intelligently and knowingly waive such rights.
It is my view that such a waiver of constitutional rights should be held to be impermissible with respect to such a minor. I would interpret the California Constitution to provide that no interrogation by the police *620 should be permitted of a minor 13 years of age or younger in the absence of counsel. It should be mandatory that an attorney be appointed for any such minor, and that no interrogation of such minor by a police officer be permitted unless there is a waiver by the minor upon advice of counsel appointed for such minor. It is my position that a mandatory appointment of counsel for a minor no more than 13 years of age should be a prerequisite under the California Constitution for the validity of any waiver of the right to remain silent.
I recognize that in some respects the doctrine of Miranda has been relaxed, rather than strengthened. Thus, if it is believed that a victim's life hangs in the balance, a defendant may be interrogated about the victim's whereabouts without giving the Miranda warnings. "While life hangs in the balance, there is no room to require admonitions concerning the right to counsel and to remain silent." (People v. Dean (1974) 39 Cal. App.3d 875, 882 [114 Cal. Rptr. 555]; see, also, People v. Modesto (1965) 62 Cal.2d 436, 446 [42 Cal. Rptr. 417, 398 P.2d 753]; People v. Riddle (1978) 83 Cal. App.3d 563, 572 [148 Cal. Rptr. 170].) But in the situation presented in the case at bench of a 13-year-old minor, the Miranda protection should be strengthened by a mandatory requirement of appointment of counsel before any attempt is made by police officers to secure statements from such a minor. Since no counsel was appointed for the minor in the case at bench, I would hold that the minor's confession should be deemed inadmissible under the appropriate provisions of the California Constitution.
II
The Totality Approach Set Forth in Fare and Espoused by the Dissent Mandates a Holding That There Was No Waiver of Fifth Amendment Rights
The dissent sets forth portions of the record to sustain the view that the 13-year-old minor before us made an intelligent waiver of his Miranda rights. Even under the principle that a 13-year-old minor has the capacity to waive his Miranda rights, including the right of counsel a rule of law to which I do not subscribe the record before us does not support the conclusions reached by the dissent. I draw totally different inferences and conclusions from this same record.
*621 The record of the entire conversation between the minor and the officers, which lasted approximately 30 minutes, does not "reflect[s] an atmosphere free of intimidation and coercion." On the contrary, this record convinces me that the minor's confession was obtained by "intimidation and coercion." I can see no basis for a holding that the trial judge could reasonably find that the minor made a knowing and voluntary waiver of his Miranda rights. In People v. Jimenez (1978) 21 Cal.3d 595 [147 Cal. Rptr. 172, 580 P.2d 672], the high court established the burden-of-proof rule that when a defendant raises the issue that his confession was involuntary, the burden is upon the prosecution to prove beyond a reasonable doubt that the confession was voluntary as a preliminary fact to the admissibility of the confession.
It is my view that, in the case at bench, the record establishes, as a matter of law, that the evidence is insufficient to support a finding, beyond a reasonable doubt, of a Miranda waiver by the minor. The judgment below, therefore, must be reversed, even if Fare v. Michael C. (1979) 442 U.S. 707 [61 L.Ed.2d 197, 99 S.Ct. 2560], were to be considered as controlling over People v. Burton (1971) 6 Cal.3d 375 [99 Cal. Rptr. 1, 491 P.2d 793], discussed in the lead opinion herein.
BURKE (M.L.), J.[*]
I respectfully dissent. My reading of the decision of the United States Supreme Court in Fare v. Michael C. (1979) 442 U.S. 707 [61 L.Ed.2d 197, 99 S.Ct. 2560], brings forth but one conclusion: It is an impermissible extension of the Miranda rules to reverse the order of commitment of the minor in this case because the officers before questioning him never informed him that his grandparents were nearby and available to talk with him, and never specifically asked him if he wanted to talk to them.
Under the ruling of the court in Fare v. Michael C., supra, the question of whether a waiver of Miranda rights is free and intelligent be it a waiver by an adult or one by a juvenile is to be resolved on the totality of the circumstances surrounding the waiver. Using the court's language in Fare, "This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where the interrogation of juveniles is involved." (442 U.S. at p. 725 [61 L.Ed.2d at p. 212].)
*622 Fare v. Michael C., supra, involved the refusal of the arresting officers to honor the minor's request to see his probation officer before questioning him. The California Supreme Court, in In re Michael C. (1978) 21 Cal.3d 471, 478 [146 Cal. Rptr. 358, 579 P.2d 7], had held that, in the absence of strong evidence to the contrary, when a minor asks for his probation officer, he is invoking his privilege against self-incrimination and questioning must cease until the request is honored. In reversing that decision, the court in Fare preliminarily observed: "This Court, however, has not heretofore extended the per se aspects of the Miranda safeguards beyond the scope of the holding in the Miranda case itself. We therefore must examine the California court's decision to determine whether that court's conclusion so to extend Miranda is in harmony with Miranda's underlying principles." (442 U.S. at p. 717 [61 L.Ed.2d at p. 207].)
The court then reasoned that to permit the extension of the per se aspects of the Miranda requirements where the minor's request was to see his probation officer "would impose the burdens associated with the rule of Miranda on the juvenile justice system and the police without serving the interests that rule was designed simultaneously to protect. If it were otherwise, a juvenile's request for almost anyone he considered trustworthy enough to give him reliable advice would trigger the rigid rule of Miranda." (Fare, 442 U.S. at p. 723 [61 L.Ed.2d at p. 211].)
The court concluded: "We hold, therefore, that it was error to find that the request by respondent to speak with his probation officer per se constituted an invocation of respondent's Fifth Amendment right to be free from compelled self-incrimination. It therefore was also error to hold that because the police did not then cease interrogating respondent the statements he made during interrogation should have been suppressed." (Fare, 442 U.S. at p. 724 [61 L.Ed.2d at p. 212].)
The lead opinion would limit the applicability of the holding in Fare to its bare facts, namely, where there is a request by a minor to see a probation officer. It is asserted that the earlier holdings in the line of California cases culminating in People v. Burton (1971) 6 Cal.3d 375 [99 Cal. Rptr. 1, 491 P.2d 793], are still good law and should be followed here under the theory that the California Constitution may be interpreted to afford to a defendant rights greater than those required under the federal Constitution.
*623 However, nowhere in any of those cases do I find any indication whatsoever that the decisions were based on state constitutional requirements. Rather, they refer to the Fifth Amendment and Miranda.
In summing up its holding, the court in Burton (which the lead opinion relies upon) said: "[W]hen ... a minor is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents, made at any time prior to or during questioning, must, in the absence of evidence demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege." (Italics added.) (People v. Burton, supra, at pp. 383-384.)
And the United States Supreme Court, in Fare v. Michael C., supra, 442 U.S. at pages 716-717 [61 L.Ed.2d at page 207], said of the California Supreme Court decision in that case: "We note at the outset that it is clear that the judgment of the California Supreme Court rests firmly on that court's interpretation of federal law."
Not only do all of the cases cited in the lead opinion rely on the United States Constitution, but so do each of the cases on which they are based. Even People v. Dorado (1965) 62 Cal.2d 338 [42 Cal. Rptr. 169, 398 P.2d 361], decided before Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], is grounded on cases from the United States Supreme Court and the federal Constitution.
A state is free as a matter of its own law to impose greater restrictions on police activity than those which the United States Supreme Court holds to be necessary based upon federal constitutional standards. (Cooper v. California (1967) 386 U.S. 58, 62 [17 L.Ed.2d 730, 733-734, 87 S.Ct. 788]; Sibron v. New York (1968) 392 U.S. 40, 60-61 [20 L.Ed.2d 917, 933-934, 88 S.Ct. 1889].) However, "a State may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them." (Oregon v. Hass (1975) 420 U.S. 714, 719 [43 L.Ed.2d 570, 576, 95 S.Ct. 1215].) (Italics in original.)
In any event, I still cannot see how Burton or any of the cases cited therein provide support for the position taken in the lead and concurring opinions. The minor in the present case never made any request to see his grandparents. By reversing because the officers did not summon *624 the relatives to consult with the minor before questioning him, notwithstanding that no request was made for their presence, the holding of this case extends Miranda beyond the line of cases cited and beyond any decision my research has disclosed.
I believe that the United States Supreme Court, in remanding this case for reconsideration in the light of the Fare decision, has in effect directed that this court reconsider its decision using the totality of the circumstances approach enumerated in Fare.
The court in Fare explained that: "The totality approach permits indeed, it mandates inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights....
"Where the age and experience of a juvenile indicate that his request for his probation officer or his parents is, in fact, an invocation of his right to remain silent, the totality approach will allow the court the necessary flexibility to take this into account in making a waiver determination...." (Fare, 442 U.S. at p. 725 [61 L.Ed.2d at pp. 212-213].)
Application of the totality approach requires a more detailed statement of the facts than the summary set out in the lead opinion. I quote from the statement of the facts as outlined in the original opinion filed in this case, which is found in In re Patrick W. (1978) 84 Cal. App.3d 520, at pages 523-524 [148 Cal. Rptr. 735], as follows: "In February 1977, the minor lived in Acton California, with his mother, a sister Deanna, age 11, and his stepfather, Edward Bullis, a Los Angeles police officer, who had married the minor's mother in 1973. Patrick and his stepfather did not get along well together, had often quarreled, and on some occasions there had been physical mistreatment of the boy by his stepfather. The mother worked in Los Angeles and was away from home much of the time.
"On the afternoon of February 22, 1977, Deanna complained to her stepfather that the minor had fought with her and had caused her to cry. The stepfather became so angry that he choked the minor into unconsciousness. On the following day the minor got his stepfather's rifle and loaded it while both parents were gone, telling his sister that he *625 wanted to kill the stepfather, but then he `chickened out' and put the rifle away before Mr. Bullis came home. On the next day, however, after the parents had left, the minor told his sister to stay home from school, said he was going to kill Mr. Bullis and again obtained the rifle, loaded it and took a practice shot with it while waiting for the stepfather to return from work. As Bullis arrived home about 5:30 p.m. and started to enter the house through a sliding glass door he was shot fatally in the chest. The minor then took money from the decedent's pocket, buried the body and left home with his sister, spending the night on a hill nearby.
"On the following day the minor's school principal received a phone call from a motorist who had picked up the minor and his sister hitchhiking on the freeway. The minor had admitted they were running away from home and the motorist had left them at an off-ramp in Saugus. The principal drove to that location, saw the children and told them he would drive them back to school. The minor was reluctant to get in the car saying that `he just couldn't go back, and he couldn't face his mother' and finally stating that he had shot and buried his stepfather. The minor and his sister were then persuaded to enter the principal's car and he drove them to the school where they were taken into custody by sheriff's deputies. Decedent's body had been discovered in the meantime by Los Angeles police officers who had gone to the Acton home in response to Mrs. Bullis' report that decedent and the two children were missing. The minor's maternal grandparents had also arrived in Acton by the time the body was found. They were told that the two children were being taken to the Antelope Valley sheriff's office in Lancaster for questioning. The grandparents arranged to stay at a motel in Palmdale with the mother that night and informed a sheriff's deputy where they would be. Earlier the grandparents had been told that they would not be able to visit the minor for a period of 24 hours, although this statement was probably not made by a sheriff's representative but rather by one of the Los Angeles police officers who had gone to the Bullis home voluntarily to help in the search for their fellow officer.
"The minor was interviewed by Detectives Rasure and Villarreal at approximately 10 p.m. that night in the Antelope Valley sheriff's station, some three and one-half hours after being taken into custody...."
The interview with the minor was tape recorded and the tape was introduced in evidence and played for the trial court. A transcript of the *626 tape was also prepared and introduced as an exhibit. The transcript reveals the following questions and answers relevant to the Miranda issue:
"Q. Patrick Steven ____ [last name deleted]. How old are you?
"A. 13.
"Q. Okay. I'm gonna write before we start, you know that this interview will be tape recorded?
"A. Yes, I do.
"Q. And the recording is going on now? Okay, I got to give you your Admonition and Waiver of Rights and I'm gonna go very slow so you understand and we understand that you understand each and every right that you have okay?
"A. Yeah.
"Q. Alright. Number 1: That you have the right to remain silent. Anything you say can and will be used against you in a court of law. You know what I said so far?
"A. Yes.
"Q. You understand that you have that right to remain silent, and anything you say can and will be used against you?
"Q. You have the right to talk to a lawyer before we talk to you and to have him present while we talk to you. And if, you know, you don't want an attorney you can have your mother or any, you know, legal guardian with you. You understand that?
"A. Yes.
"Q. Okay. You don't, you know, okay, as long as you understand you can have your mom or an attorney, someone with you to protect your rights. Okay, if you cannot afford to hire a lawyer one will be appointed to represent you before any questioning, free of charge. Do you understand what I've just explained to you?
*627 "A. Yes.
"Q. Okay. With I know you say yes, and so on, but, tell me what I just told you, okay?
"A. You told me that I don't have to talk to you without my lawyer or my mom or somebody like that.
"Q. Uh-huh.
"A. And I don't I don't have to answer questions without somebody present.
"Q. Do you want to talk about the case?
"A. I guess, if it's gonna be best.
"Q. Well, that's up up to you, you know, you have your rights to be protected, you know, you have the rights and so on, and also that that uh, the reason we explain these things to you is so you know what your rights are.
"A. Uh-huh.
"Q. So, and that's why we ask you that if you can (Unintelligible) that we don't want to force you or coerce you in any form or way.
"A. Yeah.
"Q. You you understand that?
"A. Yes.
"Q. Okay, and that's why that's why we ask you if if you wanted to talk or not?
"A. Yeah.
"Q. Okay. Do you want an attorney or not?
"A. I'm not sure, I'll have to talk to my parents, to my mother, I don't know.
*628 "Q. Okay, do you want to see your mother?
"A. No, not really. Just answer questions whatever you want or
"Q. You just want to talk about the case, huh?
"A. I guess.
"Q. Let it all out.
"A. What whatever you want is fine, right.
"Q. Okay. What we want is just you know, to find out the truth, what happened, you know and that's all, but again, we also want to protect your rights, and that's why we're going through what we have and what we're doing here. Can you scoot up a little bit here so everything (Unintelligible). Okay, then, my partner is Duane Rasure, he's going to be asking you some questions and anything and at anytime, anytime during this, when we're talking to you, if you don't want to say anything, you just want to quit talking, you tell us okay?
"A. Uh-huh.
"Q. You understand that?
"A. Yes.
"Q. Okay, and that's at any point?
"A. Alright.
"Q. Okay, uh, have you got any anything there, uh, Duane?
"Q. RASURE: You said earlier, do you go by the name Patrick?
"A. Uh-huh.
"Q. Okay, Patrick, you said earlier that uh, you understand your rights, you knew about all that stuff?
"A. Yes.
*629 "Q. Where did you learn those kind of things?
"A. From my father.
"Q. He explained to you about right and how
"A. No.
"Q. This all works?
"A. Well, uh, he gave me a pamphlet, uh, like a card.
"Q. This card that you I'm sorry go ahead.
"Q. We're talking.
"A. Well, he had many of these cards, and he gave me one and I read my rights and I asked him questions and he explained.
"Q. I see. He has how long have you lived with him?
"A. Five (5) years.
"Q. Five (5) years. He has taught you a little bit about the law?
"A. A little bit."
The minor then proceeded to tell in detail how he planned and carried out the killing and burial of his stepfather. The interview consumed approximately 30 minutes.
The transcript of the interview with the minor depicts an intelligent, fairly sophisticated, albeit youthful, boy of 13. He told the officers that his stepfather had talked to him about the law, and had answered his questions and explained to him about Miranda rights. According to the minor, his stepfather had given him a card containing the Miranda rights. The transcript shows that the officers slowly and carefully went over the rights with the minor, and assured themselves that he understood his rights by asking that he explain his understanding of the rights, which he did in an intelligent, knowledgeable fashion. The record of the entire conversation between the minor and the officers, which consumed approximately 30 minutes, reflects an atmosphere free *630 of intimidation and coercion. Those conditions and circumstances certainly do not lend themselves to the conclusion that the minor was either incapable of understanding or waiving his privilege against self-incrimination.
Considering all of the circumstances, including the fact that the minor had earlier that day, before being taken into custody, confessed to his school principal, I believe the conclusion of the trial judge that the minor understood and waived his privilege against self-incrimination was correct. The minor's confession was therefore properly admitted against him.
I would affirm.
The People's petition for a rehearing was denied on May 1, 1980, and the following opinion was then rendered:
THE COURT.[*]
As the Attorney General admits in his supplemental brief, both the mother and grandmother had asked the police to see the minor, at a time before his confession was obtained. That the officers to whom they talked, and who refused the request, did not communicate it to the interviewing officer is immaterial.
BURKE (M.L.), J.[]
I would grant rehearing for the reasons set forth in my dissent.
Respondent's petition for a hearing by the Supreme Court was denied June 12, 1980. Clark, J., Richardson, J., and Manuel, J., were of the opinion that the petition should be granted.
NOTES
[1] Since our former opinion sets forth in full detail the facts of this case, we here give only a summary of them in such detail as is required for this opinion.
[2] It is here immaterial to speculate over whether minor would have exhibited the same reluctance to facing his grandparents as he had to facing his mother. The choice was his; he was never given that choice.
[*] Assigned by the Chairperson of the Judicial Council.
[*] Before Kingsley, Acting P.J., Jefferson (Bernard), J.,[] and Burke (M.L.), J.,[]
[] Assigned by the Chairperson of the Judicial Council.
|
280 F.2d 275
C. M. WELLS, Appellant,v.UNITED STATES of America, Appellee.
No. 16660.
United States Court of Appeals Ninth Circuit.
July 1, 1960.
Leavy & Taber, Pasco, Wash., for appellant.
Perry W. Morton, Asst. Atty. Gen., Dale M. Green, U.S. Atty., Spokane, Wash., Roger P. Marquis, Robert S. Griswold, Jr., Attys., Dept. of Justice, Washington, D.C., for appellee.
Before ORR, HAMLEY and HAMLIN, Circuit Judges.
ORR, Circuit Judge.
1
Appellant is lessee of government owned land acquired in connection with an Atomic Energy Commission (hereafter A.E.C.) installation, and, as required by the lease, he has constructed a building on said land. The term of the lease expires the year 2070, with an option to renew. The A.E.C. has offered the leased property for sale. Under the terms of the Atomic Energy Community Act of 1955, as amended, 69 Stat. 472, 42 U.S.C.A. 2301 et seq., which governs the proposed sale by the A.E.C., lessees are to be given a prior right to purchase the property they have leased and an 'improvement credit' is to be given them and deducted from the purchase price. 42 U.S.C.A. 2326, 2332. The deduction allowed is the amount by which the property has been increased in value by improvements made by the lessee at his expense. Appellant has been afforded the prior right to purchase the leased property, but a controversy arose between him and the A.E.C. as to what comprised the improvements for which he was entitled to a credit, appellant claiming that the long term lease itself was such an improvement. The A.E.C. thereupon convened a special Appeal Board, as is provided by its regulations, to consider appellant's claim. A hearing was had in which appellant appeared before the Board represented by counsel. Thereafter, the Board denied his claim. Appellant then caused a complaint to be filed in the United States District Court for the Eastern District of Washington, Southern Division, praying for a declaratory judgment. The district court dismissed the action because it was against the United States and was a suit to which it had not consented. It is conceded that the action is against the United States. The remaining question is: Has the United States given its consent? We conclude that it has not.
2
The Declaratory Judgment Act, 28 U.S.C.A. 2201, upon which appellant relies as the basis for the relief sought herein, provides as follows:
3
'In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.'
4
It is well settled, however, that said Act does not of itself create jurisdiction; it merely adds an additional remedy where the district court already has jurisdiction to entertain the suit. See Brownell v. Ketcham Wire & Manufacturing Co., 9 Cir., 1954, 211 F.2d 121. It is appellant's theory that the Tucker Act, 28 U.S.C.A. 1346(a)(2), authorizes the present suit against the United States. That Act in relevant part reads:
5
'(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
6
'(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract wirh the United States, or for liquidated or unliquidated damages in cases not sounding in tort.'
7
This Act does not give consent to suits where only declaratory or other equitable relief is sought. It applies only to suits for recovery of money damages. United States v. Jones, 1889, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90; Blanc v. United States, 2 Cir., 1957, 244 F.2d 708, certiorari denied 355 U.S. 874, 78 S.Ct. 126, 2 L.Ed.2d 79; Clay v. United States, 1953, 93 U.S.App.D.C. 119, 210 F.2d 686.
8
In the instant case, Congress gave appellant a 'bounty' in that it afforded him a prior right to purchase the land covered by his lease and in addition allowed a deduction from the sales price of the value of any improvements he had made 'When the United States creates rights in individuals against itself, it is under no obligation to provide a remedy through the courts. * * * It may limit the individual to administrative remedies.' Lynch v. United States, 1934, 292 U.S. 571, 583, 54 S.Ct. 840, 845, 78 L.Ed. 1434. It is evident that Congress so intended to limit the remedy of individual lessees with respect to rights the Atomic Energy Community Act creates. The purpose of Congress in enacting the provisions in said Act dealing with the disposal of property was to provide for expeditious and orderly sales by giving the A.F.C. authority to administer them. Judicial review of A.E.C. determinations would defeat that goal. Section 2309 of Title 42 U.S.C.A. reads:
9
'Determinations authorized by this chapter to be made by the Commission as to classification, priorities, prices, and terms and conditions of sale of property disposed of under this chapter shall be subject to review only in accordance with such provisions for administrative review or reconsideration as the Commission may prescribe.'
10
No provision appears which authorizes judicial review of determinations made by the Commission. We conclude that the full hearing before the Board of Appeals convened by the Commission exhausted appellant's remedies.
11
Judgment affirmed.
|
555 F.Supp.2d 137 (2008)
Ralph NADER et al. Plaintiffs,
v.
THE DEMOCRATIC NATIONAL COMMITTEE et al. Defendants.
Civil Action No. 07-2136 (RMU).
United States District Court, District of Columbia.
May 27, 2008.
*144 Oliver B. Hall, Washington, DC, for Plaintiffs.
Joseph E. Sandler, Sachs, Greenebaum & Tayler, John Hardin Young, Stephen E. Hershkowitz, Sandler, Reiff & Young, P.C., Marc Erik Elias, Perkins Coie, LLP, Lawrence Mark Noble, Skadden Arps Slate Meagher & Flom LLP, Carolyn Utrecht, Ryan, Phillips, Utrecht & Mackinnon, Michael B. Trister, Lichtman, Trister, & Ross, PLLC, Douglas Kevin Spaulding, Lasagne A. Wilhite, Reed Smith LLP, Laurence E. Gold, Washington, DC, for Defendants.
MEMORANDUM OPINION
GRANTING THE DEFENDANTS' MOTIONS TO DISMISS
RICARDO M. URBINA, District Judge.
I. INTRODUCTION
In 2000, Ralph Nader campaigned for the presidency of the United States and earned over 2.8 million votes, 2.74 percent of all votes cast. In 2004, he again threw *145 his hat in the ring, this time garnering only 465,650 votes, a sliver more than one-third of one percent of the total vote and less than one-fifth of the amount he collected in 2000.[1] Rather than attributing his poor showing to public disenchantment with independent candidates following the closely divided 2000 presidential election or an unpopular platform or any one of the array of reasons that voters choose one candidate over another, Nader, along with Peter Camejo (his 2004 running mate) and six voter plaintiffs hailing from Arizona, Ohio and Oregon allege that the defendants, the Democratic National Committee ("DNC"), DNC attorney Jack Corrigan, DNC consultant Robert Brandon, Michigan Democratic Party Chair and DNC Vice Chair Mark Brewer, John Kerry, the Democratic Party's presidential nominee in 2004, Kerry-Edwards 2004, Inc., The Ballot Project, Inc. and its president Toby Moffett and director Elizabeth Holtzman, America Coming Together ("ACT"), Service Employees International Union ("SEIU") and the law firm Reed Smith, LLP, engineered his defeat by conspiring to deprive him of votes and campaign cash via ballot eligibility challenges in multiple suits across the country. Specifically, the plaintiffs charge the defendants with civil conspiracy, malicious prosecution and abuse of process.
The defendants move to dismiss, arguing that the plaintiffs have failed to state a claim, that the relevant statutes of limitation bar suit and that the defendants' actions are protected as the exercise of their First Amendment right of petition. They further argue that this court lacks jurisdiction because the plaintiffs lack standing, that the plaintiffs' request for injunctive relief is moot and that the plaintiffs' claims must be dismissed because they invite the review and rejection of a state-court judgment rendered before proceedings commenced in federal court. Because this court lacks jurisdiction to consider the plaintiffs' malicious prosecution claims that directly attack prior state court judgments, and because the First Amendment bars the remaining claims, the courts grants the defendants' motions to dismiss and dismisses the amended complaint.
II. BACKGROUND
A. Factual History
The plaintiffs allege that the defendants conspired to file twenty-four complaints in eighteen state courts and five complaints before the Federal Election Commission ("FEC") within a twelve-week period between June and September of 2004. Am. Compl. ¶ 3.[2] Seeking to improve John Kerry's chances by removing Nader as a competitor from the race, the defendants brought multiple challenges to Nader's candidacy not, the plaintiffs insist, "to vindicate valid legal claims, but rather to bankrupt Nader-Camejo's campaign by forcing the candidates to spend their limited resources of time, talent and money on the defense of unfounded lawsuits." Id. ¶ 4. Nader eventually loaned his own campaign $100,000 "to cover legal bills, staff salaries and operating expenses," which the campaign never paid back. Am. Compl. ¶ 228. Ultimately, the FEC dismissed the complaints, and the defendants prevailed in only five states Arizona, Illinois, Ohio, Oregon and Pennsylvania in keeping Nader off the ballot. Id. ¶ 4; *146 DNC's Mot. to Dismiss, Ex. 1. In Pennsylvania defendant Reed Smith secured an $81,102.19 judgment against Nader personally for litigation costs, for which the firm brought attachment proceedings in D.C. Superior Court for $61,638.45. Am. Compl. ¶ 229.
B. Procedural History
The plaintiffs filed a complaint in the Superior Court for the District of Columbia on October 30, 2007, accusing the defendants of conspiracy and abuse of process and malicious prosecution in Arizona, Arkansas, Colorado, District of Columbia, Florida, Illinois, Iowa, Maine, Michigan, Mississippi, Nevada, New Hampshire, New Mexico, Ohio, Oregon, Pennsylvania, Washington, West Virginia and Wisconsin. Compl. ¶¶ 238-43. The complaint also alleged conspiracy and violations under 42 U.S.C. § 1983 of the Qualifications Clause and the First and Fourteenth Amendments of the U.S. Constitution. Id. ¶¶ 244-55. On October 31, 2007, the plaintiffs filed a similar complaint in the Eastern District of Virginia raising the same constitutional claims against different defendants. On November 27, 2007, the Superior Court defendants removed the case to this court. On January 23, 2008, the plaintiffs amended their complaint, deleting the counts alleging constitutional violations. The plaintiffs also filed a motion to remand but withdrew the motion on March 13, 2008, a day after the Eastern District of Virginia transferred its case to this court after denying the plaintiffs leave to amend and denying without prejudice the defendants' pending motions to dismiss. No motion to consolidate these actions has been filed, and no pending motions remain in the action transferred from the Eastern District of Virginia. The court's opinion today, therefore, considers only the pending motions to dismiss in the action raising state tort claims removed from the Superior Court.
III. ANALYSIS
A. Standing
1. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)
Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); St. Paul Mercury Indent. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C.Cir.2004) (noting that "[a]s a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction").
Because "subject-matter jurisdiction is an `Art. Ill as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject-matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The court may dismiss a complaint for lack of subject-matter jurisdiction only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 315 F.3d 338, 343 (D.C.Cir.2003) (quoting Conley *147 v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
Because subject-matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiffs factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C.Cir.2003); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). Thus, the court is not limited to the allegations contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). When necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Herbert v. Nat'l Acad, of Scis., 974 F.2d 192, 197 (D.C.Cir.1992).
2. Legal Standard for Standing
Article III of the Constitution limits the jurisdiction of federal courts to cases or controversies. U.S. CONST, art. Ill, § 2, cl. 1. These prerequisites reflect the "common understanding of what it takes to make a justiciable case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Consequently, "a showing of standing is an essential and unchanging predicate to any exercise of a court's jurisdiction." Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing standing. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130; Steel Co., 523 U.S. at 104, 118 S.Ct. 1003; City of Waukesha v. Envtl Prot. Agency, 320 F.3d 228, 233 (D.C.Cir.2003) (per curiam). The extent of the plaintiffs burden varies according to the procedural posture of the case. Sierra Club v. Envtl. Prot. Agency, 292 F.3d 895, 898-99 (D.C.Cir. 2002). At the pleading stage, general factual allegations of injury resulting from the defendant's conduct will suffice. Id.
To demonstrate standing, a plaintiff must satisfy a three-pronged test. Sierra Club, 292 F.3d at 898 (citing Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130). First, the plaintiff must have suffered an injury in fact, defined as a harm that is concrete and actual or imminent, not conjectural or hypothetical. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 243 (D.C.Cir.1999) (citing Steel Co., 523 U.S. at 103, 118 S.Ct. 1003). Second, the injury must be fairly traceable to the governmental conduct alleged. Id. Finally, it must be likely that the requested relief will redress the alleged injury. Id. Our court of appeals has made clear that no standing exists if the plaintiffs allegations are "purely speculatively, which is] the ultimate label for injuries too implausible to support standing." Tozzi v. Dep't of Health & Human Servs., 271 F.3d 301, 307 (D.C.Cir. 2001). Nor is there standing where the court "would have to accept a number of very speculative inferences and assumptions in any endeavor to connect the alleged injury with [the challenged conduct]." Winpisinger v. Watson, 628 F.2d 133, 139 (D.C.Cir.1980).
3. The Court Dismisses the Voter Plaintiffs from the Amended Complaint
The defendants raise a number of threshold objections to the plaintiffs' *148 standing to bring this case. Starting with the six voter plaintiffs, SEIU urges that, as the amended complaint no longer alleges any constitutional violations, the voter plaintiffs cannot remain in this action based solely on the "common-law torts arising from litigation against Nader-Camejo in which none of the voter plaintiffs were involved." SEIU's Mot. to Dismiss at 22. The plaintiffs respond that the transferred action from the Eastern District of Virginia does include constitutional claims and that they "expect it to be consolidated with the case at bar." Pls.' Opp'n at 34 n. 10.
These motions to dismiss are ripe now, however. And the plaintiffs have not translated their future expectation into any present action. Nor have they sought to reinstate their constitutional claims in this complaint. The only injury the voter plaintiffs allege is the denial of their constitutional right to a "free choice of candidates." Am Compl. ¶¶ 231-321. But they were not parties to the ballot litigation in any state. They do not even allege that they were petitioners inconvenienced by compulsory process in these suits. Nor do they allege that they incurred any financial injury as a consequence of the defendants' litigation.[3] To allow the voter plaintiffs to sue for abuse of process and malicious prosecution in regards to litigation in which they played no part and by which they were only derivatively affected would constitute a bold, even reckless extension of the doctrines of justiciability restricting federal-court jurisdiction. See, e.g., Chapman v. Anderson, 3 F.2d 336, 339 (D.C.Cir.1925) (holding that an action for malicious prosecution requires the establishment, inter alia, of the fact that the defendant prosecuted the plaintiff); Edmondson & Gallagher v. Alban Towers Tenants Ass'n, 829 F.Supp. 420, 426 (D.D.C.1993) (dismissing abuse of process and malicious prosecution claims on account of plaintiffs lack of privity with defendants); Morowitz v. Marvel, 423 A.2d 196, 198 (D.C.1980) (holding that an abuse of process claim requires proof that "process has been used to ... compel[ ] the party against whom it is used to do some collateral thing which he could not legally and regularly be required to do").[4] The proposition that the voter plaintiffs cannot remain in this action by piggybacking on the Nader-Camejo plaintiffs' common-law claims[5] being self-evident, the court dismisses the voter plaintiffs from this action.
*149 4. Nader and Camejo Sufficiently Demonstrate Standing
The defendants next challenge the standing of Nader and Camejo. Nader contends that the defendants' litigiousness distracted him and his campaign from seeking votes and compelled him to loan $100,000 to his own campaign "to cover legal bills, staff salaries and operating expenses," which the campaign never repaid. Am. Compl. ¶ 228. Moreover, Nader and Camejo represent that defendant Reed Smith obtained a judgment of costs against Nader and Camejo in a Pennsylvania court and, subsequently; commenced attachment proceedings against $61,638.45 of Nader's personal funds in D.C. Superior Court and induced Camejo to pay $20,000 to settle its claim against him. Id. ¶ 229.
SEIU argues that Nader's campaign loan is not an injury because he made it voluntarily[6] and has not demonstrated that the amount and purpose of the loan was to compensate for costs imposed on the campaign by the defendants. SEIU's Mot. to Dismiss at 22 n. 14. Similarly, the DNC argues that the plaintiffs have not shown how the defendants prevented the Nader-Camejo campaign from repaying the loan. DNC's Mot. to Dismiss at 17. As for Nader and Camejo's personal financial losses, the DNC insists that the Pennsylvania court's order is not part of the alleged conspiracy to deprive the plaintiffs of ballot access. DNC's Reply at 6. Moreover, for the court to remedy that loss would require it to overrule the Pennsylvania Supreme Court, a result barred by the Rooker-Feldman doctrine. Id. Additionally, the defendant questions whether any financial loss is redressable, as the campaign is the entity that owes Nader money and is beyond the court's jurisdiction because it is not a party.[7]Id. at 20. The plaintiffs maintain that standing requires one only to show that an injury is traceable to the defendant, not to meet the burden of production on the causation element of a tort claim. Pls.' Opp'n at 35-36.
The plaintiffs correctly point out that the "fairly traceable" standard is not equivalent to a requirement of tort *150 causation. Natural Res. Def. Council, Inc. v. Watkins, 954 F.2d 974, 980 n. 7 (4th Cir.1992). The "fairly traceable" requirement "is in large part designed to ensure that the injury complained of is `not the result of the independent action of some third party not before the court.'" Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 162 (4th Cir.2000) (quoting Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130). The plaintiffs' allegation that the defendants' nationwide onslaught of litigation distracted the campaign and compelled Nader to loan his campaign $100,000 is sufficient to establish Article III standing because it traces an injury to the defendant's conduct even if the proximate cause of that injury may lie elsewhere. See Canyon County v. Syngenta Seeds, Inc., 519 F.3d 969, 975 n. 7 (9th Cir.2008) (holding that county met Article III causation threshold by alleging that defendants' hiring of undocumented immigrants within county caused additional strain on county-provided health and public safety services); Barbour v. Haley, 471 F.3d 1222, 1226 (11th Cir.2006) (explaining that "for purposes of satisfying Article Ill's causation requirement, we are concerned with something less than the concept of proximate cause") (citation and internal quotation marks omitted); Lerner v. Fleet Bank, N.A., 318 F.3d 113, 122 n. 8 (2d Cir.2003) (holding that plaintiffs failed to meet RICO proximate causation requirements but satisfied "the lesser burden for constitutional standing" by alleging that they would have ceased investing in attorney's fraudulent investment scheme had defendants met reporting requirements that would have resulted in attorney being promptly disbarred). The defendants (rather than the Nader-Camejo 2004 Campaign) are allegedly responsible for Nader's campaign loan, because Nader clearly alleges that but for the defendants' tortious activity he would not have been compelled to make the loan. Am. Compl. ¶ 228. This traces the injury back to the defendant; the fact that a more recent causal act (the campaign's default on the loan) intervened might break the chain of proximate cause, but that issue will not bar the plaintiffs' claims' at this procedural stage.
Whether Nader or] Camejo can assert standing based on financial obligations to Reed Smith depends on whether their loss is fairly traceable to the defendants or the Pennsylvania Supreme Court. The plaintiffs argue that the Pennsylvania judgment was secured by means of Reed Smith's perpetration of a fraud on the court, namely, the "concealment of [Reed's] ties with the Pennsylvania Supreme Court Justices." Id. ¶¶ 198, 192, 195, 229. The defendants argue that the Rooker-Feldman doctrine bars the court from considering this argument, as to do so would require a federal district court to act in an appellate capacity beyond its jurisdictional capacity by reviewing a state court's judgment. DNC's Reply at 6. As explained in greater depth later, the court concludes that the Rooker-Feldman doctrine does not preclude the exercise of this court's jurisdiction over the plaintiffs' abuse of process claims predicated on the litigation in Pennsylvania. See infra III.A.6. Because attachment proceedings have commenced against Nader in D.C., and because Camejo's settlement was predicated on an adverse judgment of costs, they both have standing to bring this suit based on their monetary losses.
5. The Request for Injunctive Relief is Inappropriate
The plaintiffs request "permanent injunctive relief against all ongoing and future violations of law by Defendants and their co-conspirators." Am. Compl. at 68. The defendants describe this request as *151 moot, pointing out that the 2004 election is over. DNC's Mot. to Dismiss at 13; Reed Smith's Mot. to Dismiss at 23. To the extent the plaintiffs seek an injunction barring the defendants from challenging Nader's ballot eligibility in 2008, the defendants argue that such a request is purely speculative,[8] as no objection to Nader's eligibility in any state has yet been raised. Id. The plaintiffs protest that their request is not moot, as the defendants' wrongful conduct might recur, Pis.' Opp'n at 36, by which presumably they mean the defendants might pursue legal action challenging Nader's eligibility in the 2008 election cycle. Additionally, the plaintiffs argue, the voter plaintiffs' claims are not moot, because they seek nominal damages not just injunctive relief. Id. at 37. The defendants reply that any prospective misconduct by the defendants could be reviewed by the courts before the election when such conduct occurs. DNC's Reply at 5.
In addition to injunctive relief, the plaintiffs request compensatory and punitive damages, attorneys' fees, and court costs. Am. Compl. at 68. Nader and Camejo are the principal plaintiffs potentially entitled to this form of recovery, although the voter plaintiffs are potentially eligible for nominal damages for their constitutional claims assuming the plaintiffs move to reinstate them or attempt to consolidate this complaint with the case transferred from the Eastern District of Virginia. See People for Ethical Treatment of Animals, Inc. v. Gittens, 396 F.3d 416, 421 (D.C.Cir. 2005) (recognizing that when a court finds a constitutional violation the court or jury must at least award nominal damages, and assuming that such an award "prevents a case from becoming moot"). Thus, on these traditional bases for recovery, the plaintiffs' claims are not moot.
As for the injunctive relief sought against the defendants' alleged ongoing violations of law, the court construes that as referring to either the suits to enforce the Pennsylvania judgment of costs against Nader or challenges to Nader's ballot eligibility in the 2008 election. Starting with the former, the court concludes that it cannot grant injunctive relief in this manner because, while a decision invalidating the Pennsylvania judgment would derivatively deprive the defendants of means to enforce and collect the Pennsylvania judgment, it would do so through the normal operations of law, not by means of equitable or injunctive relief. See FED.R.CIV.P. 60 (listing circumstances in which court may grant relief from judgment or order). Thus, even assuming the court could review and set aside the judgment of costs, it is hardly obvious that such a decision could (1) constitute injunctive relief or (2) prohibit the defendants from perpetuating the alleged unlawful conspiracy by, for example, seeking appellate review.
To the extent that the plaintiffs ask this court to enjoin the defendants from engaging in "future violations of law" in respect to challenges to Nader's ballot eligibility in 2008, they seek relief that is simply inappropriate. The capable-of-repetition exception to the mootness doctrine applies only in exceptional situations, where: (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. Spencer v. Kemna, 523 U.S. 1, 18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Neither of these circumstances exists here. The plaintiffs have ample opportunity to oppose any future *152 challenges to Nader's ballot eligibility as they arise. And there is no reasonable expectation that the plaintiffs will again be subjected to the same conspiracy involving the same parties and the same disputed issues from the 2004 election. The plaintiffs worry that a new wave of litigation will inundate them in the 2008 election cycle, but because the plaintiffs' complaint is based on alleged violations (abuse of process and malicious prosecution) that can only be discerned to exist and remedied retrospectively[9], they cannot provide a basis for enjoining hypothetical future violations of the law. See L.A. v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (explaining that injunction to "follow the law" in the absence of some allegedly imminent violation of the law is inappropriate); Princeton Univ. v. Schmid, 455 U.S. 100, 102, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982) (holding that the courts do not "decide hypothetical issues or [] give advisory opinions about issues as to which there are not adverse parties"). Indeed, because the common-law claims concern discrete, fact-particular acts now in the past, the proper question is not whether the claims concerning alleged violations committed in 2004 are moot, but whether hypothetical claims concerning prospective future violations in 2008 are ripe. Warth v. Seldin, 422 U.S. 490, 499 n. 10, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (distinguishing ripeness, "whether the harm asserted has matured sufficiently to warrant judicial intervention," from mootness, "whether the occasion for judicial intervention persists"). As the courts do not issue entirely prospective decrees enjoining parties from engaging in "unlawful conduct" ex ante without enunciating the actions contemplated or undertaken, the court denies the request for injunctive relief as inappropriate.
6. The Court Lacks Jurisdiction over Malicious Prosecution Claims Attacking State Court Ballot-Eligibility Cases the Plaintiffs Previously Lost
The defendants argue that the Rooker-Feldman doctrine deprives this court of jurisdiction to review the state court judgments entered against Nader and Camejo. Reed Smith's Reply at 12. The plaintiffs insist that they "do not seek review by this Court of the eighteen state court proceedings in which Defendants and their coconspirators challenged Nader-Camejo nomination papers in the 2004 general election, nor do Plaintiffs seek rejection of those state court judgments." Pis.' Opp'n at 33. Whether the defendants conspired and committed the torts of malicious prosecution and abuse of process against the plaintiffs is not, the plaintiffs argue, an issue that any state court decided, nor is it "inextricably intertwined with the questions ruled upon by a state court." Id. at *153 33-34 (quoting Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483,103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)). The defendants maintain that the thrust of the complaint is a specific challenge to the state court and in particular the Pennsylvania court's judgments. Ballot Project's Reply at 6.
The Rooker-Feldman doctrine holds that the U.S. Supreme Court's appellate jurisdiction precludes federal district courts from exercising subject-matter jurisdiction to review state-court judgments in an appellate capacity. The Supreme Court has made clear that the doctrine "is confined to cases ... brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Assuredly, it "does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions." Id.
As an initial matter, one should recognize that the Rooker-Feldman doctrine does not cover every case in which a "party attempts to litigate in federal court a matter previously litigated in state court." Exxon Mobil Corp., 544 U.S. at 293, 125 S.Ct. 1517. If a plaintiff presents an independent claim, "albeit one that denied a legal conclusion that a state court has reached in a case to which [the plaintiff] was a party," then the doctrine does not apply. Id. The district court has jurisdiction, and state law determines whether principles of issue preclusion bar further litigation. Exxon Mobil Corp., 544 U.S. at 293, 125 S.Ct. 1517. The doctrine merely prohibits lower federal courts from hearing cases "inextricably intertwined with the questions ruled upon by a state court"; in other words, cases functionally equivalent to an appeal from a state court. Gray v. Poole, 275 F.3d 1113, 1119 (D.C.Cir. 2002).
The plaintiffs' abuse of process claims do not require this court to revisit a matter previously decided in state court. A claim for abuse of process need only allege that a defendant perverted the judicial process, achieved a purpose not contemplated in the regular prosecution of the charge and harbored an ulterior motive. Hall v. Hollywood Credit Clothing Co., 147 A.2d 866, 868 (D.C.1959).[10] The plaintiffs allege a perversion of judicial process (the prosecution of a nation-wide barrage of litigation to overwhelm Nader's finances and attention) and the accomplishment of an improper result (compelling Nader to loan his campaign money and divert attention from campaigning to secure votes) and an ulterior motive (preventing Nader from competing for votes).[11] Am. Compl. ¶¶ 228-32. The elements of this claim do not require this court to inspect any of the eighteen state court judgements regarding Nader's ballot eligibility, because none of those judgments concerned the legality of the defendants' actions in initially bringing *154 the claims. See Gray, 275 F.3d at 1119 (holding that Rooker-Feldman did not apply because the subject of the federal action the legality of the defendants' actions was not at issue in the prior state action); Brokaw v. Weaver, 305 F.3d 660, 665 (7th Cir.2002) (refusing to apply Rooker-Feldman because plaintiff was "not merely claiming that the decision of the state court was incorrect ... [but] alleging that the people involved in the decision ... violated her constitutional rights, independently of the state court decision"). Thus, the state court judgments did not "cause" the plaintiffs' injury. See GASH Assocs. v. Vill. of Rosemont, III, 995 F.2d 726, 729 (7th Cir.1993) (explaining that Rooker-Feldman applied because the plaintiff "did not suffer an injury out of court and then fail to get relief from state court; its injury came from the judgment"). The court, therefore, possesses jurisdiction to hear all of the abuse-of-process claims.
The plaintiffs' malicious prosecution claims, however, are another matter. To state a claim for malicious prosecution, a plaintiff must allege that the defendant, without probable cause and with malicious intent, initiated or procured the filing of an action that terminated in the plaintiffs favor. Moore v. United States, 213 F.3d 705, 710 (D.C.Cir.2000). D.C. courts also require the plaintiff to establish that he incurred a "special injury." Morowitz v. Marvel, 423 A.2d 196, 198 (D.C.1980). The plaintiffs allege that the defendants caused 24 complaints to be filed in 18 states. Am. Compl. ¶ 3. The plaintiffs admit that they lost the suits in Ohio, Oregon, Illinois, and Pennsylvania. Id. ¶ 71. The plaintiffs allege that they withdrew their petition to place Nader on the ballot in Arizona because opposing the defendants' challenge to the petition was prohibitively costly. Id. This case, too, however, did not terminate successfully, because the Arizona court enjoined the Secretary of State from including Nader on the ballot after Nader admitted that he failed to collect a sufficient number of valid signatures. Nader v. Brewer, 2006 WL 1663032, at *1 (D.Ariz. Jun.8, 2006). In order to prevail on their malicious prosecution claims predicated on filings in Ohio, Oregon, Illinois, Pennsylvania, and Arizona, then, the plaintiffs must confront the respective state court judgments.
Nevertheless, for the purposes of applying Rooker-Feldman, there is a difference between attacking a judgment and attempting to relitigate a claim or bypass a judgment. See A.D. Brokaw v. Weaver, 305 F.3d 660, 664 (7th Cir.2002) and Tremel v. Bierman & Geesing, L.L.C., 251 F.Supp.2d 40, 44 (D.D.C.2003) (recognizing distinction between attacking judgment directly and bypassing it through relitigation, and noting that attempts to bypass previous adjudications are more properly disposed of under the doctrine of res judicata). To the extent that the plaintiffs argue that the prior judgments should be vacated or set aside because of procedural deficiencies not brought to the state court's attention, they are merely seeking to bypass the judgment. See Nesses v. Shepard, 68 F.3d 1003, 1004 (7th Cir.1995) (holding that plaintiff alleging procedural irregularities and conspiracies in prior state court suits deprived him of his constitutional rights was blocked from bringing federal court claim not by Rooker-Feldman but by res judicata). This would not pose a Rooker-Feldman problem. Id. Alternatively, to the extent that their claim can succeed only by arguing that the state court "wrongly decided the issues before it," the plaintiffs are seeking to attack the judgment. See Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir.1995) (holding that a claim is "inextricably intertwined" under Rooker-Feldman when the claim "succeeds only to the extent that the *155 state court wrongly decided the issues before it [or] if the relief requested ... would effectively reverse the state court decision or void its ruling"). This would pose a Rooker-Feldman problem. Id.
As for the malicious prosecution claims based on cases that did not terminate in NaderCamejo's favor, those claims are barred because the plaintiffs must attack the prior judgments to establish the element of their malicious prosecution claims providing that a prior case must terminate in the plaintiffs favor.[12] Favorable termination does not require a final disposition on the merits; rather, any termination that "reflects on the innocence of the defendant in the underlying suit" may suffice. Brown v. Carr, 503 A.2d 1241, 1245 (D.C.1986) (citing Minasian v. Sapse, 80 Cal.App.3d 823, 827, 145 Cal. Rptr. 829 (1978)). By this definition, then, the actions in Ohio, Oregon, Illinois, Arizona, and Pennsylvania did not terminate in the plaintiffs' favor.[13] For the court to conclude otherwise would be to sit as in appeal over those judgments, not just to contemplate whether preclusion principles barred the claims. See, e.g., Calvert v. Safranek, 209 Fed.Appx. 816, 819 (10th Cir.2006) (holding that Rooker-Feldman applied because court could not recognize plaintiffs malicious prosecution claim without directly or indirectly overturning state court judgments he protested); Ewing v. O'Brien, 115 Fed.Appx. 780, 782 (6th Cir. 2004) (holding that Rooker-Feldman applied because plaintiffs claims for abuse of process and malicious prosecution could succeed only to the extent that prior state court decisions were wrong). The malicious prosecutions claims based on litigation conducted in these states must, therefore, be dismissed.
B. Abuse of Process and Malicious Prosecution Claims
1. Legal Standard for Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C.Cir. 2003) (citing FED.R.CIV.P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pre-trial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48, 78 S.Ct. 99 (internal quotation marks omitted). It *156 is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Faddy, 211 F.3d 134, 136 (D.C.Cir.2000) (internal quotation marks and citation omitted). That said, it is possible, however, "for a plaintiff to plead too much: that is, to plead himself out of court by alleging facts that render success on the merits impossible." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116 (D.C.Cir.2000).
Yet, the plaintiff must allege "any set of facts consistent with the allegations." Bell Atl. Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007) (abrogating the oftquoted language from Conley, 355 U.S. at 45-46, 78 S.Ct. 99, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that "no set of facts in support of his claim [ ] would entitle him to relief); Aktieselskabet AF 21.November 2001 v. Fame Jeans, Inc., 525 F.3d 8, 17 n. 4 (D.C.Cir.2008) (affirming that "a complaint needs some information about the circumstances giving rise to the claims"). While these facts must "possess enough heft to `sho[w] that the pleader is entitled to relief,'" a complaint "does not need detailed factual allegations." Id. at 1964, 1966. In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations including mixed questions of law arid fact as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C.Cir.2003); Holy Land Found, for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.Cir.2004); Browning, 292 F.3d at 242.
A defendant may raise the affirmative defense of statute of limitations via a Rule 12(b)(6) motion when the facts that give rise to the defense are clear from the face of the complaint. Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C.Cir.1998). Because statute of limitations issues often depend on contested questions of fact, however, the court should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint. Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir. 1996). Rather, the court should grant a motion to dismiss only if the complaint on its face is conclusively time-barred. Id.; Doe v. Dep't of Justice, 753 F.2d 1092, 1115 (D.C.Cir.1985). If "no reasonable person could disagree on the date" on which the cause of action accrued, the court may dismiss a claim on statute of limitations grounds. Smith v. Brown & Williamson Tobacco Corp., 3 F.Supp.2d 1473, 1475 (D.D.C.1998) (citing Kuwait Airways Corp. v. Am. Sec. Bank, N.A., 890 F.2d 456, 463 n. 11 (D.C.Cir.1989)).
2. The Noerr-Pennington Doctrine Bars the Plaintiffs' Claims
The Noerr-Pennington doctrine holds that defendants who petition the government for redress of grievances, "whether by efforts to influence legislative or executive action or by seeking redress in court," are immune from" liability for such activity under the First Amendment. Covad Comm'cns Co. v. Bell Atlantic Corp., 398 F.3d'666, 677 (D.C.Cir.2005); see E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, *157 136, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); Col. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). The doctrine's provenance lies in the field of antitrust law, but its reach has since then been extended to include common-law torts such as malicious prosecution and abuse of process. Whelan v. Abell, 48 F.3d 1247, 1254 (D.C.Cir.1995). "Sham" litigation, however, receives no protection, and the presumption of immunity is dispelled when a lawsuit (1) is objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits and (2) is brought with the specific intent to further wrongful conduct "through the use [of] the governmental process as opposed to the outcome of that process." Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 60-61, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). The sham exception does not extend to genuine attempts to secure governmental action even though the defendant harbors a wrongful motive. Neumann v. Reinforced Earth Co., 594 F.Supp. 139, 142 (D.D.C. 1984). The court proceeds to the second prong of the test only if the challenged litigation is found to be objectively meritless under the first prong. Prof'l Real Estate Investors, Inc., 508 U.S. at 60, 113 S.Ct. 1920. The plaintiff bears the burden to demonstrate that the sham exception applies. Federal Prescription Serv., Inc. v. Am. Pharm. Ass'n, 663 F.2d 253, 262-63 (D.C.Cir.1981).
The defendants argue that the plaintiffs have not demonstrated that the sham exception to the Noerr-Pennington doctrine deprives them of immunity for their filing of suits to challenge Nader's ballot eligibility in various states. Reed Smith's Mot. to Dismiss at 11; Kerry's Mot. to Dismiss at 15; Ballot Project's Mot. to Dismiss at 17. The defendants remind the court that the states have "the undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with the names of frivolous candidates." Reed Smith's Mot. to Dismiss at 13 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)). They argue that the plaintiffs cannot plausibly maintain that the suits in the five states in which the defendants prevailed were baseless. Reed Smith's Mot. to Dismiss at 15. Moreover, they deny that the plaintiffs have proffered any evidence suggesting that the defendants harbored an improper motive for their suits. Id. The plaintiffs respond that in bringing allegations of abuse of process and malicious prosecution they have sufficiently alleged, for the purpose of a motion to dismiss, that the sham exception applies. Pis.' Opp'n at 30-31.
Here, again, the plaintiffs' claims stumble over the impediment of prior adverse judgments. They cannot bring claims predicated on the challenges brought in the five states where the plaintiffs lost, because they could not plausibly establish the first prong of the sham exception. One cannot come before a court and argue that litigation that terminated in one's opponent's favor is "objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits." See Prof'l Real Estate Investors, 508 U.S. at 61, 113 S.Ct. 1920 (holding that "[a] winning lawsuit is by definition a reasonable effort at petitioning for redress and therefore not a sham"). This alone bars the plaintiffs' abuse-of-process claims based on the suits in Arizona, Ohio, Illinois, Oregon, and Pennsylvania.
The abuse-of-process and malicious prosecution claims based on the actions *158 in which the plaintiffs prevailed (in other words, in the remainder of the states in which litigation was brought) are also barred, but for a different reason. Assuming that the plaintiffs' allegation that the defendants' challenges in the other states were objectively baseless is true[14], see Cat. Motor Transp., 404 U.S. at 510, 92 S.Ct. 609 (suggesting that "a pattern of baseless, repetitive claims may emerge which leads the factfinder to conclude that the administrative and judicial processes have been abused"), the plaintiffs fail to submit a motive sufficient to satisfy the second prong of the sham exception: that the defendant harbored a motive to subvert the legal process for wrongful ends. The plaintiffs vigorously proclaim that the defendants brought the various challenges with the self-serving intent to prevent Nader from competing with Kerry in the 2004 election. Am. Compl. ¶ 1. But the First Amendment cannot be abrogated simply by alleging that one's political opponent turned to the judicial process for partisan motives. See U.S. v. Am. Tel. and Tel. Co., 524 F.Supp. 1336, 1364 (D.D.C.1981) (explaining that "[t]o be a sham, the representation must go beyond the normal and legitimate exercises of the right to petition; it must amount to a subversion of the integrity of the process.... [contemplating] evidence of a series of misleading statements, of representations having the effect of actually barring access to an official body, or of an intent to mislead the body concerning central facts"); Westmac, Inc. v. Smith, 797 F.2d 313, 317 (6th Cir.1986) (holding that sham exception does not apply merely because a party files a suit with principle purpose of harming competitor).
The court rejects the argument that partisan motives alone can satisfy the shame exception the proposition is at once both too broad and too narrow. It is too broad because every litigant has a personal stake in an action and, thus, a selfish motive of some sort; otherwise, they would lack standing. Were the court to adopt the plaintiffs' principle that any motive other than the altruistic impulse to see that the law is observed renders a litigant liable, then (1) the ability of individuals to petition the government for a redress of grievances would be endangered and (2) the election laws regulating the political process and relying on private challenges would be compromised. See id. (emphasizing that the sham exception should be "narrowly construed so as not to chill the rights of individuals and corporations to access to courts"); see also City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 381-82, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991) (holding that sham exception turns on distinction between using governmental process itself to commit wrongdoing versus benefitting from outcome of governmental process).
The principle is too narrow because it ignores the nexus linking the two prongs of the test. The first prong (that a claim be objectively baseless) must be satisfied because it is a necessary precondition of the second (that the litigation is an attempt to pervert the judicial process). See Prof'l Real Estate Investors, 508 U.S. at 61, 113 S.Ct. 1920 (holding that the "two-tiered process requires the plaintiff to disprove *159 the challenged lawsuit's legal viability" first). From the proposition "Plaintiff A has brought an objectively baseless claim," the court follows the path of reason down to the descending conclusions that (1) it is very likely that the plaintiff knows his claim is objectively baseless, (2) the plaintiff anticipates he will not win on the merits, and (3) the plaintiff is, therefore, bringing a claim for purposes other than seeing that ends of the justice are vindicated. See Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 500 n. 4, 508 n. 10, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988) (holding that a sham situation involves a defendant whose activities are "not genuinely aimed at procuring favorable government action" at all, not one "who genuinely seeks to achieve his governmental result, but does so through improper means") (internal quotations omitted); see also FED.R.CIV.P. 11(b) (defining a plausible claim as one "warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law"). If one adopts the plaintiffs' preferred starting point, however, one will not arrive so inevitably and smoothly at the third conclusion, a critical destination for establishing the claim that the defendant has perverted or abused judicial process.[15]
The plaintiffs do aver that the defendants rushed to judgment by declaring, before Nader announced his candidacy, that they would challenge his ballot eligibility arguing that this demonstrates that the challenges were baseless and solely intended to harass him. Am. Compl. ¶ 2. But, anticipating a legal campaign in the contingency of a political opponent's entry into a race is different from knowingly filing challenges that one knows at the time of filing to be false or baseless. See Am. Tel. & Tel. Co., 524 F.Supp. at 1364 (concluding that government properly invoked sham exception when it submitted evidence that defendant opposed an FCC application by a competitor on grounds that it knew "at that very time" to be untrue). The plaintiffs have proffered no evidence nor raised any allegations that the defendants presented claims that they knew to be false or baseless.[16]Cf. Col. *160 Motor Transp., 404 U.S. at 508, 92 S.Ct. 609 (applying sham exception to party who filed frivolous objections to license application of competitor with no expectation of achieving favorable judgment but rather to impose expense and delay). Nor have they alleged that the defendants had no real interest in the outcome of the litigation but merely sought to directly injure the plaintiff. Allied Tube, 486 U.S. at 500 n. 4,108 S.Ct. 1931.
Reinforcing the court's conclusion is the fact that the second prong of the sham exception mimics the run-of-the-mine abuse-of-process claim, e.g., Fed'l Prescription Serv., Inc. v. Am. Pharm. Ass'n, 663 F.2d 253, 263 n. 9 (D.C.Cir.1981); Westmac, Inc., 797 F.2d at 320 n. 12 (conceding that "if plaintiff could establish that defendants' actions constitute the tort of abuse of process, in the sense that defendants' suit corrupted or improperly interferred [sic] with the judicial process, [then] the sham exception does apply"), and the plaintiffs fail to state a claim for abuse of process. Put simply, if the plaintiffs fail to state a claim for abuse of process, they also fail to satisfy the second prong of the sham exception. Id.
Of particular relevance here is the fact that both doctrines require the perversion of process for a collateral end. Morowitz, 423 A.2d at 198 (holding that the tort of abuse of process lies where the legal system "has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be required to do"); Prof'l Real Estate Investors, Inc., 508 U.S. at 70, 113 S.Ct. 1920 (explaining that sham exception turns on whether there was "collateral harm external to the litigation or to the result reached in the litigation") (internal quotations omitted). This perversion towards a collateral end must occur after the initiation of litigation. See Houlahan v. World Wide Ass'n of Specialty Programs and Schools, 2006 WL 2844190, at *8 n. 12 (D.D.C. Sept.29, 2006) (holding that allegation of defendant's intent to silence criticism through initiation of lawsuits was insufficient to raise abuse-of-process claim); Nolan v. Allstate Home Equipment Co., 149 A.2d 426, 430 (D.C. 1959) (holding that ulterior motive of coercion does not suffice: "there was nothing more than the issuance and service of process; no attempt was made to compel appellant to do some collateral act, nor was the process used to accomplish some end beyond its regular purview"). Filing a lawsuit with the incidental motive to inflict harm on the plaintiff does not arise to abuse of process. See, e.g., Rogers v. Johnson-Norman, 466 F.Supp.2d 162, 175 (D.D.C.2006) (holding that "incidental motive of spite or an ulterior purpose of benefit to the defendant" does not give rise to abuse-of-process claim); Harrison v. Howard Univ., 846 F.Supp. 1, 3 (D.D.C. 1993) (dismissing abuse-of-process claim that merely alleged ulterior motive); Morowitz, 423 A.2d at 198-199 (holding that "[w]ithout more, appellants' proffer that appellee filed the counterclaim with the ulterior motive of coercing settlement, is deficient").[17]
The plaintiffs urge the court to adopt the expansive formulation of the abuse of process standard set forth in Neumann v. Vidal, 710 F.2d 856 (D.C.Cir.1983) and Whelan v. Abell, 953 F.2d 663 (D.C.Cir. 1992), in support of their argument that the mere initiation of a suit and allegation *161 of an ulterior motive could serve as the perversion of process. Pls.' Opp'n at 22. But, these cases have been superceded by more recent decisions embracing the more restrictive standard of Bown v. Hamilton, 601 A.2d at 1079-80, and Morowitz, 423 A.2d at 198-99. See Moore v. United States, 213 F.3d 705 (D.C.Cir.2000); Scott v. District of Columbia, 101 F.3d 748 (D.C.Cir.1996). Underlying this standard is the purpose of allowing "unfettered access to the courts" and avoiding any "chilling and inhibitory effect on would-be litigants of justiciable issues." Bown, 601 A.2d at 1080; Morowitz, 423 A.2d at 197-98.
Thus, the inescapable sine qua non of an abuse-of-process claim and the second prong of the sham exception is that a defendant has used process to" compel a party to do a collateral thing that they would not otherwise do. Bannum, Inc. v. Citizens for a Safe Ward Five, Inc., 383 F.Supp.2d 32, 46 (D.D.C.2005). Typically, this end is an attempt at extortion in a manner collateral to the litigation. Scott, 101 F.3d at 756. Initiating a law suit with the ulterior motive of forcing normal litigation expenses and distractions on an opponent does not constitute the sort of collateral end that is recognized as an abuse of process.[18]See, e.g., Kalantar v. Lufthansa German Airlines, 402 F.Supp.2d 130, 150 (D.D.C.2005) (holding that plaintiff who merely alleged that defendants "maliciously caused process to issue" against him did not properly allege any abuse of process); Camm v. Kennickell, 1990 WL 198621, at *3 (D.D.C. Nov.20, 1990) (holding that allegation that plaintiffs filed lawsuit to coerce defendants into awarding them contracts was insufficient to state abuse-of-process claim). These are the natural consequences of a lawsuit and too generic to serve as the predicate for an abuse-of-process rather than malicious prosecution claim. Fraternal Order of Police, D.C. Lodge 1, Inc. v. Gross, 2005 WL 3201400, at *2 (D.D.C. Nov.9, 2005) (holding that alleging defendant filed suit to extort concession or settlement does not state abuse-of-process claim). The court, therefore, concludes that the sham exception bars the plaintiffs remaining abuse-of-process and' malicious prosecution claims.
With the last of the common-law claims dismissed, the plaintiffs' conspiracy claim has no predicate; therefore, the court must dismiss it as well. See Exec. Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 738 (D.C.2000) (holding that "there is no recognized independent tort action for civil conspiracy" in D.C.) (citing Waldon v. Covington, 415 A.2d 1070, 1074 n. 14 (D.C.1980)). Because none of the plaintiffs' claims survive the motion to dismiss, the court dismisses the plaintiffs' amended complaint.[19]
*162 IV. CONCLUSION
For the foregoing reasons, the court grants the defendants' motions to dismiss. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 27th day of May, 2008.
NOTES
[1] Figures on the 2000 election are available at http://www.fec.gov/pubrec/fe2000/prespop. htm.2004 election figures may be found at http://www.fec.gov/pubrec/fe2004/tables.pdf. tp://www.fec.gov/pubrec/fe2004/tables.pdf.
[2] The amended complaint includes two consecutive paragraphs so designated. The court refers here to the latter.
[3] The amended complaint mentions a voter plaintiff in particular only once, stating that "conspirators ... organized a campaign of harassing phone calls to the office of Plaintiff-voter Gregory Kafoury, which was serving as Nader-Camejo's nomination headquarters," thus "incapacitat[ing] the office phones for the entire day." Am. Compl. ¶ 169. The plaintiffs do not cite it as support for their standing, nor could they as it is not a cognizable harm on which to base a malicious prosecution or abuse of process claim.
[4] One might note that, even assuming the voter plaintiffs had alleged an injury-in-fact, prudential standing considerations would impede their progress to the courthouse. See Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (holding that prudential standing encompasses "the general prohibition on a litigant's raising another person's legal rights") and Warth v. Seldin, 422 U.S. 490, 500-01, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (recognizing that while standing "in no way depends on the merits of the plaintiff's contention that particular conduct is illegal" it "often turns on the nature and source of the claim asserted" such that a court must consider whether the law grants a right of action to persons "seek[ing] relief on the basis of the legal rights and interests of others").
[5] The question of whether the voter plaintiffs have Article III standing to bring their constitutional claims raised in the action transferred from the Eastern District of Virginia is an entirely separate question not before the court.
[6] The source for this proposition is McConnell v. Federal Election Comm'n, in which the Court traced the electoral-candidate plaintiffs' alleged inability to compete to their "wish" not to solicit or accept large contributions rather than to increased hard-money limits under campaign finance law allowing the plaintiffs' opponents to raise more money. McConnell v. Fed. Election Comm'n, 540 U.S. 93, 228, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003). The circumstances of Nader's decision were quite different, however. In McConnell, the new campaign finance law changed the rules of the playing field for everyone, and the plaintiffs, presented with the opportunity to exploit the new contribution limits or abstain, chose the latter. In the 2004 election, the instant defendants allegedly singled out Nader and subjected him to a barrage of litigation, the costs of which he attempted to mitigate through a personal loan to his campaign the only choice available to him if he wanted to remain a candidate. Thus, McConnell is distinguishable.
[7] This line of argument strikes the court as strained: it is perfectly plausible that the Nader-Camejo 2004 Campaign and the defendants might be jointly and severally liable for the loan default. Two defendants may be found jointly liable if each is a proximate cause of the injury. Westfarm Assocs. Ltd. Partnership v. Wash. Suburban Sanitary, 66 F.3d 669, 687 (4th Cir.1995). Because the possibility that the campaign might default on the loan was a foreseeable event, the default does not necessarily act as a supervening cause vitiating the contributory impact of the defendants' alleged tortious conduct. Id. Thus, while the defendants may be correct that the court has no authority to order the Nader-Camejo 2004 Campaign to repay the loan, DNC's Mot. to Dismiss at 20, that presents a question distinguishable from whether the defendants may be held liable for Nader's loss by the campaign's default.
[8] Nader announced his candidacy for president on February 24, 2008. Pis.' Opp'n at 37.
[9] To state a claim for abuse of process, a plaintiff must allege that a defendant perverted the judicial process to achieve a purpose not contemplated in the regular prosecution of the charge and that the defendant had an ulterior motive. Hall v. Hollywood Credit Clothing Co., 147 A.2d 866, 868 (D.C.1959). To state a claim for malicious prosecution, a plaintiff must allege (1) that the underlying suit terminated in the plaintiff's favor; (2) malice; (3) lack of probable cause; and (4) special injury. Morowitz v. Marvel, 423 A.2d 196, 198 (D.C.1980). The plaintiffs have not explained how the court could interpret a priori any future federal election law filings against Nader by the defendants as exemplars of these causes of action. The court cannot, therefore, prospectively enjoin the defendants from engaging in any political petitioning, especially as such activity implicates a fundament First Amendment freedom. See L.A. v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (explaining that injunction to "follow the law" in the absence of some allegedly imminent violation of the law is inappropriate because moot).
[10] Abuse of process "is conceptually different from, but overlaps with, malicious prosecution, the latter of which occurs only when a legal action is brought without probable cause" and terminates in the malicious-prosecution plaintiff's favor. Whelan, 953 F.2d at 670.
[11] This recitation of the plaintiffs' allegations supporting their abuse-of-process claim should not be construed to encompass the conclusion that the plaintiffs have successfully stated an abuse-of process claim. For as the court explains later, they have not. See infra III.B.2.
[12] The court notes that the question of whether the plaintiffs' Federal Rule of Civil Procedure 60(b) motion for relief from judgment in the D.C. Superior court implicates Rooker-Feldman is analytically distinct from whether the plaintiffs' claims for malicious prosecution implicate Rooker-Feldman. The former raises issues not presented before the Pennsylvania Supreme Court. Specifically, the motion for relief cites newly discovered evidence of alleged connections between Reed Smith and the Pennsylvania Supreme Court justices, which, the plaintiffs argue, should have resulted in the justices' recusals. Pis.' Opp'n, Ex. 1 ("Pis.' Mot. for Relief from Foreign Judgment") at 16. This, then, would appear to touch upon questions of res judicata or issue preclusion but not Rooker-Feldman concerns. Nesses, 68 F.3d at 1004. To be clear, this court predicates its holding that some of the plaintiffs' malicious prosecution claims do confront Rooker-Feldman not on the plaintiffs' motion for relief from judgment but on their amended complaint filed in this court.
[13] The defendants do not dispute that the other cases terminated in the plaintiffs' favor.
[14] This is a significant assumption. An unsuccessful lawsuit is not presumed unreasonable or without foundation until a court has determined whether the state of the law at the time of the suit was uncertain or not. Prof'l Real Estate Investors, 508 U.S. at 61, 113 S.Ct. 1920; Organon Inc. v. Mylan Pharms., Inc., 293 F.Supp.2d 453, 462 (D.N.J.2003). The plaintiffs do not brief this question, but because this case is before the court on a motion to dismiss and alternative grounds for dismissal exist, the court will (preliminarily) assume the plaintiffs could establish this question in their favor.
[15] The inverse is true too; that is to say, one might have an improper purpose in bringing suit but still not commit an abuse of process sufficient to invoke the sham exception if one's suit is not objectively baseless. See Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 63, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (explaining that "[j]ust as evidence of [wrongful] intent cannot affect the objective prong of Moerr's sham exception, a showing of malice alone will neither entitle the wrongful civil proceedings plaintiff to prevail nor permit the factfinder to infer the absence or probable cause"). For this reason, the court does not consider statements allegedly made by the defendants evincing a potentially improper purpose pertinent to the instant question. Am. Compl. ¶¶ 62-63. Even assuming their veracity, they only constitute evidence of subjective state of mind, not the objective plausibility of the defendants' challenges on the merits when filed.
[16] The plaintiffs do argue that Reed Smith perpetrated a fraud on the Pennsylvania Supreme Court by failing to disclose certain connections between its attorneys and presiding justices. See generally Pis.' Mot. for Relief from Judgment. Assuming these facts to be true, they nevertheless fail to give rise to a legal conclusion that the defendants' knowingly presented baseless claims against the plaintiffs to the court. While the court refrains from issuing a substantive opinion on the plaintiffs' motion before the Superior Court, it notes that for the purposes of the sham exception, the claim at most suggests a technical, procedural impropriety pertinent to the judicial ethics of recusal not the merits of the case itself. See Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 508 n. 10, 108 S.Ct. 1931, 100 L.Ed.2d 497 (holding that sham exception does not cover party who genuinely seeks to achieve his governmental result, but does so through improper means).
[17] In their opposition, the plaintiffs appear to recognize this, as they write that "abuse of process refers to the wrongful use of process after it has been properly issued." Pis.' Opp'n at 20 (citing 1 AM.JUR.2D Abuse of Process § 3 (1994)).
[18] The plaintiffs' argument that the litigation the defendants allegedly subjected them to was particularly onerous because it was conducted successively in multiple states is unpersuasive because the piecemeal nature of our federalist electoral process rendered that a necessity. See Tri-State Hosp. Supply Corp. v. United States, 2007 WL 2007587, at *7-8 (D.D.C. July 6, 2007) (holding that lack of "unusual or exceptional procedures" and evidence "to suggest that the proceedings were longer or more onerous than otherwise would have been necessary" precluded abuse-of-process claim).
[19] In addition to abusive litigation, the plaintiffs allege that the defendants orchestrated campaigns of "harassment, intimidation and sabotage," with the specific intention of preventing NaderCamejo from complying with state election laws. Am. Compl. ¶¶ 67-71, 236. They do not, however, raise these allegations in the context of any specific underlying tort other than conspiracy, which is itself merely a form of establishing the liability of multiple defendants for a predicate tort. Hill v. Medlantic Health Care Group, 933 A.2d 314, 334 (D.C.2007).
|
108 F.3d 1377
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.
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.TEAMSTERS LOCAL NO. 372, INTERNATIONAL BROTHERHOOD OFTEAMSTERS, AFL-CIO; Detroit Mailers Union No. 2040,International Brotherhood of Teamsters, AFL-CIO; GCIU LocalUnion No. 289, Graphic Communications International Union,AFL-CIO; GCIU Local Union No. 13N, Graphic CommunicationsInternational Union, AFL-CIO; Newspaper Guild of Detroit,Local 22, the Newspaper Guild, AFL-CIO; DetroitTypographical Union No. 18, Communication Workers ofAmerica, AFL-CIO; and Metropolitan Council of NewspaperUnions, Respondents.
No. 96-6033.
United States Court of Appeals, Sixth Circuit.
March 10, 1997.
NLRB, No. 7-CB-10771.
NLRB
ORDER ENFORCED.
Before: MARTIN, Chief Judge; KRUPANSKY and DAUGHTREY, Circuit Judges.
CONSENT ORDER
1
On August 16, 1996, the Court issued a judgment granting the application of the National Labor Relations Board (the "Board") for the enforcement of a certain order on consent issued by it against Teamsters Local No. 372, International Brotherhood of Teamsters, AFL-CIO (a/k/a Teamsters Local 372); Detroit Mailers Union No. 2040, International Brotherhood of Teamsters, AFL-CIO (a/k/a Detroit Mailers Union # 40, IBT Local Union # 2040); GCIU Local 289, Graphic Communications International Union, AFL-CIO (a/k/a Graphic Communications International Union, Local 289M); GCIU Local Union No. 13N, Graphic Communications International Union, AFL-CIO (a/k/a Graphic Communications International Union, Local 13N); Newspaper Guild of Detroit, Local 22, The Newspaper Guild, AFL-CIO (a/k/a Newspaper Guild of Detroit Local 22); Detroit Typographical Union No. 18, Communications Workers of America, AFL-CIO (a/k/a Detroit Typographical Union # 18 CWA/ITU); and Metropolitan Council of Newspaper Unions (collectively "Respondents"). Thereafter, charges were filed with the Board alleging that Respondents had engaged in conduct violative of the Court's August 16, 1996 Judgment, and the Respondents denied having violated the Judgment. The Board and the Respondents, desiring to settle this mater, and the Respondents not admitting that they have violated the Judgment, have moved the Court to issue this Consent Order and approve the parties' Settlement Stipulation as full disposition of the allegations that Respondents are in contempt of the Court's August 16, 1996 Judgment, and good cause therefore being shown:
I.
2
IT IS HEREBY ORDERED that said Settlement Stipulation is incorporated herein and is approved and shall be filed.
II.
3
IT IS FURTHER ORDERED that the Respondents, individually and collectively, their officers, agents, and representatives, shall fully comply with and obey the Court's August 16, 1996 Judgment and this Consent Order, and not in any way, by action or inaction, engage in, induce or encourage any violation of the Court's August 16, 1996 Judgment or this Consent Order.
III.
4
IT IS FURTHER ORDERED that Respondents shall:
5
(1) Within ten (10) days after service thereof by the Board, duplicate and post copies of the Notice to Members ("Notice"), prepared by the Board and signed by an officer of each Respondent, alongside copies of this Consent Order, in conspicuous places in each of Respondents' business offices and other places within each Respondent's territorial jurisdiction where notices to officers and members are customarily posted, for a period of not less than sixty (60) consecutive days; and maintain said Notices and this Consent Order in clearly legible condition throughout the posting period and insure that they not be altered, defaced, or covered by other material; and provide to the Board's Seventh Regional Office within ten (10) days of posting a listing of the locations where the Notice and Consent Order are posted.
6
(2) Within thirty (30) days after the entry of this Consent Order, provide a copy of the Court's August 16, 1996 Judgment, the signed Notice, and this Consent Order to every officer, agent, or representative of every Respondent employed from August 16, 1996 to the date of entry of the Consent Order, and have each such person sign and date an acknowledgment that they have read and understand that they must comply with the Court's August 16, 1996 Judgment and this Consent Order ("Acknowledgment Receipt"); and within ten (10) days of said delivery, provide the Board's Seventh Regional Office with a list of the names and addresses of all persons to whom delivery was made;
7
(3) Within thirty (30) days after entry of this Consent Order, mail to the Board's Seventh Regional Office a copy of the signed Notice for posting at the offices of the employers affected by these proceedings, for posting at their facilities, if such employers be willing;
8
(4) Have the Notice to Members read by an officer of each Respondent at a regularly scheduled meeting of its membership following entry of this Consent Order, but not more than sixty (60) days after receipt of the Notice. The Board's Seventh Regional Office shall be given at least one (1) week's advance notice of each such meeting and the time designated for such reading; and Board agents shall be permitted to attend the reading in the discretion of the Regional Director.
9
(5) Within thirty (30) days after the entry of this Consent Order, attach a copy of the Court's August 16, 1996 Judgment, the Notice, and this Consent Order to a strike benefit check of each member of any Respondent who is receiving strike benefits and have each such member sign and date a receipt ("Acknowledgment Receipt") acknowledging that they have read and understand that they must comply with the Court's August 16, 1996 Judgment and this Consent Order; and
10
(6) File sworn statements with the Clerk of the Court and with copies thereof to the Board's Contempt Litigation Branch and the Seventh Regional Office within thirty-five (35) days after the entry of this Consent Order, and again within ten (10) days of the expiration of the posting period, showing, with specificity, what steps have been taken by the Respondents to comply with this Consent Order.
IV.
11
IT IS FURTHER ORDERED that in all future activity covered by the Court's August 16, 1996 Judgment conducted at the places of business and facilities of Detroit Newspapers, Detroit Free Press and The Detroit News, Respondents shall:
12
(1) Designate a picket captain(s) to be in charge of the activities covered by the Court's August 16, 1996 Judgment conducted in the places of business and facilities of Detroit Newspapers, Detroit Free Press and The Detroit News, who will be present at each location where such activity is being conducted and at all times during such activity, and who will take all action reasonably necessary to assure that such activity is conducted in accordance with the Court's August 16, 1996 Judgment and this Consent Order. The authority of such picket captain(s) shall include, but not be limited to, the authority to direct that pickets leave the site and to temporarily suspend picketing operations;
13
(2) Prior to the commencement of activities covered by the Court's August 16, 1996 Judgment conducted at the places of business and facilities of Detroit Newspapers, Detroit Free Press and The Detroit News, provide copies of the Court's August 16, 1996 Judgment and this Consent Order to all participating designated picket captains and members who have not previously signed an Acknowledgment Receipt and have each such participating picket captain(s) and member(s) sign and date such Acknowledgment Receipt indicating that said picket captain or member has read the Court's August 16, 1996 Judgment and this Consent Order and understands that the Court's Judgment and this Consent Order must be complied with;
14
(3) Provide within ten (10) days of the appointment of each future officer, agent, and representative who has not previously signed an Acknowledgment Receipt copies of the Court's August 16, 1996 Judgment and this Consent Order to said officer, agent, or representative, and have each such person(s) sign an Acknowledgment Receipt indicating that they have read the Court's August 16, 1996 Judgment and this Consent Order and understand that the Court's Judgment and this Consent Order must be complied with;
15
(4) Maintain a contemporaneous and legible log of the names of all officers, agents, and representatives and members engaged in activities covered by the Court's August 16, 1996 Judgment conducted at the places of business and facilities of Detroit Newspapers, Detroit Free Press and The Detroit News, at each location where such activity is conducted;
16
(5) Upon request, immediately provide to the Board's Seventh Regional Office copies of the Acknowledgment Receipts and logs referred to in paragraphs III(2), III(5), IV(2) and IV(3) above;
17
(6) Upon request, immediately provide the Board's Seventh Regional Office with the name, title, business address and telephone number of the officers, agents, representatives, and designated picket captains in charge of activities covered by the Court's August 16, 1996 Judgment conducted at a place of business or facility of Detroit Newspapers, Detroit Free Press or The Detroit News, as well as the locations where those in charge served; and
18
(7) Upon written notification from the Board's Seventh Regional Office or Contempt Litigation Branch that a violation of the Court's August 16, 1996 Judgment or this Consent Order may have occurred:
19
(a) conduct a reasonable investigation of allegations of violative activity under the Court's August 16, 1996 Judgment or this Consent Order; and
20
(b) direct that any officer, agent, representative or member, who based on such investigation are determined to have engaged in such violative conduct, cease participation in activities covered by the Court's August 16, 1996 Judgment conducted at the places of business or facilities of Detroit Newspapers, Detroit Free Press or The Detroit News.
V.
21
IT IS FURTHER ORDERED that in order to assure against future violations of the Court's August 16, 1996 Judgment and this Consent Order, the Court imposes, but does not presently assess, a prospective non-compliance fine not to exceed $5000.00 in collective total against the Respondents, jointly and severally, for each and every violation of the Court's August 16, 1996 Judgment and this Consent Order, and imposes, but does not presently assess, a prospective fine not to exceed $500.00 for each violation by every officer, agent, representative or member of the Respondents who, in active concert and participation with Respondents, individually or collectively, and with notice and knowledge of the Court's August 16, 1996 Judgment or this Consent Order, violates the Court's August 16, 1996 Judgment or this Consent Order, such fines to be assessed in a civil proceeding upon submission of clear and convincing evidence of contempt. In the event of such future violations, the precise amount of fines to be assessed under this provision is for the Court to determine upon consideration of Respondents' awareness of the misconduct and of the nature, severity and extent of the violations found to have occurred. Furthermore, remedial actions taken by the Respondents, including but not limited to those specified in paragraphs IV(7)(a) and (b) above, shall be considered in determining the sanctions to be imposed under the Consent Order.
|
986 A.2d 1252 (2009)
COM.
v.
DIGGS.
No. 2116 WDA 2008.
Superior Court of Pennsylvania.
October 2, 2009.
Affirmed.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-8070
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAMUEL LARELL ANDERSON,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:04-cr-00353-CMC-3)
Submitted: April 22, 2010 Decided: April 27, 2010
Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Samuel Larell Anderson, Appellant Pro Se. Mark C. Moore,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Larell Anderson appeals the district court’s
order denying his motion to modify his sentence, pursuant to
18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and
find no reversible error. Accordingly, we affirm for the
reasons stated by the district court. See United States v.
Anderson, No. 0:04-cr-00353-CMC-3 (D.S.C. Oct. 28, 2009). We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
2
|
765 F.2d 163
*Blackburn, In re
84-1560
United States Court of Appeals,Federal Circuit.
3/29/85
PTO
Affirmed
1
---------------
* Denotes Patent Appeals
|
392 B.R. 642 (2008)
In re Miranda Monlietha BROOKS, Debtor.
Tower Credit, Inc., Plaintiff
v.
Miranda Monlietha Brooks, Defendant.
Bankruptcy No. 07-11608. Adversary No. 08-1002.
United States Bankruptcy Court, M.D. Louisiana.
August 15, 2008.
*644 Richard D. Bankston, Baton Rouge, LA, for Plaintiff.
Gregory A. Burrell, Baton Rouge, LA, for Defendant.
MEMORANDUM OPINION
DOUGLAS D. DODD, Bankruptcy Judge.
Tower Credit, Inc. ("Tower") sued for a determination that its claim against debtor Miranda Brooks was not dischargeable under 11 U.S.C. § 523(a)(2)(A). For reasons given in this memorandum opinion, Tower's complaint will be dismissed.
FACTS
This lawsuit arises from the debtor's financing her purchase of a 1997 Dodge Intrepid from Dixieland Sports & Imports.[1] Once Ms. Brooks decided to buy the car, on March 31, 2003 a Dixieland sales person faxed Tower information concerning Brooks with an inquiry about financing the vehicle.[2] Though Brooks does not dispute that she signed the Dixieland credit application, she denied completing the forms herself, testifying that she had given some of the information on the form to the Dixieland sales representative, who apparently completed the application. Brooks and a Dixieland representative later went to Tower's offices, where on April 4, 2003 Brooks signed a Tower credit application to borrow money to buy the car.[3] That application reflected that Brooks's net monthly income was $1600 and that she also received $450 in child support each month. The application originally listed her employer as Popeye's Fried Chicken, but that information was lined through and Burger King was written in.[4]
Brooks testified that she did not complete the Tower credit application and specifically took issue with some of the information on it. However, she admitted that she signed the application on a line below a statement warranting that all information on the application was true.
*645 Tower obtained a copy of Brooks's paycheck stubthe first she had received from Burger Kingbefore it loaned her the funds to buy the car.[5] The check stub reflected that the debtor worked 49.45 hours during the pay period, for which she was paid $243.60.[6] Brooks thus took home about $4.93 per hour for each hour she worked.
Brooks borrowed more money from Tower a few months later to pay for repairs to the car she had bought from Dixieland.[7] The debtor's application for that loan[8] listed the same employer and net income as the completed Tower application for the auto loan.
Some time after Tower made the second loan, Brooks defaulted on the obligation. Tower sued Brooks and obtained a state court default judgment against her.[9]
Brooks filed chapter 7 on November 13, 2007. Tower timely filed its complaint to determine the dischargeability of Brooks's debt to it.
APPLICABLE LAW
Tower's complaint alleges the debtor's actions bar the discharge of her debt to Tower under 11 U.S.C. § 523(a)(2)(A), which excepts from discharge a debt
for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's. . . financial condition . . . .
(emphasis added). However, the debtor's allegedly false representations all were made in connection with her applications to borrow money from Tower. Thus, section 523(a)(2)(A) is not applicable.
The applicable statute is 11 U.S.C. § 523(a)(2)(B), which excepts from discharge a debt
for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by use of a statement in writing
(i) that is materially false;
(ii) respecting the debtor's or an insider's financial condition;
(iii) on which the creditor to whom the debtor is liable for such . . . credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive.[10]
Rule 7015(b) of the Federal Rules of Bankruptcy Procedure allows the amendment of pleadings to conform to the evidence if issues not raised in the original pleadings are raised at trial by express or implied consent of the parties. Both parties offered evidence as relevant to a claim under section 523(a)(2)(B) as one under section 523(a)(2)(A). Thus, the evidence amended Tower's complaint to include a cause of action under 11 U.S.C. § 523(a)(2)(B).[11]
*646 DISCUSSION
A. Tower Did Not Reasonably Rely on Brooks's False Statements
Tower proved that Brooks's credit applications contained materially false written statements. A statement is materially false if it "`paints a substantially untruthful picture of a financial condition by misrepresenting information of the type which would normally affect the decision to grant credit.'"[12] Brooks knowingly misrepresented her monthly income to obtain a loan from Tower to buy a car. Though the debtor claimed not to know how her loan applications recited that she had $1600 monthly net income, by signing the applications warranting that she took home $1600 each month, she adopted the false information for the purpose of 11 U.S.C. § 523(a)(2)(B).[13] Nothing in the record supports a finding or conclusion that she should be relieved of the consequences of her false statements.
Nevertheless, Brooks's false statements do not entitle Tower to relief because Tower failed to prove it reasonably relied on Brooks's misrepresentations.
For a declaration of nondischargeability, section 523(a)(2)(B) requires proof that the creditor reasonably relied on the debtor's false statements. "The reasonableness of a creditor's reliance . . . should be judged in light of the totality of the circumstances. The bankruptcy court may consider, among other things: whether there had been previous business dealings with the debtor that gave rise to a relationship of trust; whether there were any `red flags' that would have alerted an ordinarily prudent lender to the possibility that the representations relied upon were not accurate; and whether even minimal investigation would have revealed the inaccuracy of the debtor's representations."[14]
Brooks gave Tower her Burger King paycheck to confirm her employment when she applied for the first loan. Tower should have realized from the check stub that, earning a net hourly wage of $4.93, Brooks could not possibly have taken home the monthly income reflected on her credit applications. Put another way, Brooks would have had to work nearly 325 hours each month essentially 10 hours every day of the month to have a net monthly income of $1600. This fact alone should have been a "red flag" alerting Tower to the inaccuracy of Brooks's application. Tower's reliance was not reasonable within the meaning of Coston and Norris.[15]
*647 B. The Evidence Did Not Support Tower's Entitlement to Relief on Other Grounds
The evidence did not support Tower's other allegations.[16] Specifically, no evidence supported Tower's claim that Brooks colluded with the car dealer to obtain the loan from Tower by misrepresenting the history of the debtor's payments on an earlier car loan for the purchase of a Mazda 626. Stephen Binning, Tower's president, testified without any corroboration to his belief that Kevin Reeves of Dixieland had an interest in the note for the purchase of that vehicle, which was being serviced by Wells Fargo with an agreement to put the note back to Dixieland if the debtor defaulted. However, Binning admitted that neither Dixieland nor Wells Fargo were listed as creditors on the debtor's credit report, and explained that this was not surprising because Dixieland does not report its loans and Wells Fargo supposedly only serviced the debtor's loan.
Binning stated that he based his "reasonable belief" that collusion took place on the inconsistency between the representation on the Dixieland credit application (which the debtor signed) that she had paid Dixieland and Wells Fargo perfectly for 18 months, and the debtor's own statement at the meeting of creditors that she had not financed the Mazda.[17] However, Tower did not call a representative of Dixieland to explain in general its process of financing car loans using Wells Fargo or to verify the facts concerning the debtor's loan from Dixieland. In fact, Ms. Brooks offered the only testimony concerning her prior vehicle purchase, saying that she acquired the car on "lease/purchase" agreement from another Baton Rouge dealer whose name she could not recall.
In summary, the evidence concerning Dixieland's handling of the debtor's prior obligation was inconclusive.
Next, Tower alleged that it would not have made the loan had it not believed that the debtor had a "perfect" payment history on the earlier car loan.[18] However, Mr. Binning admitted on examination by the court that a history of missed or late payments on a loan would not, by itself, cause Tower to forego making a loan. Tower's argument that it would not have made the loan absent proof that its customer had a perfect record of payments on earlier obligations is not plausible or credible.
CONCLUSION
Tower Credit did not sustain its burden of proving that Miranda Brooks's debt to it was nondischargeable. Accordingly, the court will dismiss Tower's complaint.
NOTES
[1] The documentary evidence reflects that debtor wanted a loan to buy a 1994 Mazda 626. Brooks actually bought a 1997 Dodge Intrepid and denied ever telling Tower she was buying a Mazda.
[2] Dixieland Sports & Imports Credit Application (Tower Exhibit 1).
[3] April 4, 2003 Tower credit application (Tower Exhibit 2).
[4] The debtor testified that she had never worked at Popeye's and never told anyone that she worked at Popeye's. Tower's president acknowledged writing that the debtor worked at Popeye's, which he learned from someone at Dixieland after calling to obtain information to complete a blank on the application.
[5] Paycheck stub (Tower Exhibit 3).
[6] The check stub reflects deductions for Medicaid, Social Security and Louisiana income taxes.
[7] September 4, 2003 Combination Promissory Note, Truth-in-Lending Disclosure and Security Agreement (Tower Exhibit 6).
[8] September 4, 2003 Tower credit application (Tower Exhibit 5).
[9] December 8, 2004 Judgment in "Tower Credit, Inc. v. Miranda Brooks," No. 0410-08955, Div C., Baton Rouge City Court, Baton Rouge, Louisiana (Tower Exhibit 6).
[10] Matter of Norris, 70 F.3d 27, 29 (5th Cir. 1995).
[11] See Matter of Beaubouef, 966 F.2d 174, 177 (5th Cir. 1992) (citations omitted) (implying consent of the parties to trial of issues not raised in the pleadings where the parties had a "fair opportunity to defend" with respect to the amended issues and where additional evidence could have been presented had the amendment been made earlier).
[12] Norris, 70 F.3d at 30, quoting In re Jordan, 927 F.2d 221, 224 (5th Cir.1991).
[13] In re Oh, 278 B.R. 844, 860 (Bankr. C.D.Cal.2002) ("[p]referring to know as little as possible about a transaction in which he really did not want to participate, the Debtor simply signed whatever was put in front of him without any regard for its truth or falsity. A debtor cannot escape liability under section 523(a)(2)(B) by firmly putting his head in the sand and later claiming not to have known of the falsity of representations that were made on his behalf while his head was covered"). Cadle Co. v. Orsini, 2007 WL 1006919 at *5 (Bankr.E.D.Tex.2007) (citation omitted) ("[a]s long as the written statement is written, signed, adopted or used by the debtor, the basic precondition concerning the writing requirement to the non-dischargeability complaint under section 523(a)(2)(B) is met").
[14] Matter of Coston, 991 F.2d 257, 261 (5th Cir.1993).
[15] Nor did Tower satisfy section 523(a)(2)(A)'s requirement of proof of its justifiable reliance on the debtor's misrepresentations. Justifiable reliance is a less rigorous standard than reasonable reliance; it is gauged by "`an individual standard of the plaintiff's own capacity and the knowledge which he has, or which may fairly be charged against him from the facts within his observation in the light of his individual case.'" In re Vann, 67 F.3d 277, 283 (quoting Prosser & Keeton on Torts at 751). "`It is only where, under the circumstances, the facts should be apparent to one of the plaintiff's knowledge and intelligence from a cursory glance, or he has discovered something which should serve as a warning that he is being deceived, that he is required to make an investigation of his own.'" Id. at 283 (quoting Prosser & Keeton on Torts at 752).
[16] Complaint, ¶ 6.
[17] Transcript of December 13, 2007 § 341 meeting, p. 27, lines 11-25, p. 28, lines 1-3 (Exhibit T-8).
[18] See footnote 16, supra.
|
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 2, 2016
Plaintiff-Appellee,
v No. 326389
Wayne Circuit Court
LEONARD WAYNE WESSON, LC No. 14-003866-FH
Defendant-Appellant.
Before: JANSEN, P.J., and O’CONNELL and RIORDAN, JJ.
PER CURIAM.
Defendant, Leonard Wayne Wesson, appeals as of right his convictions, following a jury
trial, of larceny from a person, MCL 750.357, and larceny in a building, MCL 750.360.1 The
trial court sentenced Wesson as a habitual offender, third offense, MCL 769.10, to serve 24
months to 15 years in prison for his larceny from a person conviction and 24 months to 6 years in
prison for his larceny in a building conviction. We reverse Wesson’s larceny from a person
conviction, affirm Wesson’s larceny in a building conviction, and remand.
I. FACTUAL BACKGROUND
The victim, Dennis Omoto, testified that he took $1,000 in a money clip with him into the
Greektown Casino in Detroit. After Omoto won $500 playing video poker, he gave a “fist
bump” to the man next to him and offered to buy him a beer. Omoto described his purchase:
Well, I took out my money clip to pay cash to the bartender. She gave me some
change. I believe she gave me change for a twenty. And the gentleman moved
closer to me on my left side, and he was kind of marveling over my good fortune,
and we were talking, and I put the change back in my money clip and was
1
Wesson also pleaded guilty to possession of less than 25 grams of methadone, MCL
333.7403(2)(a)(v), and possession of analogues, MCL 333.7403(2)(b)(ii), for which the trial
court sentenced him to serve five years’ probation and 44 days in jail, respectively.
-1-
intending to put it in my pocket. And apparently I missed my pocket, and it
dropped on the floor.
Omoto believed that the money clip held about $525 dollars. When he realized it was missing,
he contacted casino representatives.
A security camera recording shows Omoto speaking with a man in a white button-down
shirt. Initially, an empty stool separates Omoto and the man, then the man leans and appears to
congratulate Omoto. Omoto extends money across his machine to pay for a purchase and, while
speaking to the man in the white shirt, reaches toward the rear of his pants. About five seconds
later, the man in the white shirt moves the stool that stood between the men and begins speaking
with Omoto at a very close distance. A couple seconds later, the video shows Wesson stop and
look as he walks past. While Omoto and the man in the white shirt converse, Wesson reaches
under the stool that the man in the white shirt moved, picks something up, and continues on his
way. Wesson admitted that he saw the money on the floor, picked it up, and continued walking
even though he knew he should have turned it over. Wesson also testified that he thought the
money was his because he found it.
The jury found Wesson guilty of larceny from a person and larceny in a building.
Wesson now appeals, contending in pertinent part that he did not take the money from Omoto’s
immediate presence.
II. STANDARD OF REVIEW
A claim that the evidence was insufficient to convict a defendant invokes that defendant’s
constitutional right to due process of law. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748
(1992); In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970). This Court
reviews de novo a defendant’s challenge to the sufficiency of the evidence supporting his or her
conviction. People v Henderson, 306 Mich App 1, 8; 854 NW2d 234 (2014). We review the
evidence in a light most favorable to the prosecution to determine whether a rational trier of fact
could find that the prosecution proved the crime’s elements beyond a reasonable doubt. Id. at 9.
III. ANALYSIS
Wesson contends that the evidence in this case was insufficient to support his conviction
of larceny from a person because he did not take the money clip “from the person of” Omoto,
since the clip was not in Omoto’s immediate presence when there was a second man intervening
in the space between Wesson and Omoto. We agree.
Under MCL 750.357, a person commits larceny from a person “by stealing from the
person of another . . . .” In People v Smith-Anthony, 494 Mich 669; 837 NW2d 415 (2013), the
Michigan Supreme Court defined the phrase “from the person of another” to mean “from the
possession and immediate presence of the victim.” Id. at 681. Our Supreme Court stated that for
a possession to be in the victim’s immediate presence, there must be no intervening space
between the object and the victim:
[T]he immediate presence test can only be satisfied if the property was in
immediate proximity to the victim at the time of the taking. In other words, the
-2-
common-law meaning of “immediate presence” in the larceny-from-the-person
context is consistent with the plain meaning of the word “immediate,” which
means “having no object or space intervening, nearest or next.” [Id. at 688
(quotation marks and citation omitted).]
In this case, the surveillance video on which the prosecution relies shows that there is a
man in a white button-down shirt standing between Omoto and the stool under which Wesson
reached to retrieve the money clip. While the space involved is relatively small, there was
another person and object intervening between the victim and the defendant in this case.
Accordingly, Wesson did not take the clip from Omoto’s immediate presence, and we must
conclude that the prosecution did not prove all the essential elements of larceny from a person.
Given our resolution of this issue, we need not resolve the remainder of Wesson’s issues on
appeal.
We reverse Wesson’s conviction of larceny from a person and affirm his conviction of
larceny in a building. Because the trial court calculated Wesson’s sentence on the basis of his
larceny from a person conviction, we must remand for resentencing.2 We do not retain
jurisdiction.
/s/ Kathleen Jansen
/s/ Peter D. O’Connell
2
See People v Jackson, 487 Mich 783, 801-802; 790 NW2d 340 (2010) (holding that remand for
resentencing is required when a sentence for a concurrent offense relied on information related to
a vacated conviction).
-3-
|
#26000 - #26009-a-SLZ
2012 S.D. 64
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
(#26000)
(N.O.R. #26034, #26042, #26045)
TERESA BERNIE, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY; SISTERS OF
THE BLESSED SACRAMENT; and
OBLATE SISTERS OF THE BLESSED
SACRAMENT, Defendants and Appellees,
and
CATHOLIC DIOCESE OF SIOUX FALLS,
DOE PRIEST; DOE PERPETRATOR 1; DOE
PERPETRATOR 2; DOE PERPETRATOR 3;
and DOE PERPETRATOR 4,
Defendants.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE BRADLEY G. ZELL
Judge
****
ARGUED ON MAY 22, 2012
OPINION FILED 09/05/12
---------------------------------------------------------------------------------------------------------------------
(#26001)
(N.O.R. #26035, #26047)
GALEN DRAPEAU, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY; SISTERS OF
THE BLESSED SACRAMENT; and
OBLATE SISTERS OF THE BLESSED
SACRAMENT, Defendants and Appellees,
and
CATHOLIC DIOCESE OF SIOUX FALLS,
DOE PRIEST; DOE PERPETRATOR 1; DOE
PERPETRATOR 2; DOE PERPETRATOR 3;
and DOE PERPETRATOR 4, Defendants.
---------------------------------------------------------------------------------------------------------------------
(#26002)
(N.O.R. #26036, #26043, #26046)
L.C.A.; J.C.B.; L.J.C.; G.D.; B.C.D.;
R.B.; M.L.B.; F.B.C.; Y.P.C., Plaintiffs and Appellants,
v.
BLUE CLOUD ABBEY; SISTERS OF
THE BLESSED SACRAMENT; and
OBLATE SISTERS OF THE BLESSED
SACRAMENT, Defendants and Appellees,
and
CATHOLIC DIOCESE OF SIOUX FALLS,
DOE PRIEST; DOE PERPETRATOR 1; DOE
PERPETRATOR 2; DOE PERPETRATOR 3;
and DOE PERPETRATOR 4, Defendants.
---------------------------------------------------------------------------------------------------------------------
(#26003)
(N.O.R. #26037)
MARY MCGHEE DOG SOLDIER, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#26004)
(N.O.R. #26048)
ALFRED EAGLE DEER, SR., Plaintiff and Appellant,
v.
OBLATE SISTERS OF THE BLESSED
SACRAMENT, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#26005)
(N.O.R. #26038)
RITA FAYE FLOOD, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#26006)
(N.O.R. #26044)
GROVER CURTIS MALLORY, Plaintiff and Appellant,
v.
SISTERS OF THE BLESSED SACRAMENT, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#26007)
(N.O.R. #26039)
RODERICA ROUSE, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#26008)
(N.O.R. #26040)
LOREN RAYMOND ZEPHIER, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
---------------------------------------------------------------------------------------------------------------------
(#26009)
(N.O.R. #26041)
ISADORE M. ZEPHIER, Plaintiff and Appellant,
v.
BLUE CLOUD ABBEY, Defendant and Appellee,
and
CATHOLIC DIOCESE OF SIOUX FALLS, Defendant.
****
(#26000 — #26002)
(N.O.R. #26034, #26035, #26036, #26042, #26043, #26045, #26046, #26047)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and
MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiffs and
appellants.
ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota
and
ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee Blue Cloud Abbey
N.O.R. #26034, #26035, #26036.
CHRISTOPHER W. MADSEN of
Boyce, Greenfield, Pashby & Welk, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee Sisters of the Blessed
Sacrament N.O.R. #26042,
#26043, #26047.
MICHAEL J. FORD
DYAN J. EBERT of
Quinlivan & Hughes, PA
St. Cloud, Minnesota Attorneys for defendant and
appellee Oblate Sisters of the
Blessed Sacrament N.O.R.
#26045, #26046.
(#26003)
(N.O.R. #26037)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and
MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiff and
appellant.
ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota
and
ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee Blue Cloud Abbey
N.O.R. #26037.
(#26004)
(N.O.R. #26048)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and
MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiff and
appellant.
MICHAEL J. FORD
DYAN J. EBERT of
Quinlivan & Hughes, PA
St. Cloud, Minnesota Attorneys for defendant and
appellee Oblate Sisters of the
Blessed Sacrament N.O.R.
#26048.
(#26005)
(N.O.R. #26038)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and
MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiff and
appellant.
ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota
and
ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota
Attorneys for defendant and
appellee Blue Cloud Abbey
N.O.R. #26038.
(#26006)
(N.O.R. #26044)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and
MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiff and
appellant.
CHRISTOPHER W. MADSEN of
Boyce, Greenfield, Pashby & Welk, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee Sisters of the Blessed
Sacrament N.O.R. #26044.
#26007—#26009)
(N.O.R. #26039—#26041)
REBECCA L. RHOADES of
Manly & Stewart
Newport Beach, California
and
MICHAEL SHUBECK
GREGORY A. YATES
Rapid City, South Dakota Attorneys for plaintiffs and
appellants.
ROBERT STICH of
Stich, Angell, Kreidler & Dodge, PA
Minneapolis, Minnesota
and
ERIC C. SCHULTE of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee Blue Cloud Abbey
N.O.R. #26039, #26040, #26041.
#26000 - #26009
ZINTER, Justice
[¶1.] The plaintiffs and appellants are former students who attended a
boarding school. They alleged that they were sexually abused while attending the
school more than thirty-five years ago. The students commenced suits against some
alleged perpetrators and entity defendants Blue Cloud Abbey, the Sisters of the
Blessed Sacrament, the Oblate Sisters of the Blessed Sacrament, and the Catholic
Diocese of Sioux Falls. The entity defendants were alleged to have owned, operated,
or controlled the school when the abuse allegedly occurred. After a prior appeal to
this Court, 1 the circuit court granted summary judgment both for and against the
entity defendants on a large number of substantive and procedural issues. The
circuit court later granted a motion to dismiss all remaining claims against the
three entity defendants who are the appellees in these appeals. 2 Because it is
dispositive, we only address one issue raised by the entity defendants by notice of
review. We conclude that an extended statute of limitations for childhood sexual
abuse did not apply in these cases because the entity defendants were not
perpetrators who were alleged to have engaged in intentional, criminal conduct.
Because these lawsuits were filed more than twenty years after the applicable
statute of limitations expired, we affirm the circuit court’s dismissal. 3
1. Zephier v. Catholic Diocese of Sioux Falls, 2008 S.D. 56, 752 N.W.2d 658.
2. The suits against the Catholic Diocese of Sioux Falls are the subject of
separate appeals. See Bernie v. Catholic Diocese of Sioux Falls, ___ S.D. ___,
___ N.W.2d ___.
3. We disagree with the circuit court’s conclusion that the extended statute of
limitations applies to non-perpetrating entity defendants that have not
(continued . . .)
-1-
#26000 - #26009
Facts and Procedural History
[¶2.] All plaintiffs in these consolidated appeals claim to be victims of
childhood sexual abuse committed prior to 1975 when they were students at St.
Paul’s School, which is located in Marty, South Dakota. Between 2004 and 2008,
the students commenced suits against some alleged perpetrators and some entity
defendants. 4 The complaints asserted liability against the entity defendants on the
following theories: (1) negligent hiring, retaining, and supervising persons who were
known or should have been known to be sex abusers; (2) breach of fiduciary duty in
failing to protect the students from abuse; and (3) vicarious liability under the
doctrine of respondeat superior. The circuit court ultimately dismissed on a
procedural ground. The court relied on a 2010 enactment that barred certain claims
against entity defendants. The 2010 enactment was added to SDCL 26-10-25, a
statute of limitations extending the time to commence certain actions for childhood
sexual abuse. The court concluded that the 2010 amendment applied retroactively
to bar the sexual abuse claims against the entity defendants. We address a
predicate question raised by the entity defendants on notice of review: whether the
________________________
(. . . continued)
engaged in intentional, criminal misconduct. Nevertheless, we affirm the
judgment because the circuit court dismissed on a related statute of
limitations question.
4. The students did not sue the school, which was incorporated as St. Paul’s
Indian Mission Corporation.
-2-
#26000 - #26009
extended statute of limitations even applies to causes of action against non-
perpetrators of childhood sexual abuse. 5
[¶3.] SDCL 15-2-14 provides that except when a different limitation is
prescribed by statute, actions for personal injury “can be commenced only within
three years after the cause of action shall have accrued.” At the time the students
commenced these actions, SDCL 26-10-25 extended the time to commence certain
actions involving childhood sexual abuse. The extension gave victims time to
discover the causal relationship between the sexual abuse and the resulting injury.
SDCL 26-10-25 (1991) provided:
Any civil action based on intentional conduct brought by any
person for recovery of damages for injury suffered as a result of
childhood sexual abuse shall be commenced within three years
of the act alleged to have caused the injury or condition, or three
years of the time the victim discovered or reasonably should
have discovered that the injury or condition was caused by the
act, whichever period expires later.
5. This issue has evaded appellate review. In One Star v. Sisters of St. Francis,
Denver, Colorado, 2008 S.D. 55, ¶ 6, 752 N.W.2d 668, 674, we considered
whether suits alleging childhood sexual abuse were timely commenced
against non-perpetrating entity defendants under SDCL 26-10-25. But the
petition for review reflects that the parties assumed for purposes of another
argument that the statute applied to non-perpetrators. In Zephier v. Catholic
Diocese of Sioux Falls, 2008 S.D. 56, ¶ 3, 752 N.W.2d 658, 661, and Iron Wing
v. Catholic Diocese of Sioux Falls, 2011 S.D. 79, ¶ 6, 807 N.W.2d 108, 110, the
question was whether factually, those students commenced their suits within
three years following discovery of the causal connection between the alleged
abuse and the injuries as required in SDCL 26-10-25. Although the
applicability of SDCL 26-10-25 was raised by some entity defendants in
Zephier, not all entity defendants joined that argument. More importantly,
the circuit court had not addressed the question. Because the issue had not
been addressed by the circuit court, we remanded the issue for that court’s
initial consideration. Zephier, 2008 S.D. 56, ¶ 20, 752 N.W.2d at 667. The
question has now been decided by a circuit court and the issue is squarely
presented for appellate review.
-3-
#26000 - #26009
[¶4.] The students argue that they are entitled to the extension in SDCL 26-
10-25. See One Star v. Sisters of St. Francis, 2008 S.D. 55, ¶ 13, 752 N.W.2d 668,
675. The entity defendants respond that SDCL 26-10-25 does not apply to non-
perpetrating defendants who are sued on theories of negligence or other causes of
action not based on intentional, criminal conduct. The entity defendants point out
that the statute applies to actions that are “based on intentional conduct” involving
“childhood sexual abuse.” They also point out that childhood sexual abuse is
specifically defined as sexual abuse that is proscribed by the criminal code. See
SDCL 26-10-29. The entity defendants contend that the circuit court erred in
allowing the students to utilize SDCL 26-10-25 because the entity defendants were
not alleged to have engaged in “intentional acts” of “childhood sexual abuse” that
was proscribed by the criminal code.
Decision
[¶5.] The construction and application of statutes of limitation present legal
questions that we review de novo. Jensen v. Kasik, 2008 S.D. 113, ¶ 4, 758 N.W.2d
87, 88. In reviewing summary judgment, “affirmance is suitable if any legal basis
exists to support the court’s decision.” Horne v. Crozier, 1997 S.D. 65, ¶ 5, 565
N.W.2d 50, 52.
[¶6.] SDCL 26-10-25 applies to “[a]ny civil action based on intentional
conduct brought by any person for recovery of damages for injury suffered as a
result of childhood sexual abuse.” (Emphasis added.) For purposes of this statute,
childhood sexual abuse is defined in SDCL 26-10-29 as any act committed “by the
defendant against the complainant . . . [and] which act would have constituted a
-4-
#26000 - #26009
felony.” (Emphasis added.) The question is whether, in light of these emphasized
limitations, SDCL 26-10-25 applies to claims against non-perpetrating defendants
who are sued for negligence or on other theories of liability not involving
intentional, criminal conduct. Courts that have considered this question have
reached different conclusions.
[¶7.] We are persuaded by the courts that have relied on the plain and
ordinary meaning of identical or similar language limiting application of such
statutes to claims based on intentional conduct constituting a criminal offense. For
example, the Colorado Court of Appeals considered the “plain language of the text”
that limited the Colorado statute to actions “based on . . . a sexual offense against a
child.” Sandoval v. Archdiocese of Denver, 8 P.3d 598, 600-01 (Colo. App. 2000).
The court concluded that this limiting language, “when viewed within the context of
the entire statute,” restricted application of the statute to claims brought against
perpetrators and did not include related claims brought against third parties. Id. at
602.
[¶8.] The Colorado court acknowledged the view of other courts that the
language “based on” can be read to allow a victim’s claims if the claims simply arise
from “the factual circumstances of the sexual offense.” Id. at 601. The court
specifically acknowledged Werre v. David, 913 P.2d 625 (Mont. 1996) and C.J.C. v.
Corp. of Catholic Bishop, 985 P.2d 262 (Wash. 1999) (both applying the “based on”
intentional conduct language to negligence claims against non-perpetrators because
the perpetrator’s sexual act was the starting point or foundation for injury that
would not have occurred absent the abuse). Sandoval, 8 P.3d at 601. The Colorado
-5-
#26000 - #26009
court also acknowledged Almonte v. New York Medical College, 851 F. Supp. 34 (D.
Conn. 1994) (applying an extended statute of limitations to claims against non-
perpetrators on the theory that public policy required the extension). Sandoval, 8
P.3d at 601. But the Colorado court concluded that when the limiting language was
“viewed within the context of the entire statute, . . . the term ‘based on’
encompasses only those civil claims brought against the perpetrator arising from
his or her sexual assault or offense.” Id. at 602. The court found it “highly
significant” that the statute was tied to sexual offenses as defined in the criminal
code, and criminal proscriptions do “not include negligently allowing an offense to
happen or placing a perpetrator in a position to commit a sexual offense against a
child.” Id.
[¶9.] Rhode Island’s decision is even more persuasive because its statute is
virtually identical to SDCL 26-10-25. Rhode Island enacted a statute of limitations
for “[a]ll claims or causes of action based on intentional conduct brought by any
person for recovery of damages for injury suffered as a result of childhood sexual
abuse . . . .” Kelly v. Marcantonio, 678 A.2d 873, 875 (R.I. 1996) (emphasis added).
The statute defined childhood sexual abuse as “any act committed by the defendant
against a complainant” that would have been a criminal act. Id. at 876 (emphasis
added). The Rhode Island Supreme Court stated that the first clause emphasized
above did not explicitly limit the statute’s application to perpetrators. Id. But the
court held that the language of the statute “permits no other interpretation” when
the two emphasized clauses were read together. Id. The court observed that the
statute requires “intentional conduct of ‘the’ defendant–perpetrator.” Id. “[B]y
-6-
#26000 - #26009
using ‘the’ as opposed to ‘a’ when referencing defendants, the Legislature limited
the class of potential defendants subject to [the extended statute of limitations].”
Id. The court also relied on the limiting language requiring “intentional conduct.”
Id. at 877. Unlike other courts reaching contrary conclusions based on public policy,
Kelly relied on the “plain and ordinary meaning” of these statutory limitations. Id.
[¶10.] Before a legislative amendment, the court in Debbie Reynolds
Professional Rehearsal Studios v. Superior Court, 30 Cal. Rptr. 2d 514 (Cal. Ct.
App. 1994), concluded that the California statute was also limited to those who
engaged in criminal conduct. The California statute applied to actions “for recovery
of damages suffered as a result of childhood sexual abuse.” Id. at 518 n.3 (citing
Cal. Civ. Proc. Code § 340.1 (West)). The statute also referenced criminal acts by
referring to “any act committed by a defendant against a plaintiff . . . and which act
would have been proscribed” by specified penal code sections. Id. at 519. The court
concluded that these “plain terms” applied “only to those defendants who
perpetrate, against minors, certain intentional criminal acts prohibited by law.” Id.
“[T]he Legislature, in defining what constitutes sexual abuse, referred to the
criminal statutes to make clear that childhood sexual abuse is an intentional rather
than a negligent act.” Id. 6
6. Four years after Debbie Reynolds, California amended its statute to provide
that it applied to “an action for liability against any person or entity who
owed a duty of care to the plaintiff, where a wrongful or negligent act by that
person or entity was the legal cause of the childhood sexual abuse which
resulted in the injury to the plaintiff.” Cal. Civ. Proc. Code § 340.1(a)(2)
(West 1999).
-7-
#26000 - #26009
[¶11.] The Eighth Circuit Court of Appeals considered a Missouri statute of
limitations that applied to “[a]ny action to recover damages from injury or illness
caused by childhood sexual abuse.” Walker v. Barrett, 650 F.3d 1198, 1209 (8th Cir.
2011). Notwithstanding this broad language, the court rejected the argument that
the statute applied to all actions arising from childhood sexual abuse. Id. The court
pointed out that another provision provided that childhood sexual abuse was “any
act committed by the defendant against the plaintiff which act . . . would have been
a violation of [identified criminal proscriptions].” Id. The court noted that non-
perpetrating defendants could not cause injury or illness from childhood sex abuse
because non-perpetrating defendants would not have committed one of the
enumerated criminal acts. Id.
[¶12.] We find these decisions persuasive because the South Dakota
Legislature adopted the same or similar limitations. First, the plaintiff’s civil
“action” must be based on “intentional conduct.” SDCL 26-10-25. Second, the
childhood sexual abuse must have been committed by “the defendant” in the civil
action, and the abuse must be an act that would “have constituted a felony.” SDCL
26-10-29. We have previously recognized that the language of SDCL 26-10-25
applies to intentional, criminal acts. “[T]he Legislature intended SDCL 26-10-25 to
apply to all acts of intentional childhood sexual abuse conduct. This is so because
SDCL 26-10-29 defines childhood sexual abuse as ‘any act’ committed by a
defendant which act would have been a violation of SDCL [chapter] 22-22 (sex
offenses) or prior laws of similar effect at the time the act was committed which act
-8-
#26000 - #26009
would have constituted a felony.” Stratmeyer v. Stratmeyer, 1997 S.D. 97, ¶ 15, 567
N.W.2d 220, 223 (emphasis added).
[¶13.] The students’ reliance on Almonte, Werre, and C.J.C. is misplaced.
Almonte was based on the belief that the Connecticut statute was more concerned
with a particular type of harm than with the party that caused the harm. 851 F.
Supp. at 37. Therefore, the court utilized “public policy” to extend the reach of the
statute to non-perpetrators who had not engaged in intentional conduct. Id. 7
Further, the Connecticut statute did not contain the intentional conduct or the
criminal act limitations found in the South Dakota statute and the other statutes
previously discussed. The Connecticut language was unlimited. It applied to any
action “to recover damages for personal injury to a minor, including emotional
distress, caused by sexual abuse, sexual exploitation or sexual assault.” Id. The
district court’s interpretation of the broad Connecticut statute is inapposite when
considering the limitations in SDCL 26-10-25 and 26-10-29.
7. One South Dakota federal district judge adopted the Almonte public policy
view, concluding that SDCL 26-10-25 applied to causes of action for
negligence against non-perpetrating defendants. See DeLonga v. Diocese of
Sioux Falls, 329 F. Supp. 2d 1092, 1104 (D.S.D. 2004) (stating that the
statute is concerned with the “type of harm” involved, and the statute should
be interpreted to apply to causes of actions for negligence in order to “provide
protection for victims of sexual abuse”). However, in a later case, another
South Dakota federal judge was “unable to predict the path of South Dakota
law regarding claims against non-perpetrator defendants with respect to
SDCL 26-10-25.” Joseph v. Corp. of the President Church of Jesus Christ of
Latter-Day Saints, No. CIV. 06-4143, 2008 WL 282163, at *4 (D.S.D. Jan. 31,
2008). Although the latter judge certified the question to this Court, the suit
was apparently resolved before we could decide the question.
-9-
#26000 - #26009
[¶14.] The students point out that in Werre, the Montana Supreme Court
allowed an action against a non-perpetrator under language that is similar to South
Dakota’s. See Werre, 913 P.2d at 630 (construing a statute of limitations that
applied to actions “based on intentional conduct brought by a person for recovery of
damages for injury suffered as a result of childhood sexual abuse”). The Montana
court construed the language “based upon intentional conduct” to permit actions
based on negligence. Id. at 632. It did so because, in its view, “an action is ‘based
on intentional conduct’ if intentional sexual abuse is the starting point or
foundation for the claim.” Id. But the Montana court’s factual “starting point or
foundation” analysis overlooks the fact that statutes of limitation are based upon
the “cause of action” asserted rather than the factual starting point or foundation
that may lead to various causes of action. See SDCL 15-2-1 (providing that all civil
actions must be commenced within the periods of limitation specified in Title 15
after the “cause of action” has “accrued,” rather than the period after the factual
starting point that gives rise to the cause of action).
[¶15.] The appropriate analysis looks to the “nature of the cause of action or
the right sued upon.” Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D. 1990). In this
case, the nature of the students’ causes of action against the perpetrators is based
upon intentional conduct. Further, the right sued upon is the right to be free from a
perpetrator’s criminal sexual abuse. But the nature of the students’ causes of action
against the entity defendants is based upon negligence, breach of fiduciary duty,
and vicarious liability. And the rights sued upon are the rights to be free from non-
intentional breaches of the civil duties and responsibilities the law imposes in
-10-
#26000 - #26009
certain relationships. Therefore, it is simply too far of a stretch to say that causes
of action for negligence, breach of fiduciary duty and vicarious liability are, in any
legal sense of the phrase, causes of action “based on” intentional, criminal conduct.
We believe Werre’s factual starting-point-foundational analysis is at odds with the
common understanding of the nature of a cause of action asserted in a particular
case. 8
[¶16.] The students’ reliance on the Washington court’s analysis in C.J.C. is
also misplaced. Although that statute is closely aligned with South Dakota’s
statute, the Washington Supreme Court applied the same factual starting point
analysis utilized in Werre. C.J.C., 985 P.2d at 267 (concluding that “an action is
‘based on intentional conduct’ if intentional sexual abuse is the starting point or
foundation of the claim”). For the reasons expressed in our analysis of Werre, we
decline to follow C.J.C.’s factual starting point analysis. We also decline to follow
C.J.C. because its conclusion was based in part on another statutory provision that
“expressly include[d] within its scope suits against negligent entities.” 985 P.2d at
268.
[¶17.] “Words and phrases in a statute must be given their plain meaning
and effect.” Pete Lien & Sons, Inc. v. City of Pierre, 1998 S.D. 38, ¶ 9, 577 N.W.2d
330, 331. In this case, the plain language of SDCL 26-10-25 and 26-10-29 requires
that the students’ causes of action be based on “intentional conduct” and that “the
defendant” in the civil action has engaged in child sexual abuse proscribed by South
8. Werre is also inapplicable because the Montana statute did not have the
South Dakota language referencing acts constituting criminal conduct.
-11-
#26000 - #26009
Dakota’s criminal code. Because the students’ causes of action only assert liability
for negligence, breach of fiduciary duty, and vicarious liability, SDCL 26-10-25 does
not apply. 9
[¶18.] SDCL 26-10-25 was enacted to provide childhood sexual abuse victims
with extended time to commence their suits in addition to the three-year
“occurrence rule . . . provided under SDCL 15-2-14(3) and 15-2-22 [providing for
tolling during minority].” Stratmeyer, 1997 S.D. 97, ¶ 18, 567 N.W.2d at 224. But
9. The students argue the 2010 Legislature demonstrated that SDCL 26-10-25
applies to non-perpetrators because the Legislature amended that statute in
dealing with a related issue regarding non-perpetrators. “[I]t is well
established under South Dakota Law that the legislative interpretation of a
statute through the adoption of a subsequent amendment is not binding on
this court, though the court may deem it worthy of consideration in
construing the law.” Hot Springs Indep. Sch. Dist. No. 10 v. Fall River
Landowners Ass’n, 262 N.W.2d 33, 38 (S.D. 1978).
The 2010 enactment was a statute of repose that abolished the right of
persons who reached the age of forty to recover damages from non-
perpetrators of childhood sexual abuse. See 2010 S.D. Sess. Laws ch. 141.
The students contend that, by amending SDCL 26-10-25 to include the
statute of repose specifically governing non-perpetrators, the 2010
amendment demonstrates that the Legislature believed its 1991 enactment of
SDCL 26-10-25 applied to non-perpetrators. However, it is more likely that
the 2010 Legislature was reacting to recent case law. There is no dispute
that lawyers involved in this and related litigation appeared before the 2010
Legislature requesting the 2010 amendment. At that time, two South
Dakota courts had ruled that SDCL 26-10-25 applied to non-perpetrators: the
circuit court in these cases and DeLonga, 329 F. Supp. 2d 1092. Because the
Legislature was unaware that these courts had incorrectly interpreted the
statute, it is more likely that the 2010 Legislature was amending SDCL 26-
10-25 to conform to those court decisions than it was expressing its view of
what the 1991 Legislature intended when it enacted SDCL 26-10-25. “The
legislative intent that is controlling in the construction of a statute has
reference to the [L]egislature which enacted it, not a subsequent one.” Hot
Springs Indep. Sch. Dist., 262 N.W.2d at 39.
-12-
#26000 - #26009
as we have explained, SDCL 26-10-25 does not apply. Therefore, the remaining
question is whether the students’ causes of action are barred by SDCL 15-2-14(3),
the personal injury statute of limitations. “[T]he three year period [in SDCL 15-2-
14(3)] starts to run from the last occurrence of tortious conduct, rather than three
years from the discovery of the harm.” Koenig v. Lambert, 527 N.W.2d 903, 905
(S.D. 1995), overruled on other grounds by Stratmeyer, 1997 S.D. 97, 567 N.W.2d
220.
[¶19.] In this case, the students’ causes of action expired under SDCL 15-2-
14(3) and SDCL 15-2-22 more than twenty years before the students commenced
their suits. There is no dispute that all of the students were born between 1941 and
1962, and none of the students made any claim for abuse occurring after 1975.
Although SDCL 15-2-22 tolled the three-year period until one year after each of the
students turned eighteen, the youngest student turned nineteen in 1981 and all
suits were commenced in and after 2004. Therefore, none of the students
commenced his or her cause of action until more than twenty years after the time
for filing suit had expired. Because the students’ causes of action were barred by
the applicable statutes of limitation, 10 the judgment of the circuit court is affirmed.
10. On petition for rehearing, the students contend that we overlooked their
argument that the time to commence their actions was tolled by fraudulent
concealment. The students’ appellate briefs, however, contained no citations
to facts in the record supporting their argument. Instead, students argued
that the circuit court’s rulings were inconsistent and supported fraudulent
concealment. The failure to cite the complete factual record supporting a
fraudulent concealment argument is significant because more than three
decades passed since any confidential relationship existed between the
students and the school. Without citations to facts in the record reflecting
(continued . . .)
-13-
#26000 - #26009
[¶20.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and
WILBUR, Justices, concur.
________________________
(. . . continued)
fraudulent concealment for this lengthy period of time, we were unable to
entertain the issue.
-14-
|
792 F.Supp. 1172 (1992)
Vernon MASAYESVA, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, for and on behalf of the Hopi Indian Tribe, Plaintiff,
v.
Peterson ZAH, Chairman of the Navajo Tribal Council of the Navajo Indian Tribe, for and on behalf of the Navajo Indian Tribe, Defendant,
v.
Evelyn JAMES, et al., Intervenors.
No. CIV 74-842 PCT EHC.
United States District Court, D. Arizona.
March 13, 1992.
*1173 James E. Scarboro, David C. Warren and Richard P. Barkley, Arnold & Porter, Denver, Colo., for plaintiff.
Terry E. Fenzl and John W. Rogers, Brown & Bain, P.A., Phoenix, Ariz., for defendant.
K. Jerome Gottschalk, Robert M. Peregoy and Edgar T. Bristow, Native American Rights Fund, Boulder, Colo., for intervenors.
ORDER
RE: SCHOOL LANDS
CARROLL, District Judge.
Defendant Peterson Zah, on behalf of the Navajo Nation,[1] moves for partial summary judgment, requesting that this Court find that the Hopi Tribe and San Juan Southern Paiute Tribe ("the Paiutes" or "Paiute Tribe") do not have a claim to lands designated to the State of Arizona "for the support of common schools" in the Arizona Enabling Act. This is one of a number of motions for partial summary judgment by the Navajo Nation seeking to exclude certain categories of land from the adjudication of Hopi and Paiute interests in the 1934 Navajo Reservation.[2] The Hopi Tribe has cross-motioned for partial summary judgment.
Under Section 1 of the Act of June 14, 1934, 48 Stat. 960 (the 1934 Act), "all vacant, unreserved, and unappropriated public lands ... are permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as may already be located thereon ..." The Navajo Nation claims that the "school lands" designated in the Arizona Enabling Act are not "vacant, unreserved, and unappropriated", and thus are not subject to Hopi and Paiute claims. In order to be successful in this argument, the Navajo Nation must demonstrate both that the land at issue was granted to the State of Arizona pursuant to the Enabling Act, and that this grant renders the school lands "reserved" or "appropriated" within the meaning of the 1934 Act.
In relevant part, Section 24 of the Arizona Enabling Act states as follows:
That in addition to sections sixteen and thirty-six heretofore reserved for the Territory of Arizona, sections two and thirty-two in every township in said proposed State not otherwise appropriated at the date of the passage of this Act are hereby granted to the said State for the support of common schools and where sections two, sixteen, thirty-two, and thirty-six, or any part thereof ... have been sold, reserved, or otherwise appropriated or reserved by or under the authority of any Act of Congress, ... the provisions of section [2275 and 2276] of the Revised Statutes, [43 U.S.C. §§ 851 and 852], and Acts amendatory thereof or supplementary thereto, are hereby made applicable thereto and to the selection of lands in lieu thereof to the same extent as if sections two and thirty-two, as well as sections sixteen and thirty-six, were mentioned therein ...
Act of June 20, 1910, § 24, 36 Stat. 557, 572 (1910) (emphasis added). "The Enabling Act of each of the public-land states admitted into the Union since 1802 has included grants of designated sections of federal lands for the purpose of supporting public schools." Andrus v. Utah, 446 U.S. 500, 506, 100 S.Ct. 1803, 1807, 64 L.Ed.2d 458, reh. denied, 448 U.S. 907, 100 S.Ct. 3051, 65 L.Ed.2d 1137 (1980).
The Hopi Tribe argues that land previously withdrawn "for Indian purposes" pursuant to Executive Orders did not pass to the State pursuant to the "school lands" *1174 provision since land included in Executive Order Reservations had been otherwise appropriated at the date of the passage of the Enabling Act.[3]
The Navajo Nation, in turn, argues that Executive Order Reservation land was not "sold, reserved, or otherwise appropriated or reserved by or under the authority of any Act of Congress" as that land was withdrawn for Indian use pursuant to executive action. The Navajos contend that Indians are tenants at will while occupying an Executive Order Reservation, and "Congress has plenary authority to control use, grant adverse interests or extinguish Indian title", citing Sekaquaptewa v. MacDonald, 448 F.Supp. 1183, 1189 (D.Ariz. 1978), aff'd in part, rev'd in part, 619 F.2d 801 (9th Cir.), cert. denied, 449 U.S. 1010, 101 S.Ct. 565, 66 L.Ed.2d 468 (1980).
The Hopi Tribe counters that requiring an Act of Congress would read the first "reserved" out of the phrase "sold, reserved, or otherwise appropriated or reserved by or under the authority of any Act of Congress", and argues that effect must be given to every word or clause of a statute, citing 2A N. Singer, Statutes and Statutory Construction, § 46.06 (1984 ed. and 1989 Cum.Supp.).
More significantly, the Supreme Court has held that title to school lands cannot pass to a state subsequent to the creation of an Executive Order Reservation. See United States v. Oregon, 295 U.S. 701, 703, 55 S.Ct. 879, 879-80, 79 L.Ed. 1663 (1935) ("The surveys ... were approved subsequent to the establishment of [an Executive Order Reservation], which appropriated these lots as a part of the Reservation, and no title or interest in them passed to the State of Oregon"). See also, United States v. Southern Pacific Transportation Co., 601 F.2d 1059, 1066 (9th Cir.1979) (the creation of an Executive Order Reservation appropriated school lands prior to survey under Section 7 of the California Enabling Act, 10 Stat. 244 (1853)).
Further, selection of lieu lands in the Arizona Enabling Act is subject to the provisions of 43 U.S.C. § 851, which provides for the selection of lieu lands where, before title could pass to the States, lands are "included within any Indian, military, or other reservation, or are, before title could pass to the State, otherwise disposed of by the United States." There is no requirement in 43 U.S.C. § 851 that the Indian reservation be one created by Congress.
Moreover, the State of Arizona selected lieu lands in exchange for school land sections located within the Executive Order Reservations prior to 1934. (See Exhibit 1 to Second Affidavit of Melanie Morris, attached to Hopi Reply indicating parcels selected in 1918 as indemnity lieu lands). This indicates that both Arizona and the United States treated land in Executive Order Reservations as "previously appropriated" under the Enabling Act since lieu lands were selected.
This Court therefore finds that land withdrawn pursuant to Executive Orders was "previously appropriated" within the meaning of the Arizona Enabling Act, and that the State of Arizona could not assert an interest in that land pursuant to the Enabling Act. Lands withdrawn pursuant to Executive Orders prior to the Enabling Act are therefore "unreserved" within the meaning of the 1934 Act, and not excluded from Hopi and Paiute claims.
Although this conclusion subjects a vast majority of the "school lands" to the claims of the Hopi and Paiute Tribes, in order to complete the record this Court will address the Navajo argument that both surveyed and unsurveyed "school lands" are "reserved" *1175 within the meaning of Section 1 of the 1934 Act.[4]
The Hopi Tribe concedes that surveyed school lands may be "reserved" under Section 1. When school lands are surveyed, and the survey is approved by the General Land Office, the State of Arizona's interest in those lands vests. United States v. Wyoming, 331 U.S. 440, 443-44, 67 S.Ct. 1319, 1322, 91 L.Ed. 1590, reh. denied, 332 U.S. 787, 68 S.Ct. 37, 92 L.Ed. 370 (1947); Beecher v. Wetherby, 95 U.S. 517, 524, 24 L.Ed. 440 (1877). However, the Hopi Tribe has demonstrated that some of the surveyed parcels were surveyed after land containing those parcels had been withdrawn pursuant to Executive Order.[5] These parcels are subject to Hopi and Paiute claims since the State of Arizona did not obtain a vested interest in them, rendering the parcels "unreserved" under the 1934 Act.
Contrary to surveyed school lands, the Hopis argue that unsurveyed school lands were "unreserved" within the meaning of Section 1. The Hopi Tribe contends that where the land had not been surveyed, the State did not have a vested interest in the land. In Wyoming, 331 U.S. at 443-44, 67 S.Ct. at 1321-22, the Supreme Court stated,
[T]itle to unsurveyed sections of the public lands which have been designated as school lands does not pass to the State upon its admission into the Union, but remains in the Federal Government until the land is surveyed. Prior to survey, those sections are a part of the public lands of the United States and may be disposed of by the Government in any manner and for any purpose consistent with applicable federal statutes. If upon survey it is found that the Federal Government has made a previous disposition of the section, the State is then entitled to select lieu lands as indemnity in accordance with the provisions incorporated into each of the school-land grants. The interest of the State vests at the date of its admission into the Union only as to those sections which are surveyed at that time and which previously have not been disposed of by the Federal Government.
The Supreme Court has reached similar results as to other state Enabling Acts. See Andrus, 446 U.S. at 507, 100 S.Ct. at 1807 (interpreting the Utah Enabling Act, 28 Stat. 109 (1894)); United States v. Morrison, 240 U.S. 192, 204-05, 36 S.Ct. 326, 330-31, 60 L.Ed. 599 (1916) (the Oregon Admission Act, 11 Stat. 383 (1859)); Heydenfeldt v. Daney Gold & Silver Mining Co., 93 U.S. 634, 640, 23 L.Ed. 995 (1877) (Nevada Enabling Act, 13 Stat. 30 (1864)).
The Navajo Nation argues that it is not necessary that the State of Arizona have title to the land, but only that the State's interest be sufficient to take the land out of the "unreserved" public lands category of Section 1. The Navajo Nation points to the language of the Enabling Act that in addition to those sections "heretofore reserved to the Territory of Arizona" additional sections were "granted to the said State" (emphasis added).
However, the Supreme Court has explicitly rejected that the word "grant" in an Enabling Act transfers an interest to a State in the specific sections of school lands. Wyoming, 331 U.S. at 445, 67 S.Ct. at 1322. The Arizona Enabling Act gave the State an interest in the quantity of *1176 unsurveyed land designated, but no interest in specific parcels of land. As the Supreme Court stated in Heydenfeldt, 93 U.S. at 640:
[T]he evident intention [of Congress was] ... to grant to the State in praesenti a quantity of land equal in amount to the 16th and 36th sections. Until the status of the lands was fixed by a survey, and they were capable of identification, Congress reserved absolute power over them ...
See also, Morrison, 240 U.S. at 200, 36 S.Ct. at 329 ("it was not important to the State that it should receive specific lands, if suitable indemnity were given ... The designation of these sections was a convenient method of devoting a fixed proportion of public lands to school uses.").
Although the Navajo Nation argues that each state's Enabling Act must be looked at individually, the Supreme Court has held that grants of school lands should have "equal operation and equal benefit in all the public land State and Territories." Wyoming, 331 U.S. at 453, 67 S.Ct. at 1326 (quoting H.R.Rep. No. 2384, 51st Cong. 1st Sess. 1; Sen.Rep. No. 502, 51st Cong., 1st Sess. 1.). "[I]t was the manifest intention [of Congress] to place the States on the same footing in this matter." Morrison, 240 U.S. at 205, 36 S.Ct. at 331. The Navajo Nation has not successfully demonstrated to this Court that the Arizona Enabling Act should be construed differently than those which have been analyzed by the Supreme Court.[6]
Further, the reason Enabling Acts do not reserve interests in specific parcels of land is evident in this case.
[I]t might appear before surveys were had that there were important public interests which in the judgment of Congress should be subserved by some other disposition of lands of a particular character. On the other hand, it was not important to the state that it should receive specific lands, if suitable indemnity were given.
Morrison, 240 U.S. at 200, 36 S.Ct. at 329. If the State of Arizona had gained a vested interest in specific sections of land, the United States would have been greatly hindered in its efforts to establish reservations for the Navajo Nation.
Finally, the Navajo Nation urges this Court to adopt the reasoning of Andrus, 446 U.S. at 511, 100 S.Ct. at 1809, in which the Supreme Court stated that the withdrawal of federal lands for grazing districts under the Taylor Grazing Act, 48 Stat. 1269 (1934), did not affect the original school land grants, whether or not they had been surveyed. The Navajo Nation contends that the same policy should be applied in this case since the Taylor Grazing Act was also passed in 1934, and thus indicates Congressional intention regarding the status of unsurveyed land in the 1934 Reservation. However, as the Hopi Tribe points out, the Taylor Grazing Act expressly states that it would not effect unsurveyed school lands, and the Navajo argument is therefore unpersuasive.
Thus, this Court finds that unsurveyed lands are "unreserved" within the meaning of Section 1 of the 1934 Act.[7]
Alternatively, the Navajo Tribe argues that even if the school lands are unreserved and unappropriated under Section 1, the school lands were "relinquished" by the State pursuant to Section 2 of the 1934 Act, and were therefore placed in trust for the exclusive benefit of the Navajo Nation. Section 2 provides:
*1177 The State of Arizona may relinquish such tracts of school land within the boundary of the Navajo Reservation, as defined by section 1 of this Act, as it may see fit in favor of said Indians, and shall have the right to select other unreserved and non-mineral public lands ...[8]
The Navajo Nation argues that since the school lands were "relinquished" pursuant to Section 2, it is irrelevant whether or not those lands are "unreserved" under Section 1 of the 1934 Act.
The Hopi Tribe contends that most of the lands in question were not exchanged pursuant to Section 2 of the Act. Clerical notations in the "Land Master Record" of the State of Arizona Land Office indicate that a majority of the lands are designated as lieu lands transferred to the State of Arizona pursuant to the Arizona Enabling Act. (See Affidavit of Richard Oxford). The Navajo Nation argues that to the extent ministerial notations reflect inconsistency with Congressional intent that the lands be exchanged pursuant to the 1934 Act, those notations do not control the legal status of land. This Court agrees that the State of Arizona's records are not determinative in this matter, but are evidence to be considered.
This Court finds that Section 2 providing for the relinquishment of school lands includes only those school lands in which the State had a vested property interest; i.e. those school lands that were surveyed prior to the passage of the 1934 Act and which had not been "previously appropriated" by Executive Order withdrawal. The Reservation created by Section 1 would not include those parcels of school lands in which the State had a vested interest since those lands were not "unreserved". Without Section 2, there was no mechanism to allow the exchange of lands in which the state's interests had vested, since the Enabling Act provided only for the exchange of which had been "previously appropriated". Thus, unless Congress provided for the exchange of school lands in which Arizona had a vested interest, the 1934 Reservation would have contained a number of parcels which were not Indian land, which was contrary to the purpose of the 1934 Act to consolidate the boundaries of the Navajo Reservation. Although it is possible that Congress also intended that unsurveyed lands could be exchanged pursuant to Section 2 of the Act, these lands could already be exchanged pursuant to the Enabling Act. Further, no evidence has been presented to this Court that Congress intended Section 2 to include unsurveyed school lands.
In determining the extent of the Hopi's interests in the 1934 Reservation, the Court in Sekaquaptewa stated, "The only meaning th[e] clause [such other Indians as may already be located thereon] could plausibly be given in light of the legislative history is to protect the rights and interests of the Hopi tribe to the land they were occupying and using outside the 1882 Reservation on June 14, 1934." Sekaquaptewa, 448 F.Supp. at 1196. Absent strong reason, this Court will interpret the 1934 Act to allow the Hopi Tribe to assert its rights in lands it occupied.
In summary, this Court finds that all unsurveyed parcels of school land are "unreserved" and thus subject to Hopi and Paiute claims under the 1934 Act. Summary judgment will therefore be granted to the Hopi Tribe as to those parcels listed as unsurveyed in Exhibit 1 to the Affidavit of Melanie Morris, attached to the Hopi Tribe's cross-motion for partial summary judgment.
Also, all parcels of school lands surveyed prior to withdrawal of the land pursuant to Executive Order are "reserved" and are not subject to Hopi and Paiute claims. Parcels of school lands surveyed after withdrawal of the land pursuant to Executive Order are "unreserved" and subject to Hopi and Paiute claims. However, summary judgment as to surveyed parcels is not appropriate at this time since the Navajo *1178 Nation has not been afforded the opportunity to refute the survey dates provided by the Hopi Tribe. The Navajo Nation must submit any objections to the survey dates set forth in Exhibit 2 to the Second Affidavit of Melanie Morris, attached to the Hopi Tribe's reply to its cross-motion, within 30 days of the date of this Order. The Court will then enter summary judgment as appropriate.
Accordingly,
IT IS ORDERED that all unsurveyed parcels of school land are "unreserved" and thus subject to Hopi and Paiute claims under the 1934 Act; partial summary judgment is thus granted to the Hopi Tribe in part as to those parcels listed as unsurveyed in Exhibit 1 to the Affidavit of Melanie Morris, attached to the Hopi Tribe's cross-motion for partial summary judgment.
IT IS FURTHER ORDERED that all parcels of school lands surveyed prior to withdrawal of the land pursuant to Executive Order are "reserved" and not subject to Hopi and Paiute claims, and that parcels of school lands surveyed after withdrawal of the land pursuant to Executive Order are "unreserved" and subject to Hopi and Paiute claims.
IT IS FURTHER ORDERED that the Navajo Nation shall submit any objections to the survey dates set forth in Exhibit 2 to the Second Affidavit of Melanie Morris, attached to the Hopi Tribe's reply to its cross-motion, within 30 days of the date of this Order.
NOTES
[1] The Navajo Tribal Code, 1 N.T.C. § 301, requires officials of the Navajo Tribe to use the term "Navajo Nation" rather than "Navajo Tribe." Throughout this Order, the Court will use the term employed by the Navajos.
[2] The Navajo Nation also seeks to exclude lands allotted where patents had been issued to individual Indians, lands allotted where patents had not issued, lands purchased by or on behalf of the Navajo Tribe before 1934, and privately-owned lands relinquished pursuant to section 2 of the 1934 Act or purchased by or for the Navajo Tribe after 1934. These issues will be addressed in separate orders.
[3] Although both the Enabling Act and the 1934 Act use the term "appropriated", they have different meanings. For instance, land may be found to be "appropriated" within the meaning of the Enabling Act, but "not appropriated" within the meaning of the 1934 Act. To avoid confusion on this issue, the Order will refer to land as "appropriated" or "non-appropriated" under the Enabling Act, and "reserved" or "unreserved" under the 1934 Act. "Reserved" and "appropriated" are deemed to have the same meaning under the 1934 Act for purposes of this Order.
[4] This argument assumes that the school lands were not "previously appropriated" by the Executive Order Reservations under the Arizona Enabling Act.
[5] Parcels originally designated as school lands are set forth in Exhibit A to the Navajo Nation's memorandum in support of its motion for partial summary judgment. The list was derived from a data compilation obtained from the Arizona State Land Department, called the "Land Master Record", attached as Exhibit 1 to the Affidavit of Richard Oxford. Exhibit 2 to the Second Affidavit of Melanie Morris is a summary listing survey and withdrawal dates of various parcels of school lands listed in Exhibit A to the Navajo motion. Each parcel listed in Exhibit 2 either was not surveyed or was surveyed after withdrawal. Because this exhibit was attached to the Hopi reply to its cross-motion, the Navajo Nation could not respond to Ms. Morris' designation of survey dates. Therefore, summary judgment will be reserved as to the status of particular parcels, subject to any objections by the Navajo Nation.
[6] The Navajo Nation argues that the legislation relating to the New Mexico territory (of which Arizona was once a part) required that school sections be surveyed prior to the vesting of an interest. See, Section 15, Act of September 9, 1850, 9 Stat. 446, 452. In contrast, the statehood enabling act did not explicitly require a survey, which the Navajo Nation argues indicates Congress' intention that survey was not necessary for the State's interest to vest. This argument is not persuasive, and the Navajo Nation fails to distinguish Arizona's Enabling Act from the others cited which also do not have explicit requirements of survey.
[7] Unsurveyed parcels are listed in Exhibit 1 to the Affidavit of Melanie Morris, attached to the Hopi Tribe's Cross-Motion. The Navajo Nation did not dispute the information provided therein, and partial summary judgment will be granted to the Hopi Tribe as to these parcels.
[8] The Hopi Tribe does not dispute that the reference to "said Indians" is to Navajo Indians.
|
99 Cal.App.3d 560 (1979)
160 Cal. Rptr. 392
FLORENCE C. PULVERS, Individually and as Administratrix, etc., et al., Plaintiffs and Appellants,
v.
KAISER FOUNDATION HEALTH PLAN, INC., et al., Defendants and Appellants.
Docket No. 55881.
Court of Appeals of California, Second District, Division Four.
December 10, 1979.
*563 COUNSEL
Lillian Finan and Richard E. Hodge for Plaintiffs and Appellants.
Thelen, Marrin, Johnson & Bridges, Curtis A. Cole and Michael T. Hornak for Defendants and Appellants.
OPINION
KINGSLEY, Acting P.J.
Originally, Mr. Pulvers brought suit against the Kaiser Health Plan and its related agencies and Dr. Lee, for malpractice *564 in the treatment of a condition known as Bowen's disease. Mr. Pulvers died during the pleading stages of that case and it was thereafter continued by his widow as administratrix and in her individual capacity. Ultimately, in the fourth amended complaint, there were added causes of action for breach of warranty (second cause), fraud (third cause), wrongful death (fourth cause) and fraud (fifth cause). In addition, Mr. Pulvers' two children sued separately for wrongful death. The two actions were consolidated.
The jury returned a verdict for defendants on the first cause of action and for plaintiffs on the fourth cause of action. The trial court granted judgment on the pleadings on the second cause of action, a nonsuit on the third, and a new trial on the fourth and fifth.
I
(1) Although plaintiffs here attack the verdict and judgment on the first cause of action, we reject that attack. The evidence was sharply conflicting on the basic issue did defendant, Dr. Lee, fail to conform to acceptable medical standards by delaying a biopsy in her diagnosis of Mr. Pulvers' condition. The jury was entitled to accept the defense testimony that her conduct was within approved medical standards. It is not our function to reweigh the evidence on that cause of action.
II
(2) It was plaintiff's theory in pleading the second cause of action that, by representing in their literature that they would provide "high standards" of medical service, they had warranted a standard higher than nonnegligence. They thus rely on our language in Depenbrok v. Kaiser Foundation Health Plan, Inc. (1978) 79 Cal. App.3d 167 at p. 171 [144 Cal. Rptr. 724], reading as follows: "We conclude that, if a plaintiff can prove to a properly instructed jury that a surgeon has clearly promised a particular result (as distinguished from a mere generalized statement that the result will be good), [fn. 2 omitted] and that the patient consented to an operation or other procedure in reliance on that promise, there can be recovery on the theory of warranty (or, to give the theory its more accurate name, breach of contract)." That reliance is misplaced. In Depenbrok we went no further than to hold that a doctor may be held liable on a theory of breach of contract where he *565 has clearly and unequivocally warranted that a course of treatment recommended by him will, inevitably, produce a certain result. In that opinion, we distinguished the cases, rejecting a contract theory, where the doctor had made what we characterize as only "generalized" promises of a "good result." We cannot see in the language here relied on by plaintiffs anything more than a similar generalized puffing to the effect that the foundation's doctors would exercise good judgment in their care.
III
(3) The third cause of action (and related allegations in the other causes of action) rest on the theory that, because the health plan represented itself to be a "nonprofit" organization, and in fact had a system whereby the individual doctors were encouraged, by an incentive payment plan, to be conservative with reference to unnecessary tests and treatments, Mr. Pulvers and his wife were fraudulently led to believe that they would receive "the best quality" of care and treatment.
As defendants point out, the health plan itself is nonprofit; as we understand it, the gravamen of plaintiffs' complaint is that, although admittedly, the individual doctors acted "for profit" they had believed that that profit was measured solely by a flat salary and did not include extra compensation for rendering less expensive care and treatment that ultra caution might suggest. We note, as defendants point out, that the use of such "incentive" plans is not only recommended by professional organizations as a means of reducing unnecessarily high medical costs, but that they are specifically required by section 300e of the Health Maintenance Organization Act of 1973 (42 U.S.C. § 300e). We can see in the plan no suggestion that individual doctors act negligently or that they refrain from recommending whatever diagnostic procedures or treatments the accepted standards of their profession require.
IV
(4) With reference to the fourth cause of action for wrongful death, the trial court gave, at plaintiffs' request, the following instruction:
"PLAINTIFFS' PROPOSED JURY INSTRUCTION NO. 3
"Liability for negligence in providing medical care may be based upon an inference that it is a reasonable medical probability that the *566 decedent would have been benefited, ... by possible lengthening of his life ... even if no cure would have resulted from more prompt diagnosis and treatment." The jury brought in a verdict for plaintiffs; the trial court thereafter granted a new trial on the sole ground that that instruction was erroneous as a matter of law. The instruction (with a deletion which we discuss later) is based squarely on the language in Cullum v. Seifer (1969) 1 Cal. App.3d 20, at p. 28 [81 Cal. Rptr. 381]. It is here attacked on two grounds: (1) that the use of the word "liability" removed from the jury's consideration the issue of negligence and imposed an absolute liability; and (2) that Cullum is distinguishable because it was an action for personal injury and not, as here, one for wrongful death. We reject both arguments.
(1) The jury was carefully instructed, at length, on the definition of negligence in a malpractice case.[1] The instruction followed that elaborate definition and did no more than to tell the jury that "liability for negligence" could be found under the circumstances set forth. We cannot accept defendants' theory that a reasonable jury would have construed the instruction as negating all of the earlier instructions. The obvious meaning of the language used told the jury that, if they found negligence they could find causation from the inference set forth in the rest of the instruction.
(2) It is true, as the defendants argue, that the damages in a wrongful death case are different from those in a personal injury action. That distinction was recognized by the court's deletion from the Cullum language of the phrase "and/or his personal comfort."[2] The jury was elsewhere properly instructed as to the factors that it could consider in fixing damages. Of the three elements required in a malpractice suit negligence, causation and damage the instruction here involved dealt with only the second causation it did not foreclose, and could not reasonably be construed as affecting, the jury's obligation to also make findings favorable to plaintiffs on the other two elements, on both of which they were fully instructed.[3] The giving of the instruction, as amended by the trial court, was not error.
*567 V
The order granting the new trial on the fourth cause of action, referred only to Mrs. Pulvers as administratrix and individually; it did not refer to the action by the two children. Since we reverse the new trial order, we need not, and do not, consider the effect of that admittedly clerical error.
VI
(5) Defendants moved both for a new trial and in the alternative, for judgment notwithstanding the verdict on the wrongful death cause of action. By their cross-appeal, they here attack the denial of the judgment notwithstanding the verdict. We reject that attack. Mr. Pulvers was afflicted with a form of leukemia known as "CLL," the principal effect of which is to render the body substantially less immune to infection. He ultimately died in 1973 from an infection. His condition was known to defendants as early as 1969. The attending physicians recommenced a course of periodic review, postponing chemotheraphy until his symptoms substantially worsened. The evidence was sharply conflicting on whether the monitoring was properly carried out, on whether chemotherapy should have been started at a much earlier time, and whether, had that treatment been given earlier, Mr. Pulvers' life would have been extended. We cannot say that the trial court erred in finding, as it did, that the evidence for plaintiffs on those issues, accepted by the jury in its verdict, supported that verdict. As with plaintiffs' attack on the verdict adverse to them on the first cause of action, we have no power to reweigh the evidence which, as to the fourth cause of action, was regarded by jury and trial court as sufficient.
The order granting a new trial is reversed; the order denying judgment notwithstanding the verdict is affirmed; the judgment on counts I, II and III is affirmed. Neither party shall recover costs in this court.
Jefferson (Bernard), J., and Swearinger, J.,[*] concurred.
Petitions for a rehearing were denied December 26, 1979, and the petitions of all the parties for a hearing by the Supreme Court were denied February 7, 1980.
NOTES
[1] The trial court gave BAJI Nos. 2.60, 6.00, 6.01, 6.02 and 6.03.
[2] Thus we reject plaintiffs' argument that there was error in deleting those words from the instruction as requested by them.
[3] The trial court gave BAJI No. 1.01, that the instructions should be considered as a whole.
[*] Assigned by the Chairperson of the Judicial Council.
|
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-2090-17T1
STATE TROOPERS FRATERNAL
ASSOCIATION OF NEW JERSEY,
STATE TROOPERS NON-
COMMISSIONED OFFICERS
ASSOCIATION OF NEW JERSEY,
STATE TROOPERS SUPERIOR
OFFICERS ASSOCIATION,
RICHARD POKORNY, THOMAS
DECKER, BRIAN ZAMROCK,
JOHN SCALABRINI, FABIAN
GERKE, and all other persons
similarly situated,
Petitioners-Appellants,
v.
STATE POLICE RETIREMENT
BOARD,
Respondent-Respondent.
___________________________
Argued May 21, 2019 – Decided July 5, 2019
Before Judges Suter and Geiger.
On appeal from the Board of Trustees of the State
Police Retirement System, SPRS No. 8-10-004653.
Lauren P. Sandy argued the cause for appellants.
Robert E. Kelly, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Robert E. Kelly, on the
brief).
PER CURIAM
Appellants are three labor unions, five named members of those unions,
and all other persons similarly situated. They appeal from a final agency
decision of respondent Board of Trustees (the Board) of the State Police
Retirement System (SPRS) denying the transferability of certain prior non-SPRS
service credit. For the following reasons, we affirm.
New Jersey State Troopers Richard Pokorny, Thomas Decker, Brian
Zamrock, John Scalabrini, and Fabian Gerke (collectively the five named
members) were all members of the Police and Fireman's Retirement System
(PFRS) before enrolling in the SPRS. Prior to becoming a State Trooper in
1993, Pokorny was employed as a detective by the Ocean County Prosecutor's
Office for three years and eight months. Decker was employed by the New
Jersey Department of Corrections for two years and ten months prior to
becoming a State Trooper in 1987. Zamrock was employed by the New Jersey
Division of Criminal Justice (DCJ) as a State Investigator for four years and six
A-2090-17T1
2
months prior to becoming a State Trooper in 2003. Scalabrini was employed by
the DCJ as a State Investigator for five years and three months before becoming
a State Trooper in 2004. Gerke was employed by the DCJ as a State Investigator
for three years prior to becoming a State Trooper in 2003. None of these five
named members had a break in service when they became State Troopers.
We begin with an overview of the relevant statutory framework. The
SPRS was created in 1965 to "provide retirement allowances and other benefits
for its members and their beneficiaries." N.J.S.A. 53:5A-4. Prior to 1997, SPRS
membership was limited to: (1) members of the State Police Retirement and
Benevolent Fund; (2) fulltime commissioned officers, noncommissioned
officers, and troopers of the Division of State Police; and (3) persons employed
in certain positions in the Division of Motor Vehicles who were appointed to the
State Police in 1983. L. 1983, c. 403, §§ 37-38.
In 1997, the Legislature amended the statute to appoint persons in the
following enumerated positions to the State Police: (1) Alcoholic Beverage
Control Enforcement Bureau (ABC) inspectors; (2) State Capitol Police Force
members; and (3) Bureau of Marine Law Enforcement officers who satisfied
certain age, health, and performance criteria (collectively the 1997 appointees).
L. 1997, c. 19, §§ 1, 7. The service credit earned by the 1997 appointees in the
A-2090-17T1
3
PFRS or the Public Employees' Retirement System (PERS) was transferred to
the SPRS. L. 1997, c. 19, § 4. To ensure the 1997 appointees and the SPRS
would not be harmed by transfer, the 1997 amendments required the PFRS and
PERS to remit the "accumulated deductions standing to the credit" of the 1997
appointees and "the pro-rata part of the reserve fund constituting the employer's
obligations under the former system applicable" to the 1997 appointees'
accounts. L. 1997, c. 19, § 5. The 1997 amendments also required the
employers to contribute the amount of any deficiency to the SPRS, if the amount
remitted pursuant to L. 1997, c. 19, § 5 was "less than the total" needed by the
SPRS to provide the 1997 appointees "with credit for [their] public service." L.
1997, c. 19, § 6.
The Legislature also added the following language to N.J.S.A. 53:5A-
6(a):
In addition, service as a member of the State Capitol
Police Force, or as a Supervising Inspector, Principal
Inspector, Senior Inspector, or Inspector Recruit in the
[ABC] or as a Principal Marine Law Enforcement
Officer, Senior Marine Law Enforcement Officer, or
Marine Law Enforcement Officer in the Bureau of
Marine Law Enforcement and service credit transferred
from [the PFRS] or [PERS] shall, if the required
contributions are made by the State and the member, be
considered as creditable service.
[L. 1997, c. 19, § 8.]
A-2090-17T1
4
The Assembly's Committee's Statement makes clear that the transfer of
service credit from the PFRS and PERS to the SPRS was limited to the 1997
appointees:
For persons becoming members of the State Police
under the bill, their service credit in [PERS] or [PFRS]
as an alcoholic beverage control inspector, State
Capitol Police Force member, or marine law
enforcement office[r] shall be transferred to the SPRS.
Any other service credit established in PERS or PFRS
shall be included in the computation of an SPRS
retirement allowance on the basis of 1% of final
compensation for each year of such service credit . . . .
[Assemb. Comm. Statement to A. 1451 2 (June 10,
1996).]
The Legislature expressly contemplated "that 162 persons ([twenty-four]
ABC inspectors, 134 Marine Police officers and [four] State Capitol police
officers) would be eligible to transfer to the . . . State Police" under the 1997
Amendments and "that 115, or approximately [seventy] percent, of these persons
would qualify to transfer to the State Police" under the 1997 Amendments. S.
Comm. Statement to A. 1451 2 (Nov. 25, 1996). Of those 162, the Office of
Legislative Services (OLS) estimated "115, or approximately seventy percent,
of these persons would qualify to transfer." Ibid. The OLS estimated "the total
additional pension cost to the State in the first year following enactment would
be $835,181" for those 115 employees. Ibid.
A-2090-17T1
5
In January 2015, the Unions petitioned the Board on behalf of five named
members and "all other similarly situated troopers." These individuals did not
claim to be among the 1997 appointees. Relying on our unpublished opinion in
LaRosa v. State Police Ret. Sys., No. A-0927-12 (Sept. 27, 2013),1 appellants
claimed the Union members' creditable service in the PFRS should be treated as
transferred credit in the SPRS. The Unions subsequently submitted "a formal
request for compliance with N.J.S.A. 53:5A-6(a)" and LaRosa.
The Board denied the petition, "determin[ing] that only service credit
transferred in from specific titles was eligible to be included as creditable
service." In reaching that conclusion, the Board distinguished the facts
presented in the unpublished opinion relied upon by appellants, which involved
employees who previously held titles "specifically enumerated" in the 1997
amendments. The Board further determined that "a plain reading of [N.J.S.A.
53:5A-6(b)] does not lead to the conclusion that all transferred service credit is
to be treated similarly for all employees."
1
"No unpublished opinion shall constitute precedent or be binding upon any
court." R. 1:36-3. Unreported decisions "serve no precedential value, and
cannot reliably be considered part of our common law." Trinity Cemetery v.
Wall Twp., 170 N.J. 39, 48 (2001) (Verniero, J., concurring).
A-2090-17T1
6
The Unions appealed from the Board's decision. The appeal was
transmitted to the Office of Administrative Law for hearing as a contested case
and assigned to an Administrative Law Judge (ALJ). The parties cross-moved
for summary decision pursuant to N.J.A.C. 1:1-12.5.2 Following oral argument,
the ALJ issued an Initial Decision on October 6, 2017.
The ALJ concluded summary decision was appropriate because there were
no material facts in dispute. The ALJ stated "[t]he sole issue is interpretation of
N.J.S.A. 53:5A-6 as it applies to the undisputed facts."
The ALJ focused on "whether subsection (a) or subsection (b) of N.J.S.A.
53:5A-6 should apply to petitioners' service previously rendered in the PFRS."
The ALJ noted subsection (a) "enumerates positions within specific agencies
and provides that time served within those positions qualifies as full creditable
service within the SPRS." In turn, the ALJ noted subsection (b) provided for
prior service credit in the PFRS or PERS "is to be included in calculating a SPRS
member's retirement allowance at a rate of one percent of final compensation
for each year of service in those systems, unless otherwise stated in the statute."
2
Pursuant to N.J.A.C. 1:1-12.5(b), summary decision "may be rendered if the
papers and discovery which have been filed, together with affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to prevail as a matter of law."
A-2090-17T1
7
The ALJ rejected the argument that any time served in the PFRS or PERS
should be given full value and concluded that "if all service rendered in the
PFRS or PERS was meant to translate into full creditable service within the
SPRS, there would be no need to enumerate specific agencies or titles within the
statute. Accepting [appellants'] interpretation would render the lists of agencies
and titles superfluous."
The ALJ found appellants' reliance on LaRosa misplaced because the
employees in LaRosa held titles "specifically enumerated" in subsection (a),
whereas here, appellants did not "transfer[] into the SPRS from a position
enumerated in subsection (a)."
The ALJ rejected the argument subsection (b) was "inapplicable because
it only applie[d] to service credit that ha[d] been purchased, meaning unworked
time on a leave of absence without pay, not service credit that has been
transferred." The ALJ concluded appellants' interpretation of subsection (b) was
"undermined by the language" of subsection (f). The ALJ explained:
Subsection (f) states that individuals who become
SPRS members pursuant to the 1997 amendments and
are required to retire at age fifty-five with less than
twenty years of SPRS credit, may use "service credit
transferred or purchased pursuant to subsection b" to
attain the requisite twenty years. Subsection (f) also
indicates that, for the 1997 appointees, "[t]ransferred or
purchased service credit in excess of the amount
A-2090-17T1
8
necessary to provide 20 years of creditable service in
the retirement system shall be included in the
computation of a retirement allowance on the basis
provided in subsection b." Again, this language
suggests that subsection (b) can apply to both
transferred or purchased service credit from another
retirement system.
The ALJ also found the legislative history of N.J.S.A. 53:5A-6 supported
the Board's position, noting the 1997 amendment provided that service credit
transferred from the PFRS or the PERS in the enumerated titles "would
constitute creditable service in the SPRS." The ALJ also noted the Assembly
State Government Committee's Statement to Assembly Bill 1451 "indicates that
service credit established in specific, enumerated PERS and PFRS positions
would transfer to the SPRS. However any other service credit established in
other retirement systems was meant to be treated differently for purposes of
calculating retirement allowances."
Based on this analysis, the ALJ granted the Board's motion for summary
decision and found that PERS or PFRS credit transferred into the SPRS is not
credited at full value unless the service was attributable to one of the enumerated
titles. The ALJ concluded subsection (b) "is the appropriate subsection for
calculating [the] retirement allowance for previous creditable service in the
A-2090-17T1
9
PERS and PFRS under non-enumerated titles." Appellants and the Board each
filed exceptions to the Initial Decision.
The Board adopted the ALJ's Initial Decision, determining that "N.J.S.A.
53:5A-6(a) and (b) [do] not provide for the transfer of previously earned PFRS
service to a member's SPRS account on a full SPRS value for any individual[s]
becoming members of the SPRS other than those who transferred into SPRS in
1997 and occupied one of the positions enumerated in the statute." This appeal
followed.
Appellants argue:
POINT I
THE DECISION OF THE STATE POLICE
RETIREMENT BOARD DID NOT FOLLOW THE
LAW AND THEREFORE SHOULD BE REVERSED.
POINT II
THE BOARD'S DECISION DID NOT FOLLOW THIS
COURT'S DECISION IN LAROSA AND
THEREFORE SHOULD BE REVERSED BECAUSE
IT IS ARBITRARY AND CAPRICIOUS.
POINT III
THE DECISION OF THE BOARD VIOLATES THE
PUBLIC POLICY TO CONSTRUE PENSION
STATUTES LIBERALLY, AND THEREFORE,
SHOULD BE REVERSED. (Not Raised Below).
Appellate courts serve a "limited role" in reviewing administrative agency
decisions. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway
A-2090-17T1
10
State Prison, 81 N.J. 571, 579 (1980)). We will not overturn an agency decision
"unless there is a clear showing that it is arbitrary, capricious, or unreasonable,
or that it lacks fair support in the record." Stein v. Dep't of Law & Pub. Safety,
458 N.J. Super. 91, 99 (App. Div. 2019) (quoting J.B. v. N.J. State Parole Bd.,
229 N.J. 21, 43 (2017)). When undertaking that analysis, a reviewing court must
scrutinize:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[Stallworth, 208 N.J. at 194 (quoting In re Carter, 191
N.J. 474, 482-83 (2007)).]
We do not substitute our own judgment for an agency's, even if we might
have reached a different result. Ibid. In addition, courts generally "afford
substantial deference to an agency's interpretation of a statute that the agency is
charged with enforcing. An appellate court, however, is 'in no way bound by
the agency's interpretation of a statute or its determination of a strictly legal
issue.'" Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189,
196 (2007) (quoting In re Taylor, 158 N.J. 644, 658 (1999)).
A-2090-17T1
11
We affirm substantially for the reasons expressed by the ALJ in her cogent
and comprehensive Initial Decision, which was adopted by the Board without
modification. We add the following comments.
Both the plain language of N.J.S.A. 53:5A-6 and its legislative history
fully support the Board's decision. Appellants did not transfer from any of the
titles enumerated in subsection (a). They are not eligible for the retirement
benefits they seek.
As the ALJ found, adopting appellants' position would render the
inclusion of the enumerated titles set forth in subsection (a) superfluous. "A
construction that would render any part of a statute inoperative, superfluous or
meaningless, is to be avoided." Hoffman v. Hock, 8 N.J. 397, 406-07 (1952)
(citing 2 Sutherland, Statutory Construction § 4705 at 339 (3d ed. 1943)). It
would also be contrary to the maxim of ejusdem generis. See Lewis v. Bd. of
Trs., PERS, 366 N.J. Super. 411, 416 (App. Div. 2004) (stating "the inclusion
of specific words and phrases controls or limits more general words and phrases
in interpreting" statutory language). Had the Legislature intended to include all
titles pensionable under the PERS or PFRS, it would not have listed the
enumerated titles in the 1997 amendment.
A-2090-17T1
12
Appellants' reliance on LaRosa is misplaced.3 The controlling facts in
LaRosa are readily distinguishable from this matter. In LaRosa, each appellant
was previously employed by the ABC and the Division of Gaming and
Enforcement (DGE) as inspectors. They became members of the State Police
on April 12, 1997, after voluntarily transferring from those inspector positions.
LaRosa, slip op. at 4. We noted subsection (a) unambiguously states that
creditable service for purposes of the SPRS includes service as an inspector in
the ABC. Id. at 12. Therefore, "all of appellants' service to the State – including
their stints in PERS – qualify as creditable service under this subsection." Id. at
13. We rejected the Board's position that such PERS creditable service is eroded
by subsection (b). Ibid. Central to that determination was the fact that the
creditable service at issue was accrued in one of the titles enumerated in
subsection (a); whereas appellants in this matter were not employed in any of
the enumerated titles. LaRosa provides no support for appellants' position.
On appeal, appellants argue for the first time that the Board's decision
violates the public policy to construe pension statutes liberally. We disagree.
3
The court will engage in the following analysis of this unreported decision for
the limited purpose of demonstrating that it is factually distinguishable from this
matter. See Ryan v. Gina Marie, L.L.C., 420 N.J. Super. 215, 224 n.2 (App.
Div. 2011).
A-2090-17T1
13
We recognize that a person deemed eligible for benefits is entitled to a
liberal interpretation of the pension statute, Krayniak v. Bd. of Trs., 412 N.J.
Super. 232, 242 (App. Div. 2010), because "pension statutes are 'remedial in
character' and 'should be liberally construed and administered in favor of the
persons intended to be benefitted thereby,'" Klumb v. Bd. of Educ. of
Manalapan-Englishtown Reg. High Sch. Dist., 199 N.J. 14, 34 (2009) (quoting
Geller v. N.J. Dep't of Treasury, Div. of Pensions & Annuity Fund, 53 N.J. 591,
597-98 (1969)).
These well-established interpretative principles do not apply to eligibility
determinations. Krayniak, 412 N.J. Super. at 242; Smith v. State of New Jersey,
Div. of Pensions and Benefits, 390 N.J. Super. 209, 213 (App. Div. 2007). In
light of the fiduciary duties imposed on fund administrators, pension fund
eligibility guidelines "must be carefully interpreted so as not to obscure or
override considerations of . . . a potential adverse impact on the financial
integrity of the [f]und." Krayniak, 412 N.J. Super. at 242 (alterations in original)
(quoting Smith, 390 N.J. Super. at 213).
The issue here is eligibility for a specific benefit – a full service credit
transfer – not the amount owed under that disputed benefit. Because appellants
A-2090-17T1
14
are ineligible for the pension benefits they seek, the rule of liberal construction
does not apply.
Appellants' remaining arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
In conclusion, the Board's final decision was not arbitrary, capricious, or
unreasonable. The Board correctly determined that the five named State
Troopers and others similarly situated were not eligible for full SPRS value for
prior service credits in the PFRS. Rather, they were only eligible for one percent
of final compensation for each year of such service credit.
Affirmed.
A-2090-17T1
15
|
808 F.2d 1517
Robert Alan Ins. Agencyv.Girard Bank
86-1353
United States Court of Appeals,Third Circuit.
12/1/86
E.D.Pa.,
Broderick, J.
AFFIRMED
|
Case: 18-12500 Date Filed: 06/18/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12500
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cv-21855-MGC
MANUEL A. JUNES,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT
OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 18, 2019)
Before ROSENBAUM, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 18-12500 Date Filed: 06/18/2019 Page: 2 of 7
Manuel Junes, a Florida prisoner proceeding pro se, appeals from the denial
of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. On appeal, we issued
him a certificate of appealability as to whether the district court erred in denying
his ineffective assistance of counsel claim.
Junes and his co-defendant, Wiley, went to trial on a charge of attempted
second degree murder. Junes was convicted and sentenced to twenty years. Wiley
was the actual shooter, but there was evidence that Junes had told Wiley to shoot
the victim.
In the district court and on appeal, Junes argued that his trial counsel was
ineffective for advising that he reject a ten-year plea offer offered to him just prior
to jury selection. He contends that counsel incorrectly advised him that the jury
could not convict him as the principal based on the testimony of a single witness.
On the day of the trial, before jury selection, and in open court, Junes’s
counsel told the court the prosecution had offered Junes, the alleged non-shooter,
an offer to plead guilty and receive ten years, while the prosecution offered the
alleged shooter, Wiley, five years for a plea deal. Acknowledging that witnesses
(plural) had allegedly accused Junes of telling Wiley to shoot the victim, counsel
expressed shock that the shooter would be offered five years while his client,
Junes, was only offered ten years. After ensuring that Junes’s counsel had
consulted with him about the plea offer, the court personally addressed Junes, who
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had been present during his counsel’s colloquy with the court about the plea offer.
Junes assured the court that he had talked with his counsel about the offer, that he
understood he could be found guilty and sentenced up to life imprisonment, that he
had made no counter-offers and did not want to do so, and that he wanted to go to
trial.1
When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). We can
affirm on any basis supported by the record, regardless of whether the district court
decided the case on that basis. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256
(11th Cir. 2001).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
provides that, after a state court has adjudicated a claim on the merits, a federal
court may grant habeas relief only if the state court’s decision was (1) contrary to,
or involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States, or (2) based on an
unreasonable determination of the facts in light of the evidence presented to the
state court. 28 U.S.C. § 2254(d)(1), (2). The AEDPA imposes a “highly
1
Co-defendant Wiley also rejected his plea offer and was tried with Junes. The jury found
him not guilty.
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deferential standard for evaluating state-court rulings and demands that state-court
decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773
(2010) (quotation marks and citation omitted). The reviewing court applies a
“doubly” deferential standard that takes into account § 2254’s deference to state
courts and the deference to counsel, affirming if “there is any reasonable argument
that counsel” acted pursuant to prevailing professional standards. See Harrington
v. Richter, 562 U.S. 86, 105 (2011).
Where a state court does not explain its reasons in a post-conviction ruling, a
federal habeas court should “look through” the unexplained decision to the last
related state court decision that provides a relevant rationale and presume that the
unexplained decision adopted the same reasoning. Wilson v. Sellers, 138 S. Ct.
1188, 1192 (2018). The district court must consider the particular factual and legal
reasons that the state court rejected the prisoner’s federal claims. Id. at 1191-92.
In determining whether a state court made an “unreasonable determination
of facts,” a reviewing court must remember that the “AEDPA establishes a
presumption that the state court’s findings of fact are correct, and only clear and
convincing evidence can rebut that presumption.” Rodriguez v. Sec’y, Fla. Dep’t
of Corr., 756 F.3d 1277, 1301-02 (11th Cir. 2014); see also 28 U.S.C. § 2254(e)(1)
(in a § 2254 proceeding, “a determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the burden of rebutting
4
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the presumption of correctness by clear and convincing evidence.”). We will only
overturn a state court decision on factual grounds if the decision is objectively
unreasonable. Barnes v. Sec’y, Dep’t of Corr., 888 F.3d 1148, 1156 (2018). A
state court decision is “contrary to” clearly established federal law only if the state
court arrives at a legal conclusion opposite to that reached by the Supreme Court or
if it issues a different decision than the Supreme Court in a case involving
materially indistinguishable facts. Borden v. Allen, 646 F.3d 785, 817 (11th Cir.
2011).
The Sixth Amendment gives criminal defendants the right to effective
assistance of counsel. U.S. Const., amend. VI. To succeed on an ineffective
assistance claim, a movant must show that (1) his attorney’s performance was
deficient, and (2) the deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Counsel’s performance is deficient if it
falls below the wide range of competence demanded of attorneys in criminal cases,
and there is a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 688-89.
As to the prejudice prong of an ineffective assistance claim, in the context of
pleas, the defendant must show that the outcome of the plea process would have
been different if he had received competent counsel. Lafler v. Cooper, 566 U.S.
156, 163 (2012). The Supreme Court stated in Lafler that, when the prejudice
5
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alleged is the defendant proceeding to trial instead of pleading guilty, he must
show a reasonable probability that, but for his counsel’s errors: (1) an offer would
have been presented to the court; (2) the court would have accepted it; and (3) his
conviction, sentence, or both would have been less severe under the offer’s terms
than it was under the judgment and sentence that he actually received. Id. at 164;
see also Missouri v. Frye, 566 U.S. 134, 149-50 (2012) (stating that a defendant
whose counsel failed to communicate a plea offer to him “must show not only a
reasonable probability that he would have accepted the lapsed plea but also a
reasonable probability that the prosecution would have adhered to the agreement
and that it would have been accepted by the trial court”).
Here, even if we assume, arguendo, that the district court erred in its
analysis of Junes’s ineffective assistance claim, we conclude that the denial of the
petition was still proper. The magistrate judge failed to look through the Florida
appeals court’s decision to review the reasons that the Florida circuit court denied
Junes’s claim on the merits in April 2016. However, Junes has not pointed to clear
and convincing evidence to rebut the presumption that the state court’s factual
findings were correct. Likewise, he has not shown that its decision was contrary
to, or an unreasonable application of, clearly established federal law.
The state court found, and the record supported, that the outcome of the plea
process would not have been different even if his attorney had not made the
6
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alleged errors. The state court found that Junes was made aware that multiple
witnesses would testify against him and that he could be convicted as the principal
to the crime simply by telling the shooter to shoot the victim. Notwithstanding
this knowledge, the state court found that he did not accept the prosecution’s plea
offer or seek to negotiate by counter-offer. Thus, the state court found that Junes
had failed to show that he would have accepted the plea offer but for the bad
advice of counsel. We cannot conclude that Junes has proved by clear and
convincing evidence that these state court findings are erroneous. Thus, we cannot
conclude that Junes has satisfied the prejudice prong of the ineffective assistance
of counsel standard in the context of alleged ineffectiveness in the plea context.
AFFIRMED.
7
|
690 F.Supp. 1201 (1988)
UNITED STATES of America, Plaintiff,
v.
STATE OF NEW YORK; Mario M. Cuomo, Governor of the State of New York; New York; State Office of Mental Health, Richard C. Surles, Commissioner of the New York State Office of Mental Health; Patricia T. Oulton, Executive Director of the Buffalo Psychiatric Center, Defendants.
No. CIV-88-138C.
United States District Court, W.D. New York.
July 13, 1988.
Roger P. Williams, U.S. Atty., Buffalo, N.Y. (Denise E. O'Donnell, of counsel), U.S. Department of Justice, Special Litigation Section, Civil Rights Div., Washington, D.C. (Verlin Hughes, David Deutsch, of counsel), for plaintiff.
Robert Abrams, Atty. Gen. of the State of N.Y., Buffalo, N.Y. (Douglas S. Cream, of counsel), for defendants.
CURTIN, Chief Judge.
Pending is the motion of defendants to dismiss this action pursuant to Federal Rules of Civil Procedure, Rule 12(b)(1) on the ground that plaintiff lacks standing to bring the action and has failed to comply with the jurisdictional prerequisites of 42 U.S.C. § 1997b(a)(2)(B).
The complaint alleges a violation of Civil Rights of the Institutionalized Persons Act [CRIPA]. Defendants move to dismiss on the ground that plaintiff has failed to satisfy certain procedural prerequisites before commencing Litigation under this Act. Specifically, defendants state the CRIPA requires the Attorney General of the United States under section 1997b(a)(2)(B) to require the State to correct the alleged condition through informal conferences and to voluntarily remedy unacceptable conditions before suit is brought.
The complaint, alleging a violation of 42 U.S.C. § 1997b, et seq., CRIPA, alleges in general terms that the inpatients at the Buffalo Psychiatric Hospital [BPC] of the State of New York's Office of Mental Health are deprived of rights secured to them by the United States Constitution.
The facts underlying the motion are not in serious dispute and are set forth in detail in the motion brought by the Attorney General to dismiss. There, the correspondence between the State and Federal officials is set forth, as well as a record of meetings which were held between the representatives of the State and the Department of Justice [DOJ].
For the purpose of this motion, the essential facts may be summarized as follows.[1]*1202 In January, 1986, William Bradford Reynolds, Assistant Attorney General, wrote to Governor Mario M. Cuomo of New York, advising him that the DOJ intended to commence a CRIPA investigation of the BPC (Exh. A). An official of the State Office of Mental Health replied, saying that arrangements would be made for a visit to the Center (Exh. B).
Six months later, two consultants from the DOJ toured the BPC. About eight months later, in February (see Exh. C), of 1987, the Assistant Attorney General wrote to the Governor advising that the DOJ had concluded that unconstitutional conditions existed at the BPC (Exh. C). In general terms, the report criticized the BPC for seriously inadequate care, deficient medical practices, misuse of seclusion, and unsafe environmental conditions. The Assistant Attorney General proposed that the State enter into a consent decree which would require remedial measures and agreed to meet with State officials on April 15, 1988 in Albany, New York to discuss this situation. The DOJ confirmed the meeting in a letter of March 24, 1987, repeating that "a legally binding and judicially enforceable agreement" was the procedural device favored by the DOJ (Exh. D).
The day before the meeting, State counsel received a copy of the proposed consent decree (Exh. E). See Appendix A. At the meeting, State officials expressed their concern over the vagueness of the proposed decree and said that it would retain consultants to review conditions at the BPC (Ex. F).
In June, 1987 the DOJ again wrote to the State insisting that it was the DOJ's position that "a consent decree provides the best vehicle for remedying conditions at BPC" (Exh. I). In response, Paul Litwak, counsel for the Office of Mental Health of New York State, stated that he thought the matter could be settled probably through entry of a consent decree, but since information was still being gathered, he believed settlement discussions were premature (Exh. J).
In September, 1987 the State informed DOJ of its plan to make a number of substantive changes at the BPC. The State asked the DOJ to submit the plan to the DOJ's experts for review and comment, but there was no response made to that request (Exh. N). In November, 1987 the State provided DOJ with additional information concerning their plan to upgrade facilities at BPC (Exh. L). A second letter was sent by the State in November, 1987 giving further information about the State's remedial plan (Exh. O). A meeting was held on November 20, 1987, at which the information was discussed. At that meeting, the DOJ continued to insist that a consent decree be entered into.
In a December 14, 1987 letter to DOJ (Exh. P) the State pointed out that:
your continued insistence upon a consent decree as the only acceptable method of resolving this matter is very troublesome. In my opinion, it is inconsistent not only with the spirit of the CRIPA legislation, but also with the terms of the meeting held November 19 with Mr. Reynolds and his associates. I am not able at this point to commit to entering a decree; however, we are eager to continue our discussions and we do not rule out a decree as the ultimate outcome of this process. At the same time, I urge you to consider alternative forms of concluding this matter, such as a Rule 41 voluntary stipulation of dismissal which was suggested at the November 20 meeting by [New York State] Assistant Attorney General Doug Cream.
While I have tried to provide you with as much information as possible, you or your consultants may have additional questions. If so, please give me a call as soon as practicable so that we may continue these discussions.
(Exh. P).
No response was made by the DOJ until January 29, 1988. At that time, the DOJ wrote to the State stating that it continued to be amenable to discussion of a settlement, but that it remained the DOJ's "strong preference to settle this case by *1203 consent decree." That letter was signed on the same day as the complaint in this action. The certificate of the Attorney General, a prerequisite to commencement of an action under CRIPA, had been signed on January 25, 1988, four days earlier.
FACTS
This lawsuit was filed on February 5, 1988. On the same date a press release was issued by the DOJ (Exh. R). The release announced that a civil suit was filed charging the State of New York with depriving 700 residents of the BPC of their constitutional rights and adequate medical care and treatment. The news report concluded that the facility had been under investigation by the Justice Department since January, 1986 and had been visited by independent experts and Civil Rights Division attorneys. It said that the Governor had been informed of the findings in February of 1987 and since that time the DOJ had sought to negotiate a consent decree to correct the alleged unconstitutional conditions to which the residents are subjected. In the press release no mention was made of the additions to staff and other changes at BPC which have been reflected in the affidavits filed by the Attorney General of the State of New York in support of its motion to dismiss.
DISCUSSION
42 U.S.C. § 1997a provides that whenever the Attorney General has reasonable cause to believe that any state is subjecting persons confined to an institution in that state to conditions which violate their constitutional rights, the Attorney General may institute a civil action to obtain a suitable remedy. However, before that action may be instituted, the Attorney General must personally certify that a number of steps have been taken.[2] As noted, the Attorney General provided such certification in the instant case. In its motion, the State does not quarrel with any of the items of certification, except for that specified by § 1997b(a)(2)(B). Under that Section, the Attorney General must certify that the DOJ has encouraged the State officials, through informal methods of conciliation and persuasion, to correct the alleged unconstitutional conditions.
The State contends that the record explicitly contradicts the certificate and for that reason may be reviewed by the court and found wanting and insufficient. Because the Attorney General has failed to comply with the certification requirements of CRIPA, the State argues that this case must be dismissed.
There are important and conflicting considerations at issue in this case. On the one hand, there is the important consideration that the mentally ill have the right to be properly cared for by the State. On the other hand, under the long tradition of federal/state division of authority, the care of mental patients has always been primarily a state function.
*1204 CRIPA was enacted in 1980 in response to several decisions in which the Attorney General of the United States was rebuffed when he attempted to sue various state institutions. In United States v. Solomon, 563 F.2d 1121 (4th Cir.1977), the United States Attorney General attempted to enjoin Maryland from violating the constitutional rights of mentally retarded patients. The Court of Appeals affirmed the decision of the district court which determined that the Attorney General lacked standing to bring the action. The court found that without express statutory authority the Attorney General lacked standing to sue. The same result was reached in U.S. v. Mattson, 600 F.2d 1295 (9th Cir.1979). That court observed that there had been a repeated failure of Congress to authorize such suits. 600 F.2d at 1299.
Congress several times rejected legislation which would have allowed the Attorney General to commence such actions because "the proposal injects federal executive authority into some areas which are not his legitimate concern and vests the Attorney General with broad discretion in matters of great political and social concern."[3]
The congressional legislation which ultimately resulted was evidently the product of compromise. Many congressmen were concerned that the federal government would improperly intrude into the details of State affairs. Recognizing this, the certificate process was instituted, so that at all times the state involved would be given an opportunity to have a reasonable opportunity to negotiate and conciliate with the Department of Justice before a suit was filed. The certificate of the Attorney General would insure that this process was honored, and authorize suit in serious cases where the process did not succeed.
The United States argues that the certificate of the Attorney, certifying that the prefiling requirements of CRIPA have been met, is not subject to judicial review. The certification requirement was reviewed in United States v. Massachusetts, C.A. # 85-0632-M (D.Mass. June 5, 1985); and in United States v. Oregon, C.A. # 86-961-LE (D.Ore. April 8, 1987). In each case the challenge to the certificate was rejected. United States v. Hawaii, 564 F.Supp. 189 (D. Hawaii 1983), cited by defendant State in support of its argument, is distinguishable and is not authority in this case.
In its memorandum in support of its position, the United States extensively reviews the legislative history and the case authority in other civil rights statutes which have held that the certification authority of the Attorney General in similar circumstances is non-reviewable. Although there are differences between the wording of the statute in the CRIPA section and other civil rights statutes, this history, in concert with the case authority cited above, is persuasive that the certification in the instant case may not be reviewed by the court.
Nevertheless, the end result is distressing. From the correspondence and meeting history between the parties, it clearly appears that DOJ did not make a serious effort to mediate or conciliate regarding the remedies suggested by the State of New York. Instead, DOJ continually insisted throughout the correspondence that the consent decree favored by DOJ be entered into. A copy of the proposed consent decree is annexed as Appendix A. It is clear from reading the decree that it is vague, open-ended and unclear as to the extent of authority it grants DOJ. The State's alternative proposals did not receive a serious or detailed reply from the DOJ, despite the fact that the correspondence and history of the relationship between the parties indicates that the State made many changes in procedures and added considerably to the staff at the hospital during the prefiling period, and notified the DOJ of the improvements. Finally, when suit was filed, a press release issued on February 5, 1988 cited conditions as they may have existed 18 months earlier, but did not give any recognition to the changes and improvements made at the Center. It is clear *1205 from the record that the State repeatedly invited the DOJ to again visit the Center during the prefiling period. However, the DOJ did not visit and made no detailed suggestions in response to the State's proposals.
I also note that the consent decree favored by DOJ will be most difficult to administer. Because the conditions are stated in such general terms, many disputes will arise. Much will be left to the court to resolve. All parties, and the spirit of CRIPA, will be better served by the entry of a detailed decree which would provide the BPC with a clear specification of its obligations to its patients and the public at large.
However, as I have already concluded, although I have serious doubts about whether or not the conciliation process was addressed in an appropriate fashion by DOJ, nevertheless, because of case and legislative history, I determine that the motion of the State must be denied.
This has the unfortunate result that we must now proceed by formal discovery methods rather than by conciliation, which Congress urged as the better course. However, the court is confident that suitable and reasonable conditions of discovery may be set in place. A discovery meeting shall be held on August 3, 1988 at 9:00 a.m.
So ordered.
APPENDIX A
April 13, 1987
CONSENT DECREE
INTRODUCTION
1. On January 3, 1986, the Attorney General of the United States, by and through Assistant Attorney General Wm. Bradford Reynolds, notified Governor Cuomo of his intent to investigate alleged unconstitutional conditions of confinement at Buffalo Psychiatric Center, Buffalo, New York, pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997b(a)(2).
2. Following the investigation, on February 27, 1987, the Attorney General of the United States, by and through Assistant Attorney General Wm. Bradford Reynolds, notified Governor Cuomo of the unconstitutional conditions of confinement at Buffalo Psychiatric Center, Buffalo, New York, and the minimal measures necessary to remedy these conditions, pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997b(a)(1).
3. This case was filed by plaintiff on ________, pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq.
4. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1345. Venue is appropriate pursuant to 28 U.S.C. § 1391(b).
5. The United States has standing to initiate this action pursuant to 42 U.S.C. § 1997a and has satisfied all prerequisites to the initiation of a civil action under that statute set forth in 42 U.S.C. §§ 1997a, 1997b, and 1997h.
6. The Defendants are the State of New York; the Honorable Mario M. Cuomo, Governor of the State of New York; Steven E. Katz, M.D., Commissioner of the State Department of Mental Health and Mental Hygiene; and Patricia Oulton, Executive Director of Buffalo Psychiatric Center; and are sued in their respective official capacities.
7. The Defendants have authority and responsibility for the operation of Buffalo Psychiatric Center and are officers of the Executive Branch of the State of New York.
8. The parties agree that the confinement, care and treatment of residents at Buffalo Psychiatric Center implicate rights secured and protected by the United States Constitution. The parties recognize the importance of these constitutional interests and, to avoid protracted and adversarial litigation, enter the following agreement.
9. The parties intend their agreement to insure constitutional conditions of confinement, care and treatment at Buffalo Psychiatric Center, and its provisions shall be construed in a manner consistent with, and to further, that purpose.
*1206 10. State officials do not concede any violation of law, and this agreement may not be used as evidence of liability in any other proceeding.
11. The provisions of this agreement are a fair and appropriate resolution of this case.
12. This agreement shall be applicable to and binding upon all of the parties, their officers, agents, servants, employees, assigns, and their successors, and upon those persons in concert or participation with them who receive actual notice of this agreement.
I. DEFINITIONS
A. As used in this Decree, the following definitions apply to the terms below:
1. "State": The Executive Branch of the government of the State of New York, specifically including the Governor of New York, the State Department of Mental Health and Mental Hygiene, the New York State Office of Mental Health, the administration of Buffalo Psychiatric Center, and any and all of their officials, agents, employees, or assigns, and the successors in office of such officials, agents, employees, or assigns.
2. "BPC" or "Center": Buffalo Psychiatric Center, located in Buffalo, New York.
3. "Physician": A medical doctor lawfully entitled to practice medicine.
4. "Psychiatrist": A physician (a) who is certified by or is eligible for certification by the American Board of Psychiatry and Neurology or (b) who has successfully completed an approved residency program in psychiatry and upon completion of requisite post-residency will become eligible for examination for such certification.
5. "Psychologist": A person who has attained at least a master's degree in the field of psychology.
6. "Direct care worker": Staff immediately responsible for implementing treatment and providing care to residents.
7. "Qualified professional": A person competent, whether by education, training, or experience, to make the particular decision at issue.
8. "Professional judgment": A decision, by a qualified professional, within the bounds of accepted professional opinion, practice or standards in the relevant field.
9. "PRN": A treatment modality ordered on a pro re nata or "as needed" basis.
10. "Psychotropic medication": Chemical substances used in the treatment of mental illness which exert an effect on the mind and are capable of modifying mental activity or behavior.
11. "Bodily restraints": (1) Physical or mechanical devices used to restrict the free movement of a resident or the movement or normal function of any portion of the resident's body, excluding those devices used only to provide support for the achievement of functional body position or balance, and devices used for specific medical and surgical (as distinguished from behavorial) treatment; and (2) Chemical substances used for the sole purpose of controlling the behavior of a resident, and not for treatment purposes.
a. "Seclusion": A form of bodily restraint whereby a resident is placed alone in a locked room, or a room from which the resident is physically prevented from egress.
12. "Treatment": Therapeutic steps and activities, including psychological and psychiatric services and medication, determined by qualified professionals consistent with professional judgment to be appropriate to protect a resident from unreasonable risks to personal safety and necessary to enable a resident to function free from undue bodily restraint or seclusion.
II. PURPOSES AND OBJECTIVES
A. The State of New York and the United States stipulate and agree that the purposes and objectives of this Consent Decree are to establish the following conditions at Buffalo Psychiatric Center to ensure that residents at the facility are not being deprived of rights, privileges or immunities secured to them by the Constitution of the United States:
*1207 1. Medical and psychiatric treatment must be provided to residents, sufficient to reduce or eliminate unreasonable risks of harm to their personal safety and unreasonable use of bodily restraints.
2. Adequate medical care must be afforded all residents pursuant to the exercise of professional judgment by a qualified professional.
3. Psychotropic and other medications must be prescribed and administered to residents pursuant to the exercise of professional judgment by a qualified professional.
4. Bodily restraint and seclusion procedures, when appropriate, must be administered safely and pursuant to the exercise of professional judgment by a qualified professional.
5. The physical environment of the facility shall be improved as necessary and maintained so as to ensure that it poses no unreasonable risks to the personal safety of residents.
B. These purposes and objectives shall be achieved at Buffalo Psychiatric Center by implementing the requirements set forth in Sections III, IV, and V.
III. CONDITIONS REQUIRING IMMEDIATE CORRECTION
In order to eliminate conditions which pose an immediate and unlawful threat to the life, health, and safety of residents at Buffalo Psychiatric Center, the State agrees to meet the following requirements:
A. As soon as possible, but not later than 30 days after entry of this Decree, at least three registered nurses will be on duty at Buffalo Psychiatric Center during the night shift and shall be readily available to the general population.
B. As soon as possible, but not later than 30 days after entry of this Decree, at least one licensed practical nurse will be on duty per ward during the night shift.
C. As soon as possible, but not later than 30 days after entry of this Decree, at least one physician and one psychiatrist shall be on duty at all times and shall be readily available to the general population for emergency and other care during all shifts.
D. As soon as possible, but not later than 30 days after entry of this Decree, defendants shall take all necessary steps to insure that all living units have means of temperature regulation and ventilation, sufficient to prevent or eliminate an unreasonable risk of harm to the personal health and safety of residents.
E. As soon as possible, but not later than 30 days after entry of this agreement, seclusion and restraint may be employed, when appropriate, only pursuant to the exercise of professional judgment by a qualified professional, in such a manner as to ensure the safety of the person secluded or restrained. Seclusion and bodily restraint, in general, may be used only in a manner consistent with Section V(J) of this Decree.
F. Within 30 days after entry of this Decree, defendants shall identify all residents receiving psychotropic medication, including residents who receive more than one such drug, and develop appropriate evaluation procedures designed to insure that a psychiatrist reviews the drug regimen of each resident identified. Such review shall include but not be limited to: whether the drugs prescribed for and administered to each resident are appropriate for the needs of that resident, drug side effects, drug dosage levels, and use of two or more psychotropic drugs in combination.
G. As soon as possible, but not later than 60 days after entry of this Decree, defendants shall initiate the evaluation process developed pursuant to paragraph F, above.
H. Within 90 days after entry of this Consent Decree, defendants shall complete the evaluation process developed and implemented pursuant to paragraphs F and G, above.
IV. STAFFING
A. Within six months after entry of this Decree the State shall ensure that a sufficient number of physicians, including psychiatrists, psychologists, registered nurses, licensed practical nurses, and direct care *1208 workers are employed to assure attainment and consistent maintenance of at least the ratios of such staff to residents at the Buffalo Psychiatric Center delineated in subparagraphs 1-6 below.
1. Physicians 1:75
2. Psychiatrists 1:30
3. Psychologists 1:60
4. Registered Nurses 1:25
5. Licensed Practical Nurses 1:25
6. Direct Care Workers 1:6 day and evening
shifts
1:8 night shift
B. At the State's discretion, the ratios may be obtained by hiring additional needed staff or by reducing the resident population of the Buffalo Psychiatric Center. The State agrees that, if it decides to reduce the population of the Center by discharging patients, the determination as to which residents shall be discharged will be made by qualified professionals.
C. By no later than six months after entry of this Decree, the State shall likewise ensure sufficient consultation or otherwise provide services at Buffalo Psychiatric Center by such medical specialists as may be needed to provide adequate routine and emergency medical care to each resident including, but not limited to, neurologists, opthalmologists, gynecologists, orthopedists, and dentists.
D. In addition to the ratios set forth above, the State shall employ, by six months after entry of this Order, and thereafter retain on the staff at Buffalo Psychiatric Center:
1. At least one psychiatrist with primary responsibility for supervising, monitoring, and coordinating all psychiatric care activities and operations at the Center, and who possesses at least the following minimum qualifications:
a. Demonstrated skills and competence in both clinical psychiatric practice and supervision of other psychiatrists and physicians in an institutional setting; and
b. Certification by the American Board of Psychiatry and Neurology;
2. The State shall ensure that the only physicians who render psychiatric care, treatment, or services to residents at the Center will be physicians qualifying as psychiatrists as defined in Section I of this Decree.
3. At least one psychologist possessing a Ph.D. in the field of psychology, who has been licensed or certified by the State, and who has primary responsibility for supervising, monitoring, and coordinating all psychological care activities and operations at the Center.
4. At least one registered nurse possessing a graduate degree in psychiatric nursing, who has primary responsibility for supervising, monitoring, and coordinating all psychiatric nursing care activities and operations at the Center.
5. At least one qualified geriatrician with primary responsibility for monitoring and coordinating the care of geriatric residents of the Center.
6. Staff-to-resident ratios set forth in this Section are intended as minimum staffing requirements, and are not to be interpreted to preclude or discourage the State from choosing, at its discretion, to employ additional staff such that the Center exceeds the staffing requirements set forth herein.
V. PLANS
In order to establish compliance with this Consent Decree, the State shall file with the Court no later than _______ its plans(s) for implementing this Consent Decree. The plan or plans filed shall specify a date or dates by which each plan shall be completely implemented but in no event shall any plan have an implementation date later than six months after entry of this Decree. Such plan(s) shall include:
A. The steps that the State will take in order to meet the staff-to-resident ratios required under the terms of this Decree. Appropriate steps may include release of residents, changes in personnel policies, hiring standards and employment practices, adjustments in salaries or pay levels, enhanced recruitment efforts and techniques or other incentives, and other measures calculated either to attract and retain qualified staff, or to reduce the resident population, or both.
*1209 B. The number and categories of staff that will be utilized to implement plans required by Paragraphs C to N, below.
C. The procedures to be implemented to ensure that professional and direct care staff are adequately supervised and that such staff exercise professional judgment through such measures as staff training.
D. The procedures (a) to be utilized to provide regular, periodic professional evaluations of each resident in order to identify those in need of treatment and/or training programs; and (b) to provide a sufficient number of treatment and/or training program hours to each resident for whom such treatment and/or training is necessary.
E. The procedures to be utilized to provide for consultation and communication of relevant information between and among personnel regarding residents' medical care, psychiatric treatment, and training needs and the communication of information regarding each resident's medical care, psychiatric treatment and training to staff who provide care for that resident.
F. Recordkeeping systems and administrative procedures with respect to each patient's medical care, psychiatric treatment, and required training that shall be utilized to maintain and make readily available in each resident's record such information as is professionally necessary to permit the exercise of professional judgment in that resident's care, medical treatment, and training.
G. The measures that will be undertaken to provide adequate medical care, including but not limited to: screening necessary to prevent infectious disease; the detection of early signs of illness and disease; the provision of adequate and timely routine and emergency care by appropriate professionals; and the evaluation of residents with physical handicaps and the specific steps that will be undertaken to provide appropriate medical and physical therapy services and adaptive equipment to prevent contractures, physical degeneration, and inappropriate body growth and deformity.
H. The policies and procedures that will govern the use of medications, particularly psychotropic drugs, including policies and procedures on the handling and storage of drugs, ongoing monitoring and review of whether the drugs prescribed for and administered to each resident are appropriate for the needs of that resident, drug side effects, drug dosage levels, use of two or more psychotropic drugs, telephone orders and PRN prescriptions, and utilization of drugs with a behavior modification program.
I. The policies and procedures that will be utilized to provide that bodily restraints, seclusion, and time out (a) are administered only pursuant to the judgment and under the supervision of a qualified professional; (b) are not to be used as punishment, in lieu of treatment or training programs prescribed by a qualified professional or for the convenience of staff; but (c) may be used, when appropriate, to control residents when they engage in isolated incidents of violence and/or dangerous behavior. Said policies and procedures shall provide that the decision to place a resident in restraints, seclusion, or time out shall be recorded promptly in the resident's records and shall be reviewed by a qualified professional at specified reasonable intervals to ensure the safety of the individual restrained or secluded and determine whether or not the continuation of such restraint, seclusion or time out is professionally justified.
J. A description of measures to assure that in all aspects of Center operations there is maintained such care as is necessary to protect residents from unreasonable risks to their personal safety and unreasonable use of bodily restraint or seclusion.
K. The procedures that will be utilized to provide that residents shall be protected from unreasonable risks of bodily harm to their personal safety by the intentional conduct of staff or other residents, including requirements to report alleged incidents of bodily harm or unreasonable risk of bodily harm. These procedures should include requirements for investigating such allegations, disciplinary rules and procedures, and sanctions to be followed upon findings *1210 of bodily harm or unreasonable risk of bodily harm. There should also be devised procedures to provide adequate staff supervision, and procedures that will be utilized to provide for sufficient grounds and other security personnel designed to protect residents from unreasonable risks of bodily harm.
L. The enforcement mechanisms to be used, including disciplinary measures and sanctions where appropriate, to provide for staff compliance with all policies, rules, and standards of job performance and behavior.
M. Procedures Buffalo Psychiatric Center will utilize to remedy environmental conditions that present unreasonable risks to the health and physical safety of residents. The procedures shall describe immediate and long term plans to remedy conditions.
N. All plans shall state in specific terms and reasonable detail the actions to be taken by the Defendants, the dates of such actions, the text of the procedures, regulations, or protocols to be promulgated and issued by the Defendants, and the name and qualifications of the professional consistent with whose professional judgment the plan has been prepared and submitted.
VI. CONSTRUCTION AND IMPLEMENTATION
In construing and implementing the terms of this Decree, the following are agreed to by the parties:
A. 1. The United States shall have sixty (60) days from receipt of any plan in which to file a response to the plan with the Court. If the United States objects to any plan or portion thereof filed by the State, State and Federal officials shall meet in a good faith effort to resolve their differences. If the State and Federal officials are unable to resolve their differences through negotiation, the adequacy of the contested portions of the proposed plan to achieve the purposes and objectives set forth in Part II of this Consent Decree shall be determined by the Court in light of the United States' objections. Defendants shall have the burden to persuade the Court that the plan is adequate under this standard.
2. If, after a plan is approved, state officials decide to modify that plan or any portion thereof, State officials shall notify the Court and the United States of the proposed modification. The United States shall have sixty (60) days from the receipt of any plan in which to file a response to the plan with the Court. If the United States objects to the modification sought, State and Federal officials shall meet in a good faith effort to resolve their differences concerning the proposed modification. If State and Federal officials are unable to resolve their differences through negotiation, the adequacy of the proposed modification to achieve the purposes and objectives set forth in Part II of this Consent Decree shall be determined by the Court. The defendants shall have the burden to persuade the Court that the modified plan is adequate under this standard.
3. Plans, including modifications of plans, to which the United States does not timely object, shall be deemed approved by the Court.
4. If the United States finds that defendants have failed to implement any of the plans described in this Decree, United States officials shall meet in a good faith effort to resolve any alleged non-compliance prior to seeking Court enforcement of any of the provisions set forth in this Decree.
B. 1. The State shall submit periodic compliance reports to the United States and the Court. The reports shall be filed quarterly, fifteen (15) days after the end of each quarter, beginning on June 1, 1987, and continue until such time as this Consent Decree is terminated.
2. The compliance reports shall describe the State's progress towards implementation and compliance with the provisions of this Consent Decree and the plan(s) submitted pursuant thereto. In addition, these reports shall for each month of each reporting period:
(a) State the average daily resident population;
*1211 (b) Translate the ratios set forth in Section IV of this Decree into numbers of staff for each category of staff referenced in Section IV and compare this number with the number of staff for each such category of staff actually employed.
3. The United States and its attorneys, consultants, and agents shall have reasonable access to the facilities, records, residents, and employees of the Buffalo Psychiatric Center upon reasonable notice to the State for the purpose of ascertaining compliance with the Decree. Such access shall continue until this Consent Decree is terminated.
4. All parties shall bear their own costs, including attorney fees.
VII. TERMINATION OF DECREE
A. The parties contemplate that the defendants shall have fully and faithfully implemented all provisions of this consent decree, and plans herein required to be submitted and approved by the Court, on or before ________.
B. The Court shall retain jurisdiction of this action for all purposes under this consent decree until the defendants shall have fully and faithfully implemented all provisions of the consent decree and plans submitted pursuant thereto and until the judgment be discharged.
C. All plans required under this decree shall be submitted for approval by the Court and, if approved, shall be issued as orders of the Court and enforceable as such. The United States shall have sixty (60) days from receipt of a plan to comment or object to the approval thereof by the Court.
D. On or after the date on which the defendants shall have fully and faithfully implemented all provisions of this consent decree and plans submitted thereto, the defendants may move that the injunctions entered herein be dissolved, the judgment discharged, jurisdiction terminated, and the case closed and dismissed with prejudice on grounds that the defendants have fully and faithfully implemented and maintained all provisions of this consent decree and plans submitted pursuant thereto.
E. Dismissal shall be granted unless, within sixty (60) days after receipt of the defendant's motion, the United States objects to the motion. If such an objection is made with particularity, the Court shall hold a hearing on the motion and the burden shall be on the United States to demonstrate that the defendants have not fully and faithfully implemented all provisions of this consent decree or any approved plan(s) or any part thereof; if objection is based upon failure to implement any plan or part thereof, the United States must further demonstrate that such plan or part thereof is essential to the achievement of one or more of the purposes and objectives set forth in Part II of this Consent Decree. If the United States fails to meet this burden, the injunctions shall be dissolved, this judgment shall be discharged, jurisdiction shall be terminated forthwith, and the case shall be closed and dismissed with prejudice.
CONSENTED TO BY THE UNDERSIGNED:
FOR THE STATE OF FOR THE UNITED
NEW YORK STATES
OF AMERICA
Date: Date:
---------------- --------------------
MARIO M. CUOMO WM. BRADFORD REYNOLDS
Governor Assistant Attorney General
Civil Rights Division
Date: Date:
--------------- --------------------
ROBERT ABRAMS SALVATORE R. MARTOCHE
Attorney General United States Attorney
Date:
---------------
PAUL LITWAK
General Counsel
Office of Mental Health
Date: Date:
--------------- ---------------------
STEVEN E. KATZ ARTHUR E. PEABODY,
JR.
Commissioner Chief
State Department of Special Litigation Section
Mental Health and
Mental Hygiene
Date: Date:
--------------- ---------------------
PATRICIA OULTON CYNTHIA L. KATZ
Executive Director Attorney
Buffalo Psychiatric Center Special Litigation Section
Civil Rights Division
U.S. Department of Justice
Washington, D.C. 20530
*1212 WHEREFORE, the parties to this action having agreed to the provisions in the Consent Decree set forth above, and the Court being advised in the premises, this Consent Decree is hereby entered as the JUDGMENT of this Court.
IT IS SO ORDERED, this ____ day of _______, 1987, at Buffalo, New York.
_______________________
UNITED STATES
DISTRICT JUDGE
NOTES
[1] Exhibit numbers refer to Item 5, the State of New York's Motion to Dismiss.
[2] Under CRIPA the Attorney General must certify that before he commened the action he:
1) Notified the state of the conditions depriving the residents of the targeted institution of their constitutionally protected rights. 42 U.S.C. § 1997b(a)(1)(A)
2) Notified the state of the facts supporting his conclusion that the constitutionally protected rights of the resident are being violated. 42 U.S.C. § 1997b(a)(1)(B)
3) Notified the state of the minimum measures which he believes may correct those conditions violating the constitutionally protected rights of the residents. 42 U.S.C. § 1997b(a)(1)(C)
4) Notified the state of his intention to investigate the targeted institution at least 7 days in advance of the investigation. 42 U.S.C. § 1997b(a)(2)
5) Consulted with the state's officials regarding certain assistance available from the United States to assist the state in correcting the identified unconstitutional conditions. 42 U.S.C. § 1997b(a)(2)(A)
6) Encouraged the state's officials through informal methods of conference, conciliation, and persuasion voluntarily to correct the alleged unconstitutional conditions at the targeted institution. 42 U.S.C. § 1997b(a)(2)(B)
7) Is satisfied that the state has had a reasonable time in which to correct the identified unconstitutional conditions. 42 U.S.C. § 1997b(a)(2)(C)
8) Believes that the action is of general public importance and will further the vindication of the constitutionally protected rights of the residents of the targeted institution. 42 U.S.C. § 1997b(a)(3).
Defendants' Reply Memorandum of Law, Item 18, p. 2.
[3] U.S. v. Mattson, supra, at 1300, quoting H.R. Rep. No. 914, 88th Cong.2d Sess. reprinted in [1964] U.S.Code Cong. and Admin.News, pp. 2355, 2391, 2450.
|
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0684n.06
No. 13-2301
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Sep 03, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
TYREE WASHINGTON, )
)
OPINION
Defendant-Appellant. )
)
Before: MOORE and STRANCH, Circuit Judges; HOOD, District Judge.*
KAREN NELSON MOORE, Circuit Judge. Tyree Washington was convicted and
sentenced for his role in a series of carjackings. He appealed the convictions and sentence. In a
previous decision, we affirmed the convictions, but vacated his sentence and remanded to allow
the district court to reorder for sentencing the three convictions under 18 U.S.C. § 924(c). See
United States v. Washington, 714 F.3d 962 (6th Cir. 2013).1
Before Washington was resentenced, the Supreme Court decided Alleyne v. United
States, 133 S. Ct. 2151 (2013), holding that a jury, not a judge, must find that a defendant
brandished a firearm during and in relation to a crime of violence under § 924(c). Id. at 2162–
*
The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern
District of Kentucky, sitting by designation.
1
The prior opinion provides an ample background on the crimes committed and the court
proceedings. Consequently, we will not duplicate those details here except as necessary to our
reasoning.
No. 13-2301
United States v. Washington
63. Without such a finding by the jury, the district court could not sentence the defendant to the
enhanced statutory mandatory-minimum sentence for brandishing. See id.
During resentencing, Washington argued that Alleyne required not only that a jury must
find that Washington brandished the gun in each of the carjackings, but also that, in order to
apply § 924(c)’s 25-year mandatory-minimum sentence to “second or subsequent” convictions,
the jury had to find that the convictions were “second or subsequent.” The district court rejected
this argument based on our decision in United States v. Mack, 729 F.3d 594, 606–09 (6th Cir.
2013). In Mack, we reasoned that a failure to submit the brandishing determination to a jury was
plain error, but this did not affect the defendant’s substantial rights because it was harmless as
the brandishing question was not in dispute in that case. Id. We also rejected an identical
argument regarding consecutive 25-year sentences. See id. at 609 (following Almendarez-Torres
v. United States, 523 U.S. 224, 247 (1998), while acknowledging that Almendarez-Torres
“stand[s] on shifting sands”).
In this appeal, Washington presses both arguments that he made at his resentencing. As
to the brandishing element, Washington argues that Mack is distinguishable because in Mack the
argument was made for the first time on appeal, thus leading to plain-error review, while here
Washington made the argument at his resentencing. As to the “second or subsequent” sentences,
Washington acknowledges that Mack and Almendarez-Torres tie our hands, but presses the
argument in order to preserve it.
2
No. 13-2301
United States v. Washington
Washington may have a good argument that his case is indeed distinguishable from
Mack. Stronger yet would be an argument that Washington’s sentence for brandishing a firearm
was an impermissible constructive amendment of his indictment. See United States v. Hackett, --
F.3d --, 2014 WL 3865994, at *6–7 (6th Cir. 2014) (holding that where an indictment charges
only “use and carry,” a post-trial, ten-year, mandatory-minimum sentence for discharging a
firearm is a constructive amendment of the indictment, an error not subject to harmless error
analysis). But see United States v. Yancy, 725 F.3d 596, 601–03 (6th Cir. 2013) (rejecting a
similar argument where the defendant pleaded guilty, admitting to brandishing a firearm and
acknowledging through counsel that he understood the consequences of such an admission).
Washington has failed to make this argument that there was a constructive amendment of the
indictment, and we therefore do not consider it.
We cannot review either of the substantive arguments Washington does raise because our
previous remand was a limited remand. See Washington, 714 F.3d at 965 (stating that “[b]ecause
we agree that the district court erroneously imposed the defendant’s sentences under § 924(c) in
the order in which he committed each crime, we VACATE the judgment of the district court on
this ground only, and REMAND for the limited purpose of recalculating the defendant's
sentence”); id. at 971 (concluding that “[t]he district court’s judgment is VACATED IN PART
with respect to the ordering of the defendant’s convictions for sentencing under § 924(c)”); see
also United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (“Limited remands explicitly
outline the issues to be addressed by the district court and create a narrow framework within
3
No. 13-2301
United States v. Washington
which the district court must operate.”). “Under the doctrine of the law of the case,
determinations of the court of appeals of issues of law [such as the scope of a remand] are
binding on both the district court on remand and the court of appeals upon subsequent appeal.”
Campbell, 168 F.3d at 265. The district court recognized that our remand was limited to
reviewing the ordering of the § 924(c) convictions only. R. 173 (Re-Sentencing Tr. at 23) (Page
ID #1664). And we are so limited as well.
As the district court has followed our instructions with regard to reordering the § 924(c)
convictions, we AFFIRM the district court’s judgment.
4
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