url stringlengths 55 59 | text stringlengths 0 788k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/3389421/ | Eight questions are argued for adjudication on this appeal. They have been very thoroughly presented pro and con. A record of more than seven hundred pages and briefs of two hundred fifty pages have been lodged in this Court for the purpose of exemplifying the views of counsel on the questions raised.
The record and the briefs have been carefully analyzed and considered, but in so far as we can discern, every question turns out that whether or not the opinion of this Court in State, etal., v. Town of Bellair, 125 Fla. 669, 170 So. 434, should be modified or receded from. We are confronted here with different parties, but with a factual situation very similar to that in the latter case.
State, et al., v. Town of Bellair, supra, was a refunding bond validation suit in which taxpayers were permitted to intervene and file answers challenging the validity of the *Page 223
validating decree on the ground that the proceeds of the bonds brought in question were not used for a public purpose, but were used to promote private enterprises contrary to Section 7 of Article IX of the Constitution of Florida.
On final disposition, we found that the proceeds of the original bonds were used to construct streets and highways in a private real estate development and to improve the water front of a private hotel corporation's property and that having been so used, they were under Section 7 of Article IX of the Constitution void in so far as they constituted a charge against the municipality.
After the rendition of this judgment, the instant suit was instituted by certain property owners and taxpayers in the Town of Bellair in behalf of themselves and all other owners of real and personal property in the town. The bill of complaint prays that the officials of the town be enjoined from attempting to assess or collect any tax to pay principal or interest on said bonds and that it be decreed that said bonds were issued for the benefit of private corporations contrary to Section 7 of Article IX of the Constitution. The bill did not pray for relief against the bondholders, some of whom were made parties defendant to the suit with the officers of the town.
On final hearing, after answers were filed and testimony taken, the chancellor entered a final decree permanently restraining the town and its officers from levying any tax upon the properties of the plaintiffs, or any of them, or upon any other properties in the Town of Bellair for the purpose of paying principal or interest or any part thereof, evidenced by the said bonds. This appeal is from the final decree so entered.
The decisive question may be stated as follows: Do the facts presented bring this case within the rule enunciated in State, etal., v. Town of Bellair, supra, but whether so or *Page 224
not, are the plaintiffs as taxpayers estopped by the validation decree or recital in the face of the bonds from denying that they were issued and the proceeds thereof used for a public purpose?
There are some immaterial variations in the evidence, but we find nothing to relieve this case from the rule announced in State, et al., v. Town of Bellair, supra. The chancellor in his opinion found "that the primary object of these issues and the appropriation of the proceeds of these issues was to benefit the property of either Bellair Estates, Inc., or Bellvue-Griswold Hotel Company or both, each being a chartered company of the State or a corporation." The appropriation of the proceeds of the bonds was the gist of the transaction and is determinative of this phase of the case. The chancellor's decree finds ample support in the record; in fact, we find little or nothing to contradict it.
As to whether or not taxpayers in the Town are estopped by the validation decrees or by recitals in the bonds from denying that they were issued and the proceeds used for a public purpose appellants contend that this question should be answered in the affirmative and rely on State, ex rel. Conn, v. Board of County Commissioners of Hillsborough County, decided November 23, 1937; Board of Public Instruction of Dade County v. Tanger Inv. Co.,121 Fla. 703, 164 So. 697; State, ex rel. Havana State Bank, v. Rodes, 115 Fla. 259, 151 So. 289; State, ex rel. Nuveen, v. Greer, 88 Fla. 249, 102 So. 739; State, ex rel. Rogers, v. Walthall, et al., 125 Fla. 425, 170 So. 115; Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253; Thompson v. Town of Frostproof, 89 Fla. 92, 103 So. 118; City of Fort Myers v. State, 95 Fla. 704, 117 So. 97; Whitney v. Hillsborough County,99 Fla. 628, 127 So. 486; Crawford v. State, ex rel. Klemmer,110 Fla. 301, 149 So. 340; State *Page 225
v. Citrus County, 116 Fla. 676, 15 So. 4; Hillsborough County v. Keefe, 82 F.2d 127, and other cases of like import to support their contention.
With the exception of State, ex rel. Conn, v. Board of County Commissioners of Hillsborough County, every one of these cases was examined and considered in connection with our decision in State, et al., v. Town of Bellair, and we do not consider that what we said in any of them is in conflict with what was said in the latter case. Neither do we consider State, et al., v. Town of Bellair in conflict with State, ex rel. Conn, v. Board of County Commissioners of Hillsorough County. In our opinion in the latter case, we held in terms that it was differentiated from the Bellair case. It is quite true that the question of estoppel by reason of both the validation decree and the recitals in the bonds was raised in both these cases, but in the Hillsborough County case it was raised by the county which issued the bonds, while in the Bellair case, it was raised by a taxpayer. In so far as the instant case is concerned, this was the distinguishing difference between them. We held the defense good as to the taxpayer, but unavailing to the county and nothing in this case convinces us of error in that judgment.
We will not labor this opinion with a review of all these cases, suffice it to say that in them as in others, we hold that matters affecting the power of a municipality to issue bonds, their regularity or legality both as to law and fact, may be put in repose by validation proceedings. We have also held that this rule may extend to constitutional rights designed solely for the benefit of the individual or which he may waive, but we have never held that validation proceedings precluded those directly affected from raising constitutional defects that were not directly raised and settled in the validation suit. In fact, we have repeatedly held *Page 226
that such defenses may be later invoked if not raised and settled by validation.
Section 7 of Article IX of the Constitution is a positive direct inhibition against imposing any tax for the benefit of any chartered company of the State or for paying interest on any bonds issued by such chartered companies, or by counties, or by corporations, for these purposes. The chancellor found without qualification that the primary object of these issues of bonds and the proceeds of the bonds in question were used primarily for the benefit of chartered companies of the State in clear violation of this provision of the Constitution and we hold that no tax can be imposed by the municipality to pay them.
It would hardly seem necessary to say more as to what the validating decree puts in repose. As to whether or not recitals in the bonds will estop the taxpayer and preclude him from raising the question of their validity in a case of this kind, what we said in State, et al., v. Town of Bellair, supra, is conclusive on that point. In fact, all the material questions raised in this case are concluded by what we said in the latter case. This is not a holding that the bonds are invalid. It is nothing more than a holding that a tax cannot be imposed to pay them.
Neither the Legislature or the citizen can contract against constitutional mandate, and even if the bonds in question recited that they were issued in compliance with Section 7 of Article IX, when in fact they were not, no estoppel would arise in favor of the bona fide purchase. In order that recitals in bonds may protect the bona fide holder, they must be made by officers authorized to pass on and determine the existence of the facts recited and to make them conclusive. County of Dixon v. Marshall Field, 111 U.S. 83, 28 L. Ed. 360; Crawford v. State, 110 Fla. 301, *Page 227 149 So. 340; Havana State Bank v. Rodes, et al., 115 Fla. 259;151 So. 289.
The bonds in question contain no recital or suggestion as to conditions condemned by Section 7 of Article IX. The City Commissioners were without authority to issue them for the purposes condemned therein and the burden was on the purchaser to ascertain that they were issued and the proceeds thereof expended for a lawful purpose even if it requires a judicial determination to do so. Shelby County, Texas, v. Provident Savings Bank and Trust Co., 54 F.2d 602; Independent School District, etal., v. Joel Stone, 106 U.S. 183, 27 L. Ed. 90; Hedges v. Dixon County, 150 U.S. 182, 14 Sup. Ct. Rep. 71.
Appellants have said much about the evil consequences resulting if this view becomes the law, the bonds having passed into the hands of innocent purchasers. We appreciate the force of this argument, but as heretofore said, the purchasers were on notice of Section 7 of Article IX of the Constitution, the fact that its provisions could not be waived and the fact that the courts were without power to relieve under such circumstances. It may be that this holding will impose on the purchaser of the bonds the duty of ascertaining how their proceeds were used, but this will be no more onerous than some of the other duties imposed on him.
This Court has repeatedly commended a high standard of municipal integrity in matters of this kind, but the equities here are not all on the side of the bondholder. Section 7 of Article IX was written in the Constitution to protect the taxpayer, the bond purchaser was on notice of it, and its mandatory character, and could have protected himself. He has recourse against the improved property, but he can claim nothing against the city. The taxpayer has recourse against no one. We are urged to approve one of the most *Page 228
flagrant violations of this provision of the Constitution that has been called to our attention. The manner in which it was done is immaterial so far as the taxpayer is concerned. If it can be circumvented by a species of legal circumlocution in the manner contended, it is obsolete and had as well be written off the book.
It is also urged that the instant suit cannot be maintained as a class suit and that, consequently, the decree does not affect those taxpayers not made parties to the cause.
Section 14 of the 1931 Chancery Act provides that when the question involved is one of common or general interest to many persons, constituting a class so numerous as to make it impracticable to bring them before the court, one or more may sue or defend for the whole. The allegations of the bill are sufficient to bring it within this rule, so the objection is without merit. Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356.
Other assignments of error have been examined, but reversible error does not appear.
ELLIS, C.J., and CHAPMAN, J., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1640802/ | 789 F.Supp. 1102 (1992)
Rosie A. BONGER, Plaintiff,
v.
AMERICAN WATER WORKS, et al., Defendants.
Civ. A. No. 90-C-1592.
United States District Court, D. Colorado.
April 8, 1992.
*1103 Gregory Eurich, Denver, Colo., Kathryn Miller, Littleton, Colo., for plaintiff.
Steven Merker, Denver, Colo., for defendants.
*1104 MEMORANDUM OPINION AND ORDER
CARRIGAN, District Judge.
Plaintiff Rosie A. Bonger, an Hispanic woman, commenced this action in state court against the defendants American Water Works Association ("American"), John B. Mannion and Jack W. Hoffbuhr (American's Executive Director and Deputy Executive Director, respectively) asserting claims for: (1) breach of contract; (2) promissory estoppel; (3) intentional interference with contract; (4) wrongful termination; (5) defamation; and (6) sex and race discrimination and retaliation under Title VII, 42 U.S.C. §§ 2000e et seq. Defendants removed the action and since have filed a motion for summary judgment arguing that the plaintiff's claims are barred by the rule laid down in Summers v. State Farm Mutual Automobile Ins. Co, 864 F.2d 700 (10th Cir.1988). Plaintiff has responded by opposing the motion.
The parties have fully briefed the issues and oral argument was heard on April 7, 1992. Jurisdiction exists under 28 U.S.C. §§ 1331 and 1367.
I. Factual Background.
The following facts appear to be undisputed: In August 1988, American advertised a position for a Human Resources Director. Initial screening of the applications and resumes was conducted by Paula Green, American's Director of Personnel. Green's screening resulted in rejection of all applicants who did not have college degrees and a minimum number of years experience in the human resources field. Based upon the representations in their resumes, both the plaintiff and one Alvin Griggs met the experience and degree criteria. Plaintiff and Griggs were then interviewed by the defendant Mannion. In September 1988, American hired the plaintiff as its Human Resources Director.
As Human Resources Director, the plaintiff was responsible for administering salaries and benefits, coordinating candidate selection, drafting and administering company policies and procedures, identifying and implementing training programs and serving as American's affirmative action officer.
On February 2, 1990, the plaintiff's attorney sent a letter to American complaining that American had interfered with the plaintiff's performance of her duties, asserting, inter alia, that the interference was motivated by her sex and national origin, and alleging that it violated American's policies and procedures. During late February and early March 1990, the parties discussed how to resolve their dispute. On March 9, 1990, the plaintiff was fired, allegedly for poor performance. Following the plaintiff's discharge, Alvin Griggs was hired as American's Human Resources Director.
Thereafter, the plaintiff filed this lawsuit. American asserts that while the action was pending it learned that: (1) the plaintiff did not have a college degree; and (2) during January and February 1990, while still employed by American, the plaintiff had taken either copies or the originals of nearly three thousand pages of American's confidential personnel files and turned them over to her attorney.[1] Defendants argue that this subsequently discovered information entitles them to summary judgment under the Summers doctrine.
II. Summary Judgment Standard.
Summary judgment is proper if the pleadings, depositions and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party opposing a properly supported *1105 summary judgment motion may not rest upon the mere allegations of the complaint, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A factual dispute is material only if, under the governing law, its resolution might affect the action's outcome. A factual dispute is genuine only if a reasonable fact finder could return a verdict for the nonmoving party. Id. Although a court should be cautious in granting summary judgment in discrimination cases where intent is at issue, such motions are useful to weed out those claims obviously lacking merit. See Summers, 864 F.2d at 709; Guliford v. Beech Aircraft Corp., 768 F.Supp. 313, 315 (D.Kan.1991).
III. Title VII Claim.
Plaintiff alleges that beginning in October 1988 the defendants discriminated against her on the basis of her sex and race. Bonger asserts that when she brought her concerns regarding discrimination to management she was retaliated against and ultimately discharged.
Defendants deny any racial or sexual discrimination or retaliation. Moreover, the defendants argue that even if there had been such discrimination or retaliation against the plaintiff, summary judgment in their favor would be required under the Tenth Circuit's decision in Summers v. State Farm Mutual Automobile Ins. Co., 864 F.2d 700 (10th Cir.1988). Defendants argue that American would not have hired the plaintiff had she not misrepresented the fact that she had a college degree.[2] Defendants further contend that American would have terminated the plaintiff's employment had it learned that she had misrepresented her college education.
Finally, the defendants assert that American would have discharged the plaintiff had it known that she had taken either copies or originals of nearly three thousand pages of American's confidential personnel files and turned them over to her attorney. Thus, even in the presence of racial and sexual discrimination or retaliation, the defendants argue, the plaintiff cannot recover because, under Summers, she was not injured.
In Summers, the plaintiff claimed age and religious discrimination in violation of Title VII and the Age Discrimination in Employment Act. Summers was placed on probation for two known falsifications of insurance documents. Thereafter Summers was discharged for poor work performance. Four years later, during litigation of his discharge, State Farm discovered 150 falsifications of company records made by Summers during his employment. State Farm argued that the 150 falsifications, unknown at the time of Summers' dismissal, should be considered in determining the remedy available to the plaintiff. Summers contended that such falsifications were irrelevant and inadmissable. Id. at 704.
The Summers court, however, determined that "while such after-acquired evidence cannot be said to have been a `cause' for Summers' discharge in 1982, it is relevant to Summers' claim of `injury,' and does itself preclude the grant of any present relief or remedy to Summers." Id. at 708. The court reasoned:
"The present case is akin to the hypothetical wherein a company doctor is fired because of his age, race, religion, and sex and the company, in defending a civil rights action, thereafter discovers that the discharged employee was not a `doctor.' In our view, the masquerading doctor would be entitled to no relief, and Summers is in no better position." Id.
To prevail under Summers an employer must show that it would have discharged *1106 the employee had it known of the misconduct before or at the time of termination. This requirement is intended to prevent an employer, after being charged with unlawful discrimination, from reviewing an employee's file to discover minor or technical infractions for use in a Summers defense. See O'Driscoll v. Hercules, Inc., 745 F.Supp. 656, 659 (D.Utah 1990).
A. Resume Fraud.
The first issue to be addressed is what is the proper standard where a discharged employee has been found to have engaged in resume fraud. Defendants argue that the plaintiff is not entitled to recover if either: (1) American would not have hired the plaintiff absent the resume fraud; or (2) American would have discharged the plaintiff had the misrepresentation been discovered during her employment.[3] Plaintiff asserts that she was hired and, therefore, the only proper inquiry is whether American would have discharged her.
No court has expressly addressed this issue. Some courts have utilized the standard advocated by the defendants. See e.g., Washington v. Lake County, Ill., 762 F.Supp. 199 (N.D.Ill.1991); Churchman v. Pinkerton's Inc., 756 F.Supp. 515 (D.Kan. 1991); Mathis v. Boeing Military Airplane Co., 719 F.Supp. 991 (D.Kan.1989). Others have simply inquired whether the employer would have discharged the employee had the resume fraud been discovered during his or her employment. See e.g., O'Driscoll v. Hercules, Inc., 745 F.Supp. 656 (D.Utah 1990).
Although the Summers court did not address this issue, the court's rationale sheds some light on the standard to be utilized. The Summers decision was based on the principle that the plaintiff suffered no injury because had State Farm known of the falsifications, it would have discharged Summers regardless of discrimination.
There are many situations, however, in which an employer would not discharge an employee if it subsequently discovered resume fraud, although the employee would not have been hired absent that resume fraud.[4] In such situations, the employee indeed would suffer injury if discharged because of discrimination.
Thus the instant defendants have the burden to show that American would have dismissed the plaintiff had it known of her resume fraud. American has submitted an affidavit stating that it would have discharged the plaintiff for misrepresenting that she had a college degree. (Mannion affidavit at ¶ 8). Furthermore, it is the policy of American that dishonesty in the application process is grounds for termination. (Mannion affidavit at ¶ 8 and Griggs affidavit at ¶ 7).
Plaintiff does not deny that she represented to American that she had a college degree. Rather, she asserts that American would not necessarily have discharged her if it had learned of her misrepresentation because: (1) she had twelve years experience as a human resources professional; (2) she had received uniformly positive performance evaluations during her eighteen months of employment; (3) she never falsified any records; and (4) a college degree was not a required qualification for the job.[5]
*1107 Although there was no question in Summers that State Farm would have discharged Summers had it known of his misconduct, the question is closer here. However, no inferences can be drawn from any evidence presented by the plaintiff to cast doubt on the declaration that American would have discharged the plaintiff had the resume fraud been discovered during her employment. It is a long standing policy at American that such conduct is grounds for termination. The uncontroverted evidence of record establishes that American would have terminated the plaintiff's employment after discovering her resume fraud.
B. The Personnel Files.
Moreover, the defendants have supplied an affidavit stating that American would have discharged the plaintiff for copying and delivering to her attorney the confidential personnel records. (Mannion affidavit at ¶ 7).[6] Indeed, the only two other American employees who had been caught copying documents from American files without authorization and delivering those copies to others outside of American were discharged. (Griggs affidavit at ¶ 6).
Although the affidavits submitted by American are undoubtedly self-serving, there is no evidence to rebut the declaration that American would have terminated the plaintiff's employment had her actions been discovered.[7] Discharging an employee for such conduct is consistent with American's declared policies and with the treatment accorded its former employees who had engaged in similar conduct.
Moreover, it is reasonable that an employer in American's position would discharge its Human Resources Director, a person in a management position responsible for sensitive personnel issues, if that employee engaged in unauthorized copying and distribution of confidential personnel files.
C. Conclusion.
It appears that the instant case falls squarely within Summers and, therefore, a grant of relief to the plaintiff is precluded. Although this result unquestionably is harsh, it is required by Tenth Circuit precedent binding on this court. Accordingly, I conclude that no genuine issues of material fact exist and the defendants are entitled to judgment as a matter of law as to the plaintiff's Title VII claim.
IV. State Law Claims.
Defendants argue that the plaintiff's pendent state law claims should be dismissed under the rationale of Summers as well. Defendants, however, have cited no Colorado authority, and I can find none, discussing whether the state courts would follow Summers. A federal court that has dismissed all claims over which it has original jurisdiction, may decline to exercise pendent jurisdiction over the remaining state law claims. 28 U.S.C. § 1367.
Here there is no compelling reason to retain federal jurisdiction over the plaintiff's remaining state law claims. See Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472, 1478 (10th Cir.1990). Rather, considerations of comity lead to the conclusion that the Colorado courts should *1108 decide whether the plaintiff's state law claims are barred under the rationale of Summers. Therefore, I decline to exercise jurisdiction over the plaintiff's state law claims.
Accordingly, IT IS ORDERED that:
(1) Defendants' motion for summary judgment is granted as to the plaintiff's Title VII claim; and
(2) Plaintiff's remaining state law claims are dismissed without prejudice.
NOTES
[1] American contends that it first became aware of the plaintiff's conduct with regard to its personnel records when, during the course of discovery, American served a set of discovery requests on the plaintiff. Her response was to produce documents from American's own confidential personnel records. Those documents included salary records, personnel files, performance appraisals of several director-level managers, studies of American by independent consultants, and other similar documents. Plaintiff asserts that she presented those documents to her counsel to assist in evaluating her claims that American was interfering with performance of her duties and illegally retaliating against her.
[2] Plaintiff also stated under oath in her deposition that she had earned a degree in business administration from the University of Denver. In addition, when American filed a motion seeking to add certain defenses based upon its belief that the plaintiff had lied about her educational qualifications when she applied for the job at American, plaintiff's counsel filed a fraudulent copy of a University of Denver transcript supplied by the plaintiff that falsely showed that she had graduated from that University. (There is no claim of any knowingly wrongful or unethical conduct by the plaintiff's attorneys, who apparently were also victimized by her falsification.)
[3] Defendants liken the instant case to the "masquerading doctor" hypothetical in Summers. In addressing that hypothetical, however, the court did not indicate whether the "doctor" was not entitled to relief because: (1) he would have been discharged; or (2) he would never have been hired without his misrepresentation.
[4] For example, if the employee had been doing excellent work, if a great deal of resources had been invested in training the individual, if the fact misrepresented was not critical to the employee's job and if the circumstances surrounding the misrepresentation were especially understandable, an employee might not be discharged for subsequently discovered resume fraud.
Whether an employee would ever have been hired, however, is a factor that many employers would probably consider in determining whether to discharge that employee in the face of discovered resume fraud.
[5] This argument is based on the job description prepared by American for the Human Resources Director position. That job description mandates only seven years experience. No mention is made of a college degree. (Deposition exhibit 46).
Plaintiff further argues that her discharge was inconsistent with American's treatment of its current Human Resources Director, Alvin Griggs. Plaintiff argues that Griggs testified falsely in his deposition when he stated that he had never been discharged from a job. Assuming that this was true, there is no evidence in the record that Griggs ever misrepresented to American the circumstances of his prior employment.
[6] Plaintiff's conduct with regard to American's personnel records did not occur until January and February 1990. Employee misconduct, however, only has an effect on that person's ability to recover for discrimination that occurs subsequent to that employee's wrongdoing. Thus, the plaintiff's conduct with regard to the personnel records is relevant to her ability to recover on her claim that she was discharged in violation of Title VII.
[7] The parties disagree on whether American knew that the plaintiff had the files or that she had given them to her attorney at the time of her discharge. This fact is significant, however, because if American did know that the plaintiff had these records and had shown them to her attorney, then American's omission of that fact from the discharge letter would indicate that the defendants are now engaging in a post hoc rationalization for their conduct. Plaintiff, however, offers no evidence to rebut Mannion's declaration that he would have discharged the plaintiff had he known of her conduct with regard to the records. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3852238/ | The question is whether amounts payable to a beneficiary under certain single-premium refund annuity contracts are subject to the inheritance tax. The learned court held the amounts were proceeds of policies of life insurance and therefore exempt.
William M. Bayer, a resident of the Commonwealth, died May 23, 1940, and left nine single-premium refund annuity contracts made with seven different insurance companies, bearing various dates from December 27, 1933, to April 26, 1937, the total of the single premiums unrefunded being $37,080.84. There were some variations in the terms of the contracts but for present purposes we shall consider one as typical. It states the age of the annuitant as 51 years 10 months; that the "single premium" is $18,108, for which the company promises to pay to Bayer, "the annuitant," $100 monthly "during the lifetime of said annuitant, such payments to terminate with the last payment due prior to the death of said annuitant, except that if the death of the annuitant occurs before the total of annuity payments made by the Company is equal to the sum paid by the annuitant as a single premium for this contract, the Company will continue the annuity payments to Martha E. Magraw . . . until the total annuity payments made shall equal the single premium paid, without interest."
The annuitant retained the right to change the beneficiary and it was agreed that, on the death of the beneficiary *Page 310
before receiving the balance of the refund, payments due under the contract would be commuted at 4% per annum compounded and would be paid in one sum to the beneficiary's executors, administrators or assigns; if there was no beneficiary living at the death of the annuitant, the company would commute further payments due under the contract at 4% per annum compounded and pay them in one sum to the annuitant's executors, administrators or assigns.1 The beneficiary named in each policy was a friend, Martha E. Magraw.
The elements of the transaction are simple: Bayer paid a single premium of $18,108 and discharged his obligation; the company agreed to pay him $100 every month, but if he died before receiving annuities aggregating the amount of the premium, the right to receive the unpaid balance at his death should be in his nominee.
The two provisions of the inheritance tax statute to be considered are contained in article I, section 1, of the Act of June 20, 1919, P. L. 521, as amended, 72 PS section 2301, imposing a tax on "the transfer of any property, real or personal, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations in the following cases: . . . (c) When the transfer is of property made by a resident . . . by deed, grant, bargain, sale or gift, made in contemplation of the death of the grantor, vendor, or donor, or intended to take effect in possession or enjoyment at or after such death." The other provision is clause (d), providing: "The proceeds of policies of life insurance, payable otherwise then to the estate of the insured, and whether paid directly by the insurer to the beneficiaries designated in the policies, or to a trustee designated therein, and held, managed, and distributed by such trustee to or for the benefit of such persons or classes of persons under such plan and in such estates as may have been prescribed by *Page 311
the insured under agreement with such trustee, shall not be included in imposing any tax under this section."
The taxable event was the transfer at Bayer's death, because, until that moment, he had the right to designate the transferee. The subject taxed was the interest in the contract intended by him then to take effect in possession or enjoyment, i. e., the company's obligation to repay any remaining balance of the amount received as the single premium. As these annuity contracts, like various forms of life insurance policies in which the right to change the beneficiary has been reserved, provide for the transfer of property "to take effect in possession or enjoyment at or after" death, they are directly within the words of clause (c). That being so, the question arises: Is the property which passed to Martha E. Magraw on Bayer's death exempt as proceeds of life insurance policies within clause (d)?
For considerably over 100 years the legislature has repeatedly recognized the distinction between life insurance contracts and annuity contracts and has dealt separately with them. In Com. v. Metropolitan Life Insurance Co., 254 Pa. 510,98 A. 1072, involving gross premium taxation, it was said (page 514): "The power to make insurance contracts and to grant annuities seems to be recognized as entirely distinct in the Pennsylvania statute providing for incorporation of insurance companies. . . . It is significant that neither the Legislature of Pennsylvania or New York appears to have supposed that the power to make every insurance appertaining to or connected with the lives of individuals, conferred authority also to grant or purchase annuities. This authority is expressly added to the statute of each state."2 *Page 312
The same distinction was observed in the legislation exempting proceeds of life insurance policies and also the proceeds of annuity contracts from liability to the beneficiary's creditors by designating them separately. By the Act of April 15, 1868, P. L. 103, entitled "Relating to Policies of Life Insurance and Annuities" it was provided that such policies or annuities for the benefit of wife, children or any dependent relative, should be exempt from claims of creditors of such person. This act, with several subsequent acts on the same subject, was considered in Weil v. Marquis,256 Pa. 608, 101 A. 70. Annuities and life insurance were again dealt with separately in the Act of May 17, 1919, P. L. 207, and the supplementary Act of June 28, 1923, P. L. 884, No. 335,40 PS section 517.
In considering whether the repayment of balances such as those repayable under these annuity contracts are within the exemption: "The proceeds of policies of life insurance . . . shall not be included in imposing any tax under this section," we must have in mind the separate treatment theretofore given in our legislation to life insurance as distinguished from annuity contracts and must conclude that the legislature intentionally omitted the proceeds of annuity contracts from the operation of clause (d). An exemption is not allowed unless clearly within the statute: Com. v. Sunbeam Water Co., 284 Pa. 180,183, 130 A. 405; Com. v. Phila. Toilet Laundry Co.,339 Pa. 261, 264, 13 A.2d 411.
This long-recognized distinction between the two classes of contracts has a basis in fact. In Elliott's Executors' Appeal,50 Pa. 75, 80-81, READ, J., said: "But 'the contract commonly called life assurance, when properly considered, is a mere contract to pay a certain sum of money on the death of a person, in consideration of *Page 313
the due payment of a certain annuity for his life; the amount of the annuity being calculated in the first instance, according to the probable duration of the life; and when once fixed it is constant and invariable. The stipulated amount of annuity is to be uniformly paid, on one side, and the sum to be paid in the event of death is always (except where bonuses have been given by prosperous offices) the same on the other. This species of insurance in no way resembles a contract of indemnity.' "3 In considering the corporate power of a certain company to issue endowment insurance, in Industrial Life Ins.Co. v. Hunt, 335 Pa. 305, 307, 6 A.2d 781, Mr. Justice STERN referred to life insurance as follows: "An endowment provision is not, strictly speaking, life insurance although it is not uncommonly embodied in life insurance policies as an additional feature of the contract. Life insurance is an agreement to pay, to a person indicated, a certain sum upon the death of the insured; the endowment provision adds thereto a contract to pay to the insured himself a specified sum provided he lives to a certain age. Life insurance is for protection against the adversity of death; endowment is based upon the contingency of survival, and is essentially a form of investment."
An annuity is generally defined as "A stated sum payable annually" or "as a yearly payment of a certain sum of money granted to another in fee for life or for years and chargeable only on the person of the grantor."4
Comparison of the definitions of life insurance and of annuities shows obvious differences between these two classes of contracts. If, with these definitions in mind, the simple life insurance contract is contrasted with the traditional annuity contract, it will be observed that, in the case of life insurance, for annual premiums payable to the company (which in effect are annuities paid by *Page 314
the insured) the company will pay a specified sum at the insured's death; whereas the converse is true of the annuity contract, for, in that transaction the annuitant pays the single sum in consideration of which the company makes annual payments to him. The amount paid on the insurance policy at the insured's death pursuant to the obligation created in his lifetime, is a transfer of property vesting in possession or enjoyment at his death and would be subject to the inheritance tax but for the exemption in clause (d). We are, of course, now considering contracts in which the right to change the beneficiary has been reserved, because such beneficiary has no vested interest in the policy or its proceeds during the insured's lifetime, but only an expectancy.5 See Knoche v.Mutual Life Insurance Co., 317 Pa. 370, 371, 176 A. 230; Rileyv. Wirth, 313 Pa. 362, 169 A. 139; Irving Bank v. Alexander,280 Pa. 466, 470, 124 A. 634; Weil v. Marquis, 256 Pa. 608,614, 101 A. 70; Fidelity Trust Co. v. Travelers' Insurance Co.,320 Pa. 161, 166, 181 A. 594.
In the case of the traditional annuity contract, nothing remains to pass at the annuitant's death and therefore there is no transfer to tax. But if the parties to the annuity contract provide, as in this case, that a specified total shall be paid in annual installments but if the annuitant die before receiving the total, the balance shall then pass to his beneficiary, there is a taxable transfer of property because the beneficiary's right does not vest until the annuitant's death and the property transferred, not being the proceeds of policies of life insurance within clause (d), is not within the exemption. See Paul: Federal Estate and Gift Taxation (1942), Vol. 1, sections 10.08 and 10.09.
Appellee relies on Krause's Estate, 325 Pa. 479, 191 A. 162, in support of his argument for exemption, but *Page 315
the case is not controlling. In that case it appeared that the decedent in his lifetime gave money to a college; he reserved no right to control its investment or disposition or to receive income from it; the college agreed to pay interest at a fixed rate. It was an executed gift inter vivos; nothing was transferred at the donor's death because, after making the gift, he no longer had any interest in the property. It is unnecessary, because we think the law in this Commonwealth is clearly settled, to refer to decisions cited from other jurisdictions.
The order appeal from is reversed; the record is remitted for proceedings consistent with this opinion; costs to be paid out of the fund.
1 Under three of the contracts Bayer had the right during his lifetime to demand the cash surrender value of the contracts.
2 The distinction was recognized as early as March 10, 1812, 5 Sm. L. 312, when the legislature authorized the incorporation of the Pennsylvania Company for Assurances on Lives and Granting Annuities and reversions authorizing the company to "make an insurance on lives and grant annuities." On March 17, 1836, P. L. 99, the legislature authorized the incorporation of the Girard Life Insurance, Annuity and Trust Company of Philadelphia with authority to "effect insurance on lives of whatsoever sort or nature, to contract for, grant and sell annuities and reversionary payments, . . ." Others may be located by consulting Beitel's Titles of Corporations (Pa. 2d ed.).
3 The definition of Baron Parke, in Dalby v. The India andLondon Life-Assurance Company, 15 C. B. 365, 139 Eng. Rep. 465.
4 3 Corpus Juris 200.
5 If the right to change the beneficiary is not reserved, the beneficiary has a vested right to the obligation and not a mere expectancy: compare Entwistle v. Travelers' Ins. Co., 202 Pa. 141,51 A. 759. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3151707/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN PAUL SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:02-cr-00064-GMG-7)
Submitted: October 20, 2015 Decided: November 3, 2015
Before KING, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Paul Smith, Appellant Pro Se. Paul Thomas Camilletti,
Assistant United States Attorney, Martinsburg, West Virginia;
Michael D. Stein, Assistant United States Attorney, Wheeling,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Paul Smith appeals the district court’s order denying
his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2)
(2012) based on Amendment 782. We have reviewed the record and
find no reversible error. Accordingly, we affirm.
A district court may reduce a prison term if a defendant’s
Guidelines range has subsequently been lowered by the Sentencing
Commission and the reduction is consistent with applicable
policy statements. 18 U.S.C. § 3582(c)(2) (2012). A reduction
is not consistent with applicable policy statements and
therefore not authorized under § 3582(c)(2) if “an amendment
listed in [U.S. Sentencing Guidelines Manual § 1B1.10(d) (2014)]
does not have the effect of lowering the defendant’s applicable
guideline range.” USSG § 1B1.10(a)(2)(B). We review a district
court’s decision under § 3582(c)(2) for abuse of discretion and
its ruling as to the scope of its legal authority de novo.
United States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013).
In deciding whether to modify a prison term pursuant to a
retroactive amendment to the Sentencing Guidelines, the first
step is to “determine the amended guideline range that would
have been applicable to the defendant if the amendment(s) to the
guidelines listed in [USSG § 1B1.10(d)] had been in effect at
the time the defendant was sentenced.” USSG § 1B1.10(b)(1);
Dillon v. United States, 560 U.S. 817, 827 (2010). “In making
2
such determination, the court shall substitute only the
amendments listed in [USSG § 1B1.10(d)] for the corresponding
guideline provisions that were applied when the defendant was
sentenced and shall leave all other guideline application
decisions unaffected.” USSG § 1B1.10(b)(1). Amendments listed
in USSG § 1B1.10(d) include not only Amendment 782, which
generally reduced base offense levels in USSG § 2D1.1, but also
Amendments 657 and 750, which changed the Drug Equivalency
Tables for oxycodone and cocaine base. See USSG § 1B1.10(d).
At sentencing, the district court adopted the presentence
report and found Smith responsible for a marijuana equivalency
of 2,664.92275 kilograms based on 85.55 grams of cocaine base,
115.2 grams of cocaine hydrochloride, 639.3631 grams of heroin,
and 583.0393 grams of oxycodone. Under the 2002 Sentencing
Guidelines Manual, the district court determined that Smith’s
base offense level was 32, and his total offense level was 34.
With a criminal history category of V and 20-year statutory
maximum, his Guidelines range was 235 to 240 months.
Applying the amendments listed in USSG § 1B1.10(d), Smith’s
Guidelines range has not been lowered. Under Amendment 782, a
marijuana equivalency of 3,000 to 10,000 kilograms is now a base
offense level of 32. Applying the Drug Equivalency Tables in
Amendments 657 and 750, Smith would now be responsible for a
marijuana equivalency of over 3,000 kilograms based on the drug
3
quantity findings at sentencing. * Accordingly, the Sentencing
Commission has not lowered Smith’s Guidelines range, and he is
not eligible for a reduction under 18 U.S.C. § 3582(c)(2).
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
* We note that even if the stipulated drug amounts were
used, rather than the higher drug amounts found by the district
court at sentencing, the marijuana equivalency would still
exceed 3,000 kilograms based on the applicable amendments.
4 | 01-03-2023 | 11-03-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1713614/ | 13 Neb. Ct. App. 710
KEENAN PACKAGING SUPPLY, INC., A SOUTH DAKOTA CORPORATION, APPELLANT AND CROSS-APPELLEE,
v.
ADA B. McDERMOTT, TRUSTEE, APPELLEE AND CROSS-APPELLANT.
ADA B. McDERMOTT, TRUSTEE, APPELLEE AND CROSS-APPELLANT,
v.
KATHY KEENAN, DOING BUSINESS AS KEENAN PACKAGING SUPPLY, APPELLANT AND CROSS-APPELLEE.
Nos. A-03-712, A-03-721
Nebraska Court of Appeals.
Filed July 26, 2005.
James B. McVay, of Tiedeman, Lynch, Kampfe & McVay, for appellants.
Kirk E. Goettsch and Steven J. Riekes, of Marks, Clare & Richards, L.L.C., for appellee.
IRWIN, CARLSON, and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Ada B. McDermott, Trustee, as lessor, and Kathy Keenan, doing business as Keenan Packaging Supply, as lessee, entered into a lease for certain commercial property in Omaha, Nebraska. At the time the parties signed the lease, Keenan operated her business as a sole proprietorship. Keenan subsequently incorporated her business as Keenan Packaging Supply, Inc., and assigned to the corporation all causes of action arising in favor of Keenan in connection with the lease. For the sake of simplicity, we shall refer herein to both incarnations of Keenan's business as "Keenan Packaging." Ada, as trustee, filed a petition in the district court for Douglas County alleging that Keenan Packaging was liable for unpaid rent owed pursuant to the lease. Keenan Packaging filed a petition in the district court against Ada, as trustee. Keenan Packaging alleged, in part, that Ada breached the lease by failing to maintain the roof of the leased property, which failure resulted in the loss or destruction of considerable personal property of Keenan Packaging from water damage. The district court consolidated the two cases for trial, and after the trial, the court entered an order dismissing both petitions. Both parties appealed from the decision of the district court. The appeals were consolidated, and Keenan Packaging was designated as the appellant and cross-appellee and Ada was designated as the appellee and cross-appellant for purposes of briefing and argument. For the reasons set forth herein, we affirm in part, and in part reverse and remand with directions.
BACKGROUND
In approximately 1977, Ada and her husband, Joe McDermott, acquired certain commercial property in Omaha. Ada and Joe subsequently conveyed this property to the Ada McDermott Revocable Trust (the trust). Ada is trustee of the trust, and she performs bookkeeping and tax-related work for the trust's commercial rental properties. Joe, as the manager of the commercial buildings owned by the trust, performs maintenance, interacts with tenants, and supervises employees working at the property. The building at issue here (the McDermott property) consists of 80,000 square feet and is divided into sections or bays and leased to different parties. The McDermott property has one continuous roof over the entire 80,000 square feet.
Keenan Packaging is in the business of distributing packaging, janitorial, and laminating equipment and supplies. In May 1998, Keenan began looking for a new space to lease for her business. At that time, Keenan and a representative of a commercial management company inspected the McDermott property. The particular area available for lease was 12,500 square feet located in the far west end of the building. An office area comprising about 10 to 15 percent of the total rental space was located at the front of the bay, while warehouse facilities were located to the back of the bay. Upon first inspecting the McDermott property, Keenan observed that the carpeting was wet, that the offices had water stains, and that the warehouse had pools of water on the floor. Keenan discussed those problems with Joe and the commercial management company representative, who both assured Keenan that the McDermotts would take care of the problem with the roof.
Ada, as trustee, and Keenan Packaging subsequently entered into a lease agreement for the rental space, such lease commencing June 15, 1998, and ending June 30, 2001, with a monthly rental amount of $3,490. Keenan Packaging paid a security deposit equal to 1 month's rent and paid half a month's rent for June 1998. The relevant lease provisions are as follows:
6. REPAIR AND MAINTENANCE: The Lessee shall, at his sole expense, keep the interior of the premises, including all windows, doors and glass, in good order and repair, reasonable wear and tear and damage by fire excepted. The Lessor shall keep the structural supports, exterior walls and roof of the building in good order and repair and shall be responsible for the operation and maintenance of all common areas and facilities as hereinafter provided. . . .
. . . .
10. CONDITION OF PREMISES: The Lessee has examined the premises and is satisfied with the physical condition thereof, including all equipment and appurtenances, and his taking possession thereof shall be conclusive evidence of his receipt thereof in good and satisfactory order and repair, unless otherwise specified herein. . . .
. . . .
14. PERSONAL PROPERTY AT RISK OF LESSEE: All personal property in the premises shall be at the risk of the Lessee only. The Lessor shall not be or become liable for any damage to such personal property, to the premises or to Lessee or any other persons or property as a result of water leakage, sewerage, electric failure, gas or odors or for any damage whatsoever done or occasioned by or from any plumbing, gas, water or other pipes or any fixtures, equipment, wiring or appurtenances whatsoever, or for any damage caused by water, snow or ice being or coming upon the premises, or for any damage arising from any act or neglect of other tenants, occupants or employees of the building in which the premises are situated or arising by reason of the use of, or any defect in, said building or any of the fixtures, equipment, wiring or appurtenances therein, or by the act or neglect of any other person or caused in any other manner whatsoever.
. . . .
30. NO OTHER AGREEMENTS: This lease contains the entire understanding and agreement of the parties, supersedes all prior understandings and agreements and cannot be changed orally.
"Addendum A," attached to the lease and signed by the parties, provided in part that the lessor, at the lessor's expense, would "[r]epair ceiling in hall area and repair roof where needed."
Shortly after moving into the premises, Keenan Packaging experienced water problems that continued throughout its tenancy. Keenan Packaging paid rent pursuant to the lease through February 1999. In March, Keenan informed the McDermotts that Keenan Packaging could sustain no more damages and would pay no more rent until the McDermotts had the roof repaired. On or about July 7, the McDermotts caused a notice to quit to be served on Keenan Packaging. The parties subsequently entered into an agreement whereby Ada would not hold Keenan Packaging responsible for the remaining term of the lease if Keenan Packaging vacated the premises, which Keenan Packaging did on August 21.
Ada, as trustee, filed suit against Keenan Packaging on November 3, 1999. Ada alleged that Keenan Packaging failed and refused to abide by the terms of the lease before it vacated the premises on August 21, in particular by failing to pay rent to Ada as it came due. Ada alleged that based on the lease agreement, Keenan Packaging was indebted to Ada for $3,490 per month for the months of March through July 1999 and for a prorated amount of $2,364.19 for August 1 through 21, 1999, for a total amount due of $19,814.19.
Keenan Packaging filed an answer on November 19, 1999. Keenan Packaging denied Ada's allegations that it had failed and refused to abide by the terms of the lease and to pay rent when it came due. Keenan Packaging alleged that the leased premises were untenantable due to the failure of the roof to such an extent that every time it rained, the roof would leak, damaging or destroying furniture, equipment, and product. Keenan Packaging further alleged that such untenantability excused it from its obligation to pay rent. Keenan Packaging denied that it was indebted to Ada for $19,814.19 and sought dismissal of Ada's petition.
Keenan Packaging filed suit against Ada, as trustee, on May 11, 2000. Keenan Packaging alleged that Ada had materially breached the terms of the lease by failing to keep the structural supports, exterior walls, and roof of the building in good order and repair and in failing to repair as needed the roof at the McDermott property. Keenan Packaging alleged that it vacated the McDermott property on or about August 21, 1999, due to Ada's material breaches of the lease. Keenan Packaging alleged that it incurred damages as follows: (1) $17,671.36 in damage to inventory, (2) $7,973 in damage to equipment, (3) $14,216.42 in additional rental expenses and other expenses incurred to obtain substitute space, (4) $2,113.98 in moving expenses, (5) $8,304.58 in additional wages paid by Keenan Packaging, (6) $2,979.58 in other miscellaneous expenses, and (7) $3,490 in the loss of the security deposit paid to Ada. Keenan Packaging alleged that the costs and expenses set forth were the kind that would ordinarily follow from Ada's failure to perform as required under the lease and that Ada knew or should have known that the costs and expenses incurred by Keenan Packaging were the likely result from Ada's breach of the lease. On this first cause of action, Keenan Packaging sought judgment against Ada in the amount of $56,748.92. Keenan Packaging also set forth causes of action for fraudulent misrepresentation and fraudulent concealment.
On July 11, 2000, Ada, as trustee, filed an answer to Keenan Packaging's petition. Ada admitted that Keenan Packaging vacated the McDermott property on or about August 21, 1999, but generally denied the remaining allegations of Keenan Packaging's petition.
On August 31, 2000, the district court entered an order granting Keenan Packaging's motion to consolidate the two cases for trial, which trial was held before the court on January 15 and 16, 2003. Keenan testified that when Keenan Packaging moved into the McDermott property, most of the items listed in the addendum to the lease had been completed, but that she did not know if any repair had been made to the roof as required by the addendum. The record at trial shows generally that Keenan Packaging experienced water problems within 2 or 3 days after moving into the premises. These water problems continued throughout the 14 months that Keenan Packaging occupied space in the McDermott property, despite various attempts by the McDermotts' employees to repair the roof. Throughout Keenan Packaging's tenancy, Keenan or her employees consistently contacted the McDermotts whenever there was a water problem. In order to avoid or limit damage to product, Keenan and her employees would place trash cans throughout the leased area, move product from wet areas, and place tarps over product. The McDermotts provided Keenan Packaging with burlap sacks to help mop up the water, built a trough over the office area to catch water and direct it into trash cans, and provided trash cans and barrels in other portions of the premises to catch water.
In March 1999, there was a meeting attended by Keenan, the McDermotts, two of Keenan Packaging's employees, and a representative of the real estate management company for the McDermott property. At this meeting, Keenan told Joe that Keenan Packaging could not sustain further damages and that it would not pay rent until the McDermotts repaired the roof. Keenan testified that Joe promised during the meeting to replace the roof on the McDermott property. Keenan testified further that based on Joe's representation during the March meeting, Keenan Packaging elected to remain in the McDermott property. Subsequent to the March meeting, Keenan Packaging sent several letters to Ada outlining Keenan's understanding of Joe's representations during the meeting. Keenan Packaging never received a response to any of these letters and vacated the McDermott property in mid-August. Ada testified that under the lease, Keenan Packaging still owed $19,814.19a rental amount of $3,490 per month for March through July 1999, plus a prorated rental amount of $2,364.19 for 21 days in August. Ada further testified that after Keenan Packaging vacated the McDermott property, the trust retained the security deposit paid by Keenan Packaging, and that when the security deposit was applied against the rent due, the balance owed by Keenan Packaging was $16,324.19. At trial, Keenan Packaging offered evidence concerning the damages allegedly sustained by it due to the leaky roof. We do not set forth the details of that evidence herein because the issue of Keenan Packaging's damages is not dispositive of our resolution of the parties' appeals.
On May 27, 2003, the district court entered an order ruling on the parties' claims. In its order, the court set forth certain factual findings and relevant portions of the lease agreement. The court noted a serious question on proof of damages to the personal property of Keenan Packaging and observed that damages could not be based on speculation and conjecture. The court found there was no question that Keenan Packaging suffered some water damage to its personal property but found that paragraph 14 of the lease was very clear as to responsibility for personal property loss. The court found that the addendum clause, whereby Ada agreed to "repair roof where needed," did not supersede, modify, or eliminate the clear language of paragraph 14 of the lease. The court found that Ada was not guilty of gross negligence or willful and wanton misconduct with regard to roof repairs and that the McDermotts in fact attempted several times to repair the roof problems. The court concluded that Keenan Packaging must bear the loss of its personal property and any resulting damages and that Ada had no liability for Keenan Packaging's claims.
As to Ada's claim for rent from March 1 through August 21, 1999, the district court found that Keenan Packaging had a legitimate reason "for withholding rent and vacating the premises because of water damage to [its] products and equipment." The court further observed that just because Ada was not liable for the water damage, that did not mean Keenan Packaging had to stay in the McDermott property until the end of the lease term at the risk of sustaining further damage to its personal property. The court concluded that Keenan Packaging was not liable for the alleged unpaid rent.
The district court dismissed both parties' petitions and found that any request by any party for relief not specifically granted by the order of May 27, 2003, was denied. The parties subsequently perfected their respective appeals to this court.
ASSIGNMENTS OF ERROR
Keenan Packaging asserts that the district court erred in (1) finding that the language of the lease and the addendum was not ambiguous and in failing to consider the parties' intent in determining whether Ada was liable for damages sustained by Keenan Packaging; (2) finding that the language of paragraph 14 of the lease was not superseded, modified, or eliminated by the provisions of the lease that required Ada to keep the roof of the building in good order and repair and those provisions of the addendum that required Ada to repair the roof where needed; (3) finding that Ada was not guilty of gross negligence and wanton misconduct in her failure to keep the roof of the building in good order and repair and to repair the roof where needed; and (4) failing to award Keenan Packaging damages sustained because of the leaky roof on the McDermott property.
Ada, as trustee, asserts on cross-appeal that the district court erred in finding that Keenan Packaging had a legitimate reason for withholding rent.
STANDARD OF REVIEW
[1-3] A suit for damages arising from breach of a contract presents an action at law. Par 3, Inc. v. Livingston, 268 Neb. 636, 686 N.W.2d 369 (2004). In a bench trial of a law action, the trial court's factual findings have the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong. Id. The interpretation of a contract involves a question of law, for which an appellate court has an obligation to reach its conclusions independent of the determinations made by the court below. Midwest Neurosurgery v. State Farm Ins. Cos., 268 Neb. 642, 686 N.W.2d 572 (2004).
ANALYSIS
Interpretation of Lease.
Keenan Packaging asserts that certain provisions in the lease and the addendum thereto are in conflict, are therefore ambiguous, and should be read to modify or eliminate paragraph 14 of the lease. Paragraph 14 contains the exculpatory clause relieving Ada of liability for damage to the personal property of Keenan Packaging caused by, inter alia, water leakage. Keenan Packaging relies on paragraph 6 of the lease, requiring Ada to keep the roof of the building in good order and repair, and on the addendum provision, requiring Ada to repair the ceiling in the hall area and to repair the roof where needed. Keenan Packaging argues that these provisions in the lease and the addendum are conflicting and are subject to different interpretations. Keenan Packaging essentially argues that the application of the exculpatory clause in paragraph 14 negates any remedy for a breach by Ada of paragraph 6 or the addendum. We disagree.
[4-9] A lease agreement is to be construed as any other contract. Johnson Lakes Dev. v. Central Neb. Pub. Power, 254 Neb. 418, 576 N.W.2d 806 (1998). A contract is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings. Jensen v. Board of Regents, 268 Neb. 512, 684 N.W.2d 537 (2004). A determination as to whether ambiguity exists in a contract is to be made on an objective basis, not by the subjective contentions of the parties; thus, the fact that the parties have suggested opposing meanings of the disputed instrument does not necessarily compel the conclusion that the instrument is ambiguous. Fraternal Order of Police v. County of Douglas, 259 Neb. 822, 612 N.W.2d 483 (2000). When the terms of a contract are clear, a court may not resort to rules of construction, and the terms are to be accorded their plain and ordinary meaning as the ordinary or reasonable person would understand them. Midwest Neurosurgery v. State Farm Ins. Cos., supra. A contract must be construed as a whole, and if possible, effect must be given to every part thereof. Big River Constr. Co. v. L & H Properties, 268 Neb. 207, 681 N.W.2d 751 (2004). A party may not pick and choose among the clauses of a contract, accepting only those that advantage it. Poulton v. State Farm Fire & Cas. Cos., 267 Neb. 569, 675 N.W.2d 665 (2004).
The Nebraska Supreme Court in Bedrosky v. Hiner, 230 Neb. 200, 430 N.W.2d 535 (1988), considered an exculpatory provision similar to that found in the lease in the present case. In Bedrosky, the plaintiffs suffered personal property losses from a fire which damaged the commercial structure they had leased. The plaintiffs claimed that the defendant landlord had failed to comply with certain regulations of the State Fire Marshal's office, failed to take other preventive measures, and, contrary to the defendant's representation, failed to keep the sprinkler system in proper working order. The plaintiffs asserted that the defendant should be responsible for the plaintiffs' losses, despite the exculpatory provisions in the parties' lease.
[10] The Nebraska Supreme Court in Bedrosky found that when read in its "plainest, clearest sense," the lease placed no liability on the defendant for the damage to the plaintiffs' property. 230 Neb. at 206, 430 N.W.2d at 540. The court observed that a written contract which is expressed in clear and unambiguous language is not subject to interpretation or construction. Id. The plaintiffs did not specifically argue that the lease was ambiguous; rather, they urged a nonliteral interpretation, based on public policy. More specifically, the plaintiffs argued that to construe the lease according to its plain languagein other words, to exempt the defendant from liabilitywould create an unconscionable result. The court reviewed the varying responses of other state courts considering the issue of exculpatory clauses in commercial leases. The court then found no indication in the evidence that the plaintiff who originally leased the property was a victim of disparity in bargaining power. The plaintiff voluntarily entered the lease and agreed to its terms. The language of the lease plainly exculpated the defendant from liability for damage to the plaintiffs' property. The Nebraska Supreme Court found that the plain language of the exculpatory clause did not permit the court to read into its meaning a limiting provision as urged by the plaintiffs. The court further found that the language of the exculpatory clause was not in contravention of public policy.
In the present case, as noted by the district court, paragraph 14 of the lease is very clear as to responsibility for personal property loss. The record shows that Keenan had leased commercial property prior to entering the lease at issue here. We see nothing in the record to suggest a disparity in the bargaining power between the parties. Keenan, as a representative of Keenan Packaging, signed a lease containing the exculpatory clause found in paragraph 14, the requirement in paragraph 6 that Ada keep the roof of the building in good order and repair, and the addendum provision that required Ada to repair the roof as a condition of Keenan Packaging's occupying the McDermott property. We also observe that Keenan Packaging was required by paragraph 15 of the lease to provide insurance, which insurance would cover, among other things, "property damage." Further, the lease included paragraph 10 stating that Keenan Packaging had examined and was satisfied with the physical condition of the premises, except as otherwise specified. Clearly, Keenan Packaging is not free to pick and choose among the clauses of the lease, accepting only those that are advantageous to it. See Poulton v. State Farm Fire & Cas. Cos., 267 Neb. 569, 675 N.W.2d 665 (2004). The lease, read as a whole and in its plainest and clearest sense, provides that Ada is not responsible for damages to Keenan Packaging's personal property due to, among other things, water leakage. The district court did not err in failing to conclude that the lease was ambiguous and in failing to conclude that paragraph 14 was superseded, modified, or eliminated by other provisions of the lease. Keenan Packaging's assertions to the contrary are without merit.
Gross Negligence and Wanton Misconduct.
Keenan Packaging asserts that the district court erred in finding that Ada was not guilty of gross negligence and wanton misconduct in her failure to keep the roof of the building in good order and repair and to repair the roof where needed. Keenan Packaging argues that even if paragraph 14 of the lease is valid and enforceable, Ada's acts in failing to repair the roof constituted gross negligence.
[11] The Nebraska Supreme Court has held that public policy prevents a party from limiting its damages for gross negligence or willful and wanton misconduct. New Light Co. v. Wells Fargo Alarm Servs., 247 Neb. 57, 525 N.W.2d 25 (1994). In New Light Co., the plaintiff's petition alleged that the defendant was grossly negligent in various regards with respect to its installation of a fire alarm system. The defendant generally denied the allegations of the petition and claimed that a clause of the parties' contract exculpated it from liability for the plaintiff's damages sustained in a fire. The Nebraska Supreme Court held that whether a particular exculpatory clause in a contractual agreement violates public policy depends upon the facts and circumstances of the agreement and the parties involved. Id. In New Light Co., the court concluded that the parties had not contemplated gross negligence and willful and wanton misconduct because the exculpatory clause made no mention of such activities. The court held that even if the exculpatory clause could be construed to include gross negligence and wanton and willful misconduct, such exclusion was prohibited by public policy. Because the court found no language in the agreement clearly expressing an intent to limit the defendant's liability for acts of gross negligence or willful and wanton misconduct, the court concluded that the exculpatory clause did not affect the plaintiff's right to assert a cause of action based on such activity.
[12-14] Unlike the plaintiff in New Light Co., Keenan Packaging in the instant case did not plead gross negligence and wanton misconduct in its petition. The Nebraska Supreme Court has previously held, in the context of a contract dispute, that a pleading has two purposes: (1) to eliminate from consideration contentions which have no legal significance and (2) to guide the parties and the court in the conduct of cases. Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d 390 (2003). Pleadings frame the issues upon which the cause is to be tried and advise the adversary as to what the adversary must meet. Id. The issues in a given case will be limited to those which are pled. Id. We observe that the present consolidated cases were filed under Nebraska's old code pleading system and before the implementation of Nebraska's new civil pleading rules. See Neb. Ct. R. of Pldg. in Civ. Actions 1 (rev. 2004) (new rules of pleading apply to civil actions filed on or after January 1, 2003). The court in Spanish Oaks noted that "[w]hile . . . judicial efficiency might be promoted if courts were to, sua sponte, determine questions raised by the facts but not presented in the pleadings, that efficiency would come at the expense of due process." 265 Neb. at 149, 655 N.W.2d at 404. Compare, Blinn v. Beatrice Community Hosp. & Health Ctr., 13 Neb. Ct. App. 459, 696 N.W.2d 149 (2005) (case filed under new rules of pleading holding that when issues not raised by pleadings are tried by express or implied consent of parties, issues shall be treated in all respects as if they had been raised in pleadings); Schnell v. Schnell, 12 Neb. Ct. App. 321, 673 N.W.2d 578 (2003) (issues not raised in pleadings may be reached when record shows both parties were on notice of issue and both parties fully litigated issue).
[15,16] Even assuming in the present case that both parties were on notice and fully litigated the issue of gross negligence and wanton misconduct, and despite Keenan Packaging's failure to plead the issue, we see nothing in the record to suggest that the district court's factual finding on this issue was clearly wrong. The district court in the present case held that this "is not a case where [Ada] was guilty of gross negligence or willful and wanton misconduct as regards roof repairs." The court observed that the McDermotts attempted to repair the roof problem several times during Keenan Packaging's tenancy. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. Bennett v. Labenz, 265 Neb. 750, 659 N.W.2d 339 (2003). In order for an action to be willful or wanton, the evidence must prove that a defendant had actual knowledge that a danger existed and that the defendant intentionally failed to act to prevent harm which was reasonably likely to result. Drake v. Drake, 260 Neb. 530, 618 N.W.2d 650 (2000). The district court was not clearly wrong in finding that the McDermotts' actions with regard to the roof repair did not rise to the level of gross negligence or willful or wanton misconduct. Keenan Packaging's assignment of error is without merit.
Keenan Packaging's Damages.
[17] Finally, Keenan Packaging asserts that the district court erred in failing to award Keenan Packaging damages sustained because of the leaky roof on the McDermott property. Given our resolution of Keenan Packaging's other assignments of error, we need not address this error. An appellate court is not obligated to engage in an analysis which is not needed to adjudicate the controversy before it. Burke v. McKay, 268 Neb. 14, 679 N.W.2d 418 (2004).
Constructive Eviction.
Ada, as trustee, asserts on cross-appeal that the district court erred in finding that Keenan Packaging had a legitimate reason for withholding rent. Keenan Packaging alleged in its answer to Ada's petition that the leased premises were untenantable due to the failure of the roof and that such untenantability excused it from its obligation to pay rent. Ada argues that Keenan Packaging's claim of untenantability constitutes a defense to Ada's claim for rent only if there was a constructive eviction.
[18,19] To constitute a constructive eviction, it must be shown that the premises were rendered unfit for occupancy for the purposes for which they were leased or were rendered unfit so as to deprive lessee of the beneficial use of the premises. Middagh v. Stanal Sound Ltd., 222 Neb. 54, 382 N.W.2d 303 (1986). See, also, May v. Marijo Corp., 207 Neb. 422, 299 N.W.2d 433 (1980); Kimball v. Lincoln Theatre Corporation, 129 Neb. 446, 261 N.W. 842 (1935) (Kimball II); Kimball v. Lincoln Theatre Corporation, 125 Neb. 677, 251 N.W. 290 (1933) (Kimball I). The Nebraska Supreme Court has held that any disturbance of the tenant's possession by the landlord or by someone under his authority, whereby the premises are rendered unfit for occupancy for the purposes for which they were demised or the tenant is deprived of the beneficial enjoyment of the premises, amounts to a constructive eviction, if the tenant abandons the premises within a reasonable time. Kimball I.
Ada argues that Keenan Packaging did not abandon the premises as required, in that it only vacated the premises after being compelled to do so by a notice to quit for nonpayment of rent. Keenan Packaging acknowledges the requirement that it abandon the premises in order to successfully claim constructive eviction, but it argues that it abandoned the premises in a reasonable time because it was induced to remain on the premises by the McDermotts' assurances that the roof would be repaired. The parties both rely on the following:
Under the covenant to repair or to improve the premises during the term, ordinarily used in leases of real estate, the tenant may not retain possession and assert a breach of the covenant as a complete defense to an action for rent. Whatever right a tenant may have to terminate his or her liability for future rent by abandoning the premises on the ground that they are uninhabitable as a result of the breach of the landlord's covenant to repair is waived by remaining in possession after the breach, unless the tenant was induced to remain by the representations of the landlord that the defects would be repaired.
A mere declaration that the lessee does not intend to continue to occupy the premises, or even a formal tender of possession to the landlord, does not constitute an abandonment within the meaning of any principle of law that will permit a tenant to avoid liability for rent through abandoning the premises upon the breach by the landlord of his or her covenant to repair or to improve the premises. In order for the tenant to avoid liability for rent by asserting a claim of abandonment of the premises resulting from the breach of the landlord's covenant to repair, the tenant must actually surrender the premises.
(Emphasis supplied.) 49 Am. Jur. 2d Landlord and Tenant § 777 at 638-39 (1995). Ada also notes the following:
An act of a landlord which deprives the tenant of that beneficial enjoyment of the premises to the tenant is entitled under the lease, causing the tenant to abandon the premises, amounts to a constructive eviction and suspends liability for rent accruing subsequent to the abandonment. So, where a landlord, without being guilty of an actual physical disturbance of the tenant's possession, is guilty of such acts as will justify or warrant the tenant in leaving the premises, and the tenant abandons them, then the circumstances which justify such abandonment, taken in connection with the act of abandonment itself, will support a plea of eviction as against an action for rent.
The rule that in order for the tenant to be entitled to assert a constructive eviction, the tenant must abandon the premises applies where the tenant seeks to assert a constructive eviction as a defense to an action for rent. The view generally taken by the authorities is that in order for the lessee to rely upon constructive eviction as a ground for avoiding payment of the rent contracted for, the lessee must surrender or abandon the leased premises. If the tenant makes no surrender of the possession, but continues to occupy after the commission of the acts which would justify leaving, the tenant will be deemed to have waived the right to abandon. It would be unjust to permit the tenant to remain in possession and then escape the payment of rent by pleading a state of facts which, although conferring a right to abandon, had been unaccompanied by the exercise of that right. The rules stated elsewhere as to the time within which a tenant must abandon possession in order to be entitled to assert a constructive eviction apply in determining the right to assert a constructive eviction as a defense to an action for rent.
(Emphasis supplied.) Id., § 734 at 602-03.
While the district court did not make a specific finding that the McDermotts' failure to repair the roof amounted to a constructive eviction of Keenan Packaging, the court stated, in support of its finding that Keenan Packaging is not liable for the unpaid rent from March to August 1999, that "Keenan [Packaging] had a legitimate reason for withholding rent and vacating the premises because of water damage to [its] products and equipment." We interpret this finding to mean that Keenan Packaging was constructively evicted from the premises by virtue of the McDermotts' failure to repair the roof. Further, implicit in the district court's ruling is a finding that Keenan Packaging abandoned the premises within a reasonable time. The record supports such a finding as well, in that Keenan was induced to remain on the premises for some time after Ada's breach of the lease by the McDermotts' representations that the roof would be repaired. The district court was not clearly wrong in finding that the McDermotts' failure to repair the roof amounted to a constructive eviction of Keenan Packaging and that Keenan Packaging abandoned the premises within a reasonable time of Ada's breach.
[20,21] The district court determined that Keenan Packaging was not liable for rent that accrued prior to the abandonment of the premises. We can find no support for such a position in Nebraska law. In our research, we have found Nebraska cases wherein the lessee of certain real property claimed it was constructively evicted from the leased property and that such constructive eviction absolved it from paying rent after the date of its abandonment of the property. See, Gehrke v. General Theatre Corp., 207 Neb. 301, 298 N.W.2d 773 (1980) (lessee responsible for balance of rent due under lease after lessee vacated premises, because court found no constructive eviction); Kimball I (liability for rent subsequent to abandonment not actually discussed because court found lessee was not constructively evicted). See, also, May v. Marijo Corp., 207 Neb. 422, 299 N.W.2d 433 (1980) (affirming jury award of rent due until expiration of lease in constructive eviction case, but not specifying point from which award of rent began). We have found no Nebraska cases which discuss the liability for rent prior to the abandonment of the premises occasioned by constructive eviction. We believe the authority contained in 49 Am. Jur. 2d, supra, is a correct analysis of the law in the area of constructive eviction. We therefore hold that in order for a lessee to rely upon constructive eviction as a ground for avoiding payment of the rent contracted for, the lessee must surrender or abandon the leased premises. We further hold that the constructive eviction of a lessee suspends the lessee's liability for rent accruing subsequent to the abandonment.
We find that the district court erred in excusing Keenan Packaging from the payment of $19,814.19 for rent which accrued prior to Keenan Packaging's abandonment of the premises, i.e., rent for March through August 21, 1999. Accordingly, we reverse that portion of the district court's judgment which dismissed Ada's petition and remand the cause to the district court with instructions to enter judgment in favor of Ada and against Keenan Packaging in the sum of $16,324.19an amount equal to the unpaid rent which accrued prior to Keenan Packaging's abandonment of the premises less Keenan Packaging's security deposit of $3,490.
CONCLUSION
The district court incorrectly concluded that Ada's breach absolved Keenan Packaging from its obligation to pay rent while it continued to occupy the premises. Accordingly, we reverse that portion of the district court's judgment which dismissed Ada's petition and remand the cause to the district court with directions to enter judgment in favor of Ada and against Keenan Packaging in the sum of $16,324.19an amount equal to the unpaid rent which accrued prior to Keenan Packaging's abandonment of the premises less Keenan Packaging's security deposit. We affirm the district court's order in all other respects.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4523420/ | ONDISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
S.M., the mother,
Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES,
Appellee.
No. 4D19-3333
[April 7, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Stacey Schulman, Judge; L.T. Case No. 04-5079 DP A.
Antony P. Ryan, Regional Counsel, and Paul O'Neil, Assistant Regional
Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm
Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Fort Lauderdale, for appellee.
PER CURIAM.
Affirmed.
LEVINE, C.J., MAY and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 04-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/166524/ | 425 F.3d 1277
Ivonne Telma TULENGKEY; Reynaldo Situmorang, Petitioners,v.Alberto R. GONZALES, Attorney General,* Respondent.
No. 04-9562.
United States Court of Appeals, Tenth Circuit.
October 13, 2005.
Haroen Calehr, Calehr & Associates, Houston, TX, for Petitioner.
Allen W. Hausman, Senior Litigation Counsel, and Blair T. O'Connor, Senior Litigation Counsel, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.
Before EBEL, HARTZ, and McCONNELL, Circuit Judges.
HARTZ, Circuit Judge.
1
Petitioners Ivonne Tulengkey and Reynaldo Situmorang are natives and citizens of Indonesia. They challenge the Board of Immigration Appeals' (BIA's) decision summarily affirming an Immigration Judge's (IJ's) denial of asylum and restriction on removal. Petitioners argue that the IJ erred in finding that Ms. Tulengkey had not suffered past persecution and lacked a well-founded fear of future persecution. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition for review.**
I. BACKGROUND
2
Ms. Tulengkey was admitted to the United States on May 2, 2001, on a nonimmigrant tourist visa with authorization to remain for six months. She overstayed her visa and married Mr. Situmorang, who had arrived in this country 11 months earlier and had also overstayed his visa.
3
On June 5, 2002, Ms. Tulengkey appeared before an asylum officer and submitted an application for asylum and restriction on removal,1 including Mr. Situmorang in the application.2 On the application form Ms. Tulengkey indicated that she and Mr. Situmorang are Christians of Chinese descent. According to Ms. Tulengkey, these two characteristics place her and Mr. Situmorang at risk of serious bodily injury and death at the hands of Muslim Indonesians. Ms. Tulengkey mentioned the bombings of Christian churches, the presence of the "Bin Laden group," A.R. 983 (internal quotation marks omitted), and the Indonesian government's failure to curb Islamic extremism. Ms. Tulengkey also related incidents in which she and her family had experienced religious and ethnic animosity.
4
On June 20, 2002, Ms. Tulengkey and Mr. Situmorang were ordered to appear before an IJ and show why they should not be removed from the United States. Appearing pro se, they offered numerous news reports and government documents regarding ethnic and religious turmoil in Indonesia.
5
In an oral decision the IJ denied Ms. Tulengkey's application and ordered her and Mr. Situmorang removed to Indonesia. The IJ found that Ms. Tulengkey had not been persecuted in the past, although she had been subjected to random violence "that everyone in Indonesia must live with." A.R. 77. As for Ms. Tulengkey's fear of future persecution, the IJ found that (1) her fear was of random violence from people who had not been shown to be beyond the government's willingness or ability to control; (2) there are areas of Indonesia that are predominantly Christian, implying that she could relocate to one of those areas; and (3) "the vast majority of Christians and Chinese in [Indonesia] go about their business without interference, although they have a fear of harm or a fear of terrorism from Muslims," A.R. 77. Ms. Tulengkey retained counsel and appealed to the BIA, which affirmed without opinion.3 Ms. Tulengkey then petitioned this court for review.
II. DISCUSSION
6
By affirming the IJ's decision without opinion, the BIA made the IJ's decision the final agency determination for purposes of appellate review. Sviridov v. Ashcroft, 358 F.3d 722, 727 (10th Cir.2004). This court reviews the IJ's factual findings for substantial evidence, Estrada-Escobar v. Ashcroft, 376 F.3d 1042, 1046 (10th Cir.2004), meaning that they "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B). The IJ's legal conclusions are reviewed de novo. Hadjimehdigholi v. INS, 49 F.3d 642, 647 (10th Cir.1995).
7
To be eligible for asylum, an alien must show that she has suffered past persecution4 or has "a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); see also 8 C.F.R. § 208.13(a). To obtain restriction on removal, the alien must demonstrate that her "life or freedom would be threatened in [the proposed country of removal] because of [her] race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A); see also 8 C.F.R. § 1208.16(b). The restriction statute is satisfied by a showing that "it is more likely than not that the alien would be subject to persecution on one of the specified grounds" upon returning to her country of origin. INS v. Stevic, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984).
A. Past Persecution
8
Petitioners contend that "they suffered persecution where, in conjunction with the political [and] social turmoil in their country, they received many threats against their life." Petitioners' Br. at 12. But they fail to support this contention with a record cite, see Fed. R.App. P. 28(a)(9)(A), and their petition for judicial review mentions only two incidents. First, one day in 1990 when Ms. Tulengkey was walking home from junior high school, she was robbed and fondled by two boys who screamed "Chinese, Chinese, Chinese." A.R. 96. During the struggle with one of the assailants, Ms. Tulengkey "moved and ... caught his ring," which "hurt [her] head." A.R. 96, 113. Second, in 1998 when Ms. Tulengkey was at a wedding, about 50 Muslims armed with sticks and knives arrived and "took all the food" and "hit people who tried to stop them," yelling that "there were a lot of hungry people out there," A.R. 989, and that the wedding guests were "eat[ing] like some royalty," A.R. 100.
9
"Persecution is the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive, and requires more than just restrictions or threats to life and liberty." Chaib v. Ashcroft, 397 F.3d 1273, 1277 (10th Cir.2005) (internal quotation marks omitted). Compare Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) ("[T]wo isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some personal property and a minor injury, is not sufficiently severe to be considered persecution."), Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir.2004) ("denigration, harassment, and threats" did not constitute persecution; nor did "morally reprehensible" discrimination) (internal quotation marks omitted), and Kapcia v. INS, 944 F.2d 702, 704-05, 708 (10th Cir.1991) (past persecution had not been demonstrated by an asylum applicant who had twice been detained for two-day periods during which he was beaten and interrogated, whose parents' home had been searched, whose work locker had been repeatedly broken into, and who had been assigned poor work tasks, denied bonuses, and conscripted into the army, where he was constantly harassed), with Nazaraghaie v. INS, 102 F.3d 460, 463-64 (10th Cir.1996) (suggesting that asylum applicant's severe beating and 10-month imprisonment on account of his political opinion constituted persecution).
10
We cannot conclude that every reasonable fact-finder would be compelled to find persecution based on Ms. Tulengkey's robbery, during which she was fondled and suffered an unspecified minor head injury, and her witnessing a Muslim mob eight years later steal food and rough up guests at a relative's wedding. Accordingly, the IJ did not err in finding no past persecution.
B. Fear of Future Persecution
11
Even without past persecution, Ms. Tulengkey could still qualify for asylum by establishing a "well-founded fear of future persecution," 8 C.F.R. § 1208.13(b). Such a fear must be both subjectively genuine and objectively reasonable. Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir.2004). An asylum applicant has an objectively well-founded fear of persecution if (1) she may be singled out for persecution upon returning to her country of origin, or (2) "there is a pattern or practice in [that] country ... of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion," and the applicant belongs to and identifies with that group, 8 C.F.R. § 208.13(b)(2)(iii); see also Wiransane, 366 F.3d at 893; Woldemeskel v. INS, 257 F.3d 1185, 1190 (10th Cir.2001).
12
An asylum applicant, however, "does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant's country of nationality ... [and] if under all the circumstances it would be reasonable to expect the applicant to do so." 8 C.F.R. § 208.13(b)(2)(ii). Where, as here, the asylum applicant has not shown past persecution and the alleged future persecution is not by a government or a government-sponsored group, the asylum applicant bears the burden of establishing that relocation would be unreasonable. Id. § 208.13(b)(3)(i).
13
Ms. Tulengkey claims a fear of future persecution based on her Chinese ethnicity and Christian religion.5 The IJ rejected this claim on several grounds. We need address only the relocation issue. The IJ found that there were a few large cities and districts where the population is mostly Christian, and that relocation was possible. Ms. Tulengkey urges this court to follow Eduard v. Ashcroft, 379 F.3d 182 (5th Cir.2004), which involved the asylum claims of two Christian Indonesians, one of whom was ethnically Chinese and the other perceived as Chinese. Eduard held that the IJ, after crediting evidence that relocation could be a hardship, had applied the wrong burden of persuasion when it ultimately found that the petitioners could relocate "if necessary." Id. at 194 (internal quotation marks omitted). Regardless of the merits of Eduard, it is readily distinguishable. Here, the IJ found relocation to be possible and petitioners point to no evidence that relocation would be unreasonable. Nor do they otherwise challenge the IJ's relocation findings. Thus, their claim of a well-founded fear of future persecution necessarily fails.
III. CONCLUSION
14
Because petitioners have demonstrated no reversible error in the IJ's past-persecution and fear-of-future-persecution findings and conclusions,6 we deny the petition for judicial review.
Notes:
*
On February 4, 2005, Alberto R. Gonzales became the United States Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the Respondent in this action
**
After examining the briefs and administrative record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argumentSee Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
1
Ms. Tulengkey also checked a box on the application indicating that she sought asylum and restriction on removal under the Convention Against Torture (CAT). Although the IJ did not address the CAT, Ms. Tulengkey raised no CAT issues before the BIA and does not appear to be raising any CAT issues in the petition to this courtSee Rivera-Zurita v. INS, 946 F.2d 118, 120 n. 2 (10th Cir.1991) ("Judicial review does not extend to points the alien could have made before the Board but did not."); Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir.2002) ("Issues not raised on appeal are deemed to be waived.").
2
Although Mr. Situmorang did not apply for asylum or restriction on removal, he is a derivative beneficiary of Ms. Tulengkey's application, 8 U.S.C. § 1158(b)(3); 8 C.F.R. § 208.3(a)
3
To the extent petitioners are challenging the BIA's summary disposition of their appeal, their challenge lacks meritSee Ustyan v. Ashcroft, 367 F.3d 1215, 1218 (10th Cir.2004).
4
Past persecution may give rise to either (1) a presumption that the applicant has a well-founded fear of future persecution or (2) humanitarian asylum if the applicant demonstrates that the persecution was so severe that it provides "compelling reasons for being unwilling or unable to return." 8 C.F.R. § 208.13(b)(1)
5
Ms. Tulengkey also argues that she is subject to persecution because of her membership in a "particular social group," Petitioners' Br. at 23, which the IJ found to be "Chinese ancestry," A.R. 73. For purposes of our discussion, we need not determine whether the fact that petitioners are one-quarter Chinese places them in a protected social group,see Niang v. Gonzales, 422 F.3d 1187, 1198-99 (10th Cir.2005) (defining "membership in a particular social group"), because Ms. Tulengkey offers no cogent distinction between persecution based on her Chinese ancestry and persecution based on her Chinese ethnicity.
6
As petitioners have failed to establish that Ms. Tulengkey is eligible for asylum, it follows that they are unable to meet the more demanding evidentiary burden required for restriction on removalSee Elzour, 378 F.3d at 1149. | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4523426/ | [Cite as State ex rel. Whitt v. Given, 2020-Ohio-1351.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE EX REL. : Hon. William B. Hoffman, P.J.
STEPHEN H. WHITT : Hon. W. Scott Gwin, J.
: Hon. Earle E. Wise, Jr., J.
Relator :
:
-vs- : Case No. 2020CA0002
:
JASON GIVEN, :
PROSECUTOR OF COSHOCTON : OPINION
OHIO,
COSHOCTON COUNTY, OHIO,
AND STATE OF OHIO
Respondents
CHARACTER OF PROCEEDING: Writ of Mandamus and Prohibition
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: April 3, 2020
APPEARANCES:
For Relator For Respondents
STEPHEN H. WHITT JASON W. GIVEN
#A629461 Prosecuting Attorney
Chillocothe Correctional Institute 318 Chestnut Street
P.O.Box 5500 Coshocton, OH 43812
15802 SR 104
North Chillicothe, OH 45601
[Cite as State ex rel. Whitt v. Given, 2020-Ohio-1351.]
Gwin, J.,
{¶1} On March 13, 2020, Stephen H. Whitt filed a Petition for a Writ of Mandamus
and Prohibition against Jason Given, Coshocton County Prosecutor, and the state of
Ohio. Although it is not entirely clear the relief Mr. Whitt requests, he concludes his
Petition by stating: “I ask this court to impeach the testimony of [a witness] and grant this
defendant the right to have a fair trial under the United States Constitution, Bill of Rights,
and the Ohio Constitution * * *” [Petition, p. 10] Mr. Whitt bases this request on several
grounds. First, at trial Mr. Whitt claims there was no evidence, witnesses, or proof to
establish beyond a reasonable doubt where any of the crimes occurred and therefore, the
trial court did not have jurisdiction over him. [Id., pp. 2-3] Second, Mr. Whitt argues a
witness admitted to lying to impede and hinder an investigation, and the prosecutor
withheld this information until trial. [Id., p. 4] But for these errors, Mr. Whitt concludes he
would have been acquitted of all charges. [Id., p. 7]
{¶2} In response, Prosecutor Given filed a memorandum opposing the Petition
and requests dismissal. Although Prosecutor Given does not specifically reference Civ.R.
12(B)(6) in support of his request for dismissal, “[a] court can dismiss a mandamus action
under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted if, after
all factual allegations of the complaint are presumed true and all reasonable inferences
are made in relator’s favor, it appears beyond doubt that he can prove no set of facts
entitling him to the requested writ of mandamus.” State ex rel. Russell v. Thornton, 111
Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 9. Further, “[a] court ‘may dismiss a
complaint sua sponte and without notice when the complaint is frivolous or the claimant
obviously cannot prevail on the facts alleged in the complaint. State ex rel. Brooks v.
Coshocton County, Case No. 2020CA0002 3
O'Malley, 117 Ohio St.3d 385, 2008-Ohio-1118, 884 N.E.2d 42, ¶ 5.’ ” State ex rel. Allen
v. Goulding, 156 Ohio St.3d 337, 2019-Ohio-858, 126 N.E.3d 1104, 1106, ¶ 6.
{¶3} We grant Mr. Given’s request for dismissal because Mr. Whitt cannot prove
any set of facts entitling him to the requested relief. Mr. Whitt previously filed essentially
the identical Petition for a Writ of Mandamus and Prohibition on February 14, 2020. See
State ex rel. Stephen H. Whitt v. Jason Givens (sic), Prosecutor of Coshocton Ohio,
Coshocton County, Ohio & State of Ohio, 5th Dist. Coshocton No. 2020CA0001, 2020-
Ohio-750. [Hereinafter referred to as Whitt I]. In Whitt I, we sua sponte dismissed Mr.
Whitt’s Petition because he failed to comply with the procedural requirements for a
mandamus/prohibition complaint as set forth in R.C. 2969.25. Id. at ¶¶ 2-6.
{¶4} Although in his present Petition Mr. Whitt attached a statement setting forth
the balance in his inmate account for the preceding six months, as required by R.C.
2969.25(C), he still has not complied with the mandates of section (A)(1)-(4) of the statute.
These sections require an inmate to file an affidavit that contains a description of each
civil action or appeal action the inmate filed in the previous five years in any state or
federal court. Mr. Whitt failed to include Whitt I in his list of civil actions. Further, the statute
requires not only that an inmate identify the civil actions, but there must also be included
a brief description of the nature of the civil action or appeal; the case name and number,
and the court in which the civil action or appeal was filed; the name of each party to the
civil action or appeal; and the outcome of the civil action or appeal. R.C. 2969.25(A)(1)-
(4).
{¶5} Not one of the actions listed in Mr. Whitt’s affidavit satisfies all of these
statutory requirements. This reason alone serves as a basis to sua sponte dismiss Mr.
Coshocton County, Case No. 2020CA0002 4
Whitt’s Petition. See State ex rel. Norris v. Giavasis, 100 Ohio St.3d 371, 2003-Ohio-
6609, 800 N.E.2d 365, ¶¶ 2, 4 (Ohio Supreme Court affirmed sua sponte dismissal of writ
of mandamus for failure to comply with R.C. 2969.25(A)).
{¶6} A second ground that supports dismissal of Mr. Whitt’s Petition is the fact
that to be entitled to mandamus relief, relator must show a clear legal right to the relief
prayed for, the respondent must be under a clear legal duty to perform the requested act,
and relator must have no plain and adequate remedy in the ordinary course of law.
(Citations omitted.) State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29, 451 N.E.2d
225 (1983). A writ of mandamus commands “an inferior tribunal, a corporation, board, or
person” to perform an act. R.C. 2731.01. Here, the state of Ohio is not a party identified
in R.C. 2731.01 and therefore, is not under a clear legal duty to perform the acts
requested by Mr. Whitt.
{¶7} Finally, a third ground that supports dismissal of Mr. Whitt’s Petition
requesting prohibition relief against Prosecutor Given and the state of Ohio is the fact that
a writ of prohibition is used to limit judicial authority. In order for a writ of prohibition to
issue, petitioner must prove that: (1) the trial court is about to exercise judicial authority;
(2) the exercise of judicial authority is not authorized by law; and (3) the petitioner has no
other adequate remedy in the ordinary course of law if a writ of prohibition is denied.
(Citation omitted.) State ex rel. Smith v. Hall, 145 Ohio St.3d 473, 2016-Ohio-1052, 50
N.E.3d 524, ¶ 7. Here, the named respondents are the Coshocton County Prosecutor and
the state of Ohio. Neither party is a judge or in any way acts in a judicial capacity. A writ
of prohibition cannot lie to prevent the prosecutor or the state of Ohio from acting. See
Coshocton County, Case No. 2020CA0002 5
Bank of New York Mellon v. Chrzan, 5th Dist. Fairfield No. 17 CA 48, 2018-Ohio-508, ¶¶
3-4.
{¶8} For the above reasons, we dismiss Mr. Whitt’s Petition for a Writ of
Mandamus and Prohibition.
{¶9} The clerk of courts is hereby direct to serve upon all parties not in default
notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).
{¶10} PETITION DISMISSED.
{¶11} COSTS TO RELATOR.
{¶12} IT IS SO ORDERED.
By Gwin, J.,
Hoffman, P.J., and
Wise, Earle, J., concur
WSG:clw 0327 | 01-03-2023 | 04-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523428/ | Filed 4/7/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ALEXANDRA M. TUBBS, as Personal
Representative, etc., et al.,
G056951
Plaintiffs and Appellants,
(Super. Ct. No. 30-2017-00914927)
v.
OPINION
HARRY WILLIAM BERKOWITZ,
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Kim R.
Hubbard, Judge. Affirmed.
FitzGerald Yap Kreditor, Eoin L. Kreditor and Eric P. Francisconi for
Plaintiffs and Appellants.
Lee, Hong, Degerman, Kang & Waimey, Douglas Smith and Nathaniel J.
Tarvin for Defendant and Respondent.
* * *
This appeal arises from a dispute between Janice Tubbs and her father,
Harry William Berkowitz, regarding certain trust assets that Berkowitz transferred to
himself after his wife passed away. Berkowitz and his wife, Janice Tubbs’s parents,
created The Berkowitz Family Trust (the Trust). The Trust provided for the allocation of
assets to a surviving spouse’s trust and a marital appointment trust (the Marital Trust)
upon the death of either Berkowitz or his wife. The surviving spouse’s trust and the
Marital Trust included a general power of appointment allowing the surviving spouse to
designate a person who would receive the Trust assets. Under that power of appointment,
the surviving spouse could designate himself or herself as the person who would receive
the assets. Berkowitz exercised this power of appointment after his wife passed away
and transferred all the Trust assets to himself, effectively divesting Janice Tubbs and her
children who were contingent beneficiaries.
Tubbs filed a petition requesting the court find that Berkowitz could not
exercise his power of appointment to transfer the assets to himself. According to Tubbs,
Berkowitz’s fiduciary duties as the successor trustee limited his exercise of the power of
appointment. Berkowitz filed a motion for summary judgment contending he had the
right to transfer all assets to himself pursuant to the general power of appointment
provisions, which allowed him to act in a nonfiduciary capacity.
The court granted Berkowitz’s motion for summary judgment and found
the general power of appointment provisions gave him unfettered discretion. Because the
power of appointment was given to the surviving spouse, and not the trustee, the court
rejected Tubbs’s contention that Berkowitz’s discretion was limited by his role as the
successor trustee.
Tubbs appeals from the judgment in favor of Berkowitz and contends the
court erred because Berkowitz was bound by his fiduciary duties as trustee when he
exercised the general power of appointment. She claims Berkowitz acted in violation of
those fiduciary duties by transferring all assets to himself and acted contrary to her
2
mother’s intent to have her separate property pass to her children and grandchildren. We
disagree because a general power of appointment enables the powerholder to act in a
nonfiduciary capacity. Regardless, Berkowitz could not have breached any fiduciary
duties by doing something that was expressly authorized under the terms of the trusts.
1
We accordingly affirm the judgment.
FACTS
The Trust and General Power of Appointment
In 2005, Berkowitz and his wife created the Trust of which they were
trustees during their lifetimes. The Trust provided that, after the death of the first spouse,
the trustee (the surviving spouse) was required to allocate the Trust’s assets between the
surviving spouse’s trust and the Marital Trust. The surviving spouse’s trust would
include the surviving spouse’s separate trust estate and interest in the community trust
estate. The Marital Trust would include the deceased spouse’s separate trust estate and
interest in the community trust estate. While the surviving spouse’s trust was revocable
after the allocation, the Marital Trust was irrevocable and nonamendable. Both the
surviving spouse’s trust and the Marital Trust provided support for the surviving spouse
for life, and then on the surviving spouse’s death, the remaining assets of both trusts
would be distributed to the children’s trust and the grandchildren’s trust. Berkowitz and
his wife had two children, Tubbs and her brother, and three grandchildren (the children of
Tubbs).
1
This appeal was initially filed by Janice Tubbs. During the appeal’s
pendency, Janice Tubbs passed away. We thereafter granted a motion brought by
Alexandra M. Tubbs and Makenzie L. Tubbs, as the personal representatives of Janice
Tubbs, to substitute as the plaintiffs and appellants. For simplicity, we will refer to the
plaintiffs throughout this opinion as “Tubbs” or “Janice Tubbs,” with the understanding
that the current plaintiffs are the personal representatives of Janice Tubbs.
3
The Marital Trust also provided the surviving spouse with a general power
of appointment, which is the focus of this appeal. The relevant provision stated: “At any
time during the surviving spouse’s life, the trustee shall distribute all or any part of the
trust, including accrued income and undistributed income, to such one or more persons
and entities, including the surviving spouse or the surviving spouse’s estate, and on such
terms and conditions, outright, in trust, or by creating further powers of appointment, as
the surviving spouse shall request by an acknowledged document that specifically refers
to this power of appointment.” The surviving spouse’s trust included an identical
provision.
In 2011, Berkowitz’s wife passed away, requiring Berkowitz to allocate the
Trust’s assets as described above. In April 2017, Berkowitz filed a petition to confirm
his proposed allocation of assets, among other things. After Tubbs filed objections to
Berkowitz’s petition, Berkowitz exercised his general power of appointment and
appointed all assets in the Trust to himself, effectively divesting the contingent
beneficiaries (which included Tubbs) of their right to distributions upon Berkowitz’s
death.
Tubbs’s Petition and Berkowitz’s Motion for Summary Judgment
In December 2017, Tubbs filed a petition alleging the general power of
appointment provisions were “not intended to provide [Berkowitz with] unlimited powers
to subvert the [T]rust.” She accordingly requested the court to “interpret the powers of
appointment . . . as provisions that were not intended to provide unlimited powers of
appointment such that . . . the remainder beneficiaries . . . have vested rights to property,
which are not subject to divestment.” She also requested the court to interpret the Trust
as requiring Berkowitz to act in a fiduciary capacity given his role as the successor
trustee.
4
In March 2018, Berkowitz filed a motion for summary judgment on
Tubbs’s petition. He argued he “had the right and power” under the general power of
appointment provisions to transfer all Trust assets to himself “for any reason or no
reason.” He claimed other provisions did not qualify or restrict his powers and “any
rights of the remainder beneficiaries were entirely subordinate to [his] rights as
powerholder.” He further argued his role as trustee did not limit his rights because he
“occupied two roles with regard to the Trust.” While he had certain fiduciary obligations
as a trustee, he claimed he “was also the donee of the powers of appointment, in which
role he had no duties whatsoever to other beneficiaries . . . .”
In support of his motion, Berkowitz also filed a declaration testifying that
the attorney who drafted the Trust “specifically discussed with [Berkowitz and his wife]
the powers of appointment, and that they would allow [them], whoever survived the
other, to do whatever he or she wished with the Trust’s assets, without any limitation.”
Berkowitz further testified that he and his wife “both wished the other to be able to use
[their] assets in any way he or she chose after the death of one of [them], without regard
to [their] children’s, grandchildren’s, or any other person’s wishes.” The lawyer who
drafted the Trust filed a declaration explaining that “[t]he powers of appointment were
drafted by me and were included in the Trust to provide to the surviving trustor . . . the
absolute power and discretion to appoint some or all of the assets of the Survivor’s Trust
and Marital Trust in any way which the survivor wished, including to themselves or their
respective estates, and without regard to any other beneficiaries’ interests in the Trust.”
Although the lawyer had no recollection of discussing the powers of appointment with
Berkowitz and his wife, he declared “[i]t has always been my custom and practice to
discuss specifically with the trustors the powers of appointment and the fact that they
permit the surviving spouse unlimited discretion to use or devise the Trust’s assets in any
way they choose. . . . I have no doubt that I had a similar discussion with [Berkowitz and
his wife] prior to their execution of the Trust.”
5
Tubbs filed opposition to the summary judgment motion and argued
Berkowitz’s fiduciary duties as a trustee limited his rights to exercise his general power
of appointment. She accordingly claimed Berkowitz did not have the “absolute power”
to transfer all of the Trust’s assets to himself. She further argued Berkowitz breached an
implied covenant of good faith and fair dealing contained in the Trust and intended to
protect the beneficiaries. In support of her opposition, she also filed a declaration
testifying that her mother had made it clear that she wanted her separate property
distributed to her children and grandchildren and that the Marital Trust was irrevocable to
protect the children and grandchildren.
The Court’s Ruling
After a hearing, the court granted Berkowitz’s motion for summary
judgment. The court found the general power of appointment provision “gives the
surviving spouse as settlor essentially unfettered discretion to direct the trustee to
distribute ‘all or any part’ of the Surviving Spouse Trust and/or Marital Trust to ‘one or
more persons . . . including the surviving spouse . . . outright’ if such a request is made
‘by an acknowledged document that specifically refers to the power[s] of appointment.’”
According to the court, “the trustee has no discretion but to make the requested
distribution; the trustee ‘shall’ do so.”
The court also rejected the notion that Berkowitz’s discretion was limited
given his role as trustee because “the powers of appointment at issue [were] not given to
the Trustee, but to the surviving settlor.” The court explained: “If faced with the
exercise of a power of appointment by Harry-as-Settlor . . . , Harry-as-Trustee has no
discretion but to follow those directions.” Finally, the court held the implied covenant of
good faith and fair dealing could “not be invoked to limit or prohibit the apparently
unfettered right reserved to the surviving spouse (i.e. Harry-as Settlor) to direct the
6
distribution of any or all of the Trust assets to anyone, including himself.” The court
entered judgment in Berkowitz’s favor, and Tubbs appeals from that judgment.
DISCUSSION
Tubbs contends Berkowitz could not exercise his general power of
2
appointment to transfer the Marital Trust assets to himself. Her main argument is that
Berkowitz violated his fiduciary duties as a trustee by transferring the assets to himself.
In other words, she suggests Berkowitz could never exercise his general power of
appointment to transfer assets to himself given his role as a trustee of the Marital Trust,
which was irrevocable and nonamendable. She also claims Berkowitz acted contrary to
her mother’s intent, which was to have her separate property pass to her children and
grandchildren. Because a power of appointment enables the powerholder to act in a
nonfiduciary capacity and Berkowitz could not possibly have breached any fiduciary
duties by doing something that was expressly authorized by the Marital Trust, we
conclude the court did not err.
Standard of Review
A party is entitled to summary judgment “if all the papers submitted show
that there is no triable issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A triable issue of
material fact exists only if “the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
2
Tubbs does not dispute Berkowitz could transfer the assets in the surviving
spouse’s trust to himself. She acknowledges that trust was revocable and amendable and
included Berkowitz’s separate property and community property share.
7
845.) We review de novo the court’s grant of summary judgment. (ABCO, LLC v.
Eversley (2013) 213 Cal.App.4th 1092, 1098.) Although we conduct a de novo review,
we “must presume the judgment is correct, and the appellant bears the burden of
demonstrating error.” (Jones v. Department of Corrections & Rehabilitation (2007) 152
Cal.App.4th 1367, 1376.)
The Court Did Not Err
“‘“A power of appointment is a power conferred by the owner of property
(the ‘donor’) upon another person (the ‘donee’) to designate the persons (‘appointees’)
who will receive the property [ (‘appointive property’) ] at some time in the future.”’”
[Citations.] Such a power can be general—exercisable in favor of anyone, including the
holder of the power or that person’s estate—or limited—exercisable only in favor of the
person or class specified in the instrument creating the power. [Citation.] A trust can be
the ‘creating instrument’ that ‘creates or reserves the power of appointment.’” (Estate of
O’Connor (2018) 26 Cal.App.5th 871, 879, fn. omitted, italics added.)
Here, the power of appointment provision in the Marital Trust provided that
“the trustee shall distribute all or any part of the trust . . . to such one or more persons . . .
including the surviving spouse . . . as the surviving spouse shall request by an
acknowledged document that specifically refers to this power of appointment.” (Italics
added.) Tubbs concedes that this provision conferred a general power of appointment,
and she does not suggest Berkowitz failed to follow the proper procedures for exercising
his power of appointment. Berkowitz accordingly had the “equivalent to a grant of
absolute ownership.” (Estate of Daily (1982) 130 Cal.App.3d 993, 998; see Estate of
Kuttler (1958) 160 Cal.App.2d 332, 338 [same].) He could exercise the power in his own
favor and had “the same freedom of disposition that [he would have] over his . . . own
property.” (12 Witkin, Summary of Cal. Law (11th ed. 2019) Real Property, § 169.)
8
Despite the general power of appointment, Tubbs contends Berkowitz
could not transfer the Marital Trust assets to himself because a trustee must comply with
his fiduciary duties even if he has “‘absolute,’ ‘sole,’ or ‘uncontrolled’ discretion . . . .”
3
(Prob. Code 16081, subd. (a).) According to Tubbs, Berkowitz could not “violate his
fiduciary duties through an artifice that gives him a supposedly different role” as the
donee of the power of appointment. She suggests Berkowitz violated his “duty to
administer the trust solely in the interest of the beneficiaries” (§ 16002, subd. (a)) and his
“duty not to use or deal with trust property for [his] own profit [and to not] take part in
any transaction in which [he] has an interest adverse to the beneficiary” (§ 16004, subd.
(a).) But Tubbs ignores a key feature of a general power of appointment—it enables the
donee to act “in a nonfiduciary capacity” unlike a trustee. (§ 610, subd. (f), italics
added.) “The holder of a presently exercisable general power of appointment or power to
withdraw property from a trust [also] has the rights of a person holding the power to
revoke the trust . . . .” (§ 15803.) Tubbs cites no authority, nor has our research
uncovered any, which holds that a donee cannot exercise a general power of appointment
in his favor if he also is the trustee of an irrevocable trust.
Tubbs argues the Trust is “invalid and illusory” if “the roles of trustee and
donee under a general power of appointment” are combined with “no fiduciary
obligations owed by the trustee . . . .” She contends that “by designating the same person
as the trustee and donee under a general power of appointment without any concomitant
fiduciary duties owed by that person to the beneficiaries, the legal and equitable title to
the trust property would merge and the trust would be extinguished.” But here, the mere
existence of a power of appointment did not effect a merger because until the power of
appointment was exercised by removing all of the assets from the Trust, Tubbs and her
children retained their contingent rights as beneficiaries. Those rights would continue to
3
All further statutory references are to the Probate Code.
9
exist had the power of appointment been exercised as to fewer than all the assets. And,
as explained above, as a matter of law Berkowitz had the same rights as one who could
revoke the Trust. (§ 15803.) Berkowitz’s exercise of the power did just that. The
revocation of the Trust did not render it “invalid or illusory.” It merely implemented a
right given to the surviving spouse by the express language of the Trust.
To support her argument that “Berkowitz was bound by his fiduciary duties
at all times when interacting with the Trust,” Tubbs also points to the following Trust
provision: “The Trustee shall exercise all of the powers in the Trustee’s fiduciary
capacity and only in such capacity.” She claims this language means Berkowitz “could
not act as a donee without the strictures of his duties as trustee . . . .” We do not interpret
this provision so broadly. The provision appears in a section titled “Trust Administration
Provisions” and merely states that the trustee must exercise his powers in his fiduciary
capacity. It does not impose any restrictions on the separate role of a donee who
exercises the general power of appointment. The law governing general powers of
appointment clearly contemplates that the power can be exercised to the detriment of
other beneficiaries. (§ 610, subd. (f) [“‘Power of appointment’ means a power that
enables a powerholder acting in a nonfiduciary capacity to designate a recipient of an
ownership interest in or another power of appointment over the appointive property”
(italics added); Rest.2nd Property, Donatire Transfers (1986) § 11.4, com. a, p. 18 [“A
general power of appointment gives the donee of the power the authority to confer on
himself or herself the full benefit of the appointive assets to the exclusion of others”].)
And, as explained below, Berkowitz could not have breached his fiduciary duties by
carrying out what was explicitly required by the Marital Trust.
10
A trustee “has a duty to administer the trust according to the trust
instrument . . . .” (§ 16000.) A trustee also only has the powers conferred by the trust
instrument and the powers conferred by statute, unless limited by the trust instrument.
(§ 16200.) Here, the very language of the Marital Trust allowed Berkowitz to act in his
capacity as the surviving spouse (not the trustee) and designate himself as the recipient of
the Trust assets. The Marital Trust then required the trustee to distribute the assets to any
person designated by the surviving spouse, including the surviving spouse himself. Thus,
under the plain terms of the Marital Trust, Berkowitz (acting as the trustee) was required
to transfer the assets once he exercised the power of appointment in his favor. He could
not possibly have breached any fiduciary duties by doing something that was expressly
authorized and required under the terms of the Marital Trust. (Hearst v. Ganzi (2006)
145 Cal.App.4th 1195, 1207-1208 [trustees did not breach their fiduciary duties where
their actions were explicitly authorized by the trust].)
Finally, we note that Berkowitz’s exercise of his power of appointment
would have been unobjectionable if he had resigned as trustee before exercising the
power. In that scenario, the successor trustee (Tubbs) would have been required to
transfer the assets to Berkowitz once he exercised the power of appointment in his favor.
Tubbs claims “those are not the facts before this Court,” but we see no reason why the
result should be different where Berkowitz was both the donee and the trustee who had
no discretion but to follow the terms of the power of appointment.
11
DISPOSITION
The judgment is affirmed. Berkowitz shall recover his costs incurred on
appeal.
IKOLA, J.
WE CONCUR:
ARONSON, ACTING P. J.
FYBEL, J.
12 | 01-03-2023 | 04-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523429/ | 04/07/2020
DA 19-0336
Case Number: DA 19-0336
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 83
J.S. TURNER,
Plaintiff and Appellee,
v.
CITY OF DILLON, MONTANA;
MAYOR MICHAEL L. KLAKKEN, Individual,
Defendants and Appellants.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Beaverhead, Cause No. DV-16-13942
Honorable Kurt Krueger, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Cynthia L. Walker, Emma R. Peckinpaugh, Poore, Roth & Robinson, P.C.,
Butte, Montana
For Appellee:
Maggie Braun, Sheryl Wambsgans, Bridger Law, Bozeman, Montana
Submitted on Briefs: February 12, 2020
Decided: April 7, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Defendants City of Dillon (City or Dillon) and Dillon Mayor Michael Klakken
(Klakken) appeal from the order entered by the Fifth Judicial District Court, Beaverhead
County, denying their motions to dismiss and for summary judgment on the ground that
Plaintiff J.S. Turner’s (Turner) wrongful discharge from employment claim was barred by
the applicable statute of limitation. We reverse and remand for entry of judgment in favor
of the Defendants. The only issue on appeal is:
¶2 Did the District Court err by failing to dismiss Turner’s wrongful discharge claim
as barred by the statute of limitations?
BACKGROUND
¶3 The facts relating to the timeliness of Turner’s complaint are undisputed. Turner
was employed as Dillon’s Director of Operations, and was discharged from employment
on September 25, 2015. On September 21, 2016, Turner presented a Notice of Claim with
the City Clerk for the City of Dillon, including a copy of an unfiled complaint alleging
violation of the Wrongful Discharge of Employment Act (WDEA). See § 39-2-905, MCA.
On November 2, 2016, the City denied the claims in a letter from its legal counsel. Turner
filed his complaint in the District Court on November 7, 2016.
¶4 The City moved to dismiss the complaint pursuant to M. R. Civ. P. 12(b)(6), arguing
Turner’s claims were barred by the applicable statute of limitations. The District Court
denied the motion, reasoning:
There is no distinction drawn between the various forms of localized
government whether it be a county, city, or school district that are listed at
§ 2-9-101(5). The Defendants would like the Court to draw a distinction
2
between how counties and cities should be treated under these statutes. In
reading the statutes at issue in this case, however, the Court does not find
textual support for distinguishing between a county and a city. The timely
filing of the notice of claim upon the political subdivision provides notice of
the pending claims. Consequently, the original limitation period is tolled and
a plaintiff’s complaint is considered as timely filed with the district court
despite being filed beyond the statute of limitations. The facts currently
before the Court are similar to the facts considered in the Estate of Woody
case. The Plaintiff filed a notice of claim with the City of Dillon Clerk on
September 21, 2016, within the original statute of limitations. The filing of
the notice of claim tolled the statute of limitations for 120 days to allow the
Defendants to respond. The Defendants denied the claims it had been
presented on November 2, 2016, so the Plaintiff filed the Complaint with the
District Court on November 7, 2016. Having considered the statutory
language and the precedent of the Montana Supreme Court, this Court
concludes that the statute of limitations was tolled in this matter.
¶5 Subsequently, the City again sought dismissal of the action as time barred under the
statute of limitations by way of a motion for summary judgment, a Rule 60 motion, and a
motion for directed verdict during the jury trial, all of which were denied by the District
Court. The jury found that Klakken and the City had discharged Turner without good cause
and awarded damages of $75,612.
STANDARD OF REVIEW
¶6 “We review de novo a district court’s ruling on a motion to dismiss under M. R.
Civ. P. 12(b)(6). Whether a district court correctly applied the statute of limitations is a
question of law, also reviewed for correctness.” Estate of Woody v. Big Horn Cty., 2016
MT 180, ¶ 7, 384 Mont. 185, 376 P.3d 127 (internal citations omitted).
¶7 “This Court reviews a district court’s summary judgment ruling de novo, applying
the same criteria as the district court. Summary judgment is only appropriate where no
genuine dispute of material fact exists and the moving party is entitled to judgment as a
3
matter of law.” BNSF Ry. Co. v. Asbestos Claims Court, 2020 MT 59, ¶ 7, ___ Mont. ___,
___, P. 3d ___, (internal citations omitted).
DISCUSSION
¶8 Did the District Court err by failing to dismiss Turner’s wrongful discharge claim
as barred by the statute of limitations?
¶9 Defendants Klakken and the City of Dillon argue the District Court erred by holding
the notice of claim filed by Turner with the City Clerk tolled the applicable statute of
limitations for 120 days, as this Court has already held that the 120-day tolling provision
in § 2-9-301(2), MCA, applies only to claims against the State of Montana, and not against
political subdivisions, citing Estate of Woody. Defendants explain, consistent therewith,
this Court has repeatedly held that, despite the provision in § 2-9-301(3), MCA, for claims
against political subdivisions to be filed with “the clerk or secretary of the political
subdivision,” there is no requirement that such a claim “be ‘first presented’ or that it be
acted upon before a complaint can be filed [in the district court],” quoting Stratemeyer v.
Lincoln Cty., 276 Mont. 67, 74, 915 P.2d 175, 179 (1996).1
1
Section 2-9-301, MCA, provides:
“(1) All claims against the state arising under the provisions of parts 1 through 3 of this chapter
must be presented in writing to the department of administration.
(2) A complaint based on a claim subject to the provisions of subsection (1) may not be filed in
district court unless the claimant has first presented the claim to the department of administration
and the department has finally denied the claim. The department must grant or deny the claim in
writing within 120 days after the claim is presented to the department. The failure of the
department to make final disposition of a claim within 120 days after it is presented to the
department must be considered a final denial of the claim for purposes of this subsection. Upon
the department’s receipt of the claim, the statute of limitations on the claim is tolled for 120 days.
4
¶10 In response, Turner argues that filing a notice of claim with a political subdivision
“is a condition precedent to filing a claim in district court.” He argues that his action of
filing the notice of claim with the City “tolled the statute of limitations for 120 days in
which the City of Dillon and Mayor Klakken had an opportunity to respond to the
complaint.” Alternatively, Turner argues that his case is virtually identical to Estate of
Woody, wherein we held that the Plaintiff’s notice of claim filed with Big Horn County
tolled the limitation period for filing an action until the county’s rejection of the claim,
after which the claimant had six months to file an action, pursuant to § 27-2-209(3), MCA.
Estate of Woody, ¶ 18.2 Acknowledging that Estate of Woody involved a claim against a
county, not a city, Turner argues, echoing the District Court’s reasoning, that “[t]here is no
distinction drawn between the various forms of localized government whether it be a
county, city or school district,” and that there “is no textual support for distinguishing
between a county and a city.”
¶11 The parties agree that the limitation period for filing an action under the WDEA is
“1 year after the date of discharge.” Section 39-2-911, MCA. The parties also agree that
the City of Dillon is a municipal corporation falling within the definition of “political
The provisions of this subsection do not apply to claims that may be asserted under Title 25,
chapter 20, by third-party complaint, cross-claim, or counterclaim.
(3) All claims against a political subdivision arising under the provisions of parts 1 through 3 shall
be presented to and filed with the clerk or secretary of the political subdivision.”
2
Section 27-2-209(3), MCA, provides: “Actions for claims against a county that have been
rejected by the county commissioners must be commenced within 6 months after the first
rejection.”
5
subdivision.” Section 2-9-101(5), MCA. Finally, the parties concur that, for a claim
against a political subdivision, the claimant must present and file a claim with the clerk or
secretary of the political subdivision. Section 2-9-301(3), MCA.
¶12 The parties dispute whether filing of the claim with the political subdivision under
§ 2-9-301(3), MCA, is a prerequisite to filing suit in the district court, but this Court has
previously resolved this issue. Turner’s argument that such filings are a “condition
precedent” to filing suit is incorrect. As the City argues, in Estate of Woody, we surveyed
our case precedent at length and explained that, in Stratemeyer, “we rejected ‘our broad
statement in Rouse [v. Andaconda-Deer Lodge Cty., 250 Mont. 1, 817 P.2d 690 (1991)]
which would require a claimant to “first file” his claim with the political subdivision before
proceeding in district court.’” Estate of Woody, ¶ 16 (citing Stratemeyer, 276 Mont. at 73,
915 P.2d at 178-79). We declared that “Section 2-9-301, MCA, contains no tolling
provision for claims against political subdivisions, but still requires that plaintiffs present
and file such claims” with the political subdivision. Estate of Woody, ¶ 10. Clearly, if
there is no requirement to pre-file claims with a political subdivision before initiating suit,
there is no corresponding need to toll the applicable period of limitation for consideration
of the claim by the political subdivision.
¶13 The source of the 120-day tolling period relied upon by the District Court and argued
by Turner is § 2-9-301(2), MCA, which provides, in pertinent part, that claims against the
State of Montana “may not be filed in district court unless the claimant has first presented
the claim to the department of administration and the department has finally denied the
6
claim. . . . Upon the department’s receipt of the claim, the statute of limitations on the
claim is tolled for 120 days.” However, as we explained in Estate of Woody, ¶ 10,
§ 2-9-301, MCA, establishes this administrative procedure for pre-suit review of claims
and a corresponding 120-day tolling period only for claims made against the State, not for
claims against political subdivisions. See § 2-9-301(3), MCA. Therefore, nothing
prevented Turner from filing his suit against the City at any time during the limitation
period, whether or not the City was considering the notice of claim.
¶14 Title 27, generally governing statutes of limitation, includes a provision regarding
claims against a county that can have the effect, as we explained in Estate of Woody, of
either shortening or lengthening the applicable period of limitation for the claim, depending
upon the timing of the filing of the notice of claim with the county, and the county’s
response thereto. Estate of Woody, ¶ 18. As noted above, § 27-2-209(3), MCA, provides
that “[a]ctions for claims against a county that have been rejected by the county
commissioners must be commenced within 6 months after the first rejection.” We held in
Estate of Woody, ¶ 18, that Rouse had established that, under § 27-2-209(3), MCA, “when
a plaintiff timely files a claim against a county, the period of limitations is tolled and the
six month limitation period for filing in district court does not begin to run until the
claimant receives notice of the county’s denial of the claim.” Because Big Horn County
never denied or responded to the Estate’s claim, we concluded that “the original limitation
period was tolled and the six-month limitation period never began,” rendering the Estate’s
claim still timely. Estate of Woody, ¶ 19. Title 27 provides this unique statute of limitation
7
for counties only, and not for other political subdivisions. Further, we have declined to
revisit Rouse’s application of this limitation statute. Estate of Woody, ¶ 20. In the case
before us here, involving a claim against a municipality, this unique limitation statute is
not at issue.
¶15 Turner heavily relies upon our holding in Estate of Woody and asks that we reach
the same outcome by extending the holding there to claims against municipalities.
However, the political subdivision defendant in Estate of Woody, as in Stratemeyer and
Rouse, was a county, for which claims are governed by the unique limitation statute in
§ 27-2-209(3), MCA. As noted, no tolling provision exists with respect to municipal
corporations and nothing prevented Turner from filing his claim with the District Court at
the time he presented his claim to the City Clerk, or earlier. While we are sympathetic to
Turner’s public policy argument that a tolling period should be implied “to save
unnecessary litigation expenses by affording an opportunity to amicably adjust and settle
all claims before suit is brought,” Turner and the District Court were simply incorrect that
“there is no distinction drawn between the various forms of localized government” under
the law. Our cases have noted the distinction, and we cannot “inexplicably read” a
requirement where the statute language does not provide one. Estate of Woody, ¶ 16;
Stratemeyer, 276 Mont. at 73, 915 P.2d at 178. “We construe statutes as they are written,”
Montanans v. State, 2006 MT 277, ¶ 53, 334 Mont. 237, 146 P.3d 759, and must neither
“insert what has been omitted nor omit what has been inserted.” Section 1-2-101, MCA;
see also Glendive Med. Ctr., Inc. v. Mont. Dep’t of Pub. Health and Human Svcs., 2002
8
MT 131, ¶ 15, 310 Mont. 156, 49 P.3d 560 (“The function of the court with respect to
statutory construction is to interpret the intention of the statute or rule, if at all possible,
from the plain meaning of the words, and if the meaning of the statute or rule can be
determined from the language used, the court is not at liberty to add or to detract from the
language therein. Additionally, absent ambiguity in the language of the statute or rule, this
Court may not consider legislative history or any other means of statutory construction.”).
¶16 As a practical matter, it is unfortunate that the statutes provide inconsistent
procedures and timelines against government entities, particularly among political
subdivisions. Such inconsistencies can be confusing and create a “procedural trap for the
unwary.” Martz v. Beneficial Montana, Inc., 2006 MT 94, ¶ 24, 332 Mont. 93, 135 P.3d
790. Almost 30 years ago, in Rouse, Justice Fred J. Weber noted the practical problem at
issue here, and flagged the issue for the Legislature, which we can only repeat:
Unfortunately the legislature did not make any provision with regard to the
time limitations on claims made to a political subdivision. Under
[§ 2-9-301(3), MCA], such claims are required to be presented to the clerk
or secretary of the political subdivision. There is no reference to the manner
of responding on the part of the political subdivision or its clerk, nor is there
any reference to an extension for statute of limitation purposes. I would hope
that this absence will be noted by the legislature and cared for in future
legislation.
Rouse, 250 Mont. at 10, 817 P.2d at 695 (Weber, J., concurring).
¶17 Because there is no further dispute over the applicable statute of limitation, we must
conclude that Turner failed to timely file his complaint in the District Court within the one
year limitation period, as required by the WDEA. Section 39-2-911, MCA. We conclude
9
the District Court erred by not dismissing Turner’s complaint on the basis that it was time
barred.
¶18 Reversed and remanded for entry of judgment in favor of the Defendants.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
10 | 01-03-2023 | 04-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3150891/ | United States Court of Appeals
for the Federal Circuit
______________________
October 29, 2015
ERRATUM
______________________
Appeal Nos. 2015-1071, 2015-1105
______________________
ATLAS IP, LLC,
Plaintiff-Appellant
v.
MEDTRONIC, INC., MEDTRONIC USA, INC.,
MEDTRONIC MINIMED, INC.,
Defendants-Cross-Appellants
______________________
Decided: October 29, 2015
Precedential Opinion
______________________
The following change has been made on page 17, line 3 of
the opinion: change “sets” to “refers to setting.” | 01-03-2023 | 10-30-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3970411/ | Conviction for possessing intoxicating liquor for purpose of sale, punishment one year in the penitentiary.
Appellant's motion for new trial was overruled on May 17, 1927. The statement of facts shows to have been filed on *Page 464
August 17, 1927. The statute allows ninety days for the filing of statement of facts, after the overruling of the motion for new trial. The statement of facts was filed two days too late. Same cannot be considered.
There are three bills of exception. Each has been carefully considered. We find nothing in any calling for discussion here. None present error.
The judgment will be affirmed.
Affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523437/ | 04/07/2020
DA 18-0164
Case Number: DA 18-0164
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 81
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CHARLES EDWARD JARDEE,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Fallon, Cause No. DC 2013-03
Honorable Nickolas C. Murnion, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Damon Martin, Assistant
Attorney General, Helena, Montana
Darcy L. Wassmann, Fallon County Attorney, Baker, Montana
Submitted on Briefs: January 22, 2020
Decided: April 7, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Charles Edward Jardee (Jardee) appeals the order denying his request for credit for
time served while he was released on bail during the pendency of his probation revocation
proceeding. We affirm, and restate the issue as follows:
Did the District Court err by denying Jardee’s request for “street time” credit
toward his revocation sentence under § 46-18-203(7)(b), MCA (2017)?
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In March of 2014, the District Court sentenced Jardee for two counts of felony
partner or family member assault. Jardee was sentenced to five years in the Montana State
Prison fully suspended for count one, and a consecutive five years with two years
suspended for count two. Jardee began serving the seven year suspended portion of his
sentence in March of 2017.
¶3 In August of 2017, the State filed a petition to revoke Jardee’s suspended sentence
after Jardee’s girlfriend reported to law enforcement that Jardee had been drinking
excessively, leading him to be verbally and physically abusive toward her. She told police
Jardee had shouted obscenities at her, spit chew in her face, and broken her furniture. Upon
further investigation, the State discovered numerous violations of sentencing conditions by
Jardee. Jardee reported to probation and parole that he was living at 612 East Montana
Avenue in Baker, Montana, but he was actually living with his girlfriend at 514 W. Fallon
Avenue in Baker. Jardee also failed to register this correct address on the violent offender
registry. Under the terms of his sentence, Jardee was not to “marry, cohabit with, date or
socialize with any female,” and he was supposed to report his correct address, not only
2
with probation and parole, but on the violent offender registry as well. Additionally, upon
searching Jardee’s home, police discovered a firearm, which Jardee was prohibited from
possessing. Upon his arrest on or about August 3, 2017, police administered a preliminary
breath test, which indicated Jardee’s blood alcohol level was .09. Jardee’s sentence
prohibited him from consuming alcohol.
¶4 Jardee was arraigned in the revocation proceeding on September 5, 2017, after
which he was released upon posting bond. In December of 2017, after hearing, the District
Court found the State had proven by a preponderance of the evidence that Jardee violated
the terms of his suspended sentence as alleged in the revocation petition. At a subsequent
dispositional hearing, Jardee requested the District Court grant him credit against his
sentence pursuant to § 46-18-203(7)(b), MCA (2017), for four months of “street time” he
had served on his sentence between his release on bond and sentencing. The District Court
denied Jardee’s request. In its oral pronouncement, the District Court stated:
Reasons for the sentence . . . the underlying offenses are significant, they are
assaultive behavior, they are to the point that the previous sentencing Judge
ordered you not to have any contact with – with women which you violated.
I haven’t seen that condition before. . . . it was significant and you flagrantly
violated it because from the time you were released you did not . . . live with
your Mother, you lived in your house with your Girlfriend. The violations
of the probation are significant from the failure to reside in your residence,
you basically lied about that, you continue to lie about that to your . . .
probation officer.
(Emphasis added.) The District Court entered its Revocation, Judgment and Sentencing
Order on January 29, 2018, stating in relation to Jardee’s sentence:
[T]here are numerous violations. The Defendant is 50 years old and has
waited this long to get his life in [o]rder. It is apparent to the Court that the
3
Defendant has engaged in a lot of criminal thinking. The Defendant lost his
job, drove under the influence of alcohol, treated [his girlfriend] poorly, who
is a person he should not have been around, and the Defendant has had other
violations that have not been brought before this Court. It isn’t 1 or 2 things,
it was a whole pattern of his life and the Defendant is asking the Court to
reward him for the last 3 months of his good behavior.
The District Court revoked Jardee’s suspended sentence and committed him to the
Montana State Prison for five years on his first count, and two years on his second, without
applying any credit for street time. Jardee appeals the denial of his request for street time
credit.
STANDARD OF REVIEW
¶5 This Court reviews a district court’s decision to revoke a suspended sentence to
determine whether the court abused its discretion. Additionally, “revocation decisions
involve both legal and factual findings[,]” and we review a district court’s legal findings
de novo and its factual findings for clear error. “A district court’s factual findings are
clearly erroneous if they are not supported by substantial credible evidence, if the court
misapprehended the effect of the evidence, or if a review of the record leaves this Court
with the definite firm conviction that a mistake has been made.” State v. Johnson, 2018
MT 277, ¶ 10, 393 Mont. 320, 430 P.3d 494. Finally, “the interpretation and construction
of a statute is a matter of law and we review whether the district court interpreted and
applied a statute correctly de novo.” State v. Triplett, 2008 MT 360, ¶ 13, 346 Mont. 383,
195 P.3d 819.
4
DISCUSSION
¶6 Did the District Court err by denying Jardee’s request for “street time” credit
toward his revocation sentence under § 46-18-203(7)(b), MCA (2017)?
¶7 Jardee argues the District Court erred by denying him street time credit for the
period between his release on bond and his revocation sentencing because the 2017 version
of § 46-18-203(7)(b), MCA, required that credit be given for any period of time where
there is no “record or recollection of the probation and parole officer” that he violated the
terms of his sentence. Jardee contends there was no evidence in the “record or recollection”
that he committed any violation during those four months. The State responds that, while
“the black and white interpretation of this statute may seem clear, the application of the
statute is problematic, especially where the record reflects a pattern of repetitive
non-compliance.” Additionally, the State argues Jardee’s argument fails to account for his
pattern of non-compliance, and “the ongoing violations that permeated [Jardee’s] time
under supervision were circumstantially supported by the record to have continued after
his release on bond.”
¶8 When interpreting a statute, this Court will not look beyond its plain language if the
language is clear and unambiguous. Mont. Sports Shooting Ass’n v. State, 2008 MT 190,
¶ 11, 344 Mont. 1, 185 P.3d 1003. As such, “we interpret a statute first by looking to its
plain language. We construe a statute by reading and interpreting the statute as a whole,
without isolating specific terms from the context in which they are used by the
legislature. . . . Statutory construction should not lead to absurd results if a reasonable
interpretation can avoid it.” City of Missoula v. Fox, 2019 MT 250, ¶ 18, 397 Mont. 388,
5
450 P.3d 898 (quoting Mont. Sports Shooting Ass’n, ¶ 11) (internal quotations omitted).
Finally, “in construing a statute, this Court presumes that the legislature intended to make
some change in existing law by passing it.” Cantwell v. Geiger, 228 Mont. 330, 333-34,
742 P.2d 468, 470 (1987) (citing State ex rel. Dick Irvin, Inc. v. Anderson, 164 Mont. 513,
524, 525 P.2d 564, 570 (1974); see also Mont. Sports Shooting Ass’n, ¶ 15.
¶9 Prior to the 2017 revisions, § 46-18-203(7)(b), MCA, provided:
If a suspended or deferred sentence is revoked, the judge shall consider any
elapsed time and either expressly allow all or part of the time as a credit
against the sentence or reject all or part of the time as a credit. The judge
shall state the reasons for the judge’s determination in the order. Credit must
be allowed for time served in a detention center or home arrest time already
served.
The Legislature amended the statute in 2017 as part of a larger effort to enact reforms of
Montana’s criminal justice system. The statute now provides:
If a suspended or deferred sentence is revoked, the judge shall consider any
elapsed time, consult the records and recollection of the probation and parole
officer, and allow all of the elapsed time served without any record or
recollection of violations as a credit against the sentence. If the judge
determines that elapsed time should not be credited, the judge shall state the
reasons for the determination in the order. Credit must be allowed for time
served in a detention center or for home arrest time already served.
(Emphasis added.)
¶10 Examination of the plain language of the statute reveals that the prior version
granted discretion to a sentencing court to either grant or deny credit for street time: “the
judge shall consider any elapsed time and either expressly allow all or part of the time as a
credit against the sentence or reject all or part of the time as a credit.” (Emphasis added.)
However, the 2017 version of the statute eliminates this discretion, requiring credit if there
6
have been no violations: “the judge shall . . . allow all of the elapsed time served without
any record or recollection of violations as a credit against the sentence.” (Emphasis added.)
We acknowledge the State’s concern that the language of the 2017 revisions could be
problematic in its application, in that the parties and district court might be tasked with
parsing out periods of time for compliance determination, but our precedent, cited above,
requires that we apply the plain meaning of a statute when such meaning is unambiguous.
Thus, here, street time credit could not be denied during the period in question merely upon
the State’s argument that Jardee’s many probation violations “permeated” the entirety of
his time on supervision. The statute now requires a specific demonstration of a “record or
recollection of violations” in the period in question to defeat the credit.1
¶11 Consequently, it is now insufficient for a district court to base a denial of street time
credit solely on a “pattern” of criminal behavior, as the District Court stated in the written
judgment here. Similarly, the State’s argument that Jardee’s history with his girlfriend
“demonstrat[ed] a pattern of manipulation [and] abuse . . . consistent with non-compliance
while under supervision[,]” is insufficient because there is no evidence in the “record or
recollection” demonstrating Jardee abused, manipulated, or contacted his girlfriend—
actions that violated the terms of his suspended sentence—after his release. The State must
1
The State relies upon orders issued by this Court denying street time credit in Blacker v. O’Fallon,
No. OP 18-0530, 395 Mont. 524, 437 P.3d 116 (table) (March 26, 2019) and Blacker v. O’Fallon,
No. OP 18-0530, 395 Mont. 522, 437 P.3d 113 (table) (February 12, 2019), but in response to
those habeas corpus petitions, the State was able to produce record evidence of violations during
the period in question, and we determined the petitioner had not satisfied his burden. See
§ 46-22-101, MCA. Jardee’s appeal is from his revocation proceeding in which the State has the
burden of proving, under the 2017 statute, whether street time should be denied. See
§ 46-18-203(6), MCA.
7
now point to an actual violation by the defendant, in the relevant time period, found in the
record or recollection of the probation officer, to establish a basis for denial of street time
credit for that period, here, between the release on bond and sentencing. Likewise, a district
court must “state the reasons” for a denial of credit based upon the record or recollection
of the probation officer to deny street time credit for the relevant time period. Section
46-18-203(7)(b), MCA (2017).
¶12 We conclude the District Court did so in its oral pronouncement of sentence, based
upon Jardee’s violation of his continuing obligation to report his proper address to
probation and parole.2 As noted above, during its oral pronouncement, the District Court
stated:
From the time you were released you did not . . . live with your Mother, you
lived in your house with your Girlfriend. The violations of probation are
significant from the failure to reside in your residence, you basically lied
about that, you continue to lie about that to your . . . probation officer.
(Emphasis added.) Further, this finding is supported by a substantial evidence in the
record. Jardee’s probation and parole officer testified:
Q. So, is – can you tell us what residence . . . the Defendant has reported to
you as to where he’s residing?
A. He reported that he resides at 612 East Montana Avenue.
Q. . . . has that ever changed in the last couple of years or has he always
reported that address?
A. He’s always reported that address and when we’d meet with him during
reporting I’d always . . . ask and make sure that he’s at that residence only
and he always assured that’s the only place he was staying.
2
An oral pronouncement of a sentence is a “legally effective and valid final judgment,” and
controls in situations in which a conflict exists between the oral and written judgments. State v.
Kroll, 2004 MT 203, ¶ 18, 322 Mont. 294, 95 P.3d 717.
8
(Emphasis added.) Thus, despite always reporting to probation and parole that his
residence was 612 East Montana Avenue, Jardee admitted he was actually living at 514 W.
Fallon Avenue during the time the revocation proceedings were pending, although at that
point his girlfriend did not also reside there. Therefore, as the District Court properly
concluded, there was evidence in the record indicating that Jardee was violating the terms
of his suspended sentence during the relevant period, by failing to report his correct address
to probation and parole. Although it would have been helpful for this purpose for the
District Court’s reasoning to have been more developed, we nonetheless conclude it was
sufficient to satisfy the 2017 statute.
CONCLUSION
¶13 Under § 46-18-203(7)(b), MCA (2017), a district court has no discretion to deny
credit for “street time” served under a sentence. Rather, street time must be credited for
time served unless there is evidence in the record or in the recollection of the probation
officer that the defendant committed a violation of his sentence during the relevant period.
Here, the District Court did not err by denying street time credit for the period in question,
because the court referenced a violation that had been committed by Jardee during the
relevant period as demonstrated by record or recollection of the probation officer, which
was supported by substantial evidence.
¶14 Affirmed.
/S/ JIM RICE
9
We concur:
/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
Justice Laurie McKinnon, specially concurring.
¶15 In my opinion, the Court misconstrues § 46-18-203(7)(b), MCA, and reaches a
conclusion which contravenes the plain language of the statute, and simply makes no sense.
The Court interprets § 46-18-203(7)(b), MCA, to allow an offender credit for elapsed time
between the issuance of a petition for revocation by his probation officer filed in the
offender’s court file, and the hearing wherein the court concludes the State has proven, in
whole or part, the contents of that petition. Under the plain language of the statute, there
is a “record or recollection of violations” which the court subsequently concludes, in fact,
exists. The offender, consequently, cannot argue he is “without any record or recollection
of violations,” a requirement for credit for time under the statute. The Court’s
interpretation of § 46-18-203(7)(b), MCA, adds a requirement not otherwise present; a
judge must now consider elapsed time during a period for which there is undisputedly a
record of a violation as evidenced by the court’s revocation of the suspended or deferred
sentence.
¶16 When a petition for revocation is filed by a probation officer and the offender is
awaiting disposition on that petition, a “record or recollection of violations” has been made
by the “probation [or] parole officer” by filing the petition. Further, the court, because it
10
has revoked the offender’s sentence, necessarily determined that there was at least one
violation alleged in the petition proven by a preponderance of the record evidence produced
at the hearing. The statute does not require the court to assess the period of time following
the probation officer’s filing of a petition, which constitutes the probation officer’s
“record and recollection” of violations, and, additionally, when the court concludes there
was a violation. Such a construction is both nonsensical and contravenes the plain language
of § 46-18-203(7)(b), MCA.
¶17 In 2017, the Legislature amended § 46-18-203(7)(b), MCA, as follows (added text,
italicized; deleted text, strike throughs):
If a suspended or deferred sentence is revoked, the judge shall consider any
elapsed time, consult the records and recollection of the probation and
parole officer, and either expressly allow all or part of the elapsed time
served without any record or recollection of violations as a credit against the
sentence or reject all or part of the time as a credit. The If the judge
determines that elapsed time should not be credited, the judge shall state the
reasons for the judge’s determination in the order. Credit must be allowed
for time served in a detention center or for home arrest time already served.
¶18 The Court reads more into the amendment than is there. First, as already discussed,
under the plain language of the statute an offender whose sentence has been revoked is not
entitled to credit for time pending a hearing on his revocation. However, the Court also
concludes the plain language of the former version of the statute granted discretion to the
judge to give credit for street time, whereas “the 2017 version of the statute eliminates this
discretion, requiring credit if there has been no violations,” Opinion, ¶ 10. The Court
supports its conclusion by misconstruing the statute’s terms: “the judge shall . . . allow all
11
of the elapsed time served without any record or recollection of violations as a credit
against the sentence.” Opinion, ¶ 10.
¶19 I am not convinced such a pronouncement regarding the removal of judicial
discretion in giving credit for time is accurate. The plain language of the statute provides
that the court “shall consider any elapsed time”; “consult the records and recollection of
the probation . . . officer”; and “allow all of the elapsed time served without any record or
recollection of violations as a credit.” Section 46-18-203(7)(b), MCA (emphasis added).
What is clearly mandatory is that a judge must consider elapsed time. However, while a
judge is to “allow” credit for time served when there is no “record or recollection” of a
violation, the judge still exercises discretion in determining whether there is a record or
recollection of violations, following consideration of the record and consultation with the
probation officer. That judicial discretion is still a factor in assessing elapsed time is
buttressed by the next sentence in the statute: “If the judge determines that elapsed time
should not be credited, the judge shall state the reasons for the determination in the order.”
Section 46-18-203(7)(b), MCA (emphasis added).
¶20 Finally, implicit in the Court’s analysis, and what I find very troubling, is that under
the Court’s interpretation of § 46-18-203(7)(b), MCA, “all of the elapsed time served
without any record or recollection of violations” potentially means that if the alleged
violation did not happen on that day, then the offender gets credit, as the statute is no longer
discretionary. This will involve the judge in an assessment of the type of violation; whether
it was of a continuing nature; and, if so, the number of days it continued. Furthermore, an
12
offender who has not been compliant while on probation but nonetheless is given the
opportunity by his probation officer to correct his behavior could presumably argue at a
subsequent revocation hearing that he is entitled to the elapsed time because no formal
violation was filed. At a revocation hearing, the standard of proof is preponderance of the
evidence; however, the statute is silent as to the standard of proof for a “recollection” or
what, short of filing a petition, constitutes a “record.” While I appreciate the legislative
objective of promoting rehabilitation and fairness in sentencing, the fact remains that the
revoking judge—who is familiar with the original offense, imposed the original sentence,
and knows the offender—can impose any sentence the judge deems appropriate and will
make the necessary adjustments to allow for elapsed time the offender has served,
including the time after the petition for revocation has been filed. Accordingly, the statute
presents numerous obstacles for the trial courts to navigate; however, the period of time
following commencement of a revocation proceeding and including the time until the court
finds a violation occurred is clearly time under the statute for which an offender cannot
claim that he was without a violation. By virtue of the probation officer’s petition and
report and the court’s revocation, the record establishes a violation.
¶21 I specially concur only in the result reached by the Court, and do not believe we
have correctly interpreted the statute based on the facts presented here. The Court’s
interpretation contravenes the plain language of the statute; were we simply to apply its
terms, we inevitably would have to conclude that an offender whose suspended or deferred
sentence has been revoked has a record of a violation for purposes of the statute once a
13
petition is filed—he is not entitled to credit for time while waiting for his revocation
hearing.
/S/ LAURIE McKINNON
14 | 01-03-2023 | 04-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4523435/ | HTTP/1.1 200
Date: Tue, 07 Apr 2020 22:08:25 GMT
Content-Type: application/pdf | 01-03-2023 | 04-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3840389/ | In Banc.
We see no merit in this appeal and the judgment of the lower court is affirmed.
AFFIRMED. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523444/ | Petition for Writ of Mandamus Conditionally Granted, Stay Order Lifted, and
Opinion filed April 7, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-01010-CV
IN RE WARRIOR ENERGY SERVICES CORP., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
80th District Court
Harris County, Texas
Trial Court Cause No. 2019-46881
OPINION
Relator and defendant below, Warrior Energy Services Corp., seeks
mandamus relief from an order compelling it to deposit $2,064,042.19 into the trial
court’s registry before the claims asserted against it have been adjudicated. See Tex.
Gov’t Code § 22.221; see also Tex. R. App. P. 52. The underlying lawsuit is a
breach of contract action against Warrior. Plaintiff and real party in interest, Oilfield
Specialties, LLC, alleges Warrior breached an agreement to pay royalties.
We conditionally grant the petition for writ of mandamus. Our stay order of
December 30, 2019 is lifted.
Background
The underlying dispute concerns royalties for a technology system. While
employed by Warrior, Don Umphries and Gabe Williger created certain products
and processes known as the WIPR technology. Warrior licensed the right to use
WIPR from Umphries and Williger for 25% of the gross revenues related to WIPR.
Oilfield is a company created by Umphries and Williger that invoices Warrior. The
main dispute is whether the 25% royalty applies per person or collectively.
Oilfield sued Warrior in 2018 for breach of contract (the “2018 Lawsuit”).
Oilfield contends Warrior owes 25% of WIPR gross revenue to Umphries and a
separate 25% to Williger. Warrior disputes that interpretation, contending it paid
lesser amounts for seven years until, in the 2018 Lawsuit, Oilfield “reversed course”
and claimed Warrior was required to pay a total of 50% of WIPR gross revenue. A
jury agreed with Oilfield, and the trial court signed a judgment in Oilfield’s favor
for over $11 million. Warrior superseded the judgment by filing a supersedeas bond
and appealed the judgment.1
After the jury returned its verdict but before the trial court signed the judgment
in the 2018 Lawsuit, Oilfield filed a second suit (the “2019 Lawsuit”)—the one
underlying this mandamus proceeding. The 2018 Lawsuit was for past damages,
and the 2019 Lawsuit is said to be for contract damages accruing for breaches since
the 2018 verdict and for a permanent injunction.
1
The appeal is pending in this court as No. 14-20-00069-CV, Warrior Energy Servs. Corp. v.
Oilfield Specialties, LLC. Warrior filed a supersedeas bond on January 17, 2020, and the district
clerk has approved it. Thus, enforcement of the judgment in the 2018 Lawsuit is stayed. Tex. R.
App. P. 24.1(f).
2
In early December 2019, Oilfield filed a verified motion in the 2019 Lawsuit
asking the court to require Warrior to deposit money into the court’s registry in
anticipation of the damages Oilfield contended it would establish as a result of the
breaches since the 2018 Lawsuit verdict. The motion alleges Warrior’s financial
situation is precarious for various reasons. The trial court held a hearing on the
motion on December 18, 2019, and signed an order granting the motion the same
day. The December 18 order requires Warrior to deposit (1) $2,064,042.19 into the
court’s registry by December 25, 2019; and (2) an amount equal to 50% of gross
revenue related to WIPR on a monthly basis until the 2019 Lawsuit is resolved.
Before the deadline for compliance, Warrior petitioned for a writ of
mandamus and filed a motion for emergency stay of the order. We granted the
emergency relief in part, staying the requirement for ongoing future deposits. 2 On
January 2, 2020, the trial court signed a modified order sua sponte that repeats the
requirement for an initial deposit of $2,064,042.19 but deletes the requirement for
ongoing future deposits. Warrior has filed a supplemental petition complaining of
the modified order as well. Because the December 18 and January 2 orders both
require a $2,064,042.19 initial deposit, we refer to them as a single order.
Issues
As respondent has withdrawn the portion of the order requiring future
deposits, we limit our consideration of Warrior’s petition to the portion of the order
compelling the initial deposit. Warrior contends the trial court’s order amounts to a
writ of attachment governed exclusively by Civil Practice and Remedies Code
chapter 61. Because chapter 61’s requirements were not satisfied, Warrior asserts,
the trial court abused its discretion in compelling the deposit. Warrior alleges it
2
The request for emergency relief regarding the initial deposit became moot when Warrior
deposited that amount into the trial court’s registry on December 26, 2019.
3
lacks an adequate appellate remedy to cure the trial court’s error because it is
deprived of the use of its money, the orders will be moot by the time an appeal from
a final judgment may be taken, and the parties’ litigation footing has become unfairly
imbalanced.
Oilfield maintains the trial court’s authority to sign the orders could derive
from either of two sources: chapter 61 or the court’s inherent authority. Oilfield
expressly disclaims reliance on chapter 61, however, and asserts the court acted
within its discretion under its inherent authority. 3 Oilfield offers no argument as to
whether Warrior lacks an adequate appellate remedy.
Mandamus Standard
To obtain mandamus relief, a relator generally must show both that the trial
court clearly abused its discretion and that relator has no adequate remedy at law,
such as an appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.
2004) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a
decision so arbitrary and unreasonable as to amount to a clear and prejudicial error
of law or if it clearly fails to analyze the law correctly or apply the law correctly to
the facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005)
(orig. proceeding) (per curiam). “The relator must establish that the trial court could
reasonably have reached only one decision.” Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992) (orig. proceeding). We review the trial court’s determination of the
legal principles controlling its ruling with limited deference. See id.
3
Although Oilfield requested permanent injunctive relief in its petition, it did not seek a temporary
injunction to compel payment of anticipated damages into the registry.
4
Analysis
A. Abuse of discretion
Effectively, the trial court’s order is a pre-judgment writ of attachment.4 This
court conditionally granted mandamus relief as to a similar order in In re Wakefield.
2010 WL 5237857, at *1. There, a party sued Wakefield for breach of contract, and
the trial court ordered Wakefield to deposit into the registry, before trial, a sum
certain allegedly resulting from the breach. Id. We held the trial court abused its
discretion because the requirements for a writ of attachment under chapter 61 were
not met. Id. Because pre-judgment attachment is a harsh, oppressive remedy, the
statutes and rules governing this remedy must be strictly followed. 5
What was true in In re Wakefield is true here. Oilfield did not comply with
chapter 61’s strict requirements, and it expressly disclaims reliance on chapter 61 to
support the order. Generally, a trial court abuses its discretion if it compels a pre-
judgment deposit into the registry when the movant does not meet chapter 61’s
requirements. Id. at *1.
Oilfield argues the order is justifiable on another ground: inherent authority.
According to Oilfield, inherent authority empowers the court to require a pre-
adjudication deposit of anticipated contract damages into the registry when a party’s
financial wherewithal to satisfy a potential future judgment is questionable. Oilfield
4
In re Wakefield, No. 14-10-01160-CV, 2010 WL 5237857 (Tex. App.—Houston [14th Dist.]
Dec. 15, 2010, orig. proceeding) (mem. op.); Sharman v. Schuble, 846 S.W.2d 574, 576 (Tex.
App.—Houston [14th Dist.] 1993, orig. proceeding); see In re Grupo Consejero Mundial, S.A. de
C.V., No. 13-11-00493-CV, 2012 WL 1073349, at *6 (Tex. App.—Corpus Christi Mar. 29, 2012
orig. proceeding) (mem. op.); Behringer Harvard Royal Island, LLC v. Skokos, No. 05-09-00332-
CV, 2009 WL 4756579, at *3 (Tex. App.—Dallas Dec. 14, 2009, orig. proceeding) (mem. op.).
5
In re Argyll Equities, LLC, 227 S.W.3d 268, 271 (Tex. App.—San Antonio 2007, orig.
proceeding); see S.R.S. World Wheels v. Enlow, 946 S.W.2d 574, 575 (Tex. App.—Fort Worth
1997, orig. proceeding); Block 145, Ltd. v. Pace, 617 S.W.2d 820, 822 (Tex. App.—Houston [14th
Dist.] 1981, writ ref’d n.r.e.).
5
cites a line of cases rooted in Castilleja v. Camero, 414 S.W.2d 431, 433-34 (Tex.
1967).6
In Castilleja, Severa Camero obtained a finding that Alberto Castilleja had
$17,000 in a bank in Mexico that belonged to Camero. Id. at 432. The court signed
a judgment awarding Camero $17,000 and permanently enjoining Castilleja from
assigning, removing, or dissipating that sum, except to deposit it into the court’s
registry as supersedeas. Id. Castilleja appealed the judgment but filed no
supersedeas bond and did not deposit the money into the registry. Id. Camero
attempted to execute the judgment but was unsuccessful. Id. at 432-33. Camero
then filed a second lawsuit for a writ of mandamus compelling Castilleja to deposit
the sum into the registry. Camero alleged that Castilleja was insolvent, that the
specific fund was in Mexico and outside the court’s jurisdictional reach, and that
Castilleja threatened to leave the jurisdiction. Id. at 433. The trial court granted the
writ, and the court of appeals affirmed. The supreme court also affirmed, concluding
the order conserved the disputed property pending final judgment on the merits of
the appeal. As the court noted: the trial court’s injunction did not protect the fund
because it was in Mexico and out of the court’s or Camero’s reach; Castilleja did not
supersede the judgment; and Castilleja testified that he did not intend to satisfy the
judgment even if he lost the appeal. Id. The court stated that when ownership of a
specific fund is in dispute and the fund was in danger of being lost or depleted, a
court can order payment of the disputed funds into its registry until ownership is
finally determined. See id. The thrust of the court’s ruling was that a trial court may
6
Oilfield’s citations include: In re G-M Water Supply Corp., No. 12-16-00223-CV, 2016 WL
6873181, at *2 (Tex. App.—Tyler Nov. 22, 2016, orig. proceeding) (mem. op); Zhao v. XO Energy
LLC, 493 S.W.3d 725, 736-37 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (appeal consolidated
with mandamus); In re Reveille Res. (Tex.) Inc., 347 S.W.3d 301, 304 (Tex. App.—San Antonio
2011, orig. proceeding); Behringer, 2009 WL 4756579, at *4; N. Cypress Med. Ctr. v. St. Laurent,
296 S.W.3d 171, 178-79 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Prodeco Expl., Inc. v.
Ware, 684 S.W.2d 199, 201 (Tex. App.—Houston [1st Dist.] 1984, no writ.).
6
sign post-judgment orders not inconsistent with the original judgment to conserve
the property—there, a specific fund, not a money judgment—which is the subject of
appeal. Id. Trial courts have long possessed authority to enforce their judgments, 7
including in appropriate cases by attachment of specific property. E.g., Tex. R. Civ.
P. 308.8
Castilleja involved a form of post-judgment relief to protect specific property
awarded in the judgment pending an appeal. This case does not. The trial court’s
order here compels a party to deposit anticipated contract damages into the registry
before trial based on the assertion that it may not be able to satisfy any ultimate
judgment. Based on Castilleja, several appellate courts, including this one, have
stated that a trial court has inherent authority to order a party to pay disputed funds
into the court’s registry before trial if there is evidence the funds are in danger of
being lost or depleted. E.g., In re G-M Water Supply Corp., 2016 WL 6873181, at
*4; Zhao, 493 S.W.3d at 736; O’Brien v. Baker, No. 05-15-00489-CV, 2015 WL
6859581, at *3 (Tex. App.—Dallas Nov. 9, 2015, orig. proceeding) (mem. op.); In
re Reveille Res. (Tex.) Inc., 347 S.W.3d at 304; N. Cypress Med. Ctr., 296 S.W.3d
at 178-79. But Castilleja was about post-judgment remedies to conserve an asset
that was the subject of a judgment during the appeal’s duration; it did not address an
order to deposit disputed funds—here, anticipated contract damages—into the
court’s registry before trial. The cases reading Castilleja as permitting such relief
7
Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982) (“The general rule is that every court having
jurisdiction to render a judgment has the inherent power to enforce its judgments.”); Harris Cty.
Appraisal Dist. v. West, 708 S.W.2d 893, 896 (Tex. App.—Houston [14th Dist.] 1986, orig.
proceeding).
8
“The court shall cause its judgments and decrees to be carried into execution; and where the
judgment is for personal property, and it is shown by the pleadings and evidence and the verdict,
if any, that such property has an especial value to the plaintiff, the court may award a special writ
for the seizure and delivery of such property to the plaintiff; and in such case may enforce its
judgment by attachment, fine and imprisonment.”
7
commit no discussion to Castilleja’s applicability or the trial court’s inherent
authority to require pretrial deposits of anticipated contract damages as an alternative
to chapter 61. The Dallas Court of Appeals, in contrast, has concluded a trial court
lacks authority—beyond the purview of the attachment statutes—to order that funds
be deposited into the court’s registry to generally secure payment of a possible future
judgment. Behringer, 2009 WL 4756579, at *4. This court cited Behringer as
support for its decision in In re Wakefield. 2010 WL 5237857, at *1.
The issue of Castilleja’s applicability need not detain us. Presuming without
deciding that it applies to the order at issue, Castilleja’s standards as Oilfield
interprets them have not been met on the present record. To begin with, both Oilfield
and our dissenting colleague say the funds in dispute are in danger of being lost or
depleted. We disagree.
Oilfield was required to support its motion with competent evidence. See
Zhao, 493 S.W.3d at 736-37; In re Reveille Res. (Tex.) Inc., 347 S.W.3d at 304;
O’Brien, 2015 WL 6859581, at *3; N. Cypress Med. Ctr., 296 S.W.3d at 178-79.
Oilfield filed a verified motion containing the following relevant factual assertions:
(1) since the verdict in the 2018 Lawsuit, Warrior owes Oilfield an additional
$2,064,042.19 in unpaid royalties as of November 30, 2019; (2) Warrior is a
subsidiary of Superior Energy Services, Inc.; (3) Superior’s stock price has dropped
from approximately $18/share when the first suit was filed to $.29/share;
(4) Superior announced a net loss of $38.4 million for the third quarter of 2019 and
a net loss of $71.1 million for the second quarter of 2019; (5) Warrior has earned an
average of $545,000 a month in gross revenue from its use of the WIPR patents
during this same period; and (6) on September 26, 2019, Superior “was notified by
the New York Stock Exchange (“NYSE”) of its determination to commence
proceedings to delist the Company’s common stock and to suspend trading of the
8
Company’s common stock due to ‘abnormally low’ price levels.” Oilfield supported
these assertions with true and correct copies of Superior’s website stock information
and two Superior press releases. Further, based on an affidavit by Umphries, Oilfield
asserted several Warrior employees in the WIPR division, including Umphries, were
terminated in November 2019, and that Warrior informed Umphries it intended to
discontinue the WIPR division and cease offering WIPR to customers.
At the hearing, Oilfield offered and the court admitted a copy of a news report
stating Superior announced an agreement to merge its U.S. energy business with
another entity. According to the report, the merger was expected to close in the first
quarter of 2020. The report quotes a Superior representative’s belief that the
transaction will reduce debt, lower interest costs, and assist Superior in generating
cash flow. Oilfield offered no other exhibits at the hearing and presented no
witnesses.
Accepting as true all of Oilfield’s evidence, it focuses on Superior, which is
an entity separate from Warrior. Absent exceptional circumstances and evidence to
support collapsing corporate distinctiveness, Superior and Warrior as parent and
subsidiary cannot be treated as one and the same.9 Even if Superior’s financial
standing was relevant, Oilfield showed that Superior has incurred recent losses and
that its stock price has depreciated substantially, but Oilfield offered no proof of how
those losses or depreciation affect Warrior and why (or when) they would probably
deplete Warrior’s assets to a degree that Warrior is likely unable to satisfy a
judgment. Regarding the relevant entity, Warrior, the record contains no evidence
9
Courts presume a parent corporation and its separate corporate subsidiary are distinct legal
entities. See Sitaram v. Aetna U.S. Healthcare of N. Tex., Inc., 152 S.W.3d 817, 825 (Tex. App.—
Texarkana 2004, no pet.) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 798
(Tex. 2002)); Valero S. Tex. Processing Co. v. Starr Cty. Appraisal Dist., 954 S.W.2d 863, 866
(Tex. App.—San Antonio 1997, pet. denied).
9
of, among other things, Warrior’s current net worth, Warrior’s current assets
(including available cash in any bank accounts), Warrior’s current cash flow,
Warrior’s current or long-term debt obligations, or Warrior’s source of revenue, if
any, other than that derived from WIPR services. Further, unlike Castilleja, our
record shows that Warrior superseded the underlying judgment with a $13,000,000
bond, thus indicating Warrior’s intent to pay the 2018 judgment if it is affirmed.
Moreover, Oilfield offered no evidence that Warrior does not intend to pay any
future judgment in the 2019 Lawsuit or that Warrior will be unable to secure a similar
supersedeas bond if the need arises. Oilfield’s assertion that Warrior has possession
of funds in danger of loss or depletion is utterly speculative.
Assuming Castilleja applies and when the record reveals insufficient evidence
that funds are in danger of being “lost or depleted,” the trial court abuses its
discretion by ordering funds deposited in the registry of the court pretrial, and
mandamus relief from such an order is appropriate. E.g., O’Brien, 2015 WL
6859581, at *3 (granting mandamus); In re Reveille Res. (Tex.) Inc., 347 S.W.3d at
304 (granting mandamus); N. Cypress Med. Ctr., 296 S.W.3d at 178-79 (granting
mandamus); In re Deponte Invs., No. 05-04-01781-CV, 2005 WL 248664, at *2
(Tex. App.—Dallas Feb. 3, 2005, orig. proceeding) (mem. op.) (granting mandamus)
(“[T]he Allens were required to present evidence the revenues in Deponte’s
possession were in danger of being lost or depleted. They did not do so. We
conclude that absent any evidence, the trial court abused its discretion in ordering
Deponte to deposit the funds into the registry of the court.”).
Because Oilfield presented no legally sufficient evidence to demonstrate that
the “disputed funds” were in danger of being “lost or depleted,” the trial court’s order
was improper and an abuse of discretion under Castilleja. For that reason, we need
not address Warrior’s additional contention that a trial court’s inherent power to
10
require a registry deposit arises only when a specific, identifiable asset or fund is in
danger of loss or depletion. See Castilleja, 414 S.W.2d at 433.
B. Inadequate appellate remedy
In determining whether appeal is an adequate remedy, appellate courts
consider whether the benefits outweigh the detriments of mandamus review. In re
BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding); N.
Cypress Med. Ctr., 296 S.W.3d at 179. Because this balance depends heavily on
circumstances, it must be guided by analysis of principles rather than simple rules
that treat cases as categories. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464
(Tex. 2008) (orig. proceeding). In evaluating benefits and detriments, we consider
whether mandamus will preserve important substantive and procedural rights from
impairment or loss. In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. We also
consider whether mandamus will “allow the appellate courts to give needed and
helpful direction to the law that would otherwise prove elusive in appeals from final
judgments.” Id. Finally, we consider whether mandamus will spare the litigants and
the public “the time and money utterly wasted enduring eventual reversal of
improperly conducted proceedings.” Id.
This and other appellate courts have found relief by ordinary appeal
inadequate to cure a trial court’s abuse of discretion in compelling a prejudgment
registry deposit. E.g., G-M Water Supply, 2016 WL 6873181, at *3; O’Brien, 2015
WL 6859581, at *3; In re Reveille Res. (Tex.) Inc., 347 S.W.3d at 304; N. Cypress
Med. Ctr., 296 S.W.3d at 178-79; In re Wakefield, 2010 WL 5237857, at *1; In re
Deponte Invs., 2005 WL 248664, at *2.
Warrior contends it lacks an adequate remedy by ordinary appeal because the
order: (1) deprives it of the use of its own money; (2) will become moot once the
court signs a judgment in the 2019 Lawsuit and will therefore escape appellate
11
review, given that interlocutory review is unavailable; and (3) leaves the parties on
imbalanced footing.
1. Deprivation of use of money
Warrior maintains an appeal cannot restore its rights to invest and spend its
funds as it chooses during the pendency of Oilfield’s lawsuit. See N. Cypress Med.
Ctr., 296 S.W.3d at 179 (concluding appeal was inadequate to cure harm attendant
to being deprived of use of one’s own money); accord G-M Water Supply, 2016 WL
6873181, at *3. The Supreme Court of Texas has held deprivation of the use of
money does not by itself render an appeal inadequate to cure the harm:
KCSI argues that its remedy by appeal is inadequate because the trial
court has improperly deprived it of the “valuable use” of its own money.
That is not the permanent loss of substantial rights; it is really only a
complaint that the normal appellate remedy is too slow. As we have
repeatedly held, the cost or delay incident to pursuing an appeal does
not make the remedy inadequate.
In re Kansas City S. Indus., Inc., 139 S.W.3d 669, 670 (Tex. 2004) (orig.
proceeding). However, KCSI was decided before Prudential. We conclude that
deprivation of the use of money is a factor properly considered under Prudential’s
balancing test for evaluating the adequacy of an appeal. That factor supported
mandamus relief in North Cypress Medical Center, and Oilfield does not attempt to
distinguish that case. N. Cypress Med. Ctr., 296 S.W.3d at 179.
2. Evades meaningful appellate review
Interlocutory review of a prejudgment order to deposit funds into the court’s
registry is not available, and the order itself will cease to be of effect once a judgment
is rendered. See G-M Water Supply, 2016 WL 6873181, at *3. Consequently, any
appeal of such an order after judgment would become moot. Id. With certain
exceptions, a court of appeals may not consider moot issues. See O’Hern v.
12
Mughrabi, 579 S.W.3d 594, 600–01 (Tex. App.—Houston [14th Dist.] 2019, no
pet.) (considering only those issues for which a live controversy still existed). The
Tyler Court of Appeals wrote:
[A] party ordered to deposit funds during the pendency of the lawsuit
would not only be deprived of the use of its funds, but would be
precluded from challenging the trial court’s order by appeal. This is
because, with interlocutory appeal unavailable, the party would be
required to wait until the suit’s conclusion to appeal the order. At that
time, the order to deposit funds would no longer be in effect, which
would render an appeal moot. Without mandamus relief, a trial court
could freely order that funds be deposited into its registry without
appellate review.
G-M Water Supply, 2016 WL 6873181, at *3. We agree with our sister court that
ordinary appeal is an inadequate remedy for such an order.
Conclusion
We conditionally grant the petition for writ of mandamus and direct the trial
court to vacate its orders signed December 18, 2019 and January 2, 2020 requiring
Warrior to deposit funds into the court’s registry. We are confident the trial court
will act in accordance with this opinion. The writ of mandamus shall issue only if
the trial court fails to do so.
/s/ Kevin Jewell
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
13 | 01-03-2023 | 04-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3850461/ | A complete answer to the only question raised in this appeal is found in Duffy v. Duffy, 117 Pa. Super. 500. The question is, can a mother maintain a suit against her unemancipated minor son for injuries sustained by her in an accident resulting from his alleged negligent operation of an automobile in which she was a passenger, if the minor is indemnified against loss *Page 208
or damage by a casualty insurance company? The answer is that she cannot, because such actions are barred since they are disruptive of family peace, destructive of the enforcement of filial discipline, and, therefore, against public policy. This general rule has been followed almost unanimously.1 And the overwhelming majority of courts,2 including our own, Duffy v.Duffy, supra, have refused to recognize any distinguishing facts in the circumstance that the minor may have been carrying indemnity insurance. As said by the learned Superior Court in the Duffy case: "Without a legislative mandate, we see no justification for making such a discrimination, thus segregating automobile cases from other actions by a parent growing out of the negligent conduct of an unemancipated minor, because in many automobile cases insurance might be carried that would give protection." The fact therefore, that there was insurance in the instant case was of no moment.
Judgment affirmed.
1 Schneider v. Schneider, 160 Md. 18, 152 A. 498; Oliveria v.Oliveria, 305 Mass. 297, 25 N.E.2d 766; Cafaro v. Cafaro,118 N.J.L. 123, 191 A. 472; Crosby v. Crosby, 230 A.D. 651,246 N.Y. S. 384; Turner v. Carter, 169 Tenn. 553,89 S.W.2d 751. Cases involving the suit by an unemancipated minor child against its parent reach the same result on the same ground of public policy. See Annotations in 31 A.L.R. 1157, 71 A.L.R. 1071 and 122 A.L.R. 1352.
2 Owens v. Auto Mutual Indemnity Company, 235 Ala. 9,177 So. 133; Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468; Bullochv. Bulloch, 45 Ga. App. 1, 163 S.E. 708; Schneider v.Schneider, 160 Md. 18, 152 A. 498; Luster v. Luster,299 Mass. 480, 13 N.E.2d 438; Elias v. Collins, 237 Mich. 175,211 N.W. 88; Lund v. Olson, 183 Minn. 515, 237 N.W. 188; Small v.Morrison, 185 N.C. 577, 118 S.E. 12; Lasecki v. Kabara,235 Wis. 645, 294 N.W. 33. *Page 209 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523431/ | 04/07/2020
DA 17-0398
Case Number: DA 17-0398
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 79
STATE OF MONTANA,
Plaintiff and Appellee,
v.
RICHARD (RICK) BRANDT,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Custer, Cause No. DC 2015-59
Honorable Michael B. Hayworth, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
Wyatt Glade, Custer County Attorney, Miles City, Montana
Submitted on Briefs: January 15, 2020
Decided: April 7, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
.
Justice Beth Baker delivered the Opinion of the Court.
¶1 The State of Montana charged Richard (Rick) Brandt with six felonies stemming
from a Ponzi scheme he devised that ultimately defrauded investors of $2 million. A jury
found Brandt guilty of all six counts. The Sixteenth Judicial District Court sentenced him
to a total period of sixty years with twenty years suspended. Brandt appeals, arguing that
the “multiple charges statute,” § 46-11-410(2), MCA, bars his convictions and punishment
for five of the six felonies. We hold that Brandt’s convictions may stand on all but one of
the six charges, reverse the remaining conviction, and remand for resentencing consistent
with this Opinion.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 From 2011 until 2015, Brandt ran an ostensibly legitimate house-flipping business,
Home Investors LLC. Brandt, who was not licensed to sell investment opportunities in
Montana, solicited investments from eighteen mostly elderly individuals, many of whom
he knew from church or because he had served as their financial advisor or insurance
salesman. Brandt promised his investors high rates of return—ranging from ten to
twenty percent—to be paid on a monthly or annual basis as he used their investments to
buy houses, renovate them, and sell them at much higher prices. He issued them
“business agreements” to memorialize the terms of the investments, but no prospectus.
¶3 Brandt’s business turned out to be a Ponzi scheme—a fraudulent investment
arrangement in which returns to investors are paid not from any profits of the underlying
venture, but from money obtained from later investors. See Mosely v. Am. Express Fin.
Advisors, Inc., 2010 MT 78, ¶ 3 n.1, 356 Mont. 27, 230 P.3d 479. Though Brandt did
2
purchase and resell several homes, after several years he ran out of money and stopped
making payments to his investors. Some of Brandt’s investors tried contacting him when
they stopped receiving payments. At first, Brandt offered excuses or promised that
payments were forthcoming, but ultimately he stopped responding. Several investors
reported Brandt to local law enforcement and to the Montana Commissioner of Securities
and Insurance (the “CSI”).
¶4 Brandt’s arrangement with Roger and Melba Losing is illustrative. Roger Losing
met Brandt when Brandt sold him Medicare supplemental insurance. Roger considered
Brandt a close friend. Brandt convinced the Losings, both in their late 70s at the time, to
invest $50,000 in Home Investments LLC, and promised a 15% return to be paid annually.
The Losings invested another $36,000 a month later. On the second investment, Brandt
guaranteed a 15% return to be paid in monthly installments of $450. For a while, the
Losings received monthly $450 installments, but the payments eventually stopped. Roger
called, e-mailed, and wrote letters to Brandt but never heard back. In 2015, he finally
contacted the local sheriff’s office to report that Brandt had defrauded him and his wife.
Brandt never repaid the Losings either the principal of their first investment or the promised
profit.
¶5 Another elderly woman, Oleta Geis, lost approximately $88,000 to Brandt’s
investment scheme. Brandt knew Geis through church. Beginning in 2010, when Geis
was approximately 95 years old, Geis’s daughter paid Brandt $150 per month to pay Geis’s
bills and gave him authority to write checks from Geis’s bank account. Over the next few
years, Brandt wrote multiple unauthorized checks from Geis’s account to Home Investors
3
LLC, overdrew Geis’s account, and failed to pay her bills, including $20,000 owed to her
assisted living facility. As a result, Geis’s daughter had to borrow money from friends to
pay the assisted living bill and prevent the facility from beginning eviction proceedings.
Brandt had depleted her life savings.
¶6 Lynn Egan, Deputy Securities Commissioner at the CSI, launched an investigation
into Home Investments LLC after receiving numerous similar reports of Brandt’s activities.
She determined that Brandt was not registered to sell securities; had not registered any of
the “business agreements” as securities; was operating a Ponzi scheme; and was using his
investors’ money for personal use, including to pay for his own mortgage, insurance bills,
and multiple trips. The investigation revealed that Brandt had solicited a total of
$1,939,132 from his investors and repaid only $404,740 of their cumulative principal. The
investors did not make any profit as Brandt had promised. In fact, some of his investors
were forced to liquidate their remaining assets, and others no longer have any savings on
which to subsist.
¶7 On August 24, 2015, the State charged Brandt by Information with the following
six counts: Count 1-Exploitation of an older person (common scheme); Count 2-Theft by
embezzlement (common scheme); Count 3-Failure to register as a securities salesperson
(common scheme); Count 4-Failure to register a security (common scheme);
Count 5-Fraudulent practices (common scheme); and Count 6–Operating a pyramid
promotion scheme (Ponzi scheme) (common scheme).
¶8 The case was tried before a jury in March 2017. Mid-trial, at the District Court’s
direction, the State amended its proposed jury instructions on each of the six charges to
4
include a companion element of “common scheme” to reflect the offenses as charged in
the Information. The jury was so instructed.
¶9 The jury found Brandt guilty of all six counts. At a separate hearing, the
District Court sentenced Brandt to consecutive terms of ten years on each count,
suspending a combined total of twenty years. Brandt appeals, arguing that
§§ 46-11-410(2)(a) and (d) and 46-1-202(9), MCA, preclude his convictions on five of the
six counts with which he was charged because they are all “included offenses” or “specific
instances” of fraudulent practices. He asserts that defense counsel rendered ineffective
assistance of counsel by failing to object to the sentence on double jeopardy grounds or,
alternatively, that we should review his unpreserved claims under the plain error doctrine.
STANDARDS OF REVIEW
¶10 A claim of ineffective assistance of counsel constitutes a mixed question of law and
fact that we review de novo. State v. Hooper, 2016 MT 237, ¶ 5, 385 Mont. 14,
386 P.3d 548 (citing Deschon v. State, 2008 MT 380, ¶ 16, 347 Mont. 30, 197 P.3d 476).
Where ineffective assistance of counsel claims are based on facts of record in the
underlying case, they must be raised in the direct appeal. Hooper, ¶ 5 (citing State v. White,
2001 MT 149, ¶ 12, 306 Mont. 58, 30 P.3d 340). We may exercise our discretion to review
unpreserved issues alleging violation of a fundamental right under the plain error doctrine.
See, e.g., State v. Barrows, 2018 MT 204, ¶ 8, 392 Mont. 358, 424 P.3d 612; State v. Reim,
2014 MT 108, ¶ 38, 374 Mont. 487, 323 P.3d 880.
5
DISCUSSION
¶11 Although Brandt cites the Montana Constitution as one of two bases for his appeal,
he provides no distinct constitutional analysis, focusing instead on the “multiple charges”
statute, § 46-11-410, MCA. We resolve the issues on appeal by applying the multiple
charges statute and decline to consider constitutional double jeopardy principles.
See State v. Parks, 2013 MT 280, ¶ 22, 372 Mont. 88, 310 P.3d 1088.
¶12 Brandt argues that the District Court violated the “multiple charges” statute,
§ 46-11-410, MCA, when it sentenced him on all six counts with which he was charged.
He contends that his fraudulent practices conviction (Count 5) subsumes the remaining
offenses (Counts 1, 2, 3, 4, and 6) because all six counts are part of the same transaction,
and Counts 1, 2, 3, 4, and 6 are included within or are specific instances of Count 5. He
thus contends that only his conviction for fraudulent practices may stand.
¶13 Section 46-11-410, MCA, provides in pertinent part:
Multiple charges. (1) When the same transaction may establish the
commission of more than one offense, a person charged with the conduct
may be prosecuted for each offense.
(2) A defendant may not, however, be convicted of more than one offense if:
(a) one offense is included in the other; . . .
(d) the offenses differ only in that one is defined to prohibit a specific
instance of the conduct[.]
¶14 We first determine whether Brandt’s offenses were part of the same transaction.
Parks, ¶ 24. Section 46-1-202(23), MCA, defines “same transaction” as:
[C]onduct consisting of a series of acts or omissions that are motivated by:
(a) a purpose to accomplish a criminal objective and that are necessary or
incidental to the accomplishment of that objective; or
6
(b) a common purpose or plan that results in the repeated commission of the
same offense or effect upon the same person or the property of the same
person.
To determine whether offenses are part of the “same transaction” under § 46-11-410, MCA,
we look to the facts underlying the charged offenses, including the defendant’s motivation
by a common purpose or plan. State v. Ellison, 2018 MT 252, ¶ 21, 393 Mont. 90,
428 P.3d 826 (internal quotations and citations omitted). “Whether two offenses arise from
the same transaction or involve the same criminal objective does not depend on the
elements of the charged offenses, but rather on the defendant’s underlying conduct and
purpose in engaging in that conduct.” Ellison, ¶ 21 (citing State v. Glass, 2017 MT 128,
¶ 12, 387 Mont. 471, 395 P.3d 469).
¶15 State v. Ellison is instructive. There, Ellison staged a crime scene to frame a local
detective, Fritz, for arson. Ellison, ¶ 2. Ellison tied the doors shut to the trailer home he
shared with his parents, started a fire, and placed a knife on the ground outside the home
with the word “Fritz” scribbled on it. Ellison, ¶ 2. The State charged Ellison with four
separate counts, including two counts of tampering with or fabricating physical evidence.
Ellison, ¶ 4. A jury found Ellison guilty of both tampering charges. Ellison, ¶ 7. On
appeal, Ellison argued that his convictions on these two counts violated § 46-11-410, MCA.
Ellison, ¶ 19. We agreed, concluding that the two tampering convictions—one for tying
ropes to the door handles and the other for planting the “Fritz” knife—were motivated by
the common objective to stage a crime, mislead investigators, and frame Fritz, and that
they thus arose out of the same transaction. Ellison, ¶ 22.
7
¶16 Here, as in Ellison, all of Brandt’s convictions were motivated by a common
criminal objective: to induce individuals to invest in Home Investors LLC by making
payments to him and to use those investment payments to fund his personal expenditures.
What’s more, as Brandt points out, “by charging all offenses as ‘common scheme,’ the
State conceded that these six offenses were part of the same transaction.” In order to
convict Brandt of each offense charged, the jury was required to find the element of
“common scheme” beyond a reasonable doubt. The District Court instructed the jury that
“common scheme” means a series of acts or omissions motivated by a purpose to
accomplish a single criminal objective or by a common purpose or plan that either results
in the repeated commission of the same offense or affects the same persons or their
property. This language is identical to the definition of “same transaction.” That the State
conceived of Brandt’s offenses as part of one transaction was also apparent in its closing
argument, during which it referred to Brandt’s “grand plan” that “kept happening over and
over again [with] [m]ore and more people [] getting affected.”
¶17 The State has broad discretion in determining when to prosecute a case and what
crime to charge. See State v. Matt, 2005 MT 9, ¶ 10, 325 Mont. 340, 106 P.3d 530. This
Court is “bound by ‘the State’s choice in framing the charges.’” State v. Tellegen, 2013 MT
337, ¶ 25, 372 Mont. 454, 314 P.3d 902 (quoting State v. Russell, 2008 MT 417, ¶ 27, 347
Mont. 301, 198 P.3d 271). The State did not charge Brandt for distinct offenses against
each separate victim; it instead elected to charge each offense as part of a common scheme.
The jury was instructed that, to convict him, it had to find Brandt’s conduct part of a
8
common scheme. On this record, we are convinced that the offenses as charged and proven
were part of the “same transaction.”
¶18 We turn now to the second step of the analysis—whether any of Brandt’s offenses
is “included” in another or whether any is “defined to prohibit a specific instance of the
conduct” proscribed in the other. Section 46-11-410(2)(a), (d), MCA. See Parks, ¶ 28.
“Our case law evaluating double jeopardy defenses brought under these two provisions has
employed a single standard in which we consider the elements of each charge to determine
whether each charge requires proof of a fact that the other does not (if so, prosecution for
each charge is not statutorily prohibited).” State v. Weatherell, 2010 MT 37, ¶ 12,
355 Mont. 230, 225 P.3d 1256. See also State v. Hooper, ¶ 11. Brandt contends that Count
5, fraudulent practices (common scheme), subsumes the remaining five counts of which he
was convicted. The State disagrees, arguing that all six counts contain at least one distinct
element and thus are not included in each other.
¶19 An “included offense” is one established by proof of the same or less than all the
facts required to establish the commission of the offense charged.
Section 46-1-202(9)(a), MCA. In contrast to the “same transaction” inquiry, the term
“facts” as used in § 46-1-202(9), MCA, refers to the statutory elements of the offenses, not
to the individual facts of the case. Parks, ¶ 29 (citing State v. Beavers, 1999 MT 260,
¶¶ 28-30, 296 Mont. 340, 987 P.2d 371). We therefore examine whether Counts 1, 2, 3, 4,
and 6 each contain the same or fewer than all the elements of Count 5 or constitute specific
instances of Count 5. See Ellison, ¶ 23; Parks, ¶ 30. If so, those convictions violate the
multiple charges statute and must be vacated.
9
¶20 We begin by considering the elements of Count 5, fraudulent practices
(common scheme). The District Court defined fraudulent practices in accordance with
§ 30-10-301(1), MCA: “It is unlawful for any person, in connection with the offer or sale
[of] any security, directly or indirectly, in, into, or from this state, to willfully engage in
any act, practice, or course of business that operates or would operate as a fraud or deceit
upon any person.” The jury was instructed on the elements that it must find beyond a
reasonable doubt to convict Brandt of Count 5. The jury instruction—proposed by the
State and not objected to by Brandt—set forth the elements of fraudulent practices
following the language of the statute and further explained the third element as defined in
Admin. R. M. 6.10.401(1)(u) (2008):
(1) Brandt offered or sold a security;
(2) the offer and/or sale took place in, into, or from Montana;
(3) in connection with the offer or sale, Brandt engaged in conduct such as
embezzlement, nondisclosure, incomplete disclosure, or misstatement of
material facts, or misstatement of material facts which operated as a fraud
or deceit upon a person; and
(4) he acted as part of a common scheme.
¶21 We compare Counts 1, 2, 3, 4, and 6 to Count 5 in turn to determine whether they
are included in or are specific instances of Count 5.
Count 1-Exploitation of an older person (common scheme)
¶22 A person commits the offense of exploitation of an older person (common scheme)
when that person purposely or knowingly exploits an older person as part of a common
10
scheme. Section 52-3-825(3), MCA (2009).1 The jury was instructed that it must find the
following elements beyond a reasonable doubt to convict Brandt of Count 1:
(1) Brandt exploited an older person;
(2) acted purposely or knowingly; and
(3) acted as part of a common scheme.
The jury instructions defined “exploitation” as an act taken by a person who has the trust
and confidence of an older person to obtain control of or to divert to the advantage of
another the ownership, use, benefit, or possession of or interest in the person’s money,
assets, or property by means of deception or fraud with the intent or result of permanently
depriving the older person of the ownership. The jury instructions defined “older person”
to mean a person who is at least 65 years of age.2
¶23 The offense of exploitation of an older person is not an included offense of
fraudulent practices because it requires proof of an element that fraudulent practices does
not: that the defendant abuses the trust of a person 65 years or older to acquire that person’s
property. The offense of fraudulent practices does not require a victim over 65 years old
or that the defendant had gained that person’s trust or confidence. Nor is exploitation of
1
The offense of exploitation of an older person is now codified at § 45-6-333, MCA. The
Information, filed in August 2015, alleged that Brandt committed the offenses “on or between the
dates of January 2011 and June 2015.” He was charged with exploitation of an older person
under § 52-3-825(3), MCA. The controlling statute at the time of the offense was
§ 52-3-803(3) and (8) (2009), MCA, which defined an “older person” as a person who “is at least
60 years of age.”
2
The trial court instructed the jury, apparently using the 2015 version of the statute, that an
“older person” is “a person who is at least 65 years of age.” We use the age of 65 as instructed in
this case.
11
an older person a specific instance of fraudulent practices. The offense of exploitation of
an older person does not require offer or sale of a security. “Where each offense requires
proof of a ‘fact’ which the other does not, there cannot be a specific instance of conduct
which is included in the other offense.” Hooper, ¶ 11 (citing Weatherell, ¶ 12). In Hooper
we rejected the argument that elder abuse was a “specific instance” of aggravated burglary
because each required proof of an element the other did not:
First, elder abuse requires that the person abused be at least 60 years of age;
aggravated burglary is not dependent upon age of the victim. Second,
aggravated burglary requires that the intent to commit an offense occur
within an occupied structure; elder abuse does not have to occur within an
occupied structure. Both statutes therefore require an additional element
which the other offense does not require.
Hooper, ¶ 14. Similar to the statutes we construed in Hooper and Weatherell, the offense
of exploitation of an older person strives to protect the distinct legal norm of preventing
abuse and exploitation of Montana’s elderly individuals. Section 52-3-802, MCA (2009).
See Weatherell, ¶ 14 (concluding that defendant’s convictions of PFMA and assault on a
minor vindicate different legal and societal norms and thus do not violate
§ 46-11-410(2)(d), MCA). Here, exploitation of an older person seeks to protect people
over 65, a distinct status of victim, as reflected in the legislative purpose of criminalizing
that conduct. See also Matt, ¶ 15 (holding that assault with a weapon is not an offense
included in assault on a peace officer). Brandt’s conviction of and punishment for the
offenses of both exploitation of an older person and fraudulent practices do not violate the
multiple charges statute.
12
Count 2-Theft by embezzlement (common scheme)
¶24 In contrast, the charged offense of theft by embezzlement is included within and a
specific instance of the offense of fraudulent practices as defined in the jury instructions.
This is made clear by the fact that the instructions listed embezzlement as one of several
examples of specific conduct that would satisfy the third element of the latter. By proving
embezzlement, the State proved one of those elements of fraudulent practices. Thus,
embezzlement was subsumed in the charged offense of fraudulent practices. Brandt’s
conviction for theft by embezzlement violates § 46-11-410, MCA, and must be vacated.
Counts 3 and 4-Failure to register as a securities salesperson (common scheme) and
Failure to register a security (common scheme)
¶25 The offenses of failure to register as a salesperson (common scheme) and failure to
register a security (common scheme) are neither included within nor specific instances of
fraudulent practices. It is unlawful to transact securities business in this state as a
salesperson unless the person is registered with the state. Section 30-10-201(1), MCA.
The jury was instructed that it must find the following elements beyond a reasonable doubt
to convict Brandt of Count 3-Failure to register as a salesperson (common scheme):
(1) Brandt transacted securities business in this state as a salesperson;
(2) was not registered to transact securities business in this state as a
salesperson;
(3) acted willfully; and
(4) acted as part of a common scheme.
13
The jury was instructed that it must find the following elements beyond a reasonable doubt
to convict Brandt of Count 4-Failure to register a security (common scheme) in violation
of § 30-10-202, MCA:
(1) Brandt offered or sold a security;
(2) did not register the security in the state;
(3) acted willfully; and
(4) acted as part of a common scheme.
A comparison of the elements reveals that Counts 3 and 4 are not included offenses of
Count 5. Counts 3 and 4 each required proof of elements that fraudulent practices did not:
that Brandt was not registered to transact securities business or had not registered the
securities in Montana.
¶26 The offenses charged in Counts 3 and 4 also are not specific instances of fraudulent
practices. Brandt contends that these offenses constitute conduct such as embezzlement,
nondisclosure, incomplete disclosure, or misstatement of material facts, or misstatement of
material facts which operated as fraud or deceit upon a person. We disagree. We have
held that “[a] factual hallmark of separate offenses arises when acquittal on one charge will
not affect the others.” State v. Goodenough, 2010 MT 247, ¶ 21, 358 Mont. 219,
245 P.3d 14. Acquitting Brandt of the fraudulent practices offense as charged here would
necessitate acquittal of theft by embezzlement as charged. It would not, however, work
the same result on his convictions under Counts 3 and 4; those convictions arose from his
failure to be licensed and his sale of unregistered securities, and each could be proven
independently of any conduct in which he engaged to defraud his investors. Brandt could
14
have committed the offense of fraudulent practices even had he and the securities he sold
been registered. We therefore hold that Brandt’s convictions for failure to register as a
securities salesperson (common scheme) and failure to register a security
(common scheme) do not violate § 46-11-410, MCA.
Count 6-Operating a Ponzi scheme (common scheme)
¶27 The State charged Brandt with Count 6, operating a Ponzi scheme
(common scheme) under §§ 30-10-324(7)(b) and 30-10-325, MCA. A Ponzi scheme
“consists of funneling proceeds received from new investors to previous investors in the
guise of profits from the alleged business venture, thereby cultivating an illusion that a
legitimate profit-making business opportunity exists and inducing further investment.”
Mosely, ¶ 3 n.1. As a result of the absence of sufficient assets to generate funds necessary
to pay the promised returns, the success of such a scheme guarantees its demise because
the operator must continue to attract funds, which thereby creates a greater need for funds
to pay previous investors, all of which ultimately causes the scheme to collapse.
Mosely, ¶ 3 n.1. Although fraudulent in nature, the offense of operating a Ponzi scheme
requires proof of more: that “a person makes payments to investors from anything of value,
including anything of purported value, obtained by later investors, rather than from any
profits or other income of an underlying or purported underlying business venture.”
Section 30-10-324(7)(b), MCA. This is the definition that the District Court included in
the jury instructions. Because these elements are not necessary to prove the offense of
fraudulent practices, we conclude that Count 6 is not included within or a specific instance
of the offense charged in Count 5.
15
¶28 As with Counts 3 and 4, acquitting Brandt of fraudulent practices would not affect
his conviction for operating a Ponzi scheme because the latter requires proof of the
payment from money invested by later investors even without proof that Brandt made any
false or misleading disclosures or misstated material facts. This point is illustrated by
Brandt’s theory of the case. Defense counsel argued in closing that Brandt had a “business
plan,” and the purpose of the business was to flip houses. Brandt testified to each of the
twenty houses he had bought and to the difficulties he had run into with each house. He
took issue with the State’s accounting method and argued that he was using investor funds
for the business and not for his own purposes. Even when it was bleeding money, “he
couldn’t stop because of the promise that he had made to [the investors.]” Assuming for
the moment that the jury had believed Brandt did nothing to mislead investors or to
misrepresent his “business plan” at the time he took their investments
(fraudulent practices), it still could convict him of Count 6 if it found that he used those
investments—instead of profits from the house-flipping business—to pay other investors
(Ponzi scheme). Brandt’s conviction for operating a Ponzi scheme does not violate
§ 46-11-410, MCA, and may stand.
Failure to preserve
¶29 Brandt argues that his counsel rendered ineffective assistance by failing to raise
these multiple charges issues before the District Court. We analyze claims of ineffective
assistance of counsel using a two-part test enunciated in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052 (1984). Ellison, ¶ 24. The defendant must show first that
counsel’s performance was deficient and second that counsel’s deficient performance
16
prejudiced the defendant. Ellison, ¶ 24. Defense counsel’s failure to make a valid
objection based on the statutory prohibition on multiple charges constitutes deficient
performance. Ellison, ¶ 25 (citing State v. Becker, 2005 MT 75, ¶ 20, 326 Mont. 364,
110 P.3d 1). Such deficient performance is prejudicial because the defendant “would have
been sentenced to a lesser term had counsel made the appropriate argument[.]”
Ellison, ¶ 25 (quoting Becker, ¶ 21) (internal quotations omitted).
¶30 Brandt’s counsel failed to make any objection in the District Court to his conviction
and sentencing for the multiple offenses of embezzlement and fraudulent practices as
charged in this case. As in Ellison, we conclude that this failure constituted deficient
representation that prejudiced Brandt because, without the error, Brandt would have been
convicted of five, rather than six, felonies.
¶31 “When a criminal defendant is improperly convicted of two offenses arising out of
the same transaction, the remedy is to reverse the conviction for the lesser-included offense
only and to remand for resentencing.” Ellison, ¶ 26 (citing Becker, ¶ 25). Accordingly,
we reverse Brandt’s conviction for Count 2-theft by embezzlement (common scheme), and
remand the case to the District Court for resentencing.
¶32 Having determined that Brandt’s ineffective assistance of counsel claim is the
appropriate vehicle to address the unpreserved multiple conviction challenges, we decline
to conduct further review under the common law plain error doctrine.
CONCLUSION
¶33 In sum, Brandt’s counsel provided ineffective assistance by failing to raise the
multiple convictions issue in the District Court. We affirm Brandt’s convictions for
17
Count 1-Exploitation of an older person (common scheme), Count 3-Failure to register as
a securities salesperson (common scheme), Count 4-Failure to register a security
(common scheme), Count 5-Fraudulent practices (common scheme), and
Count 6-Operating a Ponzi scheme. We reverse his conviction for Count 2-Theft by
embezzlement (common scheme) as violative of § 46-11-410, MCA, and remand to the
District Court for resentencing.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
/S/ DIRK M. SANDEFUR
Justice Jim Rice, concurring.
¶34 I concur in the decision of the Court. In this regard, I emphasize that my agreement
to reverse Count 2 (theft by embezzlement) is necessitated, as the Court notes in ¶ 17, by
the manner in which the Counts were charged in this case—not separately, but as a common
scheme. A different charging scheme may well have preserved the Count 2 conviction
under § 46-11-410, MCA.
/S/ JIM RICE
18
Justice Laurie McKinnon, concurring and dissenting.
¶35 I concur in the decision of the Court on Counts 1 through 4, but dissent as to Counts
5 and 6. I would conclude that fraudulent practices is an included offense of exploitation
of an older person. I would also conclude that Count 6—operating a Ponzi scheme—is an
included offense of fraudulent practices and, concomitantly, exploitation of an older
person.
¶36 The Court correctly states the test for determining whether one offense is a lesser
included offense of another: “we consider the elements of each charge to determine
whether each charge requires proof of a fact that the other does not (if so, prosecution for
each charge is not statutorily prohibited).” Opinion, ¶ 18. However, the Court misapplies
this test when it concludes that “exploitation” of an older person does not include the
fraudulent sale of a security, as set forth in the securities fraudulent practices statute,
§ 30-10-301(1), MCA; and similarly when it concludes, albeit implicitly, that an
“older person” is not a “person,” who can be fraudulently or deceitfully sold a security
under § 30-10-301(1), MCA.
¶37 The Court’s error stems from its overly simplistic analysis that exploitation of an
older person requires proof the victim was over 65 years of age and fraudulent practices
requires proof that a security was used. As a result, the Court reasons each offense requires
proof of a fact that the other does not and fraudulent practices is, therefore, not a lesser
included offense of exploitation of an older person. However, fraudulent practices in
connection with the sale of a security is a form of “exploitation” under § 52-3-825(3), MCA
(2013). The jury instructions defined “exploitation” as an act taken to obtain control over
19
an older person’s money, “by means of deception or fraud” (emphasis added). The jury
was similarly instructed that conduct which “operated as a fraud or deceit upon a person”
was a fraudulent practice (emphasis added). Accordingly, here, “exploitation” and
“fraudulent practices” have the shared element of “fraud,” with the same facts establishing
the “fraud” for each offense. The offense of fraudulent practices is subsumed and becomes
a lesser included offense of exploitation of an older person because the latter offense
requires proof of an additional fact—the “person” who is a victim of the fraudulent sale of
securities must be 65 years or older. The legal and societal norms of preventing abuse and
exploitation of older persons remain protected.
¶38 The relationship of the two offenses is easily illustrated through a Venn diagram.
See Weatherell, ¶12 (“The relationship of such charges could be illustrated by a
Venn diagram of concentric, rather than merely overlapping, circles.”). In my opinion, the
Court fails to properly examine the facts and proscribed conduct underlying each offense,
implicitly finding the offenses are illustrated by concentric circles with partially shared
elements, rather than one offense subsuming or overlapping the other offense. Here,
fraudulent practices and exploitation of an older person are not concentric circles, but rather
are overlapping offenses. Fraudulent practices is subsumed within the larger circle of
exploitation of an older person when the victim of fraudulent practices is an older person.
¶39 The Court similarly errs when it concludes a Ponzi scheme is not a fraud under the
fraudulent practice statute, and, concomitantly, “exploitation” under the exploitation of an
older person statute. As this Court recognized in Mosley, “[a] Ponzi scheme is a fraudulent
investment arrangement in which returns to investors are paid not from any ‘profits’ of an
20
underlying business venture, but from monies obtained from later investors.”
Mosley, ¶ 3 n.1 (emphasis added). Accordingly, the “fraud” consists of “funneling
proceeds received from new investors to previous investors in the guise of profits from the
alleged business venture, thereby cultivating an illusion that a legitimate profit-making
business opportunity exists and inducing further investment.” Mosley, ¶ 3 n.1. There is no
dispute that a Ponzi scheme constitutes a fraudulent practice which satisfies, and is
therefore subsumed, into the statutes prohibiting fraudulent practices and exploitation of
an older person. Again, as in the case of fraudulent practices, exploitation of an older
person requires the additional element and proof that the victim was 65 years of age or
older. As such, the offense of operating a Ponzi scheme is not a concentric circle sharing
some elements of the offense of exploitation of an older person statute. Operating a
Ponzi scheme is subsumed as a more specific form of exploitation. Because exploitation
of an older person requires the additional element and proof that the victim was 65 years
of age or older, operating a Ponzi scheme is a lesser included offense.
¶40 The Court cites Hooper as an illustration that because elder abuse was not a
“specific instance” of aggravated burglary, fraudulent practices and operating a
Ponzi scheme are not specific instances of exploitation. Opinion, ¶ 23. This comparison
is fundamentally flawed and distorts both the Hooper and Weatherell analysis.
In Hooper, the defendant was charged with elder abuse, which requires the “infliction of
physical or mental injury,” § 52-3-803(1), MCA, on a person over 65 years of age,
§ 52-3-803(8), MCA. Hooper, ¶ 13. Aggravated burglary is not dependent upon the age
of the victim and requires the additional element of intent to break into an occupied
21
structure. In Hooper, the offenses were clearly concentric and, although having some
overlapping elements, each required proof of an additional fact not included in the other.
Reliance by the Court on Hooper is flawed because here the conduct constituting
exploitation is fraudulent practices and operating a Ponzi scheme, both of which are
subsumed into exploitation.
¶41 I would conclude that fraudulent practices and operating a Ponzi scheme are lesser
included offenses of exploitation of an older person. As to Counts 1 through 4, I concur
with the Court.
/S/ LAURIE McKINNON
Justice Ingrid Gustafson joins in the Concurrence and Dissent of Justice McKinnon.
/S/ INGRID GUSTAFSON
22 | 01-03-2023 | 04-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3389895/ | Writ of error dismissed on motion of counsel for the respective parties. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4523450/ | 04/07/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0035
No. DA 20-0035
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JUSTIN LEE LONGTINE,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time, and
good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including May 15, 2020, within which to prepare, file,
and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
April 7 2020 | 01-03-2023 | 04-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4236653/ | Motion Granted and Abatement Order filed January 11, 2018.
In The
Fourteenth Court of Appeals
____________
NO. 14-17-00564-CV
____________
THE BRICKMAN GROUP LTD. LLC AND GUILLERMO RAFAEL
BERMEA, Appellants
V.
MICHELLE LYNN BRASWELL, INDIVIDUALLY AND AS
INDEPENDENT EXECUTRIX OF THE ESTATE OF WILLIAM
MARKLEY BRASWELL, AND AS NEXT OF FRIEND OF
XXXXXXXXXXXX AND XXXXXXXXXXXXXXX AND SANDRA SOUTH
BRASWELL, Appellees
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2015-38679
ABATEMENT ORDER
On January 11, 2018, the parties notified this court that the parties had
reached an agreement to settle the issues on appeal. The parties requested that the
appeal be abated to permit proceedings in the trial court for approval of the
settlement. See Tex. R. App. P. 42.1(a)(2)(C). The motion is granted. Accordingly,
we issue the following order.
The appeal is abated, treated as a closed case, and removed from this court’s
active docket until March 12, 2018. The appeal will be reinstated on this court’s
active docket at that time, or when the parties file a motion to dismiss the appeal or
other dispositive motion. The court will also consider an appropriate motion to
reinstate the appeal filed by either party, or the court may reinstate the appeal on its
own motion.
PER CURIAM
Panel consists of Justices Christopher, Donovan, and Jewell. | 01-03-2023 | 01-15-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/3389985/ | Dismissed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3389975/ | The appellant, plaintiff in the court below, filed a bill of complaint against the defendant, appellee here, for the specific performance of an alleged contract on the part of the City to sell and convey to the plaintiff a certain parcel of land. The defendant filed an answer which had attached thereto as Exhibit B a certified copy of the minutes of several meetings of the City Council, consisting in all of fifty-eight pages. The plaintiff interposed a motion to strike each and every paragraph of the answer and also a motion to strike Exhibit B. The court made an order *Page 773
denying both of said motions and from this order the appeal was taken. The facts alleged in the pleadings are unusual and not likely to occur again. We therefore deem it unnecessary to lengthen this opinion by attempting to summarize the facts. While the question presented to the lower court was a rather close one, on the facts as alleged, we are not convinced that the Chancellor was in error in overruling the motion to strike the answer.
The enforcement by a court of equity of a specific performance of a contract is not a matter of right in either party to such contract, but a matter for the exercise of sound discretion by the court, and should only be exercised when a decree for specific performance would be strictly equitable as to all the parties under the facts as they exist, and unless it clearly appears that the Chancellor has erred in his decree in refusing a specific performance, it will not be reversed on appeal. Murphy v. Hohne, 73 Fla. 803, 74 So. 973; Dale v. Jennings, 107. So. 175, 90 Fla. 234. Here the appeal is not from a final decree, but the refusal of the Chancellor to strike the answer was in effect to hold that the facts alleged in the answer constituted a good defense as against a bill for specific performance of the contract.
The motion of plaintiff to strike Exhibit B, which was attached to and made a part of the answer, should in our opinion have been granted. This exhibit of fifty-eight pages violated Section 22 of the 1931 Chancery Act, which provides that all pleadings in an equity case shall be expressed in as brief and succinct terms as reasonably practicable, and shall contain no unnecessary recitals of documents in haec verba, or other irrelevant, redundant or impertinent matter not relevant to the suit, and that no papers shall be unnecessarily annexed as exhibits. This exhibit contains much irrelevant matter and while much of it *Page 774
might have been introduced as evidence to sustain the allegations of the answer, it was clearly improper to embrace it either in the answer or attach it as an exhibit. While the action of the court in overruling the motion to strike this exhibit may not have worked any very great injury upon the plaintiff, nevertheless the motion was well founded and it was error to deny it.
The qualifications and exceptions to the general rule set forth in the statute are treated in MacCarthy's Chancery Act Ann., 2nd Ed., pages 59 to 64.
For the error pointed out the order appealed from is to that extent reversed and the cause remanded.
Reversed and remanded.
WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur.
ELLIS, P.J., and TERRELL and BUFORD, J.J., concur in the opinion and judgment. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3389976/ | The instant writ of error is to a verdict and judgment for personal injuries against the plaintiff in error, R.L. Saunders, and in favor of the defendant in error, Mary Crawford. The judgment was originally entered for $3,360.00, but on motion for new trial it was reduced to $1,200.00 by way of remittitur which was accepted by the plaintiff and the defendant took writ of error.
It is first contended that the ownership of the autobus in which plaintiff was riding at the time she was injured was not proven to be in the defendant.
The declaration alleges that on November 30, 1932, the defendant was the owner of a certain autobus, bearing a Florida license certificate with plate and number theretofore issued to him, that on the date last mentioned said defendant *Page 15
was engaged in the business of carrying passengers for hire in West Palm Beach, that on said date the plaintiff, Mary Crawford, engaged passage on said autobus from one point in West Palm Beach to another point in said city, but that she was so negligently transported that a collision ensued in which plaintiff suffered painful and permanent injuries, for which she paid doctor bills, hospital bills, and medicine bills.
Plaintiff supported her allegation of ownership of the autobus by (1) A certified copy of the application of defendant for title certificate together with his application for registration and license, (2) Affidavit of the finance company holding defendant's notes in payment for said autobus showing that it was repossessed from the defendant December 29, 1932, and (3) Application of the defendant for auto registration on March 27, 1933, showing the purchase of the autobus from the finance company.
The defendant sought to overcome such evidence of title in him by producing an instrument entitled an assignment, but purporting to be a bill of sale from defendant to one James Jones, the driver of the car at the time of the accident. The court and the jury rejected this evidence and since the bona fides of the purported bill of sale were so impregnated with suspicious and questionable circumstances we must decline to hold them in error for doing so. Ford v. Hankins, 209 Ala. 202, 96 So.2d 349.
The testimony of the plaintiff, the testimony of the police officer who first appeared at the scene of the accident, and other witnesses point to defendant as being the owner of the autobus. Sections 3978 and 3979, Compiled General Laws of 1927, define the manner in which automobiles should be registered and were designed to facilitate the tracing of title to motor vehicles. The title to the autobus *Page 16
in question was proven by these records as required by Section 4381, Compiled General Laws of 1927, which was ample. Macon County Lumber Co. v. Jones, 215 Ala. 157, 110 So.2d 1; Ford v. Hankins, 209 Ala. 202, 96 So.2d 349.
It is next contended that at the time of the accident in which plaintiff was injured the autobus was not driven by defendant or his agent with his permission and within the scope of his authority.
There is no merit in this contention. The evidence shows that James Jones, the driver of the autobus, was at the time and had been employed by defendant as driver of the bus for some time, that he was driving it at the time of the accident, and that it was being operated in the customary manner, collecting and carrying passengers from one destination to another. The defendant has not attempted to controvert any of this evidence. What was said in support of the first question as to the ownership of the autobus would seem to conclude this question against the contention of plaintiff in error.
As to the question of damages the evidence shows that the plaintiff suffered severe and painful injuries to her body, that she was in the hospital for two weeks, was away from her work for several weeks, and that her eye was permanently injured. Her earning capacity was proven and the trial judge was familiar with the facts and the parties. Any alleged error was cured by the remittitur.
Other assignments have been examined, but no reversible error is shown to have been committed. So the judgment below is affirmed.
Affirmed.
ELLIS, P.J., and BUFORD, J., concur.
WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur in the opinion and judgment. *Page 17 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3389992/ | The record here discloses that on March 27, 1939, the relator filed in the Circuit Court of Lake County, Florida, his petition for an alternative writ of mandamus directed to the respondent as Tax Assessor of Lake County, Florida, and an alternative writ of mandamus immediately issued.
The alternative writ alleged: (a) that the relator was owner of real and personal property situated in Lake County, Florida, subject to assessment and levy of taxes for State and County purposes; (b) that the Lake County Medical Center, Inc., a corporation, on January 1, 1938, and on January 1, 1939, was the owner of designated real property, with improvements thereon, subject to the assessment and collection of taxes for State and county purposes under the law and it was the official duty of the respondent to assess the property for taxation, but this the respondent failed or omitted to do as the said property was treated or considered by the respondent as being exempt from taxation under the provisions of Chapter 18312, Laws of Florida, Acts of 1937; (c) that Chapter 18312,supra, insofar as it purports to exempt property from taxation owned by corporations not used exclusively for religious, scientific, municial, educational, literary, or charitable purposes is in conflict with and violates Section 16 of Article XVI of the Constitution of Florida; (d) that the propertysupra, was not used exclusively for religious, scientific, municipal, educational literary or charitable purposes; (e) that the real estate, together with the improvements thereon, owned by the said corporation is not exempt from taxation but that it is the *Page 235
lawful duty of the respondent to assess the same as required by the laws of Florida. Other allegations appear in the alternative writ but a recital thereof is not necessary to a disposition of this case.
The respondent filed a motion to quash the alternative writ on a number of grounds unnecessary to set forth, and a motion for compulsory amendment directed to paragraph 4 or the alternative writ, and a motion to strike paragraph 3 thereof. The motion to quash the alternative writ was sustained by the lower court and the case dismissed. From this adverse ruling an appeal has been perfected to this Court and the same is here for review.
Counsel for the respective parties have posed several questions to be decided by this Court: (a) Can the relator fix upon the respondent, as a ministerial officer, the responsibility of determining the constitutionality of Chapter 18312, supra; (b) can the court in a mandamus proceeding be required to pass upon the constitutionality of Chapter 18312,supra, on the showing made by the relator; (c) is not the alternative writ of mandamus fatally defective in merely alleging certain acts set up therein with reference to the use of the property? (d) other questions not necessary to recite are also presented for a decision.
It is academic in mandamus proceedings that a motion to quash the alternative writ for the purpose of a hearing admits as true all facts appearing therein well pleaded. It is essential that the alternative writ should show a clear, prima facie case in favor of the relator. See State v. Jacksonville Terminal Co., 71 Fla. 295, 71 So. 474; State ex rel. Baldwin v. Brockett, 95 Fla. 937, 117 So. 107.
The alternative writ shows that the relator is a taxpayer and the owner of property located in Lake County, Florida, subject to taxation and the property described in the alternative *Page 236
writ was omitted from the tax roll for assessment purposes, and shows or makes clear that the relator has a pecuniary interest in causing to be placed upon the tax roll of Lake County all property subject to taxation. If an official omits or fails to perform a plain official duty, then a writ of mandamus is the proper remedy to compel a performance thereof. See State exrel. Dofnas Corp. v. Lehman, 100 Fla. 1401, 131 So. 333; Stateex rel. Board of Comm'rs v. Helseth, 104 Fla. 208, 140 So. 655; State ex rel. Howarth v. Jordan, 105 Fla. 322, 140 So. 908.
It has been made to appear by appropriate allegations in the alternative writ of mandamus here sought to be quashed that the property of the Lake County Medical Center, Inc., a corporation, is not being used exclusively for religious, scientific, educational, literary, or charitable purposes so as to exempt the property of said corporation from taxation under the provisions of Section 16 of Article XVI of the Constitution of Florida.
It is the law of Florida that the application of a statute in a particular case may violate organic law, but the statute as framed may not be unconstitutional when properly applied. See Dutton Phosphate Co. v. Priest, 67 Fla. 370, 65 So. 282.
We do not think it material on this record at this time to rule on the constitutoinality of Chapter 18312, Laws of Florida, Acts of 1937, but the testimony should be taken and the law properly applied to the facts then appearing in the record.
The judgment appealed from is hereby reversed.
WHITFIELD, P. J., BROWN and CHAPMAN, J. J., concur.
TERRELL, C. J., concurs in opinion and judgment.
Justices BUFORD and THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court. *Page 237 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3846596/ | Argued December 1, 1931.
This is an action of assumpsit brought by plaintiffs to recover from the estate of William B. Shugars, deceased, the amount of certain federal income taxes which were assessed against the Liberty Brewing Company and which plaintiffs or the corporation were required to pay. After a trial in the court below and verdict and judgment in plaintiffs' favor, defendant administrators took this appeal.
On October 15, 1920, Shugars and others, owners of all of the capital stock of the Liberty Brewing Company, *Page 95
by agreement in writing sold 395 shares of it to plaintiffs and the remaining 100 shares to the Liberty Brewing Company itself. The full consideration due to the vendors has been paid.
The agreement contained the following clauses: "The parties of the first part [the sellers] agree that other than the first mortgage now owned by the Miners Realty Co., and the second mortgage bonds outstanding there are no debts owing by the Liberty Brewing Co., and if any other debts be found that have been incurred by the Liberty Brewing Co. prior to October 10, 1920, that they the parties of the first part agree to pay the same and be personally liable for the same. The parties of the first part agree that they are and will be personally liable for all things done in connection with the operation or management of the business of the Liberty Brewing Co., prior to the date of this agreement."
On October 24, 1924, the brewing company received notice from the treasury department in Washington that an audit of its income tax returns and of its books of account had disclosed a deficiency in tax of $21,541.25, of which $17,250 was for the fiscal year ending October 31, 1919. This sum the plaintiffs and the brewing company were compelled to pay and in this action recovery of that amount is sought from the estate of Shugars under the provisions of the agreement above quoted between him and plaintiffs. We held on a prior appeal, Yadusky v. Shugars, 301 Pa. 99, that the action might be maintained against the estate of Shugars alone, since the obligation is several as well as joint.
A number of questions are raised by appellants. They need not be discussed seriatim for the reason that, in our opinion, under the plain language and manifest intent of the agreement, plaintiffs are entitled to recover. It is apparent from the writing that plaintiffs in purchasing the stock were to get it clear of any charge against the company except the first and second mortgages. The contract says the sellers agree that with these two exceptions *Page 96
there are no debts owing by the company, and if any other debts be found which have been incurred by it, they agree to pay them and to be personally liable therefor. They also agree to be personally liable for all things done in connection with the operation or management of the business of the company prior to the date of the agreement. It would be too narrow a construction of this undertaking, having in view the intention of the parties which it discloses, to hold, as appellants would have us, that the word debts does not comprehend taxes within the terms of this agreement. Even granting that the contract is one of indemnity, as appellants argue, which is certainly open to debate, it is the direct undertaking of the sellers of the stock to pay liabilities which should thereafter appear to have been owing by the company. It may be true, as appellants urge upon us, that the term "debts" in its technical sense is not ordinarily understood to embrace an obligation in the nature of a tax. Yet it is equally clear that the purpose of this agreement was to make certain what the plaintiffs were buying and to render them, so far as possible, safe from undisclosed obligations and liabilities of the corporation. Nor are authorities lacking in support of our construction of the term "debts" where agreements of this character are involved. Morrow v. Hays, 226 Mich. 301, presents facts almost exactly similar to the case at bar. There the defendants, who owned the entire capital stock of a corporation, sold the stock to plaintiffs under an agreement covenanting that at the date of sale there were no valid and legal debts against the corporation, except (as in our case) certain stated obligations, and agreed to hold the purchasers harmless against any and all "legal indebtedness" against it except those named. Subsequent to the transfer of the stock the plaintiffs were notified by the federal government that there was due from the corporation an income and excess profits tax liability for a year prior to the sale. Plaintiffs paid the tax in full, together with the accrued penalty, and *Page 97
sued the vendors of the stock to recover the sum paid. The Supreme Court of Michigan, in affirming a judgment for the full amount, held that the tax liability was embraced within the meaning of debt as used in the agreement. To the same effect is the decision in Jones v. Heinzle, 130 N.E. Rep. 815, by the Appellate Court of Indiana; and it is interesting to note that in this case, as in the one at bar, recovery was allowed even though no assessment of the tax had been made at the time the sale was completed, on the theory that the debt arose through the existence of the statute, and assessment is unnecessary to create the obligation. See Dollar Savings Bank v. United States, 19 Wall. 227, 240, and United States v. Chamberlin,219 U.S. 250, 263. Finally, in Dingle v. Camp, 121 Wash. 393, the court held, in construing just such an agreement as now before us, that unpaid income taxes for previous years are a debt within the terms of the contract.
If the provision as to payment of debts was in any degree doubtful, or if there were any question in our minds that in contemplation of the parties the term debts included recoverable liabilities of the company, this doubt would be set at rest by the further provision that the sellers are personally liable for all things done in connection with the operation or management of the company prior to the date of the agreement. In the management of the company before that time an income tax return had been made to the federal government which did not disclose the full amount due. As to this the vendors had agreed by the language they used that they would be personally liable for its correctness as something done in the management of the company. As the manifest purpose of the agreement was to secure to the purchasers the value of the stock which they were buying and as the necessary effect of the levying of the additional tax was to reduce its value, these taxes were among the possible obligations against which the sellers were safeguarding the buyers. The vendors were responsible *Page 98
for the income tax return as it was made and they cannot escape responsibility to plaintiffs for what it failed to disclose under a narrow construction of the agreement which would not include taxes justly due and properly payable under the designation of debts.
We cannot adopt the idea of appellants that the measure of plaintiffs' recovery is the difference between the value of the stock held by them immediately before the assessment of the taxes and its value immediately afterwards, because that is not what the agreement provides. It stipulates that the sellers will pay the debts and be personally liable for the same.
The judgment is affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3359961/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
I
This is an appeal taken by the plaintiff, Marie Young, pursuant to General Statutes, Section 10-151 (e), from a decision by the defendant, the New Haven Board of Education ("the Board"), CT Page 1692-a terminating her contract of employment.
On March 27, 1997, the plaintiff was a physical education teacher, employed by the defendant and assigned to the Jackie Robinson School. The plaintiff was tenured and had twenty seven years' service in the New Haven public school system. On March 27th some twenty two students, members of a physical education class conducted by the plaintiff, were required to undergo a search following an allegation made by one student that money belonging to her was missing. By letter dated April 3, 1997, Reginald Mayo, Superintendent of Schools, notified the plaintiff that he had decided to pursue consideration of the termination of her contract, based on the plaintiff's role in said incident.
On April 4, 1997, the plaintiff requested a statement of the reasons for the proposed termination of her contract of employment. Mayo advised the plaintiff by return letter that her contract was under consideration for termination for (1) inefficiency or incompetence; (2) insubordination against reasonable rules of the New Haven Board of Education; and (3) other due and sufficient cause.
On April 17, 1997, the plaintiff requested a hearing before an impartial hearing panel pursuant to General Statutes Section10-151 (d), A panel was selected and hearings were held on May 6, May 28, June 4, 11, 14, 17; July 3, July 7; September 2, 15, 24, 1997. The panel, with one member dissenting, issued its findings and recommendation on November 7, 1997. The panel majority recommended that the plaintiff not be terminated. The dissenting member issued findings of fact and recommended that the plaintiff's contract of employment be terminated.
The defendant Board met on November 13, 1997 and, after deliberation, issued its decision terminating the plaintiff's contract of employment. In doing so, the Board adopted the panel majority's findings of fact as well as some 32 additional findings of the dissenting member but rejected the majority recommendation and terminated the plaintiff's contract of employment. The defendant Board issued a written "Final Decision" on November 20, 1997 stating that the plaintiff's termination was justified for six reasons. This appeal followed.
II
The incident giving rise to this appeal occurred on March 27, CT Page 1693 1997, during the fifth school period. The plaintiff was conducting a physical education class for some twenty two girls from the fifth and sixth grades. Toward the end of class one student informed the plaintiff that ninety one dollars belonging to the student was missing. The plaintiff asked all the girls to return to the locker room The plaintiff then telephoned an assistant principal's office to request that an administrator be sent to the gym. Assistant Principal Gloria Rogers arrived at the gym, followed by Cassandra Lang, a security aide, whom Rogers had asked to accompany her. Rogers questioned the girls and ascertained that forty, not ninety one, dollars were allegedly missing. While Rogers was talking to the girls, one student approached the plaintiff and told her she thought she knew who had the money. The plaintiff told the girl to "hold on a minute", but never followed up on this claim. The plaintiff never ascertained the name of the student nor informed Rogers of the student's claim. Rogers told the girls, "If the money [is] not found you will have to be searched". In describing the search to be done, Rogers used the word "strip" or "stripped". When the missing money was not forthcoming, Rogers instructed the plaintiff and Lang to take the girls into the plaintiff's office one at a time to be searched.
The plaintiff and Lang entered the office. The plaintiff adjusted a curtain in a window so that no one outside the office could look in. When the first girl to be searched entered the office Lang asked the plaintiff, "How are we going from there?" Lang first told the girl to remove her shoes and turn her socks inside out. Lang then told the student to turn her pants pockets inside out. No money was found. Lang then asked the plaintiff what she should do next and the plaintiff replied, "Check her waistband". All twenty two girls in the plaintiff's class were searched. The search consisted in having the students remove their shoes and socks, then pull their pants down, then pull their panties down to their knees; those wearing bras were also told to pull up their shirts and shake out their bras. The plaintiff was present during the search and neither told Lang not to search the girls nor that it was wrong, to do so.
The defendant board voted to terminate the plaintiff's contract of employment for her role in this incident.
III
In its Final Decision, dated November 23, 1997, the board CT Page 1694 stated six reasons in justification of the plaintiff's termination:
1. Ms. Young chose not to familiarize herself with the Board's policy [regarding student searches] or even read it. Ms. Young's neglect represented inefficiency or incompetence and other due and sufficient cause for the termination of her contract of employment with the Board.
2. During this search, Ms. Young was present, gave some instructions on the conducting of the search and at the very least, did nothing to prevent or stop the search. Ms. Young, in fact, made sure to close the curtains on the window to her office prior to starting the searches. The search required the female students to remove their shoes and i socks, lower their pants and panties at least to their knees and, in some cases, raise their shirts or blouses above their bras. These actions were in violation of the Board's published policy regarding student searches. Ms. Young's actions, and failures to act, represented inefficiency or incompetence, insubordination against reasonable rules of the Board, and other due and sufficient cause for the termination of her contract of employment with the Board.
3. Ms. Young was, prior to the search, given information regarding the possible identity of the potential thief. Ms. Young never followed up on the information or informed the administrator present of the information. Ms. Young's failure to properly handle information which could have eliminated or greatly reduced the necessity for a search represents inefficiency or incompetence, and other due and sufficient cause for the termination of Ms. Young's contract of employment with the Board.
4. The search caused feelings of anger and shame in, and negative impact on self-esteem of, students involved. Engendering such feelings not only causes harm to the students involved, but is disruptive of the educational environment in the school system, creating a lack of trust and a concern for personal integrity which is not conducive to an appropriate educational environment. Further, negatively impacting on student self esteem and engendering feelings of student anger toward school staff is detrimental to maintaining discipline in the schools. These affects represent inefficiency and incompetence, and other due and sufficient cause for the termination of Ms. Young's contract of employment with the Board. CT Page 1695
5. Connecticut Teaching Competencies and the Code of Professional Responsibilities for Teachers indicate that teachers should be empathetic to and cognizant of the feelings and needs of the students . . . Ms. Young's failure to demonstrate the appropriate empathy and concern for her students represents inefficiency or incompetence or other due and sufficient cause for the termination of her contract of employment with the Board.
6. [T]he supplemental findings [of the dissenting member of the panel] includes uncontradicted evidence from a qualified medical doctor who is an expert in the field of child psychiatry that the search in question had severe and long-lasting potential impact on a number of the students involved . . . This potential harm, and Ms. Young's demonstrated lack of concern for the situation in which her students were placed, represents inefficiency and incompetence, and other due and sufficient cause for the termination of Ms. Young's employment with the Board.
IV.
This appeal is taken pursuant to General Statutes, Section10-151 (e). Section 10 151(e) in pertinent part provides: "Any teacher aggrieved by the decision of a board of education . . . may appeal therefrom . . . to the Superior Court." "The court, upon appeal and hearing thereon, may affirm or reverse the decision appealed from in accordance with subsection (j) of §4-183."
General Statutes § 4-183 provides, in pertinent part:
"(j) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
The plaintiff's complaint alleges all six grounds as bases CT Page 1696 for sustaining her appeal
The plaintiff argues, first, that she did not participate in the searches, but at most observed said searches; second, she was not at fault because she was unaware of the defendant Board's policy by virtue of the Board's failure to disseminate said policy in an, meaningful way; third, in being present during the searches the plaintiff was following the instructions of a supervisor. The plaintiff also claims that the Board, in terminating her contract of employment denied her rights both to procedural and substantive due process and acted contrary to the public policy expressed in General Statutes §§ 10-220, 10-151
and 10-151 (b).
V.
A school board, when considering termination of a tenured teacher's employment, acts like an administrative agency, in a quasi-judicial capacity, Barnett v. Board of Education,232 Conn. 198, 206. A school board has a duty to afford a tenured teacher a fair hearing and to terminate an employment contract only for one or more of six reasons, enumerated in the statute, which reasons must be supported by a fair preponderance of the evidence, Catinov. Board of Education, 174 Conn. 414, 417; General Statutes, Section 10-151 (d). In challenging an administrative agency action, a plaintiff has the burden of proof, Samperi v. InlandWetlands Commission, 226 Conn. 579, 587. The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion, Id. The plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision, Id.(citations omitted). Courts have no general equitable jurisdiction to oversee the decisions of school hearing panels and school boards (citation omitted) Sekor v. Board ofEducation, 240 Conn. 119, 131. In reviewing the decision of a school board, the court's ultimate duty is only to decide whether, in light of the evidence, the {Board} has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion, Barnett v. Board of Education. supra, at 207. "Conclusions of law reached by the [Board] must stand if the court determines that they resulted from a correct application of the facts found and could reasonably and logically follow from such facts", Id. at 207, 208 (citations omitted).
VI.
CT Page 1697
A school board has discretion to accept or reject a recommendation from an impartial hearing panel, Rado v. Board ofEducation, 216 Conn. 541, 555 (citation omitted), but a board is bound by the panel's findings of fact unless unsupported by the evidence, Id. "The board is bound by the panel's findings of fact but not by its legal conclusions or by its recommendations",Barnett v. Board of Education, supra, at 206. When, as here, a dissenting panel member makes findings of fact, the Board is free to adopt a dissenter's finding of fact, when such finding is supported by substantial evidence in the record, Id., at 214 "This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence" (citations, internal quotation marks, omitted), Id., at 211, 212.
In the case at issue, the impartial hearing panel made 109 findings of fact. The Board accepted and adopted these 109 findings, as well as 32 additional findings by the dissenting panel member. which the Board found not in conflict with those of the panel majority and supported by substantial evidence in the record. The court finds that there was substantial evidence in the record to support the board's adoption of the said additional findings of the dissenting panel member.
The Board is not bound by the panel majority's recommendation. Neither is the Board bound by statements in the sections of the panel decision entitled "Introduction, "Findings and Recommendations", and "Summary." The plaintiff repeatedly complain that the Board, in reaching its decision ignored the panel majority's "ultimate findings of fact", in apparent reference to the contents of the "Finding and Recommendations" section and perhaps the "Summary", as well. The Summary is a conclusion of law, based or several conclusions drawn by the panel majority from the evidence. The section, "Findings and CT Page 1698 Recommendations", is a melange of comments, conclusions and opinions, wherein the panel majority shares the analytical process it followed in reaching its; recommendation, offers a wide-ranging critique of certain Board policies not directly related to the issues at hand, reviews what the panel majority deemed salient case law applicable to this case and shares its views on the effects of searches such as occurred here on children. The Board is not bound by the contents of either the "Finding and Recommendations" or "Summary" sections, though it is free to utilize such contents if it so desires.
The plaintiff repeatedly complains that the defendant Board has engaged in "cherry picking" by basing its conclusions on certain findings of fact while ignoring other "equally strong" or "salient" evidence. The plaintiff misconstrues the responsibilities of the Board and misapprehends the substantial evidence rule. The Board is not required to give equal weight to every finding of fact, nor is it required to draw the same inferences from findings of fact as did the panel majority. The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence, (citations, internal quotation marks omitted), Barnett v. Board of Education, supra, at 214.
The plaintiff also misconstrues the relationship between the Board and the panel, suggesting that the court should apply its standard of review of an administrative agency's decision to the panel majority decision, asking the court to find that "the panel findings are consistent with the evidence on the record, that the panel properly applied a civil burden of proof and that there was no showing that the panel acted illegally, arbitrarily and capriciously". The short answer is that even if the panel's decision met these criteria a defendant Board would not be bound by the panel's recommendation but would be free to draw differing conclusions from the same set of facts, The court's job is to apply the proper standard of review to the Board's decision and to determine if the Board's decision j is supported by substantial evidence in the record.
VII.
As its second reason for terminating the plaintiff's contract of employment, the Board states that during the search at issue, "Ms. Young was present, gave some instructions on the conducting CT Page 1699 of the search and at the very least, did nothing to prevent or stop the search." "Ms. Young's actions, and failures to act, represented inefficiency or incompetence, insubordination against reasonable rules of the Board, and other due and sufficient cause" for termination of her contract.
The court finds that on March 27, 1995 there was in effect a Board policy regarding student searches and that the searches at issue were in violation of said policy. The court finds that there is substantial evidence in the record from which the Board could conclude that the plaintiff was aware of the searches in question, participated in them and did nothing to prevent or stop them, notably Findings of Fact:
38. Rogers instructed Young and Lang to take the girls into Young's office one at a time to be searched.
42. Young and Lang then went into Young's office.
43. Young's office has a window. After Young and Lang entered the office, followed by the first student who would be searched, Young adjusted the curtains by the windows to make sure they would be fully closed so that no one could peek through.
46. When [the first] child entered the office Lang asked Young, "How are we going from there?"
47. Lang told [the child] to remove her shoes and turn her socks inside out. Lang then told [the child] to turn her pockets inside out. She found no money.
48. Lang then asked Young what she should do next and Young replied. "Check her waistband."
49. All 22 students in Young's fifth period class were searched for the missing money.
50. The search consisted of the students removing their shoes and socks and pulling their pants and panties down to their knees and, subsequently, if they were wearing a bra, pulling up their shirts to expose the bra area.
50a. Young was present during this search and neither told Lang not to search these girls nor that it was wrong to search them. CT Page 1700
51. On March 27, 1997, Young explained to Principal Freeman and Rogers "that the girls were asked if they had bras on, to pull up their shirts, and only if they had big shirts on, to pull their pants to their knees".
A teacher may be deemed incompetent for failure to perform duties other than competent classroom teaching, including violation of school rules, 68 Am.Jur.2d, S. 150. Competency encompasses deficiencies in personality, composure, judgment and attitude which have a detrimental effect on a teacher's effectiveness, 78 C.J.S. Section 277. A teacher's lack of judgment may be deemed incompetence, Tichenor v. Orleans ParishSchool Board, 144 So. 2d 603, 605.
Based on substantial evidence in the record, the Board was entitled to conclude that the plaintiff did participate in a search which was in violation of Board policy on student searches and that such participation constituted incompetence and other due and sufficient cause warranting termination of her contract of employment.
With regard to the defendant Board's claim that the plaintiff's conduct constituted insubordination against reasonable rules of the Board, the court finds that a requisite element of insubordination is "willfulness", that is, that an offender, cognizant of a reasonable rule, deliberately violates such rule. The court finds nothing in the record to support a claim that the plaintiff had knowledge of the policy at issue and deliberately violated said policy.
With regard to the Board's third stated reason for termination, that the plaintiff failed to pass on to Rogers "information regarding the possible identity of the potential thief", the court finds the premise on which the claim is based speculative and concludes that such failure by the plaintiff, if true, would not rise to the level of inefficiency, incompetence or other due and sufficient cause warranting termination of the plaintiff's, contract.
VIII
The Board cites the plaintiff's failure to familiarize herself with its student search policy as a reason for termination. CT Page 1701
There was such a policy in effect on March 27, 1997. Was said policy reasonably calculated to provide proper guidance to teachers, administrators and staff as to the limits to, procedures for, and propriety of student searches? If so, was said policy stated in I language understandable to the average teacher? If so, was the policy adequately disseminated to those who were expected to adhere to it?
In order to ensure that teachers were made aware of Board policy, the schools administration extracted some of the most important policies from the Board Policy manual in late August or early September, 1995 and published them in an Administrative Procedures booklet, (Exhibit FOF #64). Copies of the Administrative Procedures booklet were sent in late August or early September, 1995, to the principals of each school in the system for dissemination to students, parents and staff, including teachers (FOF #65). The booklet was again published in 1996 and put in orientation packages that were distributed to students, parents and staff, including teachers (FOF #67). The Administrative Procedures booklet was put in teachers' mailboxes (FOF #68). The plaintiff first became aware of the Administrative Procedures booklet during the 1996-97 school year when a copy was placed in her mailbox (FOF #69). The plaintiff is aware the Board institutes policies from time to time and she is also aware that these policies govern her as a teacher in the New Haven public school system (FOF #70). Despite this, the plaintiff has never read anything in the Administrative Procedures booklet and has no knowledge of what it contains. When the plaintiff received the booklet she only "peeked" at it (FOF #71).
The Board's student search policy in pertinent part and as set forth in the Administrative Procedures booklet, is attached as Appendix 1 (FOF #73).
The court finds that the Board's policy on student searches was reasonably calculated to protect the rights of the students while giving due consideration to school officials' responsibility to create and maintain an environment consistent with the schools' educational mission. The policy was coherent, logical and presented in sufficient clarity and detail so as to be readily applicable by competent teachers in situations arising which might call for implementation of the policy. The policy, as stated, was neither overbroad, contradictory, nor confusing. The court concludes that no competent teacher, conversant with the Board policy regarding student searches, would have conducted, CT Page 1702 participated in, or acquiesced in the searches conducted on March 27, 1997. Indeed, the plaintiff makes no claim that the said searches comported with Board policy. Rather she argues that she was unaware of the Board policy by reason of the Board's failure to disseminate said policy in any meaningful way. The plaintiff further argues that "meaningful dissemination" necessarily must include instruction as to the meaning of the Board's student search policy and attendant rules and regulations
There is nothing in the record to indicate that the Board did anything to disseminate its student search policy to the plaintiff, other than to distribute the Administrative Procedures booklet. The defendant, not surprisingly, believes that such dissemination was adequate.
The court finds that the defendant Board's distribution of the Administrative Procedure Booklet sufficed to meet the minimal requirement of meaningful dissemination to the plaintiff.
The plaintiff argues that lacking instruction a teacher should not be deemed incompetent or inefficient for lacking technical knowledge regarding complex legal issues. The defendant argues that "simple common sense" should have alerted the plaintiff that the searches at issue were wrong, citing Doe v.Renfrow, 631 F.2d 91, 92, 93. Common sense maintains a proper place in a judicial or administrative proceeding, Huck v. InlandWetlands Watercourses Agency, 203 Conn. 525, 537, fn. 9 (citation omitted). Black's Law Dictionary (Revised Fourth Edition, 1968) defines common sense as: "sound practical judgment . . . ." A teacher, as a professional, is expected to exercise sound practical judgment in the situations which confront her in the course of her duties. No training in complex legal issues is required to understand such rules as: "At no time should school officials conduct a search which requires a student to remove more clothing than his/her shoes or jacket". The court finds that the panel's findings of fact (FOF #64, 65, 67, 68, 69, 70, 71) provide substantial evidence in the record to support the Board's finding that the plaintiff "chose not to familiarize herself with the policy or even read it." The court finds that the Board was entitled to conclude that the plaintiff's failure to acquaint herself with the said policy constituted incompetence.
IX
CT Page 1703
The fourth, fifth and sixth grounds for termination of the plaintiff's contract asserted by the defendant Board have to do with the impact of the searches on the students involved and the plaintiff's responsibility toward the children in the circumstances.
The Board concluded that the search caused feelings of anger and shame in, and negative impact on self-esteem of, the students involved. In rebuttal, the plaintiff cites the panel majority's conclusion that "there was absolutely no scintilla of evidence that any child suffered any harm of any kind".
The panel's Finding of Fact 56a states:
"The girls also felt a sense of betrayal and shame for not having spoken up more against being searched and for not having stopped the search."
The panel's Finding of Fact 56b states:
"The four girls experienced a feeling of suppressed anger, such as one would feel in a situation in which one is being bullied."
These findings suffice to support the Board's conclusion that the search caused feelings of anger and shame in, and negative impact on self-esteem of, the students involved. This conclusion is bolstered by the additional findings of fact (FOF #56(A) through #56(N), #56(Q), #56(R)) submitted by the dissenting panel member and adopted by the Board.
The court finds there is substantial evidence in the record, from which the Board could conclude that the student searches at issue caused harm to the children involved and were disruptive of the educational environment in the school system and that the plaintiff's acquiescence, and participation in, said searches constituted incompetence and other due and sufficient cause for termination of her contract of employment.
It is undisputed that the plaintiff's professional conduct is governed by the Connecticut Teaching Competencies, which lists the skills and abilities which a teacher should possess and by The Code of Professional Responsibility for Teachers ("the Code"). According to the Connecticut Teaching Competencies, a competent teacher helps students develop positive self concepts CT Page 1704 by recognizing and understanding the worth of all students and demonstrating sensitivity and respect for the needs and feelings of all students. According to the Code, teachers shall "recognize, respect and uphold the dignity and worth of students as individual human beings, and therefore deal justly and considerately with students" (FOF # 63). The court finds there is substantial evidence in the record from which the defendant Board could conclude that the plaintiff's conduct with regard to the student searches at issue failed to demonstrate the appropriate empathy and concern for the students involved and that such failure represented incompetence and other due and sufficient cause for termination of her contract of employment.
The defendant's sixth ground asserted is that there was uncontroverted evidence from a qualified medical doctor who is an expert in field of child psychiatry that the search in question had severe and long-lasting potential impact on a number of the students involved, and that this potential harm, and Ms. Young's demonstrated lack of concern for the situation in which her students were placed, represents inefficiency and incompetence, and other due and sufficient cause for termination of the plaintiff's employment. The Board was entitled to utilize the expert's testimony, as reflected in the findings and alternative findings of fact, in reaching its decision, but the court finds that the defendant has failed to state in its sixth reason, an independent ground sufficiently distinct from the fifth reason, on which to base a decision to terminate the plaintiff's contract of employment.
X
The plaintiff alleges that the Board's actions violated her right to procedural due process. Established constitutional principles recognize that the property interest of a i tenured teacher in her employment entitles the teacher "to continued employment except; upon a showing of cause for termination or a bona fide elimination of the teaching position . . . [The right to continued employment] is a property right protected under the due process clause of the fourteenth amendment to the United States constitution (citations omitted). The protection constitutionally afforded to a tenured teacher is a right to "some form of hearing" and to other procedural safeguards such as a "written statement of the [employment] decision reached, the reasons for the determination, and a fair summary of the evidence relied upon". However, "[t]he Due Process Clause of the CT Page 1705Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions" (citations omitted)., Sekor v. Boardof Education, 240 Conn. 119, 129.
"The statement of reasons and a fair summary of the evidence relied upon need not reflect the polish of a judicial opinion. Reasoned and fair decision making, not technical finesse, is guaranteed by the due process standard of the state and federal constitutions", Lee v. Board of Education, 181 Conn. 69, 80. Applying these standards to the instant matter, the court finds that the plaintiff was accorded the requisite procedural due process, including adequate notice and opportunity to be heard, a written statement of the Board's decision, the reasons for the determination and a fair summary of the evidence relied upon. The plaintiff's claim of deprivation of procedural due process is unpersuasive.
XI
The plaintiff also claims that the Board, by its actions, has deprived her of substantive due process. Even when the minimum requirements of procedural due process are met, substantive due process guarantees against arbitrary and capricious official actions still apply, Helm v. Welfare Commissioner,32 Conn. Super. Ct. 595, 603 Substantive due process protects individuals against government action that is arbitrary, shocking to the conscience or oppressive in a constitutional sense, but not against government action that is incorrect or ill-advised, Lawrence v.Achtyl, 20 F.3d 529, 537. (2d cir. 1994). The plaintiff argues that the Board's decision was so egregious that it should be considered arbitrary and oppressive in a constitutional sense, in that the defendant Board voted to terminate the plaintiff "when no evidence suggested such a course of action". Because this court has found that there was substantial evidence in the record to support the board's decision to terminate the plaintiff's contract of employment, this claim must also fail. The court finds that the plaintiff was not denied her right to substantive due process by any action or omission of the defendant Board.
Finally, the plaintiff claims that the Board's decision to terminate the plaintiff violates the public policy inherent in General Statutes, Section 10-151. That statute ensured that a tenured teacher's contract of employment cannot be terminated except for cause. The defendant panel blatantly ignored the findings of the impartial hearing panel, the plaintiff claims, CT Page 1706 and terminated her without cause. This, claims the plaintiff, defeats the public c policy of insuring high quality education in Connecticut. Because this court has found that there was substantial evidence in the record to support the Board's decision to terminate the plaintiff's contract of employment, this claim must also fail.
XII
The court finds that the plaintiff, Marie Young, has failed to establish, by a fair preponderance of the evidence, that the defendant, the New Haven Board of Education's decision to terminate the plaintiff's contract of employment, was; in violation of General Statutes, Section 10-151, in particular, Section 10-151 (e); in excess of the Board's statutory authority; based upon unlawful procedure; affected by other error of law; clearly erroneous in view of the reliable, probative and substantive evidence from the whole record; arbitrary, capricious and characterized by abuse of discretion or clearly unwarranted exercise of discretion; or contrary to the public policy expressed in Section 10-220, Section 10-151 and Section 151(b) of the Connecticut General Statutes.
Accordingly, the decision of the defendant Board of Education, terminating the contract of employment of the plaintiff, Marie Young, is affirmed
The relief requested by the plaintiff is denied and her Complaint is dismissed.
By the Court,
Downey, J.
Appendix 1
73. The Board's search and seizure policy, as set forth in the Administrative Procedures Manual, provides in relevant part:
Students
Search and Seizure
* * * CT Page 1707
Student Search
A student may be searched if there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated either the law or the rules of the school. The scope of the search must be reasonable related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
Justification for Student Searches
Students possess the right to be free of unreasonable searches and seizures under the Fourth Amendment of the Constitution of the United States. Balanced against this right is the school official's responsibility to create and maintain an environment consistent with the school's educational mission. School Officials have a duty to protect the health, safety and welfare of all students under their authority.
* * *
Student Searches
School authorities are authorized to conduct searches of students or their property when reasonable suspicion indicates that a particular student is in possession of an item or a substance that represents a material threat to school routine or is prohibited by school board regulations or by law. Student property shall include, but not be limited to, purses, bookbags and cars. If students do not have access to their cars during school hours, the justification for searching student-driven cars is removed.
School authorities in cooperation with the local police department reserve the right to conduct sniff searches with dogs of school property and student-driven cars.
* * *
Student Searches
All searches of students shall be conducted or authorized by the principal or designee, in the presence of a witness.
When the need to search a student arises, the student may be CT Page 1708 asked to give his or her consent to the search, but in no even shall the student be threatened with harsher punishment or treatment for refusing to consent, nor shall he or she be coerced or induced to give consent in any other manner. The consent, if given, shall be put in writing. If the student is unwilling to give free and voluntary consent, the school administrator may order the student to submit to a search. If the student refuses to obey the order, the school administrator may bring insubordination charges against the student as stipulated in applicable school regulations.
Searches should be no more intrusive than necessary to discover that for which the search was instigated.
A search of a student's handbag, gym bag or similar personal property carried by the student may be conducted if there is "reasonable grounds" for suspecting that the search will turn up evidence that the student has violated or is violating wither the law or the rules of the school.
Locker searches shall be conducted in the presence of another staff member and in the presence of the student responsible for the contents of the locker, if possible.
Searches may include, if school authorities think necessary, a frisk or patdown of student clothing. Frisk or patdown searches shall be conducted by a member of the same sex as the student and in the presence of another staff member.
At no time should school officials conduct a search which requires a student to remove more clothing than his/her shoes or jacket. If school authorities are convinced that a more intrusive search is required to expose contra brand they should advise the proper law enforcement agency.
A search of a student's person, or a search of a group of students where no particular student within the group is suspected, may be conducted only if there is a reasonable suspicion of conduct immediately harmful to students, staff or school property. "Strip searches" of students by employees of this school district, are prohibited.
Student searches which disclose evidence of school misconduct, but no criminal misconduct, should be treated according to applicable policies and/or regulations. CT Page 1709
In the event that a student search discloses evidence of criminal wrongdoing, the school principal or his/her designee shall determine whether or not police officials should be notified of the fruits of the search. If police officials are notified the student's parents should be advised of this fact as soon as possible.
Students shall be informed annually that board policy allows student search and school desk/locker search. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1713721/ | 358 So. 2d 536 (1978)
William GALLANT, Appellant,
v.
Cliff STEPHENS, Don Jones, Jeanne Malchon, Charles E. Rainey, G. Patrick Iley, Merrett Stierheim, O. Sanford Jasper, Mac Haines, James T. Russell, Robert Shevin, and J. Ed Straughn, Appellees.
No. 48604.
Supreme Court of Florida.
January 26, 1978.
Rehearing Denied June 5, 1978.
*537 Jack F. White, Jr., Clearwater, and Joseph C. Jacobs of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
Michael S. Davis, Chief Asst. City Atty., St. Petersburg, W. Gray Dunlap, County Atty. and Gerald A. Figurski, Asst. County Atty., Clearwater, and Robert L. Shevin, Atty. Gen. and Larry Levy, Asst. Atty. Gen., Tallahassee, for appellees.
Ralph A. Marsicano, Gen. Counsel, Tampa, and Burton M. Michaels, Staff Atty., Tallahassee, for Florida League of Cities, Inc., amicus curiae.
Robert L. Nabors, County Atty., Titusville, for Board of County Commissioners of Brevard County, amicus curiae.
Edward M. Jackson, Cocoa, and Joseph C. Jacobs, Richard W. Ervin and Robert J. Angerer of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for Gilbert A. Tucker, et ux; Deseret Ranches of Florida, Inc.; Sun Bank of Ocala, etc.; F.E. Sullivan, III, et al.; A. Duda & Sons, Inc., etc.; Carolyn R. Kempfer, et al.; and Roy Platt, etc., amicus curiae.
ENGLAND, Justice.
By direct appeal we are asked to review an order of the Pinellas County Circuit Court upholding the constitutionality of Sections 125.01(1)(q) and (1)(r), Florida Statutes (1975), which together authorize counties to create "municipal service taxing units" having the power to impose ad valorem taxes without voter approval. We *538 have jurisdiction under Article V, Section 3(b)(1) of the Florida Constitution.
Following a series of legislative attempts to deal with this subject,[1] Sections 125.01(1)(q) and (1)(r) were amended in 1975 to read:
"(1) The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power shall include ... the power to: ...
(q) Establish ... municipal service taxing or benefit units for any part or all of the unincorporated area of the county within which may be provided ... essential facilities and municipal services from funds derived from ... taxes within such unit only. It is hereby declared to be the intent of the Legislature that this paragraph is the authorization for all counties to levy additional taxes, within the limits fixed for municipal purposes, within such municipal service taxing units under the authority of the second sentence of Art. VII, Section 9(b) of the state constitution.
(r) Levy and collect taxes, both for county purposes and for the providing of municipal services within any municipal service taxing unit... . There shall be no referendum required for the levy by a county of ad valorem taxes both for county purposes and for the providing of municipal services within any municipal service taxing unit."
Purportedly acting pursuant to this legislative authorization, the Board of County Commissioners of Pinellas County adopted a resolution creating a municipal service taxing unit, for a variety of services, coextensive with the entire unincorporated area of the county.[2] The Board designated itself the governing body of the taxing unit. Appellant, a taxpayer and property owner in the unincorporated area of Pinellas County, challenges the constitutionality of the resolution and enabling legislation.[3] His principal challenge is grounded in Article VII, Section 9 of the Florida Constitution (1975), which provides in relevant part:
"(a) Counties, school districts, and municipalities shall, and special districts may, be authorized by law to levy ad valorem taxes and may be authorized by general law to levy other taxes, for their respective purposes... .
(b) Ad valorem taxes ... shall not be levied in excess of the following millages upon the assessed value of real estate and tangible personal property: for all county purposes, ten mills; for all municipal purposes, ten mills; for all school purposes, ten mills; and for special districts a millage authorized by law approved by vote of the electors who are owners of freeholds therein not wholly exempt *539 from taxation. A county furnishing municipal services may, to the extent authorized by law, levy additional taxes within the limits fixed for municipal purposes."[4]
The principal issue before us is whether the Legislature has the power to authorize a county to furnish municipal-type services funded by ad valorem taxes, solely in its unincorporated area, without referendum, by creating a taxing unit comprising that geographical area. Other issues presented by the parties neither aid in the resolution of this important question, nor obviate the need to resolve it.[5]
The overall scheme of Article VII, Section 9 provides the starting point for our analysis. Entitled "Local taxes", that section provides certain local governmental units counties, municipalities and school districts with the authority to levy ad valorem taxes on real and tangible personal property[6] for county, municipal and school purposes up to a maximum of ten mills for each. It also authorizes "special districts" to tax for their districts to the extent of millage limits prescribed by the Legislature, with the approval of voters within the district. In addition, the last sentence of Section 9(b) expressly provides that a
"county furnishing municipal services may, to the extent authorized by law, levy additional taxes within the limits fixed for municipal purposes."
Against this pattern of millage and referenda strictures on local ad valorem taxation, the parties urge diametrically opposite positions. Appellant argues that the characteristics of a constitutionally authorized "special district" are indistinguishable from Pinellas County's proposed municipal service taxing unit, but for the absence of voter approval, and that the resolution and its enabling legislation are in reality designed both to avoid the legislative necessity of setting a millage limitation and to circumvent the referendum requirement for special districts. Appellees argue that the two entities are fundamentally different, in that special districts are separate units of local government while municipal taxing units are, by virtue of the last sentence of Article VII, Section 9(b), mere methods by which counties can tax not only for the county services they provide, but also for identifiable municipal services they offer. To support their point, appellees suggest that if municipal service taxing units are equated with special districts then the last sentence of Section 9(b) is meaningless.
Disposition of these conflicting positions, and the resolution of this case, requires that we resolve three questions. The major one is whether the last sentence of Section 9(b) enables a county, without referendum, to levy a municipal service tax in addition to other county taxes on county residents in unincorporated areas, or whether it restricts additional county levies for services furnished only to municipalities.
In construing provisions of the Florida Constitution, we are obliged to ascertain and effectuate the intent of the framers and the people. State ex rel. Dade County v. Dickinson, 230 So. 2d 130 (Fla. 1969); Gray v. Bryant, 125 So. 2d 846 (Fla. 1960). Where possible, we are guided by circumstances leading to the adoption of a provision. In this case we have attempted to discern the rationale which led to the adoption of the last sentence in Article VII, Section 9(b). Its history in the 1966 Constitution Revision Commission and in the Florida *540 Legislature supports appellee's view of its import.
It is reasonably clear from the minutes and notes of the Commission, and from the reports of the Legislature, that the focus of the last sentence of Section 9(b) was the delivery of municipal-type services by counties to all county residents, rather than the more narrow delivery of services solely to residents of intra-county municipalities. In fact, a proposal to restrict the last sentence of Section 9(b) so that it would authorize additional taxation only to the extent a county furnished municipal services "in unincorporated areas" was defeated in the Legislature on the ground that it would prevent counties from offering municipal services as well within municipal boundaries.[7] No historical material contradictory to these indicators has been called to our attention.
Consistent with this apparent rationale for the last sentence of Section 9(b), the Legislature has fashioned Sections 125.01(1)(q) and (1)(r).[8] In matters of constitutional interpretation, the Legislature's view of its authority is highly persuasive.
"[W]here a constitutional provision may well have either of several meanings, it is a fundamental rule of constitutional construction that, if the Legislature has by statute adopted one, its action in this respect is well-nigh, if not completely, controlling."[9]
Both the historical and legislative interpretations are also consistent with our decision in State ex rel. Dade County v. Dickinson, 230 So. 2d 130 (Fla. 1969), where we construed Section 9(b) to authorize a county-wide tax up to 20 mills for the combined municipal and county services offered by Dade County.[10] Indeed, our comments in that case may have precipitated passage of one feature of Section 125.01(1)(q). We there noted that the distinction between county and municipal purposes is an uncertain one, requiring immediate legislative attention. Section 125.01(1)(q), as enacted in 1971, expressly identified a non-exhaustive list of services which may be provided by municipal service taxing and benefit units.
For these reasons we conclude that the last sentence of Section 9(b) provides express authority for Sections 125.01(1)(q) and (1)(r), sanctioning taxing units as a method by which counties may tax to provide municipal services, within the 10 mill limit for "municipal purposes", without voter approval. Wholly independent of this county taxing power is the authority provided for "special districts" to meet the need for special purpose services in any geographical area which may (but need not) be within one county, under legislatively-set and voter-approved millage limitations.[11]
The second question to be answered in this litigation is whether the services offered by Pinellas County are in fact "municipal services". The trial court specifically found that the services proposed in the Pinellas County resolution do constitute municipal services, and that finding has not been challenged in this appeal.[12]
Finally, we need to inquire whether the county may offer these services solely in its unincorporated area. Section 125.01(1)(r) expressly so provides. The answer to this question, however, also calls into play another constitutional provision Article VII, Section 2 which requires ad *541 valorem taxes to be imposed "at a uniform rate within each taxing unit". Appellant notes that Pinellas County has designated itself as the governing body of the taxing unit, and that its proposal for a tax solely within its unincorporated areas obviously would not be "uniform" within county boundaries since it would not fall on the residents of intra-county municipalities. Appellees counter this contention by viewing the uniformity clause as applying to the objects of taxation the subjects within the unit actually being taxed rather than to the taxing authority itself. They suggest that a tax for Pinellas County's municipal taxing service unit is uniform within the "taxing unit" that is, the unincorporated area and they support this view by reference to Article VIII, Section 1(h) of the Constitution and our decision in Alsdorf v. Broward County, 333 So. 2d 457 (Fla. 1976). Together these authorities require a lower county-imposed tax rate in municipalities which receive no substantial benefit from the services provided by the tax revenue, thereby destroying uniformity within the county notwithstanding that the tax is "county" imposed.
Appellees' position is undoubtedly correct. Their view of the uniformity requirement in Article VII, Section 2 represents the only interpretation consistent with the whole Constitution. See Burnsed v. Seaboard Coastline Railroad, 290 So. 2d 13 (Fla. 1974).
We hold, therefore, that Sections 125.01(1)(q) and (1)(r), Florida Statutes (1975), are constitutional, and that the Pinellas County Commission's resolution establishing a municipal service taxing unit in the unincorporated area of the county without voter approval is valid. The order of the Pinellas County Circuit Court is affirmed.
It is so ordered.
OVERTON, C.J., and ADKINS, BOYD, SUNDBERG, HATCHETT and KARL, JJ., concur.
NOTES
[1] As originally enacted in 1971, this legislation provided authority for counties to create "special purpose districts", without indicating whether referenda would be required. Ch. 71-14, § 1, Laws of Florida. The Attorney General later opined that Art. VII, § 9(b) of the Florida Constitution required a referendum. Ops.Att'y Gen.Fla. 072-162 and 073-178. In 1974 the Legislature amended these provisions by substituting "municipal service taxing or benefit units" for "special purpose districts". Ch. 74-191, § 1, Laws of Florida. Despite an expression of intent in the legislation to the effect that § 125.01(1)(q) was enacted to extend taxing power under the second sentence of Art. VII, § 9(b), the Attorney General later advised that these units must be evaluated on the basis of their functions, not title, and that referenda were nonetheless required in the absence of a statutory directive to the contrary. Op.Att'y Gen.Fla. 075-24. In 1975 the Legislature added the last sentence of present § 125.01(1)(r) to provide specifically that referenda were not required. Ch. 75-63, § 1, Laws of Florida.
[2] Services embraced within the taxing unit include road repair, fire protection, law enforcement, recreation, garbage collection and disposal, and sewage collection. Each of these services is specifically identified in § 125.01(1)(q) as a type of "municipal service".
[3] Opposing appellant's challenge are various Pinellas County officials, the Department of Revenue, the City of St. Petersburg, and the Florida League of Cities, Inc. Amicus briefs have also been filed by the parties in Tucker v. Underdown, 356 So. 2d 251 (Fla. 1978), involving common issues.
[4] Although not relevant to this proceeding, we note that subsection 9(b) was amended in 1976 to authorize taxing powers for certain water management purposes. S.J.Res. 1061, Journal of the Senate (1975), approved by the voters of Florida on November 2, 1976.
[5] The only other issue which warrants discussion is appellant's contention that, under Art. VIII, § 1(f), Fla. Const., Pinellas County lacked the authority to create the municipal service taxing unit by "resolution" rather than by ordinance. This argument ignores § 125.01(1)(t), Fla. Stat. (1975), which implements Art. VIII, § 1(f) by authorizing a county to "[a]dopt ordinances and resolutions necessary for the exercise of its powers".
[6] The power to tax intangible personal property, which is not involved here, is available only to the state. Art. VII, §§ 1(a), 2 and 9(a), Fla. Const.
[7] These materials are found in the files of the Florida Supreme Court Library, entitled "Chronological Development of 1968 Constitution. Art. VII, § 9 Local Taxes."
[8] See also § 200.071(3), Fla. Stat. (1975).
[9] Greater Loretta Improvement Ass'n v. State ex rel. Boone, 234 So. 2d 665, 669 (Fla. 1969).
[10] Of course, the Court limited to an aggregate of 10 mills the revenues to be derived from the delivery of municipal services by both the county and any municipalities within county boundaries.
[11] Statutes have defined special districts as local units of special government (excluding school districts) created by authority of general or special law for the purpose of performing specialized functions within limited boundaries. §§ 165.031(5) and 218.31(5), Fla. Stat. (1975).
[12] See note 2 above. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/161579/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS SEP 18 2001
TENTH CIRCUIT PATRICK FISHER
Clerk
ARTHUR F. HARRIS,
Petitioner - Appellant,
v. No. 01-6188
(D.C. No. 00-CV-679-L)
JAMES L. SAFFLE, Director of the (W. District of Oklahoma)
Oklahoma Department of Corrections,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before EBEL, KELLY and LUCERO, Circuit Judges.
Pro se petitioner Arthur F. Harris, an Oklahoma state prisoner, seeks
a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) to appeal
the district court’s denial of his petition for a writ of habeas corpus as time-barred
under 28 U.S.C. § 2244(d). Because Harris has not made a substantial showing of
the denial of a constitutional right, we deny COA.
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The Court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
Harris was tried and convicted of two counts of lewd molestation in
Washita County district court and was sentenced to consecutive sentences totaling
fifty years based in part on two prior felony convictions. The Oklahoma Court of
Criminal Appeals (“OCCA”) affirmed his conviction on August 5, 1997, and
Harris did not file a petition for writ of certiorari in the United States Supreme
Court. On June 5, 1998, Harris filed dual applications for post-conviction relief
in Custer County and Washita County district courts. The state courts denied the
applications, and the OCCA affirmed those denials on January 21, 1999, and
January 29, 1999. Harris again sought post-conviction relief in state district court
on June 21, 1999; on March 2, 2000, the OCCA affirmed the district court’s
denial of such relief. Harris’s application for federal habeas relief was filed on
April 4, 2000.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
generally sets a one-year period of limitation on habeas corpus petitions presented
by a person in custody pursuant to the judgment of a state court. 28 U.S.C.
§ 2244(d)(1). The limitation period generally runs from “the date on which the
judgment became final by the conclusion of direct review or the expiration of the
time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). “Under the statute, a
petitioner’s conviction is not final and the one-year limitation period for filing a
federal habeas petition does not begin to run until—following a decision by the
-2-
state court of last resort—after the United States Supreme Court has denied
review, or, if no petition for certiorari is filed, after the time for filing a petition
for certiorari with the Supreme Court has passed.” Locke v. Saffle, 237 F.3d
1269, 1273 (10th Cir. 2001) (quotation omitted). Parties have ninety days after
entry of judgment to petition for a writ of certiorari. Sup. Ct. R. 13(1).
Furthermore, the limitation period is tolled for the “time during which a properly
filed application for State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).
The OCCA affirmed Harris’s conviction on August 5, 1997. Because he
did not seek a writ of certiorari, the period of limitation for seeking federal
habeas relief began to run on November 3, 1997. By the time Harris sought state
post-conviction relief on June 5, 1998, approximately 214 days had passed. The
period of limitation was tolled until January 29, 1999, when the OCCA affirmed
the denial of his first set of applications for post-conviction relief. Thereafter,
143 more days passed before Harris sought state post-conviction relief for a third
time on June 21, 1999. The period of limitation was tolled until March 2, 2000,
when the OCCA affirmed the denial of that application. By then, 357 days had
passed, and thus, Harris had until March 10, 2000, to file an application for
federal habeas relief. He did not do so until April 4, 2000.
-3-
The limitation period “may be subject to equitable tolling” if there are
extraordinary circumstances beyond a prisoner’s control that make it impossible
to file a petition on time. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
Harris argues that prison officials delayed notifying him of the denial of his state
post-conviction petitions for a number of days, and that the period of limitation
should be equitably tolled to account for these delays. Assuming that such delays
constitute “extraordinary circumstances” for tolling purposes, Harris’s application
would nevertheless be untimely. 1 Harris claims that he was not notified of the
OCCA’s January 29, 1999, decision affirming the district court’s denial of post-
conviction relief until four days later. He further claims that he was not notified
of the OCCA’s March 2, 2000, decision affirming the district court’s denial of
post-conviction relief for an undisclosed period of time. As stated above,
Harris’s habeas application was not filed until April 4, 2000, twenty-five days
after the AEDPA period of limitation expired. Assuming the second, undisclosed
delay was comparable to the first, the two combined would toll the limitation
period for only eight days, and Harris’s petition would still be time-barred. 2
1
We recently held that “a prisoner’s lack of knowledge that the state
courts have reached a final resolution of his case can provide grounds for
equitable tolling if the prisoner has acted diligently in the matter.” Woodward v.
Williams, — F.3d —, 2001 WL 946452 at *5 (10th Cir. Aug. 17, 2001).
2
Before the magistrate judge who originally considered Harris’s petition,
Harris argued that equitable tolling should apply for two additional reasons.
(continued...)
-4-
Harris’s motion to proceed in forma pauperis is GRANTED, his
application for COA is DENIED, and the matter is DISMISSED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
2
(...continued)
First, Harris was required by Oklahoma law to challenge his prior
convictions before challenging his current conviction in order to raise his claims
that the prior convictions were improper and should not have been used to
enhance his current sentence. Harris appeared to argue that this process unduly
delayed exhaustion of his state claims such that the AEDPA period of limitation
should be equitably tolled. The district court rejected that argument, noting that
the period of limitation was tolled throughout the duration of all of Harris’s state
post-conviction proceedings.
Second, Harris claimed that multiple transfers between Oklahoma state
prisons and private correctional facilities in Texas and Oklahoma interfered with
his ability to research and file his federal habeas claim. The magistrate judge
concluded that there were no specific allegations by Harris as to how these
transfers interfered with his ability to file a timely petition, and that there were
therefore no grounds for equitable tolling.
Although Harris did not raise either of these issues on appeal, we note that
we do not find the district court’s disposal of either one to be incorrect.
-5- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3846074/ | The problem to be dealt with is whether the plaintiffs can convey to defendant a fee simple title to the real estate which she has agreed to purchase from them. The solution lies in the construction to be given to a clause in the will of Martha Fleming Byers, mother of plaintiffs, which reads: "Fourth. The real estate I now own on Sewickley Heights, in the County of Allegheny and State of Pennsylvania, which I purchased from D. T. Watson, and which contains about twenty-six (26 A.) acres, I now devise to my daughter, Maude Byers Lyon, for and during her natural life, and from and after her death to my oldest son who shall then be alive, and to his heirs. If Maude should outlive all my sons, then I empower her by her last will to devise said *Page 291
property as she sees proper, but I impress on her and on my sons that as far as may be I desire the place to be kept in the family and like unto a family home. But I do not intend by this expression of desire to hamper or encumber or impose any trust whatever upon the absolute fee simple title I by this will give to my children in said property." The court below decided that the deed tendered by plaintiffs to defendant would vest in her a fee simple title and entered judgment in plaintiffs' favor for the consideration named in the agreement of sale, $250,000. Disputing the court's conclusion, defendant has brought to us this appeal.
The court reached its determination on the ground that Maude Byers Lyon could extinguish the general testamentary power of appointment which the will conferred on her by the covenant in her deed. With this we agree. Maude Byers Lyon could release and extinguish the general power of appointment given to her by the will, and by the deed tendered to defendant she did so. No one has any interest in a general power of appointment except the donee of the power. The donee could appoint to any one, to her own estate if she pleased. She was vested with an absolutely unlimited discretion as to whom she should appoint to receive the property. That she extinguished the power to appoint for a consideration makes no difference.
Much learning and research has been expended in the briefs by the able advocates on each side in a discussion of the distinctions between various kinds of powers of appointment, general powers, special powers, powers in gross, general testamentary powers in gross, special testamentary powers in gross, powers appendant, powers appurtenant, special collateral powers, general collateral powers. We think it profitless to review the cases defining the various kinds of powers or to enter upon even a summary of the distinctions which have been drawn. For all practical purposes there may be said to be two marked differences in powers of appointment; *Page 292
they can be summarized as general and special powers. The general are those in which the donee of the power may appoint to anyone, and the special, in which the donee of the power is restricted to passing on the property to certain specified individuals or to a specific class of individuals. In the latter case, there is a sound reason why the repository of the power should not be permitted to extinguish it, because the testator has indicated the persons to whom the property shall go and there is reposed in the appointee of the power a confidence, something partaking of the nature of a trust; but where the power is a general one under which the donee may appoint to anyone, the testator has completely relinquished all dead hand dominion over the property and has placed it for all practical purposes as completely within the control of the donee of the power as though a fee had been created in him. There is neither a trust nor an obligation in the nature of a trust because the power is not coupled with a duty. Recognition of the right to extinguish a general power of appointment began as early as the decision of Lord COKE in Albany's Case, 1 Coke's Reports 107A (1585) and has been the doctrine in England substantially from that time to the present. Indeed in England by Act of Parliament of 1881, 44 and 45 Victoria, ch. 41, par. 52, the donee of any power, whether coupled with an interest or not, is empowered to release it by deed or contract not to exercise it. It is the rule adopted in Alabama, Illinois, Maryland, Massachusetts, North Carolina, Rhode Island and South Carolina. Professor Gray in an article in the Harvard Law Review, 24 Harvard Law Review 511 (1911), upon which appellant largely relies, disagrees with the decisions sustaining the right to extinguish a general testamentary power of appointment, and cites certain cases. The dicta in these cases may sustain his view, but we do not agree with the reasoning by which his conclusion is reached. If the donee of a general power may appoint to his own estate or to anyone in the *Page 293
world, no individual is wronged by what he may do, and, therefore, no individual can complain; not so as to a special power. The right of the donee of a general power to extinguish it by deed is recognized in the comparatively recent decision of the Supreme Court of Illinois in Baker v. Wilmert, 288 Ill. 434. The release or extinguishment of the power may take any form. It may be by a contract or by deed: Baker v. Wilmert,288 Ill. 434; Atkinson v. Dowling, 33 S. Carolina 414; and as indicated in these two cases and in Brown v. Renshaw,57 Md. 67, may be implied from a covenant of general warranty.
Peoples-Pittsburgh Trust Company, trustee under a codicil to the will of testatrix, conveyed to Maude Byers Lyon, Eben M. Byers and J. Frederick Byers for a consideration of $500 all the right, title and interest, if any, vested in it under the will of the testatrix. This conveyance was made under the assumption that there might be a contingent interest passing to the trustee in the event that Maude Byers Lyon survived her two brothers and did not exercise her power of appointment. There was, however, no such interest. If it would otherwise have existed, the language of the testatrix at the end of the fourth paragraph conclusively shows that her intent was not to create a contingent interest, that she intended in any and all eventualities that what should vest in whichever of her children remained to ultimately receive the property was "the absolute fee simple title." As was said by Mr. Justice KEPHART in Mayer's Est., 289 Pa. 407, "We are not at liberty to diseregard plain words and say they are meaningless, unless after a careful consideration of the entire instrument it is not possible to give them any meaning." No language of the will is to be ignored or treated as surplusage unless no other conclusion is reasonably possible: Moyer's Est., 280 Pa. 131; Conner's Est., 302 Pa. 534. Furthermore, what would result in the event of her two brothers predeceasing Maude and the latter *Page 294
not exercising the power of appointment would be, not the raising of a contingent interest, but an intestacy as to the property in question, and the terms of the will negative this as the intent of the testatrix. It says: "After all my debts are paid I bequeath and devise all my property, real, parsonal and mixed, as follows." Such a provision shows that the testatrix intended to dispose of all interest that she had in the property: Eberle v. Wood, 304 Pa. 403; Cryan's Est.,301 Pa. 386.
We are of opinion that the case was properly decided by the learned judge of the court below in holding that the deed to defendant conferred upon her an absolute fee simple title.
The judgment is affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3390275/ | This was a suit by C.L. Bundy Sons, Inc., against the Winter Haven Fruit Sales Corporation for damages which the plaintiff sued to recover for breach of a written contract for the purchase of a certain crop of citrus fruit. The contract sued on provided for the sale of a growing citrus crop at a certain unit price per field box; fixed the time for picking the fruit and provided for measuring and paying in full for the fruit at the time of picking. It was plaintiff's contention that there was a large amount of merchantable grapefruit left on the grove by the defendant in violation of the requirements of the contract and that by reason of the defendant's failure and refusal to take said fruit and pay for same that plaintiff was entitled to recover the contract price for such merchantable fruit as remained on the grove on the first day of April, 1933, the *Page 325
date upon which all fruit contracted to be sold under the contract was to have been moved.
There was no dispute about the contract or the contract price. The contract itself provided for what should be considered merchantable fruit within its purview. The controversy tried revolved around the proposition whether or not there was any merchantable fruit, within the contract definition, that the defendant had failed to pick and pay for on the date specified in the contract for so doing. It is plaintiff in error's contention upon writ of error taken to a judgment for the plaintiff in the court below that the greater preponderance of the evidence established the fact that the purchaser did not leave any merchantable grapefruit on the grove and that therefore the verdict for the plaintiff should have been set aside.
Contained in the contract sued on was a provision reading in part as follows:
It is further agreed by and between the parties hereto that the above described fruit from the date hereof (October 27, 1932) shall be the property of the party of the second part (Winter Haven Fruit Sales Corporation), subject to its order, but to be clipped from the trees on or before the __________. One-half of crop by Feb. 15/33. Balance of crop by April 1st/33, provided the fruit is fully colored, etc.
In ruling on the defendant's motion for a new trial, the trial judge delivered an opinion, part of which is as follows:
"It appears that the only contention of the defendant which merits serious consideration is the contention that the Court errod in not instructing the jury that the measure of damages was the difference between the contract price and the market value of the alleged marketable fruit in question on the first day of April, 1933, which was the latest date by which the defendant was required under his *Page 326
contract to remove such fruit. Defendant contends that the contract was an executory contract and therefore that the correct measure of damages is as above stated.
"The Court instructed the jury in substance as follows: That the damages was the difference between the contract price and the resale price, providing, the plaintiff in all good faith used all reasonable effort to resell to the best possible advantage.
"In the case of an executory contract, there is a variety of opinions on the question of the measure of damages, and there seems to be quite a distinction made in a lot of the cases between the measure of damages in the case of executory contracts where the plaintiff is claiming without a resale instead of after a resale. Practically all of the cases, however, agree that the price obtained at a resale fairly made is some evidence at least of the market value. And it will be recalled that there was no other evidence in the case before the jury as to the market value except that established by the resale and the testimony of the plaintiff that he tried to sell it to the best advantage but could not do so. I am inclined to the opinion therefore that under the particular facts and circumstances of this particular case the instruction of the Court as to the measure of damages was correct, even if the contract should be construed as an executory contract. If the evidence of the resale value is the only evidence of the market value then it seems to me that it is a quibble of verbiage to say that the Court should have instructed them technically that the measure of damages was the difference between the market value and the resale value, but that they must be bound by the evidence as to what the market value was, and that the only evidence on the subject was the resale value. There could be no difference whatever in the result.
There are a great many cases cited in Note in 44 A.L.R., *Page 327
page 304, etc. However, in this particular case it does not seem to me to make any material difference as to which of the rules would be better if the contract had been an executory contract, because in the opinion of the Court, the contract in this particular case was a contract which vested the title to the fruit in question in the defendant at the time of the execution and delivery of the contract itself. And it is not contended but that the Court's charge was correct, if this construction of the contract is correct.
"Defendant contends that the contract is an executory contract because although it uses the words `that the said party of the first part has this day bargained and sold to the party of the second part all of the crop of the good merchantable fruit consisting of approximately 10,000 boxes of E. and M.S. grapefruit,' and that the text of the contract is the intention of the parties and that the contract left for further determination the quality of the fruit; and hence that the contract must be construed as a whole to have been intended to have been an executory contract to sell the fruit, and not an actual sale of the fruit, vesting title in the purchaser. Defendant cites the case of Bowers v. Dr. P. Phillips Company, 129 Southern 850, in support of this contention.
"There is another case involving a similar contract to that involved in the said cited decision, which was appealed from the Circuit Court of Polk County and affirmed. I agree with the decision of the Supreme Court in the said cited decision and in the said preceding decision, but I am of the opinion that the contract in this particular case is so sufficiently different and so expressly provides that the title should vest in the purchaser that it would not be a reasonable construction to attempt to say that such was not the intention of the parties. It seems to me from my study of the authorities which hold that the question of the intention *Page 328
governs and that generally the contract will be construed as intending only to be a contract for sale and delivery, when the matter of quality and quantity are left undetermined, apply only in cases where the express intention of the parties is not shown in the contract; and it seems to me that the authorities agree that where the parties make express provision that the title vest in the purchaser they can make it vest regardless of the fact that there may be later details to be settled as to the quality and quantity, because the courts do not attempt to make their contracts for them, but only to use them to get the intention of the parties. In the case of Bowers v. Dr. P. Philips Company, the contract does not expressly provide that purchaser shall be the owner from the date of the contract, or that the title shall vest in the purchaser from the date of the contract, but it is silent on the subject. The contract in that case merely used the ordinary formal language of bargain and sale to the buyer, leaving quality and quantity to be later determined. And the Court therefore properly determined that such a contract was an executory contract and did not vest the title at the time of the execution and delivery thereof. But the contract in this particular case not only uses the ordinary language of bargain and sale by the seller to the buyer, but has a later clause with the expressed stipulation that `It is further agreed by andbetween the parties hereto that the above described fruit fromthe date hereof shall be the property of the party of the secondpart subject to its order'; and it seems to me that with that clause specially placed in the contract in addition to the ordinary bargain and sale clause that it must be clearly understood that the parties intended to make the title to the property vest in the purchaser upon the execution and delivery of the contract. This is borne out by the further language of the contract which makes no provision whatever for the seller to have anything else to do with reference *Page 329
to the delivery of the fruit. It provides that the defendant can enter the grove and remove the fruit. It is quite true that the contract provides that the defendant does not have to take from the trees and pay for any of the said fruit crop except that which was merchantable at the time during which the defendant was to remove same. But it seems to me that such clause was only for the purpose of protecting the buyer against having to pick and pay for any of the fruit except that which measured up to a certain standard laid down in the contract, and the standard of what should be considered merchantable is specifically and expressly set out in the contract. The fruit was sold by the contract to the buyer and he had the privilege of entering the grove and picking at any time, one-half of the crop to be picked by February 15th, 1933, and the remainder by April 1st, 1933. It seems to me reasonable to say that this clause was placed in the contract specifically to protect the buyer against such fruit as might be or become unmerchantable when he went to pick it, in view of the express provision in the contract that the title to the fruit vested in the buyer at the time of the execuion and delivery thereof. In view of the fact that the contract contains the ordinary clause of bargain and sale to the buyer and contains an expressed warranty by the seller of his right to sell the fruit, and then in addition contains a specially expressed provision that the fruit shall be the property of the buyer from the date of the execution and delivery of the contract, we must conclude that it was the intention of the parties to vest the title to the said fruit in the defendant at the time of the execution and delivery of the contract; and therefore that the contract was an executed contract vesting title instead of an executory contract.
"It seems to me that the case of Roe v. Winter Haven Company, 140 Southern, page 463, substantiates this view. *Page 330
In that case the Supreme Court of Florida held the contract to be a contract vesting the title in the buyer, and it is substantially the same as the present contract except that it does not specifically protect the buyer against having to pick and pay for that portion of fruit which should be unmerchantable. It did, however, provide that the buyer should be the owner of the fruit from the date of the contract, and the contract in this case provides that the fruit shall be the property of the buyer from the date of the contract. I cannot see any distinction, and it does not seem to me the fact that in the contract in this particular case the defendant protects itself against having to pick and pay for that portion of the crop that should be unmerchantable would not change the legal effect of the contract and the expressed intention of the parties that the title should vest in the buyer.
"WHEREFORE, I am again of the opinion that the contract in this case was an executed contract and hence that the charge to the jury was correct. It is contended that the jury did not follow instructions of the Court in determining whether or not the plaintiff used all reasonable diligence in getting the most that could reasonably have been secured for the fruit in question, and therefore that the damages are excessive and the verdict should be set aside. I am, however, of the opinion that if the damages were excessive it could be better cured by eliminating such portion as might be clearly excessive and letting the verdict stand. I believe that is usually the preference and custom of the courts where the question is purely one of excessive damages.
"I have carefully considered the evidence and it appears that the plaintiff delayed in making his sale from April 1st to about June 7th, during which time his testimony shows that a great deal of the fruit fell to the ground. In fact, this is his explanation of why there was only approximately *Page 331
3,000 boxes of fruit on the grove at the time he sold the fruit to the canning company; whereas, he claims there was at least 4,000 boxes of merchantable fruit on the grove on April 1st, 1933. It appears therefore that as a reasonable man he must have known that a large amount of this fruit would fall and be lost by the delay, and it also appears that he could have sold it to the canning company previously but did not do so hoping to get better than canning plant prices.
"I have arrived at the conclusion after a careful consideration of the case that the damages as fixed by the jury are excessive, and that a verdict in excess of $2,000.00 under the particular evidence in this particular case would be excessive under the evidence of the plaintiff. I am therefore of the opinion that the plaintiff should enter a remittitur of all the verdict in excess of $2,000.00.
"There has been considerable argument about the weight of the testimony, etc., but the jury has elected evidently to believe the evidence introduced in behalf of the plaintiff, and I do not deem it proper under the circumstances for the Court to interfere in the findings as to the facts on which liability is claimed.
"WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that the plaintiff shall enter a remittitur of all of the verdict in excess of the sum of $2,000.00 within five days from this date, and that upon the entry of such remittitur the motion of the defendant for a new trial be and the same is hereby denied, and that in the event the plaintiff does not do so enter a remittitur within the time specified, that the said motion of the defendant for a new trial be and the same is hereby granted, to which ruling the respective parties except."
To undertake to elaborate upon what has been so well stated in the opinion of the trial judge, would subserve no useful purpose. It is sufficient to say we think that the Circuit *Page 332
Judge correctly appraised the controversy between the parties and followed the proper rule of law applicable to the rulings he was required to make in the course of the trial concerning it. The case as made is controlled by what was said by us in the case of Roe v. Winter Haven Co., 104 Fla. 317, 140 Sou. Rep. 463, and upon the basis of that decision we are impelled to affirm the judgment as entered. In so deciding we have not overlooked the case of Metcalf v. R.D. Keen Co., 122 Fla. 27,164 Sou. Rep. 704, which we consider to be clearly distinguishable on the basis of the particular contract that we have involved in the present case.
Affirmed.
WHITFIELD, P.J., and BROWN, J., concur.
ELLIS, C.J., and BUFORD, J., concur in the opinion and judgment.
TERRELL, J., not participating. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3390338/ | This appeal is from a final decree restraining appellant from revoking license of appellee to retail alcoholic beverages at a place known as the "Village Club" in Dade County.
The record discloses that the license year had expired when the appeal was taken so the question is moot. The decree appealed from should be affirmed for that reason, suffice it to say that we have examined the controlling statutes and the evidence and find no reversible error in the final decree.
Affirmed.
BROWN, C. J., WHITFIELD, and ADAMS, J. J., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3847008/ | Argued March 14, 1928.
The one controlling question which emerges from the voluminous pleadings in the record before us is, Was the decree of June 7, 1921, abrogated or modified by the agreement between counsel, with approval of the court, made March 6, 1926? The decree in question was entered in equity proceedings instituted December 15, 1919, by Amelia V. Litch, appellee here, against her husband, Thomas K. Litch, and others. The bill, by subsequent withdrawals and amendments, narrowed down substantially to the prayer that the court order and decree suitable maintenance for the wife out of property of Thomas K. Litch and determine a proper amount for maintenance of herself and their daughter, whether such property was in his hands or in the hands *Page 566
of others. At the time the bill was filed the property was no longer in her husband's possession. He had shortly before, by bill of sale, for a consideration of one dollar and "gratitude and affection," transferred and assigned corporate stocks and securities aggregating in value about $85,000, to his foster mother, Blanche J. Litch, his codefendant herein, who in turn immediately conveyed the property to the Union Banking Trust Company of Dubois, in trust, reserving to herself the net income derived therefrom during her life, and providing that at her death the income, less $100 per month to be paid the guardian or guardians of the child or children of Thomas K. Litch, born in lawful wedlock, would go to defendant, Thomas K. Litch; upon the death of Litch the corpus and accrued income to go to his lineal descendant or descendants, and, in default of such, distributed among the heirs of his uncle, in accordance with the intestate laws of this Commonwealth. It will be noted that in these transfers and conveyances no provision is made for the wife, and none for the daughter, until the death of Blanche J. Litch, when the daughter, and other children, if there be any, are to receive, out of the trust income, the sum of $100 per month.
It was after these transfers that the bill was filed by appellee against her husband, joining with him Blanche J. Litch and B. M. Marlin. Later the bill was amended, with consent of court, by substituting for the name of Marlin that of the Union Banking Trust Company of Dubois, as a defendant. An answer was filed and the case proceeded until June 7, 1921, when the court, after argument, "ordered, adjudged and decreed" that, "out of the income from the trust estate of which the Union Banking Trust Company of Dubois, Pennsylvania, is trustee, defendant Blanche J. Litch pay, until further order of the court, the sum of $125 each month, beginning June 1, 1921, with as much regularity as the receipt of such income will admit, to *Page 567
Amelia V. Litch, for the maintenance of said Amelia V. Litch and the maintenance and education of Josephine R. Litch, daughter of Thomas K. Litch and said Amelia V. Litch, his wife."
There were continuous arrearages and defaults in these payments, and the wife several times resorted to attachment proceedings to secure payment of the allowances decreed by the court. In the course of repeated litigation to enforce payments, Amelia V. Litch, on June 1, 1924, presented her petition to the court for an order upon Blanche J. Litch to pay amounts due under the decree of 1921, and on September 21, 1925, Blanche J. Litch presented her petition praying for the vacation of the decree of 1921. The grounds upon which this petition to vacate was based were allegations, not denied, that a decree of absolute divorce had been granted by the Court of Common Pleas of Jefferson County to Thomas K. Litch, in proceedings brought by him against his wife, Amelia V. Litch, and that therefore, as the relation of husband and wife had ceased between the parties, petitioner, Blanche J. Litch, had ceased to pay the $125 per month as ordered by the decree of 1921, and she prayed that the decree be vacated and set aside. These two proceedings came before the court for disposition on March 6, 1921. At that time an appeal by respondent, Amelia V. Litch, from the decree of the court in the divorce proceedings was pending in the Superior Court, and, in view of this fact, counsel representing the opposing parties, with approval of the court, agreed to defer and postpone for the present further consideration of the petition of Amelia V. Litch for allowances unpaid and the petition of Blanche J. Litch for vacation of the decree of 1921. By this agreement, as the record states, "after discussion by the counsel and the court, it was concluded that any decree entered at this time might have to be changed, and, in view of the fact of an appeal now pending in the Superior Court, __________ it is therefore agreed between the parties, *Page 568
the plaintiff and defendant, that all of the matters and questions raised in this case shall be held in abeyance, and the case remain in statu quo until the decision of the Superior Court"; and, in the "meantime," Thomas K. Litch, as the agreement sets forth, was to pay Amelia V. Litch the sum of $420 for the support and maintenance of the daughter "up to the 1st day of April, 1926, and thereafter to deposit in the Jefferson County National Bank the sum of $30 per month for the boarding" of the daughter, "until this case come up for a final hearing." It was also stipulated in the same agreement that the lump sum of $420 and the $30 per month "shall be taken as a credit on the sum that the court may find that the said Thomas K. Litch shall pay for the support and maintenance of his wife and child"; and it was further agreed that, "if the case in the Superior Court is reversed, then the question of what would be awarded in this case is to remain for the final determination of the court."
The Superior Court sustained the appeal of the wife and reversed the decree of the lower court in the action for divorce. Litch v. Litch, 89 Pa. Super. 15. Further hearing on the deferred proceedings was resumed and held June 28, 1927, and on July 19, 1927, the court, in an opinion filed, directed that the "order" or agreement of 1926 neither abrogated nor modified the decree of 1921, and ordered and decreed that Blanche J. Litch pay to Amelia V. Litch, out of the income of the trust estate, less the payments made under the agreement of March 6, 1926, the sum of $3,180, being the payments due June 30, 1927, and the further sum of $149.67 interest, and pay the record costs incurred in the proceedings. From this decree the present appeal is taken.
Of the various assignments of error presented by appellant, we deem it necessary to consider but one, as it covers the conclusion of the court below, in which we fully concur, and is, in our opinion, the controlling *Page 569
question involved in this appeal, namely, that the court erred in its conclusion "that the agreement or order of March 6, 1926, does not change nor modify the order of June 7, 1921, in any of its essential terms or conditions." In our opinion it cannot be held, either by its terms or by its intent, that the agreement of 1926, is a "decree" of the court, or that it may be construed, even by implication, that the purpose either of counsel or the court was that it should change, much less abrogate and set aside, the actual decree of 1921. The latter is a valid and conclusive order and command of the court, which, by its own terms, "ordered, adjudged and decreed" that certain things be done. It was in fact a final money decree explicitly providing for the payment of a sum adjudicated, and in the subsequent pleadings it was expressly admitted by appellant that "there is no denial of the order." Of an entirely different nature and purpose was the "order" of 1926. By its terms it is merely an understanding between the parties, with the approval of the court, to postpone and suspend all matters and questions that might be raised in the proceedings then pending until after the decision of the Superior Court in the divorce appeal should be announced, that in the "meantime" the case remain in statu quo and that, also in the "meantime," certain payments, as a temporary adjustment, be made and continued until the case should be finally disposed of by the court. Here, then, was no finality, nothing concluded, nothing "ordered, adjudged and decreed." Neither those terms nor others of similar import are used in the agreement. Its terms and adjustments are wholly conditional and temporary, in no wise final and conclusive. Clearly it rescinded none of the directions of the decree of 1921. It does not refer to it even indirectly, and can have, as we read it, no bearing whatever upon the former order. As the learned court below justly says: "Instead of modifying the order of June 7, 1921, special pains were exercised to preserve it *Page 570
intact." The agreement, by which nothing was decreed, constituted a plan, to which the court gave its assent, for the postponement and suspension of further proceedings in litigation until a designated period, and it left valid and subsisting a decree of the court, which, at the final determination of that litigation, the court might in its judgment decide to continue and follow, or replace by a different decree. And when the decision of the Superior Court in the divorce appeal was announced and the suspended court proceedings resumed, the court, in its final determination, recognized the validity and continued existence of the order of 1921, and decreed payment of arrears of allowances made by it.
Certainly the justification of the decree of 1921 was ample. Thomas V. Litch, possessing large financial means, had, by his negligent and brutal treatment of his wife, compelled her to leave her home and separate from him. She had no means of subsistence and was dependent, with her daughter, upon the bounty of her father. The husband followed a career of debauchery, adultery and bigamy, and, while thus living in riotous luxury and shame, his wife and child were compelled to rely upon the kindness of relatives for a mere existence; and it is plainly manifest that the transfer of his property to his foster mother and her prompt retransfer to the trust company, in trust, with the income payable to her while she lived and to him after her death, with no provision whatever for the support of the wife and a meagre monthly allowance for the maintenance of his child, was simply the completion of a scheme by which to enable him to keep control of his wealth, receive the income from an indulgent foster mother, and continue to deprive his wife and child of the necessities of life and leave them without the home and protection that are justly theirs.
The judgment of the court below is affirmed at appellant's costs. *Page 571 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3390355/ | Appeal dismissed on motion of counsel for Appellant. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3390377/ | The Florida State Board of Optometry sought an order enjoining Millard G. Gilmore, an employer, and his employees, Albert Sidel and J. Willie Bertrem, from practicing optometry, with the result that the chancellor restrained Sidel from that activity and prohibited Gilmore from allowing Sidel "as his employee or upon his business premises" to engage in that vocation. Upon the conclusion that there was no proof that Gilmore himself was practicing optometry "the application of the plaintiff for an injunction restraining . . . [him] . . . from continuing his employment of the defendant, J. Willie Bertrem . . ." was denied.
It is the latter provision which gave rise to this *Page 777
appeal and prompted the appellant to present the problem whether, in view of Chapter 19031, Laws of Florida, Acts of 1939, a jewelry store may "employ a licensed physician to devote his full time to the practice of optometry for its account and in its name?"
We summarize the acts described in the stipulations of counsel so far as they are relevant to the question involved; Gilmore operates a jewelry store and in connection with it an optical department where Bertrem, a licensed physician, is employed. The latter engages in no other work than the practice of optometry for Gilmore, who pays him a "straight salary."
The Act, Chapter 19031, was intended to cover fully the regulation and supervision of optometry, declared a profession and carefully defined in Section 1. In Section 11 it is made "unlawful for any corporation, lay body, organization, group, or lay individual to engage, or undertake to engage in, the practice of optometry through means of engaging the services, upon a salary, commission or lease basis, or by other means or inducement, any person licensed to practice optometry in the State of Florida."
If we were to pause here without further examination of the above law it would appear that a clear violation of the quoted inhibitions had been shown because of the employment by one not licensed of another to practice optometry for him "upon a salary . . . basis." In reply appellee quotes Section 8, specially emphasizing that portion of it which we italicize: "It shall be unlawful for any one to practice optometry in this State without first procuring a certificate of registration and license . . . provided that the terms and provisions of thisAct shall not apply to duly licensed physicians and surgeonsnow or hereafter." *Page 778
The appellees urge us to construe the part of the Act last quoted to free all physicians from the restrictions imposed generally upon those who are privileged to represent themselves as optometrists. It will be noted that although the terms and provisions of the Act are declared not to affect physicians such exception is included in the section making it unlawful to practice without registration and license.
It is patent that physicians are exempt because their training is so thorough that they are fitted to perform those services for which optometrists too are qualified, thus physicians, as such, were not required to procure a "certificate of registration and license as a registered optometrist" to practice optometry lawfully. If one practices optometry on his own account and responsibility he is by schooling presumed properly equipped and there is no need to examine into his fitness, the diagnoses and prescriptions for correction and relief of the human eye being an incident to and included in his medical education. But when a physician steps out of character and becomes the employee of a person himself not entitled to engage in the profession of optometry a direct violation of Section 11 results.
The provision of the Act of which appellee Gilmore has run afoul denounces the employment upon a salary basis of "any person licensed to practice optometry." Here qualifications are not the criterion but the act condemned by the Legislature is the hiring by one unlearned in the profession of another who is permitted by his knowledge to engage in it.
The evil sought to be prevented by such a relationship may be tersely stated. In this situation the responsibility of the employee in the performance of services so important to those whose eyes are abnormal *Page 779
as to be dignified with the not undeserved title, "professional" (McMurdo v. Getter, 298 Mass. 363, 10 N.E. [2nd] 139) is confused with his loyalty to the employer, while the latter although unskilled in the work is accountable to patients to whom he is not personally permitted to minister. The result, as was decided by the Supreme Court of Massachusetts, McMurdo v. Getter, supra, is a broken relationship "between a professional man and those who engage his services." See also Ezell v. Ritholz, 188 S.C. 39,198 S.E. 419. Such conflicting loyalties should not be encouraged.
We do not find a purpose common to the inhibition against employment of a licensed optometrist and the exemption of physicians from the terms of the Act. The former relates to and illegalizes the hiring by laymen of optometrists, however qualified; the latter exempts physicians, as such, from further examination to establish their skill as optometrists.
For the reasons given the decree is —
Reversed.
BROWN, C. J., WHITFIELD, TERRELL, CHAPMAN and ADAMS, J. J., concur.
BUFORD, J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3847009/ | Tauza, the defendant, left his home in Wilkes-Barre about midnight of September 23, 1924, for the Borough of Luzerne, three miles distant, intending to there commit burglary. He carried a flashlight and a fully loaded revolver, with an additional supply of cartridges. Entry was forcibly made by him into three houses sometime after two in the morning, from each of which small sums of money were taken. While in the last residence, the driver of a milk wagon noticed the open window, and observed a pick and pair of oxford shoes, later identified as those of defendant, lying on the outside. Notice was at once given the nearest policemen, who began an investigation, located the then fleeing defendant and started in pursuit. One of the officers, Krokosky, stationed himself at a point by which the burglar might pass, as he actually did. Defendant climbed a fence, dropping the pick at that point, ran over intervening railroad tracks to a street, and then into a dark alley, seeking a way of escape. Krokosky followed, and, within a short distance of the entrance, was struck by a bullet, fired from a 32 calibre revolver, and killed. Near the point where he fell, defendant discarded the shoes previously observed outside the third house entered. Though shot through the neck by one of his pursuers, Tauza escaped and returned to his boarding house, where he was temporarily cared for by friends, who later took him to Scranton. There his injury was treated by a doctor until October 4th, when he was arrested on leaving the physician's office.
At the trial, practically all of the above facts were narrated by defendant when examined as a witness. He claimed, however, that the only shot fired by him was after crossing the fence during the course of his flight, and this was directed into the air for the purpose of frightening off those following him. The discharge of the revolver in the alley, where Krokosky fell, was denied, as well as discarding his shoes at that place, though *Page 379
they were found there. It was clearly established that the death resulted from the use of a 32 calibre revolver, making the same abrasion on a bullet as characterized a discharge from the gun admittedly in the possession of Tauza. The same night, the defendant handed over his weapon to a roommate, and it was found later hidden in a powder can in a coal mine, with a box containing 26 bullets of like make.
No one reading the testimony can fail to come to the conclusion, as the jury did promptly, that Tauza murdered the deceased while fleeing from the scene of the burglary, and that his guilt, in the first degree, was established beyond any reasonable doubt, if the evidence produced by the Commonwealth is to be believed. Where there is competent evidence to justify the finding made, as here appears, the court will not disapprove of the conclusion reached, for it has no right to usurp the function of the jury in passing upon the credibility of the witnesses. No such duty was imposed on us by the Act of February 15, 1870, P. L. 15: Com. v. Watkins, 298 Pa. 165. With the exception of the denial of the charge that he shot in the alley where Krokosky fell, practically all the essential facts to establish guilt were testified to by defendant himself. He denied shooting more than once, but two chambers of the revolver were emptied, and he was the only person present when the policeman was killed who had a gun which discharged a bullet of the size and markings found in the deceased's body, those of all of the officers being of 38 calibre.
The testimony showed the homicide was committed while Tauza was attempting to escape from the scene of an admitted burglary, which justifies a first degree verdict though the original crime had been completed, for he is responsible for the consequences following even though there was no proof of specific intent to kill. To alter this rule it must appear that the criminal act originally undertaken had been abandoned by defendant's voluntary act (Com. v. Doris, 287 Pa. 547), and the trial *Page 380
judge so instructed the jury in the present case. No complaint of the charge in this respect is urged by the counsel here acting for the defendant by court appointment. The objections stressed are based on improper remarks of counsel for the Commonwealth in his closing address, and alleged errors of commission or omission in presenting the case to the jury.
In two instances objections were made to statements of the prosecuting attorney and the withdrawal of a juror asked both times, which was refused, and exceptions taken. Instead of having the language complained of promptly reduced to writing and placed upon the record, the trial judge directed that the remarks questioned be subsequently furnished to the stenographer. Such practice is not to be commended, for the record should show the language "as the court then heard and understood it": Com. v. Shoemaker, 240 Pa. 255, 259. To permit insertions thereafter of sentences supposedly used leads to misunderstandings and contradictions concerning the actual occurrence, such as presented here, where each side, by separate affidavits, gives his version of the words employed. If advantage is to be taken of mistaken or improper statements, the same should, at the time, be reduced to writing, or immediately noted by the stenographer, while the matter is before the trial judge for consideration, and the ruling of the court then made noted. In this way the determination in dispute can be accurately presented when a review on appeal is asked.
This question has been the subject of recent discussion in Com. v. Del Vaccio, 299 Pa. 547, and Com. v. Flori, 300 Pa. 125. In view, however, of the permission here given to later set forth the objectionable matter, and the order made, after trial, that the affidavits of counsel be made part of the record, we will consider the complaints made, though neither justifies the setting aside of the judgment entered. The refusal to withdraw a juror in such cases is largely a matter of discretion *Page 381
with the trial judge, to be disturbed only in case of abuse (Com. v. Touri, 295 Pa. 50; Com. v. Rothensies, 256 Pa. 337), and a reversal will not ordinarily be granted where the statement was apparently in reply to an improper argument of counsel for defendant: Com. v. Sloat, 298 Pa. 10.
The district attorney is alleged to have said in closing: "Counsel for defendant asked why we did not call the woman who was present when Krokosky was found. Why didn't they call her? The Commonwealth is paying their expenses. The defendant's counsel are permitted to hire any witnesses, expert or otherwise, at Commonwealth's expense. Why didn't they call them?" The affidavit filed by the prosecuting officer avers this remark was made in connection with the statement that, if the testimony of the additional witness mentioned was desired, there was no reason why she should not have been called, as her presence in court during the entire trial was well known to all parties. It is the duty of the Commonwealth to produce essential testimony within its control, but where the same is merely cumulative of that already offered, and alike available to defendant, as appears in this case, the calling of the witness is not required. The woman referred to in the present instance was the wife of one already examined, who had told of leaving his house upon hearing shots and finding the body of the police officer. There is nothing to show that the wife was aware of the disturbance or went outside her home. At most, her evidence would have been merely a repetition of that given by the husband.
The second clause of the alleged improper statement was to the effect that a defendant could secure the presence of needed witnesses, expert or otherwise, at Commonwealth's expense. The Act of March 22, 1907, P. L. 31, provides for the assignment of counsel for those on trial for murder and allowance for expenses and compensation in such case. As stated by the court, provision *Page 382
is always made for assistance in procuring needed evidence, upon request of defendant, when shown to be necessary. No application had been made here for leave to employ experts at the cost of the State, nor did it appear that defendant was for this reason deprived of aid of material witnesses. On the contrary, the record discloses that the surveyor, who prepared the map for defendant's use, was paid by direction of the court from county funds. It is suggested that a firearm expert might have been secured to contradict the one produced by the Commonwealth, who testified that the bullet which killed the deceased came from defendant's gun. It appeared that Krokosky was shot with a 32 calibre revolver, while the weapons of all the others present at the time were of a different size, and this is not contradicted. No application was made by defendant's counsel to have others summoned at the State's expense to establish the possibility of error in the conclusion stated by Dr. Goddard, called by the Commonwealth, as to the character of the bullet causing death, or the markings thereon. Clearly, the first assignment of error, raising the objections above discussed, is without merit.
A second complaint is based on the allegation of defendant that the district attorney declared: "I took from Mr. Bolowicz's speech [the closing argument for defendant], that he conceded defendant was guilty of murder in the first degree." The Commonwealth, in its reply, denies these words were used, but insists the language employed was as follows: "Mr. Bolowicz, in his closing address, devoted considerable time at different intervals urging you men not to include a death penalty in your verdict. You might infer from that argument and the time taken upon this particular point, that even he believes that the defendant is guilty of murder in the first degree." Whichever version be accepted, the argument was legitimate, and furnishes no ground for reversal. *Page 383
Other assignments relate to the charge of the court in that it unduly emphasized the evidence of the Commonwealth, but the record shows this complaint is not justified. Nor was there error in advising the jury that it must pass upon the credibility of the witnesses, including the defendant, and, in so doing, examine all the proven facts and determine how far each person testifying was corroborated or contradicted. Such an instruction was not objectionable: Com. v. McKwayne, 221 Pa. 449; Com. v. Walker, 283 Pa. 468; Com. v. Quaranta, 295 Pa. 264. The language used is not subject to the complaint sustained in Com. v. Pipes, 158 Pa. 25, relied on by appellant, where the jury was, in effect, told that the evidence of the interested defendant could not be considered unless substantiated by others. An examination of the whole charge shows the comments made, as to the duty of the triers, in passing upon the testimony of all witnesses, were legally accurate.
The last assignment calls attention to an alleged failure of the trial judge to ask the prisoner why sentence of death should not be pronounced prior to its imposition. A failure to do so has been held error, requiring a resentence (McCue v. Com., 78 Pa. 185; Com. v. Preston, 188 Pa. 429), but the rule suggested has no application to the present case, for the original record returned to this court, certified by the stenographer and judge, shows such question was asked, and the only answer given by Tauza was, "I never killed that policeman." It is true that, where sentence of death is imposed, the clerk of the courts is required to transmit, within ten days, to the governor, "a complete record of the trial and conviction": Act of May 14, 1925, P. L. 759. Whether that officer failed to copy all the docket entries, including the question and answer referred to, need not be considered, for, admittedly, the recognized practice in such cases was followed, as appears by statement of counsel at bar, as well as by the duly certified record before *Page 384
us for review, though reference thereto is omitted from the docket entries as printed.
The evidence presented in this case has been examined, and discloses the presence of all the elements necessary to conviction of murder of the first degree; and the finding of the jury to this effect, imposing therein the death penalty, approved by the court in banc, must be upheld. No error has been pointed out justifying a reversal.
The judgment is affirmed, and it is directed that the record be remitted for the purpose of execution. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3989997/ | In this action, plaintiff seeks to recover for personal injuries received by him in an automobile accident, which accident, as plaintiff claims, resulted solely from defendant's negligence. Below, a verdict was returned for plaintiff and judgment was rendered thereon. The case is here upon defendant's exceptions.
During the trial the plaintiff was asked the following question by his counsel: "Did you do all that you could do at that time to avoid this accident?" The plaintiff was allowed to answer this question over defendant's objection, the answer being as follows: "Yes, sir, I did everything that could be done." The first question briefed by defendant is his exception to the ruling of the court allowing this answer to be given. At the time this question was asked the plaintiff had testified in detail as to what he saw and did just before the accident.
Defendant argues that there is a clear distinction between permitting the statement whether the witness knows of anything *Page 461
he could have done which he did not do to avoid the accident and permitting him after he has stated what he did or did not do to state whether he did all that he could do to avoid the accident. It is contended that to permit the latter was to allow the witness to state his opinion as to his own conduct and invaded the province of the jury and so under the circumstances of the case it was error to allow the answer. However, we do not need to give further consideration to this contention because if there was error here, a question which we do not decide, such error appears to have been harmless because at the time this question was answered by plaintiff he had already told in detail just what he did as to turning to his right and as to applying his brakes. Since the jury had before them a detailed account of plaintiff's conduct just before and at the time of the accident they could have failed to find him free from contributory negligence unless they believed that the evidence fairly showed him to be so. Under the circumstances here it is not shown that the error, if any, was prejudicial and therefore it does not effect a reversal. St.Albans Granite Co. v. Elwell Co., 88 Vt. 479, 483, 92 A. 974;Wood v. James, 93 Vt. 36, 43, 106 A. 566; Higgins, Admr. v.Metzger, 101 Vt. 285, 296, 143 A. 394.
The next exceptions briefed by defendant under subdivision II relate to the refusal of the court to grant his motion for a directed verdict at the close of plaintiff's case. However, defendant, after saving these exceptions, proceeded with his case and thereby waived them and therefore we give no further consideration to same. W.H. Hobbs Son v. Grand Trunk Ry. Co.,93 Vt. 392, 397, 108 A. 199; Grapes v. Rocque, 97 Vt. 531, 536,124 A. 596; Campbell v. Bryant, 98 Vt. 486, 488, 129 A. 299;Bean v. Colton, 99 Vt. 45, 47, 130 A. 580.
The exception briefed by defendant under subdivision III relates to the refusal of the court to grant his motion for a directed verdict made at the close of all the evidence. This motion was on two grounds, viz., (1) that the evidence does not show the plaintiff free from contributory negligence, and (2) that there is no evidence warranting a finding by the jury that the defendant was guilty of any negligence which contributed to the accident as a proximate cause of it.
In considering this motion we must consider the evidence in *Page 462
the light most favorable to the plaintiff, and we must also give consideration to such inferences as might reasonably be drawn by the jury from the facts appearing in evidence. Pacific LumberAgency v. National Aircraft Materials Corp., 108 Vt. 10, 15,182 A. 192; Picknell v. Bean, 99 Vt. 39, 41, 130 A. 578;Partridge v. Cole, 96 Vt. 281, 285, 119 A. 398, 32 A.L.R. 854.
So construed, the evidence shows the following facts: Between the hours of two and three o'clock on the afternoon of October 20, 1937, plaintiff was driving his automobile in a southerly direction on River Street in the city of Montpelier on his way to Barre. At all times material here it was raining hard. The road was nearly straight and nearly level and the surface was concrete, and this hard surface was 18 feet wide, made up of two strips, each 9 feet wide with a dividing line marking the center. On the easterly side of this highway were located a shed and office building belonging to the Eureka Granite Co. Just northerly of one of these buildings was a driveway leading from the road downward on a grade of about 2 percent to a parking space in the rear of said office building. On the westerly side of this road at a point nearly opposite the aforementioned driveway was located a filling station. As plaintiff approached a point in this road lying between said driveway and said filling station, he was proceeding at a speed of from 20 to 25 miles per hour, on his right hand side of said highway. When at a point about 20 to 25 feet northerly of the place where said driveway extended would cross said highway, plaintiff saw defendant's car, then being driven by defendant, coming out of said driveway. Plaintiff at once let up on his gas and kept his eye on defendant's car. Defendant's car entered upon the cement and "shot" across the road toward the gas station. As soon as plaintiff saw that defendant intended to cross the road, he, plaintiff, slammed on his brake, which was working well, and pulled to his right. Defendant's car struck the left side of plaintiff's car hitting same on the side near the left front wheel. Plaintiff was thrown forward and was injured to some extent by the impact, and his car was also damaged on the left side. Defendant did not see plaintiff's car until he hit it. There was nothing to prevent defendant from having seen plaintiff and his car as defendant came out of the driveway onto the road, had he *Page 463
made a reasonable effort to do so. Defendant was employed at the above mentioned buildings of the Eureka Granite Co., but was not working on the day of the accident although he had been, for a time before the accident, in or about the buildings and had his car parked in the usual parking place for employees. Defendant was familiar with said highway at the place of the accident and in a general way knew about traffic conditions there. At the time of the accident he was attempting to drive across said highway to said filling station to purchase some gas. Defendant made no reasonable effort to see whether any traffic was approaching from the north, that is, from his right, before starting to cross this road but attempted to cross said highway in careless disregard of his own safety and the safety of others who might be approaching from the north at that time.
That, under these circumstances, the jury was warranted in finding the defendant guilty of negligence which contributed to this accident as a proximate cause of it, is too clear to require further notice or comment.
Defendant contends that plaintiff could have at once applied his brakes and turned to his right onto ground in front of the filling station, when he first saw defendant's car coming out of the driveway, and that because plaintiff did not do so, plaintiff was guilty of contributory negligence. Since plaintiff first saw defendant's car coming out of the driveway when he, plaintiff, was at a point 20 to 25 feet northerly of where the collision occurred and plaintiff was travelling 20 to 25 miles per hour, it follows that the accident happened about two-thirds of a second after plaintiff first saw defendant's car. However, when plaintiff first saw defendant's car, he had no reason to know and, as appears from the evidence, did not know that the defendant intended to drive across the road regardless of traffic approaching from the north. Just how far from the point of the collision plaintiff was when he saw and understood or should have seen and understood that defendant was going to drive across the road is not shown by direct evidence, but it must have been somewhat less than 20 to 25 feet, and so the collision appears to have occurred less than two-thirds of a second after plaintiff knew or should have known the danger confronting him. There is also evidence that when plaintiff saw *Page 464
that defendant was going to drive across the road he "slammed" on his brake and pulled over to his right so that his left wheels were near the westerly edge of the cement and that the Rocque car, being parked where it was, interfered with plaintiff pulling farther to his right. While defendant claims that plaintiff should have applied his emergency brake, there is no evidence that an application of the emergency brake would have been more effective than the application of the service brake, which was in good working order. Although plaintiff was required to act instantly, there is evidence from which the jury could reasonably find that, so far as conditions and circumstances permitted, plaintiff attempted to avoid this accident by doing the very things which defendant claims he should have done. The jury could also reasonably find that plaintiff did these things as soon as he knew or should have known that defendant intended to drive across the road. It is clear that under these circumstances we cannot say as a matter of law that the evidence did not warrant the jury, acting reasonably, to find the plaintiff free from contributory negligence. This exception is not sustained.
Defendant, under subdivision IV of his brief, states that he saved certain exceptions to the court's charge, viz., (1) to the charge with respect to the doctrine of sudden emergency; (2) to the charge with reference to the loss of wages; and (3) to the submission to the jury of the issue of negligence on part of defendant and the issue of freedom from contributory negligence on the part of plaintiff. Questions 1 and 2 as above stated are not briefed further than to state the grounds upon which exceptions were taken and are therefore waived. Hence we do not consider them. Quesnel v. Smith, 108 Vt. 373, 374, 187 A. 374;Dailey v. Town of Ludlow, 102 Vt. 312, 316, 147 A. 771; Paska
v. Saunders, 103 Vt. 204, 213, 153 A. 451; Town of Hartland v.Damon's Estate, 103 Vt. 519, 526, 156 A. 518; Dependents ofVlahos v. Rutland Restaurant, 104 Vt. 188, 190, 157 A. 832;Carr v. Carr, 100 Vt. 65, 71, 135 A. 5.
Question 3 is disposed of by what has been hereinbefore stated.
Under subdivision V defendant has briefed his exceptions taken to the refusal of the court to grant his motion to set the verdict aside. Questions raised here are covered by what we *Page 465
have hereinbefore stated in dealing with questions raised under subdivision III of defendant's brief.
All questions briefed by defendant have been disposed of and no error appears.
Judgment affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/8707806/ | OPINION AND ORDER
BRUCE. J. McGIVERIN, United States Magistrate Judge.
Julio C. Meléndez (“Meléndez”) and Sylvia Elizabeth Meléndez (“Mrs. Meléndez”) sued Starwood Hotels and Resorts Worldwide, Inc. (“Starwood”) and Sheraton Puerto Rico Management, LLC, (“Sheraton”), alleging age discrimination and unjust dismissal pursuant to federal and Puerto Rico law. (Docket No. 1). Defendants answered the complaint (Docket No. 14) and filed a motion to dismiss and to compel arbitration. (Docket No. 13). Specifically, defendants moved to dismiss Meléndez’s claims for lack of subject matter jurisdiction and improper venue under Federal Rule of Civil Procedure 12(b)(1) and (3), and to compel arbitration under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq. (Id.). Defendants moved to dismiss Mrs. Meléndez’s claims *90without prejudice or, in the alternative, to stay proceedings pending resolution of Meléndez’s claims through arbitration. (Id.). Plaintiffs opposed (Docket No. 15), and defendants replied. (Docket No. 19). This matter was referred to me under 28 U.S.C. § 636(b)(1)(A). (Docket No. 17). For the reasons that follow, defendants’ motion to compel arbitration is granted.
STANDARD ON MOTION TO DISMISS
Federal Rule of Civil Procedure 12(b)(1) is a “large umbrella, overspreading a variety of different types of challenges to subject-matter jurisdiction,” Valentin v. Hosp. Bella Vista, 254 F.3d 358, 362-63 (1st Cir.2001), including the existence of a valid arbitration agreement covering the dispute. See Evans v. Hudson Coal Co., 165 F.2d 970, 972-73 (3d Cir.1948) (“Rule 12(b)(1) will authorize the defendant to make an application for a stay pending arbitration if, as a matter of law, the issues presented by the instant suit are referable to arbitration.”). In deciding a motion to dismiss for lack of subject matter jurisdiction, the court “must construe the complaint liberally, treating all well-pleaded facts as true and drawing all reasonable inferences in favor of the plaintiffs.” Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998) (citing Royal v. Leading Edge Prods., Inc., 833 F.2d 1, 1 (1st Cir.1987)). However, “the court may consider whatever evidence has been submitted,” including exhibits, without' converting the Rule 12(b)(1) motion into a motion for summary judgment. Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996).
STANDARD ON MOTION TO COMPEL ARBITRATION
Under the FAA, “[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United . States district court which, save for such agreement, would have [civil or admiralty] jurisdiction ... for an order directing that such arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4. Federal policy strongly favors arbitration over litigation, so long as an agreement to arbitrate exists in the first place. See HIM Portland, LLC v. DeVito Builders, Inc., 317 F.3d 41, 43 (1st Cir.2003). Thus, “there is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’” AT & T Techs., Inc. v. Communs. Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)); Mun’y of San Juan v. Corp. Para El Fomento Econ. De La Ciudad Capital, 415 F.3d 145, 149 (1st Cir.2005). “By its terms, the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agree ment has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) (emphasis in original). Thus, if neither “the making of the agreement for arbitration” nor the “failure to comply therewith” are in issue, a court must order arbitration “in accordance with the terms of the agreement.” 9 U.S.C. § 4. If either “the making of the arbitration agreement or the failure, neglect, or refusal to perform the same” are at issue in the case, the non-moving party may demand a jury trial of that issue; in the absence of such a demand, the court “shall hear and determine such issue.” Id.
*91FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the Complaint (Docket No. 1) as well as other documents filed by the parties.
Meléndez began working for Starwood in 1999. (Docket No. 1, p. 3). ' In March 2008, Starwood named Meléndez as Director of Finance of the Weátin Roco Ki Beach and Golf Resort in Macao, Dominican Republic. Meléndez signed an employment offer letter with Starwood (“Dominican Republic Contract”). The contract included an “Exclusive Dispute Resolution Procedure” clause (“clause”) and a “Mutual Agreement to Arbitrate” (“MAA”). (Docket No. 13, p. 2-3; Docket No. 14, p. 1). The clause stated that “[a]ny and all disputes relating to this offer letter, your transfer at Starwood or the termination of employment in the Dominican Republic'will be resolved solely and exclusively through the Dominican Labor Courts pursuant to the employment rules of the Dominican Labor Code.” (Docket No. 13-1, p. 2). The MAA stated:
... Starwood Hotels & Resorts Worldwide, Inc. (“Starwood”) and I hereby agree that, except as otherwise provided herein, all disputes and claims for which a court otherwise would be authorized by law to grant relief, in any manner, that I may have, now or in the future, during or after my employment with Starwood, of any and every kind or nature whatsoever with or against Star-wood, any of Starwood’s affiliated or subsidiary companies, partners, joint ventures, owners of properties Starwood manages, and/or any of his, her, its or their directors, officers, employees or agents, or any disputes and claims that Starwood may have against me (collectively, “Claims”), shall be submitted to the American Arbitration Association (“AAA”) to be resolved and determined
through final and binding arbitration before a single arbitrator and to be conducted in accordance with the Dominican Labor Laws.
[...]
Starwood and I hereby agree that the Claims subject to arbitration shall include but not be limited to any and all Claims that arise out of or are related to the offer of employment, transfer or promotion extended by Starwood to me, any withdrawal or rescission of that offer, any aspect of my employment with Starwood or the terms and conditions of that employment, any claim for bonus, vacation pay or other compensation, any termination of that employment and any Claim of discrimination, retaliation, or harassment based upon age, race, religion, sex, creed, ethnicity, pregnancy, veteran status, citizenship status, national origin, disability, handicap, medical condition, sexual orientation or any other unlawful basis, or any other unlawful conduct.
[...]
By entering into this Agreement, Star-wood and I each specifically acknowledge and understand that the right to the determination and/or trial of any Claims in court before any judge or jury is a valuable right, and that by signing this Agreement Starwood and I hereby knowingly and voluntarily waive any and all rights we may have to assert any Claims in any court of competent jurisdiction and to a determination and/or trial before a judge or a jury.
[...]
This Agreement shall survive my employer-employee relationship with Star-wood and shall apply to any covered Claim whether arising or asserted during my employment or after the termination of my employment with the Company. This Agreement can be modified *92or revoked only by a writing signed by both Starwood’s Executive Vice President, Human Resources and me and that expressly refers to this Agreement and specifically states an intent to modify or revoke it. This is the complete agreement of the parties on the subject of arbitration of disputes. (Docket No. 13-2, p. 1-3).
Starwood later named Meléndez as Director of Finance at the Sheraton Puerto Rico Convention Center Hotel, where he worked from June 2009 to November 2011. (Docket No. 1, p. 3). In April 2009, Meléndez signed another employment contract with Starwood for this new position (“Puerto Rico Contract”). (Docket No. 19, p. 2). This contract also included an exclusive dispute' resolution procedure clause and an arbitration agreement. (Docket No. 19-1, p. 3). That clause states:
Any and all disputes relating to this offer letter, your transfer at Starwood or the termination of that employment will be resolved solely and exclusively through binding arbitration pursuant to the employment rules of the American Arbitration Association. Accordingly, you acknowledge and agree that this offer of employment and the benefits provided herein are contingent upon your execution of the Arbitration Agreement provided to you herewith (Attachment A).1 (Id.)
In November 2011, Meléndez was informed that he was being investigated for breaking company rules and was sent home pending outcome of the investigation. Two days later, he was informed that his employment was being terminated for allegedly sexually harassing a staff member for about a year. Meléndez was 62 years old at the time. (Docket No. 1, p. 3-5).
Defendants initially argued that Meléndez is bound by the agreement to arbitrate in the Dominican Republic Contract. Plaintiffs argue that Meléndez was not bound by the Dominican Republic Contract because that contract was resolved when Meléndez was transferred to Puerto Rico. (Docket .No. 15, p. 1-2). Defendants counter that Meléndez also signed the Puerto Rico Contract for his position as Director of Finance at the Sheraton Puerto Rico Convention Center Hotel, and that he is bound by the arbitration provisions contained in both contracts. (Docket No. 19, p. 2).
DISCUSSION
Section 2 of the FAA provides that written agreements to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (1947). There is a strong federal policy favoring arbitration, and any doubts concerning the scope of the arbitrable issues should be resolved in favor of arbitration. Kristian v. Comcast Corp., 446 F.3d 25, 35 (1st Cir.2006) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). “By its terms, the [FAA] leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Byrd, 470 U.S. at 218, 105 S.Ct. 1238 (emphasis in original).
“A party who attempts to compel arbitration must show that a valid agreement to arbitrate exists, that the movant is entitled to invoke the arbitration clause, that the other party is bound by that *93clause, and that the claim asserted comes within the clause’s scope.” InterGen N.V. v. Grina, 344 F.3d 134, 142 (1st Cir.2003). The party seeking to compel arbitration has the burden to show the existence of an arbitration agreement. See Diskin v. J.P. Stevens & Co., Inc., 836 F.2d 47, 51 (1st Cir.1988); James Brearton, et al., American Jurisprudence 2d, Alternative Dispute Resolution § 122 (2007). Once the movant makes this showing, “the party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration.” Green Tree Financial Corp. Alabama v. Randolph, 531 U.S. 79, 91, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000).
Pursuant to the FAA, courts evaluate the facts and the positions espoused by the parties in light of the “liberal federal policy favoring arbitration agreements” that “requires a liberal reading of [such] agreements.” Moses H. Cone, 460 U.S. at 24, 103 S.Ct. 927. Accordingly, “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). Courts must compel the parties to arbitrate once satisfied that neither the making of the arbitration agreement nor the failure to comply therewith is at issue. Moses H. Cone, 460 U.S. at 22 n. 27, 103 S.Ct. 927; see also Sanchez v. Morgan Stanley Dean Witter, 376 F.Supp.2d 132, 135 (D.P.R.2005).
Nevertheless, the Supreme Court has noted that “ ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” Communs. Workers of Am., 475 U.S. at 648, 106 S.Ct. 1415 (quoting Warrior & Gulf Navigation Co., 363 U.S. at 582, 80 S.Ct. 1347). The First Circuit, for its part, has noted that “a party seeking to substitute an arbitral forum for a judicial forum must show, at a bare minimum, that the protagonists have agreed to arbitrate some claims.” McCarthy v. Azure, 22 F.3d 351, 354-55 (1st Cir.1994) (emphasis in the original).
“Whether or not the parties have agreed to submit a certain dispute to arbitration ‘depends on contract interpretation, which is a question of law.’” Dialysis Access Center, LLC v. RMS Lifeline, Inc., 638 F.3d 367, 376 (1st Cir.2011) (quoting Combined Energies v. CCI, Inc., 514 F.3d 168, 171 (1st Cir.2008)). “Arbitration is strictly ‘a matter of consent’ ... and thus ‘is a way to resolve those disputes — but only those disputes—that the parties have agreed to submit to arbitration.’ ” Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 130 S.Ct. 2847, 2857, 177 L.Ed.2d 567 (2010) (emphasis in original, quotations omitted). The construction of arbitration agreements under the FAA “must be resolved according to federal law,” and “is ordinarily a function of the parties’ intent as expressed in the language of the contract documents.” McCarthy, 22 F.3d at 355. The terms of the arbitration clause should be applied if its terms, conditions, and exclusions are clear and specific, and leave no room for ambiguity or for diverse interpretations. Dialysis Access Center, LLC, 638 F.3d at 379.
In this case, the “Exclusive Dispute Resolution Procedure” clause of the Puerto Rico Contract that Meléndez signed on May 30, 2009 for the Puerto Rico position states that “[a]ny and all disputes relating ,to this offer letter, your transfer at Starwood or the termination of that employment will be resolved solely and exclusively through binding arbitration pursuant to the employment rules of the American Arbitration Association. Ac*94cordingly, you acknowledge and agree that this offer of-.employment and the benefits provided herein are contingent upon your execution of. the .Arbitration Agreement provided to you herewith (Attachment A).” (Docket No. 19-1, p. 3-4). The parties’ intent and mutual agreement to submit any and all disputes arising from that employment to arbitration is evident from the language contained in that clause. Furthermore, Meléndez’s claims all relate to the termination of his employment with the defendants. Plaintiffs’ arguments that Meléndez is not bound by the arbitration clause of the contract for the Dominican Republic position are meritless given that he later signed another contract with an arbitration clause for the Puerto Rico position. Plaintiffs do not argue that Meléndez is not bound by the arbitration provisions of the latter, contract.
Here, the record shows that (1) the parties signed a valid agreement that contains an arbitration clause, (2) defendants Star-wood and Sheraton are entitled to invoke the arbitration clause, (3) Meléndez is bound by that clause, and (4) Meléndez’s claims come within the clause’s scope. Grina, 344 F.3d at 142. It is also undisputed that Meléndez has not submitted his claim to arbitration. Defendants’ motion to compel arbitration must therefore be granted.
The FAA also mandates that “[i]f any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” 9 U.S.C. § 3. “However, a court may dismiss, rather than stay, a case when all of the issues before the court are arbitrable.” Bercovitch v. Baldwin Sch., 133 F.3d 141, 156 (1st Cir.1998) (citations omitted). Given that Meléndez’s discrimination and state tort claims fall within the scope of the arbitration agreement, the instant suit must be referred to arbitration in accordance with the terms of his agreement with Starwood. As to Mrs. Meléndez, her claims are nonarbitrable because she is not a party to the arbitration agreement. Therefore, defendants’ motion to compel arbitration as to Meléndez is granted, and Mrs. Meléndez’s claims are stayed pending resolution of the arbitrable claims.
CONCLUSION
For the foregoing reasons, the defendants’ motion to compel arbitration is GRANTED.
The case is stayed pending resolution of the arbitrable claims.
IT IS SO ORDERED.
. Copy of the. referenced arbitration agreement was not included and is not available in the record. | 01-03-2023 | 11-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3390392/ | Agnes Wallace, then a married woman, and her husband, George M. Wallace, suffered judgment to be entered against them in the Superior Court of Suffolk County, Massachusetts on the 23rd day of October, 1931. The judgment is valid as against both parties in the State of Massachusetts. Since the entry of judgment and before suit was instituted in the Circuit Court of Palm Beach County (Florida), Agnes Wallace and George M. Wallace were divorced. So she was a single woman when the suit was instituted in Florida.
Plaintiff in the court below filed suit in Chancery against Agnes Wallace to recover on the Massachusetts judgment, pleading the record and the judgment. *Page 331
The judgment entered in the State of Massachusetts is the cause of action sued on here and not the note which was the cause of action on which the Massachusetts judgment was entered.
Motion was interposed to dismiss the amended bill of complaint and also to transfer the cause to the law side of the court pursuant to Sec. 75 of Florida Chancery Practice Act.
Motion to dismiss was granted and plaintiff appealed.
We find no ground for the invoking of relief in a court of equity reflected in the original or in the amended bill of complaint, but the allegations are sufficient to show that plaintiff has a cause of action enforcible in a court of law against the defendant, although it appears to be the joint judgment obligation against the defendant and another.
It, therefore, follows that the cause should have been ordered transfered to the law side of the court, pursuant to Sec. 75 of Fla. Chancery Act.
This is true, regardless of the approach which may be adopted in considering the matter. If we should look behind the judgment (which we do not) and consider the note on which the judgment was based, we would find it a good and valid obligation at the time and place it was made and since the maker is now a femme sole she may be sued in this State on an obligation which was good and valid when and where made.
We find that the law applicable here is as stated and applied by the U.S. Supreme Court in the cases of Thomas C. Fauntleroy, v. J.J. Lum, 210 U.S. 230, 52 L.Ed. 1039,28 S. Ct. Rep. 641 and Kennedy, Adm., v. Supreme Lodge of World, L.O.M., 252 U.S. 411, 64 L.Ed. 638, 10 A.L.R. 716, — and by the Court of Appeals of the District of Columbia in Heiston v. *Page 332
National City Bank etc., 51 App. D.C. 394, 280 Fed. 525. See notes 10 A.L.R. 719 and 24 A.L.R. 1437.
By these authorities it appears to be definitely and clearly settled that with complete jurisdiction of the subject matter and the parties, a judgment must, under the paramount law of the land, be accorded the same faith and credit in every court in the United States as it has been by the law and usage of the courts in the State where it was originally rendered, and that this is true, although the judgment is based on a cause of action which could not be lawfully enforced in the State in which enforcement of the judgment is sought. (Art. IV, Sec. 1, U.S. Constitution.)
For the reasons stated, the order and decree dismissing amended bill of complaint is reversed and the cause remanded with directions that the same be transferred to the law side of the court for further proceedings in accordance with law and the rules of practice.
So ordered.
Reversed and remanded.
BROWN, C. J., and WHITFIELD and ADAMS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3847337/ | Argued January 8, 1934.
For a number of years prior to 1931, William T. Ramsey was collector of state and county taxes in the City of Chester, Delaware County. He was reappointed for that year, and on September 22, 1931, gave bond for the faithful performance of his duties, with the American Surety Company of New York as surety. On May 20, 1932, by virtue of a warrant of attorney contained in the bond, judgment was confessed thereon for the penal sum of $204,380.23, against Ramsey and the surety company. On petition of the surety a rule was granted to show cause why the assessment of damages should not be vacated and the judgment opened. The county commissioners filed an answer, and, after hearing the evidence on both sides, the court below entered an order discharging the rule. From that order the surety took this appeal.
Two questions are raised for our decision: (1) Did the surety produce evidence sufficient to require the opening of the judgment and the submission of the case to a jury? (2) Does the bond in controversy cover sums collected by Ramsey before its execution, on duplicates theretofore delivered to him?
The surety produced evidence that when Ramsey requested it to become surety on his bond for 1931 it demanded that he first procure a certificate of the county *Page 510
treasurer that he had settled in full for his 1930 taxes; that he requested such a certificate from the treasurer, telling him the purpose for which he desired it and representing to him that he had turned in to the county commissioners claims for exemptions and exonerations sufficient to cover the amount appearing to be due by him on the treasurer's books; that the treasurer then went to the office of the commissioners and asked one of them privately if this was true and was informed that "the papers were in the office" at the time and that it was "all right"; that the treasurer thereupon instructed his deputy to issue the certificate requested by Ramsey, which was done; and that the certificate was false, in that, as shown by the treasurer's books, approximately $60,000 was then outstanding on Ramsey's duplicate for 1930, of which sum $29,000 remained unpaid after the allowance of all exemptions, exonerations, and other credits, and was in fact never settled for, having been embezzled by Ramsey. It may be conceded that there is sufficient evidence to justify a finding that the bond was executed by the surety in reliance upon the certificate.
The surety contends that this evidence is sufficient to establish a defense to the bond. The case of Com. v. Am. Bonding Trust Co., 205 Pa. 372, is decisive that it is not. In that case a surety company, before consenting to become surety on the official bond of a township tax collector, wrote to the county treasurer, asking whether there was any shortage due by the collector for previous years and whether he had ever been short in his accounts. The treasurer, by his counsel, answered in the negative, although the fact was that the collector had defaulted in every year he had held the office. We held that these facts constituted no defense to an action on the bond, stating: "Any third person desiring information can examine the accounts himself or employ an agent or attorney to do so and report to him. There is no official duty on the treasurer to examine and make such report; if he do so at the request of a third person, he becomes the *Page 511
mere agent of that person, to do what he is not officially obliged to do, and whether he performs the act well or ill it is something with which the public has no concern and is in no way responsible. . . . . . . We are of opinion the surety company had no legal right to ask these questions and when it did there was no official duty on the part of the officer to answer them; when he chose to do so, he was the mere agent of the company just as any other person would have been of whom it might have made the same request."
In Bower v. Washington Co., 25 Pa. 69, which in its principal features was much like this case, the county commissioners, in their required annual publication of receipts and expenditures of the county, had stated that the tax collector had settled in full for his duplicate for the previous year, when in fact he was a defaulter to a considerable amount. It was shown that the sureties had seen this statement of the commissioners before they went upon the collector's bond, and there was a strong inference that they had thereby been induced to become sureties. He again defaulted, and the commissioners attempted to collect from the sureties. They sought relief because of the false statement of the commissioners. This court held that the statement by the officers did not bind the county.
It is true that in Com. v. Am. Bonding Trust Co., supra, Mr. Justice DEAN, the writer of the opinion, by way of dictum said: "If the surety company had called upon the treasurer for a certificate from the official accounts which he was bound to correctly keep, of the balances against [the tax collector] for the years 1894, 1895, 1896, and 1897, and he had as a treasurer furnished a false statement, it might be the county would be answerable for the misstatement, because it would have had many of the marks of an official act which perhaps it would have been his duty as an officer to perform." It is argued that such is the situation in the instant case. No such question arose in the case cited, as was explicitly *Page 512
pointed out in the opinion, nor does such a question arise here. Even if the expression were sound, and we are satisfied it is not, it could have no application here, for the statement by the treasurer in the instant case is no more a statement of the kind described by Mr. Justice DEAN than was the statement by the treasurer in the case before him. Neither in form nor in substance is it such. As the company had no legal right to ask for such information, and there was no public duty on the treasurer to furnish it, when he did so he did not act in an official capacity, but solely as the agent of the company. His books were open to the public, and the same information could have been secured, and, as it turned out, in a much more accurate form, by any other agent of the company — its attorney, for instance. Under such circumstances, the public cannot be held responsible for the error or fraud of the official.
The surety further argues that the evidence is sufficient to warrant a finding that there was a conspiracy between the county treasurer and the county commissioners to induce it to become surety for Ramsey by means of false representations, in order that his defalcations might be covered up, or discovery postponed, and that for this reason the judgment should be opened. There is, however, nothing in the record which indicates, even remotely, that more than one of the three commissioners had any knowledge of the matter. There is no testimony whatever from which it can be inferred that any of the commissioners were implicated in Ramsey's defalcations, that they were interested in covering them up, or even that they knew about them. Furthermore, we are unable to see how the existence of such a conspiracy would be material, even if true. The reason of the rule denying liability of the county for false or mistaken representations of the treasurer, relied upon by the surety, applies with equal force to such representations made by the county commissioners. There can be no sound distinction in this respect between the two *Page 513
classes of officers. And if the county would not be bound by the representations of either, made to induce the surety to become such, it cannot logically be held that it is liable for representations made by them jointly, or made by one and concurred in by the other.
In support of its contention that there is no liability on the bond for sums collected by Ramsey before its execution, the surety relies upon the admitted fact that nine of the twelve books of the duplicate were delivered to him and more than $185,000 collected thereon before the bond was executed. The condition of the bond is as follows: "If the above bounden William T. Ramsey, who has been elected collector of County, State, Poor and Special Poor Taxes for the City of Chester in the County of Delaware and State of Pennsylvania, shall well and truly collect and pay over or account for according to law, the whole amount of Taxes charged or assessed in the duplicate which shall be delivered to him as such Collector, without any fraud or further delay, then this obligation to be void, otherwise to remain in full force and virtue." It is true, as the surety argues, that bonds are presumptively prospective, covering only transactions occurring after the date of their execution (Tarentum Realty Co. v. McClure, 230 Pa. 266; see Com. v. Fidelity Dep. Co., 224 Pa. 95; Mt. Lebanon Twp. v. Metropolitan Cas. Ins. Co., 106 Pa. Super. 209), but it is also true that where a contrary intention appears from the surrounding circumstances and the purpose for which the bond was executed, this intention will be given effect: Com. v. Fidelity Dep. Co., supra; see Mt. Lebanon Twp. v. Metropolitan Cas. Ins. Co., supra. In the instant case such an intention is manifest from the admitted facts surrounding the transaction. The bond was a renewal of Ramsey's bond for 1930, on which the same company was surety. In the application and premium notice, the execution of which is admitted, though their relevancy is questioned, the effective date was stated to be July 2, 1931, the expiration date of the *Page 514
bond for the previous year. The bond was clearly meant to cover the entire duplicate for 1931, thus continuing the protection of the public for all collections made by Ramsey from the expiration of the bond of the previous year. There can be no doubt that such was the intention of the parties at the time of the execution of this bond. In preparing the bond a printed form was employed. The words "which shall be delivered" were used in the printed form simply because, in the usual situation, the bond is executed before the collector's books are delivered; they were obviously allowed to remain in this bond merely by inadvertence, because it clearly was not the intention of the parties to limit the surety's liability to those books which had not been delivered at the time the bond was executed. If the contrary were true, there could be no liability at all on nine books of the duplicate, even as to sums collected on them after the filing of the bond. This could never have been intended; there can be no doubt that the bond was meant to cover the entire duplicate for 1931, without reference to the time the individual books were delivered. This being true, a failure to pay over sums collected before the execution of the bond would be an obvious breach of Ramsey's obligation to "pay over or account for" the whole amount of his duplicate. We think the court below acted properly in holding that the bond extended to sums collected by Ramsey before the date of its execution, and for the simple reason that in the execution of the bond the intention of the parties is clear and manifest to insure performance of Ramsey's obligation to "collect and pay over or account for" the entire duplicate for 1931.
The order of the court below is affirmed at appellant's cost. *Page 515 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4377978/ | Denied and Opinion Filed March 14, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00286-CV
IN RE EMR (USA HOLDINGS) INC., GOLD METAL RECYCLERS, LTD.,
AND DAVID FERGUSON, Relators
Original Proceeding from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-00835
MEMORANDUM OPINION
Before Justices Bridges, Osborne, and Carlyle
Opinion by Justice Osborne
In this original proceeding, relators EMR (USA Holdings), Inc., Gold Metal Recyclers,
Ltd., and David Ferguson complain that the trial court granted real party in interest Champion
Waste & Recycling Services, LLC’s request for Rule 202 discovery, including allowing the
depositions of relators’ corporate representatives and the deposition of Ferguson, and compelling
production of five categories of documents. Relators are anticipated defendants in Champion’s
contemplated litigation. Mandamus is, therefore, the proper vehicle by which to seek the relief
requested. In re Jorden, 249 S.W.3d at 419; In re Hewlett Packard, 212 S.W.3d 356, 360 (Tex.
App.—Austin 2006, orig. proceeding). To be entitled to mandamus relief, a relator must show
both that the trial court has clearly abused its discretion and that relator has no adequate appellate
remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
If a trial court grants Rule 202 relief, it must expressly find that (1) allowing the petitioner
to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or
(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a
potential claim outweighs the burden or expense of the procedure. TEX. R. CIV. P. 202.4(a)(1)–(2);
In re Dallas Cty. Hosp. Dist., No. 05–14–00249–CV, 2014 WL 1407415, at *2 (Tex. App.—Dallas
Apr. 1, 2014, orig. proceeding) (mem. op.). The petitioner bears the burden of producing evidence
to support the necessary finding. In re Glob. Experience Specialists, Inc., No. 05-18-01382-CV,
2018 WL 6167838, at *1 (Tex. App.—Dallas Nov. 26, 2018, orig. proceeding) (mem. op).
Based on the record before us, we conclude relators have not shown they are entitled to the
relief requested because the mandamus record does not show a clear abuse of discretion.
Accordingly, we deny relators’ petition for writ of mandamus. See TEX. R. APP. P. 52.8(a) (the
court must deny the petition if the court determines relator is not entitled to the relief sought).
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE
190286F.P05
–2– | 01-03-2023 | 03-18-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/3390417/ | In this case the defendant in error was the plaintiff in the Court below and sued the plaintiff in error which was the defendant in the Court below on a declaration in three counts — the first count was for money loaned by the plaintiff to defendant; the second count was for money received by the defendant for the use of the plaintiff, and the third count for that the defendant is a *Page 20
banking corporation and the plaintiff heretofore, to-wit, on the 15th day of March, A.D. 1924, deposited with the defendant as such banking corporation the sum of Nine Hundred Dollars ($900.00) subject to check and withdrawal by this plaintiff and said defendant withholds said sum of money and refuses to return same to this plaintiff although requested so to do. The defendant pleaded the general issue and further pleaded the denial of the deposit and denied the withholding of the sum named in the declaration; and for the fourth plea the defendant pleaded that all money deposited by the plaintiff had been withdrawn by the plaintiff by his checks duly honored by the defendant. The plaintiff filed a replication claiming to have ordered payment stopped on a certain check prior to payment being made on such check by the defendant. The defendant filed a rejoinder which put in issue the facts as to whether or not the payment had been stopped on the check for the sum of $940.00 prior to the payment of same by the defendant. The facts gathered from the testimony is about as as follows:
"The plaintiff in the Court below was a depositor of the First National Bank in Orlando, defendant in the Court below, and on March 14, 1924, drew his check on the First National Bank in Orlando payable to Horney Bros., in the sum of $946.00, and the undisputed evidence shows that this check was deposited in the Bank of Polk County Trust Company at Lakeland, Florida, on March 17th and went through the First National Bank of Tampa, Florida, on March 18th and the Orlando Bank Trust Company at Orlando on March 19th and was paid by the First National Bank on March 19th. The undisputed evidence also shows that this check was cleared and presented to the First National Bank in Orlando, the drawer bank, for payment either on the eight-thirty or the ten o'clock clearing on the morning of the 19th. *Page 21
It is also undisputed that the plaintiff in the Court below delivered to the First National Bank in Orlando a written order to stop the payment of this check, which order is dated March 18, 1924. The plaintiff claims that this order to stop payment was delivered to the bank on the 18th, the same day upon which it was dated, but the defendant's witnesses testified that this stop order was delivered to the Bank on March 19th at about twelve o'clock. The Plaintiff also testified that he orally notified the assistant cashier, Mr. Cook, to stop payment on this check on March 15th, but Mr. Cook just as positively denies this."
It is contended by the plaintiff in error that a new trial should be granted because of the admission of certain testimony and because of the giving of certain charges, and the refusal to give certain requested charges.
We find that the transcript of the record is not indexed, which makes the study of the record unduly burdensome.
There are twenty-two assignments of error, but the attorneys for plaintiff in error have elected to discuss them all together for the reason that they all either assign error upon the admission of testimony or upon charges of the Court in regard to the customs of the Clearing House.
There was a conflict in the evidence and the jury exercising its proper power resolved the conflict in favor of the plaintiff in the Court below. It may be that some of the evidence submitted was immaterial but we cannot say that it was misleading. A new trial will not be granted because immaterial evidence was introduced, unless the jury appears to have been misled. Tilly vs. State, 21 Fla. 242; Pensacola A. P. R. R. Co. v. Anderson, 26 Fla. 425, 8 South. Rep. 127.
We have examined the charges given by the Court and those refused and are unable to say that the jury was misled as to the law in this case by any charge given or that any injustice was done the plaintiff in error by the *Page 22
Court refusing to give any charge which was refused or by the giving of any charge which was given. If the verdict be conformable to the law, it will not be set aside merely because the Court refused to give instructions which might have been properly given. Randall v. Parramore, 1 Fla. 409. To warrant the Appellate Court to reverse a judgment for an erroneous instruction, the Court must be satisfied that the jury was misled. Hooker v. Johnson, 10 Fla. 198. The refusal to give a proper instruction which would have availed the party nothing is harmless error. Mays v. Seymour, 17 Fla. 725.
Rehearing is denied.
WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur.
BROWN, C. J., AND ELLIS AND STRUM, J. J., concur in the opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/166547/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 18, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-5066
v. (D.C. No. 03-CR-67-K)
WESLEY DEAN STANDRIDGE, (N.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
Defendant pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g), and to possessing an unregistered firearm in
violation of 26 U.S.C. § 5861(d). The district court then sentenced Defendant to
thirty-eight months’ imprisonment.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Initially, Defendant appealed his conviction to this court on Fourth
Amendment grounds. We previously affirmed the district court’s judgment and
sentence on that issue. United States v. Standridge, No. 04-5066, 2004 WL
2944161, at *3 (10th Cir. Dec. 21, 2004). Subsequently, Defendant petitioned the
United States Supreme Court for a writ of certiorari. After granting Defendant’s
cert petition, the Supreme Court vacated the judgment and remanded the case to
this court for further consideration in light of its holding in United States v.
Booker, __U.S.__, 125 S. Ct. 738 (2005) (holding that the mandatory application
of the United States Sentencing Guidelines violates a Defendant’s Sixth
Amendment rights). Standridge v. United States, __U.S.__, 125 S. Ct. 1962
(2005).
Consistent with the directive given to us by the Supreme Court, we ordered
supplemental briefing from the parties regarding sentencing. In his supplemental
brief, Defendant challenges his sentence as being imposed in violation of his
constitutional rights, as articulated in Booker. Because Defendant did not raise
this issue to the district court, we review for plain error. United States v.
Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (citations
omitted). Under that standard, we will only reverse Defendant’s sentence if
Defendant can prove that the sentence imposed was (1) error, (2) which is plain,
(3) which affects his substantial rights, “and which (4) seriously affects the
-2-
fairness, integrity or public reputation of the judicial proceedings.” Id. (quotation
omitted).
We have recognized two types of Booker errors–constitutional and non-
constitutional. Id. at 731-32. In this appeal, Defendant claims that the district
court committed non-constitutional error when it applied the United States
Sentencing Guidelines (“Guidelines”) in a mandatory fashion at sentencing.
We agree with the parties that the district court’s mandatory application of
the Guidelines was plain error, thereby satisfying the first two prongs of
plain-error review. See id. We must therefore consider whether Defendant has
satisfied the third and/or fourth prongs of plain-error review.
In this case, the district court, after reviewing the presentence report and
applying the Guidelines enhancement, determined that Defendant’s Guidelines
imprisonment range was from thirty-seven to forty-six months. After making this
determination, the sentencing court decided to impose a sentence of thirty-eight
months, “between the low end and the middle” of the Guidelines range. Supp.
Rec., Vol. 1, Sent. Tr. at 5. Based on this sentence, there is no reason to believe
that the district court would have imposed a less severe sentence with its new
post-Booker discretion. See United States v. Riccardi, 405 F.3d 852, 876 (10th
Cir. 2005) (denying defendant relief even when applying the less rigorous
harmless error test). The fact that the district court judge did not impose a
-3-
sentence at the bottom of the Guidelines range indicates that there is no
reasonable probability that the court would reduce Defendant’s sentence on
remand post-Booker. See id. (“Having exercised his limited discretion under the
pre-Booker system to give [Defendant] the highest permissible sentence, there is
no reason to think the judge would exercise his now-greater discretion to reduce
the sentence.”) (citation omitted). Also, there are no remarks in the record which
demonstrate that the thirty-eight-month sentence was inappropriate in light of all
the circumstances. See id. Thus, Defendant fails to satisfy the third prong of the
plain error test. Having determined as much, we need not address whether
Defendant meets the fourth prong of the plain error test. See United States v.
Dowlin, 408 F.3d 647, 671 (10th Cir. 2005) (explaining that a party’s failure to
meet one prong of the test is a sufficient reason not to notice plain error).
Accordingly, even though Defendant’s sentence was imposed in violation
of the Sixth Amendment standards set forth in Booker, the error did not violate
Defendant’s substantial rights and must be disregarded. We AFFIRM
Defendant’s sentence and REINSTATE all non-sentencing portions of our
previous opinion.
Entered for the Court
Monroe G. McKay
Circuit Judge
-4- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1974679/ | 124 B.R. 345 (1991)
In re Joe F. LAMBERT and Susie E. Lambert, Debtors.
Bankruptcy No. BK-90-04364-LN.
United States Bankruptcy Court, W.D. Oklahoma.
February 5, 1991.
*346 Kenneth C. McCoy, Oklahoma City, Okl., for debtors.
Lyle R. Nelson, Oklahoma City, Okl., for Chapter 13 Trustee.
Timothy Leonard, U.S. Atty., W.D. Okl., for I.R.S.
ORDER ON OBJECTION TO CONFIRMATION OF CHAPTER 13 PLAN
PAUL B. LINDSEY, Bankruptcy Judge.
This matter comes before the court in connection with debtors' proposed modified Chapter 13 plan, and with objections and motions to dismiss filed herein by the Internal Revenue Service ("IRS") and by the Chapter 13 Trustee.[1] The IRS objection and motion are based primarily upon its objection to debtors' proposed application of plan payments on tax obligations, and the Chapter 13 Trustee's objection and motion are based primarily upon principles of feasibility.
The Internal Revenue Service ("IRS") has filed a secured claim in this Chapter 13 proceeding in the total amount of $86,793.02, and it appears to be undisputed that the claim is actually secured in the amount of $66,347.37, the extent of debtors' net worth.
Debtors have proposed to amend their Chapter 13 plan to extend for a term of 59 months and to increase their monthly payments from $1,015.79 to $1,696.88. They have also requested that this court require IRS to apply their payments in inverse chronological order, in other words to apply the payments first to the most recent tax periods. The result of this application of payments on the tax debt would be to pay in full certain priority taxes and all of the secured taxes, with interest, and to leave in excess of $20,000 in taxes unpaid. This unpaid balance, by virtue of the inverse chronological application of payments, *347 would be attributable to the earliest period for which taxes are unpaid, in this case, the calendar year 1985, and would be fully dischargeable. In the absence of the application of payments sought by debtors, the payments would be applied first to the earliest periods, and the approximately $20,000 unpaid at the conclusion of the plan would be attributable to the most recent periods and would be nondischargeable.
Debtors concede that their plan can not be confirmed unless the inverse chronological application of payments requested by them is ordered by the court.
Debtors rely on United States v. Energy Resources Co, Inc., ___ U.S. ___, 110 S. Ct. 2139, 109 L. Ed. 2d 580 (1990), in which the court held, in material part, as follows:
[A] bankruptcy court has the authority to order the Internal Revenue Service (IRS) to treat tax payments made by Chapter 11 debtor corporations as trust fund payments where the bankruptcy court determines that this designation is necessary for the success of a reorganization plan.
In Energy Resources, a corporate debtor obtained an order from the bankruptcy court requiring that certain payments pursuant to its Chapter 11 plan of reorganization be applied first to trust fund tax liability. The plan provided that all federal tax liability would be paid over a period of approximately five years. The government contended that since it had alternative sources of recovery of the trust fund taxes, the payment of those taxes first reduced the likelihood of it being paid in full. The court responded with the following statement:
While this result might be desirable from the Government's standpoint, it is an added protection not specified in the Code itself: whereas the Code gives it the right to be assured that its taxes will be paid in six years, the Government wants an assurance that its taxes will be paid even if the reorganization fails i.e., even if the bankruptcy court is incorrect in its judgment that the reorganization plan will succeed.
In this case, debtors seek an order from this court which will go much farther than Energy Resources, an order which will permit debtors to discharge all of the approximately $20,000 in unsecured tax liability, ensuring that IRS will never collect any of those taxes. Whereas in Energy Resources, the government was seeking a guarantee that debtor's promise to pay would be honored, here debtors seek to guarantee that the government will not receive the unsecured taxes.
Further, it is clear that Energy Resources is distinguishable since it was dealing not with designation of the order in which payments were to be applied to certain fiscal periods, but with the type of taxes to which such payments were to be applied. Energy Resources contains no reference whatever to the chronological order in which payments were to be applied.
It is this court's opinion that debtors have shown no justification whatever for the relief sought by them, other than that it would permit them to avoid entirely the payment of tax liability which would in the ordinary course of things be nondischargeable. Debtors' request for an order directing that plan payments to IRS be applied to the liability for the most recent fiscal period first will therefore be denied.
In this court's further opinion, debtors' plan, as modified, could not be confirmed in any event. Debtors have not made a payment under their originally filed plan for more than four months. Thus, they are in arrears in an amount exceeding $4,000. As is noted above, the modification calls for an increase of almost $700 in their monthly payments, and for a plan term of 59 months, only one month short of the statutory maximum. See 11 U.S.C. § 1322(c).
Debtor Joe F. Lambert testified, in substance: That he was engaged in the heating and air conditioning business; that he had outstanding receivables from completed jobs of approximately $7,500, of which about half had been outstanding for 60 days or longer; that no more than half of those receivables, if and when collected, could be applied against his delinquent plan *348 payments; that he anticipated being awarded new jobs in Arizona within the next 30 to 60 days; and that receipts from those jobs could be expected no earlier than 90 to 120 days from now.
One of the requirements in order for the court to confirm a Chapter 13 plan is that "the debtor will be able to make all payments under the plan and to comply with the plan." 11 U.S.C. § 1325(a)(6). This court simply can not find on the record before it that there is any reasonable likelihood that debtors will be able to make up the amounts by which they are already delinquent, that they will be able to meet the substantially increased monthly payment requirements imposed by their modified plan, or that they will be able to complete any plan within the statutory maximum term of 60 months.
In view of the foregoing, this court must deny debtors' request for inverse chronological application of plan payments to IRS, must deny confirmation of debtors' plan, as modified, and must grant the motions to dismiss filed herein by IRS and by the Chapter 13 Trustee. The case will therefore be dismissed.
IT IS SO ORDERED.
NOTES
[1] The court is aware that the response time as to debtors' motion to modify their plan has not as yet run. Because this court is of the view that the proposed modified plan could not be confirmed in any event, and because this case has been before the court on each of its last four monthly Chapter 13 dockets without resolution, the court deems it unnecessary to await formal responses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/166563/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 21, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-2113
v. D. New Mexico)
ALFREDO CASTRO-PINEDA, (D.C. No. CIV-03-1246 JC/LCS)
Defendant - Appellant.
ORDER
Before HARTZ, Circuit Judge, BARRETT, Senior Circuit Judge, and
McCONNELL, Circuit Judge.
Alfredo Castro-Pineda pleaded guilty to conspiracy to possess with intent to
distribute more than 500 grams of a methamphetamine mixture and on
October 21, 2002, was sentenced to 168 months in prison. He did not appeal that
conviction. On October 24, 2003, he filed a habeas motion under 28 U.S.C.
§ 2255. That motion raised three ineffective-assistance-of-counsel claims: (1)
counsel failed to argue to the district court that a firearm found in his home was
unrelated to the drug activity and could not be used to enhance his sentence; (2)
counsel failed to convince the court that he met the safety-valve requirements of
18 U.S.C. § 3553(f); and (3) counsel failed to object to the presentence report and
move for a two-level reduction based on his role as a “minor participant.” The
government responded to these claims, and the case was referred to a magistrate
judge who appointed counsel and set the case for oral argument.
With counsel appointed, Mr. Castro-Pineda filed an unopposed motion to
vacate the scheduled oral argument so that both sides could file briefs relating to
Blakely v. Washington, 542 U.S. 296 (2004). The magistrate judge granted the
motion to vacate oral argument, and ordered Mr. Castro-Pineda to file an amended
motion. The order stated that “[t]he Amended Motion may introduce new claims
as well as re-introduce claims that were filed in the original [motion]. The
Amended Motion may also address . . . and discuss solely whether it should be
applied retroactively.” R. Doc. 14. Mr. Castro-Pineda filed an amended habeas
motion on September 7, 2004. The amended motion did not raise the arguments
that were raised in his original pro se motion. Instead, the amended motion
argued only that Blakely was retroactive and, in the alternative, that his habeas
motion should be treated as a direct appeal.
The magistrate judge issued proposed findings and recommended that the
habeas motion be denied because Blakely was not retroactive and because his case
was not before the court on direct review. The magistrate judge also noted that
the amended motion did not raise the issues raised in the original motion. Before
the district court ruled, Mr. Castro-Pineda filed a motion to proceed pro se. In
that motion he alleged that he had spoken with his court-appointed attorney, who
-2-
informed him that he would not be filing objections to the magistrate judge’s
proposed disposition. He also indicated that his attorney had a “conflict of
interest” because he had failed to reintroduce the original claims. R. Doc. 22 at 2.
The magistrate judge granted the motion to proceed pro se and gave Mr. Castro-
Pineda additional time to file objections. Mr. Castro-Pineda filed his objections
and also stated that the issues raised in his original pro se motion were abandoned
without his consent.
The district court adopted the magistrate judge’s proposed findings, noting
that this court had ruled in the interim that Blakely was not retroactive. The
district court also addressed the claims raised in the original motion and found
that they were without merit. The district court denied a certificate of
appealability (COA), which is now sought from this court.
DISCUSSION
“A certificate of appealability may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). This means that the applicant must show “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, the applicant must
-3-
show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id. If the petition was denied on procedural grounds, the
applicant faces a double hurdle. Not only must the applicant make a substantial
showing of the denial of a constitutional right, but he must also show “that jurists
of reason would find it debatable . . . whether the district court was correct in its
procedural ruling.” Id. “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the
petition should be allowed to proceed further.” Id. Mr. Castro-Pineda has not
met this burden.
We review the district court’s factual findings for clear error and its legal
conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001). No
reasonable jurist could dispute the district court’s resolution of Mr. Castro-
Pineda’s claims. Neither Blakely nor United States v. Booker, 125 S. Ct. 738
(2005), is retroactive, see United States v. Bellamy, 411 F.3d 1182, 1186-88 (10th
Cir. 2005), and there is no reason to consider this habeas application as a direct
appeal. The district court also properly concluded that the claims raised in the
original pro se motion were without merit.
-4-
We therefore DENY a COA for substantially the same reasons as the
district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-5- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3390518/ | The appellant, Dave Smith, was informed against in the Circuit Court of Levy County, Florida, tried, convicted and sentenced to the State Prison at hard labor for two years for the larceny of four hogs, property of Willie Ishie. From this judgment or sentence *Page 512
an appeal has been perfected here. Several grounds of the motion for new trial overruled by the trial court challenged the sufficiency of the testimony to sustain the verdict and judgment.
The hogs were unmarked and ranged near the place of the owner. The appellant boarded in a home located not a great distance from the place of Willie Ishie. The owner hunted his hogs on the range about every two weeks and fed them. He was able to identify the hogs by color as they were raised around him, and two were five or six months of age, while the other two were six or seven months old when they disappeared from their usual range in October, 1940. The hogs were located shortly thereafter in a pen near the home of a Mrs. Howell, with whom the appellant was boarding. It was appellant's testimony that the four hogs were owned by Mrs. Howell, but she did not take the stand as a witness. It was asserted that Mrs. Howell owned a hog claim on the range where these hogs disappeared. Some evidence appears in the record that these hogs were, by the appellant and Mrs. Howell or her son, penned about the time Willie Ishie's hogs disappeared.
It is contended that the testimony fails to show that the appellant took and carried the hogs away from the owner, or that the alleged stolen property was ever in the possession of the appellant. The testimony on this point is none too strong, but it is uncontradicted that the appellant, aided by Mrs. Howell or her son, placed the hogs in the pen near the Howell home. It is true that when the selling price of the hogs was being discussed the appellant inquired of Mrs. Howell the amount thereof. Mrs. Howell, while not appearing as a witness, is quoted as saying that *Page 513
the appellant would name the price. The hogs were shown to be in a pen at or near his boarding house, and placed there by him with the assistance of others; the hogs being about seven months old or less were never identified by any one as the Mrs. Howell stock of hogs, but the ownership thereof was shown to be in Willie Ishie. The facts adduced presented purely a question for a jury under appropriate instructions.
Certain instructions given by the trial court are challenged. It is established law that in reviewing instructions alleged to be erroneous we are required to consider them in their entirety as differentiated from isolated instructions or portions thereof. We have duly reviewed the entire charge in light of the contention of counsel for appellant and fail to find reversible error. We confess that the testimony on one or two pivotal points is rather weak. The constitutional prerogative of a trial by jury is vouchsafed by the fundamental law. The appellant was granted that right and an impartial jury heard all the testimony, argument of counsel and charge of the court and reached a verdict. The law does not permit us to interfere with the conclusions of the jury in the absence of a showing of an influence dehors the record and reflected in the verdict. Such a showing has not been made to appear on this record.
The judgment appealed from is hereby affirmed.
BROWN, C. J., TERRELL and THOMAS, JJ., concur. *Page 514 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3390538/ | This cause having heretofore been submitted to the court upon the transcript of the record of the *Page 328
judgment herein, and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the court being now advised of its judgment to be given in the premises, it seems to the court that there is no error in the said judgment; it is, therefore, considered, ordered and adjudged by the court that the said judgment of the Circuit Court be, and the same is hereby, affirmed.
WEST, C. J., AND ELLIS AND TERRELL, J. J., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3850171/ | The question is whether there was abuse of discretion in refusing an issue devisavit vel non. Testatrix, a widow, died August 20, 1937, without surviving children, but leaving three minor grandchildren, issue of a deceased daughter. This appeal is prosecuted by their guardian, who complains that the learned court below refused her application for a jury trial1 to determine whether the first page of a two-page codicil, dated June 9, 1937, executed by testatrix only on the second page, was in fact part of the codicil, or whether it had fraudulently been substituted for another page that was part *Page 490
of the codicil when it was executed. This codicil, with the will, dated February 11, 1937, and another codicil dated May 9, 1937, was admitted to probate. No question is raised about the probate of the will and the codicil of May 9th. The controlling rule of law is not disputed;2 it was recently applied in Noble'sEstate, 338 Pa. 490, with a reference to a number of the cases. The appellant also makes the important concession that testatrix had testamentary capacity and that no undue influence was exerted. The charge is fraudulent substitution of the first page of the codicil.
In the first paragraph of her will, testatrix directed payment of her debts; in the second, disposition of jewelry, clothing, personal and household effects, etc., "in accordance with a memorandum which I shall leave for the guidance of my executors. . . ." Such a memorandum was made by her and was admitted to probate as the codicil of May 9, 1937. In the third paragraph of her will, she made a number of money bequests, one of *Page 491
them, $5,000, to Frank D. Behring, an appellee. In the fourth paragraph, subequently changed by the challenged codicil, she gave the residue of her estate to "Sydney Dreifus and Frank D. Behring, their heirs and assigns, and Girard Trust Company . . ." in trust (shortly stated) to accumulate the income for her three named grandchildren until majority, then to pay them the income; to pay them one-half the corpus at twenty-five and the other half at thirty-five. She gave her grandchildren powers of appointment and provided for distribution in the event of death without issue or failure to appoint. The fifth paragraph dealt with other trust powers; the sixth authorized the executors or trustees to apply net income for the benefit of the minors in specified circumstances; the seventh contained spendthrift trust provisions; the eighth provided for the payment of taxes; in the ninth and last paragraph she appointed as executors the same parties named trustees in the fourth paragraph.
The challenged codicil consists of two sheets of paper, not firmly fastened together; it is typewritten, except for the date "9th" inserted by a pen in a blank space which had been left for the purpose. It is conceded that testator signed it in the presence of John E. Fitzpatrick, the subscribing witness; the sufficiency of the proof of execution is also admitted.
The first sheet is as follows:
"A codicile to my Last Will dated February 11, 1937.
"On page 2 of my Last Will, I wish it to read
"FOURTH: All the rest, residue and remainder of my estate of whatsoever kind, whether real, personal or mixed and wheresoever situated and whether now owned or hereafter acquired by me, I give, devise, bequeath, limit and appoint unto Sydney Dreifus and Frank D. Behring, their heirs and assigns, and the First National Bank, 2nd Street and Girard Ave. Office, of the City of Philadelphia, State of Pennsylvania, its successors *Page 492
and assigns, IN TRUST, NEVERTHELESS, for the following uses and purposes, that is to say:
"IN TRUST, to hold, manage, rent, invest, reinvest and keep invested the corpus or principal thereof in such investments as trustees in their wise discretion shall deem proper, and to demand, collect and receive the rents, dividends, interest and income therefrom and, after the deduction of all necessary and proper charges and expenses, to pay over one-half the income therefrom, starting one year from the date of my death, quarterly, unto Frank D. Behring until my grandchildren, Robert A. Schless, Jr., Howard H. Schless and Guy L. Schless shall respectively attain the full age of twenty-one years; with power in my said grandchildren, in their sole and absolute discretion, to withdraw their respective distributive shares of the corpus or principal of my said residuary estate from which they may be at the time entitled to the income, free and clear of any and all trusts hereunder, one-half part thereof after they shall have respectively attained the age of twenty-five years, and the balance thereof after they shall have respectively attained the full age of thirty-five years."
The second sheet is as follows:
"Continuation of codicile of my Last Will dated February 11, 1937.
"Also, that on page 4 of my Last Will dated February 11, 1937, under paragraph
"NINTH: I hereby nominate, constitute and appoint said Sydney Dreifus, Frank D. Behring and the First National Bank to be the executors of this my Last Will and Testament, and in the event that either the said Sydney Dreifus or Frank D. Behring shall be deceased or for any reason shall be unable or unwilling to act as coexecutor of and/or cotrustee under this my Will, I nominate, constitute and appoint Harry Dreifus to be coexecutor of and cotrustee under this my Will in his place and stead; and I direct that no bond shall be required of them or any of them, in the State of Pennsylvania *Page 493
or elsewhere, conditioned upon the faithful performance of their duties as such executors of and/or as trustees under this my Will.
"IN WITNESS WHEREOF I have hereunto set my hand and seal this 9th day of June A.D. One Thousand Nine Hundred and Thirty-seven.
"[signed] Birdie M. Rosenthal L. S.
"Witnessed
"John E. Fitzpatrick [signed]"
In her amended petition, in the court below, appellant averred: "Your petitioner believes and expects to be able to prove that from the suspicious circumstances surrounding said codicil that the unsigned sheet was not present nor in the contemplation of the decedent at the time of signing and witnessing of the single sheet constituting her codicil; that the sole purpose of the decedent in her codicil of June 9th, 1937, was merely to change the executors and trustees under her Will; that she never contemplated changing those beneficiaries interested under the residuary clause of her Will of February 11, 1937, and that Frank Behring prepared said unsigned sheet and fraudulently made it part of the Will of the decedent as an apparent codicil thereto."3
Behring, in addition to receiving the legacy of $5,000, had, as was stated above, been named in the will as one of the executors and also one of the trustees. By the codicil of June 9, 1937, his benefits were increased; he *Page 494
was given, during the grandchildren's minorities, what, according to appellee's brief, may amount to one-half the net income for a period of five years, one-third for two additional years and one-sixth for the last five years.4 His relations with testatrix and her husband were considered in the opinion filed in Rosenthal's Estate, 335 Pa. 49, 6 A.2d 585 (1939), a proceeding that was referred to in the hearing of this case.
Before dealing with the evidence relied on for the contention that Behring fraudulently substituted the first page, it is necessary to consider the legal question whether that page, which is not signed by the testatrix, and the second, which is signed, constituted a single instrument; whether they are (in the accepted phrase) sufficiently "connected by their internal sense"; if they do not constitute a single instrument there was no authority for the probate. This subject is adequately dealt with in the opinion of the learned hearing judge and also in the opinion filed by the court in banc in disposing of appellant's exceptions; we shall therefore only refer briefly to the controlling evidence. The first page begins by the heading "A codicile to my Last Will dated February 11, 1937" and, in the next line, refers to page 2 of the will and its fourth paragraph in which testatrix says she desires to have read as she then states it on the rest of that page. In the fourth paragraph, as was stated above, she had disposed of the residue of her estate and had appointed Sydney Dreifus, Frank D. Behring and the Girard Trust Company, trustees. One of her purposes in making the codicil was to eliminate *Page 495
the Girard Trust Company as one of the trustees and to substitute "the First National Bank, 2nd Street and Girard Ave. Office, of the City of Philadelphia, . . ." In the fourth paragraph of the will, she had provided for the accumulation of the income during the minorities of the grandchildren; this provision was now changed on the first page of this codicil by directing the trustees "to pay over one-half the income therefrom, starting one year from the date of my death, quarterly, unto Frank D. Behring" until the grandchildren become of age. The first thing at the top of the second page is "Continuation of codicile of my Last Will dated February 11, 1937."5 The next line begins: "Also, that on page 4 of my Last Will. . . ." Both the word "Continuation" and the word "Also" indicate that the second page was not in itself the complete instrument but that something had preceded it and was now in process of completion. The second page then goes on to refer to the 9th paragraph of her will and contains what undoubtedly refers to and connects with what was stated on the first page. This provision is, I nominate, etc., "said Sydney Dreifus, Frank D. Behring and the First National Bank to be the executors of this my Last Will and Testament. . . ." This bank was not referred to in the will and appeared for the first time in the first sheet of the codicil with relation to the 4th paragraph of the will appointing trustees. In the 9th paragraph of her will testatrix had named the Girard Trust Company as one of the executors. The words on the second sheet "said Sydney Dreifus, Frank D. Behring and the First National Bank," therefore, directly refer to the words on the first sheet "the First National Bank, 2nd Street and Girard Ave. Office, of the City of Philadelphia, . . ." On the first page she made a change in the trustees and on the second page a change in the executors, and, in addition, joined the executors and trustees *Page 496
in the provision that no bond shall be required of them. We must therefore agree with the learned court below in the legal conclusion that the papers are so connected in their internal sense as to constitute a single instrument and therefore entitled to probate,6 unless appellant shall have made good her averment of fraudulent substitution of the first page by Frank D. Behring. We then come to that subject, for it is only on that branch of the case that the demand for a jury trial is for consideration.
The averment is that Behring was guilty of forgery; that he fraudulently substituted the first page of the codicil for something else that testatrix had first caused to be prepared and which she desired to have precede what is on the second page. If the issue were granted, appellant would have the burden of proving the forgery to the satisfaction of a jury, but before the issue can be granted, the appellant must first satisfy the court below that "the ends of justice call for a verdict against the will, or [that the court] is so uncertain on this point that [it] could conscionably sustain a finding either way. . . ." Tetlow's Estate, 269 Pa. 486, 494,112 A. 758; see also Brehony v. Brehony, 289 Pa. 267, 270, 137 A. 260. As the presumption of innocence (Wikoff's Appeal, 15 Pa. 281,290) was with the proponent, it was necessary that appellant overcome it. Judge STEARNE, the hearing judge, put the matter with characteristic clearness: "Doubtless there was ample opportunity for perpetration of fraud by Frank D. Behring, and there may be ground for considerable conjecture and suspicion, but as was said by HENDERSON, J., in Wanamaker's Estate, 8 Pa. D. C. 569, p. 576: '. . . opportunity is not evidence, and conjecture and suspicion do not take the place of testimony.' " The close relation in which Behring stood to testatrix is described *Page 497
in the opinion in Rosenthal's Estate, 335 Pa. 49, 6 A.2d 585, supra.7 Behring, who was called by the appellant, described the circumstances in which he typed the codicil. He testified that testatrix had her will and read from it parts of the fourth and ninth paragraphs and dictated the modifications as she desired them and as they now appear in the codicil and that he typed them as she read and dictated to him; that he made an original and one carbon copy, which, after she read them, were left with her.8 Mr. Fitzpatrick, who witnessed her signature was an employee of the Rosenthal Company and testified that he was invited to her house for dinner, and afterward, at her request, saw her execute the codicil and witnessed her signature; that while *Page 498
there was more than one sheet he did not see enough of the instrument to describe it in greater detail. Witnesses testified to declarations that she wished to change her will and make further provision for Behring.9 Appellant also regards the circumstances in which the codicil was found as suspicious; it was not found immediately after death but was located by Behring on September 12th in a letter file in decedent's house. The will had been found in her safe deposit box in the Girard Trust Company. The carbon copy of the codicil was found in a safe in Mrs. Rosenthal's bedroom; the combination of this safe was obtained from a memorandum in her writing found in her safe deposit box. The safe was opened by an employee of the Trust Company. Behring testified that he did not know the combination and had never had access to the safe. The appellant suggests that this evidence should not be believed; but, there is no denial of it and it came from a witness called by her; moreover, if the court elected not to believe his testimony, the rejection of it would still not prove that he opened the safe and put the carbon copy of the codicil in. Mere opportunity to commit a fraud, is, of itself, not sufficient to prove that Behring committed a fraud. The proponent called witnesses, experts in the operation of typewriters, who pointed out physical appearances in the papers which amounted to a demonstration that the face copies of the codicil and the carbon copies taken out of the safe were written at the same time on the same machine by the same operator.10 *Page 499
The opinion of the learned court below, sitting in banc, concluded as follows: "As the hearing judge well said, the 'evidence would not support a finding by a jury against the codicil.' " We cannot find that the court abused its discretion in reaching that conclusion and must therefore affirm the order appealed from; costs of the appeal to be borne by the estate.
1 Under section 21(b) of the Act of June 7, 1917, P. L. 363, 20 PS section 2582.
2 "It is the established law of Pennsylvania that, in cases of the character of the one now before us, the judge is vested with power to decide whether or not he shall submit oral evidence to the jury, even though it be conflicting. It is his right and duty, after weighing the whole evidence impartially, to refuse to present it to the jury unless he either feels the ends of justice call for a verdict against the will, or is so uncertain on this point that he could conscionably sustain a finding either way on one or more of the controlling issues involved. If, after so weighing the whole body of the evidence, the trial judge feels sure that his professional and official conscience would not permit him to sustain a verdict against the validity of the will, either because the contestants' proofs lack probative force or are legally inadequate, or because those that are reasonably worthy of credence raise no material conflict on any governing point, or the 'prima facie case' which they present has been 'so overcome by opposing proof as to leave no substantial dispute' (Sharpless's Est.,134 Pa. 250, 259; Fleming's Est., 265 Pa. 399, 406), it is his bounden duty to instruct the jury peremptorily against the contestants: Phillips's Est., 244 Pa. 35; Fleming's Est.,265 Pa. 399, 406." Tetlow's Estate, 269 Pa. 486, 494, 112 A. 758.
3 She prayed that an issue be "directed to try by a jury the following questions of fact:
"(a) Whether the unsigned paper writing probated as a codicil to the will of February 11th, 1937 was executed in accordance with Section 2 of the Wills Act of Pennsylvania requiring wills and codicils thereto to be signed at the end thereof.
"(b) Whether the decedent knew or contemplated the existence of the unsigned sheet or intended it to be a codicil to her will.
"(c) Whether the unsigned paper writing probated as a codicil to the will of February 11, 1937 was fraudulently prepared by Frank Behring and by him fraudulently and colorably made a part of the will of February 11, 1937 as an apparent codicil thereto."
4 We are not advised of the exact amount of the estate but, on this subject, the opinion of the court in banc states: "This evidence, coupled with the extent of the gift (one-half of the income until testatrix's grandchildren attain their majority) in comparison with the size of the estate and considering the other natural objects of the testatrix's bounty, indicates that while proponent benefits considerably under this instrument, nevertheless, it is not to any degree unconscionable or such as to evidence per se an overreaching on his part."
5 This line, Behring testified, was written by him without the dictation of testatrix.
6 See Maginn's Estate, 278 Pa. 89, 93, 122 A. 264; Maginn'sEstate, 281 Pa. 514, 517, 127 A. 79; Baker's Estate, 331 Pa. 33,35, 200 A. 65, and cases cited in those opinions.
7 On that subject the court in banc, in an opinion written by BOILER, J., said: "On the other hand, there is no allegation that testatrix was of weakened mind. It is clear also that proponent was a favorite of testatrix, and while not of her blood, yet a natural object of her solicitude. He had been in close and constant association with testatrix's husband and herself in the former's lifetime, and after his death, with testatrix herself. The record contains nothing in our opinion to substantiate anything but that the utmost propriety and regularity existed in this relationship. We have the testimony of at least three credible disinterested witnesses that testatrix, at times suspicious to the execution of the questioned codicil, expressed her intention to further provide for proponent by her will."
8 "Q. What did you do with it? A. When we were finished I gave Mrs. Rosenthal the two original copies and I took the carbon copy and we stayed there and read them over. Mrs. Rosenthal read it out loud and we talked about it and when finished I put the two papers together. They were put in the top bureau drawer. By the Court: Q. What do you mean by putting the two papers together? A. The four papers were put together, the two originals on top and the two carbons underneath. There was a paper clip stuck in the upper side about here and she took the four papers and put them in the top bureau drawer. Q. When you talk about a paper clip you mean a metal arrangement something like that? A. Just like that (indicating). Q. That clips over without fastening permanently? A. No, just with a paper clip. Q. What I would call a non-mutilating paper clip? A. Yes."
9 One of these witnesses was John J. Mitchell, Jr., a member of the bar; another was John E. MacGregor, trust officer of the First National Bank.
10 On this subject the record contains the following: "MR. COYNE: May I interrupt and say that I do not suppose there is any question that the carbon copy of the first sheet, sheet No. 1 carbon is a correct and exact carbon of the sheet No. 1, and sheet No. 2 carbon is an exact carbon of sheet No. 2. Let us admit that. THE COURT: You admit that? MR. COYNE: Yes." | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3390554/ | In May, 1930, appellee filed a bill of complaint to foreclose a mortgage given to secure $150,000.00 indebtedness and creating a lien on certain lands in Dade County, Florida, with the improvements thereon. By amendment to the bill it was shown that there was erected upon the lot a two story building, the first floor being occupied as stores and the second floor as office rooms. It was shown that the sums of $6040.00 and $10,388.55 had been paid on interest since the date of the mortgage which date was June 22, 1925. Interest was at 8 per cent.
The defendants by answer attempted to set up as a defense to the foreclosure that in March, 1927, when they were in default of payment of interest in the sum of $18,000.00, the complainants agreed to waive the default upon the defendants agreeing to assign all of the rent, arising from the rental of the premises and designated Crow-Reader Company as rental agents, with the agreement that the rentals should be paid over to the complainant to apply on the interest payments. It is alleged that it was then and there further agreed that if the rentals failed to produce as much as $1,000 per month, the defendants should make up the deficiency from some other source and pay it to the complainants.
The record also showed by both the amended bill and the answer that the complainant had paid large sums for taxes amounting to an aggregate of $10,858.39, and that the taxes for the year 1929 were on the date of the filing of the bill of complaint unpaid.
The record shows that the Crow-Reader Company collected the rents as agent for the mortgagors and applied the same to the payment as required but these rents were not sufficient to produce $1,000 per month and the defendants failed to pay the deficiency. *Page 106
The answer further alleged that after the agreement above mentioned another agreement was made by which the complainant agreed to refrain from foreclosing the mortgage and to waive all default so long as it received the rents until the City of Miami real estate market was on a sound financial basis.
The answer sets up no defense to the foreclosure and neither did the evidence warrant a denial of such decree.
The first agreement for forbearance at most was only an agreement to waive defaults then existing and to forbear foreclosure as long as payments were made in accordance with that agreement. The record conclusively shows that the agreement was breached. There was no valuable consideration either alleged or proved for the second alleged agreement. Neither was a time fixed for its performance with such certainty and definiteness as to make it a valid agreement had there been consideration for it.
This case is to be differentiated from the case of Moseset al. v. Woodward, et al., opinion filed April 8, 1933, in that in the case just referred to the answer alleged, and the same was supported by proof, that the property was surrendered by the mortgagor to the mortgagees under an agreement that mortgagees should take possession and control of the property and collect the rents and apply the same according to the agreement they had entered into. Possession of the property was a valuable right which remained in the mortgagor until it was surrendered to the mortgagee and constituted a valuable consideration for the agreement for forbearance and in that case not only was the agreement made, but it was carried into effect by performance of the parties. In the case now before us possession was never surrendered, but in effect the defendants plead that the complainants were not entitled to enforce the provisions of the mortgage, because they had agreed to accept less than the *Page 107
terms of the mortgage called for and that without receiving any valuable consideration and without defendants surrendering anything which they were not bound to surrender under the terms of the mortgage.
The decree should be affirmed and it is so ordered.
Affirmed.
WHITFIELD, P. J., and BROWN, J., concur.
DAVIS, C. J., and ELLIS and TERRELL, J. J., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3390556/ | Appeal dismissed on motion of counsel for Appellees. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3390579/ | This case originated in this court by the filing of petition for writ of mandamus to compel the Board of County Commissioners of Osceola County, Florida, to include in the tax levy for the year 1928 for Osceola County, Florida, as assessment of twenty (20) mills on the dollar against all of the taxable property in Osceola County within the territorial limits of Atlantic-Gulf Special Road *Page 480
and Bridge District of the State of Florida and to require such Board of County Commissioners to order and direct the county tax assessor of said county to assess such amount of taxes against such property, which said amount of taxes had theretofore by resolution been levied by the Board of Bond Trustees of Atlantic-Gulf Special Road and Bridge District of the State of Florida, to provide a fund for the purpose of paying interest and providing a sinking fund for the payment of interest and principal of the bonded indebtedness outstanding against said district.
It was alleged in the petition that the relators were the duly elected, qualified and acting bond trustees of Atlantic-Gulf Special Road and Bridge District of the State of Florida and that the levy contemplated was and is absolutely necessary to provide the funds for the payment of principal and interest of the outstanding bonded indebtedness of the district and that without the same being so assessed and collected the said district will default in its bonded indebtedness and cannot pay off and discharge the same.
It was alleged that the district was created by Chap. 11127 of the laws of Florida, Acts of 1925, and that such Act of the Legislature created a board of bond trustees and authorized and empowered the board of bond trustees annually to levy upon all the taxable property in said district a sufficient tax to pay the interest and to provide and maintain a sinking fund for the payment of interest and principal of the bonds provided for or authorized by said Act. That pursuant to the provisions of said Act, the board of bond trustees of said district, by resolution duly adopted, called an election to be held in said district on the 11th day of August, 1925, for the purpose of determining whether or not bonds of said district in the amount of One Million ($1,000,000.00) Dollars should be authorized and issued for the purpose of constructing and maintaining *Page 481
a road with all necessary bridges and culverts as described in the Act creating such district. That pursuant to such resolution such election was duly held in said district on the 11th day of August, 1925, and that the qualified voters freeholders residing in said district and voting in such election, cast 230 votes in favor of the issuance of the bonds and 29 votes against the issuance of the bonds. That pursuant to such election the board of bond trustees of Atlantic-Gulf Special Road and Bridge District of the State of Florida, by resolution duly adopted on the 12th day of August, 1925, authorized the issuance of One Million ($1,000,000.00) Dollars of the bonds of said district. That after providing for the issuance of bonds as stated in the sum of One Million ($1,000,000.00) Dollars, the board of bond trustees of said district filed a petition in the circuit court in and for Indian River county, the same being one of the counties in which the lands in said district are located, praying for the validation of such bonds and that on the 9th day of October, 1925, a decree was duly entered by the Court validating andconfirming the issuance of said bonds, which decree was duly recorded in the office of the clerk of the circuit court of Indian River County, Florida, in Chancery Order Book No. 1, p. 112. That thereafter the board of bond trustees sold anddelivered $500,000.00 of such bonds of said district and later sold and delivered an additional $250,000.00 of bonds of such district, making a total of $750,000.00 of the bonds of such district which have become outstanding. That said bonds mature over a period of years beginning September 1, 1930, to and including September 1, 1954, in certain definite installments of principal and that the interest thereon is payable semi-annually on the 1st day of March and 1st day of September of each year until all such bonds are paid.
It is further alleged that the Legislature of the State of Florida in extraordinary session held in the year 1925, by *Page 482
its Legislative Act, ratified, validated and confirmed the proceedings of the board of bond trustees of the Atlantic-Gulf Special Road and Bridge District of the State of Florida in issuing and selling bonds of the said district to the extent of One Million ($1,000,000.00) Dollars, which Act became Chap. 11401, Laws of the State of Florida. That the Legislature of the State of Florida at its regular session in 1927 passed another Act legalizing, validating and confirming the proceedings of the board of bond trustees of Atlantic-Gulf Special Road and Bridge District of the State of Florida in issuing bonds of the said district in the amount of One Million ($1,000,000.00) Dollars, which Act became Chap. 12885, Laws of Florida.
Alternative writ of mandamus was issued and the respondents have filed an answer in which the validity of Chap. 11127 is attacked, upon the ground that such Act is in conflict with Sec. 3, Article 9, of the constitution of the State of Florida, and Sec. 20, Article 3, of the constitution of the State of Florida, and it is contended that because Chap. 11127 was in conflict with provisions of the organic law that Chap. 11401 and Chap. 12885 are void and of no effect.
Had the validating Acts, Chap. 11401 and Chap. 12885 not been passed by the Legislature, then the opinion in the case of Stewart v. Daytona and New Smyrna Inlet District, filed November 7, 1927, reported 114 So. R. 545, might have been relied upon as an authority to defeat the levy of the tax here sought to be accomplished, but these validating Acts were passed by the Legislature and authority to levy taxes conferred by Chap. 11401 and by Chap. 12885 is limited to payment of principal and interest on the One Million Dollars of bonds authorized by the election heretofore referred to held on the 11th day of August, 1925, within said district and the levy of the tax, assessment of which is here sought to be required, is for the purpose of *Page 483
producing funds with which to pay interest and create a sinking fund for the payment of the bonds referred to in Chap. 11401 and in Chap. 12885, Laws of Florida, and, therefore, the opinion in the case of Stewart v. Daytona and New Smyrna Inlet District, supra, is not applicable. See State ex rel, v. Fort Pierce Inlet District, 94 Fla. 1157; 115 So. R. 547; Hipson v. Taylor, filed June 27, 1928.
If the authority to levy the tax here sought to be required was to be found only in Chap. 11127, supra, it would be necessary for us to hold that the levy finds no support in valid legislation, but that is not the case which confronts us. Chap. 11127 was a valid enactment insofar as it purported to create the Atlantic-Gulf Special Road Bridge District of the State of Florida, but when the Legislature assumed to grant power to that district to incur indebtedness and to levy taxes to produce money with which to pay such indebtedness without limit being placed by the Legislature on the amount of the indebtedness which could be incurred and without limit upon the amount of the tax which could be levied, it constituted an unlawful attempt to delegate to the district legislative power. The authority to levy the tax, however, is not dependent upon the provisions of Chap. 11127, supra, but the authority therefor is found in Chap. 11401, supra, and in Chap. 12885,supra. These latter legislative Acts which validate and authorize a specific bond issue by the district in a sum limited to One Million Dollars and authorize and validate all resolutions and actions of the bond trustees made and had in connection with such bond issue in the sum of One Million Dollars. The Legislature thereby authorized the district to levy bonds in the sum of One Million Dollars, which was a lawful delegation of legislative power and the power and authority to issue the bonds of the district in the sum of One Million Dollars necessarily carries with it the power *Page 484
and authority to levy the tax within the district sufficient to create the necessary sinking fund and to pay the interest on the bond issue. State v. Fort Pierce Inlet District, 94 Fla. 1157; 115 So. R. 547.
Under the statutes applicable to this case a mandatory duty rests on the Board of County Commissioners, the Tax Assessor and the Tax Collector of Osceola County to proceed with the levy, assessment and collection of the tax as required by the resolution adopted by the Board of Bond Trustees of Atlantic-Gulf Road and Bridge District of the State of Florida, a certified copy of which resolutions has been presented by such Board of Bond Trustees to such Board of County Commissioners. The Board of County Commissioners is not invested with authority to exercise its discretion as to whether or not such levy is either expedient or necessary. This responsibility has been placed on the Board of Bond Trustees and the action in this regard by the bond trustees is not subject to review or control by the Board of County Commissioners.
The peremptory writ should issue and it is so ordered.
WHITFIELD, TERRELL, STRUM AND BROWN, J. J., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4553793/ | Opinion issued August 6, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00548-CV
———————————
MADISON DEVELOPMENT GROUP LLC, QUATTRO DEVELOPMENT,
LLC, AND MICHAEL LIYEOS, Appellants
V.
MATTRESS FIRM, INC., Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2017-73196
OPINION
In this case, appellee, Mattress Firm, Inc., sued multiple defendants, including
appellants Madison Development Group LLC (Madison), Quattro Development,
LLC (Quattro), and Michael Liyeos, arising out of an alleged multi-year fraudulent
scheme involving bribes and kickbacks paid to Mattress Firm insiders by real estate
brokers and property development companies in an effort to charge Mattress Firm
artificially inflated rental rates on leases throughout the country. Mattress Firm
brought claims for fraud, civil conspiracy, breach of fiduciary duty, aiding and
abetting breach of fiduciary duty, and negligence. It also alleged that the defendants
had been unjustly enriched, and it sought the imposition of a constructive trust. Most
of the defendants generally appeared in the underlying lawsuit. Madison, Quattro,
and Liyeos, however, are all nonresidents of Texas and they filed special
appearances.
After a hearing, the trial court denied all three appellants’ special appearances.
On appeal, each of the appellants contends that the trial court erred in denying their
respective special appearances because they lack minimum contacts with Texas such
that maintenance of the suit against them in Texas fails to comport with due process.
Madison also argues that exercising personal jurisdiction over it would offend
traditional notions of fair play and substantial justice.
We affirm.
Background
Mattress Firm is a Delaware corporation with its principal place of business
in Houston, Texas, and it sells mattresses and other bedding materials in retail stores
nationwide. Generally, Mattress Firm does not own the real property on which it has
2
retail stores. Instead, “independent real estate developers” own and develop the
property, and Mattress Firm enters into a lease with the developer, or a “special
purpose entity” owned by the developer, to operate a retail store on the property.
Mattress Firm has a Real Estate Committee (the Committee) that regularly meets in
Houston and determines which leases to approve.
In 2009, Mattress Firm embarked on a period of rapid expansion throughout
the United States, and it made several internal hires to facilitate this expansion. It
hired Bruce Levy as Vice President of Real Estate and Construction “to lead the
national leasing efforts,” and it hired Ryan Vinson as Director of New Market
Development. Levy later became Executive Vice President of Real Estate, and
Vinson later became Senior Vice President of Real Estate. On Levy’s
recommendation, Mattress Firm hired Alexander Deitch and the real estate
brokerage firm that employed him, Colliers International—Atlanta, LLC (Colliers
Atlanta), to serve as Mattress Firm’s “Master Broker,” primarily responsible for
“identifying, evaluating, and brokering new site locations and advising and
negotiating new leases and lease renewals on behalf of Mattress Firm.” Levy,
Vinson, Deitch, and Colliers Atlanta were responsible for evaluating potential
locations for new retail stores and for recommending to senior management at
Mattress Firm, including the Committee, which retail stores to open and where, lease
terms for these stores, construction budgets, which leases to renew, and which stores
3
to close. Levy, Vinson, Deitch, and Colliers Atlanta are all defendants in the
underlying lawsuit but are not parties to this interlocutory appeal.
According to Mattress Firm, Levy, Vinson, Deitch, and Colliers Atlanta
joined with real estate development companies and their principals—including
appellants Madison Development, Quattro Development, and Michael Liyeos, one
of Quattro’s principals—to engage “in a nationwide bribery, kickback, and fraud
scheme to financially enrich themselves at Mattress Firm’s expense.” To secure their
position as “Master Broker,” Deitch and Colliers Atlanta paid bribes and kickbacks
to Levy and Vinson. Levy and Vinson also used “preferred developers”—real estate
development companies that were also willing to pay bribes and kickbacks, often
disguised as “brokerage fees” or “development fees,” to Levy, Vinson, and Deitch—
to develop properties nationwide, and these developers “were given the largest
number of Mattress Firm leases with very favorable lease terms, including above-
market rents and longer lease terms.” The developer-friendly leases increased the
value of the properties, allowing the developers (or entities controlled by the
developers) to sell their properties at a substantial profit several months after
entering into a lease with Mattress Firm.
As part of the alleged fraudulent scheme, Levy, Vinson, Deitch, and the
development companies worked together to identify properties for new retail stores,
negotiate long lease terms, and set inflated rental rates for new store locations that
4
were beneficial to the development companies but detrimental to Mattress Firm.
Levy, who “controlled the real estate transactions for the company,” ensured that the
Committee would approve the leases at the agreed-upon terms through
misrepresentations and omissions about the nature of the transactions, including
misrepresenting “[t]he need to pay at the high end of the market, or above, to secure
a lease location,” “the fact that there were no secret side deals to secure the lease
location,” “that there were no conflicts of interests that would require the transaction
to be subject to closer scrutiny,” and “that the lease rates were reasonable and the
best deal possible under the circumstances.”
In October 2017, Mattress Firm filed suit against seventeen defendants,
including the three appellants here—Madison, Quattro, and Liyeos.1 Madison is a
Washington limited liability company with its principal place of business in
Washington. Quattro is an Illinois limited liability company with its principal place
of business in Illinois, and Liyeos is a member of Quattro and an Illinois resident.
1
Mattress Firm also sued Levy, Vinson, Deitch, Colliers Atlanta, Preferred Realty,
LLC, Chase Ventures LLC, ABR Investment, LLC, Preferred Developers, LLC,
Terra Consulting II, LLC, Win-Development, L.L.C., Owen C. Ewing, and Jesse
McInerney. All of these defendants generally appeared and are not parties to this
interlocutory appeal. Mattress Firm also sued Oldacre McDonald, LLC and Mark
McDonald. These two defendants specially appeared and, after the trial court denied
their special appearances, were originally parties to this interlocutory appeal.
Oldacre McDonald, LLC and Mark McDonald reached a settlement agreement with
Mattress Firm, and a panel of this Court dismissed these two defendants from this
appeal on January 24, 2019.
5
Mattress Firm asserted a cause of action for common-law fraud against “all
defendants” named in its petition. Mattress Firm alleged that Levy, Vinson, Deitch,
and Colliers Atlanta knowingly made material misrepresentations and omissions to
Mattress Firm, including failing to disclose kickbacks, using “a network of single
purpose LLCs, partnerships, or other entities intended to conceal the unlawful
activity,” and providing inaccurate comparable lease information to Mattress Firm
to induce it to “pay millions in brokerage commissions and above-market rents.” It
also asserted a cause of action for civil conspiracy against “all defendants,” alleging
that the real estate development companies—including Madison and Quattro—acted
in concert to defraud Mattress Firm. Mattress Firm alleged that the development
companies knew that Levy, Vinson, Deitch, and Colliers Atlanta were engaged in a
scheme to defraud Mattress Firm “out of millions of dollars in excess rents and other
expenses through materially false and inaccurate real estate reports and
representations to [the Committee] and by hiding kickbacks and other costs that
served to inflate Mattress Firm’s lease expenses . . . .”
Mattress Firm alleged that all of the defendants had been unjustly enriched as
a result of their respective actions, and it sought the imposition of a constructive
trust. With respect to the development companies, including Madison and Quattro,
Mattress Firm alleged that it had conferred upon them “multiple non-gratuitous
payments in the form of above-market rents that were provided in exchange for the
6
kickbacks given to former Mattress Firm employees Levy and Vinson, which
information was concealed and misrepresented to Mattress Firm,” allowing the
development companies “to ‘flip’ the properties for substantial profits, which they
retained.”
Mattress Firm asserted a claim for breach of fiduciary duty against its two
former employees—Levy and Vinson—and alleged that the other defendants,
including Madison and Quattro, were liable for aiding and abetting Levy’s and
Vinson’s breach of their fiduciary duties. Specifically, Mattress Firm alleged that
the development companies knew that Levy and Vinson “held positions of trust and
confidence” at Mattress Firm, but they “illegally capitalized on the positions of
authority held by Levy and Vinson for their own personal gain.” Finally, Mattress
Firm asserted a cause of action for negligence against Colliers Atlanta.
In its second amended petition—its live pleading—Mattress Firm alleged
certain acts by Madison, Quattro, and Liyeos that connected each of these defendants
to Texas. Mattress Firm alleged that, while the fraudulent scheme was ongoing,
Quattro entered into at least twenty leases with Mattress Firm, including one for a
retail store in Lubbock, Texas. In March 2013, Liyeos and Rob Walters 2 toured
several cities in West Texas with Levy and Vinson, including a property in Lubbock
2
Walters is the other member of Quattro, in addition to Liyeos, and he is not a party
to the underlying lawsuit.
7
that a Quattro-affiliated company later purchased. Through an email to Levy,
Quattro solicited Mattress Firm’s interest in this property. Levy and Vinson
approved the deal “and then pushed it through the [Committee] approval process
with Quattro’s and Deitch’s assistance.” Although Mattress Firm was in the process
of leasing a second property less than one mile away at a rate of $12 per square foot,
Quattro, Levy, Vinson, and Deitch agreed that Mattress Firm would lease the new
location at a rate of $34 per square foot, a price “well above market.” Quattro, Levy,
and Vinson knew that the rental rate for the Lubbock store was above-market and
not favorable to Mattress Firm, especially compared to the other retail store in the
area, but Levy and Vinson “pushed the Quattro lease through the [Committee]
approval process.” Quattro used a special purpose entity—Quattro Lubbock, LLC—
to purchase the real property for the store, and a second Quattro-affiliated entity—
Quattro Springfield, LLC—executed the lease for the store with Mattress Firm.
With respect to Madison, Mattress Firm alleged that it entered into at least
seventeen development deals with Mattress Firm, including two in Spokane,
Washington, that had lease terms significantly longer than Mattress Firm’s average
and higher rental rates relative to other Mattress Firm stores in the same market.
Mattress Firm alleged that Madison worked behind-the-scenes with Levy to
negotiate lease terms that were favorable to Madison, which Levy would then push
through the Committee for approval, ensuring that Madison would later be able to
8
sell the property at a substantial profit. Mattress Firm alleged the following with
respect to the two properties that Madison developed for Mattress Firm in Spokane:
[Madison] secured its position as a Preferred Developer, and some of
its earliest deals, at a meeting at Mattress Firm’s headquarters in
Houston, Texas. In May of 2012, when Madison Development was first
establishing its relationship with Mattress Firm, Jim Gallaugher, co-
founder of Madison Development, traveled to Houston to participate in
a [Committee] meeting to pitch how Madison Development could assist
Mattress Firm in its efforts to expand in the Washington market.
Although Gallaugher may not have actually made the presentation to
the [Committee], he helped Jim Quigley, the presenter, come up with
the market strategy for Washington to be presented to the [Committee].
During the presentation, two Washington properties were discussed on
which Madison Development ultimately closed with Mattress
Firm . . . . Quigley, who made the presentation to the [Committee],
was Mattress Firm’s local broker on both of these deals. Together,
Gallaugher and Quigley pitched these deals to the [Committee] in
Houston, Texas, as well as Madison Development’s efforts to expand
Mattress Firm’s presence in Washington state.
During the meeting, Gallaugher provided Mattress Firm with
information about the rental rates in these areas. After the meeting,
Gallaugher treated Levy and John Broses [a Mattress Firm employee]
to dinner, where he continued to pitch [the properties] as great deals.
Mattress Firm ultimately entered into leases on [the properties], but
neither were great deals for Mattress Firm as falsely represented by
Gallaugher in Houston, Texas. Instead, the leases contained above-
market rents which had the effect of increasing Madison
Development’s profits on the deals at Mattress Firm’s expense.
Mattress Firm alleged that Levy “fast tracked” the Washington leases through the
Committee approval process, “ensur[ing] that the transactions would receive little
scrutiny from the [Committee], making the [Committee] entirely dependent on
Levy’s recommendation to approve the leases.” Mattress Firm alleged that Madison,
9
through two affiliated companies, sold the properties within one year of purchase
and made a profit of nearly $2 million for each property. Mattress Firm alleged that
Madison offered gifts to Levy, Vinson, and Deitch and “rewarded” them “for their
services with a suite at a Dallas Cowboys game, complete with Emmitt Smith in
attendance.”
Madison, Quattro, and Liyeos all filed special appearances, arguing that they
were nonresidents of Texas and the trial court could not, consistent with federal due
process guarantees, exercise either general or specific personal jurisdiction over
them. Madison supported its special appearance with the declaration of Jim
Gallaugher, and Quattro and Liyeos supported their special appearance with the
affidavit of Liyeos. Madison and Quattro both acknowledged that they had a
business relationship with Mattress Firm, a Texas company, but they had not
committed any torts in Texas. The defendants argued that all of their contacts with
Texas were the result of Mattress Firm’s unilateral decision to base its headquarters
in Houston, the contacts were not the result of any purposeful actions by the
defendants, and the contacts did not have a substantial connection to the causes of
action asserted against them. Madison further argued that, even if it had purposefully
established contacts with Texas and even if Mattress Firm’s causes of action against
it had a substantial connection to those contacts, maintaining suit against it in Texas
10
would be unduly burdensome and exercising personal jurisdiction would offend
traditional notions of fair play and substantial justice.
Mattress Firm responded to both special appearances and argued that all three
defendants were subject to specific jurisdiction because they purposefully availed
themselves of the privileges of doing business in Texas. Mattress Firm attached
evidence relating to its deals with Madison and Quattro, including email
correspondence between the principals of both companies and Mattress Firm
personnel, internal Mattress Firm emails relating to the Lubbock property and both
Spokane properties, a copy of the PowerPoint presentation given at the Committee
meeting that Gallaugher attended, draft Letters of Intent relating to these three
properties, the lease agreements concerning these three properties, documents
relating to the later sale of the Spokane properties by Madison-affiliated companies,
and a guaranty agreement concerning the Lubbock property.
After a hearing, the trial court denied Madison’s, Quattro’s, and Liyeos’s
special appearance. This interlocutory appeal followed.
Special Appearance
Madison, Quattro, and Liyeos all argue that the trial court erred by denying
their special appearances because they do not have sufficient minimum contacts with
Texas to support the exercise of personal jurisdiction over them. They argue that, to
the extent they do have purposeful contacts with Texas, there is no substantial
11
connection between those contacts and Mattress Firm’s causes of action that would
justify exercising personal jurisdiction. Finally, Madison argues that even if its
contacts with Texas support personal jurisdiction, exercising jurisdiction over it
would offend traditional notions of fair play and substantial justice.
A. Standard of Review and Governing Law
Whether a trial court has personal jurisdiction over a nonresident defendant is
a question of law that we review de novo. Old Republic Nat’l Title Ins. Co. v. Bell,
549 S.W.3d 550, 558 (Tex. 2018); M & F Worldwide Corp. v. Pepsi-Cola Metro.
Bottling Co., 512 S.W.3d 878, 885 (Tex. 2017). When, as here, the trial court does
not issue findings of fact and conclusions of law relating to its decision on a special
appearance, we imply all relevant facts necessary to support the judgment that are
supported by evidence. Bell, 549 S.W.3d at 558 (citing BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002)).
Texas courts may exercise personal jurisdiction over a nonresident defendant
if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the
exercise of jurisdiction is consistent with state and federal due-process guarantees.
Id. (quoting Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex.
2013)). The long-arm statute permits Texas courts to exercise jurisdiction over a
nonresident defendant that “does business” in Texas. TEX. CIV. PRAC. & REM. CODE
ANN. § 17.042; BMC Software, 83 S.W.3d at 795. Under the long-arm statute, a
12
nonresident does business in Texas if the nonresident commits a tort in whole or in
part in Texas. TEX. CIV. PRAC. & REM. CODE ANN. § 17.042(1)–(2); Bell, 549
S.W.3d at 558–59. “However, allegations that a tort was committed in Texas do not
necessarily satisfy the United States Constitution.” Bell, 549 S.W.3d at 559.
To establish personal jurisdiction over a nonresident defendant, federal due
process standards require that the defendant have “certain minimum contacts with
[the forum state] such that the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’” Id. (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). A defendant establishes minimum contacts
with a forum state when it “purposefully avails itself of the privilege of conducting
activities within the forum state, thus invoking the benefits and protections of its
laws.” Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex.
2009). The defendant’s activities “must justify a conclusion that the defendant could
reasonably anticipate being called into a Texas court.” Bell, 549 S.W.3d at 559;
Retamco Operating, 278 S.W.3d at 338; see TV Azteca v. Ruiz, 490 S.W.3d 29, 37
(Tex. 2016) (“Due process requires purposeful availment because personal
jurisdiction ‘is premised on notions of implied consent—that by invoking the
benefits and protections of a forum’s laws, a nonresident consents to suit there.’”)
(quoting Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex.
2005)).
13
When determining whether a defendant has purposefully availed itself of the
privilege of conducting activities in Texas, we consider three factors:
First, only the defendant’s contacts with the forum are relevant, not the
unilateral activity of another party or a third person. Second, the
contacts relied upon must be purposeful rather than random, fortuitous,
or attenuated. . . . Finally, the defendant must seek some benefit,
advantage or profit by availing itself of the jurisdiction.
Bell, 549 S.W.3d at 559 (quoting Moncrief Oil Int’l, 414 S.W.3d at 151); TV Azteca,
490 S.W.3d at 38 (stating that defendant’s contacts must be “purposefully directed”
to Texas and “must result from the defendant’s own ‘efforts to avail itself of the
forum’”). A nonresident may purposefully avoid a jurisdiction “by structuring its
transactions so as neither to profit from the forum’s laws nor be subject to its
jurisdiction.” Michiana Easy Livin’ Country, 168 S.W.3d at 785. We assess the
quality and the nature of the contacts, not the quantity. TV Azteca, 490 S.W.3d at 38.
A defendant’s contacts with the forum may give rise to either general or
specific jurisdiction. Bell, 549 S.W.3d at 559; M & F Worldwide, 512 S.W.3d at 885.
General jurisdiction, which is not at issue in this case,3 is established when a
defendant’s contacts with the state “are so ‘continuous and systematic’ as to render
[it] essentially at home in the forum State.” M & F Worldwide, 512 S.W.3d at 885
3
Mattress Firm stated, in both its responses to the special appearances and in its briefs
on appeal, that it does not contend that any of the three appellants are subject to
general jurisdiction in Texas.
14
(quoting Goodyear Dunlop Tires Operations, SA v. Brown, 564 U.S. 915, 919
(2011)).
Specific jurisdiction, which is the focus of this case, exists when the cause of
action arises from or is related to a defendant’s purposeful activities in the state. Bell,
549 S.W.3d at 559. For a Texas court to exercise specific jurisdiction over a
nonresident defendant, (1) the defendant’s contacts with Texas must be purposeful,
and (2) the cause of action must arise from those contacts. Id. (quoting Michiana
Easy Livin’ Country, 168 S.W.3d at 795); see Bristol-Myers Squibb Co. v. Superior
Court of California, 137 S. Ct. 1773, 1780 (2017) (stating that, for specific
jurisdiction to exist, “there must be ‘an affiliation between the forum and the
underlying controversy, principally, [an] activity or an occurrence that takes place
in the forum State and is therefore subject to the State’s regulation” and that specific
jurisdiction “is confined to adjudication of issues deriving from, or connected with,
the very controversy that establishes jurisdiction”). The defendant’s purposeful
contacts “must be substantially connected to the operative facts of the litigation or
form the basis of the cause of action.” Bell, 549 S.W.3d at 559–60 (citing Moki Mac
River Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex. 2007)); see Walden v. Fiore,
571 U.S. 277, 284 (2014) (“For a State to exercise jurisdiction consistent with due
process, the defendant’s suit-related conduct must create a substantial connection
with the forum State.”).
15
In analyzing specific jurisdiction, we focus on the relationship between the
forum, the defendant, and the litigation. Bell, 549 S.W.3d at 559; Walden, 571 U.S.
at 285 (“[O]ur ‘minimum contacts’ analysis looks to the defendant’s contacts with
the forum State itself, not the defendant’s contacts with persons who reside there.”).
“[A] defendant’s contacts with the forum State may be intertwined with his
transactions or interactions with the plaintiff or other parties,” but “a defendant’s
relationship with a plaintiff or third party, standing alone, is an insufficient basis for
jurisdiction.” Walden, 571 U.S. at 286. Specific jurisdiction must be established on
a claim-by-claim basis unless all of the asserted claims arise from the same contacts
with the forum. M & F Worldwide, 512 S.W.3d at 886; Moncrief Oil Int’l, 414
S.W.3d at 150–51.
When personal jurisdiction is challenged, the plaintiff and the nonresident
defendant bear shifting burdens of proof. Bell, 549 S.W.3d at 559; Kelly v. Gen.
Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). The plaintiff bears the
initial burden to plead sufficient allegations to bring the nonresident defendant
within the scope of Texas’s long-arm statute. Bell, 549 S.W.3d at 559; Kelly, 301
S.W.3d at 658 (“Because the plaintiff defines the scope and nature of the lawsuit,
the defendant’s corresponding burden to negate jurisdiction is tied to the allegations
in the plaintiff’s pleading.”). The trial court may consider the plaintiff’s original
pleadings as well as its response to the defendant’s special appearance in
16
determining whether the plaintiff satisfied its initial burden. Touradji v. Beach
Capital P’ship, L.P., 316 S.W.3d 15, 23 (Tex. App.—Houston [1st Dist.] 2010, no
pet.). If the plaintiff fails to plead facts bringing the defendant within the reach of
the long-arm statute, “the defendant need only prove that it does not live in Texas to
negate jurisdiction.” Kelly, 301 S.W.3d at 658–59. In conducting our review, we
accept as true the allegations in the petition. Touradji, 316 S.W.3d at 23.
If the plaintiff meets its initial pleading burden, the burden shifts to the
defendant to negate all bases of personal jurisdiction alleged by the plaintiff. Bell,
549 S.W.3d at 559; Kelly, 301 S.W.3d at 658. The defendant can negate jurisdiction
on either a factual or a legal basis. Kelly, 301 S.W.3d at 659. Factually, the defendant
can present evidence that it has no contacts with Texas, “effectively disproving the
plaintiff’s allegations.” Id. The plaintiff can then respond with its own evidence
affirming its allegations, and if it does not present evidence establishing personal
jurisdiction, it risks dismissal of its suit. Id. Legally, the defendant can show that
even if the plaintiff’s alleged facts are true, the evidence is legally insufficient to
establish jurisdiction; that the defendant’s contacts with Texas do not constitute
purposeful availment; for specific jurisdiction, that the claims do not arise from
contacts with Texas; or that the exercise of jurisdiction offends traditional notions
of fair play and substantial justice. Id.
17
The Texas Supreme Court has held that “[t]he mere existence or allegation of
a conspiracy directed at Texas is not sufficient to confer jurisdiction.” Bell, 549
S.W.3d at 560; Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 773 (Tex. 1995).
Jurisdiction may not be premised “solely upon the effects or consequences of an
alleged conspiracy in the forum state”; instead, it is the defendant’s conduct and
connection with the forum that is critical. Michiana Easy Livin’ Country, 168
S.W.3d at 789. Furthermore, “[j]urisdiction cannot turn on whether a defendant
denies wrongdoing—as virtually all will. Nor can it turn on whether a plaintiff
merely alleges wrongdoing—again as virtually all will.” Bell, 549 S.W.3d at 560
(quoting Michiana Easy Livin’ Country, 168 S.W.3d at 791). When conducting a
jurisdictional analysis, we must not “confuse ‘the roles of judge and jury by equating
the jurisdictional inquiry with the underlying merits.’” Id. (quoting Searcy v. Parex
Res., Inc., 496 S.W.3d 58, 70 (Tex. 2016)). The supreme court has expressly
disapproved of opinions holding that “specific jurisdiction turns on whether a
defendant’s contacts were tortious rather than the contacts themselves.” Michiana
Easy Livin’ Country, 168 S.W.3d at 791–92.
B. Quattro’s and Liyeos’s Special Appearance
Quattro and Liyeos both argue that the trial court erred in impliedly finding
that they had purposeful contacts with Texas. They argue that a lease transaction for
a retail store in Lubbock, Texas, should not be considered one of their contacts
18
because Mattress Firm entered into that lease with an affiliate of Quattro—not
Quattro itself—and that Mattress Firm has neither pleaded nor proven any basis for
imputing this contact of Quattro’s affiliate to Quattro or Liyeos. They further argue
that their remaining contacts with Texas are not purposeful, are not substantially
connected to the operative facts of the litigation, and are not sufficient to support the
exercise of personal jurisdiction over them.
1. Contacts with Texas
In support of Quattro’s and his own special appearance, Liyeos averred that
Quattro had not entered into any contracts in Texas and had not entered into any
leases with Mattress Firm or a Mattress Firm affiliate in Texas. Liyeos
acknowledged that, over a five-year period, Quattro-affiliated companies entered
into twenty-one leases with Mattress Firm, and Quattro itself entered into a lease
with Mattress Firm for a premises in Illinois, which it then assigned to an affiliated
entity. Liyeos averred the following with respect to the Lubbock store and Quattro’s
communications with Mattress Firm:
Only one of the 22 [Mattress Firm] leases pertains to a [Mattress Firm]
store in Texas. Specifically, in July 2013, Quattro Springfield, LLC
(“Quattro Springfield”)—an Illinois limited liability company—
entered into a ten-year lease with [Mattress Firm] covering property
located in Lubbock, Texas. Quattro Springfield ceased being the
landlord under the lease in June 2014, following the sale of the land
upon which the Lubbock [Mattress Firm] store was located. Quattro did
not pay any fees to Alexander Deitch or any entities owned or
controlled by Deitch in connection with the Lubbock lease, and is not
aware of any Quattro affiliate paying any such fees.
19
....
Over the course of the leases between Quattro affiliates and [Mattress
Firm], Quattro representatives met with [Mattress Firm] representatives
in Texas on approximately three occasions to discuss, in general terms,
[Mattress Firm’s] national expansion efforts. Aside from those three
occasions, Quattro representatives communicated with [Mattress Firm]
representatives primarily by email or phone from outside of Texas.
Neither Quattro nor I had any communications in Texas with [Mattress
Firm] or any of the defendants in this lawsuit regarding any of the
matters of which [Mattress Firm] complains in this lawsuit, including
(i) equity participation by Deitch, any [Mattress Firm] employee, or any
entity owned or controlled by Deitch or any [Mattress Firm] employee
in any real estate development projects undertaken by Quattro or any
of its affiliates, (ii) payment of development or brokerage fees to Deitch
or entities owned or controlled by Deitch, or (iii) other payments or
gifts to Deitch, any [Mattress Firm] employee, or any entity owned or
controlled by Deitch or any [Mattress Firm] employee.
In its response to Quattro’s and Liyeos’s special appearances, Mattress Firm
attached email correspondence involving Liyeos, Rob Walters (Quattro’s other
member), Levy, Vinson, and other Mattress Firm personnel. In June 2012, Walters
emailed Levy to inform him that Quattro was purchasing a site in Lubbock and
asking Levy if he would be interested in exploring the possibility of a Mattress Firm
retail store at that location. Levy forwarded this email to Tim Hughes, a broker in
Dallas, who began discussing the project with Walters. In September 2012, Walters
informed Hughes that “[w]e are finally under contract and ready to see if there is a
deal to be made with Mattress Firm.” Walters proposed providing 4,500 square feet
of space to Mattress Firm, and he told Hughes that “[t]he rent is going to need to be
$34/sf with their build out”; and, while he acknowledged that this rental amount was
20
“probably high for Lubbock,” he stated that it was for a prime location at a red light
for an entrance to a shopping mall. Hughes and Levy then had an email conversation
about this potential deal, with Hughes asking Levy, “[C]an you go to $34psf net in
Lubbock?” Levy responded, “Yes. We like these guys[.]”
Mattress Firm’s evidence also included email correspondence concerning a
trip Liyeos and Walters took to West Texas in March 2013 to view potential
locations in Amarillo, Lubbock, Midland, Odessa, San Angelo, and other towns.
Vinson went on this tour with Liyeos and Walters, and Walters communicated with
Levy concerning Vinson’s thoughts about proposed locations in Lubbock. Later in
March, Liyeos, Levy, Hughes, and Walters discussed scheduling the Lubbock
location for a presentation before the Committee, and the documents attached to this
email included site plans and a Letter of Intent with proposed lease conditions,
including a ten-year lease term and base rent at $34 per square foot. The draft Letter
of Intent was addressed to Liyeos at Quattro Development, LLC and listed the
“Landlord Entity” as Quattro Lubbock, LLC.” Liyeos and Quattro Development
were listed as the “Landlord Contact.”
Mattress Firm also attached PowerPoint presentations from two Committee
meetings—one in April 2013 and one in May 2013—concerning two proposed retail
stores located along the same street in Lubbock. The first store had a base rent of
$12 per square foot, while the second store, developed by Quattro and presented at
21
the May 2013 meeting, had a base rent of $34 per square foot. In both instances, the
Committee members signed a “Notice to Proceed.”
Quattro Lubbock, LLC, a Quattro-affiliated company with Quattro as its sole
manager, purchased the real property for the Lubbock store on June 5, 2013. On July
24, 2013, Mattress Firm and Quattro Springfield, L.L.C., a Quattro-affiliated
company, entered into a lease agreement for the Lubbock property. On the same day,
and at Quattro’s request, Mattress Firm signed a guaranty agreement for the Lubbock
property.4 This guaranty named Quattro Springfield, L.L.C., as the landlord and
provided that it was to be governed by the laws of the state of Texas. Although the
lease agreement named Quattro Springfield as the landlord, it also provided that any
notices required to be sent to the landlord under the lease should be sent to Liyeos
at Quattro Development.
Mattress Firm also attached email correspondence between Liyeos and a
Mattress Firm employee in which Liyeos planned to take a trip to Houston in
September 2013 to meet Mattress Firm employees “with whom we’ve worked but
have never actually met with in person.” In November 2013, Quattro’s Vice
President of Development and Construction sent an email to Mattress Firm’s Vice
President of Construction proposing that they set up biweekly meetings “so we can
4
With respect to this guaranty, a Mattress Firm employee stated in an internal email,
“This is our preferred developer so it is ok to give him [Walters] the guaranty for
each of the three stores [including the Lubbock store] he is missing it from.”
22
discuss our projects.” In April and May 2014, Walters met with Levy, Vinson, and
Deitch to tour potential locations in the Houston area, although, by July 2014,
Quattro had been unable to complete a deal for any of the potential Houston-area
locations, and there is no indication in the record that Quattro developed a property
for Mattress Firm in Houston.
After Mattress Firm responded to the special appearances, Quattro filed an
additional declaration from Liyeos. Liyeos disputed Mattress Firm’s allegation that
the base rent for the Lubbock store was “above market,” stating that the rent was
“competitive and consistent with the market rents for comparable properties at the
time [Mattress Firm] and Quattro Springfield negotiated and entered into the lease.”
Liyeos also disputed the allegation that Quattro provided Mattress Firm with
“misleading comps” and “inflated numbers” to justify the high rent for the Lubbock
store. He declared that Quattro’s request of a guaranty of the lease by Mattress Firm
was a “normal business practice” for the company and was not an attempt by Quattro
to raise the value of the property and increase its profit when the property was later
sold.
Liyeos also asserted that Quattro paid no compensation to Deitch, Levy,
Vinson, or any companies owned by these individuals in connection with the
Lubbock store, that Deitch did not participate in negotiations concerning the
Lubbock store, and that Quattro did not keep Hughes, Mattress Firm’s local broker
23
for this location, “largely in the dark about the transaction” or conceal from Hughes
Deitch’s participation in the deal. With respect to the tour of potential Houston-area
locations that occurred in May 2014, Liyeos denied that Quattro coordinated with
Deitch “regarding ‘how best to profit’ from the Texas trip to [Mattress Firm’s]
detriment,” nor did they have any discussions related to the matters that formed the
basis of Mattress Firm’s lawsuit.
2. Whether Quattro’s and Liyeos’s Contacts Were Purposeful
In asserting that they lack purposeful contacts with Texas, Quattro and Liyeos
first argue that the Lubbock lease cannot constitute a purposeful contact with Texas
that confers jurisdiction over them because a separate entity, Quattro Springfield,
negotiated and entered into the lease with Mattress Firm. They argue that because
Mattress Firm has neither alleged nor proven a jurisdictional veil-piercing theory,
Quattro Springfield’s contacts with Texas—the Lubbock lease—cannot be imputed
to Quattro or Liyeos. We disagree.
Texas law presumes that two separate corporations are distinct entities. PHC-
Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 173 (Tex. 2007).
Jurisdiction over one corporate entity, such as a parent corporation, does not
automatically establish jurisdiction over a related corporate entity, such as a
subsidiary. Spir Star AG v. Kimich, 310 S.W.3d 868, 874 (Tex. 2010). “Instead, to
‘fuse’ two corporations for jurisdictional purposes, a parent must ‘control[] the
24
internal business operations and affairs of the subsidiary’ to an extent beyond its role
as an investor.” Id. (quoting PHC-Minden, 235 S.W.3d at 175); BMC Software Belg.,
83 S.W.3d at 799 (stating that parent company must exercise degree of control
“greater than that normally associated with common ownership and directorship”
and that evidence must show two entities ceased to be separate “so that the corporate
fiction should be disregarded to prevent fraud or injustice”). The rationale behind
exercising jurisdiction over the subsidiary corporation in such an instance is that “the
parent exerts such domination and control over its subsidiary that they do not in
reality constitute separate and distinct corporate entities but are one and the same
corporation for purposes of jurisdiction.” BMC Software Belg., 83 S.W.3d at 798
(quoting Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1159 (5th Cir. 1983)). “The
party seeking to ascribe one corporation’s actions to another by disregarding their
distinct corporate entities must prove this allegation.” Id.; see PHC-Minden, 235
S.W.3d at 173.
Quattro and Liyeos argue that Mattress Firm cannot rely on jurisdictional veil-
piercing to impute Quattro Springfield’s contacts with Texas to them because
Mattress Firm did not plead a veil-piercing theory, such as alter ego, nor did it offer
any evidence to support such a theory. They argue that Mattress Firm submitted no
evidence concerning the relationship between Quattro and Quattro Springfield or the
degree of control that one entity might exercise over the other. Mattress Firm,
25
however, argues that its failure to plead and prove a jurisdictional veil-piercing
theory is not fatal to its attempt to use the Lubbock lease, entered into by Quattro
Springfield, as a contact of Quattro’s, citing as support the Texas Supreme Court’s
2016 decision in Cornerstone Healthcare Group Holding, Inc. v. Nautic
Management VI, L.P. See 493 S.W.3d 65 (Tex. 2016). We agree with Mattress Firm
that Cornerstone is controlling in this case.
Cornerstone owned and operated long-term acute-care hospitals in Texas and
other states, and, in a quest to expand its business, several of its executives identified
Reliant Hospital Partners, LLC, which owned several rehabilitation facilities in
Texas, as a possible acquisition. Id. at 67–68. The executives approached Nautic
Partners, LLC, a Rhode Island company that investigates potential investments for
private equity funds, as an investment source for the acquisition of Reliant. Id. at 68.
One Cornerstone executive proposed to Nautic Partners that three equity funds
advised by Nautic Partners acquire the assets of Reliant and hire Cornerstone
executives to run the company. Id. Nautic Partners and Reliant signed a letter of
intent concerning the asset purchase, and the equity funds authorized the investment
in Reliant and issued a capital call. Id. at 68–69.
Through a series of four newly created subsidiary companies, a company
known as New Reliant signed an asset purchase agreement with Reliant, and the
funds raised during the equity funds’ capital calls provided the purchase money for
26
the transaction. Id. at 69. After New Reliant acquired Reliant, the Cornerstone
executives involved in proposing the deal quit Cornerstone and started working for
New Reliant. Id. Cornerstone sued its former executives, New Reliant, Nautic
Partners, Reliant, the equity funds, and other parties. Id. The equity funds and the
entity that was their partner and manager—and that had authorized the investment
in Reliant—all filed special appearances, arguing that they were Delaware limited
partnerships with their principal places of business in Rhode Island and were
therefore not subject to jurisdiction in Texas. Id.
The equity funds argued that they lacked minimum contacts with Texas,
pointing out that New Reliant purchased and owned the hospitals located in Texas,
not the funds themselves, and that New Reliant’s contacts with Texas could not be
imputed to the funds under a jurisdictional veil-piercing theory. Id. at 71. In
addressing whether the equity funds had sufficient contacts with Texas, the Texas
Supreme Court reasserted the general law stated in PHC-Minden that if a parent and
subsidiary company maintain separate corporate entities, one entity’s contacts in a
forum state may not be attributed to the other. Id. at 72. The court stated:
[The equity funds] are also correct that Cornerstone has not argued that
the Funds and their subsidiaries failed to maintain their legal
separateness or that the Texas contacts of any one of those entities could
or should be attributed to any other. Accordingly, New Reliant’s Texas
contacts—specifically, its ownership and operation of hospitals in
Texas—could not in and of themselves subject New Reliant’s limited-
partner parent companies and their general partner [the equity funds] to
Texas’s jurisdiction.
27
Id. However, the court then disagreed with the equity funds that their “use of a
subsidiary to purchase the hospitals effectively ends the inquiry.” Id.
The supreme court noted that the chain of events beginning with the initial
presentation of the investment opportunity to the manager of the equity funds and
ending with New Reliant’s acquisition of the Texas hospitals “were all part of one
overarching transaction.” Id. The company agreement between the equity funds and
the first subsidiary in the chain required the funds’ capital calls to be used for New
Reliant’s purchase of the hospitals. Id. The equity funds directly transferred the
purchase money to the law firm that served as New Reliant’s disbursement agent,
which transferred the purchase money to Reliant. Id. Additionally, all of the
subsidiary companies involved in the transaction “were newly created to complete
the transaction that the [equity funds] set in motion.” Id. The court, in concluding
that the purchase of the Texas hospitals was a contact of the equity funds and not
solely that of New Reliant, stated:
Cornerstone is not attempting to attribute the contacts established by
New Reliant as a going concern to the Funds or the General Partner.
Rather, it is seeking to trace the purchase of Texas assets to the entities
that spearheaded and directed the transaction, and ultimately stood to
profit from it. We agree with Cornerstone that “[k]eeping legal entities
distinct does not mean they can escape jurisdiction by splitting an
integrated transaction into little bits.” Although “only the defendant’s
contacts with the forum” count, not “the unilateral activity of another
party or a third person,” the Reliant deal did not stem from a third
party’s unilateral activity; it was the result of a transaction stemming
from the activity of the [equity funds] themselves.
28
Id. at 72–73 (internal citations omitted).
This case is sufficiently analogous to Cornerstone such that the Lubbock lease
executed by Quattro Springfield is a contact of Quattro’s, just as New Reliant’s
purchase of the Texas hospitals was a contact of the equity funds. Mattress Firm
presented evidence that Rob Walters, a member of Quattro, informed Levy via email
in June 2012 that Quattro intended to purchase a location in Lubbock and asked if
Levy would be interested in locating a retail store at this location. Walters sent this
email from his Quattro Development email address, and the email’s signature block
stated, “Quattro Development, L.L.C.”5 As an attachment to this email, Walters
included two pages that showed a map of the location, information on the area’s
demographics, and a diagram of the building and parking lots. Both of these pages
included a logo that stated “Quattro Development” and included contact information
for “Quattro Development Construction Contact” and “Quattro Development
Leasing Contact.” Throughout the negotiation process for the purchase and leasing
of the Lubbock location, all of the email correspondence from Walters and Liyeos
were sent from their Quattro Development email addresses. A site plan for the
Lubbock location included a reference to “Quattro Development, LLC.”
5
This email stated, “Lubbock, TX — We are buying the Cancun Restaurant which
is at a stoplight at the northern entrance to the mall.”
29
An unexecuted “Letter of Intent to Lease Space” on Mattress Firm letterhead,
dated March 28, 2013, concerned the property and was addressed to Liyeos at
“Quattro Development, L.L.C.” One part of the Letter of Intent listed “Quattro
Lubbock, L.L.C.” as the “Landlord Entity.” However, the Letter of Intent listed
Liyeos at “Quattro Development, L.L.C.” as the “Landlord Contact,” and the
signature block, which was left blank, stated, “LANDLORD: QUATTRO
DEVELOPMENT, L.L.C.” The Letter of Intent did not mention Quattro Springfield.
The record contains a general warranty deed for the Lubbock property, reflecting
that on June 5, 2013, the property was conveyed to “Quattro Lubbock, LLC.”
The only two documents in the record that connect Quattro Springfield to the
transaction involving the Lubbock property are the lease agreement and the
guaranty, both of which were executed on July 24, 2013, and identify Quattro
Springfield as the landlord of the property. The lease, however, also includes a
section detailing where parties are to send notices required under the lease. This
provision states, “To Landlord: Quattro Development, L.L.C.” and “Attention:
Mike Liyeos.”
Quattro attempts to distinguish Cornerstone by pointing out that, unlike the
subsidiary entities created by the equity funds after their investment in Reliant had
been authorized, Quattro Springfield had been in existence for at least a year before
execution of the Lubbock lease and therefore Quattro did not create Quattro
30
Springfield solely “as a ‘vehicle’ for leasing premises to [Mattress Firm] in Texas.”
See Cornerstone, 493 S.W.3d at 72. Quattro also argues that, unlike in Cornerstone,
the record here does not contain evidence concerning the source of the funds used to
acquire the property that Quattro Springfield leased to Mattress Firm. See id. These
differences between Cornerstone and this case, however, do not compel a conclusion
that the Lubbock lease is solely a contact of Quattro Springfield and not of Quattro.
The record before the trial court does not support Quattro’s contention that
Quattro Springfield was the entity that negotiated the transaction for the Lubbock
lease. Instead, the record reflects that Quattro itself initiated the deal and was heavily
involved in bringing the transaction to fruition. As in Cornerstone, by arguing that
the Lubbock lease is a contact of Quattro’s, Mattress Firm “is seeking to trace the
purchase of Texas assets to the entit[y] that spearheaded and directed the transaction,
and ultimately stood to profit from it.” See id. at 73. The negotiation and execution
of the Lubbock lease was an “integrated transaction,” and Quattro cannot “escape
jurisdiction” by using separate entities to “split[] an integrated transaction into little
bits.” See id. Purchasing the real property in Lubbock and negotiating the lease of
the property to Mattress Firm “did not stem from a third party’s unilateral activity”;
instead, this “was the result of a transaction stemming from the activity” of Quattro
itself. See id. We therefore conclude that the Lubbock lease is a contact of Quattro’s,
31
and we now turn to whether that contact constitutes purposeful availment of the laws
of Texas.
In Retamco Operating, Inc. v. Republic Drilling Co., the Texas Supreme
Court held that a California company, Republic, that took assignment of oil and gas
interests located in Texas had purposeful contacts with Texas that were not “random,
fortuitous, or attenuated.” 278 S.W.3d at 339. Republic was aware that the interests
it received were located in three Texas counties and it “purposefully took assignment
of Texas real property.” Id. By taking assignment of these property interests located
in Texas, Republic “reached out and created a continuing relationship in Texas,” and
the ownership of the property interests allowed Republic to enjoy the benefits and
protections of Texas laws. Id. (quoting Michiana Easy Livin’ Country, 168 S.W.3d
at 787). The court held that Republic’s Texas contacts were not the result of
unilateral actions of a third party; instead, “Republic was a willing participant in a
transaction with an affiliated Texas company to purchase Texas real property.” Id.
at 340. The assignment of the oil and gas interests “gave Republic valuable assets in
Texas,” and Republic had benefitted from the assignment, as it had made over $1
million in revenue and had sold some of the property. Id. The court thus concluded
that Republic, by purchasing real property interests located in Texas, had
“purposefully availed itself of the privilege of conducting activities in Texas.” Id.
32
Here, Quattro informed Levy of its intent to purchase a site in Lubbock, Texas,
and proposed that Mattress Firm use that location for a retail store. After months of
negotiations, a Quattro affiliate—Quattro Lubbock—purchased the real property
and a second Quattro affiliate—Quattro Springfield—executed a lease with Mattress
Firm. Quattro initiated and was directly involved in this transaction. This transaction
was the result of Quattro’s actions, not the unilateral actions of a third party. See
Bell, 549 S.W.3d at 559. With the Lubbock lease, Quattro specifically sought out a
Texas property as an investment opportunity and presented this property to Mattress
Firm as a potential transaction, which was later finalized. This contact was
purposeful and was not random or fortuitous. See Cornerstone, 493 S.W.3d at 73
(“[T]he Funds, through the General Partner, targeted Texas assets in which to invest
and sought to profit from that investment.”); Retamco Operating, 278 S.W.3d at
339–40 (stating that “the location of the transferred asset is not fortuitous; the
property’s location is fixed in this state” and that “when purchasing real property,
the location matters”). Finally, owning and leasing real property in Texas through
its affiliates gave Quattro a valuable asset located in Texas and allowed Quattro to
“enjoy the benefits and protection” of Texas laws. See Retamco Operating, 278
S.W.3d at 339. Moreover, the lease agreement between Quattro Springfield and
Mattress Firm for the Lubbock property provided that it was to be governed by the
laws of the State of Texas.
33
We conclude that, by proposing, negotiating, and executing the Lubbock
lease, and by agreeing that it was to be governed by the laws of Texas, Quattro
“purposefully directed its activities towards Texas” and “has purposefully availed
itself of the privilege of conducting activities in Texas.” See id. at 340; see also
Cornerstone, 493 S.W.3d at 73 (stating that equity funds “specifically sought both a
Texas seller and Texas assets” and concluding that funds had purposeful contacts
with Texas and sought “some benefit, advantage, or profit” from Texas “such that
they impliedly consented to suit here”).
Exercising specific jurisdiction requires more than just purposeful contacts
with Texas, however; for the nonresident defendant to be subject to suit here, the
defendant’s purposeful contacts “must be substantially connected to the operative
facts of the litigation or form the basis of the cause of action.” Bell, 549 S.W.3d at
559–60. Here, Mattress Firm asserted causes of action for fraud, civil conspiracy,
and aiding and abetting breach of fiduciary duty against Quattro; it also alleged that
Quattro had been unjustly enriched, and it sought the imposition of a constructive
trust. All of Mattress Firm’s causes of action are based on its allegations that Quattro,
along with multiple other real estate development companies, engaged in a wide-
ranging fraudulent scheme involving the payment of bribes and kickbacks to
Mattress Firm personnel and brokers—Levy, Vinson, Deitch, and Colliers Atlanta—
in a conspiracy to defraud Mattress Firm. Mattress Firm alleged that development
34
companies such as Quattro paid bribes and kickbacks to help secure favorable lease
terms in an effort to increase the value of the properties to maximize the profit on
the later sale of the properties. Mattress Firm also alleged that the development
companies worked behind-the-scenes with Levy, Vinson, and Deitch to ensure
favorable lease terms, such as inflated rental rates, which Levy, Vinson, and Deitch
would then present to the Committee as favorable deals for Mattress Firm, using
misrepresentations and omissions to ensure approval of the deals by the Committee.
Resolution of these claims will involve examining the circumstances
surrounding the transactions that were a part of the purportedly fraudulent bribery
and kickback scheme. The process by which the Lubbock lease—among many
others—was negotiated and executed will be an operative fact in the litigation of
Mattress Firm’s claims. We conclude that Mattress Firm’s claims have a substantial
connection with Quattro’s purposeful contacts with Texas and that the claims arise
out of and relate to Quattro’s contacts. See id.; Cornerstone, 493 S.W.3d at 74
(holding that claims concerning improper use of confidential information, tortious
interference, and aiding and abetting breach of duties arose out of Reliant
transaction, which was “the crux of the [equity funds’] purposeful contact with
Texas” and would be focus of claims against equity funds at trial).
Quattro argues that there is no substantial connection between the Lubbock
lease and the operative facts of Mattress Firm’s claims because Quattro presented
35
evidence, in the form of Liyeos’s affidavit, that Quattro paid no fees—proper or
improper—to Deitch, entities owned by Deitch, or Mattress Firm “insiders” such as
Levy and Vinson with respect to the Lubbock lease. Essentially, Quattro argues that
it is not subject to specific jurisdiction in Texas because its conduct in Texas
concerning the Lubbock lease was not tortious.
The Texas Supreme Court has, however, repeatedly held that whether the
defendant’s conduct is tortious is not relevant to the minimum-contacts analysis that
is to be performed at the special appearance stage of litigation. See Bell, 549 S.W.3d
at 562 (stating that “we may not determine the underlying merits in order to answer
the jurisdictional question” and that, whether transfers of money at issue in case were
innocent loans or part of elaborate conspiracy to defraud creditors, focus of special
appearance inquiry was defendant’s contacts with Texas); Searcy, 496 S.W.3d at 70
(“We must not confuse ‘the roles of judge and jury by equating the jurisdictional
inquiry with the underlying merits.’”) (quoting Michiana Easy Livin’ Country, 168
S.W.3d at 790); Cornerstone, 493 S.W.3d at 73 (“[W]hether the [equity funds’]
conduct was ultimately tortious is not before us and is not relevant to the minimum-
contacts analysis.”); Michiana Easy Livin’ Country, 168 S.W.3d at 791
(“Jurisdiction cannot turn on whether a defendant denies wrongdoing—as virtually
all will. Nor can it turn on whether a plaintiff merely alleges wrongdoing—again as
virtually all will.”).
36
The trial court had pleadings and evidence before it that Quattro purposefully
purchased property in Texas and executed a lease on the property with Mattress
Firm. Mattress Firm alleges improprieties in this transaction, which was allegedly
part of a broader fraudulent scheme. Regardless of whether Quattro’s conduct with
respect to the Lubbock lease was innocent or was fraudulent, this contact with Texas
was purposeful and is substantially connected to the operative facts of Mattress
Firm’s claims. See Michiana Easy Livin’ Country, 168 S.W.3d at 790–91 (stating
that “[i]f purposeful availment depends on whether a tort was directed toward Texas,
then a nonresident may defeat jurisdiction by proving there was no tort” and that it
is better for judges to “limit their jurisdictional decisions” to business contacts of
defendants, which are “generally a matter of physical fact,” without “involving
themselves in trying” tort liability, which “turns on what the parties thought, said, or
intended”).
Liyeos, individually, argues that the trial court erred in denying his special
appearance because Mattress Firm failed to plead any facts showing that he
committed a tort in Texas or any facts that would bring him within the scope of
Texas’s long-arm statute, nor did the language of Mattress Firm’s petition assert any
tort claims against Liyeos. Liyeos further argues that he does not have sufficient
minimum contacts with Texas and, to the extent he does have any contacts with
37
Texas, there is no substantial connection between his contacts and Mattress Firm’s
causes of action.
We do not agree with Liyeos’s contention that Mattress Firm did not allege
facts bringing him within the scope of the Texas long-arm statute. Mattress Firm
alleged that Liyeos was one of two members of Quattro and that he regularly
communicated with Levy, Vinson, and other Mattress Firm employees by email and
phone. It alleged that Quattro “and Liyeos, one of two sole members of Quattro,
were participants in the massive, multi-year fraud, bribery, and kickback scheme that
is the subject of this lawsuit.” Mattress Firm alleged that Liyeos and Walters
arranged a tour of West Texas locations in March 2013 and a trip to Mattress Firm’s
Houston headquarters in November 2013. It alleged that, on the draft Letter of Intent
for the Lubbock lease, Liyeos was listed as the landlord contact and that Liyeos
“emailed Levy about pushing the Lubbock deal” to the Committee. Mattress Firm
alleged that Quattro and Liyeos conducted the negotiations for the Lubbock lease,
and the lease agreement for the Lubbock property listed Liyeos as the contact for all
notices to be sent to the landlord. With respect to its civil conspiracy cause of action,
asserted against “All Defendants,” Mattress Firm alleged:
Defendants, Levy, Terra Consulting, Deitch, Colliers Atlanta, Chase
Ventures, Vinson, Oldacre McDonald, Win-Development, Quattro, and
Madison Development, and others acting in concert with or on behalf
of the foregoing, knowingly, willfully, and unlawfully did conspire,
combine, confederate, and agree together to defraud Mattress Firm.
38
Mattress Firm also sought the imposition of a constructive trust against “All
Defendants,” and it requested the disgorgement of ill-gotten gains from “All
Defendants” based on an unjust enrichment theory.6
Most of Mattress Firm’s allegations mention only Quattro, which, as an entity,
can act only through its members: Liyeos and Walters. However, Mattress Firm’s
live pleading does contain allegations concerning specific actions that Liyeos took
with respect to negotiating the Lubbock lease, and the evidence that Mattress Firm
attached to its response to Quattro’s and Liyeos’s special appearance also reflects
that Liyeos played a significant role in completing that transaction. Mattress Firm’s
live pleading, although not a model of clarity with respect to which claims are being
asserted against which defendants, also asserts causes of action against Liyeos and
seeks relief against him.
All of Liyeos’s contacts with Texas are a result of his position as one of
Quattro’s members. We have already held that the Lubbock lease constitutes a
purposeful contact of Quattro’s and that there is a substantial connection between
this contact and the operative facts of Mattress Firm’s causes of action. The
jurisdictional allegations and evidence reflect Liyeos’s significant involvement in
6
Mattress Firm also stated that its fraud cause of action was asserted against “All
Defendants,” but the subsequent allegations concerning this cause of action solely
addressed misrepresentations and omissions made to Mattress Firm by Levy,
Vinson, Deitch, and Colliers Atlanta. None of the other defendants are mentioned
in the specific allegations for the fraud cause of action.
39
the Lubbock transaction. To the extent Liyeos argues that the Lubbock lease should
not be considered his contact, individually, because all of his actions with respect to
this transaction occurred as an officer of Quattro and were taken on Quattro’s behalf,
we note that Texas courts have held that the “fiduciary shield doctrine,” while
applicable to protect a corporate officer “in some circumstances from being subject
to jurisdiction on a general jurisdiction theory, . . . does not protect a corporate
officer from specific personal jurisdiction as to intentional torts or fraudulent acts
for which he may be held individually liable.” See, e.g., Nw. Cattle Feeders, LLC v.
O’Connell, 554 S.W.3d 711, 725 (Tex. App.—Fort Worth 2018, pet. denied); Ennis
v. Loiseau, 164 S.W.3d 698, 707 (Tex. App.—Austin 2005, no pet.) (“Courts
recognize that a corporate officer is not protected from the exercise of specific
jurisdiction, even if all of his contacts were performed in a corporate capacity, if the
officer engaged in tortious or fraudulent conduct, directed at the forum state, for
which he may be held personally liable.”); see also Nwokedi v. Unlimited
Restoration Specialists, Inc., 428 S.W.3d 191, 201 (Tex. App.—Houston [1st Dist.]
2014, pet. denied) (“A corporate officer who knowingly participates in tortious or
fraudulent acts may be held individually liable to third persons even though he
performed the act as an agent of the corporation.”). Status as a corporate employee
“does not somehow insulate [the officer] from jurisdiction,” and an officer “may not
escape liability where he had direct, personal participation in the wrongdoing, as to
40
be the ‘guiding spirit behind the wrongful conduct’ or the ‘central figure in the
challenged corporate activity.’” See Ennis, 164 S.W.3d at 707–08 (quoting Calder
v. Jones, 465 U.S. 783, 790 (1984), and Mozingo v. Correct Mfg. Corp., 752 F.2d
168, 174 (5th Cir. 1985)).
We therefore conclude that the Lubbock lease is also a purposeful contact of
Liyeos’s, sufficient to subject him to the exercise of specific jurisdiction in Texas.
3. Traditional Notions of Fair Play and Substantial Justice
As we have determined that Quattro and Liyeos have sufficient minimum
contacts with Texas to support specific jurisdiction, we now must decide whether
exercising that jurisdiction comports with traditional notions of fair play and
substantial justice. See Bell, 549 S.W.3d at 559. In making this determination we
consider the following factors, when appropriate:
(1) the burden on the defendant; (2) the interests of the forum in
adjudicating the dispute; (3) the plaintiff’s interest in obtaining
convenient and effective relief; (4) the international judicial system’s
interest in obtaining the most efficient resolution of controversies; and
(5) the shared interest of the several nations in furthering fundamental
substantive social policies.
Cornerstone, 493 S.W.3d at 74; Moncrief Oil Int’l, 414 S.W.3d at 155. “If a
nonresident has minimum contacts with the forum, rarely will the exercise of
jurisdiction over the nonresident not comport with traditional notions of fair play
and substantial justice.” Moncrief Oil Int’l, 414 S.W.3d at 154–55. The defendant
bears the burden of presenting a compelling case that the presence of some
41
consideration would render the exercise of jurisdiction over it unreasonable.
Hoagland v. Butcher, 474 S.W.3d 802, 816 (Tex. App.—Houston [14th Dist.] 2014,
no pet.).
Quattro and Liyeos have not presented a compelling case that exercising
personal jurisdiction over them would be unreasonable or would violate traditional
notions of fair play and substantial justice. Indeed, Quattro and Liyeos did not argue
this basis for defeating personal jurisdiction either in its special appearance in the
trial court or in its briefing on appeal. See Kelly, 301 S.W.3d at 659 (stating that
defendant can negate jurisdiction on legal basis, such as demonstrating that exercise
of jurisdiction offends traditional notions of fair play and substantial justice). We
conclude that because Quattro and Liyeos have minimum contacts with Texas
sufficient to support specific jurisdiction and they have not demonstrated or argued
that exercising jurisdiction would offend traditional notions of fair play and
substantial justice, exercising specific jurisdiction over Quattro and Liyeos in this
case comports with state and federal due process guarantees. See Bell, 549 S.W.3d
at 559. We hold that the trial court did not err by denying Quattro’s and Liyeos’s
special appearances.
C. Madison’s Special Appearance
Madison argues that the trial court erred by impliedly finding that it had
sufficient minimum contacts with Texas to support specific jurisdiction.
42
Specifically, it argues that its limited contacts with Texas did not constitute
purposeful availment and were not substantially connected to the operative facts of
Mattress Firm’s claims against it. Madison also argues that exercising specific
jurisdiction over it would offend traditional notions of fair play and substantial
justice.
1. Contacts with Texas
The focus of Madison’s argument that it lacks sufficient minimum contacts
with Texas is a meeting that occurred in May 2012 before the Committee—Mattress
Firm’s real estate committee responsible for deciding which leases for new retail
stores to approve—in Houston. In its live pleading, Mattress Firm alleged:
[Madison] secured its position as a Preferred Developer, and some of
its earliest deals, at a meeting at Mattress Firm’s headquarters in
Houston, Texas. In May of 2012, when Madison Development was first
establishing its relationship with Mattress Firm, Jim Gallaugher, co-
founder of Madison Development, traveled to Houston to participate in
a [Committee] meeting to pitch how Madison Development could assist
Mattress Firm in its efforts to expand in the Washington market.
Although Gallaugher may not have actually made the presentation to
the [Committee], he helped Jim Quigley, the presenter, come up with
the market strategy for Washington to be presented to the [Committee].
During the presentation, two Washington properties were discussed on
which Madison Development ultimately closed with Mattress
Firm . . . . Quigley, who made the presentation to the [Committee],
was Mattress Firm’s local broker on both of these deals. Together,
Gallaugher and Quigley pitched these deals to the [Committee] in
Houston, Texas, as well as Madison Development’s efforts to expand
Mattress Firm’s presence in Washington state.
During the meeting, Gallaugher provided Mattress Firm with
information about the rental rates in these areas. After the meeting,
43
Gallaugher treated Levy and John Broses [a Mattress Firm employee]
to dinner, where he continued to pitch [the properties] as great deals.
Mattress Firm ultimately entered into leases on [the properties], but
neither were great deals for Mattress Firm as falsely represented by
Gallaugher in Houston, Texas. Instead, the leases contained above-
market rents which had the effect of increasing Madison
Development’s profits on the deals at Mattress Firm’s expense.
Mattress Firm alleged that Levy then “fast tracked” the two Spokane leases through
the Committee approval process and that the Committee ultimately approved the
leases. Mattress Firm further alleged that Madison purchased the properties through
two affiliated companies and, through these affiliates, later sold the properties within
one year and made a substantial profit, in excess of $2 million per property.
In its special appearance, Madison acknowledged that, from 2011 through
2017, it developed twenty-nine stores for Mattress Firm in several states, although
none of those developments were located in Texas.7 In a declaration in support of
Madison’s special appearance, Madison’s principal, Gallaugher, declared that
“[n]one of the negotiations for the [Mattress Firm] stores Madison developed were
conducted in Texas.” Madison also acknowledged that the May 2012 Committee
meeting occurred and that Gallaugher was in attendance at this meeting. With
respect to this meeting, Gallaugher declared as follows:
7
In a response to Mattress Firm’s requests for production, Madison stipulated that
Madison’s employees had regular email and phone communications with Mattress
Firm’s employees and that “[t]here were a handful of email communications
regarding two potential Texas locations but those potential Texas projects did not
go forward.”
44
In or around May 2012, I observed a presentation in Texas before [the
Committee] concerning the Spokane, Washington, real estate market.
Madison did not prepare for or present this presentation to [Mattress
Firm]. The presentation was prepared and presented by Jim Quigley, a
local Washington broker hired by [Mattress Firm]. After the
presentation, I was asked one single question regarding why the rents
at the two locations were the same, to which I answered that the two
locations’ development costs were essentially the same. I observed
[Steve] Stagner8 [Mattress Firm’s former President and CEO] ask
Vinson why the projected sales numbers for the Spokane properties
seemed low, to which Vinson replied that he was being conservative
with his projections. Stagner advised Vinson to increase the
projections.
Madison later filed a further declaration from Gallaugher in which he
expanded on the May 2012 meeting. Gallaugher again declared that the presentation
was prepared and conducted by Quigley, a local broker hired by Mattress Firm who
was “very knowledgeable about the Spokane real estate market.” Gallaugher
declared that Levy developed the strategy for Mattress Firm’s entry into the Spokane
real estate market “after he visited and inspected a number of potential sites in
Spokane for new [Mattress Firm] stores.” Gallaugher declared that neither he nor
any other Madison employee assisted Quigley in preparing the materials for the
presentation to the Committee, nor did Gallaugher “pitch” Madison or the two
Spokane properties at the Committee meeting or offer an opinion concerning the
potential profitability of the properties. He reiterated that, at this meeting, he “was
asked a single question after the presentation concluded about why the Properties
8
Steve Stagner is not a party to the underlying lawsuit.
45
had the same rent,” and he responded that the development costs for the projects
were the same. He declared that he was never asked about comparable rental rates
in the Spokane market.
Gallaugher further declared that, after the meeting, he went to dinner with
Quigley, a Mattress Firm employee, and one of Mattress Firm’s “Master Brokers.”
He characterized this as a “business entertainment dinner” and stated that it was
“[s]omething [he] would have done when taking any other of Madison’s clients out
to dinner under similar circumstances.” Gallaugher declared that, in August 2012,
he learned that the Committee had approved the two leases in Spokane, but he was
not present for that meeting, he did not request that the leases be “fast tracked” for
approval, and he did not know what the “fast tracking” process entailed. Gallaugher
also disputed Mattress Firm’s allegations that Madison, after selling the two Spokane
properties, made a profit of over $2 million dollars on each property, stating that
Mattress Firm had failed to take into consideration development costs for the
properties. He declared that, after those costs were taken into account, Madison’s
profit for both of the sales was approximately $370,000.
In response to Madison’s special appearance, Mattress Firm did not present a
competing affidavit addressing what occurred at the May 2012 Committee meeting.
46
Instead, Mattress Firm submitted documentary evidence,9 including email
correspondence involving Gallaugher, Levy, Vinson, and others. In one email,
addressed November 23, 2011, six months before the Committee meeting at issue,
Gallaugher emailed a person named Jeffrey Rosen about Mattress Firm. Gallaugher
stated, “I am helping Mattress Firm’s expansion in several northwest markets
including Spokane. Jim Quigley of KHCO and I have been coming up with a market
strategy for eastern Washington when we discovered that you . . . were also
representing them.” Gallaugher’s email to Rosen referenced both Vinson, whom
Gallaugher characterized as a “rogue franchisee,” and Levy. Rosen forwarded this
email to Vinson, who then forwarded it to Levy. Levy responded to Vinson that
Rosen “was hired not by me, but you” and that for Mattress Firm business, Rosen
was “not entitled to commissions against my guys [sic] work.” Levy sent the entire
chain of emails back to Gallaugher on November 24, 2011.
Madison also acknowledged that Gallaugher traveled to Texas on three other
occasions in 2015. Mattress Firm was a corporate sponsor of the Houston Livestock
Show & Rodeo in 2015, and Gallaugher declared that he attended the event at the
9
Mattress Firm’s evidence also included draft Letters of Intent concerning the
properties; the PowerPoint presentation slides from the May 2012 Committee
meeting; internal Mattress Firm documents indicating that the leases were “fast
tracked” and approved in August 2012; and the leases themselves, executed by
Gallaugher on behalf of the Madison-affiliated entities in September 2012. Both
leases included provisions stating that the lease provisions would be construed in
accordance with the laws of Washington.
47
request of Mattress Firm. He declared that neither Madison nor he contributed
financially to the event, that the trip “was a purely social event,” and that he did not
discuss or conduct business with Mattress Firm. In August 2015, Mattress Firm
requested that Gallaugher attend a meeting in Texas “to discuss layout and design at
one of [Mattress Firm’s] potential warehouse sites in Colorado.” Vinson, along with
other Mattress Firm personnel, attended, and he “presided over the meeting and
asked Madison, as the potential fee developer, questions about the project.” Finally,
Madison and E. Smith Realty Partners, a brokerage firm founded by former Dallas
Cowboys player Emmitt Smith and a business partner of Mattress Firm’s, co-hosted
and split the cost of a “business entertainment [event] of a social nature” at a
Cowboys game in November 2015. Gallaugher and his family attended, as did Levy,
Vinson, Stagner, and their families, among others. Gallaugher declared that “no
business was conducted or discussed” at this event.
2. Whether Madison’s Contacts Were Purposeful
It is undisputed that Gallaugher, Madison’s principal, traveled to Texas on
several occasions related to Madison’s ongoing business relationship with Mattress
Firm, including the May 2012 Committee meeting. It is also undisputed that, at this
meeting, Quigley gave a PowerPoint presentation recommending that Mattress Firm
enter into leases for retail stores on two properties in Spokane, Washington, to be
developed by Madison. It is undisputed that, at a later meeting, the Committee
48
approved these leases and that Mattress Firm and two affiliated companies of
Madison later executed leases for these properties. The two Madison-affiliated
companies that owned the real property later sold the properties and made a profit
on the sales transactions.
Madison argues that Gallaugher’s attendance at the Committee meeting does
not constitute a purposeful contact with Texas because Mattress Firm has not alleged
that any wrongful act occurred at that meeting and because Madison did not commit
a tort at that meeting. It points to Gallaugher’s declarations, in which he declares
that Quigley made the presentation before the Committee, he did not assist Quigley
in preparing the presentation, he did not “pitch” the properties at the meeting, he
only answered one question at the meeting—after Quigley’s presentation—
concerning why the rental rates for the two properties were the same, and he made
no statements concerning comparable rental rates or other information relevant to
the Spokane market. Madison argues that the record contains no evidence that it
“conducted ‘business with a Texas resident’ or made a statement amounting to a
misrepresentation sufficient to confer jurisdiction.”
We find Madison’s arguments unavailing. Madison admits that it had an
ongoing business relationship with Mattress Firm, a Texas resident. Over a period
of six years, Madison developed twenty-nine properties for Mattress Firm retail
stores, albeit none of them located in Texas. Each lease for a retail store had to be
49
approved by Mattress Firm’s Committee, which met in Houston. Madison sought to
develop two retail stores for Mattress Firm in Spokane, Washington, and these
locations were put on the agenda to be discussed at a Committee meeting in Houston
in May 2012. Although Quigley, a local Washington real estate broker, made the
actual presentation to the Committee, Mattress Firm presented evidence, in the form
of an email from Gallaugher to Jeffrey Rosen in November 2011, that Gallaugher
was “helping Mattress Firm’s expansion in several northwest markets including
Spokane” and was working with Quigley on “coming up with a market strategy for
eastern Washington.” There is evidence, therefore, that Madison was not simply a
passive observer at the meeting in Texas, but that it had been involved with
developing the proposal for the two Spokane properties—as well as a larger strategy
for Mattress Firm in Washington. One of the purposes of the Committee meeting
was to propose the Spokane properties as opportunities for new Mattress Firm retail
stores developed by Madison and to obtain approval from the Committee concerning
those leases. Gallaugher, after having worked with Quigley and Mattress Firm
personnel such as Levy, attended the meeting as Madison’s representative and
answered a question about the proposal after Quigley’s presentation concluded.
In addition to attending the May 2012 Committee meeting, Madison
acknowledged that it regularly communicated by email and phone with Mattress
Firm personnel. It also acknowledged that Gallaugher traveled to Texas on three
50
other occasions: once to meet with Vinson and other Mattress Firm personnel
concerning the design of a potential Mattress Firm warehouse located in Colorado;
once to attend the Houston Livestock Show & Rodeo as a guest of Mattress Firm
personnel; and once to co-sponsor and attend a Dallas Cowboys game, at which
several high-ranking Mattress Firm employees were present with their families. The
pleadings and the evidence thus demonstrate that Madison had an ongoing
relationship with Mattress Firm that lasted years, that Madison conducted business
in Texas by attending a meeting to seek approval of the development of two retail
stores, and that Madison personnel traveled to Texas to further their relationship with
Mattress Firm personnel via social events. We conclude that this conduct constitutes
purposeful contacts with the state of Texas.
The Texas Supreme Court has held that although a single business transaction
that occurs outside of Texas is insufficient to confer specific jurisdiction, activity
that is “aimed at getting extensive business in or from” Texas constitutes purposeful
and substantial contacts. Moncrief Oil Int’l, 414 S.W.3d at 153; Michiana Easy
Livin’ Country, 168 S.W.3d at 787–90. Defendants who agree to attend business
meetings in Texas at which conduct related to the operative facts of the plaintiff’s
claims occur have a “say in the matter” and are not “unilaterally haled into forming
contacts with Texas.” Moncrief Oil Int’l, 414 S.W.3d at 153.
51
Here, Madison did not engage solely in a single out-of-state transaction with
a Texas resident. Instead, it entered into a years-long relationship with Mattress
Firm; both parties sought to cultivate and continue this relationship; and it traveled
to Texas to attend a meeting concerning two potential new developments for
Mattress Firm, both of which were later approved and ultimately secured Madison a
financial benefit when it sold the properties. Madison’s contacts with Texas were
purposeful; they were not the unilateral result of conduct by third parties; and
Madison sought a benefit, advantage, or profit by creating and sustaining a
relationship with Mattress Firm, a Texas resident. See id. at 154 (noting that supreme
court had previously found jurisdiction over nonresident with no physical ties to
Texas when out-of-state transaction “was actively and successfully solicited in
Texas”); Michiana Easy Livin’ Country, 168 S.W.3d at 785 (“Sellers who ‘reach out
beyond one state and create continuing relationships and obligations with citizens of
another state’ are subject to the jurisdiction of the latter in suits based on their
activities.”) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 (1985)).
We now turn to whether Madison’s purposeful contacts with Texas are
substantially connected to the operative facts of the litigation. See Bell, 549 S.W.3d
at 559–60. Mattress Firm asserted the same causes of action against Madison that it
did against Quattro and Liyeos: fraud, civil conspiracy, aiding and abetting breach
of fiduciary duty, unjust enrichment, and imposition of a constructive trust. As we
52
discussed above with respect to Quattro and Liyeos, all of Mattress Firm’s causes of
action are based on its allegations that Madison, as a real estate development
company, was involved in a scheme to defraud Mattress Firm by, among other
things, paying bribes and kickbacks to Mattress Firm insiders and one of its brokers
and working with Mattress Firm insiders to agree on above-market rental rates and
longer-than-average lease terms—conditions that were unfavorable to Mattress Firm
as a tenant but that would make the properties more valuable and would yield a
greater profit for Madison when it sold the properties shortly after executing the
lease with Mattress Firm—that the insiders would then present to the Committee as
favorable deals to ensure the Committee’s approval of the leases.
Mattress Firm alleges that the transactions involving the two Spokane
properties developed by Madison were two of the lease agreements purportedly
secured by making misrepresentations and omissions to the Committee. Resolution
of Mattress Firm’s claims against Madison will involve, among other evidence,
consideration of the circumstances surrounding the execution of the Spokane leases,
including conduct related to developing the market strategy for the Spokane leases
and conduct that occurred at the May 2012 Committee meeting attended by
Gallaugher on behalf of Madison. Mattress Firm also alleges that, in exchange for
“lucrative deals,” Madison offered “items of significant value” to Levy, Vinson, and
Deitch, and it identified one instance that occurred in Texas: Madison allegedly
53
“rewarding” Levy, Vinson, and Deitch for their part in the scheme by co-sponsoring
a suite at a Dallas Cowboys game. We conclude, as we did with respect to Quattro
and Liyeos, that Madison’s purposeful contacts with Texas are substantially
connected to the operative facts of the litigation, such that Mattress Firm’s claims
against Madison arise out of and relate to Madison’s Texas contacts.10 See Bell, 549
S.W.3d at 559–60.
3. Traditional Notions of Fair Play and Substantial Justice
Madison argues that the burden placed on it if it were forced to continuing
defending itself in Texas would be great because it “is a small business with only
two employees” and a lawsuit in Texas “would greatly interfere with [Madison’s]
operations and its employees’ responsibilities.” Although it would be a burden on
Madison for its representatives—presumably Gallaugher—to travel to Texas to
participate in litigation, “the same can be said of all nonresidents” and “[d]istance
alone cannot ordinarily defeat jurisdiction.” Moncrief Oil Int’l, 414 S.W.3d at 155;
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d
223, 231 (Tex. 1991) (noting that “modern transportation and communication have
10
Madison, like Quattro, argues that there is no substantial connection between its
Texas contacts and the operative facts of the litigation in part because Madison did
not engage in any wrongful conduct at the May 2012 Committee meeting. As we
concluded with respect to Quattro, whether Madison’s conduct concerning the May
2012 Committee meeting in particular and the Spokane leases in general is
ultimately tortious is not relevant to the inquiry at the special appearance stage of
the litigation. See, e.g., Cornerstone Healthcare Grp. Holding, Inc. v. Nautic Mgmt.
VI, L.P, 493 S.W.3d 65, 73 (Tex. 2016).
54
made it much less burdensome for a party sued to defend himself in a State where
he engages in economic activity”). Additionally, Madison, through Gallaugher, has
attended meetings and events in Texas before. Madison may be burdened by having
to defend itself in litigation—which Mattress Firm points out would happen
regardless of which forum it chose to litigate its claims against Madison—but
Madison has not demonstrated that this burden is an unreasonable one. See
Hoagland, 474 S.W.3d at 816 (stating that defendant bears burden of presenting
“compelling case” that Texas’s exercise of jurisdiction over it would be
unreasonable).
Madison further argues that Texas has “very little interest” in adjudicating the
dispute between Madison and Mattress Firm “because the controversy does not arise
out of contacts with Texas” and all of the lease agreement Madison and Mattress
Firm signed were for retail store locations in other states and provided that disputes
concerning the leases would be governed by the law of the state where the store was
located. However, as Mattress Firm points out, it is a Texas resident, and Texas “has
an obvious interest in providing a forum for resolving disputes involving its citizens,
particularly disputes in which the defendant allegedly committed torts in whole or
in part in Texas.” See id.; see also Moncrief Oil Int’l, 414 S.W.3d at 155 (noting that
burden on Russian defendants in defending against claims in Texas was “somewhat
mitigated by the convenience to Moncrief, a Texas resident, of litigating in the forum
55
where the alleged trade secrets were appropriated and then purportedly used” and
that “allegations that the Gazprom Defendants committed a tort in Texas against a
resident implicate a serious state interest in adjudicating the dispute”). Furthermore,
Mattress Firm sued a total of seventeen defendants: two of the defendants have
settled; twelve of the defendants have generally appeared and will be participating
in litigation in Texas; and we have held that the other two defendants aside from
Madison—Quattro and Liyeos—are subject to specific jurisdiction in Texas.
Litigating the claims against Madison along with the claims against the other
defendants, particularly against the other similarly situated real estate development
company defendants, together in Texas promotes judicial economy. See
Cornerstone, 493 S.W.3d at 74 (considering facts that several other defendants had
not challenged jurisdiction and litigating claims against all defendants together
promoted judicial economy).
We conclude that Madison has not presented a “compelling case” that the
exercise of specific jurisdiction over it in Texas would be unreasonable such that
exercising jurisdiction would offend traditional notions of fair play and substantial
justice. See Moncrief Oil Int’l, 414 S.W.3d at 154–55 (“If a nonresident has
minimum contacts with the forum, rarely will the exercise of jurisdiction over the
nonresident not comport with traditional notions of fair play and substantial
56
justice.”). We hold that the trial court did not err by denying Madison’s special
appearance.
We overrule Madison’s, Quattro’s, and Liyeos’s issues on appeal.
Conclusion
We affirm the orders of the trial court denying Quattro’s, Liyeos’s, and
Madison’s special appearances.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Goodman, and Countiss.
57 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3847029/ | Argued May 22, 1933.
The Act of June 1, 1889, P. L. 420, as amended by the Act of April 25, 1929, P. L. 662, imposed a tax of eight mills on the gross receipts (from intrastate business) of all persons, corporations, etc., owning and operating any railroad, pipe line, conduit, steamboat, street passenger railway, traction system, etc., or other device for the transportation of freight, passengers, baggage, or oil, except taxicabs, motorbuses and motor omnibuses. (The court below suggested that the only reason for using both "motor buses" and "motor omnibuses" in this taxing statute is that the Motor Code of Pennsylvania requires a motor bus to have a certificate of public convenience, and that "a motor omnibus is something like a school bus or hotel bus which is not run primarily for *Page 222
profit.") The question presented is: Does this act violate the uniformity clause of article IX, section 1, of the Constitution of Pennsylvania, which provides that "all taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax. . . . . .?"
The appellant during the six-month period ending June 30, 1930, was engaged in the business of transporting various articles of freight and baggage for hire by means of motor trucks to and from points in and about Philadelphia, and from points in and about Philadelphia to other points in the Commonwealth. He used twenty-four motor trucks for this purpose. He reported gross receipts of $23,938.05. The tax at the rate of eight-tenths of one per cent amounting to $191.50 was assessed against him on November 27, 1931, by the Department of Revenue and approved by the Department of the Auditor General on November 30, 1931. Appellant filed a petition with the Department of Revenue alleging that the act under which the tax was assessed was unconstitutional and prayed for a resettlement of the tax. Both the Department of Revenue and the Board of Finance and Revenue negatived appellant's contention and the case reached on appeal the Court of Common Pleas of Dauphin County, where it was tried without a jury under the Act of April 22, 1874, P. L. 109. That court held the taxing act constitutional and directed judgment to be entered in favor of the Commonwealth in the sum of $191.50, with interest from February 28, 1932, amounting to $11.49, and the Attorney General's commission of 5 per cent or $10.15. Exceptions to the findings of fact and conclusions of law were overruled on March 30, 1933, and on April 4, 1933, judgment was entered against the defendant for $213.14.
It is the contention of appellant that the exemption of taxicabs, motor buses and motor omnibuses from the tax is an arbitrary and illegal classification. This contention is based largely on the ground that these vehicles *Page 223
carry a certain amount of freight and baggage. The Commonwealth contends that such carriage is negligible in amount and merely incidental to the business of taxicabs and buses.
This court said in Com. v. Girard Life Ins. Co., 305 Pa. 558,562, 158 A. 262: "Is there such a difference between the entity taxed and the one not levied upon, with relation to the act in respect to which the classification is proposed, as justified the legislature in fixing the classes which it did? If there is, the statutory provision is valid, if not, it is void."
In Keator v. Lackawanna Co., 292 Pa. 269, 273, 141 A. 37, we said: "While the Constitution does not forbid classification, it does hold that it must not produce diversity in results, or lack uniformity in its operation; there must be a real distinction between the objects. . . . . . . 'It is not competent for the courts to declare an act of assembly void, unless its violation of the Constitution was plain, clear, and palpable, so as to preclude doubt or hesitation': Kitty Roup's Case, 81* Pa. 211."
In Cooley's Constitutional Limitations, eighth edition, volume 2, page 825, it is said in regard to legislative classification of subjects: There must be "reasonable grounds . . . . . . for making a distinction between those who fall within such class and those who do not." A footnote on this page cites the following from Matheson v. Minneapolis St. Ry. Co., 126 Minn. 286, 148 N.W. 71: "A classification for purposes of legislation, to be valid 'must be based upon some reason of public policy, growing out of the condition or business of the class to which the legislation is limited.' But it is the province of the legislature to determine what differences or peculiarities, of condition or of business, furnish a sufficient basis for applying a different rule to those engaged in such business or those affected by such condition, than is applied to the remainder of the community. . . . . . . When such questions have been determined by the legislature, the legislative judgment is binding upon the *Page 224
courts, unless they can point out that the classification adopted is purely fanciful and arbitrary, and that no substantial or logical basis exists therefor." See also Com. v. Delaware Div. Canal Co., 123 Pa. 594, 620, 16 A. 584.
Cooley on Taxation, fourth edition, volume 1, page 752, says: "Merchants may be classified separately according to whether they are wholesale or retail dealers [citing, inter alia, Com. v. Clark, 195 Pa. 634, 46 A. 286]; the nature of the goods sold; whether they pay an annual tax upon their stock of goods; whether they deal in merchandise at any exchange or board of trade; whether stocks, grain, cotton, etc., are dealt in for future or for actual delivery." The Supreme Court of Texas has held that persons owning or controlling pipe lines may be subclassified according to the products transported: Texas Co. v. Stephens, 100 Tex. 628, 103 S.W. 481.
In the courts of the United States questions similar to the one now before us have arisen where classification for purposes of taxation has been challenged as being violative of the equal protection of the law clause of the federal Constitution. The principles enunciated in the decisions of these cases are equally applicable here.
In State Board of Tax Commissioners of Indiana v. Jackson,283 U.S. 527, 537, the Supreme Court of the United States in an opinion by Mr. Justice ROBERTS said: "The power of taxation is fundamental to the very existence of the government of the States. The restriction that it shall not be so exercised as to deny to any the equal protection of the laws does not compel the adoption of an iron rule of equal taxation, nor prevent variety or differences in taxation, or discretion in the selection of subjects, or the classification for taxation of properties, businesses, trades, callings, or occupations. . . . . . . The fact that a statute discriminates in favor of a certain class does not make it arbitrary, if the discrimination is founded upon a reasonable distinction, American *Page 225
Sugar Rfg. Co. v. Louisiana, 179 U.S. 89, or if any state of facts reasonably can be conceived to sustain it."
In Quong Wing v. Kirkendall, 223 U.S. 59, the United States Supreme Court upheld the constitutionality of a State law which exacted the payment of a license by all persons engaged in the laundry business other than the steam laundry business, with a proviso that it should not apply to women so engaged where not more than two women were employed. The Supreme Court said in an opinion by Mr. Justice HOLMES: "A State does not deny the equal protection of the laws merely by adjusting its revenue laws and taxing system in such a way as to favor certain industries or forms of industry. Like the United States, although with more restriction and in less degree, a State may carry out a policy, even a policy with which we might disagree. . . . . . . It may make discriminations, if founded on distinctions that we cannot pronounce unreasonable and purely arbitrary."
In American Sugar Refining Co. v. Louisiana, supra, the United States Supreme Court held that a State law "imposing a license tax upon persons and corporations carrying on the business of refining sugar and molasses does not, by exempting from such tax 'planters and farmers grinding and refining their own sugar and molasses,' deny sugar refiners the equal protection of the laws." In that case the Supreme Court said: "The act in question does undoubtedly discriminate in favor of a certain class of refiners, but this discrimination, if founded upon a reasonable distinction in principle, is valid. Of course, if such discrimination were purely arbitrary, oppressive or capricious, and made to depend upon differences of color, race, nativity, religious opinions, political affiliations or other considerations having no possible connection with the duties of citizens as taxpayers, such exemption would be pure favoritism, and a denial of the equal protection of the laws to the less favored classes."
In Williams v. Fears, 179 U.S. 270, the Supreme Court of the United States upheld a State act which imposed *Page 226
a tax upon an "emigrant agent," who was engaged in hiring laborers to be employed beyond the limits of the State, but exempted from taxation the business of hiring laborers to be employed within the State.
Appellant contends in the case at bar that the classification here is unreasonable because motor buses by carrying freight compete with his truck business and therefore motor buses and his trucks should be treated exactly alike by the State in its tax levying rôle. The court below found as facts: "2. The transportation of freight and baggage for hire is only an incidental business to the transportation of passengers, which is the principal business of taxicabs, motor buses and motor omnibuses.
"3. The gross receipts from the transportation of freight and baggage by taxicabs, motor buses and motor omnibuses is an insignificant part of the total gross receipts ranging in Pennsylvania from one-tenth of one per centum to two per centum of the gross income.
"4. The motor trucks of the defendant are not engaged in the business of transporting passengers and their principal business is the transportation of freight or baggage for hire."
These findings of fact are based on evidence that is not controverted. Even if there was competition between the business of the appellant and the business of the taxicabs, motor buses, and motor omnibuses, this fact would not in itself
be sufficient to justify a judicial declaration of the law's invalidity as an arbitrary, unreasonable classification. It was held in Heisler v. The Thomas Colliery Co., 260 U.S. 245, affirming the decision of the Supreme Court of Pennsylvania,274 Pa. 448, 118 A. 394, that a tax upon anthracite coal was not discriminatory, although bituminous coal, which was claimed to be in competition in market with anthracite coal, was not taxed.
Appellant's complaint is that the legislature "has laid the tax upon the gross receipts on all forms of transportation, *Page 227
whether passenger, baggage, or freight, and then attempted arbitrarily to favor the owners of taxicabs and motor buses." The court below answered this argument in the following language: "The fact that an insignificant part of the receipts of taxicab companies or motor bus operators comes from the hauling of baggage cannot make the classification illegal or discriminatory. This classification is not based upon receipts but upon use of the highways. Furthermore, the receipts derived from the hauling of baggage, being from one-tenth of one per centum [to two per centum] is inconsequential and incidental to the main purpose of the taxicab and motor bus operation and such incidental purpose is not controlling in the construction of taxing statutes: Com. v. Bornot, Inc., 34 Dauph. 178; Com. v. Pottsville Iron Steel Co., 157 Pa. 500 [27 A. 371]; Martin Barlin v. Knox County, 132 Tenn. 238, 188 S.W. 795; Ex parte Weisberg (Cal.), 12 P.2d 446."
Appellant cites the case of Com. v. Quaker City Cab Co.,287 Pa. 161, 134 A. 404, and interprets it as saying: "There is no substantial difference for the purposes of this taxing act between a taxicab and the other instrumentalities of transportation mentioned in the act." The taxing act under review in that case was the Act of June 1, 1889, P. L. 420, 431 (which is amended by the act we are now reviewing). That act provided: "That every railroad company, pipe line company, . . . . . . steamboat company . . . . . . street passenger railway company and every other company . . . . . . for the transportation of freight or passengers or oil, . . . . . . shall pay . . . . . . a tax of eight mills upon the dollar upon the gross receipts . . . . . . received from passenger and freight traffic transported wholly within this State." This court held that a taxicab company transporting passengers is a transportation company within the meaning of that act. This interpretation of the taxing act of 1889 does not give the slightest support to appellant's contention that the legislature does not possess the constitutional power to *Page 228
exempt taxicabs, motor buses, and motor omnibuses from the burdens of this taxing act, as it did in the amendment of April 25, 1929, P. L. 662. The decision of this court in the case just cited merely interpreted the words of a statute which were so plain as to make interpretation almost superfluous. We are now asked to interpret the Constitution in such a way as to deny to the legislature the power to make a classification for tax purposes between trucking companies, such as appellant's, which are engaged exclusively in transporting freight and baggage and companies which are engaged almost exclusively in transporting passengers. We cannot say that the classification made in effect (though not expressly) by the legislature between freight carrying vehicles and passenger carrying vehicles is so plainly, clearly, and palpably unreasonable as to justify us in declaring it violative of the taxing uniformity clause of the Constitution. We can understand how the classification might well find support in considerations of public policy. See State ex rel. Wisconsin Allied Truck Owners' Assn. et al. v. Pub. Ser. Com. of Wisconsin et al., 242 N.W. 668, 672, where the Supreme Court of Wisconsin said: "We think it is generally recognized that the vehicle carrying freight upon the highway perpetrates greater damage upon the highways than a motor vehicle simply carrying passengers. Their construction is different, and their reaction upon the highway is different. The classification is permissible."
There are sufficient reasons grounded in public policy to repel the imputation of arbitrariness in making the classification now challenged, though it may also be conceded that there is room for differences of opinion as to the wisdom or justice of the classification, but it must be borne in mind that the courts in passing upon questions like this, sit in judgment not on legislative wisdom but on legislative power.
Judgment affirmed. *Page 229 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3841430/ | Petition for rehearing denied September 11, 1945 ON PETITION FOR REHEARING 161 P.2d 670
With full appreciation of the gravity of the issues involved, we have given careful consideration to the petition for rehearing which has been filed on behalf of the defendant by Attorneys Edwin D. Hicks and Thomas H. Tongue, III. That petition raises no issues which were not considered by the court upon the first hearing. We adhere to our original conclusion that no reversible error was committed at the trial. The petition is therefore denied.
The record will show that the attorneys who filed the petition and who have ably presented their case did not participate in the trial of the cause in the circuit court. *Page 136 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3837422/ | IN BANC.
Action by V. Winchell against the Pacific Fruit Produce Company. Judgment for plaintiff and defendant appeals.
AFFIRMED. REHEARING DENIED.
On February 14, 1930, plaintiff, a fruit grower in Hood River county, entered into a contract with defendant, a Washington corporation engaged in the business of buying and selling fruit as a factor and broker.
The contract provided for the defendant making certain advances to the plaintiff in caring for and getting his fruit ready for market and for the repayment of these advances with 8 per cent interest. In addition to said contract and at the same time and as part of the same transaction, and as further security, for such advances, plaintiff executed a chattel mortgage in favor of the defendant covering all the fruit to be grown by him during the season of 1930. The contract gave the defendant the sole and exclusive agency for the sale of the fruit.
The parts of the contract material herein, are paragraphs 3, 17, and 18 thereof:
"3. Grower hereby employs Company as his sole and exclusive agent and factor to sell and market above described crop, upon the terms and conditions hereinafter set forth. Company accepts such employment and Grower agrees to pay and Company agrees to accept as compensation for marketing services, the sum of 10c per box * * * *Page 554
"17. Grower agrees to repay to Company all sums of money advanced him by Company or expended by Company in Grower's behalf or becoming due from him to Company, with interest at the rate of eight per cent (8%) per annum from date of said advances until paid, and in the event the proceeds of sale of the above mentioned crop shall be insufficient to pay all sums in full, Grower agrees that he shall personally be liable for any deficiency remaining unpaid. All sums of money becoming due Company hereon shall become due and payable when said crop is harvested but in no event later than nine months from the date hereof, providing that if said crop should be destroyed, or if Grower should abandon said crop, * * * or if for any other reason Company shall deem itself imperfectly or insufficiently secured for the advances made hereunder, or if default be made in any of the terms and conditions of this contract, then all sums becoming due hereunder shall become due upon demand.
"18. Company agrees that it will at the time said goods are ready for shipment, stand ready to make Grower a cash offer to purchase all or any part of said goods, the acceptance of which offer shall be optional with Grower. No sale of said goods is to be made or consummated by Grower except through Company as Grower's agent. If Grower shall procure a purchaser for said goods, Company shall be put in communication with said purchaser, when it shall, subject to the other terms hereof, consummate said sale on behalf of Grower; * * *"
Plaintiff alleges that he thereafter found a buyer for the fruit (Duckwall Bros., Inc.) who agreed to buy at certain fixed prices which would have returned to plaintiff the sum of $15,884.03 net. In accordance with paragraph 18 supra, he informed the defendant of the name and place of business of the buyer, and the offer made for the fruit and requested it to consummate the sale to said purchaser. The defendant failed to take any steps to make the sale and long thereafter *Page 555
sold the fruit to other parties and made returns and final payment thereof to plaintiff in the sum of $12,881.79. Plaintiff prays judgment for the sum of $2,952.24, as damages, that being the difference between the above-mentioned two sums.
Defendant in its answer admits the allegations of the complaint but denies that plaintiff put it into communication with said Duckwall Bros., Inc., or any other buyer who was willing and able to buy the fruit. It further alleges that it had advanced to plaintiff on said contract, prior to the time plaintiff claims to have produced a buyer, a sum in excess of $10,000 in accordance with the contract alleged in plaintiff's complaint. The reply admits the new matter in the answer.
The cause was tried to a jury who returned a verdict in favor of plaintiff for the full amount prayed for. Judgment was entered on the verdict and defendant appeals.
There is no dispute about the contract, the amount of fruit delivered, the sum paid by defendant nor the total amount net that the fruit would have brought if sold at the price that the buyer, claimed to have been produced by the plaintiff, offered.
Defendant, before answering, filed a demurrer to the complaint on the grounds that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled.
After the jury was sworn and the first witness called on behalf of plaintiff, defendant objected to the introduction of any evidence for the reason that the complaint did not state facts sufficient to constitute a cause of action, which objection was overruled.
When the testimony was all submitted, the defendant moved for a directed verdict, which motion was denied. Defendant thereupon requested that certain *Page 556
instructions be given the jury, each one of which was simply an additional request for a directed verdict.
After judgment was entered, defendant moved for a new trial, which motion was denied. To each of these rulings defendant saved an exception. The errors complained of in each of the adverse rulings of the court are all raised in defendant's motion for a directed verdict.
The real controversy arises over what is a fair and just construction of the contract entered into between the parties. Every bailee of personal property must be governed in his action towards such property, by the particular contract of bailment under which he holds. It makes little difference whether he is called bailee, factor, agent, mortgagee in possession, or any other legal term that denotes such relationship.
The evidence clearly discloses that plaintiff opened up negotiations with Duckwall Bros., Inc., and was quoted the prices alleged in his complaint, that he brought this offer and knowledge of the place of the business of the prospective buyer to the attention of defendant and requested its manager to consummate the sale. This put the defendant into communication with an intending purchaser.
There is no testimony to the effect that defendant did not know who Duckwall Bros., Inc., was or that it was not fully informed as to the intending purchaser's responsibility and ability to buy and pay for said fruit at the prices quoted. Defendant made no complaint on these grounds.
Mr. Waterbury, the manager for and only witness on behalf of defendant, testified, in effect, that he was informed of the Duckwall Bros., Inc., offer but that "we expected more money for the fruit because we believed that Duckwall was a bear on the market at *Page 557
that time," that he had consulted several others including his competitors and came to the conclusion that a better price could be obtained, "so it was firmly impressed in my mind that the fruit had a greater value than the prices that Duckwall was quoting at that time," that he had no recollection of the plaintiff ever making a demand that defendant sell to Duckwall. "I recollect an expression of his desire, but not an order or a demand." On cross-examination he remembered that Mr. Winchell "said he did not want to take chances and gamble on that crop." The gist of his testimony, according to his own story, is that he felt so sure of getting a better price than Duckwall Bros., Inc., offered that he overruled the "desire of plaintiff to sell at that offer," and made no effort to consummate the sale. In other words, he refused to "O.K." the expressed desire of Mr. Winchell. He was willing to gamble on plaintiff's crop, even if plaintiff was not.
The facts herein disclose that this was not a simple consignment of the fruit to the factor to sell without instructions. The contract sets out the terms and conditions on which the goods were transferred. Each party had a right to expect from the other a compliance therewith.
The fact that defendant, as factor, made advances to the consignor did not give it authority to refuse to make the sale unless such sale would jeopardize such advances or destroy the lien thereof without payment. This is the doctrine taught in 11 R.C.L. 774; Brown v. McGran, 39 U.S. 477 (10 L.Ed. 550); Feildv. Farrington, 77 U.S. 141 (19 L.Ed. 923); Heffner v.Gwynne-Treadwell, 160 Fed. 635.
There is no claim in the instant cause that if defendant sold to the Duckwall Bros., Inc., at the prices *Page 558
quoted the plaintiff that it would not be repaid its advances. It is no defense to say to plaintiff that if he repaid the advances he could do as he liked with the fruit. Plaintiff was entitled to have defendant carry out its contract. When he produced and brought into communication with the defendant, a buyer, at a price satisfactory to him, it was the duty of the defendant, under paragraph 18 of the contract, to consummate the sale. Defendant would have the right to withhold, from the money obtained from the sale, its advances and other items to which under the contract it was entitled.
There is some question raised regarding the ten cents a box that defendant was entitled to under paragraph 3 of the contract. Plaintiff testified that the prices quoted by Duckwall Bros., Inc., would net him $15,834.03. He received from the sale, by defendant, $12,881.79. Mr. Waterbury, manager of defendant, testified, in answer to the question, "* * * state if you know whether or not, your accounting included all the storage and warehouse commission and one thing and another, covered by the contract, did you take that off?" He answered, "Yes, it was all taken off." It would appear that the defendant had collected all its charges including the 10 cents a box warehouse charges.
The plaintiff is not attempting to rescind the contract, but is affirming it and asking damages by reason of its breach. The cases cited in appellant's additional brief, on rescission of a contract, are not in point in the instant controversy.
Finding no error, the judgment will be affirmed.
It is so ordered.
BELT and BROWN, JJ., not sitting. *Page 559 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3849515/ | Mr. Justice PATTERSON filed a concurring opinion. *Page 410
Argued September 26, 1945.
On November 1, 1943, Naomi Irene Siidekum was killed when an automobile in which she was a passenger and which was being driven by Harvey E. Domhoff came into collision with a truck belonging to the Animal Rescue League of Pittsburgh and operated by James V. Jackson, a policeman of the City of Pittsburgh. Suit was brought against the City, the League and Jackson *Page 411
by Fred H. Siidekum, as administrator c. t. a., on behalf of decedent's estate and of those entitled to recover for her wrongful death; the League brought in Domhoff as additional defendant. The trial resulted in a verdict against the three defendants in the sum of $955 for the estate and $25,000, subsequently reduced by the court to $12,000, for the husband, he being the person entitled to the recovery under the "death" acts; a verdict was also returned in favor of the additional defendant. The court upheld the verdicts against the City and against Jackson but granted judgment n. o. v. in favor of the Animal Rescue League.
That the accident was due solely to the negligence of Jackson is now admitted by all parties; the question is whether, in operating the truck at the time of the accident, he was acting as an employe of the City, of the League, or of both. A further controversy arises from the fact that the League successfully claimed immunity from liability on the ground of its being a charitable organization. There is also a complaint by defendants as to the alleged excessiveness of the verdict recovered on behalf of decedent's husband.
By the Dog Law of 1921, P. L. 522, § 19 (amended by the Act of 1935, P. L. 219) it was made the duty of every municipal police officer to seize and detain any dog found running at large and unaccompanied by its owner or keeper. The seizure of stray dogs, as a function of the government of the City of Pittsburgh, is under the charge of the Director of the Department of Public Safety.
The Animal Rescue League is an organization formed for the purpose of sheltering neglected dogs, cats and horses, restoring them to their owners or otherwise providing for them, and preventing them from being cruelly treated. In order to carry out its operations it owns appropriate equipment, including trucks with specially built bodies containing individual cages; it also conducts *Page 412
a farm on which it maintains boarding kennels, and it employs the services of veterinaries to administer to diseased and injured animals.
Because of the common objective of the City and the League in the seizure and proper disposition of stray dogs, and because of the facilities possessed by the League for that purpose, the City has, over a long course of years, entered annually into contracts with the League whereby, for the sum (in the 1943 contract) of $1,000 per month, the League assumed the duty, "under the supervision of the Director of the Department of Public Safety, to have the City streets properly patrolled; to arrest dogs found running at large in accordance with the Dog Law of the State of Pennsylvania, and to maintain necessary property and equipment as hereinafter specified." The league agreed to maintain a detention station with kennels, to operate a fleet of four or more trucks, and to "furnish with each a driver, who shall be an official dog catcher and canvasser". It was provided that "The Police Officers assigned to the Contractor shall assist and coöperate with him [sic] in all phases of the work; shall assist the drivers and canvassers in the work of catching, collecting and impounding dogs, and shall drive the trucks when the drivers are engaged in other duties."
Under these contracts it was customary for the City to assign four police officers for full-time service with the League. Jackson was among those so assigned; there was testimony to the effect that the League opposed his selection on the ground that he was addicted to drink. Due to the scarcity of labor in 1943 the League was without sufficient employes of its own to operate its trucks and Jackson drove more or less constantly during that year. On the day of the accident there was only one qualified driver on hand, so that three of the four policemen assigned by the City were engaged in operating the trucks. An emergency call came in to pick up a stray *Page 413
dog that had been injured; Jackson drove the truck that went out on this errand, being accompanied by a young lad who was an employe of the League but not a licensed driver; it was on the way back, with the dog in the truck, that the accident happened.
Was Jackson, in driving, acting as the employe of the City of Pittsburgh,1 of the Animal Rescue League, or of both? The learned trial judge left it to the jury to determine this question, and they found that both were liable. As to what constitutes the relationship of employer and employe, and as to the status of a "loaned" employe, the law leaves little room for doubt. By a continuous stream of authorities2 it has been declared that where one person lends his servant to another for a special employment the test is whether, in the particular *Page 414
service which he is engaged to perform, he continues liable to the direction and control of his general master or becomes subject to that of the party to whom he is lent or hired; the criterion is not whether the borrowing employer in fact
exercises control but whether he has the right to exercise it. It is also well recognized that under some circumstances both the lender and the borrower may have control over the servant so as to render each of them liable for his conduct, for he may have been transferred to carry on work which is of mutual interest to them and to effect their common purpose, so that his service to the one does not involve abandonment of his service to the other.3 It is further established that, when different inferences can reasonably be drawn from the testimony as to whether the lender or the borrower is the controlling master at the time of the accident, or whether both of them have the right of control, the question is one for the jury.4
In the present case the jury found, from what we regard as amply sufficient evidence, that when Jackson was driving the truck at the time of the accident he was acting on behalf of both the City of Pittsburgh and the Animal Rescue League, and that therefore, as far as this phase of the litigation is concerned, both these defendants were liable for the death caused by his negligence. The seizure and detention of stray dogs was the objective of both the City and the League, the one in pursuance of its statutory duty, the other of its chartered purpose. *Page 415
It was essentially a common enterprise; by the terms of the contract the police officers assigned by the City were to assist and coöperate with the League "in all phases of the work"; they were to drive the trucks when the drivers were engaged in other duties. The City did not "lend" Jackson for the performance of work which was of interest only to the League as a "borrowing" employer and in which the City itself had no concern. Jackson was not chosen, selected, or requested by the League; on the contrary, it had opposed his assignment. As a police officer, whether engaged in driving the truck or otherwise, he remained on the payroll, in the service, and under the control, of the City as his employer; driving the truck was merely incidental and necessary to the work of capturing stray dogs which was his statutory duty and the ultimate object for which he was assigned to the work. If the City did not in fact attempt to exercise control over his actions it had the power to do so, and it is the power of control which is the determining factor. On the other hand, in driving the truck he was engaged also in the service of the League; he was operating one of its trucks on its own business and was under the immediate direction of its superintendent. The verdict of the jury, therefore, was consistent with, and sustained by, the circumstances of the case, and even if the question were to be regarded as one of law depending solely upon the construction of the contract between the parties the same conclusion would necessarily follow.
This brings us to the inquiry whether the court was right in exempting the Animal Rescue League from liability because of its being a charitable organization. Whether a purely public charity should be held legally responsible for the negligence of its servants is a question that has given rise to an astounding diversity of opinion. Justice RUTLEDGE, then of the United States Court of Appeals for the District of Columbia, now a Justice of the Supreme Court of the United States, said in President and Directors of Georgetown College v. Hughes, *Page 416 130 F.2d 810, 812: "Paradoxes of principle, fictional assumptions of fact and consequence, and confused results characterize judicial disposition of these claims. From full immunity, through varied but inconsistent qualifications to general responsibility, is the gamut of decision. The cases are almost riotous with dissent. Reasons are even more varied than results." However, as far as Pennsylvania is concerned, the law on this subject is perfectly clear, for it was definitely held in Fire Insurance Patrol v. Boyd, 120 Pa. 624, 15 A. 553, that the rule of respondeat superior does not apply in the case of injuries occasioned by the negligence of the agents or servants of a charitable organization; indeed it was there said (pp. 647, 648, A. p. 557): "This doctrine [that a public charity is bound to apply its funds in furtherance of the charity and not otherwise] is hoary with antiquity and prevails alike in this country and in England where it originated as early as the reign of Edward V, and it was announced in the Year Book of that period." In Gable v. Sisters of St. Francis, 227 Pa. 254,75 A. 1087, a similar ruling was made in the case of a suit against a hospital by a patient who had been injured by the negligence of a nurse, the Court saying (p. 258, A. p. 1088): "It is a doctrine too well established to be shaken, and as unequivocally declared in our own state as in any other, that a public charity cannot be made liable for the tort of its servants." It was there held that the fact that the hospital received pay from some of its patients did not detract from its character as a purely charitable institution, and that it was immaterial that the plaintiff herself had been treated as a pay patient. Neither has any distinction been made in our courts, as it has been in some other jurisdictions, between cases where the injured person was a beneficiary or an employe of the charity and those where, as in the Boyd case, he was a total stranger to its activities.
Plaintiff apparently admits, as he must, that the Animal Rescue League, as a non-profit organization engaged *Page 417
in the humane undertaking of caring for animals, all of its capital funds and income being used for that purpose, is a purely public charity. Its status as such has been established by judicial decision (Ammon's Estate, 72 P. L. J. 872) and by rulings of governmental agencies. Plaintiff contends, however, that, because it entered into a contract under which it is being compensated by the City in an amount constituting more than one half of its total income, and because the accident occurred in the course of operations under that contract, it was, pro hac vice, engaged in a commercial and not a charitable enterprise. The fact that a charitable organization charges for some of the work performed by it for persons able to pay does not militate against its status as a charity; many charities derive income from compensation for their services. Of course, if, as in Winnemore v. Philadelphia, 18 Pa. Super. 625, a charitable institution conducts a business enterprise not directly related to the purpose for which the charity was organized, any negligence on the part of its servants or agents in the operation of that enterprise imposes liability upon the charity. Here, however, the services rendered by the League were the same as those for which it was chartered, and the compensation it received from the City was in no different legal category than the contributions and donations it obtained either from persons directly benefited by its activities or from strangers. Nor is its immunity from liability destroyed or impaired because, as was intimated in the testimony, it carried liability insurance: Kesman v. Fallowfield School District,345 Pa. 457, 29 A.2d 17.
Complaint is made by the City of Pittsburgh in regard to the amount of the verdicts, but we cannot say that, as reduced by the court, they are excessive (see Filer v. Filer, 301 Pa. 461,465, 466, 152 A. 567, 568), representing, as they do, a recovery both on behalf of decedent's estate and on behalf of those entitled to damages because of the wrongful death. The decedent was *Page 418
30 years of age, in excellent health and, at the time of her death, was earning in outside employment at the rate of $1140 per year; she is described as having been a good wife and a good housekeeper, and she lived in harmonious relations with her husband who is a young engineer graduated from the Carnegie Institute of Technology. However, the manner in which the jury apportioned the total amount between plaintiff acting on behalf of decedent's estate and plaintiff acting on behalf of those entitled to recover damages for the wrongful death — $955 for the estate and $25,000, reduced to $12,000, for the decedent's husband — was clearly erroneous and undoubtedly resulted from the curious fact that the court, without objection on the part of counsel, instructed the jury that the wife's earnings during the period she would have lived but for the accident constituted an item recoverable on behalf of her husband. It would seem scarcely necessary to say that since the Married Women's Property Acts the law does not regard married women as slave laborers even for their husbands. The administrator suing on behalf of decedent's estate was entitled to recover the economic value of her life as measured by the present worth of her likely earnings during the period of life expectancy:Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659. For the husband, on the other hand, recovery was limited to the loss of her services and society as a wife, less the "probable cost of her maintenance which he would have been compelled to pay, as well as other incidental items that he would probably have given her": Gaydos v. Domabyl, 301 Pa. 523, 533, 534, 152. A. 549, 553. Had these respective measures of recovery been properly observed it is obvious that the verdict on behalf of decedent's estate would have been substantially greater and that on behalf of the husband correspondingly less. However, we are informed that decedent had no creditors and we learn from an inspection of her will that any recovery obtained by her estate in the present action would pass to her *Page 419
husband as residuary legatee. As she left no children, and was survived only by her mother and her husband, he is also the sole person entitled to the damages recoverable for her wrongful death (Lehigh Iron Co. v. Rupp, 100 Pa. 95; Lewis v.Hunlock's Creek Muhlenburg Turnpike Co., 203 Pa. 511,53 A. 349). Therefore the apportionment of the total verdicts between the two interests represented by the plaintiff administrator becomes a matter of no practical moment, and for that reason does not, under the facts of the present case, require the granting of a new trial.
Judgments affirmed.
1 By § 619 of the Vehicle Code of 1929, P. L. 905, amended by the Act of June 29, 1937, P. L. 2329, the City would be liable for damages caused by the negligence of any of its employes while operating a motor vehicle upon a highway in the course of his employment.
2 Jimmo v. Frick, 255 Pa. 353, 356, 357, 99 A. 1005, 1006;Puhlman v. Excelsior Express and Standard Cab Co., 259 Pa. 393,397, 103 A. 218, 219; Tarr v. Hecla Coal Coke Co., 265 Pa. 519,522, 109 A. 224, 225; Eckert v. Merchants ShipbuildingCorporation, 280 Pa. 340, 348-350, 124 A. 477, 480, 481;Sgattone v. Mulholland Gotwals, Inc., 290 Pa. 341, 346,138 A. 855, 857; Robson v. Martin, 291 Pa. 426, 430-432,140 A. 339, 341, 342; Bojarski v. M. F. Howlett, Inc., 291 Pa. 485,489-491, 140 A. 544, 545, 546; Persing v. CitizensTraction Co., 294 Pa. 230, 235, 236, 144 A. 97, 99; MilwaukeeLocomotive Manufacturing Co. v. Point Marion Coal Co., 294 Pa. 238,245, 144 A. 100, 102; Lang v. Hanlon, 302 Pa. 173, 177,153 A. 143, 145; 305 Pa. 378, 382-384, 157 A. 788, 789, 790;Rosen v. Diesinger, 306 Pa. 13, 16, 17, 158 A. 561, 562; Gordonv. S. M. Byers Motor Car Co., 309 Pa. 453, 458, 459,164 A. 334, 335, 336; Rau v. Wilkes-Barre Eastern R.R. Co., 311 Pa. 510,516, 517, 167 A. 230, 233; Venezia v. PhiladelphiaElectric Co., 317 Pa. 557, 559, 177 A. 25, 26; PennsylvaniaCo., etc., v. Philadelphia Electric Co., 331 Pa. 125, 129, 130,200 A. 18, 21; Joseph v. United Workers Association, 343 Pa. 636,638, 639, 23 A.2d 470, 472; McGrath v. Edward G. BuddManufacturing Co., 348 Pa. 619, 622, 623, 36 A.2d 303, 304,305; Dunmire v. Fitzgerald, 349 Pa. 511, 516, 37 A.2d 596, 599;Hoffman v. Montgomery County, 146 Pa. Super. 399, 402,22 A.2d 762, 763.
3 Rest. Agency, § 226; Gordon v. S. M. Byers Motor Car Co.,309 Pa. 453, 459, 460, 164 A. 334, 336; Koontz v. Messer, 320 Pa. 487,492, 181 A. 792, 794; Grasberger v. Liebert Obert, Inc.,335 Pa. 491, 493, 6 A.2d 925.
4 Atherholt v. William Stoddart Co., 286 Pa. 278, 280,133 A. 504, 505; Lang v. Hanlon, 302 Pa. 173, 178, 153 A. 143, 145;Dougherty v. Proctor Schwartz, Inc., 317 Pa. 363, 176 A. 439;Grasberger v. Liebert Obert, Inc., 335 Pa. 491, 493,6 A.2d 925; Joseph v. United Workers Association, 343 Pa. 636, 639,23 A.2d 470, 472, 473; Dunmire v. Fitzgerald, 349 Pa. 511, 516,37 A.2d 596, 599. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4553797/ | Opinion issued August 6, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00937-CR
———————————
ERNESTO CARLOS TREVINO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 437th Judicial District Court
Bexar County, Texas
Trial Court Case No. 2017CR10362
OPINION
A jury convicted appellant, Ernesto Carlos Trevino, of the third-degree felony
offense of forgery of a governmental document.1 The trial court assessed appellant’s
1
See TEX. PENAL CODE ANN. § 32.21(a), (e) (providing that offense is third-degree
felony if document forged is government record).
punishment at four years’ confinement, suspended his sentence, placed him on
community supervision for four years, imposed a $1,500 fine, and ordered him to
pay $4,000 in restitution. In three issues, appellant contends that (1) the State failed
to present sufficient evidence that he intended to harm or defraud another person,
that the writing was unauthorized, and that the writing was a government record, as
required to support a forgery conviction; (2) his conviction was based on a theory of
prosecution not alleged in the indictment; and (3) the trial court admitted evidence
of an extraneous offense but erroneously failed to give a limiting instruction.
We reverse and render a judgment of acquittal.
Background
A. Factual Background
In July 2016, appellant, who lives in the San Antonio area,2 placed an
advertisement on Craigslist offering a deer hunting opportunity on his property in
exchange for a truck. Kurt Stern was interested in this hunting opportunity, and he
contacted appellant. Appellant asked Stern if he had a vehicle that he was willing to
trade in exchange for the hunting opportunity. Stern told appellant that he did not
have a vehicle to trade, but he did have a jet ski which he had been thinking about
2
The Texas Supreme Court transferred this appeal from the Court of Appeals for the
Fourth District of Texas to this Court pursuant to its docket-equalization authority.
See TEX. GOV’T CODE ANN. § 73.001 (“The supreme court may order cases
transferred from one court of appeals to another at any time that, in the opinion of
the supreme court, there is good cause for the transfer.”).
2
selling. Stern estimated that his jet ski was valued around $4,000, and appellant was
interested in accepting the jet ski. Ultimately, Stern paid an undisclosed amount of
cash and the jet ski for the hunting opportunity.
On October 15, 2016, Stern brought the jet ski to appellant’s property on a
trailer. At the time Stern brought the jet ski to appellant, the jet ski was “in good
physical condition,” but it was not “in running condition.” Appellant was aware of
this and did not believe it was “going to be a big issue as far as whatever had to get
fixed.” Stern also brought the certificate of title to the jet ski with him to appellant’s
property, and he testified that “the agreement was we were going to sit down and fill
out the title, do it the correct way.” Stern gave the title to appellant. He testified that
he intended to transfer ownership of the jet ski to appellant during this visit to
appellant’s property, but he did not sign the back of the title—actually transferring
ownership of the jet ski to appellant—on that day. Two days later, Stern had a family
emergency occur, and the need to sign the jet ski’s title slipped his mind. Stern
testified that he never signed the back of the certificate of title transferring ownership
of the jet ski to appellant.
Stern remained in contact with appellant, although they never discussed
signing the certificate of title, and he continued to hunt at appellant’s property
throughout October, November, and December 2016. Stern agreed, on cross-
examination, that he never asked appellant “for a refund on the hunt.”
3
Appellant told Stern that he had contacted someone to repair the jet ski and
that it just needed a “simple fix.” One weekend, Stern arrived at appellant’s property
and did not see the jet ski. Stern wondered where the jet ski was because “[i]t was
always there at the house.” Appellant told Stern that he had “traded the jet ski for a
truck.” Stern had the following exchange with the State:
Q: Okay. And so why is it that you wondered where the jet ski was
at? What would it matter?
A: Honestly, it didn’t matter, but I knew in the back of my head that
I never signed the back of the title. I knew we didn’t sit down and
actually do it, so that raised a red flag in my head.
Q: Okay. And why would that raise a red flag in your head?
A: That we didn’t sit down to do it.
Q: Okay. That you didn’t fully transfer the ownership to him?
A: Correct. Yes, ma’am.
Q: Okay. And why would that be a problem?
A: I have done a handful of titles in my life, and I know you are
supposed to do it the right way, fill it out and whatnot. And I
knew that wasn’t done. It did not matter to me what he did with
the jet ski. I just wanted to go about doing it the right way.
Stern questioned appellant about signing the back of the title, and appellant told
Stern that Stern had signed the title. Stern corrected appellant, telling him that Stern
had only signed the front of the title when he first received the jet ski. Stern was not
concerned with whether appellant traded the jet ski, but he “wanted to go about it
the right way” and he did not “want anything coming back to [him]” in case the jet
ski was later involved in an accident.
4
The trial court admitted the title to the jet ski into evidence. Both the front of
the title and the back of the title contain a signature stating, “Kurt Stern.” Stern
testified that the signature on the front of the title—which was above a line stating
“signature of owner or agent”—was his signature and that he signed the front of the
title when he received the jet ski. He stated that the signature on the back of the
title—which was above a line stating “signature of seller”—said “Kurt Stern,” but
he testified that was not his writing and was not his signature. These two signatures
do not look similar. Stern stated that when he gave the title to appellant, “there was
no writing on the back of the title,” and he did not give anyone permission to sign
his name to the back of the title. He testified that he felt “taken advantage of” when
he saw that his name had been signed to the back of the title.
After taking physical possession of the jet ski from Stern, appellant posted
another ad on Craigslist, this time offering to trade the jet ski for a truck. Trung
Nguyen saw this ad and contacted appellant regarding a pickup truck he was willing
to trade for the jet ski. In November 2016, appellant went to Nguyen’s house with
the jet ski, which he started for Nguyen to ensure that it worked, and appellant then
test-drove Nguyen’s truck. Nguyen had the following exchange with the State
concerning what happened next:
Q: And then what happened?
A: I asked him [appellant] a second time that the jet ski is okay. And
he said, “Yes,” so we signed the paper.
5
Q: Okay. And what paper did you sign?
A: The title of my truck and the title of the jet ski.
Q: Okay. What did you sign?
A: I signed on my title, the truck title, and gave it to him. And then
he signed the title of the jet ski and gave it to me.
Q: Okay. So you watched him sign the back of the title for the jet
ski?
A: Yes, I saw that, because there’s only him and his wife and me [at
Nguyen’s house while the transaction occurred], and that’s it.
The State showed Nguyen the same title that Stern had identified, and Nguyen
pointed to his name on the back of the title, which he had written above a line stating
“Print Name of Purchaser.” When the State pointed to Stern’s name on the back of
the title, Nguyen testified that appellant signed that signature.
After appellant traded the jet ski to Nguyen, Stern and appellant
communicated in a series of text messages on January 2 and 3, 2017. Defense
counsel asked Stern whether, on January 2, 2017, he received a text message from
appellant in which appellant asked Stern if he wanted the jet ski back. Stern could
not recall that particular text message, but he agreed that might have happened.
Defense counsel asked Stern whether he responded, “I don’t want it back,” and Stern
could not recall his response to appellant’s text, but he did not deny responding in
that manner. Defense counsel then asked:
Q. And what you said was, “I just don’t want it in my name.” That
is what you said, right?
6
A. Correct.
Q. All right. And then the next day at 7:16 p.m., January 3, 201[7],
you said, “I don’t want the jet ski back.” So you said it a second
time, right?
A. Right, meaning I would like to work everything out and settle
and be done and walk away.
Defense counsel did not offer, and the trial court did not admit, copies of the text
messages between Stern and appellant.
Nguyen took the title to the jet ski to have it changed over to his name on
January 26, 2017. Several weeks later, Nguyen received in the mail a title in his
name and a decal for the jet ski—issued by the Texas Parks & Wildlife Department
and titled “Certificate of Number for a Vessel”—that had his name and address and
the jet ski’s identification number.
One or two months after Nguyen had the title changed, appellant called
Nguyen and told him that he “wanted to change it again,” meaning appellant “wanted
to have his jet ski back, and then [appellant] wanted to give [Nguyen] back [his]
truck.” Nguyen told appellant that he had already had the title to the jet ski changed
to his name. When asked if appellant told Nguyen why he wanted to make the second
trade, Nguyen testified, “I don’t remember exactly what he said, but I believe that
he said that if I do not change that back, that he might go to jail.”
Derek Iden is a game warden with the Texas Parks & Wildlife Department
(“the Department”). In January 2017, he began an investigation, and during this
7
investigation, he “learned that Kurt Stern had traded a personal watercraft and some
money for hunting privileges that was provided by [appellant].” The jet ski became
“an item of interest” in Iden’s investigation, and on January 9, 2017, Iden spoke with
the Boat Titling Division of the Department “and asked that if somebody were to
present the [jet ski’s] title to transfer ownership, that it be flagged in our system and
that [Iden] be notified.”
On January 26, 2017, Iden received a call from the Department’s San Antonio
regional office notifying him that Nguyen “came in with the title for the jet ski in
question and tried to get it registered in his name.” The next day, Iden and his partner
visited the office and learned that Nguyen “presented the title and another piece of
paperwork” to put title to the jet ski into his name. Later that day, Iden and his partner
spoke with Nguyen. Nguyen informed Iden that he had traded his truck to appellant
for the jet ski through a Craigslist ad. Iden then had contact with appellant through
emails and text messages.
After speaking with Stern, Nguyen, and appellant, Iden concluded that Stern
did not sign the title to the jet ski. Iden did not remove the “flag” on the jet ski so
that Nguyen could register and use it. When asked whether he ever told Nguyen that
he could not use the jet ski, Iden testified:
I never gave him permission to use it. I told him he should not use it,
no. He wanted to use it. He was talking about wanting to use it. I did
not give him permission to use it.
8
Iden also testified that he wanted to seize the jet ski, but his partner did not, and it
remained in Nguyen’s possession. Iden told Nguyen to keep the jet ski in a safe
location because Iden “believed it needed to be returned to Kurt Stern.” Nguyen also
testified that Iden and his partner told him that he could not operate the jet ski, that
he believed it was wrong to use the jet ski, and that he had not used it during the time
period between speaking with Iden and the trial. Stern testified that Iden informed
him when the jet ski was located and asked Stern if he wanted the jet ski back. Stern
told Iden that he “would rather try to get the dollar amount for the jet ski instead of
getting the jet ski back.”
Iden acknowledged that the jet ski had been titled in Nguyen’s name. He
testified that he was surprised to learn of this, stating:
[I]t occurred on the day that he went to our office January 26, 2017, and
I had told the clerk, “Do not allow this to go through as part of a pending
criminal forgery investigation on a title.” It apparently slipped through
the clerical cracks, if you will, and was registered into Mr. Nguyen’s
name when it was not supposed to be at all. I told them—I made it clear,
abundantly clear, “Do not allow this to be registered.”
Iden testified that Nguyen mistakenly received a “Certificate of Number for a
Vessel” decal and that having this decal and using the jet ski “could cause [Nguyen]
a multitude of problems” due to the pending allegations concerning the forged title.
The jury found appellant guilty of forgery. The trial court assessed appellant’s
punishment at four years’ confinement, suspended the sentence, and placed appellant
on community supervision for four years. The trial court also imposed a $1,500 fine
9
and ordered appellant to pay $4,000 in restitution—the value of the jet ski—to Kurt
Stern. This appeal followed.
Sufficiency of Evidence
In his first issue, appellant contends that the State failed to present sufficient
evidence to support his conviction for forgery. Specifically, he argues that the State
did not present sufficient evidence that he intended to defraud or harm another
person, that the writing was without authorization, and that the writing was a
governmental record. Appellant also argues, in his first issue, that the trial court
committed reversible error when it denied him the opportunity to cross-examine
Stern about his purported statement to Jim McKay that he did not wish to prosecute
appellant or be a complaining witness.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Bohannan v. State, 546 S.W.3d
166, 178 (Tex. Crim. App. 2017). The jurors are the exclusive judges of the facts
and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150
(Tex. Crim. App. 2008); see Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.
2011) (stating that role of fact finder is “as the sole judge of the weight and
10
credibility of the evidence after drawing reasonable inferences from the evidence”).
The jury, as the sole judge of credibility, may accept one version of the facts and
reject another, and it may reject any part of a witness’s testimony. Rivera v. State,
507 S.W.3d 844, 853 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d); see
Bohannan, 546 S.W.3d at 178 (stating that fact finder has duty to resolve conflicts
in testimony, to weigh evidence, and to draw reasonable inferences from basic facts
to ultimate facts).
We may not re-evaluate the weight and credibility of the evidence or substitute
our judgment for that of the fact finder. Bohannan, 546 S.W.3d at 178; Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We resolve any inconsistences
in the evidence in favor of the verdict. Bohannan, 546 S.W.3d at 178; see also
Murray v. State, 457 S.W.3d 446, 448–49 (Tex. Crim. App. 2015) (“When the record
supports conflicting inferences, we presume that the factfinder resolved the conflicts
in favor of the verdict, and we defer to that determination.”). A criminal conviction
may be based on circumstantial evidence. Merritt v. State, 368 S.W.3d 516, 525
(Tex. Crim. App. 2012). Circumstantial evidence is as probative as direct evidence
in establishing guilt, and circumstantial evidence alone can be sufficient to establish
guilt. Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (quoting Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). “Each fact need not point
directly and independently to the guilt of the appellant, as long as the cumulative
11
force of all the incriminating circumstances is sufficient to support the conviction.”
Hooper, 214 S.W.3d at 13.
B. Analysis
In this case, in order to convict appellant of forgery as charged in the
indictment, the State was required to prove that appellant, with intent to defraud and
harm another, made, completed, executed, or authenticated a forged writing—a title
to a personal watercraft—knowing the writing to be forged and the writing had been
made, altered, executed, completed, or authenticated so that it purported to be the
act of Kurt Stern, who did not authorize the act, and the writing “was to the tenor
following”:
See TEX. PENAL CODE ANN. § 32.21(a)(1)(A)(i), (b). Forgery is a third-degree felony
if the writing is or purports to be a “government record listed in [Penal Code] Section
37.01(2)(C).” Id. § 32.21(e)(2). Penal Code section 37.01(2)(C) defines
“governmental record” to include “a license, certificate, permit, seal, title, letter of
12
patent, or similar document issued by government, by another state, or by the United
States.” Id. § 37.01(2)(C). The Penal Code does not define “defraud,” but it does
define “harm” as “anything reasonably regarded as loss, disadvantage, or
injury . . . .” Id. § 1.07(a)(25).
1. Proof of Intent to Defraud or Harm Another
Code of Criminal Procedure article 38.19 provided, at the time of appellant’s
trial, that “[i]n trials of forgery, it need not be proved that the defendant committed
the act with intent to defraud any particular person.”3 Act of May 27, 1965, 59th
Leg., R.S., ch. 722, § 1, 1965 Tex. Gen. Laws 317, 468 (amended 2019) (current
version at TEX. CODE CRIM. PROC. ANN. art. 38.19). “When intent to defraud is the
mens rea of the offense, the State must prove facts from which that intent is
deducible beyond a reasonable doubt and, in the absence of that proof, a conviction
will not be justified.” Okonkwo v. State, 398 S.W.3d 689, 695 (Tex. Crim. App.
2013). To prove the requisite intent, the fact finder must be able to reasonably infer
beyond a reasonable doubt that the defendant knew the writing was forged. Ramsey
v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Leroy v. State, 512 S.W.3d
3
The Texas Legislature amended this provision in 2019. The amendments provide
that article 38.19 now applies, in addition to forgery offenses, to offenses for credit
or debit card abuse and offenses for fraudulent use or possession of identifying
information. Act of May 17, 2019, 86th Leg., R.S., ch. 291, § 2, 2019 Tex. Sess.
Law Serv. 493, 494 (to be codified at TEX. CODE CRIM. PROC. ANN. art. 38.19). The
remaining amendments are non-substantive. The amended version of article 38.19
applies only to criminal proceedings that commence on or after the effective date of
the act, September 1, 2019. Id. § 3–4.
13
540, 543 (Tex. App.—Houston [1st Dist.] 2016, no pet.). To determine whether the
jury reasonably could have made this inference, we look to the totality of the
circumstances and weigh all of the facts. Leroy, 512 S.W.3d at 543; Johnson v. State,
425 S.W.3d 516, 524 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
Intent to defraud or harm another may be established by circumstantial
evidence. Leroy, 512 S.W.3d at 543 (citing Williams v. State, 688 S.W.2d 486, 488
(Tex. Crim. App. 1985)). There is no “bright-line rule” establishing what the State
must present in order to show intent to defraud or harm another. Id.; Johnson, 425
S.W.3d at 520–24 (discussing cases considering different factors and circumstances
in determining whether State had established intent to defraud or harm). “The mere
possession, passage, or presentment of a forged instrument does not support an
inference of intent to defraud.” Leroy, 512 S.W.3d at 543 (citing Parks v. State, 746
S.W.2d 738, 740 (Tex. Crim. App. 1987)). However, a fact finder can infer intent to
defraud or harm another in forgery cases if the State proves that the defendant has
knowledge that the writing is forged. Huntley v. State, 4 S.W.3d 813, 814 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d); see Oldham v. State, 5 S.W.3d 840, 844
(Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (stating that “[p]roof of intent to
defraud is also derivative of other elements” and that “[i]f the State proves that an
actor has knowledge that a particular [writing] is forged, proof of intent to defraud
is inferred”); Wallace v. State, 813 S.W.2d 748, 751 (Tex. App.—Houston [1st Dist.]
14
1991, no pet.) (same). An accused’s use of deception—which may take the form of
giving false information or engaging in behavior designed to avoid detection—is
evidence of intent to defraud or harm. Garcia v. State, 630 S.W.2d 303, 305 (Tex.
App.—Houston [1st Dist.] 1981, no pet.); see Choice v. State, 883 S.W.2d 325, 329
(Tex. App.—Tyler 1994, no pet.) (“The use of deception by an accused is evidence
of intent to defraud and harm.”).
In this case, the State presented evidence that Stern brought the jet ski and the
title to appellant’s house, but Stern did not sign the back of the title—actually
transferring ownership of the jet ski to appellant—on that day or any other day. Stern
testified that he did not give appellant authorization to sign his name on the back of
the title. However, when appellant and Nguyen met to complete their trade of the jet
ski for Nguyen’s truck, Nguyen testified that he wrote his name on the back of the
title above a line stating “Purchaser” and appellant signed above a line stating
“Signature of Seller.” Appellant did not sign his own name; instead, he signed
Stern’s name. Stern testified that he later learned that appellant had traded the jet ski.
When Stern asked appellant about signing the back of the title, appellant stated that
Stern had signed the back of the title, but Stern knew that he had not signed the title.
The State thus presented evidence that appellant signed Stern’s name on the
back of the title to the jet ski and that Stern did not authorize appellant to sign Stern’s
name. In forgery cases, courts have held that when the State presents evidence that
15
the defendant has knowledge that a particular instrument is forged, the jury may infer
the defendant acted with the intent to defraud or harm. See Oldham, 5 S.W.3d at 844;
Huntley, 4 S.W.3d at 814. However, we determine whether a defendant acted with
intent to defraud or harm based on the totality of the circumstances. See Leroy, 512
S.W.3d at 543. Here, we cannot conclude, when examining all of the circumstances
of this case, that a reasonable jury could determine beyond a reasonable doubt that
appellant acted with the intent to defraud or harm another when he signed Stern’s
name on the back of the title to the jet ski.
Stern testified that he and appellant reached an agreement in which appellant
would grant Stern hunting privileges on his property in exchange for an unspecified
amount of cash and a jet ski. Stern brought the jet ski—and the title to the jet ski—
to appellant’s house on October 15, 2016, fully intending to transfer ownership of
the jet ski to appellant. Stern left the jet ski and its title with appellant, but he testified
that they forgot to complete the paperwork, and he did not sign the jet ski’s title over
to appellant. Over the next few months, throughout the end of 2016, Stern continued
to hunt at appellant’s property. Stern never brought up the issue of signing the title
until after appellant traded the jet ski to Nguyen.
Appellant desired to trade the jet ski for a truck, and he placed a second
Craigslist ad, which Nguyen saw. Nguyen and appellant then entered an agreement
in which appellant traded the jet ski to Nguyen for Nguyen’s truck. When they met
16
to complete the exchange and the paperwork for this deal, Nguyen signed the title to
his truck, and appellant signed Stern’s name on the back of the title to the jet ski.
On appeal, the State argues that appellant “intentionally defrauded Nguyen
when he signed the title under someone else’s name without permission” and that
appellant harmed Nguyen “because Nguyen was not able to properly register and
use the jet ski during the time period that the title was being investigated.” The State
also points out that appellant “lied to Stern about whether Stern had signed the title.”
We do not agree that the evidence shows that appellant, when he signed Stern’s name
on the title, intended to defraud or harm Stern, Nguyen, or anyone else. There is no
dispute that appellant and Stern had an agreement to exchange the jet ski and cash
for hunting privileges. Stern delivered the jet ski, along with the title, to appellant
but mistakenly forgot to sign the title. Despite this, appellant and Stern treated their
transaction as complete: appellant consulted with someone to repair the jet ski and
sought a new buyer for the jet ski—ultimately, Nguyen—and Stern continued to hunt
at appellant’s property. Both appellant and Stern received the benefit of their
bargain.
Nguyen did not receive the benefit of his bargain with appellant, as he was
unable to use the jet ski, at Iden’s direction, from the date Nguyen spoke with Iden
in January 2017 until the date of appellant’s trial in July 2018. However, there is no
evidence in the record that, at the time appellant signed the title to the jet ski in
17
Stern’s name, appellant did so with the intent to defraud or harm Nguyen. The
evidence, instead, indicates that appellant, believing that his deal with Stern was
complete and that he owned the jet ski, sought to trade the jet ski to Nguyen in
exchange for Nguyen’s truck, but signed Stern’s name on the title when he realized
that the paperwork from the deal with Stern had never been completed.
Under the circumstances of this case, we conclude that the State failed to
present sufficient evidence from which a reasonable jury could conclude, beyond a
reasonable doubt, that appellant, when he signed Stern’s name on the back of the
title to the jet ski, did so with the intent to defraud or harm another. See TEX. PENAL
CODE ANN. § 32.21(b); Leroy, 512 S.W.3d at 543 (determining whether defendant,
in forgery case, acted with intent to defraud or harm requires examining totality of
circumstances).
We sustain appellant’s first issue.4
4
Because we conclude that the State failed to present sufficient evidence that
appellant acted with the intent to defraud or harm another, an essential element of
the forgery offense, and thus appellant is entitled to an acquittal, we do not address
the remainder of appellant’s first issue or appellant’s second and third issues.
18
Conclusion
We reverse the judgment of the trial court and render a judgment of acquittal.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Lloyd, and Hightower.
Publish. TEX. R. APP. P. 47.2(b).
19 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4553798/ | Opinion issued August 6, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00867-CV
———————————
DWB CONSULTING, LLC, Appellant
V.
BENJAMIN RATLIFF, Appellee
On Appeal from the County Court at Law No. 1
Galveston County, Texas
Trial Court Case No. CV-0082265
MEMORANDUM OPINION
In this interlocutory appeal, appellant, DWB Consulting, LLC (DWB)—a
Louisiana company with its principal place of business in Louisiana—challenges the
trial court’s denial of its special appearance in a suit brought against it by appellee,
Benjamin Ratliff.1 Ratliff, a Mississippi resident, sued DWB and three other
companies, including Texas-based Hilcorp Energy Company (Hilcorp), for injuries
he allegedly sustained performing his job duties aboard the inland barge rig Bayou
Blue in Louisiana. Ratliff alleged that DWB acted as Hilcorp’s agent and oversaw
Hilcorp’s operations in Louisiana.
In two issues, DWB challenges the trial court’s order denying its special
appearance, contending that (1) Texas’s long-arm statute does not authorize personal
jurisdiction in this case, and (2) DWB lacks the minimum contacts with Texas
required by the Due Process Clause of the United States constitution for Texas courts
to assert personal jurisdiction over it.2 Regarding the second issue, DWB argues that
it lacks minimum contacts with Texas because its only contact, a contract with a
Texas company to provide consulting services outside of Texas, is not substantially
connected to Ratliff’s alleged injuries while lifting a heavy object aboard the Bayou
Blue in Louisiana. Because we agree with DWB, we reverse the trial court’s order
denying DWB’s special appearance and render judgment dismissing Ratliff’s claims
against DWB for lack of jurisdiction.
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(7) (permitting interlocutory
appeal from order granting or denying special appearance).
2
DWB’s brief lists three issues, but we construe his first two issues as a single issue
challenging whether Ratliff met his initial burden to plead allegations sufficient to
invoke jurisdiction under the Texas long-arm statute.
2
Background
Ratliff filed suit against DWB and three other defendants, including Texas-
based Hilcorp and Louisiana-based Baywater Drilling, LLC (Baywater),3 alleging
that, “[a]t all material times,” he was “a Jones Act Seaman” employed by Baywater
as a floorman aboard the vessel Bayou Blue. He asserted that “the Bayou Blue was
deployed on navigable inland waters where [Ratliff] was contributing to and aiding
such vessel to accomplish its mission.” Ratliff claimed that, in May 2018, while
working aboard the Bayou Blue “on inland waters outside the State of Texas,” he
was seriously injured “when he was required to manually lift large objects in excess
of 300 pounds.” He alleged that he had been required to perform the task “without
adequate crew, and without conducting necessary safety meetings.”
Ratliff sued for damages under the Jones Act,4 Texas common law, and
general maritime law. He alleged that the defendants, including DWB, had been
“negligent and grossly negligent for the following reasons:
a. failing to properly train employees;
b. failing to inspect, maintain, and repair equipment;
c. fail[ing] to properly supervise their crew;
3
Ratliff also named as defendant another company, Baywater Drilling Management
Partners, LP, which is not a party to this interlocutory appeal and does not appear to
be integral to the discussion of the issue of personal jurisdiction.
4
46 U.S.C. § 30104.
3
d. failing to maintain a safe work environment;
e. failing to provide appropriate medical attention;
f. fail[ing] to provide an adequate crew;
g. fail[ing] to maintain the vessel;
h. fail[ing] to provide necessary safety equipment;
i. [being] vicariously liable for their employees’ negligence and gross
negligence;
j. violating applicable Coast Guard, OSHA, and/or MMS rules and
regulations;5
k. violating their own safety rules and regulations;
l. fail[ing] to comply with contractual obligations and duties; [and]
m. failing to maintain safe mechanisms for work on the vessel[.]”
Ratliff also alleged that, “[a]t all relevant times, the Bayou Blue was unseaworthy”
and that “DWB and its employees were acting as agents of . . . Hilcorp overseeing
operations.”
DWB filed a special appearance.6 DWB asserted that the trial court lacked
personal jurisdiction over it and requested that the trial court dismiss Ratliff’s claims
5
Neither the record nor the parties define “MMS.”
6
Baywater also filed a special appearance. See Baywater Drilling, LLC, v. Benjamin
Ratliff, No. 01-19-00706-CV, 2020 WL 3422207 (Tex. App.—Houston [1st Dist.]
June 23, 2020, no pet. h.) (reversing denial of Baywater’s special appearance). The
only parties to this interlocutory appeal are DWB and Ratliff.
4
against it. DWB averred that Ratliff’s petition did not allege any connection between
DWB’s contacts with Texas and the operative facts of the litigation.7
DWB supported its special appearance with the affidavit of Douglas Burch,
the principal, owner, sole member, and sole employee of DWB. Burch testified that
DWB is a Louisiana limited liability company with its principal place of business in
Louisiana and offices in Houma, Terrebonne Parish, Louisiana. He averred that
DWB has no offices or employees in Texas, owns no property in Texas, and does
not advertise, have bank accounts, or pay taxes in Texas. He further averred that
DWB performed no work in Texas, has no authorized agent to accept service of
process in Texas, and was not served with citation in this case in Texas. Rather,
Burch testified that the “vast majority” of DWB’s consulting work occurred in
Louisiana and “none occur[ed] in . . . Texas.” Burch testified that DWB was an
independent contractor of Hilcorp at the time Ratliff was injured, and Burch denied
that DWB was Hilcorp’s agent.
After deposing DWB’s corporate representative, Burch, Ratliff responded to
DWB’s special appearance. Ratliff argued that the trial court had personal
jurisdiction over DWB because “DWB: (1) conducts exclusive business with a
7
DWB’s special appearance also argued that the trial court lacked general personal
jurisdiction over it and that exercising jurisdiction over it offended traditional
notions of fair play and substantial justice.
5
Texas citizen; (2) works for a Texas citizen; (3) consistently communicates with a
Texas citizen; and (4) benefits from conducting business in Texas.” Ratliff pointed
to Burch’s testimony acknowledging that, by entering into a contract with a Texas
company, DWB potentially could be sued in Texas based on “[a] contractual
disagreement between Hilcorp and [DWB] . . . .” Ratliff also pointed to Burch’s
testimony agreeing that, “[f]rom 2014 [to] . . . 2019, [DWB’s] exclusive business
relationship as a consultant ha[d] been with Hilcorp[.]” Ratliff further pointed to
Burch’s testimony that while Burch, as DWB’s employee, worked on the Bayou
Blue, he communicated daily with Hilcorp’s “operations engineer in the particular
field” by texts, telephone calls, and emails. Ratliff attached as evidence Burch’s
entire deposition transcript and many of DWB’s discovery responses.
DWB filed a reply in support of its special appearance, acknowledging its
consulting contract with Texas-based Hilcorp but denying that the contract had
anything to do with Ratliff or the damages he allegedly sustained in Louisiana. DWB
argued that no part of its contract with Hilcorp was to be performed by either party
in Texas. DWB’s reply attached a medical statement addressed to Ratliff at a
Mississippi mailing address. DWB also attached a second affidavit from Burch, in
which Burch testified that “DWB is a consulting firm specializing in oil and gas”
and that DWB “provides oil and gas operators with consulting advice, information,
recommendations, and strategies for optimizing well operations. It does not provide
6
any other services.” Burch further testified that DWB did not supervise, manage, or
oversee any employees, including Ratliff, or operate any of the barges or equipment,
but “is strictly hired to consult[] on the optimization of well operations.” Burch
confirmed that “DWB ha[d] consulted exclusively in Louisiana” since 2012 and that,
“[s]ince 2014, DWB ha[s had] only one client: Hilcorp[.]” Burch also denied that
either he or DWB performed any of the actions alleged in Ratliff’s petition.
Neither party introduced the contract between DWB and Hilcorp, and it is not
a part of the record on appeal. There is no evidence that the contract was signed in
Texas. Burch testified that Hilcorp’s payments to DWB for DWB’s services were
drawn on a Utah bank.
The trial court conducted a hearing on DWB’s special appearance. The parties
reiterated their arguments and no additional evidence was taken. Following the
hearing, the trial court signed an order denying DWB’s special appearance. DWB
filed this interlocutory appeal, challenging the trial court’s order in two issues.
Special Appearance
A. Standard of Review
Whether a trial court has personal jurisdiction over a nonresident defendant is
a question of law that we review de novo. Old Republic Nat’l Title Ins. Co. v. Bell,
549 S.W.3d 550, 558 (Tex. 2018). When, as here, a trial court does not issue findings
of fact or conclusions of law with its ruling on a special appearance, all relevant facts
7
necessary to support the judgment and supported by evidence are implied. Id.; BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). When the
record on appeal includes the clerk’s and reporter’s records, the trial court’s implied
findings are not conclusive and may be challenged for legal and factual sufficiency.
BMC Software, 83 S.W.3d at 795. A no-evidence legal sufficiency challenge fails if
the finding is supported by more than a scintilla of evidence. Id.
B. Governing Law
Texas courts may exercise personal jurisdiction over a nonresident defendant
if: (1) the Texas long-arm statute authorizes the exercise of jurisdiction; and (2) the
exercise of jurisdiction is consistent with federal and state constitutional due-process
guarantees. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.
2007). The Texas long-arm statute is expressly satisfied if a nonresident commits a
tort in whole or in part in Texas or contracts with a Texas resident and the contract
is to be performed wholly or partially in Texas. See id. (citing TEX. CIV. PRAC. &
REM. CODE ANN. § 17.042(1), (2)). Texas courts interpret the long-arm statute to
“reach as far as the federal constitutional requirements of due process will allow.”
Id. at 575 (quoting Guardian Royal Exch. Assur., Ltd. v. English China Clays,
P.L.C., 815 S.W.2d 223, 226 (Tex. 1991)).
“[F]ederal due process requires that the nonresident must have ‘certain
minimum contacts with [the forum state] such that the maintenance of the suit does
8
not offend traditional notions of fair play and substantial justice.’” Old Republic,
549 S.W.3d at 559 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945),
and Moki Mac, 221 S.W.3d at 575). A nonresident establishes minimum contacts
with a forum when it “purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its
laws.” Moki Mac, 221 S.W.3d at 575 (quoting Hanson v. Denckla, 375 U.S. 235,
253 (1958), and Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784
(Tex. 2005)). The defendant’s in-state activities “must justify a conclusion that the
defendant could reasonably anticipate being called into a Texas court.” Old
Republic, 549 S.W.3d at 559 (quoting Retamco Operating, Inc. v. Republic Drilling
Co., 278 S.W.3d 333, 338 (Tex. 2009)). Three important considerations guide our
review of a nonresident’s contacts with the state: (1) only the defendants’ contacts
with the forum are relevant, not the unilateral activity of another party or a third
person; (2) the contacts relied upon must be purposeful rather than random,
fortuitous, or attenuated; and (3) the defendant must seek some benefit, advantage,
or profit by availing itself of the jurisdiction. Id. (quoting Moncrief Oil Int’l Inc. v.
OAO Gazprom, 414 S.W.3d 142, 151 (Tex. 2013)).
A defendant’s contacts may give rise to general jurisdiction, which is not at
issue here, or specific jurisdiction. Id. (citing Moncrief Oil, 414 S.W.3d at 150). To
constitute the minimum contacts required for a Texas court to exercise specific
9
personal jurisdiction over a nonresident defendant: (1) the defendant’s contacts with
Texas must be purposeful, and (2) the cause of action must arise from or relate to
those contacts. Id. (citing Moncrief Oil, 414 S.W.3d at 150, and quoting Michiana
Easy Livin’ Country, 168 S.W.3d at 795). For a cause of action to arise from or relate
to purposeful forum contacts, “there must be a substantial connection between those
contacts and the operative facts of the litigation.” Moki Mac, 221 S.W.3d at 585
(citing Rush v. Savchuk, 444 U.S. 320, 329 (1980), and Guardian Royal, 815 S.W.2d
at 229–33).
When a nonresident defendant challenges personal jurisdiction over it, the
plaintiff and defendant bear shifting burdens of proof. Old Republic, 549 S.W.3d at
559 (citing Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010)).
The plaintiff bears the initial burden of pleading allegations sufficient to invoke
jurisdiction under the long-arm statute. Id. If the plaintiff pleads sufficient
jurisdictional allegations, the burden shifts to the nonresident defendant to negate all
bases of jurisdiction alleged. Id. The defendant can meet this burden to negate
jurisdiction by, for example, “showing that ‘even if the plaintiff’s alleged facts are
true, the evidence is legally insufficient to establish jurisdiction’ or that ‘the
defendant’s contacts with Texas fall short of purposeful availment.’” Id. (quoting
Kelly, 301 S.W.3d at 659).
10
C. Analysis
In its second issue, DWB contends that, based on the allegations in Ratliff’s
petition and the evidence in the record, the trial court erred when it denied DWB’s
special appearance.8 DWB primarily asserts that its consulting contract with Texas-
based Hilcorp—which it contends is its only contact with Texas—is not substantially
connected to Ratliff’s alleged injuries in Louisiana. DWB contends that, therefore,
it is not subject to specific personal jurisdiction in Texas courts.
Ratliff does not dispute that general jurisdiction does not apply to this case or
that his tort claims arose wholly in Louisiana. Instead, Ratliff counters that DWB
had “a fourteen-year-long, exclusive business relationship” with Texas-based
Hilcorp and, “[p]ursuant to its longstanding contract,” DWB oversaw Hilcorp’s
operations on the Bayou Blue, communicated daily with Hilcorp in Texas, received
training from Hilcorp, and received daily instruction “on where, when, and how to
perform the work” from Hilcorp in Texas. Ratliff argues that DWB negligently
8
In its first issue, DWB contends that Ratliff did not sufficiently plead jurisdictional
allegations in his petition. We need not address this argument because, as discussed
infra, we agree with DWB that, considering all the allegations and record evidence,
Texas courts lack specific personal jurisdiction over DWB. See M&F Worldwide
Corp. v. Pepsi-Cola Metro. Bottling Co., Inc., 512 S.W.3d 878, 886 n.10 (Tex.
2017) (stating that court need not reach defendants’ alternate argument that plaintiff
had not sufficiently pleaded jurisdictional facts because, after considering all
evidence, Texas courts lacked personal jurisdiction over defendants); Moki Mac
River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007) (stating that Texas
courts interpret long-arm statute to “reach as far as the federal constitutional
requirements of due process will allow”).
11
carried out the safe operation of the Bayou Blue and that Ratliff’s injuries “were the
direct result of DWB’s failure to discharge its duties as Hilcorp’s representative with
reasonable care—duties it would not otherwise have had in the absence of its
relationship with Hilcorp.” Ratliff further argues that “whether DWB performed its
responsibilities as Hilcorp’s man-on-the-ground with reasonable care, [is a] key
operative fact[] that the jury must determine in this case.” Ratliff relies on the
allegations in his petition and the deposition testimony of Burch in his capacity as
DWB’s representative.
As an initial matter, Ratliff lacks support for his arguments that DWB had a
fourteen-year relationship with Hilcorp, that DWB oversaw Hilcorp’s operations or
acted as Hilcorp’s agent or representative, and that DWB communicated daily with
and received daily instruction from Hilcorp in Texas. The record on appeal does not
include the contract upon which Ratliff primarily relies for his arguments. Moreover,
Burch initially testified at his deposition that DWB had contracted with Hilcorp since
2004, but he immediately corrected the date to 2014, which Ratliff’s counsel
accepted. DWB has consistently maintained that its relationship with Hilcorp began
in 2014 for the remainder of Burch’s deposition, in both of Burch’s affidavits as
DWB’s corporate representative, and in DWB’s discovery responses. There is no
record evidence controverting Burch’s testimony and DWB’s discovery responses
on this issue.
12
Likewise, DWB has consistently denied that it oversaw Hilcorp’s operations,
acted as Hilcorp’s agent, or employed, supervised, or controlled Ratliff. Rather,
Burch testified that he is a petroleum engineer who, as DWB’s sole member and
employee, provided “consulting advice, information, recommendations, and
strategies for optimizing well operations” to Hilcorp in Louisiana. Burch also
testified that DWB’s point of contact with Hilcorp was an operations manager for
Hilcorp in the field and that Burch communicated with the field operations engineer
as needed by texts, telephone calls, and emails.
There is no evidence that DWB communicated daily with or received daily
instruction from Hilcorp in Texas or that it otherwise oversaw Hilcorp’s operations
or acted as Hilcorp’s agent aboard the Bayou Blue. See Old Republic, 549 S.W.3d at
558 (authorizing reviewing court to consider implied findings supported by record
evidence). Ratliff did not provide sworn testimony contradicting DWB’s sworn
testimony, and thus DWB’s evidence is not controverted. To the extent that the trial
court’s order denying DWB’s special appearance relied on any of these allegations,
they are not supported by more than a scintilla of evidence and are therefore legally
insufficient to support the trial court’s order. See BMC Software, 83 S.W.3d at 795.
Burch also testified that DWB did not conduct any business in Texas, that it
had no employees, offices, or bank accounts in Texas, that it did not advertise in
Texas, and that it was not served with citation in this case in Texas. Ratliff’s alleged
13
injury did not occur in Texas, and neither party is a Texas resident or entity. Burch
testified that DWB performed its contractual consulting obligations solely in
Louisiana and that Hilcorp’s payments to DWB were drawn on a Utah bank.
Therefore, on this record, DWB’s only forum contact is its consulting contract with
a Texas company from which DWB earned its income for the four years preceding
Ratliff’s alleged injury. Generally, contracting with a Texas company alone is
insufficient to establish minimum contacts. See Michiana Easy Livin’ Country, 168
S.W.3d at 786 (“[T]he United States Supreme Court has emphatically answered the
question whether a single contract with a Texas resident can automatically establish
jurisdiction—‘the answer clearly is that it cannot.’”) (quoting Burger King v.
Rudzewicz, 471 U.S. 462, 475 n.18, 478 (1985)); Gulf Coast Int’l, L.L.C. v. Research
Corp. of the Univ. of Haw., 490 S.W.3d 577, 585 (Tex. App.—Houston [1st Dist.]
2016, pet. denied) (“[C]ontracting with a Texas company . . . do[es] not necessarily
establish sufficient minimum contacts to demonstrate specific jurisdiction.”). But,
even assuming without deciding that DWB purposefully availed itself of the
privilege of conducting activities in Texas by entering into a consulting contract with
a Texas company from which DWB derived all of its income over a four-year period,
personal jurisdiction over DWB is proper only if DWB’s purposeful contact is
substantially connected to the operative facts of Ratliff’s negligence and gross
14
negligence claims against DWB. See Old Republic, 549 S.W.3d at 559; Moki Mac,
221 S.W.3d at 585. On this record, we decline to hold that it is.
Ratliff’s negligence claims specifically allege that he was required to lift
heavy objects without an adequate crew and without necessary safety meetings and
that DWB failed to, among other things, train and supervise employees, maintain a
safe working environment and equipment, and comply with its contractual duties on
the Bayou Blue. Ratliff’s only reliance on DWB’s consulting contract is to establish
that DWB owed him a legal duty, which is generally a legal question for the trial
court to resolve prior to trial unless a fact issue precludes a decision as a matter of
law. See Boerjan v. Rodriguez, 436 S.W.3d 307, 310–11 (Tex. 2014); Helbing v.
Hunt, 402 S.W.3d 699, 703 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
Indeed, Ratliff implicitly acknowledges the limited relevancy of DWB’s contract by
arguing that DWB breached “duties it would not otherwise have had in the absence
of its relationship with Hilcorp.” But Ratliff did not introduce the contract, and it is
not a part of the record before us.
The focus of the trial will be on DWB’s actions and conduct on the Bayou
Blue, where Ratliff was allegedly injured, rather than on DWB’s consulting contract
with Hilcorp. See Moki Mac, 221 S.W.3d at 588 (finding that operative facts of
negligence claim principally concerned guides’ conduct on hiking trail where injury
occurred and thus focus of trial would be on guides’ conduct and events on trail).
15
DWB owed contractual obligations to Hilcorp, including providing Hilcorp with
consulting advice, information, recommendations, and strategies for optimizing well
operations. However, there is no record evidence that DWB oversaw, managed, or
supervised any employees, including Ratliff, or operated any of the barges or
equipment. Thus, the uncontroverted record evidence shows that DWB’s contract
had nothing to do with Ratliff’s lifting of heavy objects on the Bayou Blue and,
therefore, the contract is not substantially connected to this personal injury lawsuit.
See BMC Software, 83 S.W.3d at 797 (reversing trial court’s denial of special
appearance where no evidence supported finding that tort was committed in whole
or in part in Texas).
We offer no opinion on whether Ratliff will ultimately prevail on his
negligence claims against DWB, but we cannot say, on the record before us, that
DWB’s contracting with a Texas company to provide consulting services in
Louisiana justifies a conclusion that DWB could reasonably anticipate being called
into a Texas court to answer Ratliff’s claims of negligence that occurred in
Louisiana. See Old Republic, 549 S.W.3d at 559; id. at 560 (“[W]e have cautioned
that we must not confuse ‘the roles of judge and jury by equating the jurisdictional
inquiry with the underlying merits.’”). On this record, the uncontroverted evidence
shows that Ratliff’s negligence claims against DWB do not arise from or relate to
DWB’s contacts with Texas.
16
Our decision is guided by Moki Mac River Expeditions v. Drugg, in which the
Texas Supreme Court considered whether a Texas resident’s hiking injury while on
a guided rafting trip in Arizona arose from or related to the hiking guide’s extensive
advertising, marketing, and sales of such trips to Texas residents. Moki Mac, 221
S.W.3d at 573. The Druggs sent their son, Andy, on a rafting trip in Arizona where
he was fatally injured while hiking. Id. The Druggs had contacted Moki Mac River
Expeditions (Moki Mac), a Utah company, about the rafting trip and had sent an
application and payment for Andy and his grandmother to go on the trip. Id. Moki
Mac sent safety and release forms to the Druggs at their home in Texas, and the
Druggs signed and returned the forms to Moki Mac. Id. After Andy’s accident, the
Druggs sued Moki Mac in Texas for negligence, arguing that Moki Mac’s extensive
sales, marketing, and advertising efforts in Texas and its numerous communications
with Texas residents constituted minimum contacts with Texas sufficient to exercise
jurisdiction over it here. Id. at 577–78. The Druggs argued that they would not have
sent Andy on the trip without Moki Mac’s representations, made in direct
solicitations, about the safety of its trips. Id. at 585. Yet the court rejected the
Druggs’ but-for argument, holding instead that there must be a substantial
connection between a nonresident defendant’s forum contacts and the operative facts
of the litigation. Id. Thus, the court concluded that Moki Mac’s promotional
17
materials that it sent to Texas were not substantially connected to the operative facts
of Andy’s death while hiking in Arizona:
[T]he operative facts of the Druggs’ suit concern principally the guides’
conduct of the hiking expedition and whether they exercised reasonable
care in supervising Andy. The events on the trail and the guides’
supervision of the hike will be the focus of the trial, will consume most
if not all of the litigation’s attention, and the overwhelming majority of
the evidence will be directed to that question. Only after thoroughly
considering the manner in which the hike was conducted will the jury
be able to assess the Druggs’ misrepresentation claim. In sum, the
[alleged misrepresentation] is not the subject matter of the case . . . nor
is it related to the operative facts of the litigation.” Whatever connection
there may be between Moki Mac’s promotional materials sent to Texas
and the operative facts that led to Andy’s death, we do not believe it is
sufficiently direct to meet due-process concerns.
Id. at 588 (quoting Rush, 444 U.S. at 329).
Here, DWB’s sole contact with Texas—a single contract with a Texas
company to provide oil well consulting services in Louisiana—is more tenuous than
Moki Mac’s extensive sales, marketing, and advertising efforts in Texas to Texas
residents. See id. at 585 (“Whatever connection there may be between Moki Mac’s
promotional materials sent to Texas and the operative facts that led to Andy’s death,
we do not believe it is sufficiently direct to meet due-process concerns.”); Gulf Coast
Int’l, 490 S.W.3d at 585 (“[C]ontracting with a Texas company . . . do[es] not
necessarily establish sufficient minimum contacts to demonstrate specific
jurisdiction.”).
18
Ratliff argues that “his injuries were the direct result of DWB’s failure to
discharge its duties . . . [that] it would not otherwise have had in the absence of its
relationship with Hilcorp,” but this argument relies on a but-for causation standard
that Moki Mac held was insufficient to establish minimum contacts with a forum
state. See Moki Mac, 221 S.W.3d at 581 (stating that “the but-for test [is] too broad
and judicially unmoored to satisfy due-process concerns” regarding personal
jurisdiction). Rather, due process requires the operative facts of the litigation to be
substantially connected to the nonresident defendant’s forum contacts before the
forum may exercise jurisdiction over the nonresident defendant. Id. at 585. Just as
the operative facts leading to Andy’s death in Arizona were not substantially
connected to Moki Mac’s extensive advertising of its trips to Texas residents, the
operative facts leading to Ratliff’s alleged injury from lifting heavy objects on a
vessel in Louisiana are not substantially connected to DWB’s consulting contract
with a Texas company. Cf. TV Azteca v. Ruiz, 490 S.W.3d 29, 53 (Tex. 2016)
(distinguishing Moki Mac because Moki Mac’s “‘actionable conduct,’ from which
the claim arose, occurred in Arizona, and its ‘additional conduct’ of advertising in
Texas did not transform its actionable conduct in Arizona into a contact with
Texas”). DWB’s contract with Hilcorp is relevant only to the existence or not of a
legal duty owed by DWB to Ratliff, which is generally a question of law rather than
a focus at trial, particularly if it is found that no legal duty was owed. See Boerjan,
19
436 S.W.3d at 307. DWB’s conduct on the Bayou Blue—and not its consulting
contract—“will consume most if not all of the litigation’s attention, and the
overwhelming majority of the evidence will be directed to that question.” See Moki
Mac, 221 S.W.3d at 585. “Only after thoroughly considering the manner in which
[the operations on the Bayou Blue] [were] conducted will the jury be able to assess
[Ratliff’s negligence] claim[s].” See id.
Ratliff also relies on Nogle & Black Aviation, Inc. v. Faveretto, but that
reliance is misplaced. See 290 S.W.3d 277 (Tex. App.—Houston [14th Dist.] 2009,
no pet.). Whereas Moki Mac held that a nonresident defendant’s extensive contacts
with Texas were not substantially connected to the operative facts of the litigation,
Nogle held that a nonresident defendant’s limited contacts were “directly related” to
the operative facts of the litigation. Compare Moki Mac, 221 S.W.3d at 588, with
Nogle, 290 S.W.3d at 283–85. In Nogle, a student pilot was killed when a wing broke
off the Beechnut T-34 airplane he was flying in Texas, causing the airplane to crash.
Nogle, 290 S.W.3d at 280. The pilot’s estate sued N&B, an Illinois aircraft company,
alleging that it had negligently designed and installed the wings of the T-34 that
crashed. Id. at 283. After previous crashes related to the T-34’s wings, N&B
designed repair procedures to make T-34s airworthy, received approval from the
Federal Aviation Administration for its repair procedures, and then sold its wing-
repair designs to other T-34 owners. Id. at 280, 282–83. The owner of the T-34 that
20
crashed in Nogle had bought N&B’s design and used it to repair the T-34 “[s]everal
months” before it crashed. Id. at 280. N&B’s only contacts with Texas were that it
sought out and contracted with a Texas engineer to design the wing-repair
procedures, the engineer performed the work in Texas, and N&B used the Texas
engineer’s design and sold it for profit to other T-34 owners. Id. at 282–83. Based
on these contacts, the court determined not only that N&B purposefully availed itself
of the privilege of conducting activities in Texas, but also that these contacts were
substantially connected to the operative facts of the litigation because “[t]he issue of
whether negligence in the design and inspection of the wing spar modification . . .
caused the wing separation on the accident aircraft is an operative fact in this
litigation, and [the Texas engineer’s] engineering work is directly related to that.”
Id. at 283–85.
Here, by contrast, DWB’s consulting contract—which is not a part of the
record—is not directly related to the operative facts of the litigation. As we discussed
above, the contract is only relevant to the existence of a legal duty, which is generally
a legal question decided by the court before trial and, thus, is not an operative fact
because it will not be the focus of the trial. See Boerjan, 436 S.W.3d at 310–11; Moki
Mac, 221 S.W.3d at 588. N&B’s relationship with the Texas engineer, on the other
hand, went beyond merely establishing N&B owed the student pilot a legal duty.
Nogle, 290 S.W.3d at 284. The operative facts of that litigation concerned whether
21
N&B breached a duty in its design and whether such a breach caused the student
pilot’s death. Id. The Texas engineer’s design of the repair procedures in Texas for
N&B was “directly related” to N&B’s alleged negligence. Id. Because the issue of
DWB’s contract is not substantially connected, much less directly related, to the
operative facts in this litigation, Nogle does not support personal jurisdiction in this
case. See id. We therefore hold, on the record before us, that Texas courts lack
personal jurisdiction over DWB for Ratliff’s negligence claims against it.
Like his negligence claims, Ratliff’s gross negligence claims against DWB do
not arise from or relate to DWB’s consulting contract. These claims will focus on
DWB’s actions on the Bayou Blue in Louisiana, whether those actions involved an
extreme degree of risk, and whether DWB was actually, subjectively aware of the
risk involved. See Boerjan, 436 S.W.3d at 311 (“Gross negligence requires a
showing of two elements: ‘(1) viewed objectively from the actor’s standpoint, the
act or omission complained of must involve an extreme degree of risk, considering
the probability and magnitude of the potential harm to others; and (2) the actor must
have actual, subjective awareness of the risk involved, but nevertheless proceed[s]
in conscious indifference to the rights, safety, or welfare of others.’”) (quoting Lee
Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001), and TEX. CIV.
PRAC. & REM. CODE ANN. § 41.001(11)). DWB’s consulting contract is not
substantially connected to the operative facts of Ratliff’s gross negligence claims.
22
Therefore, on this record, we conclude that Ratliff’s gross negligence claims against
DWB do not arise from or relate to DWB’s contacts with Texas. We hold that the
trial court lacked personal jurisdiction over DWB for Ratliff’s gross negligence
claims.
We sustain DWB’s second issue.
Conclusion
We reverse the trial court’s order denying DWB’s special appearance and
render judgment dismissing Ratliff’s claims against DWB for lack of jurisdiction.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Kelly, and Landau.
23 | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3262/ | Stewart Park v. Slater
No. 02-6272
December 12, 2003
1 Van Graafeiland, Senior Circuit Judge, dissenting in part:
2 On the whole, I agree with Judge Miner’s analysis of the
3 verbose, over-8000 page, record. However, I respectfully
4 disagree with the following determinative statement that he
5 makes:
6 “Here it cannot be gainsaid that the Stewart Buffer
7 Lands and the Crestview Lake property were established
8 parklands. They have been used exclusively as
9 parklands for almost thirty years since they were
10 acquired pursuant to a series of management
11 agreements.”
12 When asked to pass judgment on acts that occurred decades
13 prior to the making of the request, wisdom dictates that we give
14 some consideration to pertinent judicial pronouncements made
15 during the period at issue regarding the initial acquisition of
16 the Stewart Properties. Two such pronouncements were Town of New
17 Windsor v. Ronan, 329 F. Supp. 1286 (S.D.N.Y. 1971) and County of
18 Orange v. Metropolitan Transportation Authority, 71 Misc.2d 691
19 (1971) aff’d mem, 39 A.D.2d 839 (1972). Unlike my two
20 colleagues, I find the following excerpts from these two opinions
21 persuasive, if not controlling.
22 Town of New Windsor
23 “The New York Legislature passed in April of
24 this year, and amended in May, ‘An Act to
1
1 authorize the establishment of an airport for the
2 accommodation of domestic and international air
3 travel and freight transport at Stewart airport
4 and the making of an appropriation therefor.’
5 Signed by the Governor in June, the Act as amended
6 grants to MTA authority ‘to establish, construct,
7 expand, rehabilitate, improve, maintain,
8 reconstruct and operate. Stewart airport * * * *
9 an airport for the accommodation of domestic and
10 international air freight transport, general
11 aviation and such other airport purposes for which
12 there may be need from time to time.’” Id. at
13 1288.
14 . . . .
15 “Land prices are rising. The announced
16 Stewart program seems to have enhanced this
17 overall trend in the affected area. The land
18 involved is sparsely occupied at present. It
19 makes sense to take it and set it aside now
20 for airport use rather than to wait for a
21 time when homes and other buildings will need
22 to be razed and other intervening interests
23 will have to be bought. In sum, the taking
24 of title now has obvious justification in
25 terms of prudence and fairness. Especially
26 when considered with the merits of the case,
27 the opposed claims of hardship threatened
28 hardship fall short of making a compelling
29 case for plaintiffs. Id. At 1292.
30 . . . .
31 County of Orange
32 “In a joint statement issued by Governor
33 Rockefeller and members of the Legislature on
34 May 18, 1971, it was pointed out that the acreage
35 to be taken was ‘needed for runway extension,
36 facilities and a buffer zone’; that primary
37 emphasis would be placed on a ‘phased development
38 of Stewart as an air cargo shipping center and
39 general aviation facility’; that other development
40 of the airport would be made in close co-operation
41 with local officials and would be consistent with
42 sound environmental standards and practices.” Id.
43 at 694.
2
1 . . . .
2
3 “It is, of course, fundamental that private
4 lands may be taken only for a public use or
5 purpose and only when the lands are necessary for
6 such public use or purpose. Here, the Legislature
7 has authorized the acquisition of lands for the
8 purposes of ‘establish[ing], construct[ing and]
9 expand[ing] an airport for the accommodation of
10 domestic and international air travel and freight
11 transport, general aviation and such other airport
12 purposes for which there may be need from time to
13 time.’ Whether such purpose or use is public in
14 character and whether the lands were in fact
15 acquired for such use, are questions to be
16 determined by the court (see, e.g., Fifth Ave.
17 Coach Lines v. City of New York, 11 N.Y. 2d 342,
18 349; Denihan v. Enterprises v. O’Dwyer, 302 N.Y.
19 451). But at this stage in the history of aviation
20 and public transportation, there can be no genuine
21 doubt that the creation or expansion of an airport
22 is a public purpose for which the power of eminent
23 domain may be validly exercised (Hesse v. Rath 249
24 N.Y. 436; General Municipal Law, §§ 350-357; 2-A
25 Nichols, Eminent Domain, § 7.514). Nor is there
26 any genuine issue with respect to whether the land
27 taken by the defendants was taken for the purposes
28 authorized by the Legislature. The complaint, the
29 description and map referred to in the complaint,
30 and the public pronouncements of the defendants
31 referred to in the verification of the complaint,
32 all indicate that the land was acquired for the
33 purposes set forth in the Stewart Airports Acts.
34 There is in fact no allegation in the complaint
35 that the land was acquired for some other
36 purpose.” Id. at 697.
37
38 The Stewart Properties are located in the towns of
39 Hamptonburgh, Montgomery, Newburgh, and New Windsor in Orange
40 County, New York. Generally speaking, they are bordered by
41 Interstate Route 84 to the north, NYS Route 17K to the northeast,
42 the New York State Thruway (Interstate Route 87) to the east, NYS
43 Route 207, Forrester Road and NYS Route 208 to the south, and
3
1 former Contrail lands to the west. The average north-south
2 dimension of the site is approximately 2.5 miles and the average
3 east-west dimension is approximately 6.5 miles.
4 Existing on-site development consists primarily of the
5 airfield and related airport facilities, U.S. Military Academy
6 facilities, an Air National Guard base and U.S. Department of
7 Agriculture Animal Import and Export centers. There is also 180-
8 acre industrial park in the northeast portion of the site,
9 including a 70-acre U.S. Postal Service General Mail Facility and
10 a cargo facility recently completed north of the runways.
11 The proposed action is to implement a plan that would allow
12 for the development of portions of the Stewart Properties that
13 would assist in promoting the utilization of the airport as a
14 regional airport; to generate revenues for the State of New York
15 and in doing so, reduce the state taxpayer’s subsidy of Stewart’s
16 operation; to promote economic development in the area of the
17 airport; accommodate projected regional commercial development
18 demand in a sound and responsible manner; and return lost taxes
19 and school districts costs by providing for aviation compatible
20 development on State-owned property.
21 Despite the reams of factual and legal argument which have
22 been discussed in this case, the determinative issue which I now
23 address is relatively concise; viz. should section 4(f) have been
24 applied? In the holding from which I now dissent, my two
4
1 colleagues answer this question in the affirmative. I, however,
2 agree with the district court which held to the contrary.
3 Section 4(f) provides in substance that the Secretary of
4 Transportation may approve a transportation project requiring the
5 use of publicly owned land of a public park or recreation area of
6 significance “only if there is no prudent and feasible
7 alternative to using that land; and the project includes all
8 possible planning to minimize harm to the park or recreation
9 area. . . .” Plaintiff’s concede that there never has been a
10 formal designation of the land at issue as park or recreational
11 land. SPARC I, 225 F. Supp. 2d at 228. Judge Miner states,
12 however, with little citation of supportive authority, that “for
13 almost thirty years, state and local governments have determined
14 that the Stewart Buffer Lands and the Crestview Lake property
15 were to be principally used as a park,” and that “[t]his
16 uninterrupted period of use cannot be characterized as interim.”
17 This statement, I believe, misinterprets the basic intent of
18 the fish and wildlife management program as set forth in #11-0501
19 of New York’s Environmental Conservation Law, which states that
20 its purpose is to obtain “on the privately owned or leased lands.
21 . . of the state practices of . . . wildlife management which
22 will preserve and develop the . . . wildlife resources of the
23 state and improve access to them for recreational purposes by the
24 people of the state.” It also misapplies the provisions of
5
1 #11-0501 dealing with Cooperation Agreements, which states in
2 paragraph c) that such an agreement “shall state the period
3 during which it shall be in force and may provide for renewal.
4 It may also provide for termination before the expiration of such
5 period and for the conditions upon which and the manner in which
6 any privilege of termination may be exercised.”
7 The statement also misinterprets the meaning of the word
8 “interim.” This word is used in connection with airport
9 transportation claims and generally obviates the need for section
10 4(f)definition. See, e.g., FAA Order 5050.4A Airport
11 Environmental Handbook, Transportation Law.
12 The agreement at issue has constantly been described as
13 “interim.” (JA 1962, 1988, 2037, 2413.) Indeed, the plaintiffs
14 have clearly recognized the terminable or interim nature of the
15 cooperation agreements. For example, Plaintiff-Appellant, Orange
16 County Federation of Sportsmen’s Clubs, Incorporated, responding
17 to the 1994 Solicitation of Interest, used the following
18 illustrative statements, “ON BEHALF OF THE SPORTSMEN OF THIS
19 COUNTY, THE FEDERATION STRONGLY RECOMMENDS THAT THE EXISTING
20 INTERIM USES, SUCH AS, BUT NOT LIMITED TO, HUNTING, FISHING,
21 TRAPPING, BIRDING, BIKING & HIKING ON STEWART PROPERTIES BE
22 CONTINUED IN PERPETUITY.”
23 . . . .
6
1 “THE SPORTSMEN PROPOSE PERMANENCY TO THE INTERIM
2 RECREATIONAL USES AT STEWART, AND THE DEDICATE THE 6,500 ACES AT
3 STEWART FOREVER WILD.”
4 . . . .
5 This request was, of course, not honored. This fact gives
6 added significance to FAA Order 5050.4A of the Airport
7 Environmental Handbook, which provides that where property is
8 owned by and designated for use by a transportation agency and a
9 park or recreation use of the land is being made only on an
10 interim basis, a section 4(f)ruling ordinarily is not required.
11 We are left with the proposition that the use of the land was
12 made only on an interim basis, and section 4(f) does not apply to
13 temporary use. See Collin County, Tex. v. Homeowners eminent,
14 716 F.Supp. 953, 972 (N.D. Tex 1989).
15 Moreover, all of this underscores the point that we are not
16 required to determine if the decision by the Federal Highway
17 Administration not to apply a section 4(f) analysis is correct in
18 our eyes. We need only determine that its decision is
19 reasonable. See SPARC I, 225 F. Supp. 2d at 227. Given the fact
20 that the land in question was acquired for transportation
21 purposes, was always intended to be used for transportation
22 purposes, and was only transferred on an interim basis with a
23 termination provision to realize this intent, the decision of the
24 Federal Highway Administration was eminently reasonable.
7
1 When the decision to create and enlarge Stewart Airport was
2 made, hundreds of residents were evicted from the property
3 involved. This was not intended for the benefit of hunters and
4 other recreationists. However, conversion to airport use could
5 not be completed overnight. Permissive interim use by
6 recreationists did not accomplish what never was intended.
7 I would affirm the district court’s holding in total.
8
9
8 | 01-03-2023 | 04-24-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3987010/ | I concur in the opinion of Mr. Justice ELIAS HANSEN. The views I entertain on the subject of underground water were expressed in the case of Wrathall v. Johnson (Utah) 40 P.2d 755.
MOFFAT, J., did not participate herein. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3390804/ | The appeal brings for review a final decree *Page 250
determining the priority of liens claimed by appellant and appellee in favor of appellee.
The appellant has stated five questions in brief filed on its behalf, which are as follows:
"1. Where a promissory note is in the hands of a payee and the fund from which said note is payable is limited to `My Ocean Frontage in Palm Beach, Florida,' can such clause incorporated in said note be explained by parol testimony of the parties to said note?
"2. Are the words `To be paid out of the first moneys coming to me or due me out of the lands known as my Ocean Frontage in Palm Beach, Florida,' such words of limitation as to require testimony of the parties to designate what lands, if any, are covered by the terms of said promissory note?
"3. Where a mortgagee makes a loan on certain property, which had theretofore been covered by a lis pendens, which had been dismissed prior to the actual making of said loan, and where the decision of the lower court in dismissing said lis pendens is reversed by the superior court under a stipulation of the parties to said cause, does the reversal reinstate the lis pendens as of the date of its dismissal so that said mortgagee is charged with notice thereof?
"4. Is the stipulation, filed in this cause and entered into by the complainant R.E. Robinson and the defendant Bula E. Croker, binding on the defendant Crown Corporation insofar that said stipulation would create a lien or charge on the lands involved in this suit if prior thereto no such lien had been acquired by the complainant, and the defendant Crown Corporation acquired its rights subsequent to the execution of the original note but prior to the actual signing of the stipulation?
"5. Where an attorney enters into an agreement with *Page 251
a client that he will accept a contingent fee payable out of certain lands owned by the client in case the prosecution of a lawsuit is successful and prior to the termination of said lawsuit, on the outcome of which said contingent fee is based, the attorney induces his client to vary the terms of said contract by agreeing to pay said attorney a stipulated sum in cash, there being no consideration for said letter agreement, can the attorney ignore his first contract of employment and insist that the terms and conditions of the latter agreement be enforced?"
The record shows that this suit was instituted in July, 1931, by R.E. Robinson, one of the appellees, for the purpose of foreclosing a lien claimed by him on account of a certain note payable to him and executed by Bula E. Croker, one of the appellees, which note contains, among other things, the following provision: "To be paid out of the first moneys coming to me or due to me out of the lands known as my Ocean Frontage at Palm Beach, Florida, whether such moneys become due to me or my estate before or after the expiration of one year, herein fixed period, and this note shall be, and is, a charge upon all of said Ocean Frontage, or moneys coming to me or my estate from said Ocean Frontage."
Lis pendens was filed in connection with the suit. The lispendens was dismissed on August 4, 1931. Appeal was taken therefrom resulting in the reversal of the order of the Chancellor. Mandate was issued January 2, 1934. The loan made by Crown Corporation to Bula E. Croker on some of the property involved in this suit was made October 5, 1931, subsequent to the order of dismissal of the lis pendens and while the appeal from that order was pending in the Supreme Court.
The Bill of Complaint was amended in March, 1932, by *Page 252
making the appellant Crown Corporation a party defendant on the theory that appellant took this mortgage from Mrs. Croker with notice and knowledge of the lien claimed by Robinson on the same property and prayed that the lien of appellee Robinson be adjudged to be prior and superior to the lien of Crown Corporation.
While the appeal from the order dismissing the lis pendens was pending, on the 6th day of February, 1933, the complainant and Mrs. Croker entered into a compromise agreement by the terms of which the claim of Robinson was reduced to $57,500.00 which the defendant Bula Croker agreed to pay on or before two years from date. In that agreement Mrs. Croker agreed to secure the payment thereof by Robinson holding his lien as set forth in the original note. This stipulation or agreement between Mrs. Croker and Mr. Robinson was without the knowledge of Crown Corporation and after the mortgage on tract "B" as described in the bill of complaint was executed by Mrs. Croker to Crown Corporation. In accordance with the compromise agreement a decree was entered against the defendant Bula Croker and in favor of the complainant Robinson. In the decree it was specifically stated to be only in adjudication of their respective rights and not in any way an attempt to construe priorities of other defendants.
The record shows that the notice of appeal from the order dismissing the lis pendens was entered on the day after the order was entered and, therefore, Crown Corporation took its mortgage subject to the lis pendens in the event that the order dismissing the lis pendens should be reversed by the Supreme Court. See Webb Furniture Co. v. Everett, 105 Fla. 292, 141 So. 115; Marshall
Spencer Co. v. Peoples Bank of Jacksonville, 88 Fla. 190,101 So. 358.
So, we hold that Crown Corporation was charged with *Page 253
constructive notice of the lien claimed by Robinson. Aside from that, there is substantial evidence that Crown Corporation, through its officer, had actual notice thereof.
The other questions presented may be reduced to one question and that is: "Does it appear from the record herein that the Chancellor clearly erred in adjudicating on conflicting evidence that the lien of the appellee Robinson is superior to the lien of the appellant Crown Corporation, the adjudication appearing in the final decree as follows: `The court having examined and weighed the evidence presented in this cause, as contained in the Master's Report of Testimony, and as presented by the record, and the Court being of the opinion and finding that the equities of this cause are with the complainant, and that the lien asserted by the complainant in this cause, as found and determined (subject to the further order of this Court) in the aforesaid decree of this court in this cause of the 8th day of March, 1935, is paramount, prior and superior to the lien of the mortgage from Bula E. Croker to the defendant Crown Corporation, dated the 5th day of October, 1931, and recorded in the public records of Palm Beach County, Florida, in Mortgage Book 234, page 217, encumbering the following described property, to-wit: North Two Hundred and Thirty feet (230') of Government Lot 1, of Section 11, Township 44 South, Range 43 East, and the South Five Hundred and Fifty feet (550') of Government Lot 2, of Section 2, Township 44 South, Range 43 East (except right of way for Ocean Boulevard),' and to the rights and equities asserted by the said defendant Crown Corporation in this cause," the determining point being whether or not the lands described in the decree were a part of the lands referred to in the note executed by Mrs. Croker to Mr. Robinson hereinabove referred to. *Page 254
It is not necessary for us to attempt to delineate the evidence pro and con which, with the exhibits, covers more than 500 pages of the record.
It is too well settled to require any citation of authorities that where the findings of a Chancellor on questions of fact are supported by substantial evidence, or where the evidence is conflicting and there is substantial evidence to support such findings, they will not be set aside by the appellate court unless the appellant makes it clearly to appear that substantial error was committed by the Chancellor in his conclusions, or that the evidence clearly shows them to be erroneous. See Wilson v. Duncan, 92 Fla. 470, 112 So. 48; Cobb v. Cobb, 82 Fla. 287,89 So. 869; Davidson v. Collier, 75 Fla. 783, 78 So. 983; Edgar v. Bacon, et al., 97 Fla. 679, 122 So. 107; Day et ux. v. Weadock,101 Fla. 333, 134 So. 525. See also cases cited in 1936 Cumulative Supplement to Encyclopedic Digest of Florida Reports, page 36, Sec. 169.
Whether or not by the terms of the note above referred to a lien was created on the property last above described was a question of law to be determined by the Chancellor but that question of law was required to be determined upon the probative force of evidence as to whether or not the lands involved in the decree in this case were included within the lands as described in the note. The lands described in the note were "lands known as my Ocean Frontage in Palm Beach, Florida" and the lien or charge created by the note was "upon all of said Ocean Frontage." Parol evidence was admissible to show a more definite and complete description of the lands embraced within the description contained in the note. There was some conflict in this evidence but it was conclusively proven that certain lands in Palm Beach, Florida, were known as Mrs. Croker's *Page 255
Ocean Frontage. There was conflict as to whether or not her home place, which was ocean frontage, was included within that description or if the description "all my Ocean Frontage" only applied to the other lands adjacent to her home place and also having ocean frontage and still other lands which were separated from these parcels by an intervening strip of land but which other parcel of land was also ocean frontage.
There was substantial evidence to support the Chancellor's construction and adjudication that the description in the note applied to and contemplated the entire ocean frontage owned by Mrs. Croker in Palm Beach, Florida, including the lands upon which her home was located.
The description in the note was not void for uncertainty but parol evidence was admissible to show what lands were known as "all" of Mrs. Croker's "Ocean Frontage." Tranum v. Wilkinson,81 Ala. 408, 1 So. 201; Jones v. McKimsie, 135 Ga. 60, 68 S.E. 788; Cruikshank v. Wilmer, 93 Ky. 19, 18 S.W. 1018; Eggleston v. Watson, 53 Miss. 339.
If the description included lands not intended by Mrs. Croker to be charged with the lien her remedy was by suit to reform the description, which course she did not pursue. The appellant Crown Corporation was bound by the description as it appeared in the note and was charged with the notice of claim of lien thereunder on the lands described in the notice of lis pendens which notice described a tract of land as the same is described in the decree.
The appellant has not met the burden of showing that the findings of the Chancellor, affirmed by the Chancellor, were clearly erroneous. Therefore, the decree should be affirmed and it is so ordered.
Affirmed.
WHITFIELD, TERRELL, BROWN and DAVIS, J.J., concur. *Page 256 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3995839/ | This is an appeal by the defendant, Powell, from a judgment of the superior court for Kitsap county sentencing him to the penitentiary upon a third conviction of the violation of our intoxicating liquor prohibition law. Appellant was, by count 1 of *Page 111
the information, charged with the offense of unlawfully selling intoxicating liquor in that county, and further charged with two prior convictions of violation of our intoxicating liquor prohibition law. By counts 2, 3, 4, 5 and 6 of the information, appellant was further charged with additional later violations of our intoxicating liquor prohibition law. Being arraigned, appellant pleaded not guilty. Thereafter he asked to be permitted to withdraw his plea of not guilty and enter a plea of guilty to count 1 of the information. The trial judge permitted this to be done, and caused record thereof to be entered as follows:
"Defendant asks permission to withdraw plea of not guilty heretofore entered and enter a plea of guilty to count one of information. Permission granted and defendant pleads that he is guilty to count one as charged in information. Sentence deferred."
Appellant was then permitted to remain at large, evidently upon bail. Nothing further was done in the case until a considerable time thereafter, when appellant was, by a show cause order, cited into court looking to the rendering of final judgment against him upon his plea of guilty to count 1 of the information. He then resisted the rendering of final judgment against him upon his plea of guilty to count 1. Appellant's contentions in that behalf being overruled, the court rendered final judgment against him, sentencing him to the penitentiary upon his plea of guilty to count 1 of the information. It is from this judgment that this appeal is prosecuted.
[1] It is contended in behalf of appellant that the trial court erred in deferring sentence. His counsel seems to rely upon the following mandatory language of Rem. Comp. Stat., § 2190:
"After verdict of guilty or finding of the court against the defendant, if the judgment be not arrested *Page 112
or a new trial granted, the court must pronounce judgment."
We assume that this language is mandatory as applicable to a plea of guilty as well as to a verdict of guilty; but we cannot see that the mere deferring of sentence upon appellant's plea of guilty deprived the court of the power to later render judgment and sentence thereon. Appellant also seems to contend in the alternative that this was a suspension of sentence under the following language of Rem. Comp. Stat., § 2280:
"Whenever any person never before convicted of a felony or gross misdemeanor shall be convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under the age of ten years, or rape, the court may in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by such court, . . ."
This language plainly contemplates the staying of execution of sentence after it is pronounced in the form of a judgment. Statev. Stuttard, 151 Wash. 694, 277 P. 83. When the court entered of record, "Sentence deferred," no sentence judgment had been rendered against appellant. This, we think, answers counsel's seeming further contention that, if the deferring of sentence did not free him, it was in effect a suspension of sentence, and that, in the light of the showing made, the court was not warranted in revoking such suspension.
[2] It is contended in behalf of appellant that the trial court erred in denying his motion to permit the withdrawal of his plea of guilty and enter a plea of not guilty. This was a ruling within the discretion of the trial court, which we should not disturb in the absence of a clear abuse of such discretion.State v. *Page 113 Cimini, 53 Wash. 268, 101 P. 891; State v. Salmeier,148 Wash. 627, 269 P. 798. Plainly, the record brought here does not call for our interference with this ruling of the court.
[3] Some contention is made in behalf of appellant, and presented to us practically without argument, that the court erred in denying his motion to arrest judgment upon the statutory ground, "That the facts stated in the . . . information do not constitute a crime or misdemeanor." Rem. Comp. Stat., § 2183, subd. 2. We think we need say no more than that this contention is without merit.
Some contention is made in behalf of appellant that the trial court erred to his prejudice in failing to formally dispose of the charges in the information embodied in counts 2 to 6, inclusive. We assume that nothing has been done concerning these counts since appellant withdrew his plea of not guilty and entered his plea of guilty to count 1, though the record brought here does not so inform us. We are unable to see that the question of disposal of those counts of the information is of any consequence in our present inquiry. If further prosecution is sought under any of them, appellant will have ample opportunity to protect his legal rights in resisting such prosecution.
[4] It is contended in behalf of appellant that the court erred in sentencing him as for a third conviction, as charged in count 1 of the information, upon his plea of guilty thereto. Our intoxicating liquor prohibition law, in so far as need be here noticed, referring to sections of Remington's Compiled Statutes, reads as follows:
"7338. Every person convicted of a violation of the provision of this act, for which the punishment is not specifically prescribed, shall be punished by a fine of not more than two hundred and fifty dollars or by imprisonment *Page 114
in the county jail for not more than ninety days or by both such fine and imprisonment.
"Every person convicted of the sale, barter or exchange of intoxicating liquor or of the keeping or transporting of any such liquor with intent to sell, barter or exchange the same shall be punished by a fine of not less than $250 nor more than $500 and by imprisonment in the county jail for not less than sixty days nor more than six months. Every person convicted a second time of the sale, barter or exchange of intoxicating liquor or of the keeping or transporting of any such liquor with intent to sell, barter, or exchange the same shall be punished by a fine of not less than $500 nor more than $1,000, and by imprisonment in the county jail for not less than four months nor more than one year.
"7339. Every person convicted the second time of a violation of any provision of this act, for which the punishment is not specifically prescribed, shall be punished by a fine of not less than two hundred nor more than five hundred dollars and by imprisonment in the county jail for not less than thirty days nor more than six months and every person convicted the third timeof a violation of any provision of this act shall, for such thirdand each subsequent conviction, be punished by imprisonment inthe penitentiary for not less than one nor more than fiveyears."
We italicize the language we deem controlling of this contention. It is argued that, since this is a case of a charge and conviction upon a plea of guilty of an unlawful sale of intoxicating liquor, for a first and second conviction of which punishment is specifically prescribed by § 7338, such specific provision precludes consideration of a conviction of an unlawful sale of intoxicating liquor, as a third conviction of a violation of our intoxicating liquor prohibition law as a basis for increase of punishment to the degree of a penitentiary offense. It seems to us that the above italicized language of § 7339 has reference to a conviction of the unlawful sale of intoxicating liquor, when it is a third *Page 115
conviction of violation of our intoxicating liquor prohibition law, as well as to a conviction of any other violation of our intoxicating liquor prohibition law when it is a third conviction of violation thereof. Sections 7338 and 7339, above quoted, were enacted as amendments to our original intoxicating liquor prohibition act. See Laws of 1915, ch. 2, p. 16; Laws of 1917, ch. 19, p. 61; Laws of 1921, ch. 122, p. 299. So those sections are both a part of one act. While the second conviction provision of § 7338 is special as to the offenses therein specified, we are of the opinion that the third conviction provision of § 7339 is applicable to all third convictions of violation of the act. We conclude that the court did not err in rendering judgment against appellant sentencing him to the penitentiary upon a third conviction under § 7339, above quoted.
The judgment is affirmed.
MILLARD, MAIN, FRENCH, and TOLMAN, JJ., concur. *Page 116 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3988086/ | Frank R. Hill was convicted in the district court of the crime of obtaining property by false pretense, from which judgment of conviction he has appealed. The alleged errors relied on for reversal are directed, first, to the complaint and information charging the offense, second, to the bill of particulars and amendments thereto which the court directed the state to file in connection with the information, third, to certain evidence which was introduced, and fourth to the verdict of guilt returned.
As to the complaint and information, it is contended that the same are insufficient; that, in so far as the pleading here is authorized by the provision of our Reformed Code of Criminal Procedure (and more particularly Sec. 105-21-8 and 105-21-47 thereof) adopted by the legislature in 1935, said reformed procedure contravenes Article 1, Sec. 12 of the Constitution of the State and also the 6th Amendment to the Constitution of the United States.
The particular sections of the statute above referred to are, so far as material, as follows:
105-21-8. Charging the Offense. (1). The information or indictment may charge, and is valid and sufficient if it charges the offense for which the defendant is being prosecuted in one or more of the following ways: *Page 458
"(a) By using the name given to the offense by the common law or by a statute.
"(b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged.
"(2) The information or indictment may refer to a section or subsection of any statute creating the offense charged therein, and in determining the validity or sufficiency of such information or indictment regard shall be had to such reference." (L. 1935, Ch. 118, Sec. 1.)
"105-21-47. Forms for certain offenses. The following forms may be used in the cases in which they are applicable:
* * *
"False pretenses — A.B. obtained an automobile from C.D. by means of false pretenses."
The information, following closely the language of the complaint, charges the defendant with "obtaining property by false pretenses in an amount over $50 in value, committed as follows: "That the said Frank R. Hill on or about the 31st day of July, 1939, at Delta, County of Millard, State of Utah, did obtain 112,905 pounds of alfalfa hay of the value of $536.30 from Dudley and Reed Crafts by means of false pretenses."
It is clear that the information adequately complies both with the requirements of subdivision (a) of Section 105-21-8 and the requirements of Sec. 105-21-47. The contention is, however, that these sections violate the provisions of Article 1, Section 12, of our Constitution, which provides that:
"In criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation against him, to have a copy thereof, * * *."
In considering this attack on the statute, we have examined the available similar statutes of the various states having like constitutional provisions and the adjudications thereunder. We have found no state where a so-called short *Page 459
form has been adopted where it has been held unconstitutional. There are three states which have provisions almost identical to ours with respect to indictments and informations. They are Iowa (see Code of Iowa 1939, Chapter 638, Sec. 13732.01 et seq.), New Mexico (see Rules of Pleading, Practice and Procedure in Judicial Proceedings in Courts other than the Supreme Court, adopted by the Supreme Court of New Mexico by authority of Chapter 84, Laws of 1933, 38 N.M., p. VII, Article 44, Sec. 35-4402 et seq.), and Rhode Island (see Public Laws of Rhode Island 1932, Chapter 1954, Section 1). See also the Code of Criminal Procedure of Louisiana (Act No. 2 of 1928, Code of Criminal Procedure) Art. 227 et seq. In each of these states the constitutionality of sections similar to those in our state quoted above has been upheld in cases involving a variety of criminal charges. Iowa: State v.Henderson, 215 Iowa 276, 243 N.W. 289 (larceny from a building in the nighttime); State v. Engler, 217 Iowa 138, 251 N.W. 88
(possession of burglary tools with intent to commit the crime of burglary); State v. Keturokis, 224 Iowa 491, 276 N.W. 600
(crime of rape); State v. Evans, 229 Iowa 932, 295 N.W. 433
(obtaining property by false pretenses). New Mexico: State v.Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1 (crime of murder). Rhode Island: State v. Smith, 56 R.I. 168, 184 A. 494
(conspiracy to steal); State v. Domanski, 57 R.I. 500,190 A. 854 (crime of robbery); Louisiana: State v. Capaci,179 La. 462, 154 So. 419 (crime of murder); State v. Simpson,184 La. 190, 165 So. 708 (obtaining money by use of confidence game).
See, also, cases from the following states having statutes of a modified nature all of which have been held constitutional: California: Penal Code, Pt. 2, Title V, Chap. II § 948 et seq.People v. Wiezel, 39 Cal. App. 2d 657, 104 P.2d 70; People
v. Torp, 40 Cal. App. 2d 187, 104 P.2d 542; People v. Dunn,40 Cal. App. 2d 6, 104 P.2d 119, certiorari denied 311 U.S. 701,61 S. Ct. 139, 85 L.Ed. Illinois: (Smith-Hurd St. c. 38, Sec. 716)People v. Green, *Page 460 362 Ill. 171, 199 N.E. 278; People v. Gruber, 362 Ill. 278,200 N.E. 483; People v. Flynn, 305 Ill. App. 619,27 N.E.2d 669; People v. White, 307 Ill. App. 528, 30 N.E.2d 782. Wisconsin: Statutes 1933, Secs. 348.402, 348.403; Spoo v.State, 219 Wis. 285, 262 N.W. 696. See also New York cases ofPeople v. Farson, 244 N.Y. 413, 155 N.E. 724; and People v.Bogdanoff, 254 N.Y. 16, 171 N.E. 890, 69 A.L.R. 1378.
Without going into a detailed analysis of the constitutional question involved, we quote the language used in the Iowa case ofState v. Engler, supra, and the New Mexico case of State v.Roy, supra. Both of these cases relied on the analysis and reasoning of the New York Court of Appeals in the case ofPeople v. Bogdanoff, 254 N.Y. 16, 171 N.E. 890, 69 A.L.R. 1378, holding that the legislature might simplify the form of the indictment without violating the constitutional rights of the accused.
The question is discussed in State v. Roy, supra [40 N.M. 397,60 P.2d 653, 110 A.L.R. 1], in the following language:
"The defendant claims that the information in the instant case is violative of article 2, § 14, of the N.M. Const. * * *
"This constitutional provision establishes the principle that trial for a felony must be preceded by a sworn accusation. This is one of the ancient immunities and privileges of English liberty. Under such constitutional provisions, as under the common law, a person accused of crime is entitled to be advised of the crime he is charged with by an indictment or presentment by a grand jury, or an information by a judicial officer representing the state.
* * *
"In New Mexico we have provided a simple means of indictment or information by which, and within the Constitution, an accusation can be presented against one accused of a crime which sufficiently identifies the charge against the accused, so that his conviction or acquittal may prevent a subsequent charge for the same offense; notify the accused of the nature and character of the crime charged against him to the end that he may prepare his defense; and enable the court upon conviction to pronounce judgment according to the right of the case. *Page 461
"The form we have prescribed does not require the technical craftsmanship of an artist in rhematics for the drawing of an indictment. Validity is not sacrificed to prefection of form, nor is justice delayed or defeated by legalistic insistence upon statement of details which serve no useful purpose. People v.Bogdanoff, 254 N.Y. 16, 171 N.E. 890, 891, 69 A.L.R. 1378. We have provided that every accused shall be informed against as the defendant here insists he shall be informed against, in simple, understandable language of the crime he is charged with. This was done in the instant case.
* * *
"An information or indictment is sufficient if from its language and form those elements which the Constitution guarantees to an accused are therein found.
"We quote with approval from the able majority opinion in the case of People v. Bogdanoff, supra: `For generations attempts have been made, with varying degree of success, to simplify forms of indictment. Such attempts may not be thwarted by insistence upon the preservation of outworn legalistic formulas. "An indictment, then, within the meaning of the constitution, is nothing more than what it is defined to be by Blackstone" (4 Com. 302), "a written accusation, of one or more persons, of a crime or misdemeanor, preferred to, and presented by, a grand jury, upon oath." Wolf v. State, 19 Ohio St. 248. We may not hold that the framers of the Constitution intended that all the formalities of the old common-law indictments must remain forever inviolate. They intended, undoubtedly, that a written accusation of a crime must be presented by the grand jury before an accused may be held for trial upon a charge of felony. From the days of Magna Charta, the law of the land accorded an accused such protection against unfounded charges. The Legislature cannot dispense with a "written accusation" by the grand jury, but it can prescribe new forms of indictments, and dispense with some of its technical formalities. See Lougee v. State, 11 Ohio 68;State v. Schnelle, 24 W. Va. 767.'"
In the Engler case [217 Iowa 138, 251 N.W. 91], the Iowa Supreme Court held:
"There is no restriction upon the Legislature as to the method in which indictments shall be presented, nor is there any prescribed form, in the Constitution, required to be followed in giving the defendant the information required.
"Provisions similar to that contained in our Constitution are also contained in the Federal Constitution and the Constitutions of practically every state in the Union. *Page 462
"The reason for the constitutional protection afforded is that no person shall be held to answer for a felony, except upon indictment or presentment of a grand jury. Before a citizen can be held for trial, there must be a sufficient investigation by the grand jury to justify and require the charge to be made in an indictment.
"The rule requiring detailed specifications and particulars in the indictment is of judicial origin, based upon the common law. This rule is of long standing and was adopted in practically all of the states, including the United States.
* * *
"We do not mean to say that the Legislature can provide such an abbreviated form of indictment as would omit the character of a specific crime. All crimes in this state are made so by statute. The Legislature has the power to determine what constitutes a crime, and, when it has done so, it may also provide for giving the information of the crime necessary to be included in the indictment, for the information of the one accused."
The foregoing quotations, we think, succinctly state the views of the several courts which have spoken on the constitutional objection herein raised. In the light thereof it is unnecessary, in considering the constitutional sufficiency of the information before us, to determine whether a bill of particulars, provided for by Section 105-21-9 of the Criminal Procedure Statute, may or may not supply such facts as will give the accused "such information as he is entitled to under the constitution of this state" (105-21-9, Laws of Utah 1935) where the information or indictment fails so to do. See State v. Solomon, 93 Utah 70,71 P.2d 104; State v. Jessup, 98 Utah 482, 100 P.2d 969. That it may do so is the holding of the courts of Iowa, New Mexico, and New York. See State v. Engler, supra; State v. Roy.
supra; and People v. Bogdanoff, supra.
Without resort to such bill of particulars, the information in the instant case complied with those minimum requirements which the disenting opinion in the Bogdanoff case, supra [254 N.Y. 16,171 N.E. 896, 69 A.L.R. 1378], specified, viz.,
"This legal accusation consisted of two essentials * * * First, the accused is charged with having committed a crime, known to the *Page 463
law; and, second, the act which he did constituting that crime is stated."
It follows that the information in this case was sufficient. In so holding as to the information here examined, we, of course, express no opinion as to whether or not each 1 of the forms set out in Section 105-21-47, Laws of Utah 1935, meets such requirements.
In the case of State v. Evans, supra [229 Iowa 932,295 N.W. 434], the information "accused defendant of the crime of obtaining property by false pretenses in that, on or about October 18, 1938, he obtained from Addie Otto one Emmetsburg Investment Co-collateral Trust Note, Number 100, by false pretenses." The Iowa Supreme Court held this to be sufficient as against the contention that it failed to set out the value of the note.
That the bill of particulars furnished by the district attorney evidenced and the testimony revealed a different crime than that charged does not, in and of itself, demonstrate that the information filed did not comply with the constitutional provision invoked. It but reveals that the charging officer misapprehended the field encompassed by the statute under which the defendant was accused. By appropriate assignments of error, defendant complains, on such grounds, of his conviction.
In considering such assignments it may be helpful, at the outset, to set out the pertinent provisions of two sections of Chapter 18 of our Penal Code entitled "False Personation and Cheats."
Section 103-18-8, R.S.U. 1933, entitled "Obtaining Money by False Pretense," reads:
"Every person who knowingly and designedly, by false or fraudulent representations or pretenses, obtains from any other person any chose in action, money, goods, wares, chattels, effects or other valuable thing, with intent to cheat or defraud any person of the same, if the value of the property so obtained does not exceed $50, is punishable as in cases of petit larceny, and when the property so obtained is of the value of more than $50, the person so offending is punishable as in cases of grand larceny." *Page 464
This statute has been a part of the penal code since prior to 1898, Revised Statutes of Utah 1898, Section 4397.
The succeeding section, entitled "Obtaining Credit by False Representation," 103-18-9 provides:
"(1) Any person who knowingly makes or causes to be made, either directly or indirectly, or through any agency whatsoever, any false statement in writing respecting the financial condition or ability to pay of himself or any other person, firm or corporation in whom he is interested, or for whom he is acting, and thereby fraudulently procures in any form whatsoever either the delivery of personal property, the payment in cash, the making of a loan or credit, the extension of a credit, the discount of an account receivable or the making, acceptance, discount or indorsement of a bill of exchange or of a promissory note, either for the benefit of himself or such person, firm or corporation * * * is guilty of a misdemeanor, and shall be punished by a fine of not more than $1,000 or by imprisonment in the county jail for not more than six months, or by both."
This statute was first enacted in its present form in 1913. See Section 4397x, Laws of Utah 1913, p. 55. The 1913 enactment was amendatory of the same numbered section of Compiled Laws of Utah 1907, a statute of similar import first enacted in 1905. See Section 1, Chapter 88, Laws of Utah 1905.
At the time of the enactment of the 1913 statute, Section 4861, Compiled Laws of Utah 1907, provided that:
"False pretenses. Evidence in writing or proof by two witnesses. Upon a trial for having with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property, or valuable thing, the defendant shall not be convicted if the false pretense shall have been expressed in language, unaccompanied by a false token or writing, unless the pretense or some note or memorandum thereof be in writing, subscribed by or in the handwriting of the defendant, or unless the pretense be proved by the testimony of two witnesses, or that of one witness and corroborating circumstances; but this section shall not apply to a prosecution for falsely representing or personating another, and, in such assumed character, marrying, or receiving any money or property." *Page 465
This provision was likewise in existence since 1898 (See Section 4861, Revised Statutes of Utah 1898) and has since been in continuous effect. It now appears as Section 105-32-17, R.S.U. 1933.
Notwithstanding the somewhat stringent requirement of proof required to convict of the crime, as defined, of obtaining money by false pretenses, the legislature in enacting the later-enacted statute, now in 103-18-9, R.S.U. 1933, provided that the type of false representation there dealt with 2, 3 should be punished criminally only when made inwriting. And the species of representation legislated about was that respecting "the financial condition or ability to pay" of the one making the representation or of some person, firm or corporation for whom he was acting or in whom he was interested. It seems clear that any oral representation of this character unaccompanied by any independent false representation of an existing fact or any false token is not ground for criminal action. We need not inquire into whether or not prior to the enactment of Sec. 103-18-9 such representation was encompassed by 103-18-8. If it was, then by the later enactment the earlier was modified. If not, then the later statute covers a field not theretofore the subject of criminal legislation, and its terms bound that field. See Commonwealth v. Boyd, 181 Ky. 382,205 S.W. 390, wherein it is held that a statute practically identical to 103-18-9, repealed inconsistent provisions of a statute of similar import to 103-18-8. Compare: People v. Snyder,110 A.D. 699, 97 N.Y.S. 469; and People v. Rothstein,180 N.Y. 148, 72 N.E. 999, 1 Ann. Cas. 978; State v. Harris,116 Minn. 401, 133 N.W. 980.
In the instant case, the final bill of particulars proffered in conformity with the proof reads:
"That on or about the 31st day of July, 1939, at Delta, Millard County, Utah, Dudley Crafts discussed with the Defendant, Frank R. Hill, the sale of certain hay then belonging to Reed Crafts and I.R. Parker, which Dudley Crafts was then authorized to sell for the said owners; that at that time the defendant was the Vice-President *Page 466
and manager of the Hill Brothers Alfalfa Milling Company, a corporation; That in the course of the said discussion Dudley Crafts said to the defendant, `I want to know what your financial condition is before we let you have the hay,' and said further in substance that they absolutely would not let the defendants company have the hay unless its financial condition was such that they (Crafts) were sure to get their money. That in answer to the above the defendant said, `This time, Dudley we are going to tell you the truth about it, the fact is, we have enough outstanding accounts to pay every dollar we owe.' That the defendant said in substance that the Company, the said Hill Bros. Alfalfa Milling Company, was in good financial condition, and had enough outstanding accounts receivable to pay all its obligations. That the above statement of defendant was false and untrue, and said company was then solvent all of which defendant well knew: that Dudley Crafts relied upon the statements of the defendant as aforesaid and sold to the said Hill Bros. Alfalfa Milling Company 112,905 pounds of hay belonging to Reed Crafts and I.R. Parker for the sum of $536.30; that the same has not been paid except the sum of approximately $246.00. * * *"
It is contended first that this bill of particulars does not set out a crime of obtaining money or property by false pretenses contrary to the provisions of Section 103-18-8, R.S.U. 1933, but rather that its specifications evidence the obtaining credit by false representation, which if evidenced by a statement in writing would be a crime under Section 103-18-9, R.S.U. 1933.
It is elemental that where a bill of particulars is furnished it may not set out a different crime than 4 that charged in the information. People v. Bogdanoff, supra. There the court said:
"None the less the conviction cannot stand if the defendants by the form of the indictment have been precluded from challenging the assertion of the state that the crime with which they have been charged by accusation of the grand jury is the same crime for which the bill of particulars has been filed, and for which they have been tried and convicted."
It is palpable that this bill of particulars, detailing the evidence as to the representation and the manner of its being made, shows, first, an oral statement, second, a statement of facts which constitute a representation concerning *Page 467
"the financial condition or ability to pay" of the Hill Brothers Alfalfa Milling Company. Indeed, the pleader characterized the representation on the bill itself in stating:
"That the defendant said in substance that the Company * * * was in good financial condition and had enough outstanding accounts to pay all its obligations."
This is charging a misrepresentation almost in the words of Section 103-18-9.
As stated hereinabove, the crime charged by the information is that condemned by Section 103-18-8. Should we consider the ambit of such information sufficiently ambulant to encompass specifications showing a violation of Sec. 103-18-9, then compliance with the invoked constitutional 5 provision would require a holding that the bill of particulars may aid the information in furnishing the accused "such information as he is entitled to under the constitution of this state." Even so considered, an examination of such specifications and of the evidence adduced at the trial fail to show an essential element of the crime defined by Section 103-18-9, R.S.U. 1933, to wit: "false statement in writing." Hence the verdict and judgment cannot stand.
The judgment is reversed and the cause remanded with instructions to dismiss the complaint.
WOLFE and PRATT, JJ., concur.
MOFFAT, C.J., and LARSON, J., concur in the result. *Page 468 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/172004/ | FILED
United States Court of Appeals
Tenth Circuit
April 7, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
GENADY SLONIMSKY,
Petitioner - Appellant,
No. 08-1481
v. (D.C. No. 08-CV-01865-ZLW)
(D. Colo.)
JAMES E. ABBOTT; ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.
Petitioner-Appellant Genady Slonimsky, appearing pro se, seeks a
certificate of appealability (“COA”) allowing him to appeal the denial of his
petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. The
district court dismissed the action as untimely under the one-year limitations
period contained in 28 U.S.C. § 2244(d)(1). Slonimsky v. Abbott, No. 08-cv-
01865-BNB, 2008 WL 4838429 (D. Colo. Nov. 5, 2008). On appeal, he argues
that the cumulative effect of various alleged errors occurring at his 2000 trial
resulted in the denial of his due process rights. We deny a COA and dismiss the
appeal.
Mr. Slonimsky was convicted by a jury of first-degree burglary and an
associated crime of violence in June 2000. 1 R. Doc. 7, at 79-80 (Exhibit D).
The Colorado Court of Appeals affirmed on November 1, 2001. Id. at 122
(Exhibit F). Certiorari review was denied by the Colorado Supreme Court on May
20, 2002. Id. at 133 (Exhibit G). On July 10, 2002, Mr. Slonimsky filed a motion
for sentence reconsideration under Rule 35(b) of the Colorado Rules of Criminal
Procedure, which was denied on July 12, 2002. Id. at 96 (Exhibit D). On July 7,
2003, he filed a postconviction motion pursuant to Rule 35(a) and (c) of the
Colorado Rules of Criminal Procedure, which was also denied. Id. at 97 (Exhibit
D). The Colorado Court of Appeals affirmed the denial on May 11, 2006. People
v. Slonimsky, No. 05CA0188, 2006 WL 1280533 (Colo. Ct. App. May 11, 2006).
The Colorado Supreme Court denied certiorari review on August 28, 2006.
Slonimsky v. People, No. 06SC408, 2006 WL 2467538 (Colo. Aug. 28, 2006).
On March 7, 2007, Mr. Slonimsky again moved for postconviction relief, which
was denied on March 20, 2007. 1 R. Doc. 7, at 99 (Exhibit D). Finally, on June
25, 2008, Mr. Slonimsky filed another motion for relief, which was denied on
July 7, 2008. Id. He then filed his petition for habeas corpus relief, which was
denied as untimely by the district court on November 5, 2008. Slonimsky, 2008
WL 4838429, at *4. The district court further denied Mr. Slonimsky’s motion for
reconsideration on December 4, 2008. 1 R. Doc. 12, at 147.
In order for this court to grant a COA, Mr. Slonimsky must make “a
-2-
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Where, as here, the district court’s denial of habeas relief is based
on procedural grounds, he must demonstrate “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). A court need not pass on the constitutional issues raised by Mr.
Slonimsky if he cannot make a threshold showing that “jurists of reason could
conclude that the District Court’s dismissal on procedural grounds was debatable
or incorrect.” Id. at 485.
Habeas petitions are subject to a one-year limitations period, which runs
from the date a conviction becomes final, either by the conclusion of direct
review or the expiration of time to seek such review. 28 U.S.C. § 2244(d)(1)(A).
We calculate the one-year limitations period from that date; however, we do not
count the time during which a “properly filed application for State
post-conviction or other collateral review with respect to the pertinent
judgment . . . is pending.” 28 U.S.C. § 2244(d)(2).
Mr. Slonimsky’s direct appeal concluded on May 20, 2002, and his time to
seek certiorari review in the United States Supreme Court expired on August 18,
2002. See Sup. Ct. R. 13.1. He did not sign and mail his petition for habeas
relief until August 12, 2008. 1 R. Doc. 3; see Clark v. Oklahoma, 468 F.3d 711,
-3-
713 (10th Cir. 2006) (indicating our adherence to the prisoner mailbox rule). As
the district court discussed in its order, due to pending motions for postconviction
relief, Mr. Slonimsky’s limitations period is tolled from July 10, 2002, to July 12,
2002; from July 13, 2002, to August 27, 2002; July 7, 2003, to August 28, 2006;
March 7, 2007, to March 20, 2007; March 21, 2007, to May 5, 2007; and June 25,
2008, to July 7, 2008. See Slonimsky, 2008 WL 4838429, at *3. Given that 314
days passed between the expiry of his time to appeal the denial of his Rule 35(b)
motion on August 27, 2002, and his filing of a Rule 35(a) and (c) motion on July
7, 2003, and that 191 days passed between the Colorado Supreme Court’s denial
of certiorari review of the denial of his Rule 35(a) and (c) motion on August 28,
2006, and his filing of an additional postconviction motion on March 7, 2007, we
need not reach the remaining calculations. Mr. Slonimsky’s action is clearly
time-barred.
Of course, “‘rare and exceptional circumstances’” may call for the
equitable tolling of the limitations period. Gibson v. Klinger, 232 F.3d 799, 808
(10th Cir. 2000) (citation omitted). However, equitable tolling will only be
applied when a petitioner “diligently pursues his claim.” Young v. Davis, 554
F.3d 1254, 1258 (10th Cir. 2009). Mr. Slonimsky has not argued for equitable
tolling, nor can we find any evidence in the record establishing his eligibility for
such relief. The action was untimely.
We DENY a COA, DENY IFP status, and DISMISS the appeal. All
-4-
pending motions are DENIED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-5- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/170972/ | FILED
United States Court of Appeals
Tenth Circuit
July 15, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RONALD JOE SAMUELSON,
Plaintiff-Appellant, No. 08-3034
v. District of Kansas
UNITED STATES OF AMERICA, (D.C. No. 07-CV-1264-JTM-KMH)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA, KELLY and McCONNELL, Circuit Judges.
Plaintiff-Appellant Ronald Joe Samuelson initially failed to file federal tax
returns for five of the years between 1995 and 2003; later, he filed amended
returns for those years but did not pay any taxes. The Internal Revenue Service
assessed additional taxes, late filing penalties, other penalties, and interest for
those tax years, and after providing notice and an (unused) opportunity for a
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1.
hearing, levied Mr. Samuelson’s wages. Some, but not all, of the resulting tax
liens were later released. On September 7, 2007, Mr. Samuelson filed suit to
quiet title to his wages, on various grounds.
In a Memorandum and Order filed on January 16, 2008, the district court
dismissed certain of the counts of the complaint, and granted summary judgment
in favor of the government on the other counts. On appeal, Mr. Samuelson makes
four arguments: (1) that the government had not proven he was a taxpayer, (2)
that the government had not proven he was liable for a federal tax, (3) that the
government had not proven he was subject to its legislative jurisdiction, and (4)
that the government did not provide a “competent witness” to prove its
allegations. These arguments border on the frivolous, if they do not pass over the
line. The tax assessments were made in proper form and proven through
appropriate documentation. We affirm for the reasons stated by the district court.
The judgment of the United States District Court for the District of
Kansas is AFFIRMED.
Entered for the Court
Michael W. McConnell
Circuit Judge
-2- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4231801/ | Young v Madison-Oneida Bd. of Coop. Educ. Servs. (2017 NY Slip Op 08960)
Young v Madison-Oneida Bd. of Coop. Educ. Servs.
2017 NY Slip Op 08960
Decided on December 22, 2017
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 22, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CARNI, CURRAN, AND WINSLOW, JJ.
1218 CA 16-01953
[*1]KENNETH M. YOUNG, PLAINTIFF-APPELLANT,
vMADISON-ONEIDA BOARD OF COOPERATIVE EDUCATIONAL SERVICES, JACKLIN G. STARKS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS SUPERINTENDENT, SUSAN CARR, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS ASSISTANT SUPERINTENDENT FOR INSTRUCTION, DEFENDANTS-RESPONDENTS, ET AL., DEFENDANT.
O'HARA, O'CONNELL & CIOTOLI, FAYETTEVILLE (STEPHEN CIOTOLI OF COUNSEL), FOR PLAINTIFF-APPELLANT.
THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (CHARLES C. SPAGNOLI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Oneida County (Bernadette T. Clark, J.), entered June 15, 2016. The order granted the motion of defendants for summary judgment dismissing the amended complaint.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff was formerly employed by defendant Madison-Oneida Board of Cooperative Educational Services (BOCES) as Assistant Director of Alternative Education, a probationary, nontenured administrative position. When the term of his appointment expired, plaintiff was not reappointed to his position. He commenced this action alleging, inter alia, unlawful retaliatory action under Labor Law § 740 (2), the "whistle-blowers' statute," by BOCES and the individual defendants, who were BOCES employees during the period of plaintiff's employment there.
Supreme Court properly granted defendants' motion seeking summary judgment dismissing the amended complaint. To prevail on his Labor Law § 740 (2) cause of action, plaintiff had the burden of proving that defendants retaliated against him because he "disclose[d] or threaten[ed] to disclose to a supervisor or to a public body an activity, policy or practice of [BOCES] that [was] in violation of law, rule or regulation which violation creat[ed] and present[ed] a substantial and specific danger to the public health or safety" (§ 740 [2] [a]), or because he "object[ed] to, or refuse[d] to participate in any such activity, policy or practice in violation of a law, rule or regulation" (§ 740 [2] [c]). Defendants, however, established as a matter of law that the conduct on their part that was alleged by plaintiff did not amount to violation of law, rule or regulation under the statute. Defendants' alleged practice of enrolling students before receiving the students' individual education plans (IEPs) or behavioral intervention plans (BIPs), even if proven, did not constitute an "actual violation of law to sustain a cause of action" under Labor Law § 740 (2) (Bordell v General Elec. Co., 88 NY2d 869, 871 [1996]). Even assuming, arguendo, that defendants violated BOCES intake procedures by enrolling students before receiving their IEPs or BIPs, we conclude that those internal procedures do not qualify as a law, rule or regulation under the statute (see Cohen v Hunter Coll., 80 AD3d 452, 452 [1st Dept 2011]). Finally, plaintiff cannot premise his whistle-blower claim upon defendants' alleged conduct in deceptively miscoding Violent and Disruptive Incident Reports (VADIRs) (see 8 NYCRR 100.2 [gg]). Plaintiff conceded that he was unaware of the VADIRs [*2]prior to the commencement of this action, and thus he cannot claim the protection of Labor Law § 740 for disclosing or threatening to disclose the alleged deceptive miscoding of VADIRs, or in objecting to or refusing to participate therein.
Entered: December 22, 2017
Mark W. Bennett
Clerk of the Court | 01-03-2023 | 12-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4553804/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/07/2020 12:07 AM CDT
- 607 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
Shelter Insurance Company, appellee and
cross-appellee, v. Santos Gomez, Jr., et al.,
appellees and cross-appellants, Carlene S.
Calder, Personal Representative of the
Estate of Jason Kraeger, deceased,
appellant, and Kate Benjamin,
appellee and cross-appellee.
___ N.W.2d ___
Filed July 31, 2020. No. S-18-927.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law for which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by the court
below.
4. Motor Carriers. Neb. Rev. Stat. § 75-363 (Cum. Supp. 2014) adopts,
as Nebraska law, several parts of the Federal Motor Carrier Safety
Regulations and makes them applicable to certain intrastate motor carri-
ers not otherwise subject to federal regulation.
5. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
- 608 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
6. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
7. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
8. Motor Carriers: Insurance. Under the plain language of Neb. Rev.
Stat. § 75-363 (Cum. Supp. 2014) and part 387 of title 49 of the Code
of Federal Regulations adopted therein, compliance with the minimum
financial responsibility requirements is the responsibility of the motor
carrier, not the insurer.
9. ____: ____. Neither Neb. Rev. Stat. § 75-363 (Cum. Supp. 2014) nor
part 387 of title 49 of the Code of Federal Regulations adopted therein
require an insurer to issue a policy with liability limits that satisfy a
motor carrier’s minimum level of financial responsibility.
Appeal from the District Court for Box Butte County:
Derek C. Weimer, Judge. Affirmed.
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder,
Chaloupka & Longoria, P.C., L.L.O., for appellant.
Raymond E. Walden and Michael T. Gibbons, of Woodke &
Gibbons, P.C., L.L.O., for appellee Shelter Insurance Company.
Amy L. Patras, of Crites, Shaffer, Connealy, Watson, Patras
& Watson, P.C., L.L.O., for appellees Santos Gomez, Jr., et al.
Steven W. Olsen and Paul W. Snyder, of Simmons Olsen
Law Firm, P.C., for appellee Kate Benjamin.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Through the enactment of Neb. Rev. Stat. § 75-363 (Cum.
Supp. 2014), the Nebraska Legislature adopted several parts of
the Federal Motor Carrier Safety Regulations and made those
regulations applicable to certain intrastate motor carriers not
- 609 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
otherwise subject to the federal regulations. 1 One of the fed-
eral regulations adopted by statute sets out minimum levels of
financial responsibility for motor carriers. 2 The central ques-
tion in this appeal is whether that federal regulation imposes a
duty on insurers to issue policies that satisfy a motor carrier’s
minimum level of financial responsibility. Because we con-
clude that compliance with the financial responsibility require-
ments under § 75-363 and the pertinent federal regulations is
the duty of the motor carrier and not its insurer, we affirm the
judgment of the district court.
I. UNDISPUTED FACTS
1. Collision
On May 27, 2015, Jason Kraeger was riding his bicycle on
a highway in Morrill County, Nebraska, when he was struck by
a 1988 Peterbilt semi-tractor being driven by Santos Gomez,
Jr. (Gomez Jr.). The negligence of Gomez Jr. is not in dispute.
Kraeger died from injuries sustained in the collision.
The Peterbilt involved in the collision was owned by the
driver’s parents, Santos Gomez, Sr., and Julia Gomez, who
operate Santos Gomez Trucking, an unincorporated commer-
cial trucking business operating exclusively within Nebraska
(collectively Gomez Trucking).
2. Shelter’s Policy
At the time of the collision, Gomez Trucking insured the
Peterbilt under a commercial automobile liability policy
with Shelter Insurance Company (Shelter). When applying
for insurance with Shelter, Gomez Trucking represented that
it had no federal motor carrier number and that its trucks
made no deliveries outside Nebraska. It requested a bodily
injury liability limit of $1 million. Gomez Trucking used local
Shelter agent Kate Benjamin to procure the Shelter policy
1
See Cruz v. Lopez, 301 Neb. 531, 919 N.W.2d 479 (2018).
2
See § 75-363(3)(d) (adopting “Part 387” of title 49 of the Code of Federal
Regulations).
- 610 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
and to request periodic adjustments to the liability limits of
such policy.
Gomez Trucking had a business practice of adjusting the
liability limits on the Shelter policy either up or down, depend-
ing on how its trucks were to be used. The apparent goal of
this practice was to minimize the premium cost over time by
reducing the liability limit when a truck was not in use. The
evidence shows that after initially purchasing liability lim-
its of $1 million, Gomez Trucking requested, and Benjamin
made, the following adjustments to the liability limits on the
Shelter policy:
• On November 24, 2014, the liability limit was reduced from
$1 million to $100,000;
• On December 4, 2014, the liability limit was increased to
$1 million;
• On March 15, 2015, the policy was renewed and the liability
limit was reduced to $500,000;
• On March 19, 2015, the liability limit was reduced again to
$100,000;
• On April 15, 2015, the liability limit was increased to
$1 million;
• On April 20, 2015, the liability limit was reduced to $100,000.
On the day of the fatal collision, May 27, 2015, Julia vis-
ited Benjamin’s office twice, both times seeking to adjust the
liability limits. The first time, Julia asked to increase the lia-
bility limit from $100,000 to $500,000, explaining that Gomez
Jr. was going to be using the Peterbilt. Benjamin entered data
on the requested policy limit change into the computer sys-
tem, and Julia left Benjamin’s office. About 15 minutes after
Julia left Benjamin’s office, she returned, noticeably upset.
She told Benjamin that Gomez Jr. had collided with a bicy-
clist while driving the Peterbilt, and she asked whether the
liability limit could be increased again. Benjamin told Julia
she could do so, but the higher limit would not “backdate” to
an accident that already had occurred. The precise time of the
collision is not apparent from our record, but the appellant’s
- 611 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
brief states the collision occurred just before Julia’s first visit
to Benjamin’s office.
As discussed in the next section, under § 75-363(3)(d) and
the federal regulation adopted therein, intrastate motor carri-
ers are required to obtain and have in effect certain minimum
levels of financial responsibility. Because those regulatory
requirements are central to the dispute which gave rise to this
declaratory judgment action, we set them out now and discuss
them in more detail later in our analysis.
3. § 75-363
At the time of the collision, § 75-363 provided, in perti-
nent part:
(1) The parts, subparts, and sections of Title 49 of the
Code of Federal Regulations listed below, as modified in
this section . . . in existence and effective as of January 1,
2014, are adopted as Nebraska law.
(2) Except as otherwise provided in this section, the
regulations shall be applicable to:
(a) All motor carriers, drivers, and vehicles to which
the federal regulations apply; and
(b) All motor carriers transporting persons or property
in intrastate commerce[.]
Subsection (3) of § 75-363 contained a list of the federal
regulations adopted as Nebraska law, and it included 49 C.F.R.
§ 387 (2014) (Part 387), which sets out the financial responsi-
bility requirements for motor carriers. 3
Part 387 is titled “Minimum Levels of Financial Respon
sibility for Motor Carriers,” and it is composed of several sub-
parts. Only subpart A, which applies to for-hire motor carriers
transporting property, 4 is pertinent to this case. The purpose of
that subpart is to prescribe
the minimum levels of financial responsibility required
to be maintained by motor carriers of property [and] to
3
§ 75-363(1) and (2) (Cum. Supp. 2014).
4
49 C.F.R. § 387.3(a).
- 612 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
create additional incentives to motor carriers to main-
tain and operate their vehicles in a safe manner and to
assure that motor carriers maintain an appropriate level
of financial responsibility for motor vehicles operated on
public highways. 5
Under this federal regulation, “No motor carrier shall oper-
ate a motor vehicle until the motor carrier has obtained and
has in effect the minimum levels of financial responsibility as
set forth in § 387.9 of this subpart.” 6 That section identifies
different minimum levels of financial responsibility depend-
ing on the nature of the property being transported; the
type of vehicle being used; and whether it is being operated
in interstate, foreign, or intrastate commerce. 7 The lowest
level of financial responsibility is $750,000, and it applies
to for-hire vehicles operated in interstate or foreign com-
merce with a gross vehicle weight rating of 10,001 pounds or
more transporting nonhazardous property. 8 Higher levels of
financial responsibility are required for vehicles transporting
certain hazardous materials in interstate, intrastate, and for-
eign commerce. 9
As such, in Nebraska, § 75-363(2) makes the federal regu-
lations just described applicable not only to the motor carriers,
drivers, and vehicles to which the federal regulations already
apply, 10 but also to “[a]ll motor carriers transporting persons
or property in intrastate commerce,” 11 with certain excep-
tions. 12 The record suggests that before the fatal collision,
5
49 C.F.R. § 387.1.
6
49 C.F.R. § 387.7(a).
7
See 49 C.F.R. § 387.9(1) through (4).
8
49 C.F.R. § 387.9(1).
9
See 49 C.F.R. § 387.9(2) through (4).
10
§ 75-363(2)(a).
11
§ 75-363(2)(b).
12
See, e.g., § 75-363(5) (excluding certain farm trucks operated only in
intrastate commerce).
- 613 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
the parties were generally unaware of the minimum financial
responsibility requirements imposed by § 75-363(3)(d) and
Part 387. 13
4. Wrongful Death Action
In 2015, the duly appointed personal representative for
Kraeger’s estate filed a wrongful death and survival action
against “Gomez Jr. and Santos Gomez, Sr., d/b/a Santos Gomez
Trucking.” Shelter offered to settle the suit on behalf of the
defendants for $100,000—the liability limit Shelter asserted
was in effect at the time of the collision. The personal rep-
resentative rejected Shelter’s offer, but eventually reached a
settlement directly with the defendants. Under that settlement,
the defendants confessed judgment in the amount of $750,000
and assigned to the personal representative any claim they may
have against Shelter and/or Benjamin under the policy issued
to Gomez Trucking.
5. Declaratory Judgment Action
In 2016, Shelter filed a declaratory judgment action in the
district court for Box Butte County. It sought a declaration
of the applicable liability limit under the policy issued to
Gomez Trucking for damages arising from the fatal bicycle
collision of May 27, 2015. Named as defendants and interested
parties in the declaratory judgment action were Benjamin,
Gomez Trucking, Gomez Jr., and the personal representative of
Kraeger’s estate.
As relevant to the issues on appeal, Shelter’s operative
amended complaint alleged that on the date of the fatal col-
lision, Shelter insured Gomez Trucking under a commercial
automobile liability policy with liability limits of $100,000,
13
But see Neb. Rev. Stat. § 75-369 (Reissue 2018) (requiring Department of
Motor Vehicles and county treasurers to distribute declaration regarding
federal regulations to each applicant who registers commercial motor
vehicle subject to § 75-363; applicants required to acknowledge they have
read declaration and are aware Federal Motor Carrier Safety Regulations
have been enacted into state law).
- 614 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
and further alleged that the Peterbilt was a covered vehicle on
that policy. Shelter also alleged that the personal representa-
tive for Kraeger’s estate had demanded damages in excess of
Shelter’s $100,000 policy limits and was asserting Shelter was
“obligated to afford coverage in excess of that stated in the
policy due to certain federal regulations.”
Benjamin answered the amended complaint and gener-
ally joined in Shelter’s request for a declaratory judgment.
Summarized, Benjamin’s answer alleged the Shelter policy was
originally issued with liability limits of $1 million and that all
subsequent adjustments to the liability limits were made at the
insured’s request.
The personal representative answered Shelter’s amended
complaint both in her capacity as the personal representative
of Kraeger’s estate and as the assignee of Gomez Trucking
and Gomez Jr. The personal representative’s answer generally
denied Shelter’s allegation that the liability limits in place at the
time of the collision were $100,000, and she asserted that under
§ 75-363 and the federal regulations adopted therein, Benjamin
was required to sell, and Shelter was required to issue, a policy
with liability limits of at least $750,000. However, no request
was made to reform the policy. Instead, the personal represent
ative took the position that the parties’ real dispute was not
based in contract at all, but in professional negligence.
In that regard, the personal representative filed a counter-
claim against Shelter and a cross-claim against Benjamin, seek-
ing to recover $750,000 in damages for negligence and demand-
ing a jury trial. The cross-claim alleged Benjamin was negligent
in failing to advise Gomez Trucking that § 75-363 required
intrastate motor carriers to have a minimum of $750,000 in
liability coverage. The counterclaim alleged Benjamin’s neg-
ligence should be imputed to Shelter under an agency theory.
Shelter and Benjamin denied any negligence and raised several
affirmative defenses, including that Gomez Trucking was con-
tributorily negligent in failing to obtain the minimum levels of
financial responsibility required by § 75-363.
- 615 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
6. Summary Judgment
All parties moved for summary judgment. In an order entered
September 20, 2018, the district court disposed of all issues in
the case by granting the summary judgment motions filed by
Shelter and Benjamin, and overruling those filed by all other
parties. The parties’ arguments, and the court’s reasoning, are
summarized below.
(a) Declaratory Judgment
In seeking and opposing summary judgment on the declara-
tory judgment, the parties did not dispute that the Shelter
policy issued to Gomez Trucking had a liability limit of
$100,000 at the time of the fatal collision. But they did dispute
whether such a limit was enforceable, given the provisions of
§ 75-363(3)(d).
The personal representative argued the $100,000 liability
limit was void and unenforceable as a matter of law because
it failed to comply with the minimum financial responsibil-
ity requirements imposed by § 76-363 and Part 387. Shelter
and Benjamin argued these provisions had no impact on the
enforceability of the $100,000 liability limit, because § 75-363
and Part 387 make it the responsibility of the motor carrier, not
the insurer, to obtain and have in effect the required minimum
levels of financial responsibility.
After analyzing the provisions of § 75-363 and Part 387, the
district court agreed with Shelter and Benjamin, reasoning:
[T]here is no reference to be found within the operative
statute and regulations that specifically create a duty on
the part of an insurer to ascertain or confirm the existence
of sufficient insurance policies, sureties or resources to
satisfy the minimum required amount of insurance under
[49 C.F.R.] § 387.9. All of the relevant provisions relate
to requirements of or for the “motor carrier”. The motor
carrier is to obtain and have in effect the minimum lev-
els of financial responsibility. The motor carrier is not to
operate a motor vehicle until it has so done. Neb. Rev.
- 616 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
Stat. § 75-363 puts the onus on the motor carrier to com-
ply with the applicable C.F.R. provisions.
The district court also found it significant that under the fed-
eral regulations, “financial responsibility” was not limited to
insurance policies, but included surety bonds and approved
self-insurance. 14
The district court ultimately concluded there were no genu-
ine issues of material fact related to Shelter’s amended com-
plaint for declaratory judgment. It found that § 75-363 imposed
no duty on Shelter or Benjamin to “only sell or market an
insurance policy [to Gomez Trucking for] $750,000 or more,”
and it ultimately concluded, as a matter of law, that the
$100,000 liability limit in place at the time of the accident was
enforceable.
(b) Cross-Claim and Counterclaim
Regarding the cross-claim and counterclaim for professional
negligence, the district court also found Shelter and Benjamin
were entitled to judgment as a matter of law. Relying on
Hansmeier v. Hansmeier, 15 the court found Benjamin had
no legal duty to advise Gomez Trucking about the finan-
cial responsibility requirements of § 75-363 and no duty
to sell Gomez Trucking a liability policy that satisfied the
motor carrier’s minimum level of financial responsibility under
that statute. 16
The personal representative timely appealed from the sum-
mary judgment order, and Gomez Trucking and Gomez Jr.
cross-appealed. We moved the case to our docket on our own
motion.
14
See, e.g., 49 C.F.R. §§ 387.5 and 387.7(b) and (d).
15
Hansmeier v. Hansmeier, 25 Neb. Ct. App. 742, 752, 912 N.W.2d 268, 275-
76 (2018) (holding “an insurance agent has no duty to anticipate what
coverage an insured should have. . . . Rather, when an insured asks an
insurance agent to procure insurance, the insured has a duty to advise the
insurance agent as to the desired insurance”).
16
See, also, Dahlke v. John F. Zimmer Ins. Agency, 245 Neb. 800, 515
N.W.2d 767 (1994).
- 617 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
II. ASSIGNMENTS OF ERROR
The personal representative assigns a single error: The dis-
trict court erred in granting declaratory judgment in favor of
Shelter and Benjamin and declaring the liability limit of the
Shelter policy was $100,000 “irrespective of the statutorily-
required minimum” under § 75-673. Similarly, the cross-appeal
of Gomez Trucking and Gomez Jr. assigns it was error to grant
summary judgment in favor of Shelter because its policy did
not provide “lawful coverage.”
III. STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. 17
[2] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that party
the benefit of all reasonable inferences deducible from the
evidence. 18
[3] Statutory interpretation presents a question of law for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 19
IV. ANALYSIS
As a threshold matter, we note that neither the appellant nor
the cross-appellants assigned error to the trial court’s judg-
ment in favor of Benjamin and Shelter on the professional
17
JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71
(2019).
18
Id.
19
Id.; Cruz, supra note 1.
- 618 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
negligence cross-claim and counterclaim. Instead, their assign-
ments of error focus exclusively on the district court’s declara-
tory judgment ruling which interpreted § 75-363(3)(d) and the
federal regulations incorporated therein. We limit our analysis
accordingly. 20
1. Minimum Levels of Financial
Responsibility Under
§ 75-363 and Part 387
[4] As stated earlier, § 75-363 adopts, as Nebraska law,
several parts of the Federal Motor Carrier Safety Regulations
and makes them applicable to certain intrastate motor carriers
not otherwise subject to federal regulation. 21 Since 2006, one
of the federal regulations included in § 75-363 has been Part
387, 22 which governs minimum levels of financial responsibil-
ity for motor carriers. This case presents our first opportunity
to consider the financial responsibility requirements imposed
by § 75-363 and Part 387, and the parties urge significantly
different interpretations.
The appellant and the cross-appellants argue that § 75-363
and Part 387 require insurers, when issuing policies to intra-
state motor carriers, to provide liability limits that will satisfy
the motor carrier’s minimum financial responsibility under 49
C.F.R. § 387.9. They contend that the Peterbilt was required to
have a minimum level of financial responsibility of $750,000
and argue that any policy providing lower limits was “illegal” 23
and unenforceable.
20
State v. Ferrin, 305 Neb. 762, 770-71, 942 N.W.2d 404, 411-12 (2020)
(“[t]o be considered by an appellate court, an alleged error must be both
specifically assigned and specifically argued in the brief of the party
asserting the error”).
21
See Cruz, supra note 1.
22
See 2006 Neb. Laws, L.B. 1007, § 13, codified as § 75-363(3)(d)
(adopting 49 C.F.R. § 387).
23
See, brief for appellant at 16, 18, 19, and 21; brief for appellees Gomez
Trucking and Gomez Jr. on cross-appeal at 41.
- 619 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
Shelter and Benjamin generally argue that § 75-363 and
Part 387 put the burden on the motor carrier to obtain and
maintain the required minimum levels of financial respon
sibility and do not require an insurer to issue a policy with
liability limits that satisfy the motor carrier’s financial respon-
sibility. They contend that by enacting § 75-363 and Part 387,
the Legislature sought to regulate motor carriers, not insur-
ers, and they point out that Part 387 permits motor carriers to
meet their minimum level of financial responsibility through
more than one policy of insurance, and using methods other
than insurance. 24
[5-7] In considering the competing interpretations advanced
by the parties, we are guided by settled principles. Statutory
language is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and
unambiguous. 25 Components of a series or collection of stat-
utes pertaining to a certain subject matter are in pari materia
and should be conjunctively considered and construed to deter-
mine the intent of the Legislature, so that different provisions
are consistent, harmonious, and sensible. 26 It is not within the
province of the courts to read a meaning into a statute that is
not there or to read anything direct and plain out of a statute. 27
We apply these rules of statutory construction both to § 75-383
and to Part 387, because that federal regulation has been
adopted as Nebraska law.
Before beginning our analysis, we pause to note that our
appellate record does not include evidence of the gross weight
rating of the Peterbilt or the nature of the load, if any, being
transported at the time of the accident. Consequently, while the
parties appear to generally agree the Peterbilt was the type of
24
See 49 C.F.R. §§ 387.5 and 387.7(b) and (d).
25
In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).
26
Id.
27
State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019).
- 620 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
vehicle described in 49 C.F.R. § 387.9(1) and thus was subject
to minimum financial responsibility of $750,000, we express
no opinion in that regard. Instead, as we explain further below,
we conclude that even if the Peterbilt was the type of vehicle
described in 49 C.F.R. § 387.9(1), the district court was cor-
rect to conclude that Part 387 imposes the minimum financial
responsibility requirements only on the motor carrier, not on
the insurer.
2. Compliance With § 75-363 and
Part 387 Is Responsibility
of Motor Carrier
The plain language of both § 75-363 and Part 387 focuses
exclusively on regulating motor carriers. Section 75-363 makes
the selected federal regulations applicable to “[a]ll motor car-
riers transporting . . . property in intrastate commerce” and to
the vehicles and drivers of such motor carriers. 28
Similarly, Part 387 applies only to “for-hire motor carriers,” 29
and the stated purpose of the regulation is to create additional
incentives for “motor carriers to maintain and operate their
vehicles in a safe manner and to assure that motor carriers
maintain an appropriate level of financial responsibility for
motor vehicles operated on public highways.” 30 The financial
responsibility requirements under Part 387 are directed to the
motor carrier, requiring that “[n]o motor carrier shall operate
a motor vehicle until the motor carrier has obtained and has
in effect the minimum levels of financial responsibility as set
forth in [49 C.F.R. § 387.9].” 31
[8] Given the plain language of § 75-363 and Part 387, we
conclude that compliance with the minimum financial respon-
sibility requirements is the responsibility of the motor carrier,
not the insurer.
28
§ 75-363(2)(b) (emphasis supplied).
29
49 C.F.R. § 387.3(a) (emphasis supplied).
30
49 C.F.R. § 387.1 (emphasis supplied).
31
49 C.F.R. § 387.7(a) (emphasis supplied).
- 621 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
3. Motor Carriers Can Satisfy Minimum
Financial Responsibility Requirements
Through Combination of Resources
Importantly, Part 387, and the federal statute on which that
regulation is based, 32 allows a motor carrier to meet its mini-
mum financial responsibility through more than just a single
insurance policy. The federal statute provides that a “motor
carrier may obtain the required amount of financial respon-
sibility from more than one source provided the cumulative
amount is equal to the minimum requirements.” 33 Further, that
federal statute generally authorizes financial responsibility to
be established using “one or a combination of the following,”
including insurance, a guarantee, a surety bond, or qualifi-
cation as a self-insurer. 34 Part 387 similarly permits proof
of the required level of financial responsibility to be shown
through “[p]olicies of [i]nsurance,” surety bonds, or authorized
self-insurance. 35
The interpretation of Part 387 proposed by the appellant and
the cross-appellants does not accommodate, and would require
that we read out of the federal regulation altogether, those
provisions allowing motor carriers to combine more than one
policy, and use more than one method, to meet the minimum
financial responsibility requirement under Part 387.
4. Part 387 Does Not Require Insurers to Issue
Policy With Liability Limits That Satisfy
Motor Carrier’s Minimum Level of
Financial Responsibility
The appellant and the cross-appellants repeatedly character-
ize the $100,000 liability limit in Shelter’s policy as illegal
or unlawful under Part 387. The appellant relies on Steffen v.
32
See 49 U.S.C. § 31139 (2012).
33
49 U.S.C. § 31139(f)(3).
34
49 U.S.C. § 31139(f)(2).
35
49 C.F.R. § 387.7(d).
- 622 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
Progressive Northern Ins. Co. 36 to argue that Shelter should
not be permitted to issue a policy containing less than the
statutorily required coverage and to argue that the minimum
financial responsibility requirements of Part 387 should be
read into the Shelter policy. We find the appellant’s position in
this regard contrary to the plain language of Part 387, and we
find the appellant’s reliance on Steffen to be misplaced.
It is true there are some Nebraska statutes which mandate
the type and amount of coverage insurers must provide when
issuing an automobile liability policy. For instance, Neb.
Rev. Stat. § 44-6408 (Reissue 2010) provides, “No policy
insuring against liability imposed by law for bodily injury,
sickness, disease, or death suffered by a natural person aris-
ing out of the ownership, operation, maintenance, or use of
a motor vehicle . . . shall be delivered, issued for delivery,
or renewed” unless it provides uninsured and underinsured
motorist coverage with limits of $25,000 per person and
$50,000 per accident. Similarly, other statutes within the
Uninsured and Underinsured Motorist Insurance Coverage
Act 37 (UUMICA) mandate definitions of an uninsured motor
vehicle 38 and an underinsured motor vehicle, 39 list avail-
able exclusions, 40 and address the priority of payment when
multiple policies apply. 41 As such, the plain language of the
UUMICA seeks to regulate the issuance of automobile insur-
ance policies in Nebraska and places the burden of complying
with certain statutory provisions directly on the insurer. For
36
Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d 730
(2008) (insurers may not issue policies that carry terms and conditions less
favorable to insured than those provided in Uninsured and Underinsured
Motorist Insurance Coverage Act).
37
Neb. Rev. Stat. §§ 44-6401 to 44-6414 (Reissue 2010).
38
See § 44-6405.
39
See § 44-6406.
40
See §§ 44-6407 and 44-6413.
41
See § 44-6411.
- 623 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
the sake of completeness, we note the Shelter policy included
uninsured and underinsured motorist coverage in limits higher
than required by § 44-6408.
As this court made clear in Steffen, insurers may not issue
policies that carry terms and conditions less favorable to the
insured than those provided in the UUMICA. 42 When the terms
of such a policy are less favorable than the UUMICA requires,
the UUMICA, and not the policy, will be controlling. 43
But neither Steffen nor its reasoning apply here. Unlike the
compulsory provisions of the UUMICA, § 75-363 and Part
387 do not regulate the terms and conditions of insurance poli-
cies; instead, their purpose is to regulate motor carriers. The
plain language of § 75-363 applies only to motor carriers as
defined in that statute, and the stated purpose of Part 387 is
to “assure that motor carriers maintain an appropriate level of
financial responsibility for motor vehicles operated on public
highways.” 44 In construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered
in its plain, ordinary, and popular sense. 45
[9] The district court correctly concluded that neither
§ 75-363 nor Part 387 require an insurer to issue a policy with
liability limits that satisfy a motor carrier’s minimum level of
financial responsibility.
5. Declaratory Judgment
Correctly Decided
For the reasons set out above, we conclude the district
court was correct in finding, as a matter of law, that Shelter
was not required by the provisions of § 75-363 and Part 387
to issue Gomez Trucking a policy with liability limits of at
42
Steffen, supra note 36.
43
See id.
44
49 C.F.R. § 387.1.
45
Steffen, supra note 36.
- 624 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SHELTER INS. CO. v. GOMEZ
Cite as 306 Neb. 607
least $750,000 and that the $100,000 liability limit in place
at the time of the fatal collision was neither inconsistent with
nor repugnant to Nebraska law. Our conclusion in this regard
is compelled by the plain language of § 75-363 and Part 387,
both of which place the burden of compliance on the motor
carrier, and our reasoning is consistent with that of other courts
to have considered similar questions. 46
V. CONCLUSION
Finding no merit to the assigned errors, we affirm the dis-
trict court’s judgment.
Affirmed.
46
See, e.g., Illinois Central R. Co. v. Dupont, 326 F.3d 665 (5th Cir. 2003)
(financial responsibility under Part 387 is directed at motor carrier and
does not impose duty on insurer to make sure motor carrier complies
with requirements); North Carolina Farm Bureau Mut. Ins. Co., Inc.
v. Armwood, 361 N.C. 576, 653 S.E.2d 392 (2007) (reversing decision
to reform commercial automobile insurance policy to reflect minimum
liability limit of $750,000, reasoning federal motor carrier regulations
place duty to provide minimum level of financial responsibility on motor
carrier, not insurer); Howard v. Quality Xpress, Inc., 128 N.M. 79, 82, 989
P.2d 896, 899 (N.M. App. 1999) (“regulatory scheme [in Part 387] appears
to place the burden of compliance with the compulsory insurance coverage
requirements upon the motor carrier, not the insurer”). | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3390926/ | The record in this case discloses that the appellant, Clarence E. Turner, plaintiff below, operated a liquor package store at 3596 N.W. 27th Avenue, Miami, Florida. He filed in the Circuit Court of Dade County, Florida, a bill in equity and therein prayed for a restraining order against the City of Miami from the issuance of a similar license to operate a liquor package store to B B Stores, Inc., on the ground the proposed location was less than 2500 feet from the Turner's package store place of business and fell within the inhibitions of Ordinance No. 2896 of the City of Miami. On final hearing the injunction was denied and the bill dismissed. An application to amend the bill was by an appropriate order denied and the plaintiff below appealed.
It is within the power of the officials of the City of Miami to determine whether or not the proposed location of the package store of B B Stores, Inc., is within 2500 feet of an existing licensee, to-wit, the package store of Clarence E. Turner, located at 3596 N.W. 27th Avenue in the City of Miami. If the proposed location is more than 2500 feet then a *Page 318
license may be issued under Ordinance No. 2896. One of the essential questions presented here is the authority or right of Clarence E. Turner to maintain this suit in equity against the City of Miami as its objective unquestionably is to prevent or stifle competition within the trade area. It is generally held that a license to operate a package store for the sale of whiskey is at most a mere personal and temporary permit or privilege to be enjoyed so long as its conditions and restrictions are fully complied with — it authorizes to be done that which could not be done without it. Its issuance is a matter not of right but of legislative grace and may be extended, limited or denied. City of Miami Beach v. Patrician Hotel Co., 145 Fla. 716, 200 So. 213; Am. Jur. 296, par. 73. Authorities have not been cited to show that the plaintiff below, as a holder of a license to operate a package store issued by the City of Miami, has the right to maintain a suit in equity to restrain the city from issuing a similar license to a potential competitor.
The case of Baker v. State ex rel. Hi-Hat Liquors, Inc.,159 Fla. 286, 31 So.2d 275, was a mandamus proceeding to require the State Beverage Department to revoke a retail liquor package store license previously issued to Cliff Baker on the ground that his place of business was within three hundred feet of a school site, in violation of the statute. Baker and Hi-Hat hold identical licenses and Hi-Hat's place of business wasbeyond the prescribed 300 feet zone, while Baker's was within the prescribed 300 feet zone. These parties are competitors in the sale of intoxicating liquors and the purpose of the suit was to eliminate Baker as a competitor.
We held that Hi-Hat did not have such an interest in the controversy as would permit it to maintain a mandamus suit to eliminate a potential competitor. We in part said (text 31 So.2d page 276):
"Neither licensee had anything more than a permit to engage in the liquor business. Each had the same right and privileges. The law did not restrict competition between them, nor were they allotted any exclusive territorial areas. The profits or commercial advantages which Hi-Hat might gain in *Page 319
the elimination of Baker's competition are too elusive and uncertain to sustain the action."
The order dismissing the bill of complaint entered in the lower court is affirmed.
THOMAS, C. J., TERRELL and SEBRING, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3390930/ | A mortgage was foreclosed on property described in the mortgage, bill of complaint and final decree as follows:
"Lot 18, Block 23, Crescent Beach Subdivision on Siesta Key in said County and State as said subdivision is shown by a plat thereof recorded in Plat Book 1 at page 79, Public Records of Sarasota County, Florida."
A more accurate description of the property was the following, as described in a petition for writ of assistance:
"Lot 18, Block 23, of the subdivision of Crescent Beach Development Company's Subdivision known as Sarasota Beach, according to plat thereof of record in Plat Book 1, page 76 to 81, inclusive."
Without seeking to reform the description of the land contained in the mortgage and mortgage foreclosure proceedings, the purchaser at foreclosure sale filed petition for writ of assistance to secure possession of the property at last above described. This appeal in this case is from the court's order awarding a writ of assistance after a hearing and specific finding that the property as described in the petition for writ of assistance was and is the same as that *Page 638
described in the mortgage, foreclosure proceedings and final decree.
We agree with counsel for appellant that a petition for writ of assistance must follow the description of land as contained in the final decree, and that if the description in the foreclosed mortgage is erroneous, and such erroneous description has been carried into the foreclosure proceedings, the petition for writ of assistance cannot undertake to have corrected that which can only be reached by a supplemental bill to reform the mortgage and foreclosure proceedings and thereby re-foreclose the mortgage under a correct description.
But our conclusion in this case is that both descriptions, that is, the description in the mortgage and the description in the writ of assistance, do refer to the same property in that both refer to the same recorded plat and both refer to Lot 18 of Block 23 of such recorded plat, whether the plat is correctly entitled or not.
The essential part of the description is to be found in the reference made to the lot and block number and the particular plat on which each of these numbers appears. In the present case the description in its essential particulars reads: "Lot 18, Block 23, * * * according to plat * * * recorded in plat book 1 at page * * * 79 * * *." Insofar as other non-essential matters contained in the descriptions as stated are concerned, conflicts and uncertainties therein must yield to the stated lot number and block designation, both descriptions appearing to refer to the same plat, that is, to a plat to be found on page 79, Public Records of Sarasota County.
Since the same plat will be found by reference to any page of plat book 1 beginning with page 76 and ending with page 81, both descriptions necessarily refer to one and the *Page 639
same plat and both lot and block numbers are necessarily the same, there being no duplicate lot and block numbers on the plat. The case is therefore one of patent not latent ambiguity. And the error, if any, in the first description is self-correcting, because both descriptions will guide a surveyor to the same identical symbolic square on the same identical plat in the same identical plat book in the same clerk's office. See Neves v. Flannery, 111 Fla. 608, 149 Sou. Rep. 618.
It follows that the decree appealed from must be affirmed, and it is so ordered.
Affirmed.
ELLIS and TERRELL, J. J., concur.
WHITFIELD, P. J., and BROWN and BUFORD, J. J., concur in the opinion and judgment. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3853034/ | The question is whether relator, William J. Crow, a commissioned officer in the Officers' Reserve Corps of *Page 447
the United States, now called into active service as a major in the army, can continue to hold the office of mayor of the City of Uniontown.
Crow became mayor on the first Monday of January, 1940, his salary being $200 a month. On May 27, 1941, the President proclaimed a national emergency, and all members of the Officers' Reserve Corps were ordered to active duty. Crow, who had been a commissioned officer in the Reserve Corps since 1925, was appointed a major in the United States Army, his compensation, with perquisites, being approximately $430 per month. On June 4, 1941, he reported for duty at Aberdeen Proving Grounds, Aberdeen, Maryland, where he is still stationed, or at least was stationed at the time this case was argued. On July 8, 1941, the Court of Common Pleas of Fayette County appointed respondent, George B. Smith, as mayor in place of Crow. The latter thereupon filed a suggestion for a writ of quo warranto and, the writ having been granted, respondent moved to quash it. From an order of the court quashing the writ relator appeals.
As far as the question of practice is concerned, respondent's use of a motion to quash was proper, because the statutory duty of a respondent to plead or demur "has not displaced the motion to quash as a method of calling attention to a fatal defect of substance in the suggestion": Commonwealth ex rel. Margiotti v.Union Traction Co., 327 Pa. 497, 511, 512, 194 A. 661, 668.
If the problem before us were one merely of public policy, much, no doubt, could be said on both sides. On the one hand it might be urged that if public office had to be surrendered upon accepting a commission in the army it would unjustly penalize those who are patriotically giving their services to the Republic in this critical hour. On the other hand there must be borne in mind the fact that practically all who are leaving their civilian occupations for military service — whether professional or business men, artisans or unskilled laborers — are *Page 448
thereby surrendering the profits, salaries and wages pertaining to their ordinary vocations, and the question would naturally arise why those holding public office should be exempt from making the same sacrifice that falls to the lot of others who join the armed forces. Furthermore, paramount as is the importance of the military service, the administration of municipal government must go on during the emergency, and a city cannot be properly managed by an executive who, having been commissioned in the army, will presumably, under existing legislation, serve therein for the uncertain duration of the war, and, during all the years of his term of office as mayor, may be stationed in a remote part of the country or even of the world.
These arguments, pro and con, are not for consideration by a court. The question before us is purely a legal one, and arises by virtue of Article XII, section 2, of our Constitution, which provides that: "No . . . person holding or exercising any office or appointment of trust or profit under the United States shall at the same time hold or exercise any office in this State to which a salary, fees or perquisites shall be attached." This constitutional provision is self-executing:DeTurk v. Commonwealth, 129 Pa. 151, 160, 18 A. 757, 758. It leaves open for determination only whether a major in the United States Army holds and exercises an office of trust or profit under the United States. As to this there can be no debatable question. In dignity, responsibility, executive requirements, indefinite but prolonged tenure, compensation, and all other controlling features, the position constitutes an office — confirmed by the very designation "officer" — and one not only of profit but of the highest possible trust. Nearly all the other states of the Union have similar provisions in their constitutions, and practically all of them hold that the acceptance of a commission as an officer in the army amounts to an automatic vacation of a salaried office under the State: State v. Sadler, 25 Nev. 131, 173, 58 P. 284,289; Chisholm *Page 449 v. Coleman, 43 Ala. 204, 215, 216; Lowe v. State, 83 Tex. Crim. 134,201 S.W. 986; Fekete v. City of East St. Louis,315 Ill. 58, 145 N.E. 692; People ex rel. Ward v. Drake, 60 N.Y. Sup. 309, 43 A.D. 325, affirmed 161 N.Y. 642,57 N.E. 1122; State ex rel. Oliver v. Mayor of Jersey City, 63 N.J.L. 96,42 A. 782, reversed on other grounds 63 N.J.L. 634,44 A. 709.1 Indeed, the Act of Congress of July 1, 1930, c. 784, 46 Stat. 841, as amended by the Act of June 15, 1933, c. 87, § 3, 48 Stat. 154, U.S.C.A. Title 10, § 372, in providing that "Members of the Officers' Reserve Corps, while not on activeduty, shall not, by reason solely of their appointments, oaths, commissions, or status as such, or any duties or functions performed or pay or allowances received as such, be held or deemed to be officers or employees of the United States, or persons holding any office of trust or profit or discharging any official function under or in connection with any department of the Government of the United States," suggests, by innuendo, that officers *Page 450
of the Reserve Corps, when they are on active duty, must be deemed to be persons holding an office of trust or profit under the United States.
Article XII, section 2, of the Constitution contains the additional clause that, "The General Assembly may by law declare what offices are incompatible." Such laws have been passed from time to time,2 but the power thus given to the legislature does not restrict the operation of the first part of the section nor permit of a legislative nullification of the inhibition which it contains: De Turk v. Commonwealth, 129 Pa. 151,160, 18 A. 757, 758. If the incapacity of relator to hold the office of mayor after entering into active military service resulted merely from the provisions of the Act of May 15, 1874, P. L. 186, it would be necessary to consider the effect of the Act of July 2, 1941, P. L. 231, amending that statute so as to make it inapplicable to a person called into the active military or naval service of the United States during a war or emergency. But relator's disability arises not from any legislation but from the Constitution of the Commonwealth; moreover, the Act of 1941 became effective only on the date of its enactment, July 2, 1941, whereas it was on June 4, 1941, that relator, by entering upon active duty in the army, vacated his office as mayor of Uniontown.3
The order of the court quashing the writ of quo warranto is affirmed; costs to be paid by appellant.
1 Other cases are distinguishable: In Carpenter v. Sheppard,135 Tex. 413, 145 S.W.2d 562, an amendment to the constitution of Texas which was designed to overcome the decision in the Lowe
case, expressly exempted officers of the Reserve Corps from the prohibition against holding an additional office. In Kennedy v.Cook, 285 Ky. 9, 146 S.W.2d 56, a captain in the National Guard whose unit was ordered into the active military service of the United States was held not to hold an office under the United States because, as a national guardsman, he still acted under the commission issued to him by the governor of the state and was not commissioned as an officer in the United States Army. The cases of State v. Joseph, 143 La. 428, 78 So. 663, andJohnston v. Chambers, 148 Ga. 768, 98 S.E. 263, concerned members of local draft boards under the Selective Service Law of 1917, and it was held that they were not officers of the United States but were merely performing certain duties assigned to them. In Reed v. Sehon, 2 Cal. App. 55, 83 P. 77,People v. Duane, 121 N.Y. 367, 24 N.E. 845, and Andrew Geddesv. The United States, 38 Ct. of Claims Rep. 428, the persons under consideration were retired officers. The only case which is really contra to the general line of authority in regard to commissioned officers of the United States Army in active service is McCoy v. Board of Supervisors of Los Angeles County, ___ Cal. ___, 114 P.2d 569, the reasoning of which is not persuasive.
2 Act of May 15, 1874, P. L. 186; Act of May 18, 1876, P. L. 179; Act of April 23, 1909, P. L. 151; Act of May 28, 1915, P. L. 579; Act of July 2, 1941, P. L. 231.
3 Ordinarily, one holding two incompatible offices is allowed to elect which he desires to resign; if he declines or neglects to make a choice the court determines which office he should be compelled to relinquish: Commonwealth ex rel. Ryan v. Haeseler,161 Pa. 92, 97, 28 A. 1014, 1015; Commonwealth ex rel. v.Snyder, 294 Pa. 555, 561, 144 A. 748, 749; in the present case, however, there is no choice possible since it is not within the power of relator to resign from his office in the army. *Page 451 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4553807/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/07/2020 12:07 AM CDT
- 559 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
Teresa Walker, appellant, v. BNSF
Railway Company, a Delaware
corporation, appellee.
___ N.W.2d ___
Filed July 24, 2020. No. S-19-331.
1. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit
evidence over a hearsay objection or exclude evidence on hearsay
grounds.
3. Evidence: Appeal and Error. In a civil case, the admission or exclu-
sion of evidence is not reversible error unless it unfairly prejudiced a
substantial right of the complaining party.
4. Judgments: Words and Phrases: Appeal and Error. An abuse of
discretion, warranting reversal of a trial court’s evidentiary decision on
appeal, occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against justice or
conscience, reason, and evidence.
5. Trial: Evidence: Testimony. When the information is, for the most part,
already in evidence from the testimony of witnesses, the exclusion of the
evidence is not prejudicial.
Appeal from the District Court for Scotts Bluff County:
Andrea D. Miller, Judge. Affirmed.
Kyle J. Long and Robert G. Pahlke, of Robert Pahlke Law
Group, for appellant.
- 560 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
Chad M. Knight and Nadia H. Patrick, of Knight, Nicastro
& MacKay, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
NATURE OF CASE
Theresa Walker was injured while working for BNSF
Railway Co. (BNSF) when a forklift she was driving tipped
over while she was lifting a locomotive traction motor onto
a flatbed trailer. Walker filed this negligence action against
BNSF in the district court for Scotts Bluff County under the
Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (2012).
After the exclusion of some of her evidence about which she
complains, the jury returned a verdict for BNSF. Because we
conclude the exclusion of evidence did not unfairly prejudice
Walker, we affirm.
FACTS
On November 4, 2010, Walker, a BNSF employee with fork-
lift training, was associated with the BNSF facility in Alliance,
Nebraska. She was injured when the forklift she was driving
tipped over while she was lifting a load. Walker alleged that
she drove the forklift into position; raised the traction motor
into the air; leveled the forks; and was waiting to move over
the final deposit point, when the forklift tipped forward. The
forklift was a Taylor Big Red forklift (Big Red) owned by
BNSF and manufactured to load, unload, and move locomotive
traction motors. A traction motor is a large electric motor on
each wheel of a locomotive.
Walker brought this action under the Federal Employers’
Liability Act, alleging BNSF was negligent. Specifically, she
alleged that the railroad was negligent because it (1) provided
equipment that was not in safe operating condition; (2) altered
and modified Big Red by affixing a metal pallet attachment;
(3) failed to remove Big Red from service; and (4) failed
- 561 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
to provide reasonably safe tools, equipment, conditions, and
methods to do the work.
Big Red was manufactured by Taylor to load, unload, and
move locomotive traction motors with a capacity of 18,425
pounds at a 24-inch load center. After receipt from Taylor,
BNSF made and affixed a metal pallet attachment to Big Red,
which caused the forklift to carry traction motors more than 64
inches away from its mast and potentially changed the capacity
and dynamics of the forklift.
Walker had worked for BNSF since 1997. She received
training on forklift operations, and throughout her tenure at
BNSF, she underwent periodic recertification in forklift opera-
tion that included practical application and testing. Walker
had used Big Red to load traction motors onto truck beds on
a daily basis since 2009. Walker returned to work at BNSF
in September 2010 after a leave of absence, and she received
mandatory recertification training on forklift operations. She
also received training specific to Big Red.
Before July 2010, BNSF employees at the Alliance facil-
ity loaded only traction motors manufactured by EMD. In
the months before the injury, BNSF started loading a traction
motor manufactured by G.E. that was heavier. A traction motor
manufactured by EMD weighed approximately 11,800 pounds,
whereas a traction motor manufactured by G.E. weighed about
13,500 pounds. BNSF claimed that Walker had used Big Red
to transport the heavier G.E. motors before her injury. Walker
testified that she did not know if she had ever loaded a heavier
G.E. traction motor before her injury. She claimed that she was
not told of the weight difference between G.E. and EMD trac-
tion motors until after her injury.
A BNSF internal personal injury report completed shortly
after the incident concluded that Big Red was safe to oper-
ate and that the incident was the result of operator error by
Walker. Soon after that report was completed, BNSF’s repre-
sentatives contacted Big Red’s manufacturer, Taylor, to inquire
about continued use of the attachment. In response to BNSF’s
- 562 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
inquiry, an unidentified employee of Taylor stated that Big
Red may become overloaded when it is used with the BNSF’s
metal pallet loaded with a G.E. traction motor.
Bret Bridges, BNSF’s designee for purposes of a Neb. Ct.
R. Disc. § 6-330(b)(6) (rev. 2016) deposition, testified regard-
ing the investigation following Walker’s injury. Bridges stated
that BNSF had determined that the forklift tipped over due
to operator error. As relevant to this appeal, Bridges was also
questioned at length about the metal pallet attachment and the
potential to exceed the capacity of Big Red. Bridges agreed
during his deposition that BNSF’s communications with Taylor
“caused the BNSF to determine” that transporting G.E. trac-
tion motors with the metal pallet “could exceed the capacity”
of Big Red, causing a risk of the forklift’s tipping. Below are
several relevant portions of Bridges’ deposition testimony,
which Walker claims are admissions relevant to her theory of
recovery and formed the basis for which she sought similar
testimony at trial. The deposition was received for the record
after the district court ruled that Bridges’ challenged testimony
would be excluded.
Q. Was the bracket found to be defective?
A. The bracket was not found to be defective. But if
it’s used improperly or out away from the mast, it does
change the center of gravity for the forklift.
Q. Did the BNSF find the bracket to be defective?
A. The bracket in and of itself is a piece of steel. But
if you use the furthest pick point away from the mast, you
can exceed the lifting capacity of the forklift.
....
Q. Would you agree that the installation of the bracket
on the Taylor Big Red forklift shifted the load center
away from the mast?
A. Yes.
Q. And agree that the bracket that was used on the
traction motor’s axles — agree that when the bracket was
used, the traction motor’s axle rested more than 70 inches
away from the mast?
- 563 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
A. Yes; but I don’t know that the axle is the center of
gravity.
Q. Fair enough. And I’m not trying to say that it was;
I’m just trying to identify that the axle was there.
A. Based on measurements, yes.
Q. And do you agree that when the traction motor was
loaded in this position, the combined weight of the trac-
tion motor and the bracket exceeded the capacity of the
Taylor forklift?
A. Yes, that is my belief.
....
Q. And do you agree that when the bracket was used
in a position that the traction motor was lifted using the
bracket that a GE traction motor exceeded the capacity of
the forklift?
....
A. As we previously discussed, I do believe it exceeded
the lifting capacity.
Q. . . . And you agree that every time an employee
lifted a traction motor with that setup, he or she was
exceeding the capacity of the forklift.
....
A. Yes.
Q. . . . And so every time that an employee lifted a
traction motor, because they were exceeding the capacity,
there was risk of the forklift tipping.
[Objection.]
A. I think I have a two-part answer for that. I think
that, one, it depends upon height and pitch of the trac-
tion motor. So when the load is — the mast is all the
way against the forklift and it’s only this high . . . off the
ground, I don’t believe that it would tip the traction motor.
I think at a very elevated position with the forks tipped
forward that obviously it will tip the traction motor.
BNSF filed a motion in limine seeking, inter alia, to
exclude evidence of subsequent remedial measures to prove
- 564 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
negligence, including “removal of the forklift and/or its rack
from service, and . . . use of a different forklift and/or rack”
following Walker’s accident. Walker stipulated to this exclu-
sion, and the district court granted the motion with respect to
evidence of subsequent remedial measures.
At trial, BNSF asserted that moving the GE traction motor
with the attachment did not exceed Big Red’s capacity. In its
opening statement, BNSF explained that “[y]ou have a 16,000
capacity forklift carrying about 13,000 pounds of weight and
you add in the weight of that metal pallet and you get maybe
up to 14,000 pounds of weight. You are a ton underneath the
load capacity of this forklift.” BNSF introduced evidence that
the forklift was not over its capacity at the outset of moving a
G.E. traction motor with the attachment.
Bridges, whose testimony is quoted above, was designated
as BNSF’s representative at trial. Several times at trial, Walker
attempted to elicit Bridges’ admissions that the combined
weight of the attachment and G.E. traction motor exceeded
Big Red’s capacity, causing an overloaded condition and risk
of tipping. Walker asked him, “And, would you agree that
BNSF and you as their corporate spokesman believe that the
bracket caused or the attachment caused the overload[?]”
BNSF objected, claiming that postinjury conversations with
Taylor and conclusions drawn therefrom by BNSF were inad-
missible evidence of subsequent remedial measures made to
remedy flaws or failures in the forklift operations. BNSF also
argued that Walker’s questions asked for hearsay, because
they were attempts to relay statements from the manufacturer
to BNSF and Bridges, all to the effect that BNSF had learned
from the manufacturer that the forklift was overloaded. In
response, Walker argued BNSF had ultimately concluded and
believed that the attachment caused the overload condition
and admitted to its understanding in the deposition of Bridges,
its designee. The court sustained BNSF’s objection. Walker
attempted to introduce evidence of BNSF’s postinvestiga-
tion conclusions regarding the overload issue several times,
- 565 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
and the court continued to sustain BNSF’s objections. After
the district court had excluded Bridges’ testimony, the court
received the two volumes of the transcripts of Bridges’ deposi-
tions as an offer of proof.
Walker’s theory at trial was that BNSF had negligently
modified Big Red, causing an overload condition and tipping
leading to injury. Several witnesses for Walker testified that
Big Red as modified by BNSF was overloaded. For example,
David Danaher, a forensic mechanical engineer and certified
professional engineer, opined that the forklift was overloaded
regardless of the position of the forklift. Ken Tester, a safety
trainer, testified at length about the “removable attachment”
modification to the forklift and concluded that “it was just
inevitable an accident would happen.” He explained that “[w]ith
an attachment like an extension, like in the situation where we
have here, the load would be different, [its] maximum would
not be 18,425 pounds, it would be a lot less.” Tester opined
that BNSF should have taken measures to prevent overloading
prior to the incident and that had it done so, the incident may
have been prevented.
BNSF’s theory at trial was that Walker operated the fork-
lift in a dangerous manner and was the cause of its instabil-
ity and accident. In support of its theory, BNSF called Paul
Skelton, a truckdriver who was an eyewitness to the incident.
Skelton testified that he had picked up traction motors at the
Alliance facility “[a] few times” prior to the incident. On the
day of the incident, he observed Walker loading the first trac-
tion motor onto his flatbed trailer, approximately 40 inches
from ground level. He testified that her way of loading struck
him as abnormally high because “[n]ormally, they don’t raise
them that high.” He testified that he “expressed a little bit of
concern about that” because the forklift had seemed to do “a
teeter motion.” The first load came down on the trailer “a little
hard,” and Skelton said he “was worried about the damage to
the trailer because these are particularly expensive trailers that
we have.” After Skelton asked Walker why she raised the load
- 566 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
that high, she said she could not see him. Skelton moved so
that they would be able to see each other during the follow-
ing load.
According to Skelton, Walker brought in the second load
high as well. Skelton testified that “it was still raised up con-
siderably higher than it needed to be” but acknowledged it may
have been a bit lower than it had been when Walker delivered
the first load. He observed the load was higher than his head,
and stated he is 5 feet 11 inches tall. Walker began lowering the
load and tilting the mast forward to deposit the motor on the
trailer. As the load got close to the deck, Skelton noticed there
were “boards . . . out of position.” Skelton stopped Walker
before she set the load down so he could reposition the boards.
Walker raised the load back up to around the roof of the forklift
cab, and she backed away, to allow Skelton to maneuver the
boards. He testified that he observed that the forklift mast was
still tipping forward and had not been brought back toward the
forklift cab. Skelton was adjusting the boards when he heard
the sound of a motor revving and turned and observed the trac-
tion motor roll off the front of the forklift and onto the ground.
Skelton observed the forklift tilt backward “back down on all
four wheels.” Skelton testified that Walker’s load positioning,
including the load height and forward tilting of the mast, was
contrary to what he had been taught and had observed in the
past at the Alliance facility.
The jury rendered a verdict for BNSF, and the court accepted
the verdict and entered judgment. Walker moved for a new
trial, which was denied. Walker appeals.
ASSIGNMENT OF ERROR
Walker claims, summarized and restated, that the district
court erred when it excluded evidence of BNSF’s admission
that the forklift was overloaded and at risk for tipping.
STANDARDS OF REVIEW
[1] A trial court has the discretion to determine the rele
vancy and admissibility of evidence, and such determinations
- 567 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
will not be disturbed on appeal unless they constitute an abuse
of that discretion. O’Brien v. Cessna Aircraft Co., 298 Neb.
109, 903 N.W.2d 432 (2017).
[2] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual find-
ings underpinning a trial court’s hearsay ruling and reviews
de novo the court’s ultimate determination to admit evidence
over a hearsay objection or exclude evidence on hearsay
grounds. Id.
[3] In a civil case, the admission or exclusion of evidence is
not reversible error unless it unfairly prejudiced a substantial
right of the complaining party. Id.
[4] An abuse of discretion, warranting reversal of a trial
court’s evidentiary decision on appeal, occurs when a trial
court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Id.
ANALYSIS
Exclusion of Walker’s Evidence
and Walker’s Offers of Proof.
The central issue in this appeal is generally whether the
district court erred when it excluded Walker’s evidence, which
according to Walker would have shown that a postaccident
investigation led BNSF to believe that Big Red as modified
by BNSF had been overloaded, leading to the risk of tipping
over. Walker specifically claims that Bridges should have been
permitted to testify to that effect.
At trial, Walker attempted to question Bridges, BNSF’s des-
ignee at trial, regarding BNSF’s conclusions and belief that Big
Red’s capacity was exceeded when lifting a G.E. traction motor
using the attachment. Bridges was asked, “And, would you
agree that BNSF and you as their corporate spokesman believe
that the bracket caused or the attachment caused the over-
load[?]” BNSF objected, and the district court sustained the
objection. This question launched subsequent offers of proof
by Walker related to whether BNSF concluded and believed
- 568 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
that Big Red was over capacity when employees lifted G.E.
traction motors with the forklifts with the BNSF attachments.
BNSF objected to each offer of proof, and the court sustained
the objections. Walker’s offers of proof submitted after the rul-
ing included the questions and answers from Bridges’ deposi-
tion at which he had admitted the forklift as modified could
cause an overload condition and risk of tipping.
Rules of Evidence.
At trial, BNSF made objections to Bridges’ testimony based
both on the rules related to hearsay and on the prohibition
against introduction of subsequent remedial measures, the lat-
ter of which is contained in Neb. Rev. Stat. § 27-407 (Reissue
2016). Those rules are set forth below.
Hearsay is not admissible except as provided by the Nebraska
Evidence Rules. O’Brien v. Cessna Aircraft Co., supra. See
Neb. Rev. Stat. § 27-803 (Reissue 2016). Under Neb. Rev. Stat.
§ 27-801(4) (Reissue 2016), set forth in relevant part, a state-
ment is not hearsay if “(b) The statement is offered against a
party and is . . . (iv) a statement by his agent or servant within
the scope of his agency or employment . . . .” Section 27-407
provides:
When, after an event, measures are taken which, if
taken previously, would have made the event less likely to
occur, evidence of the subsequent measures is not admis-
sible to prove negligence or culpable conduct in connec-
tion with the event. This rule does not require the exclu-
sion of evidence of subsequent measures when offered
for another purpose, such as proving ownership, control,
or feasibility of precautionary measures, if controverted,
or impeachment. Negligence or culpable conduct, as used
in this rule, shall include, but not be limited to, the manu-
facture or sale of a defective product.
Admissibility Arguments.
On appeal, Walker contends that the evidence sought to be
elicited from Bridges was not hearsay, because it represented
- 569 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
the understandings of BNSF, and that the district court erred
when it excluded the evidence on the basis of hearsay. In
response, BNSF asserts that Bridges’ testimony was essentially
a repeat of Taylor’s declarations and that the district court prop-
erly excluded Bridges’ statements because they are hearsay.
Walker further contends that the evidence sought to be
elicited from Bridges reflected BNSF’s postaccident investi-
gation and was part of an investigation, and not a statement,
concerning a subsequent remedial measure and that the dis-
trict court erred when it excluded the evidence on this basis.
In contrast, BNSF asserts that Bridges’ testimony was prop-
erly excluded as evidence of subsequent remedial measures.
See § 27-407.
Error, If Any, Was Not
Unfairly Prejudicial.
As explained below, we determine that even if the Bridges-
related evidence was erroneously excluded, such error was not
prejudicial. We determine that reversal is not required because
the evidence which was excluded attempted to establish the
same fact particularly regarding causation that Walker success-
fully presented to the jury by other means.
[5] As we recited above, the admission or exclusion of
evidence at trial is not reversible error unless it unfairly
prejudiced a substantial right of the complaining party. See
O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d
432 (2017). We have stated that when the information is,
for the most part, already in evidence from the testimony of
witnesses, the exclusion of the evidence is not prejudicial.
See Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857
N.W.2d 816 (2015).
At trial, Walker presented evidence that Big Red was over
capacity and argued that the overloaded forklift represented
negligence by BNSF and was the cause of her injuries. Danaher,
Walker’s expert certified professional engineer, opined that
Big Red, outfitted with the attachment, was overloaded when
carrying a G.E. motor regardless of its positioning. And Tester,
- 570 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
a safety trainer, also testified about the attachment to the
forklift and concluded that “it was just inevitable an accident
would happen.” He opined that under the standards set forth
by the American National Standards Institute, such an attach-
ment “[s]houldn’t have been used in the first place without
expressed written approval by the manufacturer for them to do
their testing on it to see if it was changing any of the stabil-
ity of the forklift.” He explained to the jury that if BNSF had
gone through industry standard protocol for adding an attach-
ment, the forklift operators would have been apprised of the
forklift’s new capacity through new tags and decals placed on
the forklift. He testified that with respect to Big Red’s load,
its “maximum would not be 18,425 pounds, it would be a
lot less.”
However, in spite of Walker’s success eliciting evidence
concerning the hazard presented by Big Red’s attachment,
there was other evidence at trial to support the jury’s verdict
that Walker had not met her burden of proof. BNSF’s case
at trial was that Walker’s operation of the forklift was dan-
gerous and was the cause of its instability and the accident.
Indeed, Walker’s expert witness, Danaher, testified on cross-
examination that based on his discussions with Walker, she had
not followed the training she had received for depositing a load,
and Skelton, who witnessed the accident, testified that Walker
raised the load to an abnormal height and tilted the mast for-
ward more than necessary to deposit the load. Further, BNSF
introduced evidence of a commonly used “rule of thumb” met-
ric under which, it argued, Big Red was not overloaded. Thus,
there was ample evidence for the jury’s consideration in sup-
port of both Walker’s and BNSF’s theories. Given the record,
we conclude that the district court’s exclusion of evidence did
not prejudice a substantial right of Walker’s.
CONCLUSION
Although the district court excluded testimonial evidence of
BNSF’s designee related to the company’s postaccident inves-
tigation, the exclusion did not unfairly prejudice a substantial
- 571 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
right of Walker, because she was able to present other evidence
showing the same facts, and there was sufficient evidence to
support the jury’s verdict. We affirm the judgment of the dis-
trict court.
Affirmed.
Miller-Lerman, J., concurring.
I concur with the court’s determination that this case should
be affirmed. My analysis differs because I would find that
the exclusion of the Bridges-related testimony was erroneous,
although I agree its exclusion was not prejudicial. As I explain
below, I believe Bridges’ testimony was not hearsay nor was it
evidence of a subsequent remedial measure; hence, it should
have been admitted. Further, I suggest this court adopt the dis-
tinction commonly made between postaccident investigations
and subsequent remedial measures, the former of which are
admissible under § 27-407.
HEARSAY
Contrary to BNSF’s assertion, I agree with Walker that
admissions by BNSF’s corporate designee, Bridges, at trial
and in his deposition, are not hearsay under § 27-801(4)(b)(iv).
The admissions by a party to an action upon a material matter
are admissible against him or her as original evidence. Ficke
v. Wolken, 291 Neb. 482, 868 N.W.2d 305 (2015). Thus, as a
general rule, any act or conduct on the part of a party which
may fairly be interpreted as an admission against interest on
a material issue may be shown in evidence against him or
her. Id.
BNSF has attempted to characterize Bridges’ testimony as
merely conveying the conclusion of Big Red’s manufacturers.
However, the record shows that Bridges was asked about his
beliefs and BNSF’s conclusions. BNSF’s representative was
asked at trial if BNSF believed that the attachment caused an
overload condition of the forklift and if he “agree[d] that every
time an employee lifted a traction motor with that setup he or
she was exceeding [the capacity].” Bridges’ testimony that he,
- 572 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
on behalf of BNSF, believed that Big Red as modified exceeded
capacity was an admission by a party regarding a material
matter, which under § 27-801(4)(b)(iv) should not have been
excluded as hearsay. Accordingly, I agree with Walker that the
district court erred when it characterized Bridges’ testimony as
hearsay and excluded it on this basis.
SUBSEQUENT REMEDIAL MEASURES
The rule pertaining to the exclusion of the subsequent reme-
dial measures is codified in Nebraska in § 27-407. The rule as
it relates to postevent investigations or reports has been much
discussed in jurisprudence across the country. See, Brazos
River Authority v. GE Ionics, Inc., 469 F.3d 416 (5th Cir.
2006); Complaint of Consolidation Coal Co., 123 F.3d 126 (3d
Cir. 1997); Prentiss & Carlisle v. Koehring-Waterous, 972 F.2d
6 (1st Cir. 1992); Specht v. Jensen, 863 F.2d 700 (10th Cir.
1988); Rocky Mountain Helicopters v. Bell Helicopters, 805
F.2d 907 (10th Cir. 1986); Maddox v. City of Los Angeles, 792
F.2d 1408 (9th Cir. 1986); Westmoreland v. CBS Inc., 601 F.
Supp. 66 (S.D.N.Y. 1984); Alimenta (U.S.A.), Inc. v. Stauffer,
598 F. Supp. 934 (N.D. Ga. 1984); Bullock v. BNSF Ry. Co.,
306 Kan. 916, 399 P.3d 148 (2017); Martel v. Mass. Bay
Transp. Authority, 403 Mass. 1, 525 N.E.2d 662 (1988).
The view I would find applicable and would adopt is that
evidence of a postaccident investigation which is distinguish-
able from a remedial undertaking is not excluded by § 27-407.
By its text, § 27-407 is explicitly limited to measures taken
after an event “which, if taken previously, would have made
the event less likely to occur.” This does not mean that “com-
petent evidence resulting from an internal investigation of a
mishap must also be excluded.” Westmoreland, 601 F. Supp.
at 67. One treatise observes that “such reports or inspections
are not themselves remedial measures, and do not themselves
even reflect decisions to take or implement such measures.”
2 Christopher B. Mueller & Laird C. Kirkpatrick, Federal
Evidence § 4:50 at 75 (4th ed. 2013).
- 573 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
WALKER v. BNSF RAILWAY CO.
Cite as 306 Neb. 559
It is well recognized that the policy of excluding subsequent
remedial measures attempts to avoid discouraging steps to
further safety. See, e.g., Dusenbery v. United States, 534 U.S.
161, 122 S. Ct. 694, 151 L. Ed. 2d 597 (2002); Wollenhaupt
v. Andersen Fire Equip. Co., 232 Neb. 275, 440 N.W.2d 447
(1989). However, “the policy considerations that underlie Rule
407, such as encouraging remedial measures, are not as vig-
orously implicated where investigative tests and reports are
concerned.” Rocky Mountain Helicopters, 805 F.2d at 918.
Extending the rule to exclude evidence of all postaccident
investigations “fails to credit the social value of making avail-
able for trial what is often the best source of information.”
Westmoreland, 601 F. Supp. at 67. The fruits of these inves-
tigative tests and reports are “one of the best and most accu-
rate sources of evidence and information.” Id. at 68. I agree
with the observation that “[i]t would strain the spirit of the
remedial measure prohibition in Rule 407 to extend its shield
to evidence contained in post-event tests or reports.” Rocky
Mountain Helicopters, 805 F.2d at 918.
Walker’s attempted examination of Bridges and her offers of
proof at issue here did not touch on BNSF’s decision to imple-
ment remedial measures after Walker’s accident. Conclusions
drawn by BNSF’s agents regarding the forklift’s capacity with
the attachment were competent evidence resulting from an
internal investigation of Walker’s incident and were not, on
their own, evidence of remedial measures taken to prevent
future injuries. Accordingly, I agree with Walker that the dis-
trict court erred when it characterized Walker’s propounded
evidence as subsequent remedial measures and excluded post-
accident investigations, tests, and reports on this basis.
Although I believe the Bridges-related postaccident investi-
gation evidence was wrongly excluded, viewing the record as
a whole, I agree with this court’s conclusion in this case that
such exclusion was not prejudicial. | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4553809/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/07/2020 12:07 AM CDT
- 546 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
Thomas M. Russell and Pamela J. Russell,
appellants, v. Franklin County,
Nebraska, appellee.
___ N.W.2d ___
Filed July 24, 2020. No. S-18-827.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of law.
2. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
3. Constitutional Law: Eminent Domain. Inverse condemnation is a
shorthand description for a landowner suit to recover just compensation
for a governmental taking of the landowner’s property without the ben-
efit of condemnation proceedings.
4. Eminent Domain: Property: Intent. The threshold issue in an inverse
condemnation case is to determine whether the property allegedly taken
or damaged was taken or damaged as a result of the governmental
entity’s exercise of its power of eminent domain; that is, was the taking
or damaging for public use.
Petition for further review from the Court of Appeals,
Moore, Chief Judge, and Pirtle and Bishop, Judges, on
appeal thereto from the District Court for Franklin County,
Stephen R. Illingworth, Judge, on appeal thereto from the
County Court for Franklin County, Timothy E. Hoeft, Judge.
Judgment of Court of Appeals affirmed.
- 547 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
Matthew D. Hammes and Cristina Fackler, of Locher,
Pavelka, Dostal, Braddy & Hammes, L.L.C., for appellants.
Brandy R. Johnson, of Governmental Law, L.L.C., and
Henry Schenker, Franklin County Attorney, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Under the Nebraska Constitution, an owner of private prop-
erty is entitled to just compensation if a governmental entity
damages that property for public use. In this case, a county
felled trees on private property to improve visibility for a
nearby road. Everyone agrees the landowner is entitled to com-
pensation, but the parties disagree on how that compensa-
tion should be calculated. The district court determined that
the landowners were entitled to receive an amount equal to
the diminution in value of the land as a result of the coun-
ty’s action, and the Nebraska Court of Appeals affirmed. We
granted further review and, for reasons we will explain herein,
also affirm.
BACKGROUND
Removal of Trees.
Thomas M. Russell and Pamela J. Russell own 164 acres of
land in rural Franklin County (County). The property has been
in the Russells’ family for many years and includes cropland
and pastureland. According to the Russells, they have used
the property for birdwatching, camping, hunting for game and
mushrooms, and other recreational purposes. There is no resi-
dence on the property.
In December 2015, the County’s highway superintendent
contacted Thomas and asked for permission to cut down trees
on a certain area of the property. The County sought to cut
down the trees to improve visibility for drivers on an adjacent
county road. Thomas agreed to allow the removal of the trees
in the identified area.
- 548 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
Employees of the County subsequently entered the Russells’
land and cut down and uprooted trees. Rather than removing
trees in the area in which the County was given permission,
however, the employees removed other trees. By the time the
Russells realized what was happening and asked the County to
stop, 67 trees outside of the permitted area had been cut down
or uprooted. At that point, Thomas told the highway superin-
tendent that the County did not have his permission to remove
any other trees.
Inverse Condemnation Proceedings.
The Russells filed an inverse condemnation proceeding
against the County in Franklin County Court. They alleged
that the County had unlawfully taken their property for a pub-
lic use and that they were entitled to just compensation and
other relief under Neb. Rev. Stat. § 76-705 et seq. (Reissue
2018). Appraisers appointed by the county court returned
a report determining the damages suffered by the Russells,
but the Russells were not satisfied and appealed to the dis-
trict court.
In district court, both parties designated experts to give
opinions on the extent of the damages sustained. Both parties
also filed motions in limine seeking to exclude the oppos-
ing party’s experts on the ground that the opposing experts’
damages opinions were based on an incorrect measure of
damages.
The County took the position that the correct measure of
damages was the diminution in market value of the land as a
result of the destruction of the trees. It retained a licensed and
certified real estate appraiser as an expert. He offered opinions
on the fair market value of the Russells’ land before and after
the destruction of the trees. Using this methodology, he deter-
mined the amount of the damages to the property was $200.
The Russells, on the other hand, contended that their dam-
ages were an amount equal to the fair and reasonable cost to
restore the property to its prior condition. They relied upon
an arborist, a salesperson from a nursery and garden center,
- 549 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
and a representative from an excavating company to quantify
their damages. Together, the Russells claimed, these experts
calculated the cost to return the property to its prior condition
to be $150,716.
The County then filed a motion for summary judgment. In
its motion, the County conceded that by cutting down trees
outside the scope of the permission granted by the Russells,
it had completed a “taking” of the Russells’ property, but con-
tended that there was no genuine issue of material fact as to
the Russells’ damages. Both parties introduced evidence at the
summary judgment hearing from their experts as to damages.
The district court granted the County’s summary judgment
motion. It stated that the Russells were entitled to some com-
pensation for the County’s removal of their trees and that the
only issue in dispute was the damages to which they were
entitled. The district court concluded that the proper measure
of damages was controlled by Walkenhorst v. State, 253 Neb.
986, 573 N.W.2d 474 (1998). It understood Walkenhorst to
hold that a party whose property is taken by the government
for a public use is entitled to receive the fair market value of
the property taken and any decrease in the fair market value
of remaining property caused by the taking. The district court
reasoned that because the County’s expert offered a dam-
ages opinion based on the correct measure of damages but
the Russells did not, summary judgment was appropriate.
Consistent with the damages opinion offered by the County’s
expert, it determined the Russells were entitled to $200 in
compensation. The Russells appealed.
Court of Appeals.
The Court of Appeals affirmed the district court’s decision
over a dissent. See Russell v. Franklin County, 27 Neb. Ct. App.
684, 934 N.W.2d 517 (2019). The majority opinion agreed with
the district court that the appropriate measure of damages was
controlled by Walkenhorst. It read Walkenhorst to hold that in
takings cases, “vegetation is not to be valued separately and
- 550 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
is only considered to the extent that its presence affected the
fair market value of the land.” Russell, 27 Neb. Ct. App. at 692,
934 N.W.2d at 523.
The Court of Appeals’ majority disagreed with the dissenting
opinion’s view that because the damages were temporary, the
Russells were entitled to recover the cost necessary to return
the property to its prior condition under Kula v. Prososki, 228
Neb. 692, 424 N.W.2d 117 (1988). The majority recognized
that in Kula, a landowner was allowed to recover such dam-
ages, but it concluded that Kula did not apply because it “was
not an eminent domain case” and because it involved crops
rather than trees. Russell, 27 Neb. Ct. App. at 696, 934 N.W.2d
at 525.
The majority also rejected the Russells’ argument that
they were entitled to cost of repair damages under Keitges v.
VanDermeulen, 240 Neb. 580, 483 N.W.2d 137 (1992). The
majority concluded that Keitges had no bearing because it was
a tort lawsuit between two landowners. And, even assuming
that Keitges applied, the majority found that the Russells had
not introduced the necessary evidence to be entitled to cost of
repair damages.
We granted the Russells’ petition for further review.
ASSIGNMENTS OF ERROR
The Russells could have been clearer in their petition for
further review as to what errors they were assigning. After an
introduction to the case’s factual and procedural history, the
petition includes a heading in bold type: “ASSIGNMENT OF
ERROR.” Immediately underneath that heading is a sentence
in bold type and capitalized letters. The sentence is preceded
by a Roman numeral I and states: “The Court of Appeals erred
in failing to uphold the Nebraska State Constitution, Nebraska
statutes and existing Supreme Court precedent applicable to
property that has been damaged for a public use.” Argument
in support of that assertion follows. Later on in the petition,
another sentence appears in bold type and all capitalized
- 551 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
letters preceded by a Roman numeral II. It generally asserts
that our opinion in Keitges, supra, sets forth the appropriate
measure of damages for temporary damages to trees and that
the Court of Appeals erred by failing to follow it. Argument in
support of that assertion follows.
The Russells appear to believe they effectively assigned
error in both statements in bold type, in all capitalized letters,
and preceded by Roman numerals. Their petition for further
review does not, however, contain a separate section setting
forth multiple assignments of error. Our rules of appellate
practice require that any assignments of error be set forth in
a separate section of the petition for further review. See Neb.
Ct. R. App. P. §§ 2-102(F)(3) (rev. 2015) and 2-109(D)(1)(e)
(rev. 2014).
Although the Russells’ petition for further review does not
contain a separate section setting forth multiple assignments of
error, it does include immediately under the bold type heading
“ASSIGNMENT OF ERROR” the statement following Roman
numeral I. We have, perhaps generously, construed that as a
separate section of the brief assigning a single assignment of
error. Because no other issues have been properly assigned and
argued, we will not discuss them. See State v. Dreimanis, 258
Neb. 239, 603 N.W.2d 17 (1999).
STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d
597 (2019).
[2] An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. Id.
- 552 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
ANALYSIS
Background Regarding the Russells’ Claim.
[3,4] The Russells have sought compensation for the
destruction of their trees via inverse condemnation. Inverse
condemnation is a shorthand description for a landowner suit
to recover just compensation for a governmental taking of the
landowner’s property without the benefit of condemnation pro-
ceedings. Henderson v. City of Columbus, 285 Neb. 482, 827
N.W.2d 486 (2013). The right to bring an inverse condemnation
action derives from Neb. Const. art. I, § 21, which provides:
“The property of no person shall be taken or damaged for pub-
lic use without just compensation therefor.” See Henderson,
supra. The threshold issue in an inverse condemnation case is
to determine whether the property allegedly taken or damaged
was taken or damaged as a result of the governmental entity’s
exercise of its power of eminent domain; that is, was the taking
or damaging for public use. See id.
A number of issues that might be contested in an inverse
condemnation case are not disputed in this one. The Russells
do not dispute, for example, that the County removed the trees
to improve visibility on an adjacent county road and that this
constitutes a public use. At the same time, the County does not
deny that it removed trees it did not have the Russells’ permis-
sion to remove and thereby damaged their property. Neither
does the County dispute that the Russells were entitled to some
compensation. The parties have not agreed and do not agree,
however, on how that compensation should be calculated. We
turn to that issue now.
Permanent or Temporary Damages?
The district court and the Court of Appeals concluded that
the Russells were entitled to recover an amount equal to the
diminution in value of their land as a result of the destruction
of the trees. Both courts concluded this measure of damages
followed from our decision in Walkenhorst v. State, 253 Neb.
986, 573 N.W.2d 474 (1998).
- 553 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
In Walkenhorst, the State condemned strips of land in order
to reconstruct a highway. The landowners claimed they were
entitled to receive compensation for a shelterbelt of trees that
was present on the condemned land in addition to compensa-
tion for the taking of the land itself. We disagreed, explaining
that the landowners were entitled to recover the fair market
value of the property actually acquired and the decrease in the
market value of the remaining property. As a result, the land-
owners were not entitled to compensation “for the value of the
shelterbelt as a shelterbelt; instead, the only relevant inquiry
[was] how the presence of the shelterbelt on the condemned
land affect[ed] the fair market value of the land taken.” Id. at
992, 573 N.W.2d at 481.
The Russells argue that the district court and then the
Court of Appeals erred by relying on Walkenhorst. They, like
the dissenting opinion in the Court of Appeals, understand
Walkenhorst to set forth the measure of damages for only
those cases in which the government permanently takes private
property for public use. In that circumstance, they admit, the
landowner is entitled to recover only the fair market value of
the property taken, as well as any resulting decrease in the fair
market value of the remaining land. But here, they claim, the
County did not permanently take any portion of their land but
only temporarily damaged trees and, consequently, Walkenhorst
does not apply.
The Russells, again in step with the dissenting opinion in
the Court of Appeals, argue that another case, Kula v. Prososki,
228 Neb. 692, 424 N.W.2d 117 (1988), applies here and allows
them to recover the costs necessary to replace the trees felled
by the County. In Kula, a landowner sued a county under Neb.
Const. art. I, § 21, alleging that the county had installed an
inadequate culvert which caused floodwaters to accumulate
on his land. After the district court entered an award in favor
of the landowner, the county appealed, complaining that the
wrong measure of damages was used. On appeal, this court
held that the land was temporarily damaged and, under those
- 554 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
circumstances, the compensation due the landowners was the
value of the use of the land for the period damaged, which in
that case was “the value of the crops which could and would
have been grown upon the land.” Id. at 694-95, 424 N.W.2d
at 119. This court went on to hold that the landowner could
also recover other expenses necessary to return the land to its
prior condition. The Russells assert that because their land was
temporarily damaged, they too should be able to recover an
amount equal to the cost necessary to return their land to its
predamaged condition.
The Russells are correct that the governmental intrusion
here differs from Walkenhorst: in that case, the State took title
to the landowners’ property, while here, it only briefly entered
land and damaged trees. And there is at least some similarity
between this case and Kula, at least insofar as both involve
governmental interference with species of the plant kingdom
growing on private property. Despite that similarity, however,
it is far from clear to us that this case, like Kula, involved only
temporary damages.
Several of our cases recognize that land might not be
completely taken by the government for public use, but may
nonetheless be permanently damaged. In those cases, we have
held that the compensation due the landowner is the measure
of damages applied by the district court and approved by the
Court of Appeals in this case—the diminution in market value
of the land before and after the damages. See, Beach v. City of
Fairbury, 207 Neb. 836, 301 N.W.2d 584 (1981); Quest v. East
Omaha Drainage Dist., 155 Neb. 538, 52 N.W.2d 417 (1952).
See, also, Kula, 228 Neb. at 694, 424 N.W.2d at 119 (explain-
ing that when damages to land are permanent as in Beach,
supra, the measure of damages is the “difference in the market
value of the land before and after the damage”).
Our cases have not significantly explored what differentiates
permanent and temporary damages to land. Nebraska, how-
ever, is far from the only jurisdiction that employs a different
measure of damages for permanent and temporary damages
- 555 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
to land. Several other courts that have considered the differ-
ence between those two categories have focused on whether
the harm is likely to continue indefinitely, in which case it
is permanent, or dissipate, in which case it is temporary. The
Texas Supreme Court, for example, describes permanent injury
to real property as that which is “ongoing, continually happen-
ing, or occurring repeatedly and predictably,” and temporary
damages as those that “do not last for long periods of time,
are not ongoing, are not likely to occur again, occur only spo-
radically, or occur unpredictably.” Gilbert Wheeler v. Enbridge
Pipelines, 449 S.W.3d 474, 480 (Tex. 2014). The South Dakota
Supreme Court uses a similar formulation, classifying dam-
age to real estate as permanent when, among other things, it
is “‘presumed to continue indefinitely’” or is “irremediable.”
Gross v. Conn. Mut. Life Ins. Co., 361 N.W.2d 259, 272 (S.D.
1985). See, also, Rupert v. City of Rapid City, 827 N.W.2d 55
(S.D. 2013); McAlister v. Atlantic Richfield Co., 233 Kan. 252,
262, 662 P.2d 1203, 1211 (1983) (explaining that temporary
damages are those that occur intermittently or occasionally
and the cause of which is removable, while permanent dam-
ages are “practically irremediable”); 1 Dan B. Dobbs, Dobbs
Law of Remedies, § 5.11(2) at 823 (2d ed. 1993) (collecting
cases holding that injury to land is permanent if will “con-
tinue indefinitely”).
The rationale for treating damages that will continue indefi-
nitely as permanent and allowing a recovery based on diminu-
tion in value appears to be that in those circumstances, “[e]ven
though harm will continue, its future effects are captured all at
one time by [the diminution in value of the real estate], which
gives to the plaintiff the loss in value attributable to the future
continuance of the invasion.” Dobbs, supra, at § 5.11(1) at
820. “In contrast, if an invasion is temporary, general dam-
ages will be measured for the harm that has been done up until
judgment, with more damages to come in later suits if they are
necessary.” Id. at 820-21.
- 556 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
If damages that will predictably recur are permanent, a strong
case could be made that the damages to the Russells’ property
qualify and thus the district court did not err in its determi-
nation of the appropriate measure of damages. The County
removed the trees because they impaired visibility on a nearby
county road, a fact the Russells do not appear to dispute, given
their admission that the trees were taken for public use. If the
trees needed to be removed to improve road visibility, presum-
ably they would be subject to removal again if replaced, lest
the problems with road visibility arise again.
A decision of the South Dakota Supreme Court, Rupert,
supra, supports an argument along these lines. In that case,
the South Dakota Supreme Court reversed a trial court’s deter-
mination that landowners suffered temporary damages when a
city’s use of deicer killed a number of trees on the landown-
ers’ land. Among the reasons identified by the South Dakota
Supreme Court for reversal was the fact that the city intended
to continue to use the deicer and thus would likely kill any
new trees planted to replace those that were destroyed.
But while we believe a strong case could be made that the
damages to the Russells’ real property were permanent and
the district court’s decision was correct for that reason, we
ultimately determine that it is not necessary to decide that
issue. As we will explain below, even assuming the damages
were temporary, the district court did not err in concluding the
Russells were entitled to recover based on the diminution in
value as determined by the County’s expert.
Temporary Damages Analysis.
As noted above, the Russells’ argument for cost of restora-
tion damages rests on Kula v. Prososki, 228 Neb. 692, 424
N.W.2d 117 (1988). The landowner in Kula was allowed to
recover, in addition to the value of the crops that would have
grown on the land during the time of the temporary damages,
certain costs necessary to return the land to its prior condition.
And contrary to the Court of Appeals’ statement that it was
- 557 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
not an eminent domain case, Kula did involve a landowner’s
right to just compensation for damages to private property for
public use. See Russell v. Franklin County, 27 Neb. Ct. App. 684,
934 N.W.2d 517 (2019) (Bishop, Judge, dissenting).
But while we disagree with the Court of Appeals’ major-
ity that the Russells seek a different type of relief than the
landowner in Kula, we agree with its ultimate conclusion that
the Russells are not entitled to the same type of recovery. We
reach this conclusion in reliance on In re Application of SID
No. 384, 259 Neb. 351, 609 N.W.2d 679 (2000) (SID), a case
decided after Kula. Neither the majority nor the dissenting
opinion of the Court of Appeals discussed SID, but we find it
precludes the Russells from obtaining cost of repair damages,
even assuming their damages were temporary.
In SID, a sanitary and improvement district initiated con-
demnation proceedings to construct a sewer line and sought
both permanent and temporary easements. The landowner
sought to introduce expert testimony as to both the diminution
in market value as a result of the easements and the replace-
ment cost of trees and grasses destroyed in the construction of
the sewer line. Of relevance to our analysis here, the landowner
argued entitlement to recover the replacement cost of the trees
and grasses destroyed on the land subject to the temporary
easements. We observed that some of our prior cases involv-
ing temporary takings allowed the landowner to recover the
value of the use of the land for the period taken. We also cited
a California case, Sacramento & San Joaquin Drainage Dist.
v. Goehring, 13 Cal. App. 3d 58, 66, 91 Cal. Rptr. 375, 380
(1970), that in addition to permitting recovery for the value
of the use of the land, permitted cost of restoration damages
if “‘not in excess of the diminution in value of the property
caused by physical changes made by the condemnor during the
period of its possession.’”
This limitation on cost of restoration damages outlined in
Goehring was crucial to our analysis in SID. There was no
evidence in SID of loss of use damages, and the landowner’s
- 558 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
RUSSELL v. FRANKLIN COUNTY
Cite as 306 Neb. 546
expert concluded that the diminution in market value caused
by the temporary easements was less than the cost to replace
the destroyed trees and grasses. Because cost of restoration
damages exceeded the diminution in value damages, we held
that the proper measure of damages was the diminution in mar-
ket value caused by the temporary taking.
Under SID, the Russells cannot recover cost of restoration
damages. In this case, as in SID, no one has identified loss of
use damages. And here, the discrepancy between the diminu-
tion in market value and the cost to repair is even greater than
in SID. There is undisputed evidence that the market value of
the Russells’ land decreased by only $200 as a result of the
destruction of the trees while the Russells claim their evidence
shows it would cost over $150,000 to restore their land to its
prior condition. Indeed, this case illustrates the rationale for
the limitation on cost of restoration damages adopted in SID.
Without it, a landowner could receive a significant windfall
through cost of repair damages.
Finally, we note that we do not understand SID to conflict
with Kula v. Prososki, 228 Neb. 692, 424 N.W.2d 117 (1988).
There is no indication in Kula that the restoration costs the
landowner was allowed to recover exceeded the diminution in
market value.
For these reasons, we conclude that whether the damages the
Russells suffered are properly classified as permanent or tem-
porary, they are entitled to the same recovery: the diminution
in value of their land as a result of the removal of their trees.
The Court of Appeals properly affirmed the district court’s
determination of damages on that basis.
CONCLUSION
We find that the Court of Appeals did not err in affirming
the district court’s entry of summary judgment. Accordingly,
we affirm.
Affirmed. | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3390988/ | Appeal dismissed on motion of the Attorney General. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3849542/ | These appeals are from judgments for the plaintiff in two separate suits for libel. The cases were consolidated for trial and both appeals raise the same legal questions. Originally, the defendants were Norristown Herald, Inc., which publishes the Times Herald, a daily newspaper, of Norristown, Pennsylvania, and Ralph Beaver Strassburger, the president and substantial owner of that company. The defendants were jointly impleaded on the theory that they were jointly responsible for certain allegedly libelous writings carried by the Times Herald.
At a former trial the jury returned verdicts for the plaintiff in the sums of $12,500 against Strassburger and $25,000 against Norristown Herald, Inc., in each case, for a total of $75,000. The learned trial judge, deeming the verdicts excessive and not correctable by way of remittiturs (being for different sums against alleged joint tort-feasors), granted the defendants' motions for a new trial. The plaintiff thereupon discontinued as to Strassburger in each case without objection from the remaining defendant. At the new trial, the jury returned verdicts in the plaintiff's favor for $15,000 in the case at No. 36 September Term 1942, and for $35,000 in the case at No. *Page 637
83 September Term 1942. The defendant filed motions for judgments n. o. v. and for a new trial which the learned court below denied save that it conditioned its refusal of the motions for new trial upon the plaintiff's filing remittiturs in prescribed amounts within a specified time. The plaintiff duly filed the remittiturs and judgments were entered on the verdicts, as thus reduced, in the sums, respectively, of $3,750 in the case at No. 36 below and $8,750 in the case at No. 83. From the judgments so entered the defendant took the present appeals.
In support of its motions for judgment n. o. v. the appellant contends that (1) the plaintiff's discontinuance as to defendant Strassburger, which came after the statute of limitations had run, served to deprive the remaining defendant of its right to contribution by the other alleged joint tort-feasor, (2) the discontinuance worked a release of Strassburger's liability which operated to relieve the remaining defendant also, and (3) the learned trial judge erred in refusing to direct verdicts for the defendant in accordance with its requests which it based on the ground that the writings complained of were neither libelous nor evidence of libel. The latter point is also covered by assignments which impute trial error in the court's admitting the writings in evidence over the defendant's objections.
Under the Act of May 4, 1852, P. L. 574 § 2 (12 Pa.C.S.A. § 533) as construed by the Act of April 12, 1858, P. L. 243 § 1 (12 Pa.C.S.A. § 534) it was the plaintiff's right to discontinue as to one of the defendants even though they were alleged to be joint tort-feasors. See Booth v. Dorsey, 202 Pa. 381, 385-386,51 A. 993. In that case, the plaintiff took a voluntary nonsuit as to two of three alleged joint tort-feasors. As to the legal justification for the elimination of all but one of the parties defendant, this Court said in the Booth case that "The mistake for which an amendment should be allowed [under the statutes] may be either of fact or law, and when it is made to appear, it is the duty of the court to correct it:" (citing Kaylor v.Shaffner, 24 Pa. 489). *Page 638
Here, Norristown Herald, Inc., was the master and Strassburger, its servant. With the defendants in that relationship, it was a mistake of law for the plaintiff to treat them as joint tort-feasors. Their torts were several: cf.East Broad Top Transit Company v. Flood, 326 Pa. 353, 356,192 A. 401. Notwithstanding that all parties defendant may now be brought upon the record regardless of whether their liability is joint or several (see Williams v. Kozlowski, 313 Pa. 219,226, 169 A. 148) it is a mistake none the less to sue, as jointly liable, alleged tort-feasors, whose liability, if any, must necessarily be several. The mistake was evident on the face of the pleadings. A formal affidavit, pointing out the error, would not have added anything to what otherwise clearly appeared. Such an affidavit was therefore unnecessary, especially, when none was required by the court as a basis for the discontinuance. In the absence of any objection by the defendant to the entry of the discontinuance or any motion to strike it off, the court's leave to the plaintiff to discontinue is to be presumed. Shapiro v. Philadelphia, 306 Pa. 216,220-21, 159 A. 29; Commonwealth v. Magee, 224 Pa. 166,168, 73 A. 346.
Even if the torts alleged were joint, the plaintiff could have discontinued at trial as to one of the two defendants and have proceeded against the other without any requirement that he prove joint torts as a prerequisite to fastening liability upon the remaining defendant for the wrongs alleged and proven. Such has been the rule since the Act of June 29, 1923, P. L. 981 (12 Pa.C.S.A. § 685). See Gable v. Yellow Cab Co., 300 Pa. 37, 38,150 A. 162; and Cleary v. Quaker City Cab Co., 285 Pa. 241,245, 246, 132 A. 185. It can hardly be suggested, therefore, that the mere discontinuance served to introduce a new cause of action. Nor was a new cause of action in fact introduced by reason of the amendment. The wrongs alleged remained precisely as the plaintiff had originally pleaded them. Consequently, the fact that the statute of limitations had run at the time of the *Page 639
discontinuance was of no legal significance. Cf. Booth v.Dorsey, supra; also Thompson-Starrett Co. v. Heinold,60 F.2d 360, 361 (C.C.A. 3).
The remaining defendant was not harmed by the discontinuance. Whatever right it may have had to contribution from the other defendant, the liability therefor could not have arisen until judgment had been entered against it on account of the plaintiff's claims. Ashley v. Lehigh Wilkes-Barre CoalCompany, 232 Pa. 425, 431-2, 81 A. 442; Rudman v. City ofScranton, 114 Pa. Super. 148, 152, 173 A. 892. Rule 2232(b) of the Rules of Civil Procedure (Pa.) is not presently germane. It affords the procedure invocable by a misjoined party to have himself eliminated by the court. The relevant provision is Rule 2232(d) which carries into effect the intent and purpose of the Act of 1923, cit. supra. What a court is thereby authorized to do at trial, a plaintiff may effect before or at trial with the court's approval which, as already stated, may be inferred in the circumstances.
The assignments of error relating to the discontinuance are accordingly overruled. Coming to the assignments which question the competency and legal sufficiency of the plaintiff's proofs of libel, the evidence discloses the following circumstances.
At the time of the alleged libelous publications, Bausewine, the plaintiff, was Chief of Police of Norristown, — a position which he had occupied continuously for thirteen years. Until four years prior to assuming that post he had been, for almost twenty-nine years, a member of the police force of the City of Philadelphia from which he had retired on pension.
On July 28, 1942, the Times Herald published an editorial entitled "YOUTH AND AGE IN WAR." This editorial, after arguing the need of younger men in "the fighting services", stated that "By the same token, if in a kind of reverse ratio, old men holding official places important to home defense during the war should be replaced *Page 640
with younger men." This was followed by a paragraph which stated that, "Norristown has a septuagenarian police chief in this class. He was pensioned in Philadelphia over a decade ago but Norristown has employed the Philadelphia castoff ever since, during which he has drawn both his Philadelphia pension and his Norristown pay." (Emphasis supplied.)
Three days later (July 31, 1942), the Times Herald published a double column front page article under the following headline in large, bold-faced type: "Bausewine's Smash-up Recalled; His Pal Man With Criminal Record" and the following prominent sub-head: "Joe Allegro, With Many Aliases, Friend for 20 Years (While He Did Time) of Norristown's Chief of Police". The body of the article began with the statement that "If a man is known by the company he keeps or has kept, it may be interesting to Norristown people to be reminded of an automobile smashup * * * in which Chief of Police George Bausewine figured soon after he landed here". The "smashup" had reference to an automobile collision at a street intersection in Norristown which had occurred approximately eleven years before. Bausewine had been a passenger in one of the automobiles involved in the collision. The article identified "The driver of the car Bausewine occupied" as "an old-time friend of the chief's, one Joseph Allegro, who * * * was found guilty at a Montgomery County Court hearing and fined $10 and costs * * *". The article then stated that "the point of the whole affair is not so much who was responsible for the accident as who was this fellow Allegro, the traveling companion of Norristown's chief of police, in whom is vested the direction of this Borough's public safety in war time". The article concluded by submitting "the black record, offered in evidence at [Allegro's] hearing, [which] speak[s] for itself:". This was followed by a detailed account (in bold-faced type) of Allegro's criminal record which showed numerous arrests on various charges, including keeping a bawdyhouse *Page 641
house, aggravated assault and battery, possession and sale of narcotics, etc. The article concluded with a quotation from the speech of the prosecuting attorney inveighing against Bausewine as a friend of Allegro.
The above editorial and article had been preceded by an editorial in the Times Herald of June 30, 1942, entitled, "GAULEITER BAUSEWINE". While all three publications were made matters of complaint in the first suit instituted by Bausewine against Strassburger and Norristown Herald, Inc., the "GAULEITER BAUSEWINE" editorial was later voluntarily withdrawn by the plaintiff as not amounting to libel or evidence of libel.
By letter of August 13, 1942, addressed to Strassburger, as president of the Times Herald, Bausewine demanded a retraction of the alleged defamatory statements made concerning him in the above-mentioned article of July 31st. Not having received any response to this letter in the meantime, Bausewine, on September 19, 1942, filed his first suit against Strassburger and Norristown Herald, Inc.
On the same day, the Times Herald carried a front page article under the following full page display headline: "BAUSEWINE, POLICE CHIEF, SUES TIMES HERALD" with the following double column sub-headlines in large type: "States Court Review of Accident With Gangster Was 'Scandalous' " — "Criminal Record Was Offered in Evidence at Hearing — Bausewine Calls It 'False, Defamatory and Malicious' ". After relating that Bausewine had instituted suit against Strassburger and Norristown Herald, Inc., for libel, the article stated that "The case is founded on criticisms of Bausewine's official conduct printed in the Times Herald, including a court review of the criminal record of Joe Allegro, an associate of Bausewine's. * * *" The article further stated that "The suit should give Norristown a long-needed showdown on whether this Borough and its people should longer tolerate this Philadelphian, former *Page 642
associate of a gangster, as the head of its police department." This article also referred to Bausewine as "a former police officer at Bocaraton, Fla., during the bootlegging days of prohibition. * * *" The significance of the latter reference will appear presently.
Two days later (September 21, 1942), the Times Herald published its reply to Bausewine's demand of August 13, 1942, for a retraction. The article appeared under a full front-page display headline as follows: "BAUSEWINE WANTED APOLOGY FOR PRINTING COURT RECORD" and the following sub-headlines in large, bold-faced type: "SO WE PRINT IT AGAIN, WITH QUERY ABOUT BEER TRUCKS PUT UP TO CHIEF OF POLICE" — "Lawless Prohibition Days of Bootlegging Recalled — Head Cop Draws Philadelphia Pension as Well as Norristown Salary." In a paragraph headed, "Lawless 'Dry' Days Recalled", the article decried the evils of the prohibition era, saying that "it was the custom [then] to have guards riding the trucks" (engaged in transporting illicit liquors) "from seaports * * * to the inland where hijackers, fixers and other manifold interests had to be protected". The article added that "It was a lucrative business for these so-called 'riders' "; it expressed the hope "that those days will not return"; and stated that "the men who prevented law enforcement in nefarious pursuits of this kind are no longer wanted". Then came the following, — "We should like to ask Chief of Police Bausewine whether or not he ever rode such a truck and whether or not he was aware that Boca Raton, Florida, was one of the chief ports of entry for bootlegged liquor merchandise owing to its excellent harbor, which * * * was a remote and practically inaccessible spot because of the marshes and bogs surrounding this inlet on the Florida coast".
The two articles last above described constituted the basis of Bausewine's complaint in his second suit against the two defendants.
In addition to offering the above-mentioned writings in evidence at trial, the plaintiff testified, as did also *Page 643
two of his witnesses, to matters which, if believed, were sufficient to support a finding that the publications complained of were the result of a deliberate exercise of actual malice on the part of Strassburger. He controlled the Times Herald, had openly avowed his intention to "get" Bausewine and had personally participated in editing at least one of the offending articles. There was testimony as to hostile statements by Strassburger in amplification of his threat to "get" Bausewine which need not be repeated but which, if believed, must have left little doubt in the minds of the jury as to Strassburger's animus. As to the reason for this animosity, as revealed by the record, it is unnecessary to say more than that it grew out of Bausewine's failure to aid Strassburger, as the latter had requested him to do, in connection with a matter purely personal to Strassburger and wholly unrelated to Bausewine either in his public or private capacity. The appellant complains that the occurrences testified to (having happened late in 1940) were too remote to furnish causative malice for the publication of the writings in the summer of 1942. The answer to that is that there was testimony which fully warranted the jury in finding both the existence of actual malice and its persistence, unabated, down to and throughout the time of the publications.
It was for the court to say, as a matter of law, whether the writings in suit were capable of a libelous meaning. If they were, it then became the jury's duty to determine whether they had such meaning in fact. See Boyer v. Pitt Publishing Company,324 Pa. 154, 157, 188 A. 203; Collins v. Dispatch PublishingCo., 152 Pa. 187, 190-191, 25 A. 546; Neeb v. Hope, 111 Pa. 145,154, 2 A. 568. The jury resolved that issue in the plaintiff's favor. The pertinent inquiry, therefore, is whether the learned trial judge erred when he held the publications to be capable of libelous meaning. Where actual malice is proven extrinsically, writings which might otherwise qualify as fair comment and as having been published *Page 644
from a proper motive may have an entirely different legal effect. Cf. McIntyre v. Weinert, 195 Pa. 52, 56, 45 A. 666.
The learned trial judge could not justifiably have ruled that the writings in suit were incapable of a libelous meaning. Even without the extrinsic proofs, the assailed publications themselves afforded an inference of malice. That the statements respecting the plaintiff, of which complaint is made, were defamatory is hardly open to dispute. Cf. Collins v. DispatchPublishing Co., supra, at p. 190. And, it is fairly deducible that their purpose was to affect the plaintiff adversely in his position, which both the editorial and the articles specifically identified. Cf. Holland v. Flick, 212 Pa. 201,204, 61 A. 828. If false, the defamatory statements were actionable without proof that any particular damage followed their publication. Collins v. Dispatch Publishing Co., supra. The assignments of error which complain of the reception of the writings in evidence and of their submission to the jury as evidence of libel are therefore overruled.
The availability of the defenses of truth, justification and privilege which the defendant's pleas interposed depended upon issues of fact which were for the jury to resolve. There was ample evidence in the case to justify the jury in finding that the reference to the plaintiff as "a Philadelphia castoff" and that the imputation that he, while an officer of the law, had ridden bootleggers' trucks for improper purposes were untrue and lacked any justification. The jury's findings in such regard, as implied by the verdicts, were but natural and reasonable conclusions from the evidence. The only evidence touching the plaintiff's surrender of his position on the Philadelphia police force was that he had resigned voluntarily after almost twenty-nine years of continuous service and after having risen to the grade of lieutenant (comparable to captain at the time of trial). As to the imputation that the plaintiff had been a participant in the illegal transportation of contraband liquors, the testimony *Page 645
proffered by the defendant in attempted justification of the cognate publications was so inadequate and insufficient that the learned trial judge, on motion, very properly struck it from the record. The assignments of error based on the court's action in that instance are plainly without merit. According to the undenied testimony, Bausewine had never been in Boca Raton; and, the defendant failed to prove either that the plaintiff had ridden trucks for illicit purposes elsewhere or that the defendant had any reliable or trustworthy information that he had done so. Insinuating that the plaintiff, while an officer of the law, was a willful law violator came very close to being, if it was not actually, libel per se. Cf. Neeb v. Hope, supra, and Holland v. Flick, supra. The fact that the learned court below did not so treat it, of course, gave the defendant no cause for complaint.
The appellant stresses its claim of privilege particularly in relation to the publication concerning Bausewine's friendship with Allegro. But, here again, whether those statements were privileged depended upon facts which were for the jury to determine. To qualify as fair comment, a publication must have been upon a proper occasion, from a proper motive, in a proper manner and must have been based upon reasonable or probable cause. Hartman v. Hyman Lieberman, 287 Pa. 78, 83-84,134 A. 486; Montgomery v. New Era Printing Company, 229 Pa. 165, 167,78 A. 85; Conroy v. Pittsburgh Times, 139 Pa. 334, 338,21 A. 154; Briggs v. Garrett, 111 Pa. 404, 414, 2 A. 513. Under the evidence, it was for the jury to say whether the resurrection of the court record of Allegro's hearing for a traffic violation, after a lapse of almost eleven years and when it was no longer news, was upon a proper occasion, — and, whether it was done for a proper purpose or from a desire to defame and disgrace the plaintiff to his injury. It was necessary that these and related questions of fact be answered by the jury before it could be determined whether or not the plea of *Page 646
privilege was available to the defendant even in this instance. The privilege which ordinarily attends a newspaper report of court proceedings is not absolute. The privilege may be forfeited by an abuse such as unfair and unwarranted comment. See Boyer v. Pitt Publishing Company, supra, at p. 159, and cases there cited. Privilege is unavailable as a defense when the publication is made from actual malice. See McIntyre v.Weinert, supra, at p. 57.
The learned trial judge submitted the issues to the jury in a charge which was clear, fair and comprehensive and of which the appellant makes no complaint. In fact, at the conclusion of the charge, counsel for the defendant appropriately and frankly stated of record that it was "complete and very fair".
The fact that two months after the trial of the instant cases the plaintiff was found guilty in the local criminal court of accepting a bribe and of nonfeasance in office did not constitute after-discovered evidence entitling the defendant to a new trial on that ground. At most, it was a subsequently transpiring occurrence which, if known at the time of the trial now under review, would not have been admissible. The learned court below therefore correctly overruled that ground as furnishing no reason for a new trial. While it is permissible to show that one claiming damages for injury to his reputation has a bad reputation, proof of separate acts of bad conduct or guilt of criminal offenses is not admissible on an issue of general reputation, not even to mitigate damages. Pease v.Shippen, 80 Pa. 513, 515-516. Moreover, that issue must be related to the time of the alleged injury. Hopkins v. Tate,255 Pa. 56, 60-61, 99 A. 210. Nor was the plaintiff's conviction relevant to the defamation in the defendant's publications. Cf.Moyer v. Moyer, 49 Pa. 210, 211; Conroe v. Conroe, 47 Pa. 198,201. Beyond that, the defendant never made an issue of the plaintiff's reputation. On the contrary, upon the defendant's own objection, the learned trial judge foreclosed the plaintiff *Page 647
from offering in rebuttal evidence of the plaintiff's good conduct for the purpose of meeting any adverse inference that might be drawn from the defendant's testimony. In so ruling, the learned trial judge stated, — "There is no insinuation of your [the plaintiff's] character or reputation." In no event was the plaintiff's reputation material to the question of the punitive damages for which the defendant could be justly assessed under the evidence. To libel, from actual malice, a person of even bad reputation may merit punishment by way of damages as much as would such a libel of a person of good reputation.
We are certainly in no position to say that the learned court below erred when it entered judgments for the plaintiff in one-fourth of the amounts of the verdicts. The cases had been tried twice with resultant verdicts against the appellant in an aggregate amount of $50,000 each time. Punitive damages were especially indicated because of the proofs of actual malice, which had been openly avowed and deliberately carried out. And, the continued existence of the actual malice was further accentuated by the defendant's failure to make good its plea of truth and justification and, particularly, by its persistence in that plea (at the new trial obtained on its motion) after a jury had already discountenanced the plea and had rendered verdicts for the plaintiff in quite substantial sums. SeeWill, etc., v. Press Publishing Co., 309 Pa. 539, 544,164 A. 621.
The appellant's remaining contentions are no less lacking in merit. The defendant's objection at trial, which resulted in the dismissal of the jury first drawn, did not go to the qualifications or integrity of the particular jurors. It related solely to the manner in which the clerk had drawn the jurors' names from the box. The jurors, so dismissed, were therefore very properly returned to the whole panel from which the second jury was drawn. The fact that four of the original group were among the second twenty drawn (subject to challenge) *Page 648
did not harm the defendant. And, the prejudice it ascribes is unrealistic. The whole matter of the dismissal of the first panel of twenty jurors had been heard by the court in chambers out of the jurors' hearing. Even had they known at whose instance the first drawing had been set aside, that would not have furnished legal cause for subsequent challenge. Anyway, it was too late after a trial on the merits to raise the question which the appellant now urges. See Act of February 21, 1814, P. L. 60 (6 Sm. L. 111, § 1), 12 Pa.C.S.A. § 711.
Nor was it error for the trial court to permit two of the plaintiff's witnesses to testify, as recipients, concerning the effect of the publications on the minds of average readers. The fact that the particular witnesses happened to be former newspapermen and former employees of the defendant did not render them incompetent. The extent of their ability to reflect the impressions of average readers went merely to the credibility of their estimate. Whether they should have been permitted to testify in such regard lay in the sound discretion of the trial judge. See Davis, Trustee, v. Southern Surety Co.,302 Pa. 21, 26, 153 A. 119. There was no abuse of discretion. The defendant itself produced two witnesses, who also testified in that regard, but it now complains that all such testimony was irrelevant if not incompetent, citing Pittsburgh, Alleghenyand Manchester Passenger Railway Co. v. McCurdy, 114 Pa. 554,559, 8 A. 230. Even assuming as much, the testimony did no substantial harm. In the end, the learned trial judge, in a clear and understandable instruction, submitted for the jury's ascertainment what effect the publications had had upon the average reader.
Finally, the appellant complains that the plaintiff and his trial counsel were guilty of prejudicial and inflammatory statements in the jury's presence. A careful reading of the record has not disclosed any justification for the defendant's charge of prejudice. Whether a juror should have been withdrawn on any of the motions made *Page 649
by the defendant involves a matter which also rested in the sound discretion of the trial judge. We fail to see any abuse of such discretion. On the other hand, care was uniformly exercised by the court to preclude the injection of passion and prejudice and, to that end, plaintiff's counsel appears to have cooperated. In the one instance where the plaintiff himself, while on the stand, volunteered a statement to which defendant's counsel took vigorous exception, the learned trial judge promptly ordered it stricken from the record and properly and adequately cautioned the jury accordingly. The trial was free from substantial error and the appellant has no just cause for complaint.
The judgments appealed from are affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3391061/ | Plaintiff-appellant was a broker and had a listing on defendants' property, which had been cancelled, but defendants, on being advised by plaintiff that he had a prospect, invited negotiations which resulted in the defendants-appellees-owners entering into a contract with special terms relating to a sale. *Page 5
It had not been made to appear whether either the vendor or the vendee has been put in default under this contract of sale, but it has been made to appear that the sales contract has not been consummated and that there is a controversy between the sellers-defendants and the prospective purchaser.
A provision of the contract between the vendor and vendee was as follows:
"Said deferred payments shall be secured by a first Mortgage on the above described property and so long as the total unpaid amount of the purchase price exceeds $12,875.00, Buyer shall maintain on deposit with First National Bank of Leesburg, Florida, as Escrow Agent, negotiable securities having acurrent market value equal to the difference between said $12,875.00 and the total of unpaid purchase price, Buyer shall have right of substitution as to such securities and when unpaid balance of purchase price shall have been reduced to $12,875.00 or less all such securities shall be released to Buyer (or his nominee) and said Escrow shall thereupon terminate and end." (Italics supplied).
The evidence shows that the vendee wishes to take advantage of the foregoing provision and tendered or offered some Mt. Vernon Preferred Stock, the exact identity of which is not established by the record. The vendor refused to accept this stock, which resulted in a stalemate insofar as the closing of the sale was concerned. The contract called for the substitution of "negotiable securities having a current market value equal to the difference between said $12,875.00 and the total of unpaid purchase price." If it had been established that the Mt. Vernon Preferred Stock had a current market value of the specified amount and, if the amount had been sufficient, it might have then been as well assumed that the appellant here and plaintiff below had found a purchaser ready, able and willing to buy, and that the vendor was in default with his purchaser, and the liability, according to the expressed contract, would have been established. However, as it is now, it appears to me that plaintiff has failed to establish that he has found a purchaser ready, able and willing to buy and that the verdict of $250.00 was in equity and good conscience and law adequate compensation for the payment of *Page 6
his services rendered pursuant to an expressed contract which has not been fully performed. To state it otherwise, if the defendant-vendor had appealed the case instead of the plaintiff-appellant, it appears that we would have been compelled to reverse the case. It is clear that the only reason that the vendor did not appeal is because he is willing to pay $250.00 to rid himself of the suit, which is of course the exercise of good judgment. If the plaintiff has recovered $250.00, when the evidence shows he is not entitled to anything, he has no grounds for complaint in this court.
"'. . . That in general assumpsit the cause of action isnever based upon an express contract no matter whether there was an express contract or not. The recovery is based upon the implied contract to pay. The contract will prevent the plaintiff from recovering beyond the contract price, but cannot be used by him to prevent the defendant from proving mitigating
facts under this count . . .'" (Italics supplied).
Hazen v. Cobb, 96 Fla. 151, 163.
The plaintiff here, according to the evidence has brought a bill of interpleader against both vendor and vendee in respect to funds in his hands representing the down payment on the contract.
The plaintiff has sued on the common counts and on a special count.
As to the common counts, or general assumpsit, they are often referred to as "equity counts" and the defendant is held liable to the extent to which in equity and good morals he ought to pay. In this respect, it is stated in R. C. L. as follows:
"The action of general assumpsit is an equitable one, being in the nature of a bill in equity, and therefore is subject to the rule of moral obligation, which binds the conscience. The plaintiff must show that everything is fair and honest on his part, and it is a general rule, and where the consideration is a valuable and conscientious one, a promise to pay on it will not only be binding, but will also remove any legal bars which the undertaker previously had in his favor against a recovery. Thus if in conscience a defendant ought to pay, a promise to pay, when there is a consideration, will give a remedy." *Page 7
2 R. C. L., p. 746.
The leading case on the common counts in this State seems to be that of Hazen v. Cobb, 96 Fla. 151, 117 So. 853, Headnote 14 of which reads as follows:
"Where there has been a special contract, and the plaintiff brings general assumpsit, the special contract is not the ground of plaintiff's right of recovery, though it may in many cases be admissible in evidence as pertinent to the amount of such recovery, as bearing upon such questions as the value of services actually performed or materials furnished by the plaintiff and accepted by the defendant."
The case of Hazen v. Cobb, supra, was a case which dealt with the sufficiency of the declaration based on the common counts and a special count growing out of an alleged breach of a written contract.
SEBRING, J., concurs. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3391163/ | The record in this cause having been considered by the court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered, and decreed by the Court that the decree of the court below should be, and the same is hereby, affirmed.
BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL AND DAVIS, J.J., concur.
BROWN, J., dissents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7266/ | UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-20285
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIRIAM HENAO POSADO,
PABLO RAMIREZ and
IRMA CLEMENCIO HURTADO,
Defendants-Appellants.
Appeals from the United States District Court
For the Southern District of Texas
(June 20, 1995)
Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit
Judges.
DeMOSS, Circuit Judge:
This appeal concerns the admissibility of polygraph evidence
in a pretrial hearing to suppress forty-four kilograms of cocaine
recovered after an airport interdiction and search of the
defendants' luggage. The district court refused to consider
polygraph evidence offered by the defendants to corroborate their
version of events preceding the arrest. Our precedent, with few
variations, has unequivocally held that polygraph evidence is
inadmissible in a federal court for any purpose. See, Barrel of
Fun, Inc. v. State Farm Fire & Cas. Co., 739 F.2d 1028, 1031 (5th
Cir. 1984)(collecting cases). However, we now conclude that the
rationale underlying this circuit's per se rule against admitting
polygraph evidence did not survive Daubert v. Merrill Dow
Pharmaceutical, Inc., 113 S. Ct. 2786 (1993). Therefore, it will
be necessary to reverse and remand to the district court for
determination of the admissibility of the proffered evidence in
light of the principles embodied in the federal rules of evidence
and the Supreme Court's decision in Daubert. Given the sparsity of
the record, however, we express no opinion about whether, based on
that analysis, the evidence possesses sufficient evidentiary
reliability and relevance to be admissible in the suppression
hearing on remand.
BACKGROUND
Defendants Miriam Henao Posado, Pablo Ramirez and Irma
Clemencio Hurtado were each indicted and subsequently convicted of
one count of conspiracy to possess and one count of possession with
intent to distribute in excess of five kilograms of cocaine in
violation of 21 U.S.C. §§ 841 (a)(1), 841(b)(a)(A) and 846. Prior
to trial the defendants moved to suppress the cocaine found in
their luggage and certain post-arrest statements. At issue was
whether the defendants validly consented to a search of their
luggage. The prosecution sought to justify the search solely on
the basis of consent, offering a Spanish-language consent form
executed by all three defendants.1 The three defendants, by way of
1
As counsel for the government stated in oral argument, this
case was treated "only as a consent case." It would be
inappropriate, on the basis of the present record, to determine
2
affidavit, claimed (1) that they were not asked to consent and did
not consent, either orally or in writing, to the search of their
luggage until after the bags had been opened, (2) that they were
told they were under arrest before their bags were searched, and
(3) that they were not given Miranda warnings before the bags were
opened. Defendants contended that the consent was invalid either
(1) because it was given after the bags were opened, or (2) because
it followed and was tainted by an illegal arrest without probable
cause.
Events Leading up to the Search
On September 17, 1993, Miriam Henao Posado, Pablo Ramirez and
Irma Clemencio Hurtado arrived at Houston Intercontinental Airport
in a maroon car driven by an unidentified third party. As they
unloaded their baggage, they were observed by Houston Police
Department (HPD) Officers Rodriguez and Furstenfeld and an agent
with the Drug Enforcement Agency (DEA). The officers became
suspicious that the defendants might be carrying narcotics based on
certain characteristics of the defendants' baggage and behavior.
Based on those suspicions and prior to confronting the defendants,
the officers retrieved from the airline the three suitcases checked
by the defendants and "prepped" one of the bags. "Prepping"
involves squeezing the sides of a bag, which causes the odor of
whether independent probable cause existed for the search. We
note, however, that that issue may well be appropriate for
consideration on remand.
3
whatever is contained inside to be emitted. In this case, the
officers detected fabric softener, which is often used by narcotics
traffickers to mask the odor of narcotics in transport.
Shortly thereafter, the two HPD officers approached the
defendants in the snack bar area, identified themselves as police
officers and asked the defendants for their tickets and
identification. When it became apparent that none of the
defendants spoke English, Officer Rodriguez conversed with them in
Spanish. Neither Posado nor Hurtado were carrying any
identification, and the name on the identification produced by
Ramirez did not match either his ticket or the name placed on the
baggage tag. Ramirez' identification was examined and then
returned to him.
When asked about luggage, the defendants responded by
indicating three carry-on bags. When Officer Rodriguez pointed to
the baggage tags stapled inside the defendants' ticket folders, one
of the defendants conceded that they had checked three suitcases.
Here the stories diverge. Officer Rodriguez testified that, after
expressing some concern about missing their flight, the defendants
agreed to accompany him downstairs so that he could inspect the
luggage. He also testified that he advised the defendants at that
time that they were free to leave. The defendants testified that
Officer Rodriguez never informed them that they were free to leave
and that they were under the impression that they were not free to
leave. See Florida v. Bostick, 111 S. Ct. 2382, 2389 (1991)
(seizure occurs when police conduct would communicate to a
4
reasonable person that they are not free to leave). The defendants
also testified that Officer Rodriguez insisted they accompany him
despite protests from defendant Ramirez that the delay would cause
them to miss their scheduled flight. Defendant Ramirez testified
that the officers took and maintained possession of two of their
carry-on bags at that time. Once downstairs, the two HPD officers
and the three defendants were joined by the DEA agent who had
possession of the three larger suitcases checked by the defendants.
The defendants were asked for keys to the padlocks, which they did
not have.
The officers testified that immediately after asking for keys,
Officer Rodriguez secured the defendants' consent to search, both
orally and in writing. Officer Rodriguez also testified that he
advised the defendants in Spanish that they were not required to
consent. Next, Officer Furstenfeld unsuccessfully attempted to
open the suitcases using a master set of luggage keys. Only then,
according to the officers, were the padlocks pried open and the
bags searched.
The defendants testified that immediately after they were
asked for keys, Officer Furstenfeld began trying to open the
suitcases with the master set of keys. When he could not, Officer
Furstenfeld pried open the padlock and opened the zipper slightly.
At that point, the defendants claim, Officer Furstenfeld stopped
suddenly and ran upstairs. In his absence, the DEA agent continued
opening the suitcase with a pen knife, looked inside and announced
that it contained drugs. At that point, the defendants testified,
5
Officer Furstenfeld returned with the consent form and it was
executed by the defendants. Afterwards, the other two suitcases
were opened.
The Polygraph Examinations
Perceiving that the suppression hearing would amount to a
"swearing match" between the three officers and the three
defendants (that the defendants would be likely to lose), the
defendants arranged to submit to polygraphs to establish the truth
of the assertions in their affidavits. Well before the tests were
given, counsel for the defendants contacted the prosecution and
extended the opportunity to participate in the tests. The
defendants also offered to stipulate that the results would be
admissible in any way the government wanted to use them, at trial
or otherwise. The prosecution declined this opportunity.
Subsequently, the defendants were examined by polygraph
experts Paul K. Minor and Ernie Hulsey. In separate examinations
each defendant was asked the following questions and each gave the
following answers:
A. Before opening that first bag, did any police
official ever ask for permission to search any
of those bags? No.
B. Before searching your luggage, were you told
that you were under arrest? Yes.
C. At the airport, were you ever told that you
were free to leave? No.
D. Did you deliberately lie in your affidavit?
No.
E. Before opening your bags, did the police
officials advise you of your Miranda rights?
No.
6
Both Minor and Hulsey concluded that in each case "deception was
not indicated." Thereafter, the defendants moved for an order
allowing Minor and Hulsey to testify regarding the results of the
three tests at the pretrial suppression hearing or, in the
alternative, for a hearing on the admissibility of polygraph
results as expert evidence under the Federal Rules of Evidence and
the standards enunciated by the Supreme Court in Daubert v. Merrill
Dow Pharmaceutical, 113 S. Ct. 2786 (1993). Defendants' proffer
included the reports on the polygraph examinations as well as the
curriculum vitae for both Minor and Hulsey. In support of their
request for a Daubert hearing on the issue, defendants submitted
the affidavit of another polygraph expert, Dr. Stan Abrams, Ph.D.,
to establish that polygraph technique possesses sufficient
scientific validity to be admissible.
At the beginning of the subsequent suppression hearing, the
district court summarily refused to consider the polygraph
testimony and also refused to consider whether the testimony was
reliable and relevant under the Federal Rules of Evidence, stating:
I am a great believer in polygraph, that polygraph
technique, I think it's extremely effective as a law
enforcement tool. I do not believe, however, that it
belongs in the courtroom, either before the Court or
before the jury, for several reasons, one of which is
that it will lead to an impossible situation where we
will have to hear polygraph experts on both sides, and
we'll get into the same battle of experts that we get
into in so many areas of the law.
I am very concerned that it does have some valid use
in determining whether people are likely to be truthful
or likely not to be truthful, however, I think it opens
up some policy questions that belong either to Congress
or to the appellate courts to resolve before we get into
it here in the courtroom.
7
At the conclusion of the suppression hearing, the district court
denied the defendants' motion to suppress, holding that the
defendants knowingly and voluntarily consented to a search of their
luggage before any of the bags were opened, and that the defendants
were not arrested until after the bags were searched. Shortly
after the hearing, the defendants and the government entered into
a stipulation that the defendants would be tried by the court on
the evidence presented at the suppression hearing. All three
defendants were convicted on both the conspiracy to possess and
possession counts, and this appeal followed.
APPLICABLE LAW
On appeal, the defendants contend that Daubert required the
district court to conduct a hearing on the admissibility of the
polygraph evidence as expert testimony under Federal Rule of
Evidence 702. Defendants also argue that the district court erred
in refusing to consider polygraph evidence where it was offered
solely for use in a pretrial suppression hearing, relying on
Bennett v. City of Grand Prairie, Texas, 883 F.2d 400 (5th Cir.
1989). Finally, the defendants maintain that the district court
erroneously found that consent was knowing and voluntary, and
therefore valid. The government concedes that a per se rule
against admitting polygraph evidence, without further inquiry, is
not viable after Daubert, but argues that the proffered evidence in
this case was properly excluded under rule 403.
We reject the defendants' argument that Bennett controls.
Bennett held that it was not error for a magistrate to consider an
8
affidavit referring to polygraph results, along with other
evidence, to determine whether there was probable cause to issue an
arrest warrant. 883 F.2d at 405-06. That case does not extend so
far as to control the admissibility of polygraph testimony in all
pretrial proceedings. Daubert, along with the Federal Rules of
Evidence, provide the guiding principles.
We also reject the government's invitation to short-circuit
the Daubert analysis by finding that the district court implicitly
relied on Rule 403 to exclude the evidence. We conclude that the
district court applied a per se rule against admitting polygraph
evidence. Even the government concedes that that rule is no longer
viable after Daubert. Therefore, the case must be remanded.
From Frye to Daubert - Rule 702
Before Daubert, the standard for determining the admissibility
of scientific or technical evidence in our circuit was the Frye
"general acceptance" test, which required the proponent to
demonstrate that the science or technology relied upon enjoyed
general acceptance in the relevant scientific or technical field
from which it arose. The Frye test originated in a short and
citation-free case in which a criminal defendant attempted to
introduce what Daubert called a "crude predecessor" of the
polygraph to demonstrate his innocence in a murder trial. Daubert,
113 S. Ct. at 2793; Frye v. United States, 293 F. 1013 (D.C. Cir.
1923). Frye thus became the seminal polygraph case, and many of
our precedents discussing polygraph or similar evidence either cite
Frye or conclude that such evidence is unreliable because the
9
polygraph does not enjoy general acceptance and use. See e.g.,
Barrel of Fun, Inc. v. State Farm Fire & Cas. Co., 739 F.2d 1028,
1031 (5th Cir. 1984); United States v. Martino, 648 F.2d 367, 390
(5th Cir. 1981); United States v. Cochran, 499 F.2d 380, 393 (5th
Cir. 1974), cert. denied, 419 U.S. 1124 (1975); United States v.
Gloria, 494 F.2d 477, 483 (5th Cir.), cert. denied, 419 U.S. 995
(1974); United States v. Frogge, 476 F.2d 969, 970 (5th Cir.),
cert. denied, 414 U.S. 849 (1973).
Daubert expressly rejected the "austere" Frye standard,
holding that the Frye approach was superseded by adoption of the
Federal Rules of Evidence. 113 S. Ct. at 2794. In its stead the
Supreme Court outlined a "flexible" inquiry driven primarily by
Federal Rules of Evidence 401, 402, 403, and 702. After discussing
the "liberal thrust" of the federal rules, as reflected in Rules
401 and 402, the Court noted that nothing in Rule 702, which
governs the admissibility of expert testimony, makes "general
acceptance" an absolute prerequisite to admissibility.2 What that
rule does require, the Court held, is that the trial judge make
initial determinations under Rule 104(a)3 that the proffered
2
Rule 702 governing expert testimony provides:
If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise.
3
Rule 104(a) provides:
Preliminary questions concerning the qualification of a
person to be a witness, the existence of a privilege, or
the admissibility of evidence shall be determined by the
court, subject to the provisions (b) [pertaining to
10
evidence possesses sufficient evidentiary reliability to be
admissible as "scientific, technical, or other specialized
knowledge" and that the proffered evidence is relevant in the sense
that it will "assist the trier of fact to understand the evidence
or to determine a fact in issue." Daubert, 113 S. Ct. at 2796.
Whether evidence assists the trier of fact is essentially a
relevance inquiry. Daubert, 113 S. Ct. at 2795-96. To be
"helpful" under Rule 702, the evidence must possess validity when
applied to the pertinent factual inquiry.4 If polygraph technique
is a valid (even if not certain) measure of truthfulness, then
there is no issue of relevance. The defendants' polygraph answers,
which are consistent with their testimony, tend to prove that they
did not consent to a search of their bags until after the bags were
searched. That fact is clearly relevant, because it tends to prove
that the search was not valid.
Evidentiary reliability, or trustworthiness, is demonstrated
by a showing that the knowledge offered is "more than speculative
conditional admissions]. In making its determination it
is not bound by the rules of evidence except those with
respect to privileges."
4
The example given by the Supreme Court demonstrates that
particular evidence may have validity for some purposes and not for
others:
The study of the phases of the moon, for example, may
provide valid scientific "knowledge" about whether a
certain night was dark, and if darkness is a fact in
issue, the knowledge will assist the trier of fact.
However (absent credible grounds supporting such a link),
evidence that the moon was full on a certain night will
not assist the trier of fact in determining whether an
individual was unusually likely to have behaved
irrationally on that night.
113 S. Ct. at 2796.
11
belief or unsupported speculation." Daubert, 113 S. Ct. at 2795.
Certainty is not required, but the knowledge asserted must be based
on "good grounds." Id. For scientific knowledge, there should be
proof that the principle supports what it purports to show, i.e.
that it is valid. Id. Validity can be measured by several
factors, including whether the theory or technique can be tested
and whether it has been subjected to peer review or publication.
Id. at 2796-97. For particular techniques, such as polygraph or
voice identification, the known or potential rate of error may be
helpful in making the validity determination. Id. at 2797.
Finally, although it is not dispositive, the extent to which a
particular theory or technique has received general acceptance may
be relevant to whether it is scientifically valid. Id.
What remains is the issue of whether polygraph technique can
be said to have made sufficient technological advance in the
seventy years since Frye to constitute the type of "scientific,
technical, or other specialized knowledge" envisioned by Rule 702
and Daubert. We cannot say without a fully developed record that
it has not.
Even before Daubert, this court's view of polygraph evidence
had expanded somewhat. See Bennett, 883 F.2d at 405-06
(magistrates may consider polygraph evidence when determining
whether probable cause to issue an arrest warrant exists); United
States v. Lindell, 881 F.2d 1313, 1326 (5th Cir. 1989)
("[i]mpeachment evidence includes the results of a polygraph test"
for purposes of the Brady rule), cert. denied sub nom. Kinnear v.
12
United States, 493 U.S. 1087 (1993). In 1980, twelve judges of
this court agreed that whether polygraph was generally accepted
would be subject to reconsideration given a proffer tending to show
that polygraph technique had improved in the years since Frye.
United States v. Clark, 622 F.2d 917, 917 (5th Cir. 1980) (en banc)
(Gee, J., concurring), cert. denied, 449 U.S. 1128 (1981).5 In
1984, we recognized the considerable controversy surrounding our
circuit's continued adherence to a per se rule against polygraph
evidence, but concluded that en banc consideration would be
required to change our existing precedent. Barrel of Fun, Inc. v.
State Farm Fire & Cas. Co., 739 F.2d 1028, 1031 n.8 (5th Cir.
1984). After Daubert, a per se rule is not viable. Because no
panel has squarely addressed the issue of polygraph admissibility
since Daubert, en banc consideration is not required for this
decision.
There can be no doubt that tremendous advances have been made
in polygraph instrumentation and technique in the years since Frye.
The test at issue in Frye measured only changes in the subject's
systolic blood pressure in response to test questions. Frye v.
United States, 293 F. at 1013. Modern instrumentation detects
5
Several other circuits went further by granting the district
court limited discretion to consider polygraph evidence in certain
circumstances. E.g., United States v. Johnson, 816 F.2d 918, 923
(3d Cir. 1987); United States v. Flores, 540 F.2d 432, 436-37 (9th
Cir. 1976); United States v. Mayes, 512 F.2d 637, 648 n.6 (6th
Cir.), cert. denied, 422 U.S. 1008 (1975); United States v.
Infelice, 506 F.2d 1358, 1365 (7th Cir. 1974), cert. denied sub
nom., Garelli v. United States, 419 U.S. 1107 (1975); see also
United States v. Piccinonna, 885 F.2d 1529, 1532-35 (11th Cir.
1989)(summarizing various circuit approaches to polygraph
admissibility).
13
changes in the subject's blood pressure, pulse, thoracic and
abdominal respiration, and galvanic skin response.6 Current
research indicates that, when given under controlled conditions,
the polygraph technique accurately predicts truth or deception
between seventy and ninety percent of the time.7 Remaining
controversy about test accuracy is almost unanimously attributed to
variations in the integrity of the testing environment and the
qualifications of the examiner.8 Such variation also exists in
6
See 22 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE AND
PROCEDURE § 5169 at 95 n.7 (1978); Ronald J. Simon, Adopting a
Military Approach to Polygraph Evidence Admissibility: Why Federal
Evidentiary Protections Will Suffice, 25 TEX. TECH L. REV. 1055, 1059
(1994).
7
Bennett, 883 F.2d at 405 ("[p]olygraph exams, by most
accounts, correctly detect truth or deception 80 to 90 percent of
the time"). Even the most ardent polygraph detractors cite
accuracy rates of 70 percent. See Brown v. Darcy, 783 F.2d 1389,
1395 n.12 (9th Cir. 1986) (collecting studies). In 1983 the Office
of Technology Assessment (OTA) conducted a comprehensive inquiry
for the United States Congress. That inquiry found that accuracy
ranged anywhere from 58 to 98 percent. However, only ten of the
thirty studies reviewed met even minimal standards for scientific
validity in terms of the examiners and techniques used. Simon,
supra note 6, 25 TEX. TECH L. REV. at 1062-63. A more recent
comprehensive review of the OTA data reported that accuracy rates
were much higher for studies which most resembled realistic
polygraph practice, a factor which could explain as much as 65% of
the observed variation in detection rates. See John E. Kircher, et
al., Meta-Analysis of Mock Crime Studies of the Control Question
Polygraph Technique, 12 LAW & HUMAN BEHAVIOR 79 (1988); see also David
C. Raskin, The Polygraph in 1986: Scientific, Professional and
Legal Issues Surrounding Application and Acceptance of Polygraph
Evidence, 1986 UTAH L. REV. 29, 72 (1986) ("existing literature
suggests an accuracy of 90% or higher when examinations are
conducted to assess the credibility of suspects in criminal
investigations."); 1 MCCORMICK ON EVIDENCE § 206 at 909-11 (John
William Strong ed., 4th ed. 1992) and sources cited therein.
8
See United States v. Piccinonna,885 F.2d 1529, 1540-41 (11th
Cir. 1989) (Johnson, J., concurring in part and dissenting in part)
(citing research indicating that examiner expertise and test
procedure affects accuracy); Simon, supra note 6, 25 Tex. Tech L.
14
many of the disciplines and for much of the scientific evidence we
routinely find admissible under Rule 702. See 1 MCCORMICK ON EVIDENCE
§ 206 at 915 & n. 57. Further, there is good indication that
polygraph technique and the requirements for professional
polygraphists are becoming progressively more standardized.9 In
addition, polygraph technique has been and continues to be
subjected to extensive study and publication.10 Finally, polygraph
is now so widely used by employers and government agencies alike.
To iterate, we do not now hold that polygraph examinations are
scientifically valid or that they will always assist the trier of
fact, in this or any other individual case. We merely remove the
obstacle of the per se rule against admissibility, which was based
on antiquated concepts about the technical ability of the polygraph
Rev. at 1063-66 (discussing the affect of test integrity,
countermeasures, and examiner competence on polygraph accuracy).
9
See Piccinonna, 885 F.2d at 1533 & n. 13. At least 30 states
require licenses or regulate polygraphists. Raskin, supra note 7,
1986 UTAH L. REV. at 68. Dr. Abrams reports that the American
Polygraph Association (APA), which has about 2,500 members,
accredits schools of polygraphy, screens its members and
administers written and oral tests to graduates to assure an
established level of competency. Standard test protocol calls for
pre-test collection of data, a pre-test interview, administration
of the test questions (usually in a control question format) and a
post-test interview. In addition, the APA sanctions members who do
not follow enumerated testing procedures. See Charles M. Sevilla,
Polygraph 1984: Behind the Closed Door of Admissibility, 16 U. WEST
L.A. L. REV. 5, 18-20 (1984); Raskin, supra note 7, 1986 UTAH L. REV.
at 66-69 (both discussing the need for additional measures to
professionalize polygraph practice, which would have the effect of
increasing overall accuracy rates). In this case, counsel for the
defendants conceded at oral argument that the defendants' proffer
sufficiently established reliability.
10
See 22 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE &
PROCEDURE § 5169 at 92 n. 2 (collecting an impressive bibliography).
15
and legal precepts that have been expressly overruled by the
Supreme Court.
Rule 403 as Gatekeeper
Assuming that polygraph evidence satisfies the requirements of
Rule 702 does not end the inquiry. Other evidentiary rules, such
as Rule 403, may still operate to exclude the evidence. Daubert,
113 S. Ct. at 2797-98. While not discussed at length in Daubert,
the presumption in favor of admissibility established by Rules 401
and 402, together with Daubert's "flexible" approach, may well
mandate an enhanced role for Rule 403 in the context of the Daubert
analysis, particularly when the scientific or technical knowledge
proffered is novel or controversial. See Conti v. Comm'r of
Internal Revenue, 39 F.3d 658 (6th Cir. 1994) (excluding polygraph
evidence on the basis of Rule 403), cert. denied, 115 S. Ct. 1793
(1995).
Aside from Frye, the traditional objection to polygraph
evidence is that the testimony will have an unusually prejudicial
effect which is not justified by its probative value, precisely the
inquiry required of the district court by Rule 403. See Bennett,
883 F.2d at 404; Brown v. Darcy, 783 F.2d 1389, 1396 (9th Cir.
1986). In the context of this case and on the present record,
there are several factors that may operate to counterbalance the
potential prejudicial effect of this testimony. First, the
prosecution was contacted before the tests were conducted and
offered the opportunity to participate in the exams, including
stipulating as to any limited use for the evidence. In such a
16
case, both parties have a risk in the outcome of the polygraph
examination, simultaneously reducing the possibility of unfair
prejudice and increasing reliability. Second, the evidence was not
offered at trial before a jury, but in a pretrial hearing before
the district court judge. A district court judge is much less
likely than a lay jury to be intimidated by claims of scientific
validity into assigning an inappropriate evidentiary value to
polygraph evidence. Bennett, 883 F.2d at 405. We have consistently
held that the rules of evidence are relaxed in pretrial suppression
hearings. See FED. R. CIV. P. 104(a); United States v. DeLaFuente,
548 F.2d 528 (5th Cir.), cert. denied sub nom. Stewart v. United
States, 431 U.S. 932 (1977); United States v. Lee, 541 F.2d 1145
(5th Cir. 1976).
We note also that there are factors in this record which
substantially boost the probative value of this evidence. The
evidence at the suppression hearing essentially required the
district court to decide between the story told by the officers and
that told by the defendants, a not unusual situation, and perhaps
not sufficient alone to justify admission of "tie-breaker" evidence
carrying a high potential for prejudicial effect. In this case,
however, there was more. Because Officer Rodriguez was the only
Spanish-speaking officer on the scene, he alone could testify as to
what the defendants were told and as to their understanding of
whether they were under arrest or whether they were consenting to
a search of their baggage. Although Officer Rodriguez testified
that he explained the consent form to the defendants, he was unable
17
to read the consent form (printed in Spanish) to the court at both
the probable cause hearing and the suppression hearing. There was
also evidence calling the officers' recollection of events into
question. For example, Officer Rodriguez testified incorrectly at
the probable cause hearing that the defendants were travelling with
one-way tickets, a fact which he said contributed to his reasonable
suspicion that the defendants were carrying drugs. The defendants
were in fact holding round-trip tickets. In addition, the
defendants offered the testimony of a disinterested witness, an
airline employee, who contradicted the officers' version of the
events surrounding their retrieval of the defendants' bags from the
airline prior to the search. Finally, the defendants introduced at
the suppression hearing an order from a similar case in another
district court in the Southern District involving Officer
Rodriguez. In that case, the district court judge found that
Officer Rodriguez' version of the events leading up to the search
in that case was "untruthful" and therefore suppressed evidence
obtained after the defendants allegedly consented to the search.
Taken individually, each one of these inconsistencies can be
explained and may seem inconsequential. Taken together, however,
we believe that they can be said to enhance the need for evidence,
and therefore its probative value, for clarifying which of the
competing versions of what happened that day is true.
CONCLUSION
The district court essentially applied the per se rule
against admitting polygraph evidence established by our earlier
18
precedent. Because the district court's assessment of the
proffered polygraph evidence under the Daubert standard may well
affect the other issues raised by this appeal, it is inappropriate
at this time to address the district court's decision to exclude
the polygraph evidence from its consideration on the motion to
suppress or its fact finding that the search was supported by valid
consent. Those issues can be adequately addressed on subsequent
appeal, if necessary.
It is with a high degree of caution that we have today opened
the door to the possibility of polygraph evidence in certain
circumstances. We may indeed be opening a legal Pandora's box.
However, that the task is full of uncertainty and risk does not
excuse us from our mandate to follow the Supreme Court's lead.
Rather, "[m]indful of our position in the hierarchy of the federal
judiciary, we take a deep breath and proceed with this heady task."
Daubert v. Merrell Dow Pharmaceutical, Inc., 43 F.3d 1311, 1316
(9th Cir. 1995) (on remand from the Supreme Court).
Nor are we unaware that our opinion today may raise as many
questions as it answers. We leave much unsaid precisely because we
believe that the wisdom and experience of our federal district
judges will be required to fashion the principles that will
ultimately control the admissibility of polygraph evidence under
Daubert.
For the foregoing reasons, the district court's ruling on the
motion to suppress is REVERSED, the defendants' convictions are
VACATED and the case is REMANDED to the district court for
19
consideration of the evidentiary reliability and relevance of the
polygraph evidence proffered by the defendants under the principles
embodied in the Federal Rules of Evidence and the Supreme Court's
decision in Daubert.
wjl\opin\94-20285.opn
ves 20 | 01-03-2023 | 04-25-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3391176/ | Cause dismissed on motion of counsel for respondents. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1713709/ | 447 So. 2d 965 (1984)
TRI-PROPERTIES, INC., Appellant,
v.
MOONSPINNER CONDOMINIUM ASSOCIATION, INC., Appellee.
No. AT-307.
District Court of Appeal of Florida, First District.
March 16, 1984.
*966 Robert B. Staats of Staats, Overstreet & White, Panama City, for appellant.
John D. O'Brien, Panama City, for appellee.
SMITH, Judge.
Appellant, a management company, appeals from a final judgment denying relief in its breach of contract action against appellee-condominium homeowners association. Appellant essentially contends that the association should be liable for damages for wrongful cancellation of the contract in the absence of proof that the contract was breached by appellant, or was unfair or unreasonable. The trial court ruled, and we agree, that it was unnecessary for the association to prove breach of contract, or that it was unfair or unreasonable, in order to exercise the right of cancellation under Section 718.302, Florida Statutes (1981).
The facts, briefly, are that appellant entered into a contract with the association on June 4, 1982, for management of the condominium operated by the association. At the time the contract was entered into the association was under the control of the developers. On December 11, 1982, unit owners other than the developer owned in excess of 75 percent of the units in the condominium. On that date, by vote of the owners of more than 75 percent of the non-developer owned units, the owners cancelled appellant's management contract with the association. At the final hearing before the trial judge there was no proof of any breach of contract by appellant, nor was there any contention that the contract was not fair and reasonable. Appellee relied solely upon the provisions of Section 718.302, Florida Statutes (1981), as giving it the right to cancel the contract.
The statute, in pertinent part, provides:
718.302 Agreements entered into by the association.
(1) Any grant or reservation made by a declaration, lease, or other document, and any contract made by an association prior to assumption of control by the association by unit owners other than the developer, that provides for operation, maintenance, or management of a condominium association or property serving the unit owners of a condominium shall be fair and reasonable, and may be cancelled by unit owners other than the developer:
(a) If ... unit owners other than the developer own not less than 75 percent of the units of the condominium, the cancellation shall be by concurrence of the owners of not less than 75 percent of the units other than the units owned by the developer. .. . (emphasis supplied)
The trial court interpreted the above statutory provision as granting to the requisite number of unit owners the right to cancel any operation, maintenance, or management contract between the association and *967 a third party, without regard to whether there has been any breach or nonperformance by the third party, and without regard to whether the contract is fair and reasonable. Appellant maintains that the statute does not relieve the owners from the burden of proving that the contract is not "fair and reasonable," or that there has been a breach by the management company, in order to avoid liability for damages upon cancellation. Appellee, on the other hand, contends that the requirement that such contracts must be "fair and reasonable," and the provision authorizing cancellation by owners of 75 percent of the non-developer owned units, are separate and independent.
We conclude that the trial judge's interpretation was correct. It is apparent that this statutory provision, among others contained in Chapter 718, Florida Statutes, addresses the need of developers to provide for the operation, maintenance and management of condominium projects, and to enter into contracts for these purposes, and the need for protection of unit owners with respect to such contracts.[1] The provision at issue here governs certain contractual rights of developers and unit owners with respect to operation, maintenance and management during the period of transition between developer control and unit owners' control of the association operating the condominium. The legislature has simply determined that when 75 percent of the units in a condominium complex are non-developer owned, those unit owners should be free to reject operation, maintenance, and management contracts previously made by the developer-controlled association. The statute spells out other circumstances under which owners other than the developer may cancel contracts with third parties, and contains provisions also for the making of new contracts by the association. The intent of the Legislature to confer upon unit owners other than the developer cancellation rights in addition to rights they would have under ordinary contract law is apparent from a reading of other provisions of Section 718.302(1). For example, subparagraph (e)1. provides that notwithstanding the provisions of subsection (1), certain vending equipment contracts "shall not be subject to cancellation as provided herein ...," provided the contract meets certain criteria enumerated in subparagraphs a through f, inclusive, all of which are designed to afford protection of unit owners other than the developer.
Finally, appellant recognizes the difficulty in asserting an impairment of contract claim under the federal or state constitutions, since the statute relied upon by appellee as its sole defense was in effect prior to and at the time of execution of the contract under consideration.[2] Further, although appellant urges the general applicability of constitutional principles in the interpretation of statutes, citing 10 Fla. Jur.2d, Constitutional Law, §§ 69-73, the constitutionality of the statute was not directly challenged in the trial court, and constitutional questions have not been briefed nor argued for our review on appeal.[3]
*968 Accordingly, the judgment appealed from is AFFIRMED.
ERVIN, C.J., and NIMMONS, J., concur.
NOTES
[1] "In Florida, condominiums are creatures of statute and as such are subject to the control and regulation of the Legislature. That body has broad discretion to fashion such remedies as it deems necessary to protect the interests of the parties involved." Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association, 361 So. 2d 128, 133 (Fla. 1978).
[2] In order for a statute to offend the prohibition against impairment of contracts, Article I, Section 10, United States Constitution, Article I, Section 10, Florida Constitution, it must have the effect of changing the substantive rights of the parties to an existing contract. Manning v. Travelers Insurance Company, 250 So. 2d 872 (Fla. 1971). Further, the laws in force at the time of the making of the contract enter into and form a part of the contract as if they were expressly incorporated into it. See, State v. Coral Gables, 72 So. 2d 48 (Fla. 1954); 10 Fla. Jur.2d, Constitutional Law, § 315. Any attempt to retroactively apply the cancellation rights conferred by Section 718.302 to existing contracts would, however, be constitutionally suspect. Cf. Rebholz v. Metrocare, Inc., 397 So. 2d 677 (Fla. 1981).
[3] The questions presented on appeal call for interpretation and application of the statute. Constitutional issues, other than those constituting fundamental error, are waived unless timely raised. Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970). Appellant suggests without citation of particular constitutional provisions or case authority, that although the Legislature might have the authority to confer the right of cancellation of a contract and thus eliminate the remedy of specific performance (an interpretation of Section 718.302 urged by appellant, cf., Point East One Condominium v. Point East Developers, Inc., 348 So. 2d 32 (Fla. 3rd DCA 1977)), constitutional issues might be implicated in the Legislature's denial of the right to seek recovery of damages for such cancellation. This does not sufficiently raise a constitutional question for decision by this court. See, State v. Miami Coin Club, 88 So. 2d 293 (Fla. 1956). A party asserting the invalidity of a statute is charged with the burden of proving that it is invalid. Milliken v. State, 131 So. 2d 889 (Fla. 1961); Metropolitan Dade County v. Bridges, 402 So. 2d 411 (Fla. 1981); Fulford v. Graham, 418 So. 2d 1204 (Fla. 1st DCA 1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/166606/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 28, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 05-1273
v. D. Colorado
RAUL ATAYDE, (D.C. Nos. 05-S-566
and 99-CR-300-S)
Defendant - Appellant.
ORDER
Before HARTZ, Circuit Judge, BARRETT, Senior Circuit Judge, and
McCONNELL, Circuit Judge.
Mr. Raul Atayde was convicted by a jury on numerous drug charges and
sentenced to 365 months in prison. The conviction was affirmed on direct appeal,
United States v. Hinojosa-Gonzalez, 68 Fed. Appx. 918 (10th Cir. 2003), and on
February 23, 2004, the Supreme Court denied his petition for a writ of certiorari.
Atayde v. United States, 540 U.S. 1205 (2004).
On March 24, 2005, Mr. Atayde signed and mailed a motion to vacate his
sentence under 28 U.S.C. § 2255. The motion was filed with the district court on
March 28, 2005. Relying on Blakely v. United States, 524 U.S. 296 (2004), and
United States v. Booker, 125 S. Ct. 738 (2005), it alleges (1) a due process
violation because the judge was unaware of his sentencing discretion and (2) a
violation of his right to a jury trial. The district court denied the motion as barred
by the statute of limitations, and denied a request for a certificate of appealability
(COA). Mr. Atayde now seeks a COA from this court.
“A certificate of appealability may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). This means that the applicant must show “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, the applicant must
show that the district court’s resolution of the constitutional claim was either
“debatable or wrong.” Id. If the petition was denied on procedural grounds, the
applicant faces a double hurdle. Not only must the applicant make a substantial
showing of the denial of a constitutional right, but he must also show “that jurists
of reason would find it debatable . . . whether the district court was correct in its
procedural ruling.” Id. “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the
petition should be allowed to proceed further.” Id. Mr. Atayde has not met this
burden.
-2-
We review the district court’s factual findings for clear error and its legal
conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001).
The district court correctly found that Mr. Atayde’s motion was barred. His
sentence became final on February 23, 2004, when the Supreme Court denied his
petition for a writ of certiorari. See United States v. Willis, 202 F.3d 1279, 1280-
81 (10th Cir. 2000). His motion for habeas relief was mailed on March 24, 2005.
Under the “prison mailbox rule” this is the date on which the motion was filed for
purposes of 28 U.S.C. § 2255. See Price v. Philpot, 420 F.3d 1158, 1163-64
(10th Cir. 2005). Mr. Atayde’s motion was therefore filed more than one year
after his date of conviction became final and is barred by the statute of limitations
in 28 U.S.C. § 2255.
Mr. Atayde argues that he had one year from Booker to file his claim. He
would be correct if Booker were “retroactively applicable to cases on collateral
review.” 28 U.S.C. § 2255. But Booker is not retroactively applicable, and
neither is Blakely. See United States v. Bellamy, 411 F.3d 1182, 1186-88 (10th
Cir. 2005). Mr. Atayde attempts to overcome this by arguing that his claim is
based on Hicks v. Oklahoma, 447 U.S. 343 (1980). In that case the Supreme
Court held that a defendant was prejudiced by an instruction that required the jury
to impose a 40-year prison sentence, thereby removing all discretion from the
jury, in violation of Oklahoma state law. From this, Mr. Atayde argues that he
-3-
was denied due process because the judge in his case was confined by
unconstitutional guidelines when he should have had more discretion. But even
though Mr. Atayde relies on Hicks, that case avails him nothing without Booker,
which, as noted, we do not apply retroactively to cases on collateral review.
Finally, Mr. Atayde argues that this procedural bar is overcome by the
actual-innocence exception. See United States v. Cervini, 379 F.3d 987, 991
(10th Cir. 2004). But he does not even allege any new evidence disputing the
facts found by the court at sentencing, and his bare assertions are not enough. See
Schlup v. Delo, 513 U.S. 298, 327 (1995) (“To establish [actual innocence], the
petitioner must show that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence.”).
We DENY a COA and dismiss the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-4- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/168832/ | 478 F.3d 1149
FOREST GUARDIANS, a nonprofit corporation; Sinapu, a nonprofit corporation; Center for Native Ecosystems, a nonprofit corporation; Animal Protection of New Mexico, a nonprofit corporation; Animal Protection Institute, a nonprofit corporation; and Carson Forest Watch, a nonprofit corporation, Plaintiffs-Appellants,v.Harv FORSGREN, Regional Forester, U.S. Forest Service Region 3; United States Forest Service, a Federal Agency; Ann M. Veneman, Secretary of the United States Department of Agriculture; United States Department of Agriculture, a Federal Department; Gale Norton, Secretary of United States Department of Interior; United States Department of the Interior, a Federal Department; Steven Williams, Director, United States Fish and Wildlife Service; United States Fish and Wildlife Service, a Federal Agency; H. Dale Hall, Director, United States Fish and Wildlife Service, Region 2, Defendants-Appellees.
No. 05-2181.
United States Court of Appeals, Tenth Circuit.
February 23, 2007.
Matthew K. Bishop, Western Environmental Law Center, Taos, NM, for Plaintiffs-Appellants.
Mark R. Haag, Attorney (Kelly A. Johnson, Assistant Attorney General; James C. Kilbourne, Attorney) Environmental & Natural Resources Division, Department of Justice, Washington, D.C., for Defendants-Appellees.
Before MURPHY, BALDOCK, and McCONNELL, Circuit Judges.
BALDOCK, Circuit Judge.
1
The United States Fish and Wildlife Service (FWS) has listed a "distinct population segment" (DPS) of Canada Lynx as "threatened" under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-44. See Determination of Threatened Status for the Contiguous U.S. Distinct Population Segment of the Canada Lynx and Related Rule, 65 Fed.Reg. 16052 (March 24, 2000) (Final Rule), clarified by Notice of Remanded Determination of Status for the Contiguous U.S. Distinct Population Segment of the Canada Lynx, 68 Fed.Reg. 40076 (July 3, 2003) (Rule Clarification). Forest Guardians and other environmental nonprofit groups (collectively Forest Guardians) seek to compel the United States Forest Service pursuant to § 7(a)(2) of the ESA to consult with FWS on the question of whether the Land and Resource Management Plans (LRMPs) for the Carson and Santa Fe National Forests may jeopardize the continued existence of the lynx. See 16 U.S.C. §§ 1536(a)(2).1 We hold Forest Guardians' allegation of "agency action" in the amended complaint insufficient to sustain its claim against the Forest Service under § 7(a)(2) of the ESA.
I.
2
Congress enacted the ESA to provide for the "conservation, protection and propagation" of wildlife facing extinction. S.Rep. No. 93-307, at 1, reprinted in 1973 U.S.C.C.A.N. 2989; see also 16 U.S.C. § 1531(b). The ESA authorizes FWS to designate a DPS of a species as "endangered" or "threatened." See 16 U.S.C. §§ 1532(16), 1533(a)(1). When FWS designates a DPS of a species as endangered or threatened, sister agencies assume special obligations to protect that species. See Wyoming Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir.2000). The principal obligation at issue in this case is encompassed within § 7(a)(2) of the ESA. That section requires an acting agency (allegedly the Forest Service) to consult with FWS to ensure the former's "action" (allegedly the LRMPs) is unlikely to jeopardize the continued existence of an endangered or threatened species:
3
Each federal agency shall, in consultation with and with the assistance of the [FWS], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an "agency action") is not likely to jeopardize the continued existence of any endangered species or threatened species . . . .
4
16 U.S.C. § 1536(a)(2) (emphasis added).2 The applicable FWS regulation, in turn, defines "action" as "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States . . . ." 50 C.F.R. § 402.02 (emphasis added).
5
The district court dismissed Forest Guardians' amended complaint in its entirety. Relevant to our task, the court dismissed Forest Guardians' ESA claim against the Forest Service pursuant to Fed.R.Civ.P. 12(b)(6).3 According to the court, the DPS listing for the Canada Lynx is limited to a fourteen State area that does not encompass the Carson and Santa Fe National Forests, both of which are located entirely within the State of New Mexico. Because FWS has not listed the lynx as threatened in New Mexico, the district court concluded the ESA does not require the Forest Service to consult with FWS.4
6
Our jurisdiction to review the district court's dismissal of Forest Guardians' ESA claim arises under 28 U.S.C. § 1291. Our review is de novo. See Moya v. Schollenbarger, 465 F.3d 444, 454 (10th Cir.2006). We accept the factual allegations of the amended complaint as true but owe no such allegiance to its legal conclusions. See Jordan v. Alternative Res. Corp., 458 F.3d 332, 338 (4th Cir.2006). Because we conclude Forest Guardians has not adequately alleged the agency action necessary to trigger the Forest Service's duty to consult with FWS under § 7(a)(2) of the ESA, we need not reach the question of whether the DPS listing of Canada Lynx would otherwise require the Forest Service to consult with FWS on the Carson and Santa Fe National Forest Plans. See Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1088 (10th Cir.2006) (court of appeals may affirm on any ground supported by the record, provided the parties have had an opportunity to address such ground).
II.
7
We begin with the relevant allegation of Forest Guardians' amended complaint. Paragraph 11 states: "Implementation of the Carson and Santa Fe National Forest LRMPs are `agency actions' that `may affect' listed lynx and, as such, the Federal-Defendants must undergo formal § 7 consultation to insure that such actions are not jeopardizing the continued existence of lynx." According to the Forest Service, "the Carson and Santa Fe Forest Plans do not constitute ongoing `agency action' for purposes of § 7(a)(2)." To support its position, the Forest Service relies on the Supreme Court's recent decision in Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). In Norton, the Court concluded that while approval of a land use plan promulgated by the Bureau of Land Management (BLM) constituted "major Federal action" under the National Environmental Policy Act (NEPA), such action was complete once BLM approved the plan. Id. at 73, 124 S.Ct. 2373. The Court rejected the notion that the plan itself constituted "ongoing `major Federal action.'" Id. Forest Guardians points out, however, that this case arises under the ESA, not NEPA, and that "action" under § 7 of the ESA is "broadly defined." To support its allegation of agency action, Forest Guardians relies principally on the Ninth Circuit's decision in Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir.1994). In Pacific Rivers, the court held "LRMPs constitute continuing agency action requiring consultation under § 7(a)(2) of the ESA." Id. at 1051-52. Before turning to an analysis of these competing arguments, a brief overview of LRMPs is appropriate to add focus to the narrow issue before us, that is, the sufficiency of Forest Guardians' allegation that "[i]mplementation of the Carson and Santa Fe National Forest LRMPs are `agency actions'" within the meaning of § 7(a)(2).
A.
8
The National Forest Management Act (NFMA), 16 U.S.C. §§ 1600-1614, directs the Forest Service to develop a LRMP for each unit of the National Forest System. See id. § 1604(a). Regulations contained in Subpart A of 36 C.F.R. Pt. 219 set forth the process for developing, amending and revising LRMPs. LRMPs are "embodied in appropriate written material[.]" 16 U.S.C. § 1604(f)(2). LRMPs reflect, among other things "proposed and possible actions[.]" Id.5 Consistent with the NFMA, the applicable Forest Service regulation defines a "plan" as "[a] document or set of documents that integrates and displays information relevant to management of a unit of the National Forest System." 36 C.F.R. § 219.16. LRMPs developed pursuant to the NFMA and Subpart A of the regulations—
9
generally contain desired conditions, objectives, and guidance for project and activity decisionmaking in the plan area. Plans do not grant, withhold, or modify any contract, permit or other legal instrument, subject anyone to civil or criminal liability, or create any legal rights. Plans typically do not approve or execute projects and activities. Decisions with effects that can be meaningfully evaluated typically are made when projects and activities are approved.
10
Id. § 219.3(b) (internal citation omitted). In short, LRMPs are "a framework for making later project decisions rather than ... a collection of project decisions." Review and Comment and Appeal Procedures for National Forest Planning and Project Decisions; Requesting Review of National Forest Plans and Project Decisions, 58 Fed.Reg. 19369, 19370 (April 14, 1993) (Plan Review).6
11
As we have oft explained, management of LRMPs occurs at two levels. The first level is "programmatic:"
12
At the programmatic level, the Forest Service creates general, forest wide planning goals memorialized in a forest plan. Because the Forest Service must account for a variety of different interests, each forest plan envisions the forest will be used for multiple purposes, including "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1). At the same time, the forest plan provides for "diversity of plant and animal communities based on the suitability and capability of the specific land area." Id. § 1604(g)(3)(B).
13
Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 737 (10th Cir.2006) (emphasis added). The second level is "project:" We have repeatedly stated that "[t]he Forest Service is required to implement the forest plan by approving or disapproving specific projects. Projects must be consistent with the governing forest plan and are subject to the procedural requirements of NEPA." Lamb v. Thompson, 265 F.3d 1038, 1042 (10th Cir.2001); accord Silverton Snowmobile Club v. United States Forest Serv., 433 F.3d 772, 785 (10th Cir.2006); Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1168 (10th Cir.1999); see also 36 C.F.R. § 215.1(recognizing the implementation of LRMPs through projects and activities). "[I]mplementation of the LRMP occurs ... when individual site-specific projects are proposed and assessed[,]" and not before. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1512 (9th Cir. 1992). To assess a proposed project or action, the Forest Service must conduct an analysis and evaluation of such project or action to assure compliance not only with the LRMP but also with applicable laws and regulations. See 36 C.F.R. § 219.8(b), (e); Forest Service Manual 1926.41 (2006) (available at http://www.fs.fed.us/im/ directives /fsm/1900/1920.doc); see generally 36 C.F.R. Pt. 215 (addressing notice, comment, and appeals procedures for Forest Service projects and activities). Only then may an irreversible commitment of forest resources occur. See Plan Review, 58 Fed.Reg. at 19370.
B.
14
Much like the promulgation of a regulation, we have little doubt after Norton that the act of approving, amending, or revising a LRMP constitutes "action" under § 7(a)(2) of the ESA. See 50 C.F.R. 402.02 (listing the "promulgation" of regulations as an example of "action" under § 7). Nothing in the foregoing overview, however, suggests that LRMPs, once approved, amended, or revised, constitute ongoing, self-implementing action under § 7(a)(2). Compare Norton, 542 U.S. at 72-73, 124 S.Ct. 2373.7 To the contrary, the NFMA, FWS regulations, and Tenth Circuit case law suggest LRMPs are implemented through the approval of proposed projects and activities that are consistent with the plan's direction. Once the LRMP is in place, "agency action" takes place at the project level. See National Forest System Land and Resource Management Planning, 60 Fed.Reg. 18886, 18901 (Proposed Rule, April 13, 1995). Rather than actions themselves, LRMPs appear more akin to "road maps" on which the Forest Service relies to chart various courses of action. A LRMP is, in the truest sense, a document that creates a vision by integrating and displaying information relevant to the management of a national forest. See 36 C.F.R. § 219.16; see also Bosworth, 443 F.3d at 737 (describing LRMPs as envisioning forest uses); compare Norton, 542 U.S. at 59, 124 S.Ct. 2373 (describing land use plans as guiding and controlling future management actions).
15
Nonetheless, Forest Guardians insists the definition of "action" as used in § 7(a)(2) of the ESA is broad enough to encompass the sizable entirety of the respective LRMPs for the Carson and Santa Fe National Forests, each of which sets policy for a forest exceeding 1.3 million acres in land mass.8 That definition of "action," complete with examples, encompasses—
16
all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States . . . . Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat;
17
(b) the promulgation of regulations;
18
(c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or
19
(d) actions directly or indirectly causing modifications to the land, water, or air.
20
50 C.F.R. § 402.02; see also 40 C.F.R. § 1508.18(b)(3) (describing a "program" as "a group of concerted actions to implement a specific policy or plan").
21
We do not doubt a LRMP might authorize an activity or program, and that such authorization could constitute "action" within the meaning of § 7(a)(2). Similarly, if the LRMP demanded the Forest Service fund or carry out an activity or program, this too could constitute "action" under § 7(a)(2). Such "action," in turn, could give rise to a duty to consult on that particular action under § 7(a)(2) of the ESA. See 16 U.S.C. § 1536(a)(2). LRMPs, however, "typically do not approve or execute projects and activities," and do not authorize the irreversible commitment of forest resources. 36 C.F.R. § 219.3(b) (emphasis added); see also id. § 215.12 (recognizing a LRMP may include a "project decision"); compare Norton, 542 U.S. at 69, 124 S.Ct. 2373 ("[A] land use plan is not ordinarily the medium for affirmative decisions that implement the agency's `projections.'" (internal brackets omitted)); see also Plan Review, 58 Fed.Reg. at 19370 (discussing the nature of LRMPs and project decisions).9
22
Yet whether a particular activity or program is part of a LRMP or subsequently authorized at the project level, the ESA's definition of "action" still requires Forest Guardians to direct its focus on an activity or program that allegedly threatens the lynx. This is because only in the presence of such activity or program, i.e., "agency action," does a duty to consult ever arise under § 7(a)(2). See 50 C.F.R. § 402.02; California Sportfishing Prot. Alliance v. Federal Energy Regulatory Comm'n, 472 F.3d 593, 595 (9th Cir.2006) ("The ESA and the applicable regulations . . . mandate consultation ... only before an agency takes some affirmative agency action, such as issuing a license."). Needless to say then, we are hard pressed to conclude, based on the allegations of the amended complaint, that the two LRMPs on which Forest Guardians demands consultation constitute, in their entirety, an activity or program, i.e., an "action, authorized, funded, or carried out" by the Forest Service. 16 U.S.C. § 1536(a)(2); compare Lujan v. National Wildlife Fed'n, 497 U.S. 871, 890-93, 110 S.Ct. 3177, 111 L.Ed.2d 695 & nn. 2, 3 (1990) (rejecting a "generic" challenge under the APA to the "entirety" of BLM's "land withdrawal review program" couched as unlawful agency action).
1.
23
We have searched Forest Guardians' amended complaint in vain for some concrete allegation of "action" beyond the mere "implementation of the . . . LRMPs" which might allow us to sustain it on the issue before us. See, e.g., Turtle Island Restoration Network v. National Marine Fisheries Serv., 340 F.3d 969, 970-71 (9th Cir.2003) (agency issuance of fishing permits required § 7(a)(2) consultation); Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1125 (9th Cir.1998) (agency renewal of water contracts required § 7(a)(2) consultation). As to LRMPs generally, Forest Guardians alleges in paragraph 102 of the amended complaint that "LRMPs include programs or practices that `result in: habitat conversion; fragmentation or obstruction to lynx movement; roads or winter recreation trails that facilitate access to historical lynx habitat by competitors; and fire exclusion which changes the vegetation mosaic maintained by natural disturbance processes.'" Yet nowhere in the amended complaint can we find any mention, specific to the respective LRMPs for the Carson and Santa Fe National Forests, of an authorized program, practice, project, or activity that might amount to "action" threatening the continued existence of the lynx. See California Sportfishing, 472 F.3d at 597 ("The triggering mechanism for consultation [under § 7(a)(2)] is an agency action, not the listing of a species.").
24
Similarly, paragraph 110 of the amended complaint alleges in the abstract:
25
LRMPs in the Southern Rockies may adversely impact lynx and lynx habitat by: (1) having a fire exclusion policy which changes the vegetative mosaic maintained by natural disturbances; (2) allowing grazing of domestic livestock, which reduces forage for lynx prey; (3) allowing roads and winter recreation trails that facilitate access to historical lynx habitat by competitors; (4) allowing levels of human access via forest roads that may present a risk of incidental trapping or illegal shooting of lynx; (5) having limited direction in the Forest Plan pertaining to tree thinning and foraging habitat; and (6) having weak direction for distributing lynx habitat components across the landscape.
26
We do not disagree with the proposition that policies, directions, and allowances contained in a LRMP may indirectly impact the lynx and its habitat adversely. After all, these are matters contained within a LRMP on which agency actions are based. But this does not make such policies, directions, and allowances "action" requiring consultation within the meaning of § 7(a)(2). Policies and directions only guide the Forest Service in determining whether an "action" may be properly undertaken consistent with the LRMP. Moreover, the fact that a LRMP "allows" certain activities to occur on forest lands does not commit the Forest Service to anything. See Plan Review, 58 Fed.Reg. at 19370 (citing cases); compare Norton, 542 U.S. at 72, 124 S.Ct. 2373 (holding a land use plan's "statement to the effect that BLM will conduct `Use Supervision and Monitoring' in designated areas—like other `will do' projections of agency action set forth in land use plans—are not a legally binding commitment"). "[M]any activities allowed by Plans, such as timber harvest and road construction, are never carried out for a variety of reasons, such as funding limitations and environment, wildlife or policy considerations." Final Rule, 65 Fed.Reg. at 16079; compare Norton, 542 U.S. at 71, 124 S.Ct. 2373. What LRMPs might "allow" is thus readily distinguishable from "actual actions as a result of past or current implementation of the Plans." Final Rule, 65 Fed.Reg. at 16079.10
27
Neither do provisions identifying specific areas as appropriate for certain uses that normally occur within a forest (e.g., recreation, grazing, timber cutting, and the like) constitute "action" on the part of the Forest Service within the meaning of § 7(a)(2). The FWS regulation addressing "suitable uses" within a national forest specifically provides that identification of specific areas in a LRMP "is guidance for project and activity decisionmaking, is not a permanent land designation, and is subject to change through plan amendment or plan revision. Uses of specific areas are approved through project and activity decisionmaking." 36 C.F.R. § 219.12(a)(1).
28
A LRMP considered in isolation simply is not an ongoing, self-implementing document. Specific activities, programs, and/or projects are necessary to implement the plan. See, e.g., Bosworth, 443 F.3d at 737; Lamb, 265 F.3d at 1042. Those same activities, programs, and projects must be alleged in a complaint that seeks to establish an "acting" agency's duty to consult under § 7(a)(2) of the ESA. As we have explained, a LRMP envisions the forest will be used for multiple purposes, including "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1). A plan or vision is certainly a precursor to "agency action," but neither is action requiring § 7(a)(2) consultation.
2.
29
The Ninth Circuit decision in Pacific Rivers does not persuade us otherwise. In that case, the National Marine Fisheries Service (NMFS) had listed the Snake River chinook salmon as "threatened" under the ESA. The basis for that suit was the Forest Service's failure to consult with the NMFS regarding the effects of certain LRMPs on the species. The court's description of LRMPs in that case was not unlike our description here. The court described LRMPs as—
30
establish[ing] forest-wide and area-specific standards and guidelines to which all projects must adhere ... The LRMPs identify lands suitable for timber production and other uses, and establish an allowable sale quantity of timber and production targets and schedules for forage, road construction, and other economic commodities.... Every resource plan, permit, contract, or any other document pertaining to the use of the forest must be consistent with the LRMP.
31
Pacific Rivers, 30 F.3d at 1052. The court further referred to LRMPs as "establishing resource and land use policies" and "set[ting] forth criteria for harvesting resources[.]" Id. at 1055-56. Nonetheless, the court rejected as "incorrect" the Forest Service's argument that "LRMPs are not ongoing agency action throughout their duration." Id. at 1053. Rather, the Court concluded:
32
The LRMPs are comprehensive management plans governing a multitude of individual projects. Indeed, every individual project planned in both national forests involved in this case is implemented according to the LRMPs. Thus, because the LRMPs have an ongoing and long-lasting effect even after adoption, we hold that the LRMPs represent ongoing agency action.
33
Id.
34
Contrary to Pacific Rivers, our analysis makes painfully apparent that "standards," "guidelines," "policies," "criteria," "land designations," and the like appearing within a LRMP do not constitute "action" requiring consultation under § 7(a)(2) of the ESA. A contrary view would be the equivalent of saying that agency regulations constitute ongoing action because such regulations continually affect what goes on in the forest. Of course, the very definition of "action" in § 402.02 tells us that the "promulgation of regulations," not the regulations themselves, constitutes "action." 50 C.F.R. § 402.02 (emphasis added). We have no quarrel with the proposition that LRMPs may have "an ongoing and long-lasting effect" on the forest. That's the very purpose of a LRMP—to guide management decisions regarding the use of forest resources and to establish to a substantial degree what is permitted to occur within the forest. But this does not alter our conclusion that the entirety of LRMPs do not constitute § 7 "action." Instead, "activities or programs . . . authorized, funded, or carried out," by the Forest Service are the "action" of which § 7(a)(2) speaks. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.02.11 A LRMP simply does not fit within this definition.
III.
35
What Forest Guardians seeks in this case is nothing short of a wholesale review of two LRMPs under the guise of § 7(a)(2) consultation. To be sure, demanding the Forest Service consult with FWS on the entirety of LRMPs for the Carson and Santa Fe National Forests, rather than on activities, programs, or projects approved consistent with those LRMPs, is simpler and more cost effective for Forest Guardians.12 Efficiency and systemic improvement by wholesale correction, however, cannot justify skirting the "agency action" requisite to § 7(a)(2) consultation. See Lujan, 497 U.S. at 893-94, 110 S.Ct. 3177. The approach the ESA requires "is understandably frustrating to an organization ... which has as its objective across-the-board protection of our Nation's wildlife .... But this is the traditional, and remains the normal, mode of operation by the courts." Id. at 894, 110 S.Ct. 3177.
36
Although we must assume Forest Guardians can prove all of the facts alleged in its amended complaint, its allegation that "[i]mplementation of the Carson and Santa Fe National Forest LRMPs are `agency actions'" within the meaning of § 7(a)(2) of the ESA is a legal conclusion that we need not accept. When reviewing the district court's grant of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), we must determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed. Because Forest Guardians has not alleged any activity, project, or program authorized, funded, or carried out by the Forest Service that might constitute "action" within § 7(a)(2) of the ESA, the Forest Service has no duty to consult with the FWS pursuant to the statute. Because Forest Guardians' amended complaint is not actionable, the judgment of the district court is—
37
AFFIRMED.
Notes:
1
Subject to exceptions not applicable here, the citizen-suit provision of the ESA provides a private right of action "to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the Eleventh Amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof[.]" 16 U.S.C. § 1540(g)(1)(A). Forest Guardians' prayer that the Forest Service be directed to consult with FWS pursuant to § 7(a)(2) constitutes a request for mandatory injunctive relief
2
For a detailed discussion of the ESA consultation process see 50 C.F.R. Pt. 402, Subpt. BSee also Stanford Environmental Law Society, The Endangered Species Act 83-98 (2001).
3
On appeal, FG also presses claims against FWS arising under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706. The district court dismissed these claims on the pleadings pursuant to Fed.R.Civ.P. 12(c). Because we conclude the Forest Service in this case has no duty to consult with FWS under the ESA, Forest Guardians' contention that FWS's decision not to require consultation with the Forest Service constitutes a violation of the APA necessarily failsSee Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 72, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) ("Before addressing whether a NEPA-required duty is actionable under the APA, we must decide whether NEPA creates an obligation in the first place.").
4
FWS's Final Rule states the "population segment" for Canada lynx "occurs in forested portions of the States of Colorado, Idaho, Maine, Michigan, Minnesota, Montana, New Hampshire, New York, Oregon, Utah, Vermont, Washington, and Wisconsin."Final Rule, 65 Fed.Reg. at 16052. The regulation listing endangered or threatened wildlife found at 50 C.F.R. § 17.11(h) adds Wyoming to the list of areas where Canada lynx are threatened. Rejecting a later comment suggesting the range of the lynx should include the northern mountain ranges in New Mexico, the FWS stated in its Rule Clarification: "We do not consider lynx recently released in Colorado that strayed into New Mexico as sufficient reason to include New Mexico within the range of native lynx because there is no evidence habitat in New Mexico historically supported lynx." Rule Clarification, 68 Fed. Reg. at 40083.
5
TheForest Service Handbook 11.2 (2006) (available at http://www.fs.fed.us/im/ directives/fsh/1909.12/1909.12_10.doc) discusses the "proposed and possible actions" contained within a LRMP:
The proposed and possible actions listed in the land management plan should include those actions anticipated to provide the array of multiple-use opportunities or resource management programs that a forest, grassland, prairie, or other comparable administrative unit expects to provide. The proposed and possible actions may be displayed in an appendix....
Proposed and possible actions may be presented in a brief summary of the types of projects that may occur in the plan decade to maintain or move toward the desired conditions.... Proposed and possible actions should not speculate about the specific amount, quantities, frequency, or magnitude of actions during the plan decade.
(internal citation omitted).
6
The regulations identify five "components" of a LRMP: (1) "Desired conditions," (2) "Objectives," (3) "Guidelines," (4) "Suitability of areas," and (5) "Specific areas." 36 C.F.R. § 219.7(a)(2). Subsections (i) and (ii) describe desired conditions and objectives as "aspirations."Id. § 219.7(a)(2)(i), (ii). Desired conditions, objectives, and guidelines "are not commitments or final decisions approving projects and activities." Id. § 219.7(a)(2)(i), (ii), (iii). Subsection (iv) and (v) respectively address suitable uses and special area designations within a forest unit with similar verbiage. Id. § 219.7(a)(2)(iv), (v).
7
Interestingly, the NEPA regulation addressing the meaning of "major federal action," the phrase discussed inNorton, states: "Actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals .... 40 C.F.R. 1508.18(a)" (emphasis added). Subsection (b) of the regulation indicates that—
Federal actions tend to fall within one of the following categories:
(1) Adoption of official policy, such as ... formal documents establishing an agency's policies which will result in or substantially alter agency programs.
(2) Adoption of formal plans, such as official documents prepared or approved by federal agencies which guide or prescribe alternative uses of federal resources, upon which future agency actions will be based.
(3) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan....
(4) Approval of specific projects, such as construction or management activities located in a defined geographic area....
Id. § 1508.18(b) (emphasis added).
8
The Carson National Forest encompasses nearly 1.4 million acres of land in northern New Mexico. The forest, which abuts the State of Colorado, is divided into six Ranger DistrictsSee generally http://www.fs.fed.us/r3/ carson/index.shtml (Carson National Forest Homepage). The Santa Fe National Forest encompasses 1.6 million acres of land in north-central New Mexico and is divided into five Ranger Districts. See generally http:// www.fs.fed.us/r3/sfe/index.html (Santa Fe National Forest Homepage). The Carson National Forest Plan, first approved in 1986, is available online at http: //www.fs.fed.us/r3/ carson/plans/forest_plan/forest_plan.shtml.
The plan divides the forest into 21 "management areas" and addresses the following concerns: air, cultural resources, facilities and corridors, fire, lands, law enforcement, minerals, people, range, recreation, special uses, sustainable forests, timber, travel, visual, watershed, and wildlife and fish. The Santa Fe National Forest Plan, approved in 1987, is also available online at http://www.fs.fed.us/r 3/sfe/projects/plansReports/index.html. That plan divides the forest into 12 "management areas," while addressing the following concerns: recreation, off-road vehicle use, visual quality, cultural resources, wildlife, wildlife habitat diversity, range, timber, firewood, watershed, transportation, and research. Compare Norton, 542 U.S. at 70-71, 124 S.Ct. 2373 (discussing the complexity of a land use plan for 1.5 million acres of BLM-administered land). The Forest Service must revise a LRMP at least once every fifteen years, but may amend it, in compliance with set procedures, at any time. 16 U.S.C. § 1604(f)(4), (f)(5). Both plans have been amended periodically.
9
Our reading ofNorton reveals that a "land use plan" promulgated by the BLM does not differ significantly from a LRMP promulgated by the Forest Service. See Norton, 542 U.S. at 67-72, 124 S.Ct. 2373. Both types of plans embrace an "immense scope of projected activity." Id. at 70, 124 S.Ct. 2373. Like a LRMP, "a land use plan is generally a statement of priorities; it guides and constrains actions, but does not (at least in the usual case) prescribe them." Id. at 71, 124 S.Ct. 2373. Consistent with this view, the Court concluded that "a statement in a plan that BLM `will' take this, that, or the other action," is not a legally binding commitment enforceable under the APA. Id. at 69, 124 S.Ct. 2373; compare 36 C.F.R. § 219.3(b) (stating LRMPs do not "create any legal rights").
10
Most, if not all, activities which occur within a national forest require a permit, license, contract, lease, or other legal instrument. Of course, as the example in § 402.02's definition of "action" provides, the "granting" of such instruments constitutes "action" under § 7(a)(2)See 50 C.F.R. § 402.02. A guideline or policy in a LRMP stating that such instruments will be available under appropriate circumstances, however, does not constitute "action." In this regard, the Supreme Court's discussion of the LRMP in Ohio Forestry Ass'n. v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998), is instructive. In that case, the Sierra Club challenged a LRMP on the basis that the plan permitted too much logging and clear-cutting in purported violation of the NFMA, NEPA, and APA. The court specifically acknowledged that "[t]he Plan permits logging to take place on 126,000 (197 sq. mi.) of the federally owned acres." Id. at 729, 118 S.Ct. 1665 (emphasis added). On review at the summary judgment stage, the Court nonetheless held the Sierra Club's challenge to the LRMP was not ripe for lack of any definitive harm arising from agency action:
[T]he provisions of the Plan that the Sierra Club challenges do not create adverse effects of a strictly legal kind, that is effect of a sort that would have qualified as harm.... [T]hey do not command anyone to do anything or to refrain from doing anything; they do not grant, withhold, or modify any formal legal license, power, or authority; they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations. Thus, for example, the Plan does not give anyone a legal right to cut trees, nor does it abolish anyone's legal authority to object to trees being cut.
[B]efore the Forest Service can permit logging, it must focus upon a particular site, propose a specific harvesting method, prepare an environmental review, permit the public an opportunity to be heard, and (if challenged) justify the proposal in court.
Id. at 733-34, 118 S.Ct. 1665; compare 36 C.F.R. § 219.3(b); see also Lujan, 497 U.S. at 892-93, 110 S.Ct. 3177 n. 3.
11
Pacific Rivers' reliance on Tennessee Valley Auth. v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), to support its holding was wholly misplaced. See Pacific Rivers, 30 F.3d at 1054-55. Tennessee Valley did not address an issue even remotely similar to the question of whether a LRMP constitutes "action" under § 7(a)(2). All the justices agreed that a federal agency's placement of a virtually completed river dam into operation constituted action on the part of the agency, at least in the generic sense of the word. The question in that case was whether the ESA required enjoining the operation of a virtually completed dam where the dam might eradicate the snail darter, an endangered species of perch. The Court held that placing the dam into operation constituted action under the ESA, and let an injunction against its operation stand. The Court explained that "[i]t has not been shown, for example, how TVA can close the gates of the Tellico Dam without `carrying out' an action that has been `authorized' and `funded' by a federal agency." Tennessee Valley, 437 U.S. at 173, 98 S.Ct. 2279. We disagree with Pacific Rivers' view that the argument the agency made in Tennessee Valley—that the ESA did not apply to programs and activities virtually completed before the listing of a species—was the same argument the NMFS made in that case—that LRMPs were not ongoing agency action under the ESA. See Pacific Rivers, 30 F.3d at 1055.
12
As illustrated by the Forest Service's voluntary consultation with FWS on LRMPs covering a number of national forests within the fourteen State listing of the Canada Lynx,see supra n. 4, consultation between the Forest Service and the FWS on how LRMP's in the region might be amended to best protect the lynx may well be more prudent in some instances than prolonged litigation on the question of whether individualized agency actions threaten the lynx. See generally Biological Assessment of the Effects of National Forest Land and Resource Management Plans and Bureau of Land Management Land Use Plans on Canada Lynx (1999), http://www.fs.fed.us/r 1/planning/lynx/reports/ba/ba.pdf. But what is prudent is not necessarily what is legally required. | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/166619/ | F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 2, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
EARL L. PAGEL,
Plaintiff-Appellant,
v. No. 05-4020
(D.C. No. 2:04-CV-684-DS)
WASHINGTON MUTUAL BANK, (D. Utah)
INC., and LUNDBERG &
ASSOCIATES,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH, PORFILIO , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-appellant Earl L. Pagel, proceeding pro se, appeals the order
entered by the district court dismissing his complaint pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6). Plaintiff is also appealing the district court’s postjudgment
rulings. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
In his complaint, plaintiff asserted a number of federal and state claims
against defendants, alleging that they and/or their predecessors violated state and
federal law in connection with proceedings that they initiated in state court to
foreclose on real property that he owned in the State of Utah. As summarized by
the district court, in response to motions to dismiss that were filed by defendants,
plaintiff informed the district court “that his claims for fraud, conversion and
violation of Utah’s [Pattern of Unlawful] Activity Act are time-barred and must
be dismissed,” and plaintiff made “it clear that the only claims he [was] pursuing
[were] the federal RICO statute claims and a claim for breach of contract.” R.,
Vol. II, Doc. 22 at 1-2.
Having clarified what claims were before it, the district court then
proceeded to dispose of plaintiff’s claims and his postjudgment motions in three
separate orders. First, in an order entered in November 2004, the court concluded
that plaintiff failed to state a claim under the federal RICO statute, 18 U.S.C.
§ 1962(c), because he did not allege sufficient facts to establish that defendants
were engaged in a “pattern of racketeering activity.” As the court explained:
-2-
To successfully state a federal RICO claim, a plaintiff must
allege four elements: “‘(1) conduct (2) of an enterprise, (3) through a
pattern (4) of racketeering activity.’” Robbins v. Wilkie , 300 F.3d
1208, 1210 (10th Cir. 2002) (quoting Sedima, S.P.R.L. v. Imrex Co.,
Inc. , 473 U.S. 479, 496 (1985)). . . .
....
The “pattern” element “‘requires the showing of a relationship
between the predicate [racketeering acts] . . . and the threat of
continuing activity’–that is, ‘continuity plus relationship.’”
Resolution Trust Corp. v. Stone , 998 F.2d 1534, 1543 (10th Cir.
1993) [(quotation omitted)]. Plaintiff has failed to establish the
pattern element. His complaint alleges only a single transaction, a
single harm and a single victim–himself. Courts have held that when
there is “only one purpose, one result, one set of participants, one
victim and one method of commission,” there is “no continuity and
. . . no pattern of racketeering activity.” Meadow Limited
Partnership v. Heritage Savings and Loan Association , 639 F. Supp.
643[, 650] (E.D. Va. 1986) [(quotation omitted)]. This case is
clearly not a RICO case.
R., Vol. II, Doc. 22 at 2-3.
In its November 2004 order, the district court also concluded that plaintiff
had failed to state a claim against defendant Washington Mutual Bank, Inc. for
breach of contract. The court analyzed the breach of contract claim as follows:
The only remaining claim is Washington Mutual’s alleged
breach of contract in failing to adhere to the 1993 Bankruptcy Court
Order (“Order”). Here again Plaintiff has failed to state a claim for
which relief may be granted. . . . [T]he Order is not a contract; it is a
court ruling. Plaintiff’s remedy, if he believed Defendant failed to
comply with the Order, would have been to move the bankruptcy
court to hold Defendant in contempt and compel Defendant’s
compliance with the Order. Plaintiff has no claim for breach of
contract in this court based on Defendant [Washington Mutual’s]
alleged noncompliance with a bankruptcy court order.
-3-
Id. at 3.
Although the district court’s analysis of the breach of contract claim was
framed in terms of a failure to state a claim, we will treat the court’s dismissal of
the claim as a dismissal under Fed. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction, as the court’s ultimate conclusion was that plaintiff was pursuing the
claim in the wrong court. Further, the court specifically stated that it was
granting “Washington Mutual’s Motion to Dismiss under Rules 12(b)(6) For
Failure to State a Claim and 12(b)(1) for Lack of Subject Matter
Jurisdiction . . . .” R., Vol. II, Doc. 22 at 3.
Second, in an order entered in January 2005, the district court denied
plaintiff’s motion for a rehearing. After concluding that it would treat the motion
as a timely motion to alter or amend the judgment under Fed. R. Civ. P. 59(e), the
court rejected plaintiff’s argument that it committed manifest error by
“inadvertently overlook[ing an] amendment filed just prior to the court’s ruling
[on defendants’ motions to dismiss] that would have cured pleading deficiencies.”
R., Vol. II, Doc. 24. According to the court, plaintiff’s amended allegations still
fell short because he was
attempt[ing] to show a pattern of racketeering activity with broad,
general statements, such as “Without proof [Washington Mutual] has
completely overhauled the former Texas operations, it can only be
presumed [Washington Mutual] continues to disobey court orders and
clients’ instructions as prescribed,” and “[Lundberg & Associates]
maintained a policy of undermining clients’ Chapter 13 filings to
-4-
explicitly foreclose on clients’ real estate, for which Plaintiff will
provide impeccable testimony at trial.” These statements of opinion,
without any specific factual allegations, are insufficient to establish a
RICO pattern.
Id. , Doc. 36 at 3 (quoting id. , Doc. 21 at 9).
Finally, in an order entered in February 2005, the district court denied two
additional postjudgment motions that plaintiff filed. In one of the motions,
plaintiff requested leave, pursuant to Fed. R. Civ. P. 15, “to amend ‘Plaintiff’s
Response to Defendant Washington Mutual’s Motion to Dismiss,’ . . . and retract
Plaintiff’s former statement, [that] he will no longer pursue state claims.” Id. ,
Doc. 40 at 1. In support of the motion, plaintiff argued that he had erroneously
concluded at the time he responded to defendants’ motions to dismiss that the
state claims were time-barred under Utah law. Specifically, plaintiff claimed that
he had “just found out Utah Code § 78-12-40 provides for commencement of new
action within one-year upon failure of a suit; for which Plaintiff’s former suit is
still active, thus Plaintiff’s claims are not time barred.” R., Vol. II, Doc. 40 at 1.
The district court rejected plaintiff’s argument, concluding that “[b]ecause the
plaintiff’s former case has been closed for more than a year, and because it failed
on the merits, . . . Utah Code Annotated § 78-12-40 does not apply.” Id. , Doc. 47
-5-
at 2. The court therefore denied plaintiff’s motion to amend his response to
Washington Mutual’s motion to dismiss. 1
Id.
Plaintiff’s second motion was entitled “Motion for a Comprehensive
Review,” id. , Doc. 38, and the district court treated the motion as a second motion
for reconsideration, id. , Doc. 47 at 2. In support of the motion, plaintiff advanced
three arguments. First, plaintiff argued that the district court failed to address his
position that a bankruptcy court order is a quasi-contract. Second, plaintiff
argued that the district court erred by failing to allow him to conduct discovery
with regard to the “pattern” element of his RICO claim. Third, plaintiff argued
that the district court’s ruling on the pattern issue was not in accordance with
other circuit court rulings. The district court rejected each of these arguments,
concluding: (1) that it was “not aware of any decisions holding that failure to
adhere to a bankruptcy reorganization plan constitutes breach of contract,”
id. at 3; (2) that plaintiff was not entitled to conduct discovery on the pattern
issue because he had failed to plead specific facts showing that other individuals
1
Because we conclude that the district court acted properly when it initially
dismissed plaintiff’s state claims based on plaintiff’s express representation to the
court that he was no longer pursuing the claims, we do not need to address
defendants’ argument that the district court did not have subject matter
jurisdiction over the claims because there was a lack of complete diversity of
citizenship between the parties and an insufficient amount in controversy. Simply
put, plaintiff abandoned the state claims, and the district court did not err in
refusing to reinstate the claims after plaintiff failed to show that the claims had
any merit under state law.
-6-
had been injured by defendants’ alleged racketeering activity, id. ; and (3) that
plaintiff had failed to present any newly discovered evidence or show any
manifest error of law with regard to the court’s ruling on the pattern issue, id. at
4.
As required when addressing appeals from Rule 12(b)(1) and 12(b)(6)
dismissals, we have reviewed the district court’s dismissal order de novo. See
Ordinance 59 Ass’n v. United States Dep’t of the Interior Sec’y , 163 F.3d 1150,
1152 (10th Cir. 1998). By contrast, we have reviewed the court’s denial of
plaintiff’s Rule 59(e) motion for an abuse of discretion. See Phelps v. Hamilton ,
122 F.3d 1309, 1324 (10th Cir. 1997). We have also reviewed the district court’s
additional postjudgment rulings for an abuse of discretion. 2
We conclude that the
district court did not commit reversible error in dismissing plaintiff’s complaint
and in denying the requested postjudgment relief, and we affirm the district court
for substantially the same reasons stated in its three orders.
We also reject plaintiff’s argument that he alleged sufficient facts to
establish a pattern of racketeering activity because he alleged that defendants
engaged in multiple predicate racketeering acts over a period of several years. In
this circuit, it is well established that a single scheme to accomplish one discrete
2
Because plaintiff is proceeding pro se, we have also reviewed his pleadings
liberally. See Haines v. Kerner , 404 U.S. 519, 520 (1972).
-7-
goal, directed at a finite group of individuals, with no potential to extend to other
persons or entities, rarely will suffice to establish a threat of continuing
racketeering activity. See Boone v. Carlsbad Bancorporation, Inc. , 972 F.2d
1545, 1556 (10th Cir. 1992); Sil-Flo, Inc. v. SFHC, Inc. , 917 F.2d 1507, 1516
(10th Cir. 1990); Phelps v. Wichita Eagle-Beacon , 886 F.2d 1262, 1273-74 (10th
Cir. 1989). We see no circumstances here that require a departure from this
general rule. Instead, as the district court found, plaintiff “alleges only a single
transaction, a single harm and a single victim–himself.” R., Vol. II, Doc. 22 at 2-
3. Moreover, while plaintiff attempted to plead a larger racketeering enterprise
extending beyond his own circumstances, we agree with the district court that his
allegations are wholly conclusory, and therefore insufficient to show a threat of
continuing racketeering activity beyond his own alleged injuries. See Hall v.
Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (“[C]onclusory allegations without
supporting factual averments are insufficient to state a claim on which relief can
be based.”).
The district court’s dismissal and postjudgment orders are AFFIRMED.
We also AFFIRM the judgment that the district court entered awarding defendant
Lundberg & Associates attorneys’ fees in the amount of $3,202.50 under Utah
Code Annotated § 76-10-1605(8). Although this appeal borders on being
frivolous and we have considered sanctioning plaintiff for pursuing meritless
-8-
claims, we DENY Lundberg & Associates’ motion for an award of damages and
costs under Fed. R. App. P. 38. Finally, we DENY the request for appointment of
counsel that is set forth at the end of plaintiff’s opening brief.
Entered for the Court
Bobby R. Baldock
Circuit Judge
-9- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3391313/ | Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3985847/ | I concur. The commission went into the question of applicant's probable ability to earn more wages with the plaintiff company, but none of the evidence adduced would support the conclusion that she could have made with that company, even after long experience, the sum of $26.60 per week — 60 per cent of which would be $16. And there was *Page 335
no evidence of what she upon gaining experience could make in the industry as a whole nor as to any other field of activity. As to whether it could be shown that she had capabilities by which she could reasonably be expected to have increased her earnings in other fields of human activity is not before us, because no attempt was made to base the $16 per week compensation on any such evidence. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/170347/ | FILED
United States Court of Appeals
Tenth Circuit
February 25, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
MICHAEL R. CAGLE,
Plaintiff-Appellant,
v. No. 07-5107
(D.C. No. 06-CV-95-FHM)
MICHAEL J. ASTRUE, (N.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and ANDERSON, Circuit Judges.
Michael Cagle appeals from the judgment of the district court affirming the
Social Security Commissioner’s denial of his application for disability insurance
benefits (DIB). Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C.
§ 1291, we reverse.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.
Mr. Cagle has a high school education plus one year of college. He began
employment with Boeing Aircraft in 1985 and worked as an aircraft inspector,
mechanic, and composite-parts bonder. He also has work experience as a security
guard.
Mr. Cagle developed lower back pain as a result of a car accident in 1997
and was put on light duty at Boeing. In May 2002, one of his treating physicians,
Dr. Jeffrey Galles, referred him for an MRI, which revealed a small central disc
protrusion at the L4-L5 level and early degenerative disc disease. He completed
physical therapy , showing improvement, but continued to have pain and decreased
range of motion. He aggravated his back injury in August 2002 and missed some
work. Dr. Galles assessed him with chronic mechanical low back pain and
prescribed Bextra, an anti-inflammatory, for pain. Mr. Cagle also had a sleep
study, which indicated he has severe sleep apnea.
In September and October of 2002, Mr. Cagle worked a sedentary job at
Boeing but lost that position due to seniority issues. After a lumbar myelogram
and computed tomography (CT) scan in October indicated that Mr. Cagle was not
a candidate for surgery because he had no neural compression, Dr. Galles referred
him to a pain management specialist, Dr. Srikanth Reddy, who began a series of
epidural steroid injections (ESIs) in December 2002 and recommended that
Mr. Cagle, who is morbidly obese, lose weight and observe good posture.
-2-
On September 18, 2003, Dr. Galles completed Boeing’s Return to
Work/Functional Capacities Form, stating that Mr. Cagle had been medically
unable to work from October 16, 2002, through October 1, 2003, due to his back
problems, but could return to work on October 2, 2003, subject to certain
restrictions. Mr. Cagle returned to work at Boeing for seven days in October
2003, but his pain forced him to stop again. He continued treatment with
Drs. Galles and Reddy for his back pain as well as carpal tunnel syndrome (CTS)
diagnosed by a nerve conduction study in February 2004 and several other
maladies, and he has not worked since. In October 2004, Dr. Reddy completed a
residual functional capacity (RFC) questionnaire reflecting limitations that would
preclude Mr. Cagle from performing even a limited range of sedentary work on a
sustained and continuing basis.
Meanwhile, Mr. Cagle filed his application for DIB on March 23, 2003,
with an alleged onset date of October 23, 2002. He claimed that he was disabled
due to gout in his right big toe joint, pain in his lower and mid-back, and pain and
numbness in both hips, legs, and feet. After the agency denied his application
initially and upon reconsideration, an administrative law judge (ALJ) held a
hearing at which Mr. Cagle and a vocational expert (VE) testified. The ALJ
applied the five-step sequential evaluation process set forth in 20 C.F.R.
§ 404.1520, finding at step one that Mr. Cagle was not engaged in any substantial
gainful activity. At steps two and three the ALJ found that Mr. Cagle has a
-3-
severe impairment based on medical findings of gout, diabetes, 1 obesity,
depression, and problems with his back, hips, legs, feet, hands, wrists, right
elbow, knees, neck, arms, and shoulders, but that none of his impairments met or
equaled a listed impairment. See 20 C.F.R., Part 404, Subpart P, Appendix 1.
Proceeding to step four, the ALJ surveyed the medical evidence and found
that Mr. Cagle retained the RFC to
perform light and sedentary work activity. He is able to occasionally
lift and/or carry 20 pounds occasionally and 10 pounds frequently;
stand and/or walk 6 hours in an 8-hour workday at 2 hour intervals;
sit for 6 hours in an 8-hour workday at 2 hour intervals; and can
occasionally climb, bend, stoop, squat, crouch, crawl, kneel, twist his
torso, twist and nod his head, reach overhead, operate foot controls,
and push/pull. The claimant would be slightly limited in feeling,
fingering, and grasping, and would need to avoid cold, damp
environments; vibration; rough uneven surfaces; unprotected heights;
and fast and dangerous machinery. Due to his symptoms of
depression and medication side-effects, the claimant would be
limited to simple, routine and repetitive work activity and would be
slightly limited in contact with the public, coworkers, and
supervisors. The claimant is afflicted with symptoms from a variety
of sources, to include mild to moderate, chronic pain, that are
sufficiently severe as to be noticeable to him at all times; but, that
nonetheless the claimant would be able to remain attentive and
responsive in a work setting, and could carry out normal work
assignments satisfactorily. The claimant takes medication for relief
of his symptoms; however, those medications do not preclude him
from functioning at his residual functional capacity and he would
remain reasonably alert to perform required functions in the work
setting.
1
We are perplexed by the ALJ’s reference to diabetes since elsewhere in his
decision the ALJ acknowledged Mr. Cagle’s hearing testimony that he has
hypoglycemia, not diabetes. See Aplt. App., Vol. II at 23.
-4-
Aplt. App., Vol. II at 25-26, ¶ 5 (citation omitted). In further explanation of his
RFC finding, the ALJ noted, among other things, that Mr. Cagle has degenerative
disc disease of the lumbar spine and a mild disc bulge without spinal canal
stenosis or nerve root impingement. The ALJ explained that his RFC finding was
supported by the findings of state agency physicians, and gave little weight to the
RFC assessments by Drs. Galles and Reddy. The ALJ also found that Mr. Cagle
was not fully credible regarding the extent of his limitations—his pain was
limiting but not severe enough to preclude all work.
Based on this RFC, the ALJ determined that Mr. Cagle could not return to
his past relevant work . At step five, the ALJ found that Mr. Cagle could perform
a number of sedentary and light jobs the VE identified that exist in significant
numbers in the national economy. Accordingly, the ALJ determined that
Mr. Cagle was not entitled to DIB. Mr. Cagle was forty-two years old at the time
of the ALJ’s March 8, 2005, decision.
Mr. Cagle requested review by the Appeals Council and submitted
additional evidence: (1) a Boeing Return to Work/Functional Capacities Form
completed by Dr. Galles on March 14, 2005, indicating that Mr. Cagle was
medically unable to work from October 22, 2003, through May 9, 2005, but could
return to an inspection or desk job thereafter subject to exertional and postural
limitations; and (2) medical records from Claremore Indian Hospital that included
a prescription for a wheelchair dated March 17, 2005. The Appeals Council
-5-
added the new evidence to the record but denied the request for review,
summarily stating that the new evidence provided no basis for changing the ALJ’s
decision. After the district court affirmed the Commissioner’s decision,
Mr. Cagle appealed to this court.
II.
On appeal, Mr. Cagle alleges three main errors in the Commissioner’s
decision, that the ALJ (1) failed to perform a proper evaluation of the opinions of
his treating physicians, Dr. Galles and Dr. Reddy; (2) made an improper
credibility determination; and (3) failed to make a proper step-five
determination. 2 Our review is to determine whether the Commissioner’s “factual
findings were supported by substantial evidence in light of the entire record and
to determine whether he applied the correct legal standards. Substantial evidence
is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Hinkle v. Apfel, 132 F.3d 1349, 1351 (10th Cir. 1997)
(quotation and citation omitted). However, “we may neither reweigh the evidence
nor substitute our judgment for that of the agency.” Id. (quotation omitted).
2
Mr. Cagle also contends, in conclusory fashion, that the Appeals Council
erred by not explaining why the additional evidence he submitted was insufficient
to alter the ALJ’s decision. We fail to see where this issue was adequately raised
in the district court or any reason to deviate from the general rule that we do not
consider such issues, see Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994). In
any event, in view of our remand, we would not reach the merits of this
contention even if it was preserved for appeal.
-6-
A. Evaluation of the Treating Physicians’ Opinions
The ALJ gave little weight to the opinions expressed in the RFC forms
completed by Mr. Cagle’s treating physicians, Dr. Galles and Dr. Reddy. We will
first address Mr. Cagle’s arguments with respect to Dr. Galles, with which we
agree, and then turn to his arguments concerning Dr. Reddy, with which we agree
in part.
Dr. Galles
Dr. Galles saw Mr. Cagle approximately nine times between May, 2002,
and completing his first RFC assessment on September 18, 2003. In that
assessment, he opined that Mr. Cagle had been unable to work from October 16,
2002, through October 1, 2003, but could return to work on October 2, 2003, with
certain restrictions. Although Mr. Cagle could, in Dr. Galles’s opinion, sit for 6
to 8 hours in a work day, he would be limited to standing and walking up to
3 hours each and lifting or carrying no more than 20 pounds occasionally (0 to
3 hours). He also would be subject to a number of postural limitations but could
use his hands for repetitive motion and reach above his shoulders frequently (3 to
6 hours per work day). As mentioned above, Mr. Cagle indeed returned to work
for seven days in October 2003, but reported that he could not continue due to
hand numbness and intolerable lower back pain that radiated into his legs.
The ALJ afforded “little probative weight” to Dr. Galles’s assessment
because of “troubling inconsistencies in Dr. Galles’[s] medical records.” Aplt.
-7-
App., Vol. II at 23. Mr. Cagle argues that this terse explanation is legally
insufficient because the ALJ did not consider any of the factors for weighing
treating physician opinions that are set forth in 20 C.F.R. § 404.1527(d). 3 He also
contends that Dr. Galles’s opinion as to Mr. Cagle’s RFC is entirely consistent
with Dr. Galles’s own medical records.
We agree that the ALJ’s explanation is legally insufficient. And although
we fail to see troublesome inconsistencies in Dr. Galles’s medical records that
undermines his RFC assessment, we defer to the agency to make a formal finding
on this issue, as necessary. But before explaining our conclusion, we first outline
why Dr. Galles’s RFC assessment is material to this case.
Dr. Galles found that Mr. Cagle could stand for up to 3 hours and could
walk for up to 3 hours, whereas the ALJ found that Mr. Cagle could stand and/or
walk 6 hours in an 8-hour work day at 2-hour intervals. Although the difference
3
As we have summarized, those factors are:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed; (3) the degree to which the physician’s opinion is
supported by relevant evidence; (4) consistency between the opinion
and the record as a whole; (5) whether or not the physician is a
specialist in the area upon which an opinion is rendered; and
(6) other factors brought to the ALJ’s attention which tend to support
or contradict the opinion.
Goatcher v. U.S. Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir.
1995).
-8-
between these two views of Mr. Cagle’s ability to stand and walk may be subtle,
we cannot say the two views are the same in relation to the jobs at the light
exertional level that the VE identified. Also, to perform jobs at the light
exertional level, a person must also be able to lift and/or carry up to 20 pounds
occasionally and up to 10 pounds frequently, see 20 C.F.R. § 404.1567(b), as the
ALJ found was the case with Mr. Cagle. Dr. Galles, on the other hand, opined
that Mr. Cagle would be restricted to lifting and/or carrying up to 10 pounds only
occasionally, which is consistent with sedentary work, see id. § 404.1567(a), and
could never carry any weight frequently. Finally, Dr. Galles stated that Mr. Cagle
could never crawl or squat, whereas the ALJ found that he could do both
occasionally.
If Dr. Galles’s opinion as to Mr. Cagle’s limitations is to be credited, then
the hypothetical the ALJ gave to the VE did not relate all of Mr. Cagle’s
impairments with precision, as required, and the Commissioner cannot rely on the
jobs the VE identified, even at the sedentary level, to fulfill his step-five burden.
See Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991). Of course, the
weight to be given Dr. Galles’s assessment in making an RFC finding must be
viewed with an eye to the later medical treatment Mr. Cagle received, but even
this must take into consideration that Mr. Cagle may have a period of disability
that does not encompass the entire period of time between his onset date and the
-9-
date of the ALJ’s decision. The ALJ must make these determinations in the first
instance and properly explain his reasoning.
With this understanding of the role that Dr. Galles’s September 2003 RFC
assessment plays in this case, we can turn to our explanation of the ALJ’s error
regarding it. The opinion of a treating physician is entitled to controlling weight
if it is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and “not inconsistent with the other substantial evidence in the
individual’s case record.” Social Security Ruling (SSR) 96-2p, 1996 WL 374188,
at *2 (quotation marks omitted); see also Watkins v. Barnhart, 350 F.3d 1297,
1300 (10th Cir. 2003) (discussing the analytical framework of SSR 96-2p). Even
if a treating physician’s opinion is not entitled to “controlling weight,” it is “still
entitled to deference and must be weighed using all of the factors provided in
20 C.F.R. § 404.1527.” SSR 96-2p, 1996 WL 374188, at *4.
Further, “an ALJ must ‘give good reasons in the notice of determination or
decision’ for the weight assigned to a treating physician’s opinion.” Watkins,
350 F.3d at 1300 (quoting 20 C.F.R. § 404.1527(d)(2)) (brackets omitted). “[T]he
notice of determination or decision ‘must be sufficiently specific to make clear to
any subsequent reviewers the weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight.’” Id. (emphasis added) (quoting
SSR 96-2p, 1996 WL 374188, at *5). An ALJ “may reject a treating physician’s
opinion outright only on the basis of contradictory medical evidence and not due
-10-
to his or her own credibility judgments, speculation or lay opinion,” McGoffin v.
Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (quotation and emphasis
omitted), and he must provide “specific, legitimate reasons for doing so,”
Watkins, 350 F.3d at 1301 (quotations omitted).
Again, the ALJ’s reason for assigning “little probative weight” to
Dr. Galles’s September 2003 RFC assessment was that there were “troubling
inconsistencies in Dr. Galles’[s] records.” Aplt. App., Vol. II at 23. We faced an
analogous situation in Langley v. Barnhart, 373 F.3d 1116 (10th Cir. 2004),
where an ALJ declined to give a treating physician’s opinion controlling weight
because, among other things, the opinion was “not supported by objective medical
evidence in th[e] case, including his own records.” Id. at 1122. We remanded the
matter in part because “the ALJ failed to explain or identify what the claimed
inconsistencies were between [the treating physician’s] opinion and the other
substantial evidence in the record,” and concluded that the ALJ’s reasoning was
not “sufficiently specific to enable this court to meaningfully review his
findings.” Id. at 1123 (quotation omitted). Even after conducting an independent
review of the record in its entirety, we were unable to identify any obvious
inconsistencies to which the ALJ might have been referring. Id. at 1122-23.
Here the ALJ did not identify what the “troubling inconsistencies” were in
Dr. Galles’s medical records, and we are unable to find any obvious
inconsistencies in Dr. Galles’s own records that might undermine his assessment
-11-
of either Mr. Cagle’s retrospective RFC (that he was unable to work from
October 16, 2002, through October 1, 2003) or his prospective ability to work
subject to certain restrictions. The ALJ mentioned Dr. Galles’s October 24, 2003,
progress note, which recorded that Mr. Cagle had trouble returning to work and
was filing for another year of disability, but this does not reflect an inconsistency
in Dr. Galles’s medical records. Thus, as in Langley, we are unable to
meaningfully review the ALJ’s reason for the weight he gave to Dr. Galles’s RFC
assessment. And although, as we have recently explained, an ALJ is not required
to expressly apply in his decision each of the six factors of 20 C.F.R. § 404.1527
when deciding what weight to give to a medical opinion because not every factor
will apply in every case, he must at least provide “good reasons in [the] decision
for the weight” given to the opinions of treating sources. Oldham v. Astrue,
509 F.3d 1254, 1258 (10th Cir. 2007). The ALJ in this case did not do so.
The Commissioner’s argument concerning the ALJ’s finding as to
Dr. Galles’s RFC assessment rests on inferences drawn from evidence the ALJ
barely referenced in his decision. Therefore, the Commissioner’s argument is an
impermissible attempt to provide a post hoc rationale in support of the ALJ’s
decision, see Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004), and in any
event is unpersuasive.
-12-
Dr. Reddy
We now turn to Mr. Cagle’s arguments regarding the ALJ’s treatment of
Dr. Reddy’s October 2004 RFC form, in which Dr. Reddy opined that Mr. Cagle
could sit for 1 hour at a time and for 2 hours total in an 8-hour work day; could
stand for 10-30 minutes at a time and for 1 hour total; and could walk for 10-30
minutes at a time and for 1 hour total. Dr. Reddy also concluded that Mr. Cagle
was limited to occasionally lifting no more than 10 pounds and occasionally
carrying no more than 5 pounds. Dr. Reddy further stated that Mr. Cagle’s ability
to use his hands and feet for repetitive motion would be limited, that he could
never bend, squat, crawl, climb, or reach, and that he could occasionally handle
and finger bilaterally. Dr. Reddy opined that Mr. Cagle could not work 8 hours a
day, 5 days a week, because of his need to alternate sitting and standing and
because of restrictions on his finger and wrist movements due to CTS. Finally,
Dr. Reddy stated that Mr. Cagle’s impairments would interfere with the ability to
maintain a consistent pace of production, that his symptoms would distract him
from job tasks for more than 1 hour per day, that he would miss more than 3 days
of work per month, and that his pain medication, then Oxycontin, would interfere
with his concentration.
The ALJ did not give “much weight” to the limitations set out in
Dr. Reddy’s RFC assessment, which were much more severe than those of
Dr. Galles’s assessment one year earlier, because
-13-
the record [did] not show objective signs of the claimant’s subjective
symptoms and diagnosis and treatment has been based on the
claimant’s complaints. When seen in the office on September 23,
2004, Dr. Reddy noted that the claimant had very minimal bony or
soft tissue tenderness in the paraspinals. He had good strength in
both lower extremities and straight-leg-raise was negative.
Aplt. App., Vol. II at 23.
Mr. Cagle argues that the ALJ’s reasoning is flawed because the record
contains many examples of objective signs supporting Dr. Reddy’s assessment.
He also correctly points out that Dr. Reddy interpreted the lumbar myelogram and
CT scan performed in October 2002 as evidencing spinal stenosis in the lumbar
spine, see id. at 141, and that most of Dr. Reddy’s other medical records repeat
his diagnosis of spinal stenosis. The ALJ did not acknowledge Dr. Reddy’s
opinion as to stenosis. Rather, he stated that there was no evidence of spinal
canal stenosis, id. at 20, apparently based on the report of Dr. Cynthia Long, who
read the test results and thought there was no evidence of “significant spinal canal
stenosis” at the L2-L3 and L4-L5 levels, and no “evidence of spinal canal
stenosis” at the L3-L4 level, id. at 143.
Despite the ALJ’s failure to recognize and resolve the conflicting medical
evidence of spinal stenosis, we are convinced that the ALJ gave a specific enough
reason for giving little weight to the very strict exertional and postural limitations
expressed in Dr. Reddy’s RFC assessment. As the Commissioner points out, most
of the examples of objective physical signs supporting Dr. Reddy’s RFC
-14-
assessment that Mr. Cagle relies on occurred early in his treatment cycle and were
significantly relieved by the ESIs Dr. Reddy administered. It is apparent from the
ALJ’s extensive catalogue of Dr. Reddy’s medical evidence that Mr. Cagle
experienced substantial improvement throughout 2004 as a result of his seventh
and eighth ESIs in late April and early September combined with his pain
medications. After the April ESI, Mr. Cagle reported to Dr. Reddy that he was “a
new person,” felt “great,” and had pain at a level of “2 or 3” in the morning but
was completely pain-free after taking his medication. Id. at 183. In early June,
he reported to Dr. Reddy that he was “doing very well,” had pain for an hour in
the morning, felt great the rest of the day, and was “pretty active both in and out
of the house.” Id. at 216. During two exams in August he stated that his back
pain was “under good control,” it occurred for a few hours a day, it was about a
“2” on a scale of 0-10, it was “slightly increasing,” his pain medications were
“very helpful,” and that he wanted another injection. Id. at 179, 181. In early
September, Mr. Cagle had his eighth ESI, and in a follow-up office visit, he
reported to Dr. Reddy that he felt “really good since the injection” and denied any
other complaints. Id. at 215. Dr. Reddy’s objective examination findings from
each of these office visits indicate rather mild physical symptoms.
The ALJ discussed these medical records in his decision but did not repeat
them when he gave little weight to Dr. Reddy’s October 2004 RFC assessment.
Instead he focused on the findings from the September examination, which
-15-
occurred about a month prior to the hearing before the ALJ, but those findings
were representative of the others. Thus, regardless of whether Mr. Cagle has
spinal stenosis or not, the record shows a pattern of physical improvement as a
result of the ESIs and generally mild exam findings just prior to the date of
Dr. Reddy’s RFC assessment. Therefore, the objective medical evidence from
Dr. Reddy’s own records does not support the severity of the exertional and
postural limitations asserted in his RFC assessment, and we conclude that
substantial evidence supports the ALJ’s decision to give little weight to those
limitations.
We are not convinced, however, that the ALJ provided a sufficient reason
for giving little probative weight to the other limitations expressed in Dr. Reddy’s
assessment, namely, that Mr. Cagle’s impairments would interfere with the ability
to maintain a consistent pace of production, that his symptoms would distract him
from job tasks for more than 1 hour per day, that he would miss more than 3 days
of work per month, and that his pain medication would interfere with his
concentration. The only reason the ALJ gave for the weight he assigned to
Dr. Reddy’s opinion was an example of the physical relief that Mr. Cagle
obtained from the ESIs and his pain medications. It does not necessarily follow
from this physical relief that the other limitations Dr. Reddy assessed are entitled
to little probative weight. Of particular concern are Dr. Reddy’s opinions that
Mr. Cagle’s medications would interfere with his concentration, and that he
-16-
would miss more than 3 days of work per month, which the VE testified render
him unable to “maintain competitive employment,” id. at 294. The ALJ must
address these aspects of Dr. Reddy’s opinion more specifically on remand.
B. Mr. Cagle’s Other Issues
We need not address Mr. Cagle’s allegations of error with respect to the
ALJ’s credibility determination or the jobs the ALJ identified at step five. These
findings may be affected on remand by the ALJ’s reconsideration of the RFC
assessments of Dr. Galles and Dr. Reddy as well as any other evidence Mr. Cagle
may properly offer.
III.
The judgment of the district court is REVERSED. The case is
REMANDED to the district court with instructions to remand the matter to the
Commissioner for further proceedings consistent with this order and judgment.
Entered for the Court
Stephen H. Anderson
Circuit Judge
-17- | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/170966/ | 532 F.3d 1095 (2008)
UNITED STATES of America, Plaintiff-Appellee,
v.
Andre IVORY, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Pamela Renea Tyler, Defendant-Appellant.
Nos. 06-3194, 06-3217.
United States Court of Appeals, Tenth Circuit.
July 14, 2008.
*1098 Robin D. Fowler, Bath & Edmonds, P.A., Overland Park, KS, for Defendant-Appellant, Andre Ivory.
Kurt P. Kerns, Ariagno, Kerns, Mank & White, LLC, Wichita, KS, for Defendant-Appellant, Pamela Renea Tyler.
Scott C. Rask, Assistant United States Attorney, (Eric F. Melgren, United States Attorney, with him on the brief), Kansas City, KS, for Plaintiff-Appellee, United States of America.
Before HARTZ, McCONNELL, and HOLMES, Circuit Judges.
HARTZ, Circuit Judge.
Andre Ivory was indicted on federal drug charges after an informant, Tania Atkins, purchased crack cocaine from him on several occasions. He then proceeded to make matters worse for himself, and others, by arranging to have Atkins murdered. Fortunately, that effort failed. There followed a series of superseding indictments charging additional defendants with drug offenses and offenses related to the attempted murder. Most of the defendants entered into plea agreements, and even Mr. Ivory himself pleaded guilty to all but one of the drug charges against him. Eventually, three defendants were tried in a joint trial: Mr. Ivory; his girlfriend, Pamela Renea Tyler; and her brother, Mark McGee.
Mr. Ivory and Ms. Tyler (the Defendants) were convicted of conspiracy to kill a witness, see 18 U.S.C. § 1512(a)(1)(A), (k), attempting to kill a witness, see id. § 1512(a)(1)(A), and use of a firearm in conjunction with a crime of violence, see id. § 924(c)(1)(A). McGee was acquitted on all charges, the Defendants were acquitted on a charge of conspiracy to distribute cocaine, and Ms. Tyler was acquitted on a charge of distributing cocaine. Mr. Ivory was sentenced to life imprisonment on the drug counts to which he had pleaded guilty. On the charges relating to the attempted murder, he was sentenced to 240 months' imprisonment, to be served concurrently with his sentence on the drug counts; and on the firearms charge he was sentenced to 120 months, to be served consecutively to the other sentences. Ms. Tyler was sentenced to 20 years' imprisonment on each of the three counts on which she was convicted, the terms to be served consecutively to one another.
*1099 The Defendants appeal their jury convictions on the ground that the prosecutor improperly commented on their failure to testify. They also raise challenges to their sentences, primarily arguing the insufficiency of the evidence to support various enhancements under the United States Sentencing Guidelines (USSG). Exercising jurisdiction under 28 U.S.C. § 1291, we consolidate the two appeals and affirm.
I. BACKGROUND
Between March 18 and March 24, 2004, Atkins, an informant for the Lawrence, Kansas, Police Department, purchased crack cocaine from Mr. Ivory on five occasions. On March 25 Lawrence police officers executed a search warrant for drug evidence at the residence that Mr. Ivory shared with Ms. Tyler. That same day, officers arrested Mr. Ivory on a charge of distributing crack cocaine.
On April 29, while Mr. Ivory was still in jail, Atkins was shot while driving home from work in Lawrence. Kyle Crayton, the assailant, testified at trial that McGee had offered him money to kill Atkins. He then met with Ms. Tyler, McGee, and McGee's girlfriend, Chaconie Edwards, to plan the crime. Kim Sanders, a friend of Ms. Tyler who helped determine Atkins's whereabouts, corroborated Crayton's testimony that McGee had encouraged Crayton to participate in the murder plan and that Crayton had been assigned to kill Atkins. Edwards corroborated Crayton's testimony that she and Ms. Tyler had met with him to plan the murder. To establish Mr. Ivory's involvement, the government played tape recordings of a number of phone conversations between Mr. Ivory and Ms. Tyler while he was in jail.
II. DISCUSSION
A. Prosecutorial Misconduct
The recorded conversations between Mr. Ivory and Ms. Tyler do not explicitly discuss murdering Atkins. The prosecutor contended at trial that some of their language was code. In particular, he suggested in closing argument that they used the word money to mean the planned murder of Atkins. The attorneys for the Defendants responded that the word money should be taken at face valuethat the two were simply concerned about the need to pay for Mr. Ivory's attorney. Counsel for McGee reiterated the point, stating, "[N]ot one witness [told] you that the reference to money is really reference to a killing. Have you heard anybody say that other than [the prosecutor]?" R. Vol. XIII, Doc. 508 at 163. In rebuttal the prosecutor argued:
Let's really get to the crux of the matter. What does "money" mean? Well, the only persons that use the word "money" in those conversations were not witnesses that could be called by the Government. The interpretation of the word "money," then, has to be determined based upon
Id. at 169-170. At this point, counsel for all three defendants moved for a mistrial on the ground that the prosecutor had commented on their clients' failure to testify. The court denied the motion but instructed the jury that it should disregard the prosecutor's comment, that the defendants had an absolute right not to testify, and that the jury should not consider their silence.
On appeal the Defendants challenge the denial of the request for a mistrial. We review such a denial for abuse of discretion. United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir.1996). In determining whether a mistrial should have been granted, we focus on "whether the defendant's right to a fair and impartial trial was impaired." Id. at 93 (ellipses, brackets, and internal quotation marks omitted).
*1100 The Defendants rely on well-settled law protecting a defendant from the inference that silence at trial implies guilt. The leading case is Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). At Griffin's trial for first-degree murder the judge instructed the jury that it could infer the truth of evidence against him if he failed to testify and could "reasonably be expected to deny or explain [the evidence] because of facts within his knowledge." Id. at 610, 85 S. Ct. 1229 (internal quotation marks omitted). The prosecutor asked the jury to draw that inference, pointing to evidence that Griffin had been seen with the victim on the evening of the murder, listing facts that he would know, and then asserting that "[t]hese things he has not seen fit to take the stand and deny or explain. And in the whole world, if anybody would know, this defendant would know. [The victim] is dead, she can't tell you her side of the story. The defendant won't." Id. at 611, 85 S. Ct. 1229 (internal quotation marks omitted). The Supreme Court held that both the court's instructions and the prosecutor's remarks violated Griffin's privilege against self-incrimination. Id. at 615, 85 S. Ct. 1229. As the Court later explained, "Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant's silence as substantive evidence of guilt." Baxter v. Palmigiano, 425 U.S. 308, 319, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976). We have held that
[t]he test ... to determine whether the prosecutor's remark will be considered a comment on the defendant's failure to testify is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.
United States v. Barton, 731 F.2d 669, 674 (10th Cir.1984) (internal quotation marks omitted).
There is, however, an important limitation on this doctrine. If a statement by the prosecutor that might otherwise be construed as a comment on a defendant's failure to testify is a fair response to an argument by a defendant, we are unlikely to find error. This proposition was adopted by the Supreme Court in United States v. Robinson, 485 U.S. 25, 108 S. Ct. 864, 99 L. Ed. 2d 23 (1988). In that case defense counsel had argued that the government had not allowed the defendant to give his side of the story. In response the prosecutor pointed out that the defendant "`could have taken the stand and explained it to you....'" Id. at 26, 108 S. Ct. 864. The Court held that the defendant's right not to testify was not infringed. It reasoned:
[I]t is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another. The broad dicta in Griffin to the effect that the Fifth Amendment, "forbids ... comment by the prosecution on the accused's silence," must be taken in the light of the facts of that case. It is one thing to hold, as we did in Griffin, that the prosecutor may not treat a defendant's exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would prohibit the prosecutor from fairly responding to an argument of the defendant by adverting to that silence. There may be some "cost" to the defendant in having remained silent in each situation, but we decline to expand Griffin to preclude a fair response by the prosecutor in situations such as the present one.
Id. at 33-34, 108 S. Ct. 864 (citation omitted).
We think that Robinson controls this case. After defense counsel stated *1101 that no witness had testified that money was a code word for the murder plot, the prosecutor could fairly point out that the only persons who used the term money in the recorded conversations "were not witnesses that could be called by the Government," and therefore "[t]he interpretation of the word `money' has to be determined based upon." R. Vol. XIII, Doc. 508 at 169-170. Not only would it be "unfair" to forbid the prosecutor to explain why the government produced no witness who could testify to what the Defendants meant in their conversations, but the context of the prosecutor's remark in itself lessened the danger that the jury would infer guilt from silence. To be sure, the prosecutor's remark referred to the failure of the Defendants to testify, but the remark's purpose was not to encourage the jury to infer guilt from silence by suggesting that a defendant who does not testify must have something to hide. Rather, the clear intent was to explain why the jury must rely on circumstantial evidence to interpret the recorded conversation. Indeed, the prosecutor did not even suggest that the failure of the Defendants to testify must mean that the word money referred to the planned murder. Because the prosecutor focused on a proper inference to draw from the Defendants' silence the need to use other evidence to interpret their conversationsthe jury was less likely to consider other (improper) inferences that might be drawn. Moreover, the district court's instruction to the jury, which we assume that the jury tried to obey, see United States v. Templeman, 481 F.3d 1263, 1266 (10th Cir.2007), further reduced the danger that the jury would infer guilt from silence. We do not mean to suggest that absent defense counsel's argument (that the government had not produced witnesses to declare the meaning of the word money), the government's comment would have been acceptable, even with the district court's instruction. But the lessened potential for unfair prejudice to the Defendants reinforces our view that the prosecutor's response was permissible.
Further supporting our conclusion are opinions from our sister circuits. In United States v. Beverly, 369 F.3d 516, 543-44 (6th Cir.2004), defense counsel argued that if the defendant had committed the robberies with which he was charged, he would not have stayed in the area. As counsel put it: "`[T]he government says this man robbed four banks, he stuck around Columbus for five years, he waited as his buddies ... made deals, ignored [the government's] offer and then counted on twelve white folks to set him free.'" Id. at 544. The prosecutor responded, "We found another interesting concept of the law is if you don't run, you are not guilty. Ladies and gentlemen, why [the defendant] did what he did, only he can answer. But he figured probably he didn't get arrested in '95 or '96, so he was okay, that these guys haven't snitched on him." Id. at 543-44. The circuit court affirmed the conviction because the prosecutor's remark, although indirectly referring to the defendants' failure to testify to his motive for not fleeing, was a proper response to defense counsel's argument.
United States v. Isaac, 134 F.3d 199 (3d Cir.1998), is similar. Isaac was charged with transporting marijuana in a boat from Jamaica to St. Thomas in the Virgin Islands. To prove the charge, the government relied on the testimony of two confederates, Brown and Reid. (A fourth person involved in the drug shipment had been left behind in Jamaica.) During closing argument Isaac had attacked the credibility of the two witnesses, who apparently did not possess sterling characters. The prosecutor explained to the jury that his two witnesses were the best he could do:
*1102 Raymond Isaac captained that boat from Jamaica, and the only people who would know that Raymond Isaac captained that boat from Jamaica are Raymond Isaac, Conrad Brown, Irvin Reid, and the fourth individual in Jamaica. Those are the only people.
Id. at 206 (internal quotation marks omitted). On appeal Isaac argued that the prosecutor had implied that Isaac's failure to testify was evidence of his guilt. Relying on Robinson, the court rejected the argument, even though the prosecutor's statement came "close to violating Griffin." Id. It reasoned:
Much of [defendants'] argument was an attack on the credibility of Brown and Reid, whose testimony was key to proving numerous elements of the government's case. The prosecutor began his rebuttal by conceding that Brown and Reid were probably not the most upstanding individuals; however, there were no paragons of virtue present during the smuggling operation who could testify about it. In this context, the prosecutor's declaration ... comes across as an assertion that the government obtained its evidence from the only available sources.
Id. at 207. Here, likewise, the prosecutor was trying to explain that the only available sources for proving the meaning of money were circumstantial evidence. Cf. United States v. Virgen-Moreno, 265 F.3d 276, 291-92 (5th Cir.2001) (prosecutor's comment that the defendant had failed to call family members as witnesses to explain tape-recorded conversations was an appropriate response to statement by defense counsel that the government had not called scientific experts to identify the voices on the recordings); United States v. Coleman, 349 F.3d 1077, 1087-88 (8th Cir. 2003) (prosecutor's comment that a particular witness not called by the government could have exercised her privilege against self-incrimination was a fair response to defendant's suggestion that the government should have called the witness).
The Defendants' reliance on Berryman v. Colbert, 538 F.2d 1247 (6th Cir.1976), is misplaced. In that case the government made five comments regarding the defendant's failure to testify, including the following:
All right. Now, finally, to establish the robbery murder, the felony murder, we are relying almost entirely upon circumstantial evidence. Nobody was there when the robbery took place. Nobody that we can bring here to testify. The defendants here, yes, but we can't get them to testify. So, it is a matter of relying upon physical facts that were described to you by the police officer, and from those physical facts, then you must make an inference, you must say, beyond a reasonable doubt certain things did happen.
Id. at 1249 (internal quotation marks omitted). The Sixth Circuit concluded that this argument, particularly the italicized sentence, was "in square violation" of Griffin. Id. at 1250. But the prosecutor in that case had not been responding to an argument by defense counsel. Berryman, which was decided before Robinson, therefore had no occasion to consider the issue that was decisive in Robinson and is therefore distinguishable on that ground from the case before us.
Finally, Ms. Tyler argues that the prejudicial impact on her of the prosecutor's comment cannot be justified by any need to respond to the comment by counsel for McGee. But that comment concerned an element of the case against all three defendants at trial, so the prosecutor could not have responded in a manner that related only to McGee. It does not matter which defense counsel made the comment or whether all defense counsel had agreed to divide up their arguments and assigned a *1103 particular attorney to make the comment. Cf. United States v. Martinez-Larraga, 517 F.3d 258, 267-69 & n. 8 (5th Cir.2008) (prosecutor's reference to defendants' post-arrest silence was proper response to argument by counsel for one of the defendants). We hold that the prosecutor's comment did not deprive the Defendants of a fair trial and therefore denial of the motion for a mistrial was not an abuse of discretion.
B. Sentencing
The Defendants contend that there was insufficient evidence to support the district court's imposition of the following enhancements in calculating their offense levels under the Sentencing Guidelines: (1) a four-level enhancement for the offer of money to kill a witness, see USSG § 2A2.1(b)(2); (2) a four-level enhancement for their leadership roles in the murder conspiracy and a two-level enhancement to Mr. Ivory's sentence for his role on the drug counts, see id. § 3B1.1(a), (c); (3) an enhancement to Mr. Ivory's sentence based on the district court's drug-quantity calculation, see id. § 2D1.1(a)(3); (4) a two-level enhancement to Ms. Tyler's sentence for restraint of the victim, see id. § 3A1.3; (5) a two-level enhancement to Ms. Tyler's sentence for the use of juveniles in the murder conspiracy, see id. § 3B1.4; and (6) a two-level enhancement to Ms. Tyler's sentence for obstruction of justice, see id. § 3C1.1 (2004). Ms. Tyler also contends that the district court's use of the preponderance-of-the-evidence standard in determining the appropriate Guidelines range violated her rights under the Sixth Amendment, that the district court failed to give proper consideration to sentencing disparities, and that the discrepancy between her sentence and the statutory penalty for attempted murder makes her sentence unreasonable.
1. Preponderance-of-the-Evidence Standard
Because of its potential impact on the other sentencing issues raised on appeal, we first address Ms. Tyler's contention that the district court's use of the preponderance-of-the-evidence standard in determining the appropriate Guidelines range violated her Sixth Amendment rights. She relies on United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), and Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), which held that contested factual predicates for increasing a sentencing range under mandatory guidelines must be found by a jury beyond a reasonable doubt. We have held, however, that these holdings do not apply to advisory guidelines, such as the federal Sentencing Guidelines. See United States v. Rodriguez-Felix, 450 F.3d 1117, 1130 (10th Cir.2006) (even after Booker, district court calculating Guidelines sentencing range "may continue to find facts by a preponderance of the evidence" because court "applies such facts in a discretionary manner"); United States v. Ellis, 525 F.3d 960, 965 (10th Cir.2008) (distinguishing Cunningham on the ground that it concerned a mandatory, rather than an advisory, sentencing scheme). We therefore reject this contention. Accordingly, our standard of appellate review is the same as before Booker. We review "factual findings for clear error, reversing only if a finding is wholly without factual support in the record, or after reviewing the evidence, we are definitively and firmly convinced that a mistake has been made." Rodriguez-Felix, 450 F.3d at 1130. We review de novo any claims of legal error. Ellis, 525 F.3d at 964. We address the remaining challenges below and reject them all.
2. Offer of Money to Commit Murder
USSG § 2A2.1(b)(2) provides: "If the offense involved the offer or the receipt *1104 of anything of pecuniary value for undertaking the murder, increase by 4 levels." The district court applied this enhancement based on (1) Crayton's testimony that McGee had offered him money to murder Atkins and (2) a phone conversation between Ms. Tyler and Mr. Ivory from which it inferred that they were complicit in McGee's offer to Crayton. Although the Defendants point out weaknesses in the evidence relied on by the court, the court's finding had adequate evidentiary support.
3. Leadership Roles in the Offenses
USSG § 3B1.1 states:
Based on the defendant's role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
The commentary to § 3B1.1 provides the following guidance for determining which enhancement is appropriate:
In distinguishing a leadership and organizational role from one of mere management or supervision, titles such as "kingpin" or "boss" are not controlling. Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. There can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy. This adjustment does not apply to a defendant who merely suggests committing the offense.
Id., cmt. n. 4. The Defendants challenge the four-level enhancement for their roles in the murder conspiracy and Mr. Ivory challenges the two-level enhancement on the drug counts.
There is no dispute that the murder conspiracy involved at least five participants. But Mr. Ivory contends that "[t]he evidence ... did not establish that [he] gave directions to anyone regarding any plot to kill Tania Atkins" and that his conversations with Ms. Tyler did not "constitute being an organizer or leader." Ivory Br. at 42. We disagree. The district court could properly determine that Mr. Ivory was a leader based on his phone calls with Ms. Tyler, in which, it could be inferred, he pressured her to carry out the plan to kill Atkins and discussed with her both who could be chosen to perform the murder and the best time of day for the crime. After all, he was the one who would benefit most from the murder. As for Ms. Tyler, she claims that she was merely a manager of the murder conspiracy and that she therefore should have received only a three-level enhancement for her role. But the court reasonably found that she was the "pivot point" of the conspiracy. R. Vol. VII, Doc. 502 at 15:10.
Turning to the drug charge against Mr. Ivory, it involved fewer than five participants, so § 3B1.1(c) applied. Under that provision the defendant "needs merely to give some form of direction or *1105 supervision to someone subordinate in the criminal activity for which the sentence is given." United States v. Backas, 901 F.2d 1528, 1530 (10th Cir.1990) (defendant was a supervisor under USSG § 3B1.1(c) because he supervised another person, a doorman, in a drug-distribution scheme). The district court based this enhancement on Cheek's testimony that she called Mr. Ivory to purchase drugs and Mr. Ivory sent a person to deliver drugs to her at a convenience store. Although Mr. Ivory contends that "[t]here was no evidence as to what the respective roles were between [Mr. Ivory] and [the delivery person]," Ivory Br. at 40, the court could reasonably believe Cheek's testimony and find that Mr. Ivory had directed a subordinate to make the delivery.
4. Drug Quantity Calculation
Mr. Ivory's sentence on the drug charges to which he pleaded guilty was based on the quantity of drugs involved in this criminal activity. See USSG § 2D1.1(a)(3). The district court found that quantity to be 170.1 grams of crack cocaine and therefore calculated an offense level based on at least 150 grams of crack cocaine. See id. § 2D1.1(c)(3). Of the total 170.1 grams, 102 grams was attributed in the presentence investigation report (PSR) to Mr. Ivory's sales to Cheek. On appeal Mr. Ivory contends only that Cheek's testimony does not support a finding of 102 grams but a "drug amount closer to 70 than 100 grams." Ivory Br. at 39. Reducing the 102 grams to 70 grams would reduce the 170.1 gram total to 138.1 grams, which is about 12 grams below the 150-gram threshold for the enhancement imposed by the court.
In our view, the evidence supported the district court's choice of the offense level. The court could reasonably view the PSR calculation as a conservative estimate; and the court further observed that the PSR had not relied on drug transactions referred to in Ms. Tyler's grand jury testimony, which could "offset" a reduction for any excess in the PSR calculation (by accounting for at least 12 grams). R. Vol. II, Doc. 486 at 84. We note that Mr. Ivory raises no challenge on appeal to the district court's reliance on Ms. Tyler's testimony. The district court's attribution to Mr. Ivory of at least 150 grams of crack cocaine was not clearly erroneous.
5. Restraint of the Victim
USSG § 3A1.3 provides a two-level increase in the offense level for any offense when "a victim was physically restrained in the course of the offense." The commentary to section 1B1.1 defines physically restrained as "the forcible restraint of the victim such as by being tied, bound, or locked up." Id. § 1B1.1, cmt. n. 1(K). The examples in the commentary are illustrative but not exhaustive. See United States v. Roberts, 898 F.2d 1465, 1470 (10th Cir.1990).
At trial Crayton testified that he drove a stolen car to Atkins's place of work in Lawrence, rammed the stolen vehicle into the front of her van as she was leaving work, and shot at her through her windshield as she tried to back up. (Fortunately, his gun jammed so he had to flee in Edwards's nearby carwithout accomplishing his task.) The district court ruled that Atkins was physically restrained during the offense:
Crayton carried out this attempted murder by forcibly restraining the victim by blocking her car so that she could not escape while he shot at her and he intentionally rammed the stolen Oldsmobile into her mini van. And in doing so, temporarily prevented her from continuing on her way home from work or from escaping in the attack.
R. Vol. VII, Doc. 502 at 9.
On appeal Ms. Tyler does not challenge the underlying facts but argues, in essence, *1106 that Atkins was not physically restrained because she was not chased and tackled, as in United States v. Checora, 175 F.3d 782, 790 (10th Cir.1999) (victim physically restrained within the meaning of § 3A1.3 when two defendants chased and tackled him to prevent his escape). But Checora stated that restraint occurs when "the defendant's conduct ... ke[pt] the victim within bounds or under control." Id. at 791. In this case the record supports a finding that the purpose of ramming Atkins's vehicle was to trap or immobilize her; because she could not move forward, Crayton could more readily shoot her. She was being kept "within bounds or under control" to make her a better target. We find no error in the district court's decision to impose the two-level enhancement.
6. Use of Juveniles
USSG § 3B1.4 provides, "If the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense, increase by 2 levels." The commentary to § 3B1.4 defines "used or attempted to use" to include "directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting," see id., cmt. n. 1. Ms. Tyler challenges the district court's finding that she had enlisted the help of two juveniles Martinez and Cortezin the murder conspiracy, contending that (1) the court erred in applying this enhancement because there was no evidence regarding their ages; and (2) even though Martinez and Cortez had assisted in transporting to Lawrence the stolen car used by Crayton when shooting at Atkins several days later, the enhancement does not apply because transporting the vehicle was not part of the offense.
On the first point, contrary to the assertion in her appellate brief, Ms. Tyler did not object in district court to the PSR's statements regarding the ages of Martinez and Cortez. The court therefore could properly deem the ages to be admitted. See United States v. Tindall, 519 F.3d 1057, 1061-62 (10th Cir.2008).
As for the juveniles' role in the conspiracy, Martinez and Cortez were needed because Crayton refused to drive the stolen car from Ms. Tyler's house in Kansas City, Kansas, to Lawrence, where Atkins was to be killed. In United States v. Tran, 285 F.3d 934, 937-38 (10th Cir.2002), we held that the defendants had "used" a juvenile to commit bank fraud when they had employed a 16-year-old driver to transport them from the airport to local banks, where the defendants cashed counterfeit checks. Here, two juveniles, at Ms. Tyler's request, facilitated the offense by transporting the stolen vehicle to a more convenient location for use in the murder plan. The district court properly applied § 3B1.4.
7. Obstruction of Justice
USSG § 3C1.1 (2004) provides:
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.
The enhancement applies to "threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so." Id., cmt. n. 4(a). On appeal Ms. Tyler contends that the enhancement cannot be sustained on the basis of testimony at sentencing by Detective Scott *1107 Bonham regarding various incidents. But the district court imposed the two-level enhancement based on Edwards's trial testimony that Ms. Tyler had threatened her; it did not rely on Bonham's testimony. Ms. Tyler does not dispute the sufficiency of Edwards's testimony to support the enhancement. Because Ms. Tyler does not challenge the sufficiency of the evidence actually relied upon by the district court, she is not entitled to relief.
8. Consideration of Sentencing Disparities
Ms. Tyler challenges the procedural reasonableness of the district court's sentence, contending that it failed to give proper consideration to the disparity between similarly situated defendants, as required by 18 U.S.C. § 3553(a)(6). But § 3553(a)(6) does not require the sentencing court to compare the sentences of codefendants; rather, it looks to uniformity on a national scale. See United States v. Davis, 437 F.3d 989, 997 (10th Cir.2006). Moreover, a sentencing court is not required to provide a specific discussion of the § 3553 factors for a sentence falling within the range suggested by the Guidelines. See United States v. Ruiz-Terrazas, 477 F.3d 1196, 1202 (10th Cir.2007). All that is required is that the court provide "a general statement noting the appropriate guideline range and how it was calculated." Id. (internal quotation marks omitted). We are satisfied that the district court did this. As we stated in United States v. Verdin-Garcia, 516 F.3d 884, 898 (10th Cir.2008):
[I]t is not enough to say, as Appellants do here, that the court failed for instance to discuss the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty [of] similar conduct. Appellants must have raised a nonfrivolous argument below showing, by more than hand-waving or conclusory statements, the likelihood of a sentencing disparity if the Guidelines were followed. This they did not do.
(citation and internal quotation marks omitted). Ms. Tyler failed to make such a showing; indeed, she did not complain in district court about a sentencing disparity. Therefore she is not entitled to relief.
9. Discrepancy Between Guidelines and Statutory Penalty
Ms. Tyler contends that the district court's sentence is "presumptively unreasonable because application of the enhancements far exceed the potential punishment Congress intended to impose for [her] offense." Tyler Br. at 43. She further contends that "[i]f the maximum penalty by statute is 20 years and yet the guidelines sentence is life, then it seems that guidelines are presumptively unreasonable since they more than triple the punishment authorized by statute."[1]Id. We disagree. To begin with, Ms. Tyler's sentence (on her conviction of three offenses, not just the attempted murder) is 60 years, not life. More importantly, there is nothing presumptively unreasonable about imposing consecutive sentences to reach a sentence within the Guidelines range. On the contrary, a sentence within the Guidelines range is presumptively reasonable. See United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.2006). Of course, if the Guidelines range exceeds the statutory maximum, the statute must prevail. But if the defendant has been convicted of several offenses, it is hardly unreasonable to stack the statutory sentences *1108 to reach a presumptively reasonable Guidelines sentence. See USSG § 5G1.2(d) (providing for consecutive sentences to produce combined sentence equal to advisory Guidelines sentence). We discern no error.
III. CONCLUSION
We AFFIRM the convictions and sentences of Mr. Ivory and Ms. Tyler.
NOTES
[1] A 2008 amendment to 18 U.S.C. § 1512(a)(3)(B)(ii) struck "20 years" and inserted "30 years" as the maximum punishment for attempted murder of a witness. Court Security Improvement Act of 2007, Pub.L. No. 110-177, § 205, 121 Stat. 2537 (2008). | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3847476/ | Argued January 31, 1933.
This is an appeal from the denial by the court below of defendant's motions for judgment n. o. v. and for a new trial. An action of assumpsit was brought by Fred B. Gernerd, Trustee in Bankruptcy of Charles H. Hoch and Oscar S. Hoch, individually, and as copartners, trading as Hoch Contracting Company (hereinafter referred to as the partnership), against the Union Indemnity Company, a corporation, (hereinafter referred to as the Indemnity Company), to recover the value of certain road building equipment originally owned by the partnership which the company had taken into its possession. After trial plaintiff recovered a verdict for $13,255.
On May 19, 1930, the partnership, which had secured a contract to construct a state highway in Pike County, applied to the Indemnity Company for a bond required of them by statute. On July 10, 1930, the company executed this bond. The application, which when accepted constituted a contract between the partnership and the company, contained, inter alia, the following: "That for the better protection and security of the Company, the undersigned, as of the date hereof, hereby assigns, transfers and conveys to the Company, all the rights, titles *Page 171
and interests of the undersigned in and to all the supplies, tools, plant, equipment and materials of every nature and description that he or it may now or hereafter have upon said work, or in or on about the site thereof, . . . . . . and the undersigned does hereby authorize and empower the company, its authorized agents or attorneys, to enter upon and take possession of said supplies, tools, plant, equipment, materials, and enforce, use and enjoy the title thereto and the possession thereof in the event of any default on the partof the undersigned in the performance of the contracthereinabove referred to [italics supplied] or in the payment of any of the premiums above mentioned."
On June 6, 1931, the partnership defaulted in the performance of its contract with the Commonwealth and the work was subsequently completed by the Indemnity Company. At the time the contract was executed, the partnership owned practically all of the equipment, machinery, and building materials set forth in the statement of claim. The company, upon the execution of the bond by it and of the assignment of the equipment to it, did not take possession of the equipment but allowed it to remain in the possession of the partnership. The insolvency of the partnership became manifest as early as March 23, 1931, when a meeting was held in the directors' room of an Allentown bank, attended by representatives of certain banks and of the Indemnity Company, and by Charles Hoch representing the partnership. A statement was there made that "Hoch is insolvent."
June 6, 1931, the partnership defaulted in its road building contract. June 19, 1931, the Indemnity Company took an exemplification of a judgment obtained by it against the partnership on March 6, 1931, in Berks County for $269,511.51 and filed it of record in Pike County. June 20,1931, the Indemnity Company took the equipment in controversy into its possession and removed some of it to New York State. July 3, 1931, the Indemnity Company caused an execution to issue and *Page 172
be placed in the hands of the sheriff of Pike County (where a large part of the equipment was) on that judgment against "the goods and chattels, lands and tenements" of the partnership.July 11, 1931, an involuntary petition in bankruptcy was filed against the partnership. On the same day the United States Court for the Middle District of Pennsylvania issued an order restraining the Indemnity Company "from further proceedings against the assets of the alleged bankrupts upon an execution issued out of the Court of Common Pleas of Berks County and an exemplified copy of which was entered of record in the County of Pike." August 3, 1931, the partnership was adjudged bankrupt. August 24, 1931, F. B. Gernerd was elected trustee of the bankrupt. He demanded that the property in controversy be turned over to him. This demand was refused.
The controlling question in this case is: Did title to the property in dispute vest, as against all others, in the Indemnity Company four months before the petition in bankruptcy was filed?
The contract between the partnership and the company contained the provision that the latter should have the right to "enforce, use and enjoy the title thereto and the possession thereof in the event of any default" by the partnership "in the performance of the contract." In other words the Indemnity Company could not "enforce," i. e., make effective its title to and possession of the equipment "assigned" to it for its "better protection and security" until the partnership defaulted in the performance of its road building contract.
The law is well settled in Pennsylvania that "a sale of personal property, leaving the vendor in possession and without doing anything to indicate a change of ownership is fraudulent as against creditors. . . . . . . It would be dangerous to the public to countenance such transactions. It may be conceded, indeed it must be, that the rigor of this rule in later years has been somewhat relaxed, but the rule itself still remains the law of *Page 173
our State. When a vendee, or a pledgee, takes title to personal property, without taking possession of it, he takes the risk of the integrity and solvency of his vendor, or pledgor, when the rights of subsequent bona fide purchasers, or of levying creditors, arise: White v. Gunn, 205 Pa. 229 [54 A. 901]": Bank of N. A. v. Penn M. C. Co., 235 Pa. 194, 198, 83 A. 622.
Appellant cites the case of Woods v. Klein, 223 Pa. 256,72 A. 523. That case is not in point for there the lien on the property, which was a steamboat, was evidenced to the world by a mortgage recorded in the office of the collector of the port more than 18 months before the institution of bankruptcy proceedings against the owner of the boat. Under the Act of Congress of July 29, 1850, the mortgage was a valid lien against the boat from the time it was recorded. Appellant also cites the case of Christ v. Zehner, 212 Pa. 188, 61 A. 808. In that case a bill of sale absolute in its terms was given as security for a loan. The goods were to be reassigned upon the repayment of the loan. In the case now before us the Indemnity Company could "enforce, use and enjoy the title" to the equipment "assigned" to it and "possession thereof" only "in the event of any default" by the assignor, i. e., by the Indemnity Company.
What this court said in Bank of North America v. Penn Motor Car Co., supra, applies here if we substitute the phrase "the indemnity company claiming title to the equipment," for the corresponding phrase in the excerpt quoted, as follows: "Primarily, this is a controversy between the trustee in bankruptcy, representing the creditors of the bankrupt estate, and the bank claiming title to the automobiles as pledgee. The rights of creditors, the question of preferential liens, and the rules of procedure, under the bankruptcy laws, must necessarily prevail."
The Bankruptcy Act of 1898 as amended in 1926, section 60, provides: "Section 60. Preferred Creditors. — (a) A person shall be deemed to have given a preference *Page 174
if, being insolvent, he has, within four months before the filing of the petition, or after the filing of the petition and before the adjudication, procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. Where the preference consists in a transfer, such period of four months shall not expire until four months after the date of recording or registering of the transfer, if by law such recording or registering is required or permitted."
Sub-paragraph "b" of that act provides that if such a transfer of property within four months before the filing of the petition in bankruptcy operates as a preference "it shall be voidable by the trustee and he may recover the property or its value from such person," i. e., the person to whom the transfer was made, if he then had reasonable cause to believe that a preference would result.
Whatever claim the Indemnity Company had to the property constituting the subject of this suit must yield to the superior claim of the trustee. The latter was entitled to recover the property or its value.
Assignments of error Numbers 1, 5 and 6 are overruled.
The question of election of remedies was not raised in the pleadings (though referred to by the court below), and to determine this controversy it is not necessary to invoke the principle that of two or more inconsistent remedies the pursuit of one necessarily involves the negation of the other. In view of the bankruptcy proceedings and the consequent futility of the Indemnity Company's belated attempt to "enforce and enjoy" its title to and possession of the equipment, the doctrine of election of remedies has no application here even if it had been *Page 175
pleaded. Plaintiff was therefore under no necessity of pleading it.
The remaining assignments of error are overruled.
The judgment is affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4553843/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/07/2020 12:08 AM CDT
- 81 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
State of Nebraska, appellant, v.
Richard A. Fredrickson, appellee.
___ N.W.2d ___
Filed June 5, 2020. No. S-19-1083.
1. Judgments: Jurisdiction: Appeal and Error. Determination of a juris-
dictional issue which does not involve a factual dispute is a matter of
law which requires an appellate court to reach its conclusions indepen-
dent from a trial court.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
3. Courts: Jurisdiction: Legislature: Appeal and Error. In order to have
jurisdiction over an appeal, appellate jurisdiction must be specifically
provided by the Legislature.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, the party must be appealing from a
final order or a judgment.
5. Criminal Law: Judgments: Sentences: Appeal and Error. In a crimi-
nal case, the judgment from which the appellant may appeal is the
sentence.
6. Judgments: Words and Phrases. Every direction of the court made or
entered in writing and not included in a judgment is an order.
7. Final Orders: Appeal and Error. In order to be a final order which
an appellate court may review, the lower court’s order must (1) affect
a substantial right and determine the action and prevent a judgment,
(2) affect a substantial right and be made during a special proceeding,
(3) affect a substantial right and be made on summary application in an
action after a judgment is rendered, or (4) deny a motion for summary
judgment which was based on the assertion of sovereign immunity or
the immunity of a government official.
8. Final Orders. The first step in a final order analysis under Neb. Rev.
Stat. § 25-1902 (Supp. 2019) is to determine whether the order affected
a substantial right of one or more parties.
- 82 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
9. ____. Whether an order affects a substantial right focuses on whether
the right at issue is substantial and whether the court’s order has a sub-
stantial impact on that right.
10. ____. Whether an order affects a substantial right depends on whether it
affects with finality the rights of the parties in the subject matter. It also
depends on whether the right could otherwise effectively be vindicated.
11. Final Orders: Appeal and Error. An order affects a substantial right
when the right would be significantly undermined or irrevocably lost by
postponing appellate review.
Appeal from the District Court for Washington County:
John E. Samson, Judge. Appeal dismissed.
M. Scott Vander Schaaf, Washington County Attorney, and,
on brief, Desirae M. Solomon for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
The State attempts to appeal from the district court’s order
allowing the defendant to proceed in forma pauperis with his
criminal appeal. The defendant filed an application, pursuant to
Neb. Rev. Stat. § 29-2306 (Reissue 2016), to proceed in forma
pauperis in his criminal appeal. The district court granted the
application, ordering, pursuant to § 29-2306 and Neb. Rev.
Stat. §§ 25-2305 and 25-2306 (Reissue 2016), that the defend
ant did not have to pay the docket fees and costs associated
with production of the transcript and bill of exceptions. The
State now challenges that determination. The direct appeal
was affirmed by the Nebraska Court of Appeals on May 26,
2020, 1 but the mandate setting forth the total amount of fees
or costs due to the appellate court has not yet been issued in
that appeal.
1
State v. Fredrickson, No. A-19-633, 2020 WL 2643875 (Neb. App. May
26, 2020) (selected for posting to court website).
- 83 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
BACKGROUND
Richard A. Fredrickson was charged by amended infor-
mation with several robbery-related charges in Washington
County. On April 16, 2018, the county court ordered that
Fredrickson was “adjudged indigent,” despite Fredrickson’s
failure to file a poverty affidavit, and counsel was appointed
to represent Fredrickson at the county’s expense. The case was
then moved to district court, where Fredrickson entered a no
contest plea to robbery in exchange for the State’s dismissing
the remaining counts.
Subsequently, the State filed a motion to determine
Fredrickson’s indigent status, noting Fredrickson’s failure to
file the poverty affidavit and alleging Fredrickson may have
sufficient funds to compensate the county for legal work per-
formed. The State also filed a motion to dispose of property,
requesting the sale of Fredrickson’s impounded vehicle alleg-
edly used in the commission of the robbery. The State asked
that any funds acquired from such sale be directed by the court
to reimburse the county for Fredrickson’s representation.
On June 4, 2019, immediately prior to sentencing, a hear-
ing was held on the State’s two motions. At the hearing, the
State pointed out that the county court had appointed counsel
for Fredrickson without receiving any evidence of his financial
status. Although Fredrickson admitted he had failed to submit
a poverty affidavit, he completed a new form and submitted it
at the hearing.
Fredrickson’s affidavit indicated that he had $22,000 in
assets, his vehicle was worth $9,000, and he had a bank
account with a $13,000 balance. The affidavit also indicated that
Fredrickson was obligated to pay child support in the amount
of $100 per month for each of his two children. According to
Fredrickson, his savings were being managed by his “power of
attorney person” for the continued payment of child support.
The court ordered Fredrickson’s impounded vehicle to be sold
and the proceeds used to reimburse the county for legal fees
due to the appointment of legal counsel and for court costs. In
the event the sale of the vehicle produced insufficient funds to
- 84 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
cover the court costs and attorney fees, the court denied the
State’s request for further reimbursement from Fredrickson’s
savings and other available assets.
On June 4, 2019, Fredrickson was sentenced to a term of
20 to 38 years of incarceration. Fredrickson filed his notice
of appeal of his conviction and sentence on July 1, and filed
a pro se motion for appointment of appellate counsel the same
day. Along with his motion, Fredrickson filed a new financial
affidavit in which he claimed he had $10,000 to $14,000 in a
bank account that was to be used “solely for payments of child
support to maintain current status.” The affidavit stated this
child support was $200 per month.
The State filed an objection to Fredrickson’s alleged indi-
gent status. A hearing was held on Fredrickson’s motion for
appointment of appellate counsel and the State’s objection.
During the hearing, the State submitted a real estate trans-
fer statement concerning a property in which Fredrickson
was indicated to have a one-half interest and which sold for
$180,000 in July 2018.
Fredrickson conceded that the property, which he owned
with his father, was sold and that he received about $80,000
from the sale. Fredrickson explained that he was incarcerated
during and since the sale of the property so the person holding
his power of attorney had made expenditures from the sale’s
funds for “any financial things that I would have had to have
taken care of, anything like that, children, holidays, whatever,
has been taken care of out of that.” Fredrickson testified that
the $10,000 to $14,000 listed on his financial affidavit was what
was left of the $80,000 after those expenses. Fredrickson also
clarified that his child support obligation may have changed
since the filing of his affidavit and is at least $100 per month
and at most $200 per month.
On July 12, 2019, the district court entered an order finding
Fredrickson was entitled to court-appointed appellate counsel
according to the information contained within his financial
affidavit. As such, the court appointed to Fredrickson appel-
late counsel at the county’s expense. The court explained that
- 85 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
Fredrickson was advised, in the event the financial affidavit
contained incorrect information, he may be ordered to reim-
burse the county for his appellate attorney fees.
On July 30, 2019, the State filed a notice of appeal of the
July 12 order finding Fredrickson entitled to court-appointed
appellate counsel. In State v. Fredrickson (Fredrickson I), 2
we held that we had no jurisdiction over the State’s interlocu-
tory appeal, as it did not affect a substantial right. During the
pendency before our court of the State’s interlocutory appeal
from the court’s order finding Fredrickson entitled to court-
appointed appellate counsel, Fredrickson filed, on October 11,
an application to proceed with his appeal from the conviction
and sentence in forma pauperis. This application contained the
same information presented in Fredrickson’s affidavit at the
July hearing, along with a copy of the court’s July 12 order
appointing appellate counsel.
On October 15, 2019, the court, without a hearing, granted
Fredrickson’s application to file his appeal in forma pauperis,
stating that in accordance with § 29-2306, Fredrickson was not
required to pay docket fees or costs incurred in the production
of the transcript and bill of exceptions.
On November 14, 2019, the State filed a notice of appeal
from the October 15 order allowing Fredrickson to proceed
in forma pauperis, which is the purported appeal presently
before us. The State filed a “Motion to Vacate and Objection
to Defendant’s Application to Proceed in Forma Pauperis”
that same date. The State’s motion claimed that the State was
unaware of the application and did not receive an opportunity
to present evidence showing that Fredrickson could afford the
costs of his appeal. The district court, after a hearing where the
parties stipulated that the evidence of indigency would have
been the same as was provided to the trial court at a previous
hearing, found Fredrickson indigent and ordered the county
responsible for payment of attorney fees, filing fee, bill of
exceptions, and other costs of the action.
2
State v. Fredrickson, 305 Neb. 165, 939 N.W.2d 385 (2020).
- 86 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
ASSIGNMENTS OF ERROR
The State assigns as error the district court’s approval
of Fredrickson’s application to proceed in forma pauperis.
Specifically, the State argues that the district court abused its
discretion by ordering the county to pay Fredrickson’s appeal
costs when Fredrickson did not provide evidence of his finan-
cial situation to the county court, he acquired an additional
$80,000 of cash during the trial, and his affidavit indicated he
had sufficient assets to pay for his appeal.
STANDARD OF REVIEW
[1] Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law which requires an
appellate court to reach its conclusions independent from a
trial court. 3
ANALYSIS
[2-4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. 4 In order to have jurisdic-
tion over an appeal, appellate jurisdiction must be specifically
provided by the Legislature. 5 For an appellate court to acquire
jurisdiction of an appeal, the party must be appealing from a
final order or a judgment. 6
[5,6] In a criminal case, the judgment from which the appel-
lant may appeal is the sentence, and every direction of the court
made or entered in writing and not included in a judgment is
an order. 7 Thus, the order granting Fredrickson’s application to
proceed in forma pauperis was an order.
[7] When the statutory scheme governing the proceedings
does not specifically address the finality of orders issued
3
Fredrickson I, supra note 2.
4
Id.
5
Id.
6
Id. See Neb. Rev. Stat. § 25-1911 (Reissue 2016).
7
Fredrickson I, supra note 2.
- 87 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
therein, final orders are governed by the general definitions set
forth by Neb. Rev. Stat. § 25-1902 (Supp. 2019). 8 In order to
be a final order which an appellate court may review, the lower
court’s order must (1) affect a substantial right and determine
the action and prevent a judgment, (2) affect a substantial right
and be made during a special proceeding, (3) affect a substan-
tial right and be made on summary application in an action
after a judgment is rendered, or (4) deny a motion for summary
judgment which was based on the assertion of sovereign immu-
nity or the immunity of a government official. 9
The statutes governing in forma pauperis proceedings 10 spe-
cifically provide a defendant whose application is denied the
right to appeal. 11 Section 25-2301.02 provides that if an objec-
tion to the defendant’s application to proceed in forma pauperis
is sustained, the party filing the application shall have 30 days
after the ruling or issuance of the statement to proceed with an
action or appeal upon payment of fees, costs, or security not-
withstanding the subsequent expiration of any statute of limita-
tions or deadline for appeal. Section 25-2301.02 also provides
for the means of obtaining a transcript for the appeal and the
appellate court’s standard of review:
In the event that an application to proceed in forma
pauperis is denied and an appeal is taken therefrom, the
aggrieved party may make application for a transcript of
the hearing on in forma pauperis eligibility. Upon such
application, the court shall order the transcript to be pre-
pared and the cost shall be paid by the county in the same
manner as other claims are paid. The appellate court shall
review the decision denying in forma pauperis eligibility
de novo on the record based on the transcript of the hear-
ing or the written statement of the court.
8
See Priesner v. Starry, 300 Neb. 81, 912 N.W.2d 249 (2018).
9
Fredrickson I, supra note 2. See Neb. Rev. Stat. § 25-1902 (Supp. 2019).
10
Neb. Rev. Stat. § 25-2301 et seq. (Reissue 2016).
11
See § 25-2301.02.
- 88 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
Notably absent from the statutes governing in forma pau-
peris is any reference to the ability to appeal the approval of
such an application. 12 Assuming without deciding here that the
Legislature did not intend to deny any opportunity to appeal
from an order granting a defendant’s application to proceed in
forma pauperis with a criminal appeal, the order appealed from
here is not final under § 25-1902. This is because the order
granting Fredrickson’s application to proceed in forma pauperis
did not affect with finality a substantial right.
[8-11] The first step in a final order analysis under § 25-1902
is to determine whether the order affected a substantial right
of one or more parties. The inquiry focuses on whether the
right at issue is substantial and whether the court’s order has
a substantial impact on that right. 13 Whether an order affects a
substantial right depends on whether it affects with finality the
rights of the parties in the subject matter. 14 It also depends on
whether the right could otherwise effectively be vindicated. 15
An order affects a substantial right when the right would be
significantly undermined or irrevocably lost by postponing
appellate review. 16
In Fredrickson I, we stated that because the county filed a
notice of appeal as though it were taking an ordinary appeal
under § 25-1902 and Neb. Rev. Stat. § 25-1912 (Cum. Supp.
2018), we would analyze jurisdiction according to the ordi-
nary principles of appellate jurisdiction just recited. We then
explained that the order finding that Fredrickson was indigent
and entitled to appellate counsel did not affect a substantial
right and thus was not final under § 25-1902.
We reasoned that the order did not affect a substantial right
because it did not obligate the county to pay any specific
12
§ 25-2301 et seq.
13
Fredrickson I, supra note 2.
14
Id.
15
Id.
16
Id.
- 89 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
amount or set a deadline for payment—matters that would
be subject to future proceedings addressing the question of
reasonable attorney fees. We also noted that the order was not
a final determination obligating the payment of Fredrickson’s
appellate attorney fees, because Fredrickson’s indigency can
subsequently be challenged through Neb. Rev. Stat. § 29-3908
(Reissue 2016), which provides:
Whenever any court finds subsequent to its appoint-
ment of . . . counsel to represent a felony defendant that
its initial determination of indigency was incorrect or that
during the course of representation by appointed counsel
the felony defendant has become no longer indigent, the
court may order such felony defendant to reimburse the
county for all or part of the reasonable cost of providing
such representation.
Thus, we explained that “even though the order appointing
appellate counsel specified that it is at the [c]ounty’s expense,
the State is able to seek reconsideration and can challenge
the underlying finding of indigency and recoup any subse-
quently expended funds from the defendant.” 17 We rejected the
county’s argument that such an avenue would not effectively
vindicate its rights because it is difficult to recoup money from
incarcerated criminal defendants. We said:
Although recovery of attorney fees may be, at times, dif-
ficult, the Nebraska Legislature has specified the process
for determination of the [c]ounty’s rights and recovery
of funds when there is a subsequent modification of an
indigency finding. This argument is insufficient to show a
significant undermining of the State’s right. 18
Similarly, the order granting Fredrickson’s application to
proceed in forma pauperis with his appeal was not a final
determination of the amount the county must pay in fees and
costs for Fredrickson’s appeal. Pursuant to § 25-2301, “[i]n
17
Id. at 173, 939 N.W.2d at 391.
18
Id. at 174, 939 N.W.2d at 391.
- 90 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
forma pauperis” simply means “permission given by the court
for a party to proceed without prepayment of fees and costs
or security.”
The mandate setting forth the total amount of such fees
or costs due has not yet been issued in Fredrickson’s direct
appeal. Until the county is ordered to pay a specific sum,
its substantial rights have not been affected. Thus, the order
granting Fredrickson’s application to proceed in forma pau-
peris was not a final order and we lack jurisdiction to consider
this appeal.
We also note for completeness that whether the in forma
pauperis order was properly granted or not does not affect the
perfection of Fredrickson’s criminal appeal. We have explained
that an in forma pauperis appeal is perfected when the appel-
lant timely files a notice of appeal and an affidavit of poverty. 19
Thus, the question of whether the application was properly
granted may alter who is responsible for some of the fees
associated with the appeal, but it cannot divest the court of
jurisdiction to consider Fredrickson’s appeal of his sentence. 20
We find that appeals from an order approving an application to
proceed in forma pauperis and appeals of awards of attorney
fees should be treated similarly in this regard. 21
CONCLUSION
The order granting Fredrickson the right to proceed with his
criminal appeal in forma pauperis is not a judgment nor is it a
final order. Accordingly, we lack jurisdiction to consider this
appeal and it is dismissed.
Appeal dismissed.
19
State v. Jones, 264 Neb. 671, 650 N.W.2d 798 (2002). See, also, Glass v.
Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).
20
See, generally, Jones, supra note 19; In re Interest of N.L.B., 234 Neb.
280, 450 N.W.2d 676 (1990); In re Interest of Noelle F. & Sarah F., 3 Neb.
App. 901, 534 N.W.2d 581 (1995).
21
In re Claim of Rehm and Faesser, 226 Neb. 107, 410 N.W.2d 92 (1987). | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4553844/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/07/2020 12:08 AM CDT
- 63 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
State of Nebraska on behalf of Ryley G., a minor
child, appellee, v. Ryan G., defendant and
third-party plaintiff, appellant,
and Rashell K., third-party
defendant, appellee.
___ N.W.2d ___
Filed June 5, 2020. No. S-19-892.
1. Paternity: Appeal and Error. In a filiation proceeding, questions con-
cerning child custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of discretion
by the trial court, whose judgment will be upheld in the absence of an
abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Evidence: Appeal and Error. In a de novo review, when the evidence
is in conflict, the appellate court considers, and may give weight to, the
fact that the trial court heard and observed the witnesses and accepted
one version of the facts rather than another.
4. Child Custody. In order to prevail on a motion to remove a minor child
to another jurisdiction, the custodial parent must first satisfy the court
that he or she has a legitimate reason for leaving the state. After clearing
that threshold, the custodial parent must next demonstrate that it is in the
child’s best interests to continue living with him or her.
5. Child Custody: Visitation. The purpose of requiring a legitimate rea-
son for leaving the state in a motion to remove a minor child to another
jurisdiction is to prevent the custodial parent from relocating the child
because of an ulterior motive, such as frustrating the noncustodial par-
ent’s visitation rights.
- 64 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
6. Child Custody. In considering a motion to remove a minor child to
another jurisdiction, the paramount consideration is whether the pro-
posed move is in the best interests of the child.
7. Child Custody: Visitation. In determining whether removal to another
jurisdiction is in the child’s best interests, the trial court considers (1)
each parent’s motives for seeking or opposing the move; (2) the poten-
tial that the move holds for enhancing the quality of life for the child
and the custodial parent; and (3) the impact such a move will have on
contact between the child and the noncustodial parent, when viewed in
the light of reasonable visitation.
8. Parental Rights: Child Custody. The custodial parent has the right to
travel between states and the right to migrate, resettle, find a new job,
and start a new life.
9. Child Custody. An award of custody to a parent should not be inter-
preted as a sentence to immobility.
10. ____. Career advancement of a new spouse is a legitimate reason to
remove a child to another jurisdiction.
11. ____. The desire to form a new family unit through remarriage is a
legitimate reason to remove a child to another jurisdiction.
12. Judgments: Final Orders. If a judgment looks to the future in an
attempt to judge the unknown, it is a conditional judgment. A condi-
tional judgment is wholly void because it does not “perform in prae-
senti” and leaves to speculation and conjecture what its final effect
may be.
13. Child Custody. The standard for approval of a motion to remove a
child to another jurisdiction applies both when a custodial parent seeks
to move a child from Nebraska to a different state and in considering a
subsequent move to yet another state.
14. Courts: Child Custody: Visitation. The authority to determine custody
and visitation cannot be delegated, because it is a judicial function.
15. Modification of Decree: Child Custody. A court cannot delegate to
a custodial parent, who has obtained permission only for removal of a
child from Nebraska to one state, the authority to move the child to yet
another state without permission.
16. ____: ____. Removal of a child from the state, without more, does not
amount to a change of circumstances warranting a change of custody.
Nevertheless, such a move, when considered in conjunction with other
evidence, may result in a change of circumstances that would warrant a
modification of the decree.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed as modified.
- 65 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
David V. Chipman, of Monzón, Guerra & Associates, for
appellant.
Linsey A. Camplin, of McHenry, Haszard, Roth, Hupp,
Burkholder & Blomenberg, P.C., L.L.O., for appellee
Rashell K.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
A noncustodial parent appeals from a modification of a fili-
ation judgment granting the custodial parent “leave to remove
the minor child from the State of Nebraska and to determine
his primary place of residence” without specifying where the
child could be moved or placing any limitation on further
moves. Two questions predominate.
First, did a deployment of the custodial parent’s new mili-
tary spouse for 1 year to a base near Washington, D.C., coupled
with a change in employment conditions after the deployment
ended, constitute a legitimate reason for leaving the state? It
did. Second, did the district court’s open-ended permission vio-
late the standard for approval and, thus, amount to an improper
delegation of judicial authority? It did.
Because the court did not otherwise abuse its discretion, we
affirm the order below as modified to limit the permission to
move the child only to the military base near Washington, D.C.
BACKGROUND
Prior Proceedings
Rashell K. and Ryan G. are the natural parents of Ryley
G., born in 2007. In 2009, the State initiated a filiation pro-
ceeding, which resulted in a support judgment against Ryan.
At that time, neither Rashell nor Ryan sought any orders
regarding child custody. In 2015, Ryan sought a modification,
which in June 2016 resulted in an order and formal parenting
- 66 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
plan awarding Rashell legal and physical care, custody, and
control of Ryley, subject to Ryan’s parenting time. It con-
sisted of every other Friday from 7:30 p.m. to 7:30 p.m. on
Sunday and all but 3 weeks of each summer vacation from
school.
Modification Sought
In November 2018, Rashell sought a modification of the
judgment, asserting that she had married and had a newborn
child; that her husband was active in the National Guard and
was scheduled to be deployed to the District of Columbia
in mid-2019; that he would likely be stationed outside of
Nebraska following the deployment; and that it was in Ryley’s
best interests to permit removal from Nebraska. She specifi-
cally requested permission “to move with the minor child to
the District of Columbia, and thereafter to where her husband
is stationed” and sought other related relief.
Ryan filed an answer opposing the removal and a “counter-
complaint” seeking a change of custody and other associated
relief. The matter proceeded to trial.
Evidence at Trial
At trial, the parties avoided Ryley’s participation by stipulat-
ing that Ryley would testify he had a good relationship with his
father, he had a stronger bond with his mother, and he wanted
to remain living with his mother. The district court heard
testimony from three witnesses: Ryan, Rashell, and Rashell’s
husband, Joshua Chubb.
Chubb testified that he was a Blackhawk helicopter instruc-
tor pilot for the Missouri National Guard. He had been working
40 to 42 hours per week, compressed into 3 days each week,
and had been commuting from Lincoln, Nebraska, to Whiteman
Air Force Base in Missouri for his employment.
Chubb stated that he had been called to active duty and
ordered to report for processing in North Carolina, where he
expected to be ordered to report to Fort Belvoir in Washington,
D.C., for 1 year. Although the parties at times characterized
- 67 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
Fort Belvoir as being located in the District of Columbia, they
also described it as situated in Virginia, near Washington, D.C.
Chubb testified that while at Fort Belvoir, his family would
have on-base housing. The house would have three bedrooms
and would be located in a low-crime area within one-half mile
from the school that Ryley could attend. Chubb would receive
a housing allowance, and Rashell would not need to work out-
side of the home.
After completion of this deployment, Chubb testified, he
would be ordered to return to Missouri for demobilization.
Thereafter, he explained, there were only two places in the
country where he would be able to work as a Blackhawk heli-
copter instructor pilot: Missouri or Alabama. He anticipated
moving to Alabama for an instructor position in a nondeploy-
able unit. If he received that position, he would work shorter
days and be paid more.
Chubb did not expect to return to Lincoln. He testified that
if he returned to Missouri, the chances were “slim to none” that
he could resume the same schedule he had while commuting
from Lincoln. Instead, he would not be allowed to have Fridays
off. He would have to work Tuesday through Friday, with only
Saturday, Sunday, and Monday off. He explained that he would
not have the same flexibility and schedule as before, because
he would become a “legitimate full-time employee working
there.” So at that point, his family would reside with him in
Missouri as opposed to his living in Lincoln and commuting.
Moreover, there was no opportunity as a Blackhawk instructor
closer to Lincoln than Whiteman Air Force Base.
Rashell stated that her intention was to move to Fort Belvoir
for 1 year and then move to wherever Chubb found a job. She
did not have an address for their home in Fort Belvoir. She was
a registered nurse, and she explained that in order to receive
a nursing license in Virginia, she would need a specific home
address. She stated that if she could find a flexible, part-time
nursing job, she would work; otherwise, she would stay at
home with her children.
- 68 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
Rashell explained that at Fort Belvoir, the elementary school
consists of “K” to sixth grade. Ryley would be entering sixth
grade. By the end of the trial, she testified regarding the base’s
recreational amenities and sports programs.
Ryley’s community and extended family were in Lincoln.
Rashell’s and Ryan’s families were also there. And so were
Ryley’s friends and school classmates. Ryley had participated
in several sports teams in Lincoln.
Ryan actively participated in Ryley’s life. Ryan exercised
all of his parenting time. Rashell allowed Ryan to take Ryley
to and from school on snowy or rainy days. Ryan attended the
majority of Ryley’s sports games. Ryan had made plans that if
he was awarded physical custody, family members would care
for Ryley when Ryan had to work late or on weekends.
Rashell had made all of Ryley’s doctor appointments and
taken care of his medical needs. Ryley takes asthma shots
every other week, and in a previous summer, Ryan had for-
gotten to take Ryley to receive his shots. Ryan had never met
Ryley’s primary care doctor or his dentist.
Rashell explained that she did not yet have any informa-
tion regarding who would be Ryley’s primary care physician
or dentist or where he would receive his asthma shots at Fort
Belvoir. This, she said, was because their “insurance [was]
through Tri-Care, [which was] divided into an east and a west
and [they were] currently in the west.” This meant, she testi-
fied, that they could not “move it to the east until [they] actu-
ally move there.”
According to Rashell, if Ryley was not allowed to move with
her, it would have a negative effect on Ryley. She based this
upon her observations of Ryley after he returned from Ryan’s
house. On such occasions, she testified, Ryley was withdrawn
and worried as to how she would react to small things. Rashell
calculated that if Ryley moved with her, Ryan would lose
40 days of overnight parenting time. However, according to
Rashell, if Ryley stayed with Ryan, she would lose 180 days of
overnight parenting time.
- 69 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
District Court’s Orders
The district court first entered an interlocutory order address-
ing the custody and removal issues and reserving the support
and related matters. The court later entered a final order, incor-
porating a copy of the first order and disposing of the remain-
ing issues.
In the first order, the court found that Rashell met the
threshold requirement of proving a legitimate reason for mov-
ing. It explained that she had a desire to establish a family unit
with her new husband, her new child, and Ryley. It stated that
Chubb would see an income increase and “secure his position
with a solid upside.” This, the court found, was a legitimate
reason for the move.
After clearing the threshold requirement, the court then con-
sidered the best interests factors, addressing (1) the parents’
motives for seeking or opposing the move, (2) the potential
the move holds for enhancing the quality of life for the child
and custodial parent, and (3) the impact the move will have on
contact between the child and the noncustodial parent.
Regarding the parents’ motives, the court determined that
both parents had valid reasons for and against removal and that
this factor did not weigh for or against removal.
The court then considered nine elements of the quality-of-
life factor. The court’s order discussed each element.
First, it assessed Ryley’s emotional, physical, and develop-
mental needs. Concluding that this factor disfavored the move,
the court explained:
The . . . minor child is thriving in Nebraska and his
needs are being met. He spends a lot of time with his
father and . . . they have a good relationship. . . . A move
would take Ryley away from extended family and friends
at a time that is significant in his development.
Rashell has a substantial number of her family mem-
bers in Lincoln. Ryan also has family members in
Lincoln. A move would take Ryley away from these fam-
ily members.
- 70 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
Ryley has a number of interests including music,
lacrosse, baseball, basketball, and flag football. Ryan
attends Ryley’s activities. Rashell had done little at the
time of trial, if anything, to investigate any of those activ-
ities if the move were allowed. There is little doubt Ryan
is actively involved in Ryley’s life and willing to take on
the custodial role here.
Second, it stated that Ryley’s preference to stay with Rashell
favored the move. The court noted that “[w]hile Ryan suggests
this factor should be neutral, he should not be surprised that the
court finds [Ryley’s preference] is important to the determina-
tion here.”
Third, the court considered the extent to which the custodial
parent’s income or employment would be enhanced. It observed
that although the move was not based on Rashell’s career,
the family considerations were no less important. Because of
Chubb’s career, Rashell would be allowed to stay home and
care for the children. Although her future prospects were not
clear and it did not appear that her employment opportunities
were enhanced, Chubb was “on a career path that overall will
be favorable in the long-run to the family.” It concluded that
this was a neutral factor.
Fourth, addressing housing or living conditions, the court
reasoned that because Rashell eventually presented evidence
that the housing options on the military base would be suitable
and that Ryley’s education needs could be met, the factor was
generally neutral or slightly negative.
Fifth, regarding educational advantages, the court deter-
mined that Ryley’s educational needs were being met and that
Rashell had provided “only scant” evidence of any advantages
from the move. This factor, the court concluded, “slightly
disfavor[ed]” the move.
Sixth, the court discussed the quality of the relationships
between the child and each parent, which, the court found,
favored the move. Although the relationships with each par-
ent were strong and Ryan had been very active in Ryley’s
life, Rashell had “provided most of the support for education,
- 71 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
medical needs, and for extracurricular activities . . . , and ha[d]
been the parent most focused on [Ryley’s] essential well-being
and care.” The court concluded that Rashell’s “parenting time
pretty substantially outweigh[ed] that of Ryan and her day-to-
day life show[ed] the overall attentiveness to [Ryley’s] needs
emotionally, spiritually, educationally, and socially.”
Seventh, it discussed the strength of the child’s ties to the
community and extended family. It explained that Ryley was
“fully ingrained” in Lincoln and had significant ties that would
be diminished or lost with the move. This factor, the court
determined, disfavored the move.
Eighth, in discussing the likelihood that allowing or deny-
ing the move would antagonize hostilities between the par-
ents, the court noted that the parties refrained from being
“deeply critical” and showed a level of maturity and under-
standing. It explained that Rashell offered several concessions
to Ryan’s parenting time that would be “difficult to execute,
but not so impossible as to prevent the move.” It found that
the parties were “very focused” on Ryley’s best interests
and that Rashell’s commitment to Ryan’s parenting time was
credible. According to the court, this factor slightly favored
the move.
Addressing the last element of the quality-of-life factor, the
court determined that the living conditions and employment
opportunities of the custodial parent slightly favored the move.
Here, the court found that the best interests were “interwoven
with the well-being of the custodial parent.” Rashell had, the
court observed, provided most of Ryley’s care and support.
Chubb would “support Rashell being a stay-at-home mother”
and would make a sufficient income. It reasoned that “[t]he
fact that Rashell would be home parenting is at least as posi-
tive as having her base the move on improving employment
opportunities in a new environment.”
Turning to the third best interests factor, the court reasoned
that it “must make some pretty aggressive assumptions to
believe that moving the minor child would not have a signifi-
cant negative impact on the parenting time of Ryan. Rashell,
- 72 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
to her credit, has offered substantial parenting time.” But the
court also recognized that “a reduction in visitation time does
not necessarily preclude a custodial parent from relocating for
a legitimate reason.”
Ultimately, the court found that “the reasons for Rashell’s
move, the weight of Ryley’s preference, and the opportunities
that are provided for Rashell and Ryley in the long-run, satisfy
the burdens placed on Rashell to establish a good reason for
the move and that the move is in the best interests of Ryley.”
Accordingly, the court stated, Rashell’s “request to move Ryley
is approved. Ryan’s Cross-Petition is dismissed.” The first
order, the court stated, was not final, because there were unre-
solved issues of parenting time and child support. It specified
procedures for adjudicating the remaining issues.
One month later, the court entered a final order. This order
“granted [Rashell] leave to remove the minor child from the
State of Nebraska and to determine his primary place of resi-
dence.” It did not specify the location of the move or place any
restriction on further moves.
Ryan filed a timely appeal, which we moved to our docket. 1
ASSIGNMENTS OF ERROR
Ryan assigns that the district court erred in (1) finding that
Rashell demonstrated a legitimate reason for leaving Nebraska
with Ryley; (2) finding that it was in Ryley’s best interests to
relocate to Washington, D.C.; (3) granting Rashell the “open-
ended right” to relocate outside of Nebraska to Washington,
D.C., and then to Chubb’s next job regardless of where it is
located; and (4) “not finding a material change of circumstance
that the best interests of [Ryley] required custody to be placed
with [Ryan].”
STANDARD OF REVIEW
[1,2] In a filiation proceeding, questions concerning child
custody determinations are reviewed on appeal de novo on the
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
- 73 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
record to determine whether there has been an abuse of discre-
tion by the trial court, whose judgment will be upheld in the
absence of an abuse of discretion. 2 A judicial abuse of discre-
tion exists if the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right and
denying just results in matters submitted for disposition. 3
[3] In a de novo review, when the evidence is in conflict, the
appellate court considers, and may give weight to, the fact that
the trial court heard and observed the witnesses and accepted
one version of the facts rather than another. 4
ANALYSIS
We have said that parental relocation issues are among the
most difficult that courts face. 5 That is true here. For this rea-
son, such determinations are matters initially entrusted to the
discretion of the trial judge, and the trial judge’s determination
is to be given deference. 6
Framework for Removal Decisions
[4,5] Before we address Ryan’s specific arguments, we first
recall the legal framework governing the removal of a minor
child to another jurisdiction. In order to prevail on a motion
to remove a minor child to another jurisdiction, the custodial
parent must first satisfy the court that he or she has a legiti-
mate reason for leaving the state. 7 After clearing that threshold,
the custodial parent must next demonstrate that it is in the
child’s best interests to continue living with him or her. 8 The
2
State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692
(2019).
3
Id.
4
Id.
5
See, e.g., Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014);
Farnsworth v. Farnsworth, 257 Neb. 242, 597 N.W.2d 592 (1999).
6
Steffy v. Steffy, supra note 5.
7
Daniels v. Maldonado-Morin, 288 Neb. 240, 847 N.W.2d 79 (2014).
8
Id.
- 74 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
purpose of requiring a legitimate reason for leaving the state in
a motion to remove a minor child to another jurisdiction is to
prevent the custodial parent from relocating the child because
of an ulterior motive, such as frustrating the noncustodial par-
ent’s visitation rights. 9
[6,7] In considering a motion to remove a minor child to
another jurisdiction, the paramount consideration is whether
the proposed move is in the best interests of the child. 10 In
determining whether removal to another jurisdiction is in
the child’s best interests, the trial court considers (1) each
parent’s motives for seeking or opposing the move; (2) the
potential that the move holds for enhancing the quality of
life for the child and the custodial parent; and (3) the impact
such a move will have on contact between the child and the
noncustodial parent, when viewed in the light of reason-
able visitation. 11
[8] Fundamental constitutional rights underlie this frame-
work. The custodial parent has the right to travel between
states and the right to migrate, resettle, find a new job, and
start a new life. 12 Both parents, custodial and noncustodial,
have the constitutional right to the care, custody, and control
of their children. 13
Ryan does not assert that the district court employed the
wrong framework. Instead, he quarrels with its application to
the facts of this case.
Legitimate Reason for Removal
Ryan first argues that the district court erred in finding
that Rashell had a legitimate reason for moving to another
9
Steffy v. Steffy, supra note 5.
10
Id.
11
McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002).
12
Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600
(1969), overruled on other grounds, Edelman v. Jordan, 415 U.S. 651, 94
S. Ct. 1347, 39 L. Ed. 2d 662 (1974).
13
Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).
- 75 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
jurisdiction. He contends that we have never “found that a par-
ent’s desire to relocate to a spouse’s temporary job relocation is
a legitimate reason to relocate with the minor child.” 14
[9-11] We have long held that an award of custody to a
parent should not be interpreted as a sentence to immobility. 15
Thus, we have held that career advancement of a new spouse is
a legitimate reason to remove a child to another jurisdiction. 16
Another legitimate reason is the desire to form a new family
unit through remarriage. 17 Both reasons factor into the situa-
tion here.
We disagree with Ryan’s characterization of Rashell’s reason
for moving as a temporary job relocation. Chubb, a member of
the Missouri National Guard, was called to active service in the
U.S. Army and deployed to a base near Washington, D.C. This
activation and deployment is mandatory and not in any sense
voluntary. It is true that this aspect of his job will end after
1 year. But many job opportunities involve a risk of transfer
after only a short period. And at the end of the 1-year deploy-
ment, he clearly intends to continue his military career as a
Blackhawk helicopter pilot.
14
Brief for appellant at 18 (emphasis omitted).
15
See, Daniels v. Maldonado-Morin, supra note 7; Vogel v. Vogel, 262
Neb. 1030, 637 N.W.2d 611 (2002); Brown v. Brown, 260 Neb. 954,
621 N.W.2d 70 (2000); Harder v. Harder, 246 Neb. 945, 524 N.W.2d
325 (1994); Sabatka v. Sabatka, 245 Neb. 109, 511 N.W.2d 107 (1994);
Demerath v. Demerath, 233 Neb. 222, 444 N.W.2d 325 (1989); Hicks v.
Hicks, 223 Neb. 189, 388 N.W.2d 510 (1986); Vanderzee v. Vanderzee,
221 Neb. 738, 380 N.W.2d 310 (1986); Boll v. Boll, 219 Neb. 486, 363
N.W.2d 542 (1985); Gotschall v. Gotschall, 210 Neb. 679, 316 N.W.2d
610 (1982).
16
See, McLaughlin v. McLaughlin, supra note 11; Vogel v. Vogel, supra
note 15; Harder v. Harder, supra note 15; Demerath v. Demerath, supra
note 15.
17
See, Daniels v. Maldonado-Morin, supra note 7; Jack v. Clinton, 259 Neb.
198, 609 N.W.2d 328 (2000); Harder v. Harder, supra note 15; Gerber v.
Gerber, 225 Neb. 611, 407 N.W.2d 497 (1987); Maack v. Maack, 223 Neb.
342, 389 N.W.2d 318 (1986).
- 76 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
While Chubb’s immediate job placement is time limited, the
job- and matrimonial-related reasons for removal are perma-
nent. He has a career plan based upon military service. Rashell
desires to join him in this military life. He knows that he will
return to Missouri for demobilization. But there, the chances
are “slim to none” that he could return to the schedule which
made commuting from Lincoln possible. We cannot say that
the desire to live a normal life with his family near the location
of his job is illegitimate. Likewise, Rashell’s desire to live with
her new spouse at that job location is a legitimate reason for
removal of the child from Nebraska.
Best Interests
Under the framework set forth above, Rashell had the bur-
den to show that it was in the child’s best interests to continue
living with her. 18 As we have already noted, Ryan quarrels only
with the weight accorded by the court to the evidence bearing
on the factors prescribed by that framework.
Ryan emphasizes the “temporary nature of the relocation.” 19
But as we have already explained, the relocation is permanent
in the sense that the family will not be returning to Lincoln.
Above, we set forth the district court’s analysis in consid-
erable detail. Here, the deference we accord to the court’s
factual findings becomes important. We find no abuse of dis-
cretion in the court’s best interests analysis.
Removal Beyond Washington, D.C.
Ryan argues that the district court erred in granting an “open-
ended” right to relocate the minor child first to Washington,
D.C., and then to Chubb’s next job location. 20 To support this
argument, he tenders two rationales. One lacks merit but the
other is valid.
18
Daniels v. Maldonado-Morin, supra note 7.
19
Brief for appellant at 24.
20
Brief for appellant at 26.
- 77 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
In one rationale, Ryan challenges the district court’s order
as a void conditional order, “to the extent” the court “granted
Rashell permission to relocate to wherever [Chubb] finds
another job.” 21 In making this argument, he relies upon our
decision in Vogel v. Vogel. 22
[12] There, we relied on two related propositions. If a judg-
ment looks to the future in an attempt to judge the unknown,
it is a conditional judgment. A conditional judgment is wholly
void because it does not “perform in praesenti” and leaves
to speculation and conjecture what its final effect may be. 23
Applying those principles, we vacated provisions of a removal
order which (1) imposed a new schedule for physical pos-
session of the children “in the event [the mother’s spouse] is
transferred overseas and [the mother] elects to join him” and
(2) dictated a new visitation schedule “in the event [the mother
and the father] establish residences within 50 miles of one
another.” 24 In both instances, the Vogel orders were to become
effective only upon the happening of certain future events
which might or might not occur. Whether the orders would
ever have become effective was speculative.
Here, however, the district court’s final order did not include
similar language. Instead, this order simply stated that Rashell
was “granted leave to remove the minor child from the State of
Nebraska and to determine his primary place of residence.” It
did not, as Ryan contends, state any location to which such per-
mission extended. To the extent that the court’s first order can
be read to incorporate Rashell’s prayer into its relief, the final
order expressly states that it “shall supersede and control.” The
final order may have been carefully crafted to avoid the use of
conditional language. But in avoiding that pitfall, it ran afoul
of another principle.
21
Id. at 27.
22
Vogel v. Vogel, supra note 15.
23
Id.
24
Id. at 1038-39, 637 N.W.2d at 619.
- 78 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
[13] In the other rationale, Ryan argues that the district
court’s order violated a standard articulated by the Nebraska
Court of Appeals in Maranville v. Dworak. 25 There, after
obtaining the trial court’s permission to move the children to
Illinois, followed by an unsuccessful appeal by the noncus-
todial parent, the custodial parent sought further permission
to move the children to Ohio, based upon her spouse’s job
change. The trial court granted that permission. On appeal, the
Court of Appeals determined that the standard for approval of
a motion to remove a child to another jurisdiction applies both
when a custodial parent seeks to move a child from Nebraska
to a different state and in considering a subsequent move to yet
another state. 26
[14,15] Although the Court of Appeals did not say so, we
believe that this standard derives from a more fundamental
principle: The authority to determine custody and visitation
cannot be delegated, because it is a judicial function. 27 And we
restate that principle in the specific context of a parental relo-
cation: A court cannot delegate to a custodial parent, who has
obtained permission only for removal of a child from Nebraska
to one state, the authority to move the child to yet another state
without permission. Here, because the authority to determine
custody and visitation is a judicial function, it cannot be del-
egated to Rashell.
Rashell responds that the district court’s order expressly
gave her permission to “relocate with Ryley to Fort Belvoir,
and also subsequently to relocate in accordance with known
25
Maranville v. Dworak, 17 Neb. Ct. App. 245, 758 N.W.2d 70 (2008).
26
Id.
27
See, VanSkiver v. VanSkiver, 303 Neb. 664, 930 N.W.2d 569 (2019);
Ensrud v. Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988), disapproved on
other grounds, State on behalf of Kaaden S. v. Jeffery T., supra note 2;
Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980), disapproved
on other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898
(2002); Lautenschlager v. Lautenschlager, 201 Neb. 741, 272 N.W.2d 40
(1978).
- 79 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
employment opportunities to either Whiteman Air Force Base,
Missouri, or Fort Rucker, Alabama.” 28 But one has only to read
the order to see that this is not so.
The order below does not undertake comparisons to Missouri
or Alabama or make any findings regarding those locations’
advantages or disadvantages in the best interests framework.
Of course, we recognize that a court cannot make bricks with-
out straw. Rashell failed to present evidence regarding those
locations. Her evidence focused on Fort Belvoir. That limited
the information available to the district court.
Even if she had furnished detailed information on both loca-
tions in Missouri and Alabama, her strategy would have failed.
The court below could not have crafted an order permitting a
move to the location of Rashell’s or Chubb’s choice without
either employing a void conditional order or improperly del-
egating judicial authority.
The court’s order supported the move to Fort Belvoir, but
nothing more. We modify the order to make it clear that
the permission granted to remove Ryley from the State of
Nebraska extends only to move him to Fort Belvoir, in the
State of Virginia, near Washington, D.C.
Denial of Ryan’s Request for Custody
Finally, Ryan argues that the district court erred in not find-
ing a material change of circumstance such that Ryley’s best
interests required custody to be placed with him. This assign-
ment lacks merit.
As Ryan’s argument makes clear, it is founded upon his con-
tention that the court erred in granting permission for Rashell
to relocate Ryley to Fort Belvoir. He relies upon our decision
in Tremain v. Tremain. 29 There, the trial court denied permis-
sion to move the child, but changed custody without determin-
ing whether the custodial parent would relocate to Nebraska
28
Brief for appellee at 26.
29
Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002).
- 80 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE ON BEHALF OF RYLEY G. v. RYAN G.
Cite as 306 Neb. 63
in order to retain custody of the children. On appeal, we
reversed the order changing custody and remanded the cause
for further proceedings to ascertain whether the custodial par-
ent would relocate.
[16] But here, we have determined that the district court
properly granted Rashell permission to move with Ryley to
Fort Belvoir. Thus, the premise underlying Ryan’s argument
failed. Removal of a child from the state, without more, does
not amount to a change of circumstances warranting a change
of custody. Nevertheless, such a move, when considered in
conjunction with other evidence, may result in a change of cir-
cumstances that would warrant a modification of the decree. 30
Here, there is no other evidence that would warrant a modifica-
tion of the judgment.
CONCLUSION
Rashell established a legitimate reason for leaving Nebraska
and moving with Ryley to Fort Belvoir. The district court did
not abuse its discretion in determining that it was in Ryley’s
best interests to continue living with her. Similarly, the court
did not abuse its discretion in declining to change custody of
Ryley from Rashell to Ryan. To the extent that the court’s order
can be read to authorize Rashell to move later with Ryley to
either Missouri or Alabama, we modify the order to eliminate
that authority. Permission for any further move must be sought
in a new proceeding. The permission granted in the proceed-
ing before us permits Rashell to move with Ryley only to Fort
Belvoir, in the State of Virginia, near Washington, D.C. As so
modified, we affirm the order of the district court.
Affirmed as modified.
30
Vogel v. Vogel, supra note 15. | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4553845/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/07/2020 12:08 AM CDT
- 20 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
J.S, appellant, v. Nebraska Department
of Health and Human Services
et al., appellees.
___ N.W.2d ___
Filed June 5, 2020. No. S-18-1149.
1. Public Assistance: Words and Phrases. For the purposes of state or
local public benefits eligibility under Neb. Rev. Stat. § 4-108 (Reissue
2012), “lawfully present” means the alien classifications under 8 U.S.C.
§ 1621(a)(1), (2), and (3) (2012).
2. Public Assistance: Legislature. In order to affirmatively provide a state
public benefit to aliens not lawfully present in the United States, as
authorized by 8 U.S.C. § 1621(d) (2012), the Legislature must make a
positive or express statement extending eligibility by reference to immi-
gration status.
3. Administrative Law: Judgments: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review pursuant to
the Administrative Procedure Act may be reversed, vacated, or modi-
fied by an appellate court for errors appearing on the record.
4. ____: ____: ____. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record,
the inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable.
5. Administrative Law: Judgments. Whether an agency decision con-
forms to the law is by definition a question of law.
6. Administrative Law: Statutes: Appeal and Error. The meaning and
interpretation of statutes and regulations are questions of law for which
an appellate court has an obligation to reach an independent conclusion
irrespective of the decision made by the court below.
7. Medical Assistance: Federal Acts: States. The Medicaid program
provides joint federal and state funding of medical care for individuals
- 21 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
whose resources are insufficient to meet the cost of necessary medi-
cal care.
8. ____: ____: ____. A state is not obligated to participate in the Medicaid
program; however, once a state has voluntarily elected to participate, it
must comply with standards and requirements imposed by federal stat-
utes and regulations.
9. Administrative Law: Statutes. For purposes of construction, a rule
or regulation of an administrative agency is generally treated like a
statute.
10. ____: ____. Properly adopted and filed regulations have the effect of
statutory law.
11. Administrative Law. Absent a statutory or regulatory indication to the
contrary, language contained in a rule or regulation is to be given its
plain and ordinary meaning.
12. Federal Acts: Words and Phrases. In interpreting federal statutes, the
word “may” customarily connotes discretion. That connotation is par-
ticularly apt where “may” is used in contraposition to the word “shall.”
13. Statutes: Words and Phrases. The word “may” when used in a statute
will be given its ordinary, permissive, and discretionary meaning unless
it would manifestly defeat the statutory objective.
14. Medical Assistance: Federal Acts: States. Because Nebraska did not
elect to extend coverage under 42 U.S.C. § 1396b(v)(4)(A) (2018)
beyond age 18, neither the Children’s Health Insurance Program nor the
former foster care provisions of the Patient Protection and Affordable
Care Act provide coverage where a noncitizen applicant’s immigration
status is not qualified.
15. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
16. Statutes: Words and Phrases. It is not for the courts to supply missing
words or sentences to a statute to supply that which is not there.
17. Statutes: Legislature: Presumptions. In enacting a statute, the
Legislature must be presumed to have knowledge of all previous legisla-
tion upon the subject.
18. ____: ____: ____. The Legislature is presumed to know the general
condition surrounding the subject matter of the legislative enactment,
and it is presumed to know and contemplate the legal effect that accom-
panies the language it employs to make effective the legislation.
19. Constitutional Law. Nebraska’s separation of powers clause prohibits
the three governmental branches from exercising the duties and preroga-
tives of another branch.
- 22 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
20. ____. The separation of powers clause prevents a branch from delegat-
ing its own duties or prerogatives except as the constitution directs
or permits.
21. Constitutional Law: Legislature: Courts: Appeal and Error. The
Nebraska Supreme Court does not sit as a superlegislature to review
the wisdom of legislative acts; that restraint reflects the reluctance
of the judiciary to set policy in areas constitutionally reserved to the
Legislature’s plenary power.
Appeal from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Affirmed.
Allison Derr, Robert McEwen, and Sarah Helvey, of
Nebraska Appleseed Center for Law in the Public Interest, for
appellant.
Douglas J. Peterson, Attorney General, and Ryan C. Gilbride
for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
In E.M. v. Nebraska Dept. of Health & Human Servs.
(E.M.), 1 we held that legislation 2 creating the bridge to inde-
pendence program (B2I) 3 did not “affirmatively provide[]” 4
eligibility to noncitizen applicants who were not “lawfully
present.” 5 In this Administrative Procedure Act 6 appeal, J.S.,
1
E.M. v. Nebraska Dept. of Health & Human Servs., ante p. ___, ___
N.W.2d ___ (2020).
2
See Neb. Rev. Stat. §§ 43-4501 to 43-4514 (Reissue 2016, Cum. Supp.
2018 & Supp. 2019) (Young Adult Bridge to Independence Act).
3
See § 43-4503(1).
4
See 8 U.S.C. § 1621(d) (2012).
5
See id.
6
See Neb. Rev. Stat. §§ 84-901 to 84-920 and 84-933 to 84-948 (Reissue
2014 & Cum. Supp. 2018).
- 23 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
a noncitizen who was admitted into B2I, challenges the dis-
trict court’s judgment affirming a state agency’s denial of
Medicaid 7 eligibility after she reached age 19. Essentially, we
must decide whether the statutes or regulations she cites autho-
rized her participation despite her immigration status and age.
Because they did not, we affirm the judgment.
II. BACKGROUND
1. B2I
In E.M., 8 we briefly introduced B2I, Nebraska’s extended
foster care program, which was created by the Young Adult
Bridge to Independence Act (YABI). 9 In this appeal, we rely
upon that description.
2. PRWORA and L.B. 403
Similarly, in E.M., 10 we extensively discussed the Personal
Responsibility and Work Opportunity Reconciliation Act of
1996 (PRWORA) 11 and its Nebraska counterpart. 12 As we
explained there, PRWORA declared certain individuals to be
ineligible for any state public benefit. 13 Like PRWORA’s pro-
hibition on federal public benefits, 14 its proscription on state
public benefits applies “[n]otwithstanding any other provision
of law” 15 but with specified exceptions. 16
[1,2] There, we focused on the exception created by
§ 1621(d), which authorized a State to make an “alien who is
7
See Neb. Rev. Stat. § 68-903 (Reissue 2018) (medical assistance program
“shall also be known as [M]edicaid”).
8
E.M., supra note 1.
9
See §§ 43-4501 to 43-4514.
10
E.M., supra note 1.
11
Pub. L. No. 104-193, § 1, 110 Stat. 2105.
12
See Neb. Rev. Stat. §§ 4-108 to 4-113 (Reissue 2012 & Cum. Supp. 2018).
13
See § 1621(a).
14
See 8 U.S.C. § 1611 (2012).
15
§ 1621(a).
16
See § 1621(b) and (d).
- 24 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
not lawfully present in the United States” eligible for a State
public benefit by enactment of a State law which “affirma-
tively provides for such eligibility.” First, we determined that
for the purposes of state or local public benefits eligibility
under § 4-108, “lawfully present” means the alien classifi-
cations under § 1621(a)(1), (2), and (3). 17 Second, we held
that in order to affirmatively provide a state public benefit
to aliens not lawfully present in the United States, as autho-
rized by § 1621(d), the Legislature must make a positive or
express statement extending eligibility by reference to immi-
gration status. 18
3. J.S. and DHHS
J.S. is a citizen of El Salvador, who fled to Nebraska as a
minor. She was adjudicated in juvenile court 19 and placed into
foster care. At the time she applied to the Nebraska Department
of Health and Human Services (DHHS) for B2I, she had a
pending application for special immigrant juvenile (SIJ) status.
Upon turning 19 years old, J.S. was accepted into B2I but was
denied Medicaid coverage after her 19th birthday.
She requested a fair hearing with DHHS. At the hearing,
the parties presented evidence and made arguments. In DHHS’
order, it found that she did not meet “the basic requirement[s]
of ‘citizenship or alien status’ required for all Medicaid recipi-
ents.” It upheld the denial of Medicaid benefits.
4. District Court
J.S. filed a timely petition for review in the district court. She
argued that she was eligible for Medicaid under the Children’s
Health Insurance Program (CHIP) 20 and former foster care. 21
17
E.M., supra note 1.
18
Id.
19
See Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016).
20
See Neb. Rev. Stat. § 68-969(2)(a) (Reissue 2018) (“CHIP means the
Children’s Health Insurance Program established pursuant to 42 U.S.C.
[§] 1397aa et seq.”).
21
See 42 U.S.C. § 1396a(a)(10)(A)(i)(IX) (2018).
- 25 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
She also contended that B2I extended medical assistance to all
young adults regardless of immigration status.
The district court disagreed that CHIP or former foster care
supported Medicaid eligibility. The court reasoned: Congress
allowed the states to provide Medicaid benefits to certain law-
fully residing alien children under CHIP, a state could elect to
extend benefits to individuals under 21 years old (and pregnant
women) who are “lawfully residing” aliens, 22 but Nebraska
chose to limit CHIP to children under 19 years old (and preg-
nant women). Thus, the court concluded that even though J.S.
was considered lawfully residing as defined by CHIP regula-
tions, she exceeded the age limitation when she reached her
19th birthday.
The court then considered whether J.S. could receive
Medicaid under B2I. That program provides several services
to participants, including “[m]edical care under the medical
assistance program for young adults who met the eligibil-
ity requirements of [§] 43-4504 and have signed a voluntary
services and support agreement as provided in [§] 43-4506.” 23
The court acknowledged that § 1621(a) declared aliens who
are not qualified aliens, nonimmigrants, or paroled into the
United States for less than 1 year ineligible for State or local
public benefits. And the court recognized that § 1621(d)
authorized an exception where a state law affirmatively pro-
vided for such eligibility. The court concluded that because
the Nebraska Legislature did not affirmatively provide for
unlawful aliens to receive Medicaid benefits under B2I, J.S.
was not entitled to Medicaid benefits. The court noted that
whether J.S. should have been accepted into B2I was not
before the court.
The court affirmed DHHS’ denial of Medicaid benefits.
J.S. filed a timely appeal, and we later granted her petition to
bypass the Nebraska Court of Appeals. 24
22
See 42 U.S.C. § 1396b(v)(4)(A) (2018).
23
§ 43-4505(1).
24
See Neb. Ct. R. App. P. § 2-102(B) (rev. 2015).
- 26 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
III. ASSIGNMENTS OF ERROR
J.S. assigns, reordered, that the district court erred in (1)
affirming DHHS’ denial of Medicaid benefits, (2) determining
that citizenship or immigration status was relevant to eligibility
for medical coverage for participants in B2I, and (3) failing to
determine that DHHS’ practice of denying medical coverage to
participants in B2I due to alien status violated the separation of
powers clause of the Nebraska Constitution.
IV. STANDARD OF REVIEW
[3-5] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate
court for errors appearing on the record. 25 When reviewing an
order of a district court under the Administrative Procedure Act
for errors appearing on the record, the inquiry is whether the
decision conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable. 26
Whether an agency decision conforms to the law is by defini-
tion a question of law. 27
[6] The meaning and interpretation of statutes and regula-
tions are questions of law for which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below. 28
V. ANALYSIS
1. Medicaid Participation
[7,8] The Medicaid program provides joint federal and state
funding of medical care for individuals whose resources are
insufficient to meet the cost of necessary medical care. 29 A
25
McManus Enters. v. Nebraska Liquor Control Comm., 303 Neb. 56, 926
N.W.2d 660 (2019).
26
Id.
27
Id.
28
In re Application No. OP-0003, 303 Neb. 872, 923 N.W.2d 653 (2019).
29
In re Estate of Vollmann, 296 Neb. 659, 896 N.W.2d 576 (2017).
- 27 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
state is not obligated to participate in the Medicaid program;
however, once a state has voluntarily elected to participate, it
must comply with standards and requirements imposed by fed-
eral statutes and regulations. 30
DHHS concedes that Nebraska has “elected to participate
in the Medicaid program” 31 through enactment of the Medical
Assistance Act. 32 But it argues that it properly determined J.S.
was not eligible under the applicable statutes and regulations.
Challenging the district court’s judgment affirming DHHS’
denial of Medicaid eligibility, J.S. makes three arguments:
First, she argues that neither CHIP nor former foster care
conditions Medicaid eligibility on immigration status. Second,
she contends that B2I extends Medicaid coverage to all young
adults in B2I and that although she would be ineligible for
federal matching funds, the State should furnish medical
care with state funds only. Finally, she asserts that DHHS’
practice of denying Medicaid to unlawful aliens participat-
ing in B2I violated the separation of powers clause of the
Nebraska Constitution. 33
We note that in this court, as in the court below, the parties
do not question J.S.’ participation in B2I; they contest only her
eligibility for Medicaid benefits. Therefore, we are concerned
only with whether J.S. is eligible for Medicaid under the
Medical Assistance Act and § 43-4505(1).
Before turning to the arguments, we note that we will refer
to the “Medicaid state plan.” 34 This is a “comprehensive
written document, developed and amended by [DHHS] and
approved by the federal Centers for Medicare and Medicaid
Services, which describes the nature and scope of the medi-
cal assistance program and provides assurances that [DHHS]
30
Id.
31
Brief for appellee at 20-21.
32
See Neb. Rev. Stat. §§ 68-901 to 68-994 (Reissue 2018 & Supp. 2019).
33
See Neb. Const. art. II, § 1.
34
See § 68-907(4).
- 28 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
will administer the program in compliance with federal
requirements.” 35
2. Medicaid Eligibility Via CHIP
or Former Foster Care
J.S. concedes that PRWORA “generally restricts immigrants’
rights to receive federal, state, and local public benefits,” that
it “limits the receipt of federally reimbursed Medicaid to only
U.S. citizens or ‘qualified aliens,’” and that it “imposes a
five-year waiting period,” which, in combination, effectively
permits noncitizens, nonqualified aliens, and qualified aliens
subject to the waiting period to “only receive medical coverage
for the treatment of emergency medical conditions, even as to
children and pregnant women.” 36
Nevertheless, J.S. argues that she was eligible for Medicaid
under CHIP and former foster care. Before addressing her spe-
cific arguments, we review the regulations adopted by DHHS
to administer the Medicaid program in Nebraska.
(a) DHHS Regulations
[9-11] The Medical Assistance Act requires DHHS to
“administer the [Medicaid] program” 37 and empowers it to
“adopt and promulgate rules and regulations.” 38 For pur-
poses of construction, a rule or regulation of an administra-
tive agency is generally treated like a statute. 39 Properly
adopted and filed regulations have the effect of statutory law. 40
Absent a statutory or regulatory indication to the contrary,
language contained in a rule or regulation is to be given its
plain and ordinary meaning. 41 DHHS’ regulations governing
35
Id.
36
Brief for appellant at 14, 15.
37
§ 68-908(1).
38
§ 68-908(2).
39
McManus Enters., supra note 25.
40
Id.
41
Id.
- 29 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
Medicaid eligibility are codified in title 477 of the Nebraska
Administrative Code.
J.S. did not meet Medicaid’s primary eligibility requirements
under title 477. One “Primary Eligibility Requirement[]” is
“U.S. citizenship or alien status.” 42 “In order to be eligible for
Medicaid, an individual’s status must be documented as one
of the following . . . [a] citizen of the United States; [or a]
Qualified Alien[] . . . .” 43 Within this regulation, a numbered
list from 2 to 4 specifies criteria for an “individual’s status,” 44
but none apply to J.S.
Despite not meeting the primary eligibility requirements,
J.S. contends that she is eligible for Medicaid, because, she
argues, a “lawfully present” child exception applied under
both CHIP and former foster care. We examine each category
in turn.
(b) CHIP
“CHIP means the Children’s Health Insurance Program
established pursuant to 42 U.S.C. [§] 1397aa et seq.” 45 A
regulation in effect at the time of J.S.’ application and the pro-
ceedings below stated, in relevant part, as follows: “Children’s
Health Insurance Program (CHIP): Children age 18 or younger
. . . are eligible for CHIP . . . .” 46
J.S. argues that in 2009, “Congress created an exception
to PRWORA in its enactment of [§] 214” 47 of the Children’s
Health Insurance Program Reauthorization Act of 2009
(CHIPRA). 48 The federal statute, as codified, states, “A State
may elect (in a plan amendment under this subchapter) to
42
See 477 Neb. Admin. Code, ch. 2, § 001 (2014).
43
477 Neb. Admin. Code, ch. 5, § 001 (2014).
44
Id.
45
§ 68-969(2).
46
477 Neb. Admin. Code, ch. 18, § 003.01 (2014).
47
Brief for appellant at 15.
48
Pub. L. No. 111-3, § 1, 123 Stat. 8.
- 30 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
provide medical assistance . . . , notwithstanding [specified
sections of PRWORA], to children . . . who are lawfully resid-
ing in the United States . . . , within . . . the following eligi-
bility categor[y]: . . . (ii) . . . Individuals under 21 years of
age . . . .” 49
[12,13] But, as the district court correctly determined,
§ 1396b(v)(4)(A) was permissive and not mandatory,
and Nebraska did not extend Medicaid eligibility under
§ 1396b(v)(4)(A) beyond those persons age 18 years and
younger. In interpreting federal statutes, the word “may”
customarily connotes discretion. That connotation is particu-
larly apt where “may” is used in contraposition to the word
“shall.” 50 Similarly, we have said: The word “may” when used
in a statute will be given its ordinary, permissive, and discre-
tionary meaning unless it would manifestly defeat the statutory
objective. 51 Here, the word “may” afforded the State a choice:
to “elect” or not. 52 As DHHS points out, the age of majority in
Nebraska is 19. 53 Although the age-of-majority statute has been
amended twice since the proceedings below, neither amend-
ment applies here. 54 DHHS argues, “In its Medicaid State Plan,
the State of Nebraska chose to limit such eligibility to lawfully
residing children under [age 19].” 55 And J.S. concedes that
DHHS “correctly point[s] out that although Nebraska elected
to provide Medicaid to lawfully residing children through
[§] 214, it only elected to do so in its State Plan up to age
nineteen, rather than twenty-one.” 56
49
§ 1396b(v)(4)(A) (emphasis omitted).
50
See Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 125 S.
Ct. 694, 160 L. Ed. 2d 708 (2005).
51
Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016).
52
See § 1396b(v)(4)(A).
53
See Neb. Rev. Stat. § 43-2101 (Reissue 2016).
54
See, 2018 Neb. Laws, L.B. 982, § 1; 2019 Neb. Laws, L.B. 55, § 5.
55
Brief for appellee at 26.
56
Reply brief for appellant at 4.
- 31 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
CHIP provides no support for J.S.’ claim. J.S. was 19 years
old when she was denied Medicaid. Once she reached age 19,
she was no longer eligible for Medicaid under CHIP. We now
turn to her argument regarding former foster care.
(c) Former Foster Care
J.S. argues that DHHS “must provide coverage to all eligible
individuals under mandatory categories of the federal Medicaid
program, including the Former Foster Care Category” 57 of the
Patient Protection and Affordable Care Act (ACA). 58 She cites
the eligibility criteria of § 1396a(a)(10)(A)(i)(IX), including
age, enrollment status, having been in foster care, and hav-
ing been enrolled in a state plan or under a waiver of a plan
while in foster care. She argues, “Aside from her citizenship
status, it is undisputed that [she] met all of the basic eligibility
requirements . . . .” 59 She then argues that “under [§] 214 of
CHIPRA, she became entitled to receive Medicaid under the
Former Foster Care Category.” 60
DHHS responds that because J.S. was not a U.S. citizen
or qualified alien, she did not qualify as a former foster care
child under § 1396a(a)(10)(A)(i)(IX) after she reached the age
of majority, i.e., age 19. “Under the former foster care child
exemption,” DHHS argues, “[J.S.] still must meet the basic
eligibility requirements, including [U.S.] citizenship or eligible
alien status.” 61 DHHS then argues that although the State could
have elected under CHIPRA to provide federal Medicaid to
pending SIJ applicants under age 21, it did not do so in its
Medicaid state plan.
In reply, J.S. concedes that DHHS is “correct in saying
‘Nebraska is not required to provide federal Medicaid to [SIJ
57
Brief for appellant at 21.
58
See Pub. L. No. 111-148, § 1, 124 Stat. 119.
59
Brief for appellant at 21.
60
Id. at 22.
61
Brief for appellee at 26.
- 32 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
status] applicants under the age of 21.’” 62 And thereafter,
her argument rests solely on YABI. Thus, she implicitly con-
cedes that § 1396b(v)(4)(A)—the codification of § 214 of
CHIPRA 63—does not by itself overcome her immigration sta-
tus after age 19. It could not do so, DHHS correctly argues,
because Nebraska did not elect to extend medical assistance
under § 1396b(v)(4)(A) past age 18.
At the fair hearing before DHHS, one of the exhibits received
without objection purported to be a response from the federal
Centers for Medicare and Medicaid Services, responding to a
Nebraska inquiry. The answer stated, in relevant part, “[f]ormer
foster children who are age 19 or older and have an immigra-
tion status that is considered lawfully present but is not con-
sidered to be ‘qualified’ would not be eligible for full Medicaid
coverage, unless the individual was a pregnant woman.” This
merely confirms J.S.’ implicit concession.
[14] In summary, because Nebraska did not elect to extend
coverage under § 1396b(v)(4)(A) beyond age 18, neither
CHIP nor the former foster care provisions of the ACA pro-
vide coverage where a noncitizen applicant’s immigration
status is not qualified. We now turn to J.S.’ argument based
on YABI.
3. Medicaid Eligibility Via
B2I Under YABI
In E.M., 64 we addressed YABI and B2I, which extend serv
ices and support to former foster youth who are between 19
and 21 years old. 65 But, here, we must specifically consider
§ 43-4505(1), which we did not address directly in E.M.
Under § 43-4505, “[e]xtended services and support provided
under [B2I] include, but are not limited to: (1) Medical care
62
Reply brief for appellant at 4.
63
Pub. L. No. 111-3, § 214, 123 Stat. 56.
64
E.M., supra note 1.
65
See §§ 43-4504 and 43-4505.
- 33 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
under the medical assistance program for young adults who
meet the eligibility requirements of section 43-4504 and have
signed a voluntary services and support agreement as provided
in section 43-4506.”
(a) Principles of Statutory
Interpretation
[15,16] The same principles of statutory interpretation we
employed in E.M. apply here. Statutory language is to be given
its plain and ordinary meaning, and an appellate court will not
resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous. 66 It is not for
the courts to supply missing words or sentences to a statute to
supply that which is not there. 67
(b) PRWORA Applies to YABI
In E.M., we reached several conclusions that direct our rea-
soning here: (1) PRWORA and its Nebraska equivalent apply
to B2I, (2) YABI could not be extended by omission to aliens
not lawfully present in the United States, (3) PRWORA instead
required a positive or express statement by reference to immi-
gration status, and (4) YABI lacks any such statement. 68
J.S. raises two arguments identical to contentions rejected in
E.M. Once again, neither is persuasive.
First, she says that YABI “makes no mention of citizenship
as a prerequisite to receiving medical care within extended
foster care” and that neither §§ 43-4504 or 43-4505(1) “limit
the availability . . . to non-qualified aliens, or give deference
to PRWORA.” 69 But this is merely the “omission” argument
that we rejected in E.M. There, we held, the omission of a law-
ful presence requirement in YABI did not qualify as a positive
66
JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71
(2019).
67
State v. Jedlicka, ante p. 52, 938 N.W.2d 854 (2020).
68
See E.M., supra note 1.
69
Brief for appellant at 18.
- 34 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
or express statement extending eligibility by reference to immi-
gration status. 70
Second, J.S. points to the same case management service 71
we addressed in E.M. There, we observed that this subsection
describes a service and not a recipient eligible by immigration
status. Under PRWORA, in order for a noncitizen not “law-
fully present” to receive a state public benefit, the Legislature
was required to “affirmatively provide[]” for such eligibil
ity. 72 In rejecting the same argument there, we observed that
no such statement appeared anywhere in YABI. Here, as
we did in E.M., we decline to supply words left out by the
Legislature.
(c) § 43-4505(1)
To escape the reach of PRWORA, J.S. argues that the “pas-
sage of [YABI] constituted a ‘[m]aterial change[] in State law’
requiring [DHHS] to amend its State Plan to carry out the
Legislature’s mandate to provide medical care to all children
within B2I,” including noncitizens having pending SIJ applica-
tions. 73 This argument relies upon a federal regulation, which
states, “The [Medicaid state] plan must provide that it will
be amended whenever necessary to reflect . . . (ii) Material
changes in State law . . . .” 74
DHHS responds that the passage of YABI did not require
the State to amend its Medicaid state plan. Instead, DHHS con-
tends that YABI must be read in conjunction with PRWORA 75
and its Nebraska counterpart. 76 DHHS points out that YABI
does not affirmatively provide for Medicaid coverage to
70
See E.M., supra note 1.
71
See § 43-4505(3)(h).
72
See § 1621(d).
73
Brief for appellant at 17.
74
42 C.F.R. § 430.12(c)(1)(ii) (2010).
75
See § 1621(d).
76
See § 4-108.
- 35 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
a noncitizen who is not “lawfully present” as defined by
PRWORA. And DHHS suggests that the Legislature was
familiar with these prior statutes. We agree with DHHS.
[17,18] In enacting a statute, the Legislature must be pre-
sumed to have knowledge of all previous legislation upon the
subject. 77 The Legislature is also presumed to know the gen-
eral condition surrounding the subject matter of the legislative
enactment, and it is presumed to know and contemplate the
legal effect that accompanies the language it employs to make
effective the legislation. 78 And, as we recognized in E.M., the
Legislature knows how to affirmatively provide for noncitizens
to receive public benefits. 79
Section 43-4505 first came into law in 2013. 80 It was
amended in 2014 81 and 2015. 82 In none of this legislation was
there any language affirmatively providing for public benefits
to noncitizens. And although each of these legislative acts
directed DHHS to submit plan amendments, 83 J.S. has not
pointed to anything in these plan amendments or associated
federal statutes excepting B2I from PRWORA or § 4-108.
Moreover, J.S.’ argument claiming that § 43-4505 was a
material change in state law would duplicate the former foster
care category and conflict with the ACA. In 2010, the ACA
required the States to provide Medicaid coverage to youth
who have aged out of foster care until they turn 26 years old. 84
77
In re Estate of Psota, 297 Neb. 570, 900 N.W.2d 790 (2017).
78
Stew. v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723
(2016).
79
See E.M., supra note 1.
80
See 2013 Neb. Laws, L.B. 216, § 5 (as part of what was then known as
Young Adult Voluntary Services and Support Act).
81
See 2014 Neb. Laws, L.B. 853, § 34.
82
See 2015 Neb. Laws, L.B. 243, § 17.
83
See, 2013 Neb. Laws, L.B. 216, § 14; 2014 Neb. Laws, L.B. 853, § 44;
2015 Neb. Laws, L.B. 243, § 24.
84
See § 1396a(a)(10)(A)(i)(IX).
- 36 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
In compliance with federal law, Nebraska amended its State
plan and provided for former foster youth to receive Medicaid
until they turned 26 years old. 85 At the time J.S. applied for
Medicaid, the former foster care category existed and did
not require an amendment to the State plan. J.S.’ construc-
tion would effectively limit former foster care recipients of
Medicaid only to those participating in B2I and reduce the age
limit from 26 to 21 years. Because the state Medicaid plan
already covered former foster care youth, § 43-4505(1) was not
a material change in state law.
4. Separation of Powers
J.S. contends that DHHS’ “practices and regulations limiting
non-qualified aliens’ ability to receive medical coverage despite
their presence in B2I” 86 violates the separation of powers
clause of the Nebraska Constitution. 87 Thus, she claims, DHHS
has encroached on the prerogatives of the Legislature.
[19,20] Nebraska’s separation of powers clause prohibits
the three governmental branches from exercising the duties
and prerogatives of another branch. 88 The separation of powers
clause prevents a branch from delegating its own duties or pre-
rogatives except as the constitution directs or permits. 89
[21] But as DHHS responds, the Legislature passed § 4-108,
which provides that “[n]otwithstanding any other provisions
of law, unless exempted . . . pursuant to federal law, no state
agency . . . shall provide public benefits to a person not law-
fully present in the United States.” If the Legislature intended
that nonqualified aliens were to receive Medicaid, it could
easily have included language to that effect in YABI. The
Nebraska Supreme Court does not sit as a superlegislature to
85
477 Neb. Admin. Code, ch. 28, § 003 (2018).
86
Brief for appellant at 24.
87
See Neb. Const. art. II, § 1.
88
In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).
89
Id.
- 37 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
J.S. v. NEBRASKA DEPT. OF HEALTH & HUMAN SERVS.
Cite as 306 Neb. 20
review the wisdom of legislative acts; that restraint reflects
the reluctance of the judiciary to set policy in areas constitu-
tionally reserved to the Legislature’s plenary power. 90 DHHS
did not violate the separation of powers clause in denying
J.S. Medicaid.
VI. CONCLUSION
We conclude that the district court did not err in determining
that J.S. was not eligible for Medicaid. We affirm the judgment
of the district court.
Affirmed.
90
Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731
N.W.2d 164 (2007). | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3391441/ | [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 356
In July, 1914, defendants in error brought suit against plaintiffs in error for damages in the sum of Ten Thousand Dollars, their declaration, which was filed in September of that year, containing two counts, the first of which was upon an alleged promise to pay plaintiffs on request the sum of Fifty-six Hundred Dollars for medical attendance, advice and medicine given and provided by plaintiffs to and for defendant at its request. The second count was upon an alleged express promise made on July 1, 1913, to pay plaintiffs on request a reasonable sum for certain work and services done and bestowed upon them at the defendant's request in and about the business of defendant and for it, the sum of Ten Thousand Dollars being alleged as a reasonable compensation for such work and services. A bill of particulars, attached to the declaration, consisted of the following items:
First Count.
1913.
May 22. — Attending and performing autopsy upon the remains of E. O. Painter ..................... $1,000.00 *Page 357
May 22. — Office advice, conference and consultations from May 22, 1913, to June 16, 1913, and from June 25, 1913, to July 1, 1913 .................................. $1,000.00
June 25. — Services as per agreement during absence on second trip to Baltimore and trip to New York, from June 16 to June 25, 1913, (nine days at Four Hundred ($400.00) Dollars per day .................................. 3,600.00 ----------- Total .................................. $5,600.00
Second Count.
To services and advice from the 22nd day of May, 1913, to June 25, 1913 ......................................... $10,000.00
Nothing further appears to have been done in this suit until about three and a half years later, when plaintiffs, obtaining leave of the Court therefor filed an amended declaration on February 4, 1918. This declaration was one of assumpsit, containing three counts based upon an alleged indebtedness from the defendant to the plaintiffs in the sum of Fifty-six Hundred Dollars for money payable by defendant to the plaintiffs, first: for services as physicians and surgeons done and rendered by plaintiffs for defendant at its request; second: for work done and materials provided by plaintiffs for defendant at its request; and third: for money found to be due from defendant to plaintiffs on account stated between them.
The bill of particulars attached to this amended declaration was identical with that attached to the original, with the exception that the last item of the first was omitted. After various vicissitudes, the case went to trial on issue joined on pleas of never was indebted and payment, resulting in a verdict and judgment for the plaintiffs, which judgment defendants seek to reverse upon writ of error. *Page 358
Eighty-five errors are assigned, forty-seven of which are argued, presenting a condition, unusual even in this Court, which in several cases has been compelled to call attention to the practice of assigning a large number of errors and criticizing it mildly but adversely. See Hoopes v. Crane,56 Fla. 395, 47 So.2d Rep. 992; Atlantic Coast Line R. Co. v. Whitney, 65 Fla. 72, 61 So.2d Rep. 179; Mitchell v. Mason,65 Fla. 208, 61 So.2d Rep. 579; Florida East Coast R. Co. v. Knowles, 68 Fla. 400, 67 So.2d Rep. 122; Padgett v. State,64 Fla. 389, 59 So.2d Rep. 946; Atlantic Coast Line R. Co. v. Levy, 68 Fla. 234, 67 So.2d Rep. 47.
Zeal of counsel in behalf of their clients, is doubtless responsible for this practice; but, however commendable such zeal within reasonable limits may be and indeed is, it often defeats the very purpose sought to be attained. We again are constrained to criticize such practice, and to sound another warning against it, endorsing the following expressions on this subject: "The practice of unlimited assignments is a perversion of the rule, defeating all its purposes, bewildering the counsel on the other side, and leaving the Court to gather from a brief, often as prolix as the assignments of error, which of the latter are really relied on." Philips Co. Construction Co. v. Seymour, 91 U.S. 646, 23 L.Ed. 341.
This action is based upon an express promise by the defendant to pay the plaintiffs a certain sum for services as physicians and surgeons, for work done and material provided and account stated.
In the light of the evidence in this case, the right of action, if any exists, rests upon the legal obligations of the defendant, a corporation, to pay for the services rendered by plaintiffs in performing an autopsy upon the dead body of Mr. Painter, who in his lifetime was the president of the defendant corporation, for office advice, and for conference *Page 359
and consultations with various persons from May 22nd to July 1, 1913, and for services rendered in making a trip to Baltimore and New York.
An autopsy is a post mortem examination, a dissection of a dead body to determine the cause, seat or nature of the disease; in the case at bar, to determine whether there existed in the stomach or other organs of the deceased any trace of poison. From the evidence presented by the plaintiffs it appears that the autopsy was performed with the knowledge and at the request of D. A. Morrison, Jr., who was then the secretary and cashier of defendant corporation, and W. I. Lyman, its head bookkeeper, who were the business acquaintances of the deceased, associated with him in the business of defendant corporation and were friends of his family.
It is perfectly obvious that whatever may have been the nature of the services rendered by the plaintiffs in and about the autopsy, such services were neither medicinal nor surgical, because both sciences or arts have for their purposes and objects the healing, curing or alleviation of diseases, deformities or injuries; but the labor performed upon the dead body of Mr. Painter was not for the purpose of healing or restoring him to life, or health, but to ascertain the cause of his death and secure evidence, as it is claimed, that would be of benefit to the defendant. Yet, as the declaration was, in part for physicians' and surgeons' fees and for labor performed, which the evidence shows was upon a dead body, over which the defendant corporation had no ownership, control or possession, nor right thereto, the right of action against the defendant must rest upon an express or implied obligation on the part of the defendant to pay therefor. The record discloses no evidence of any express promise on the part of the corporation to pay for such services and the promise to pay therefor cannot be inferred *Page 360
from the fact that the plaintiffs, who were physicians and surgeons, were called in their professional capacity to render medicinal or surgical assistance or treatment to the person whose body had been recovered from the river into which it had fallen.
At the time the alleged autopsy was performed, none of the parties performing the same or who it is claimed authorized it, knew or were informed of any interest that defendant corporation had in its results and it was some time afterwards that such parties learned of the existence of insurance policies on the life of Mr. Painter, in favor of the defendant corporation. As far as they were informed at the time of the autopsy there was no benefit to accrue to defendant or loss to be sustained by it, through any developments from such autopsy. It appears from the evidence that such autopsy was first suggested by Dr. Perry, one of the plaintiffs, for the purpose of protecting the interest of the estate of the deceased, with respect to a large amount of insurance at that time reported to have been carried by Mr. Painter. No motive is shown for Mr. Lyman or Mr. Morrison to attempt to bind the defendant corporation for the performance of such autopsy and no action on their part as agents of the corporation imposing on it any liability therefor is shown, even if they had the power to bind the defendant in this respect. It further clearly appears that such autopsy was performed upon the authorization of the widow and only child, a daughter, of the deceased. It would seem to be a sound principal of law, that wherever a corporation is acting within the scope of its legitimate purposes of its institution all parol contracts made by its authorized agents are express promises of the corporation and all benefits conferred (upon the corporation) at their (the authorized agents) request raise implied promises for the enforcement of which an action may well lie. Bank of Columbia v. Patterson's Admrs., 7 Cr. *Page 361
306. From this statement of the law by Judge Story which expresses the American doctrine on the subject, we can deduce the two tests by which it may be determined whether an act or contract is valid and binding upon a corporation: (1) Is the act or contract within the legitimate purposes of its chartered powers: (2) Is the act done or contract entered into by an agent of the company thereunto authorized, or has such act or contract been ratified by the corporation?
Assuming, for the purposes of this case, but expressly refraining from determining the proposition, that it was within the chartered powers of the corporation to employ plaintiffs to perform the autopsy in question, yet the evidence entirely fails to show that either Mr. Morrison, the secretary and treasurer of defendant corporation, or Mr. Lyman, its head bookkeeper, was properly authorized to so employ plaintiffs, it being the general rule, that the burden rests upon one who seeks to hold a corporation liable for an act on a contract of an officer or agent to show that the doing of the act or the execution of the contract was properly authorized, or that it was properly ratified by the corporation. 14 A. C. J. 399.
The record wholly fails to show any such employment by any duly authorized officer or agent of the corporation, unless the duties of such secretary and cashier or of such head bookkeeper gave them authority to request such services for and at the expense of the corporation. In view of the testimony, it does not appear that the duties of a secretary and cashier or of a head bookkeeper of a manufacturing corporation such as is the defendant, are such that the law implies therefrom authority to employ physicians and surgeons to perform autopsies upon the dead body of an officer of the corporation, and therefore a request from them to perform such service is not in law the request of the corporation, and no ratification of their *Page 362
acts by the corporation being disclosed liability therefor is not shown. Atlantic Refining Co. v. Lefingwell, ___ Fla. ___, 54 So. 226.
As to the second trip to Baltimore as to which there is testimony that it was found to be necessary at a conference between plaintiffs and certain parties representing the E. O. Painter Fertilizer Company, that Company, by its President, Miss Okle Painter, who had been elected President of the Company in the meantime, agreed to pay the two doctors each two hundred dollars a day and expenses, and, said Dr. Boyd in his testimony "they agreed to pay Dr. Perry and myself four hundred dollars a day and our expenses to make this second trip," and that he, Dr. Boyd, was absent nine days on that trip. Dr. Perry testified also that he was absent about nine days on that second trip.
The President of the defendant Company was authorized in behalf of the Corporation to make such an agreement under the circumstances of the case, which were as follows: Mr. Painter, the President of the Company, had his life insured for a large sum of money upon policies of life insurance payable in the event of his death to the Company. It was deemed important by the President and other officers of the Corporation after the autopsy was performed to employ competent persons to proceed to Baltimore, to which city the organs which had been removed from the body of Mr. Painter had been shipped for chemical and microscopic examination to the end that it could be determined whether there was present any trace of lethal poison present in them, and to be present at such examinations and obtain possession of "what was left of the contents of the stomach" of the deceased and do whatever they "thought was necessary and best in order to meet this matter of the presence of antimony" in reference to *Page 363
the report which had come from the chemical examination of the parts sent on to that city.
It was in anticipation of the effect which the discovery of antimony in the vital organs of Mr. Painter might have upon the validity of the Company's claims on the insurance policies that furnished the interest which the Company had in the employment of the plaintiff's to make the trip to Baltimore. The contract was apparently within the scope of the President's power to make in behalf of the corporation.
It is beside the question to say that the activities of the plaintiffs themselves brought about the necessity or apparent necessity for their employment. It is equally inconclusive to argue that the plaintiffs' services were originally sought as physicians and surgeons by the family of the deceased who desired them to use their knowledge and skill to resuscitate Mr. Painter and not as guardians of the family fortune nor as detectives to secure evidence with which to forestall any defense that might be interposed by the insurance companies in actions upon the life policies held by Mr. Painter. The fact remains that a situation arose after the plaintiffs performed the autopsy which the officers of the corporation deemed it advisable in the corporation's interests to explain or to be more fully advised upon in order to meet any possible defense which might be urged in behalf of the insurance companies which wrote the policies in which the defendant was interested.
Neither is the wisdom of the course pursued by the defendant corporation a proper subject of inquiry in this litigation. The officers with whom the business interests of the corporation were intrusted employed the plaintiffs, according to their evidence, to proceed to Baltimore and try and accomplish certain things in relation to the *Page 364
chemical and pathological examination made by the chemists and pathologists of that city to whom parts of Mr. Painter's body had been sent for examination. A report had been made by the experts in which it was stated that antimony, a poison, had been found in the stomach of the deceased. Dr. Boyd testified that he and Dr. Perry were employed to go to Baltimore and do whatever they thought "was necessary and best in order to meet this matter of the presence of antimony in this report." It may have been a most indefinite, even questionable service, but they were employed to render it and it was considered by the Company's President and other officers to be in the Company's interest.
The services the plaintiffs were to perform were not medical nor surgical and the chemical analysis of the contents of the stomach of the deceased they were not competent to perform, according to Dr. Boyd's testimony. In fact the analysis had always been made in Baltimore. But they were employed to go to Baltimore and do what they could in the "matter of the presence of antimony in this report," for which they were to be paid four hundred dollars per day and expenses. They accepted the employment and went.
While the evidence as to the authority from defendant corporation for plaintiffs to proceed from Baltimore to New York, is not as clear or as full as might be desired, yet taking into consideration the objects and purposes for which plaintiffs had been employed to go to Baltimore, that these had not been attained, the extent and scope of their instructions before leaving Jacksonville, the telegram sent to Dr. Perry from Jacksonville on May 20th and signed "E. O. Painter Co.", which stated "If considered necessary have other examinations made," which went to the jury for their consideration, we cannot go to the extent *Page 365
of holding that this item is wholly unsupported by the testimony.
The corporation being liable on that promise, the plaintiffs can recover for this item upon the count for "work and labor done and materials provided."
As to the item in the bill of particulars for office advise, conferences and consultations from May 22, 1913, to July 1, 1913, the evidence discloses that such conferences and consultations, when had were for the purpose of obtaining information from the plaintiffs relative to the disclosures made by chemical and microscopical examination of certain parts or organs of the body of the deceased forwarded to Baltimore for such purpose. To obtain such information plaintiffs had made and been paid by the defendant corporation for one trip to Baltimore. No definite information having been obtained by the interested parties at Jacksonville, a second trip by plaintiffs to ascertain and report upon the desired facts, the discussions relative to the employment of plaintiffs to make such second trip being included in the conferences and consultations charged for. As to this item the plaintiffs failed to sustain the burden of proving any liability on the part of defendant corporation to pay therefor.
The evidence fails to support the count in the declaration for account stated.
We have carefully considered the record and all the material assignments of error, but are unable to discuss them and at the same time keep this opinion within reasonable limits.
The verdict we think was excessive in that it included the services for performing the autopsy and fees or compensation for conferences and consultations, and should have been set aside on the motion for a new trial.
If the plaintiffs below enter a remittitur of Two Thousand *Page 366
Dollars with interest thereon from July 1, 1913, the judgment will stand affirmed, failing to do this within thirty days after the mandate is filed the judgment will be reversed and a new trial granted. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4553850/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/07/2020 12:08 AM CDT
- 978 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
State of Nebraska, appellee, v.
Melvin Anderson, appellant.
___ N.W.2d ___
Filed May 29, 2020. No. S-19-1038.
1. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
2. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively determine
whether counsel did or did not provide effective assistance and whether
the defendant was or was not prejudiced by counsel’s alleged deficient
performance.
3. Pleas: Waiver. Generally, a voluntary guilty plea or plea of no contest
waives all defenses to a criminal charge.
4. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or
no contest, he or she is limited to challenging whether the plea was
understandingly and voluntarily made and whether it was the result of
ineffective assistance of counsel.
5. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that his or her counsel’s
performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense.
6. Effectiveness of Counsel: Appeal and Error. In reviewing claims of
ineffective assistance of counsel on direct appeal, an appellate court
decides only whether the undisputed facts contained within the record
are sufficient to conclusively determine whether counsel did or did not
provide deficient performance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance.
7. Effectiveness of Counsel: Records: Appeal and Error. The record on
direct appeal is sufficient to review a claim of ineffective assistance of
trial counsel if it establishes either that trial counsel’s performance was
- 979 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
not deficient, that the appellant will not be able to establish prejudice, or
that trial counsel’s actions could not be justified as a part of any plau-
sible trial strategy.
8. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
9. ____: ____. To show prejudice in a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding
would have been different.
10. Words and Phrases. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
11. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
tion is based upon a plea of no contest, the prejudice requirement for
an ineffective assistance of counsel claim is satisfied if the defendant
shows a reasonable probability that but for the errors of counsel, the
defendant would have insisted on going to trial rather than pleading
no contest.
12. Preliminary Hearings: Probable Cause. The purpose of a preliminary
hearing is to ascertain whether or not a crime has been committed and
whether or not there is probable cause to believe the accused commit-
ted it; it is not a trial of a person accused to determine his or her guilt
or innocence, but is a procedural safeguard to prevent a person from
being detained in custody without probable cause existing that the crime
charged was committed by that person.
13. Preliminary Hearings: Plea in Abatement. A plea in abatement is used
to challenge the sufficiency of the evidence at a preliminary hearing.
14. Motions to Dismiss: Plea in Abatement. Generally, a motion in the
nature to dismiss is permitted in criminal cases in various forms, includ-
ing a motion to quash and a plea in abatement.
15. Plea in Abatement: Evidence: Probable Cause: Verdicts. In order to
resist a challenge by a plea in abatement, the evidence received by the
committing magistrate need show only that a crime was committed and
that there is probable cause to believe that the accused committed it; the
evidence need not be sufficient to sustain a verdict of guilty beyond a
reasonable doubt.
16. Effectiveness of Counsel. As a matter of law, counsel is not ineffective
for failing to make a meritless objection.
17. Preliminary Hearings: Probable Cause: Witnesses. A full adversarial
hearing in which witnesses are called is not required for a determina-
tion of probable cause in a preliminary hearing under Neb. Rev. Stat.
§ 29-1607 (Reissue 2016).
- 980 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
18. Constitutional Law: Preliminary Hearings: Probable Cause. In an
informal preliminary hearing, it does not violate the Confrontation
Clause to rely on out-of-court statements to determine probable cause
for purposes of continuing a defendant’s pretrial detention.
19. Criminal Law: Depositions: Pretrial Procedure. There is no obliga-
tion for the State to produce the victim or assist in locating the victim
for purposes of a pretrial deposition by defense counsel.
Appeal from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Affirmed.
Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
In an appeal from a plea-based conviction, the defendant,
through new counsel, asserts that his plea was the result of
ineffective assistance of trial counsel. The majority of the alle-
gations of deficient conduct revolve around the victim’s failure
to appear at the preliminary hearing and law enforcement’s
inability to serve her with subpoenas for her appearance at the
preliminary hearing and subsequent deposition. The defendant
also argues that trial counsel was ineffective by failing to move
to suppress his inculpatory statement to law enforcement in
relation to the charge of third degree domestic assault to which
he pleaded.
BACKGROUND
Melvin Anderson was originally charged in county court with
strangulation, in violation of Neb. Rev. Stat. § 28-310.01(2)
(Reissue 2016), in relation to events occurring on March 14,
- 981 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
2019. Following a hearing on March 15, the court issued an
order of probable cause and further detention.
The probable cause affidavit described that law enforce-
ment had responded to a call of domestic assault on March
14, 2019. Law enforcement observed red marks on both sides
of the victim’s neck consistent with being choked. The victim
described that while she was at her and Anderson’s apartment,
Anderson grabbed her around the neck with one hand and
held her against the wall for several minutes while threaten-
ing to kill her. She said there were moments when she could
not breathe. The victim’s cousin witnessed the assault and was
able to eventually assist the victim and accompany her out
of the apartment. Law enforcement later contacted Anderson,
who admitted only to grabbing the victim by her coat so that
he could get his wallet and telephone from her. Anderson
described that he grabbed the front of the victim’s coat near
her neck and that it was possible he could have grabbed her
neck with the coat.
On April 25, 2019, trial counsel filed a praecipe for a
subpoena to be served upon the victim, commanding her
appearance at the preliminary hearing scheduled for May
22. The journal entry for the preliminary hearing on May
22 reflects that the court found probable cause and that the
case was bound over to the district court for trial. It does not
describe the court’s reasoning in finding probable cause. The
only witness at the hearing was a law enforcement officer.
The journal entry does not reflect that the victim appeared at
the hearing.
On June 26, 2019, an amended information was filed in
district court charging Anderson with the original count of
strangulation in violation of § 28-310.01(2) and new counts of
tampering with a witness or informant in violation of Neb. Rev.
Stat. § 28-919 (Reissue 2016) and violating a protection order
in violation of Neb. Rev. Stat § 42-924(4) (Cum. Supp. 2018).
The new counts related to events occurring between June 1
and 12. Anderson waived appearance at the arraignment of the
- 982 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
amended information. There is no record that a preliminary
hearing was held on the amended charges.
A reciprocal discovery order was entered on June 25, 2019,
with depositions to be taken by Anderson within 30 days. A
praecipe for a subpoena was filed on June 25, commanding
the victim to appear as a witness before the district court on
July 16. Records show that the sheriff attempted to serve the
subpoena on July 1, 9, and 12. On July 16, at the request of the
county attorney, the subpoena was returned unserved.
Another subpoena was issued on July 16, 2019, command-
ing the victim to appear as a witness before the district court
on July 22. Records show that the sheriff attempted to serve
the subpoena on July 18, 19, and 22, and it was returned as not
served on July 23.
On August 23, 2019, Anderson entered pleas of no contest
to the State’s second amended information, which then charged
Anderson with one count of third degree domestic assault
in violation of Neb. Rev. Stat. § 28-323(1) and (4) (Reissue
2016), one count of attempted tampering with a witness or
informant in violation of Neb. Rev. Stat. §§ 28-201(4)(e) and
28-919 (Reissue 2016), and one count of violating a protection
order under § 42-924(4).
The factual basis provided by the State asserted that on
March 14, 2019, law enforcement responded to a report of
domestic assault. A protection order had been granted for the
victim against Anderson earlier that day, but had not yet been
served. Anderson went to the victim’s apartment, there was an
argument, and Anderson grabbed the victim by the neck, apply-
ing so much pressure to her neck that there were moments she
was unable to breathe and telling her that he would kill her.
The victim’s cousin was a witness to the assault and was able
to assist the victim in leaving the apartment. Anderson later
indicated to law enforcement that he had an argument with
the victim and admitted to grabbing her coat, but denied stran-
gling her.
- 983 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
While Anderson was in custody for this offense, the victim
received a letter addressed to her from an inmate at the jail
who identified himself as “Lucky Luciano.” The victim did not
open the letter. She knew that “Lucky” was Anderson’s nick-
name. Law enforcement opened the letter, which informed the
victim she should tell the courts that there was no fight and no
choking, that she feels protected and safe around “Lucky,” and
that it was a mistake putting him in jail. The letter directed the
victim to report that she was off her medication and did not
know what she was doing when she made the report. Enclosed
with the letter was a piece of a dreadlock that the victim
believed was from Anderson. There was a protection order in
place when this letter was delivered to the victim.
After an extensive colloquy with Anderson, the court
accepted Anderson’s pleas as voluntarily, freely, knowingly,
and intelligently made, and it found that there was a factual
basis for the pleas. Despite trial counsel’s request to sentence
Anderson immediately, the court ordered a presentence investi-
gation be completed. The State noted that it was trying to reach
the victim in order to obtain a victim impact statement, but that
its last contact with her had been in May 2019.
Once the presentence investigation was completed, the court
proceeded to sentencing. The State noted at the sentencing
hearing that the probation office was able to obtain a victim
impact statement, which was somewhat surprising because the
State had been having difficulty locating her. The State noted
that Anderson “had the benefit of a very generous plea agree-
ment from the State simply because we were having difficulty
finding [the victim] after we tried to subpoena her several
times for a deposition and trying to locate her by mail and
by phone.”
The court sentenced Anderson to imprisonment for 180 days
on count 1, 360 days on count 2, and 360 days on count 3. The
sentences on counts 2 and 3 were ordered to be served concur-
rently to each other and consecutively to count 1.
- 984 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
Anderson appeals, seeking to set aside his pleas and the
resulting convictions and sentences, as the result of ineffec-
tive assistance of trial counsel. He obtained new counsel for
his appeal.
ASSIGNMENTS OF ERROR
Anderson assigns that trial counsel provided ineffective
assistance by (1) failing to move to continue the plea in abate-
ment, when the subpoena issued by Anderson was not served
on the alleged victim; (2) failing to file a plea in abatement,
because there was insufficient evidence to support a probable
cause finding that Anderson strangled the alleged victim; (3)
failing to move the trial court to require the State to produce
the alleged victim for deposition and exclude the alleged vic-
tim as a witness; (4) failing to move to suppress Anderson’s
statement; and (5) counseling Anderson to enter a plea. We
disregard Anderson’s broad assignment of error that trial coun-
sel provided ineffective assistance of counsel to Anderson in
violation of his Sixth Amendment rights, because assignments
of error on direct appeal regarding ineffective assistance of
trial counsel must specifically allege deficient performance,
and an appellate court will not scour the remainder of the brief
in search of such specificity. 1
STANDARD OF REVIEW
[1] Whether a claim of ineffective assistance of trial counsel
may be determined on direct appeal is a question of law. 2
[2] In reviewing claims of ineffective assistance of counsel
on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. 3
1
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
2
Id.
3
Id.
- 985 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
ANALYSIS
[3,4] Generally, a voluntary guilty plea or plea of no con-
test waives all defenses to a criminal charge. 4 Thus, when a
defendant pleads guilty or no contest, he or she is limited to
challenging whether the plea was understandingly and vol-
untarily made and whether it was the result of ineffective
assistance of counsel. 5 For this direct appeal, Anderson has
obtained counsel different from trial counsel, and he asserts
that his pleas were the result of ineffective assistance of trial
counsel. He does not challenge whether his pleas were other-
wise understandingly and voluntarily made.
[5-7] To prevail on a claim of ineffective assistance of
counsel, the defendant must show that his or her counsel’s
performance was deficient and that this deficient performance
actually prejudiced the defendant’s defense. 6 In reviewing
claims of ineffective assistance of counsel on direct appeal,
an appellate court decides only whether the undisputed facts
contained within the record are sufficient to conclusively
determine whether counsel did or did not provide deficient
performance and whether the defendant was or was not preju-
diced by counsel’s alleged deficient performance. 7 The record
on direct appeal is sufficient to review a claim of ineffective
assistance of trial counsel if it establishes either that trial
counsel’s performance was not deficient, that the appellant
will not be able to establish prejudice, or that trial coun-
sel’s actions could not be justified as a part of any plausible
trial strategy. 8
[8-11] To show that counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal
4
State v. Privett, 303 Neb. 404, 929 N.W.2d 505 (2019).
5
Id.
6
See, Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018).
7
See State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
8
State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).
- 986 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
that of a lawyer with ordinary training and skill in criminal
law. 9 To show prejudice, the defendant must demonstrate a
reasonable probability that but for counsel’s deficient per-
formance, the result of the proceeding would have been dif-
ferent. 10 A reasonable probability is a probability sufficient to
undermine confidence in the outcome. 11 When a conviction
is based upon a plea of no contest, the prejudice requirement
for an ineffective assistance of counsel claim is satisfied if the
defendant shows a reasonable probability that but for the errors
of counsel, the defendant would have insisted on going to trial
rather than pleading no contest. 12
Anderson asserts that but for trial counsel’s failure to pur-
sue various pretrial motions pertaining to the victim’s lack
of appearance at the preliminary hearing and the inability to
serve a subpoena upon her, the charges against him would
have been dismissed; therefore, he would not have pleaded no
contest. He also asserts that counsel was deficient by failing to
move in limine to suppress his statements to law enforcement.
Anderson’s assignment of error that counsel was ineffective
in advising him to plead no contest is intertwined with these
assertions because, he argues, it was deficient conduct for
trial counsel to advise him to plead before pursuing the pre-
trial motions.
Preliminary Hearing
Anderson first argues that but for trial counsel’s ineffective
assistance in failing to file a plea in abatement or a motion
to continue at the preliminary hearing, the charges against
him would have been dismissed before he decided to plead
no contest. The undisputed facts contained within the record
are sufficient to conclusively determine that trial counsel was
9
Mrza, supra note 1.
10
Id.
11
Id.
12
See Privett, supra note 4.
- 987 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
not deficient by failing to file a plea in abatement. Further,
we are able to conclusively determine upon the record that
Anderson will be unable to demonstrate that but for trial coun-
sel’s failure to file another motion to continue the preliminary
hearing, the charges would have been dismissed—the premise
upon which he asserts he would have declined to enter into a
plea bargain agreement with the State. Accordingly, the record
conclusively demonstrates that the allegedly deficient act of
failing to move to continue the preliminary hearing did not
prejudice Anderson.
[12] The purpose of a preliminary hearing is to ascertain
whether or not a crime has been committed and whether or not
there is probable cause to believe the accused committed it. 13 It
is not a trial of a person accused to determine his or her guilt
or innocence, but is a procedural safeguard to prevent a person
from being detained in custody without probable cause existing
that the crime charged was committed by that person. 14
Anderson asserts that the court stated during the preliminary
hearing that it was binding the matter over because Anderson
had admitted he strangled the victim, and he argues that
because the probable cause affidavit did not contain such an
admission, the case would have been dismissed had counsel
filed a plea in abatement on the grounds of lack of probable
cause. With this reasoning, Anderson concludes that trial coun-
sel was ineffective for failing to file a plea in abatement.
[13-15] A plea in abatement is used to challenge the suf-
ficiency of the evidence at a preliminary hearing. 15 It has been
observed that, generally, a motion in the nature to dismiss
is permitted in criminal cases in various forms, including a
motion to quash and a plea in abatement. 16 In order to resist
a challenge by a plea in abatement, the evidence received by
13
State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998).
14
Id.
15
State v. Lasu, 278 Neb. 180, 768 N.W.2d 447 (2009).
16
See State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (2017).
- 988 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
the committing magistrate need show only that a crime was
committed and that there is probable cause to believe that the
accused committed it. 17 The evidence need not be sufficient to
sustain a verdict of guilty beyond a reasonable doubt. 18
Anderson acknowledges that the county court’s alleged state-
ment as to its reasoning in concluding there was probable cause
is not in the record, because the preliminary hearing was not
preserved. He does not assert that trial counsel was ineffective
in failing to insist that the preliminary hearing be part of the
record. In any event, whatever was said by the county court
at the preliminary hearing, the undisputed facts of the record
affirmatively demonstrate there was probable cause to show
that a crime was committed and that Anderson committed it.
At the time of the preliminary hearing, Anderson had not yet
sent the letter from “Lucky,” and his allegations of ineffective
assistance of trial counsel at the preliminary hearing appear
limited to count 1, strangulation, which was reduced to third
degree domestic assault pursuant to the plea bargain agreement.
The affidavit of probable cause described that law enforce-
ment had observed red marks on both sides of the victim’s
neck consistent with being choked and that the victim reported
Anderson had grabbed her around the neck with one hand and
held her against the wall for several minutes while threatening
to kill her. She told law enforcement there were moments when
she could not breathe.
[16] The affidavit provided sufficient evidence to support
the court’s finding of probable cause. A plea in abatement, had
it been made, would have lacked merit. And, as a matter of
law, counsel is not ineffective for failing to make a meritless
objection. 19
Anderson also asserts that trial counsel was ineffective for
failing to move to continue the preliminary hearing, because
17
Id.
18
See id.
19
See State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).
- 989 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
the victim did not appear at the hearing despite the issuance of
a subpoena. We observe that trial counsel moved to continue
the preliminary hearing, albeit not before issuing a summons
for the victim’s appearance. Anderson articulates his argument
as follows:
Rather than moving to continue the hearing in order to
obtain [the victim’s] presence and testimony, Anderson’s
counsel allowed the matter to proceed through the pre-
liminary hearing denying Anderson the right to confront
[the victim] at the first opportunity which could have
produced the first opportunity to have the case dismissed
by the Court. 20
In his summary of the arguments, Anderson also argues that
trial counsel’s failure to move to continue the preliminary hear-
ing “theoretically waived Anderson’s ability to use the Court’s
power to enforce the subpoena regarding [the victim’s] refusal
to appear if she had been served.” 21
[17,18] Anderson’s reliance on the right to confrontation
under these facts is misplaced. A full adversarial hearing in
which witnesses are called is not required for a determination
of probable cause in a preliminary hearing under Neb. Rev.
Stat. § 29-1607 (Reissue 2016). 22 In an informal preliminary
hearing, it does not violate the Confrontation Clause to rely on
out-of-court statements to determine probable cause for pur-
poses of continuing a defendant’s pretrial detention. 23
Nor is it clear how trial counsel’s inability to cross-examine
the victim at the preliminary hearing could have resulted in
the dismissal of the strangulation charge. Even if trial counsel
could have obtained another continuance and the victim would
20
Brief for appellant at 20.
21
Id. at 15.
22
See, Neb. Rev. Stat. § 27-1101 (Reissue 2016); State v. Wilkinson, 219
Neb. 685, 365 N.W.2d 478 (1985); Daniel A. Morris, Nebraska Trials
§ 4:11 (2019).
23
See Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975).
- 990 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
have eventually appeared and been cross-examined at the pre-
liminary hearing, Anderson does not argue that she would have
recanted her report to law enforcement. Nor would it follow
that the court would have dismissed the case if she had. There
was a witness to the strangulation, and law enforcement had
observed the victim’s injuries.
As already stated, with or without the victim’s testimony,
there was probable cause to conclude that a crime was com-
mitted. The record, accordingly, conclusively demonstrates that
Anderson would be unable, in an evidentiary hearing, to prove
the strangulation charge would have been dismissed if trial
counsel had moved to continue the preliminary hearing. The
undisputed facts in the record demonstrate that Anderson was
not prejudiced by an alleged failure to obtain dismissal because
of trial counsel’s failure to move to continue the prelimi-
nary hearing.
As for any argument that the failure to move to continue the
preliminary hearing prejudiced Anderson because he thereby
waived his ability to move for an order compelling the State
to produce the victim for a pretrial deposition, as explained in
the next section, a motion for an order compelling the State to
produce the victim would have lacked merit. Trial counsel’s
alleged waiver of a nonexistent right could not have preju-
diced Anderson.
Alleged Unavailability
of Victim
Anderson asserts trial counsel was ineffective by failing to
move for a court order that the State produce the victim or
otherwise assist in making the victim available for the deposi-
tion ordered by the court pursuant to Neb. Rev. Stat. § 29-1917
(Reissue 2016) and for which a subpoena under Neb. Rev. Stat.
§ 25-1223 (Cum. Supp. 2018) had been issued at trial counsel’s
request. In conjunction with this allegation, Anderson asserts
that his trial counsel was ineffective by failing to move to sup-
press the victim’s testimony.
- 991 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
According to Anderson, if trial counsel had made a request
that the State produce the victim or assist in locating her and
the request had been granted, and if the State had thereafter
acted in bad faith by failing to comply with the order, then
trial counsel could have requested that the victim’s testimony
be excluded as a sanction against the State. Anderson asserts
that if this had been done, the court would have granted such
a motion and he would have insisted on going to trial. Again,
these allegations appear limited to the charge of strangulation
that was reduced to third degree domestic assault under the
plea bargain agreement.
[19] The long chain of hypothetical variables in this allega-
tion of ineffective assistance of counsel is not amenable to
evidentiary proof. Most notably, it fails at its first premise. As
Anderson admits, there is no obligation for the State to pro-
duce the victim or assist in locating the victim for purposes
of a pretrial deposition by defense counsel. There would have
been no merit to a motion for a court order compelling the
State to produce the victim or otherwise assist in making the
victim available for the court-ordered deposition. As a matter
of law, counsel is not ineffective for failing to make a meritless
objection. 24 Because there is no merit to Anderson’s assertion
that trial counsel was ineffective for failing to move to compel
the State in this manner, it follows that there is no merit to his
assertion that trial counsel was ineffective for failing to move
to suppress the victim’s testimony, under the hypothetical that
had such motion been made and granted, the State would have
acted in bad faith.
We also note that while there generally are remedies for
the State’s fault or bad faith, Anderson does not assert that the
State was concealing access to exculpatory evidence in any
sort of a violation of Brady v. Maryland. 25 He does not assert
that the victim’s testimony would be exculpatory. Nor does he
24
See State v. Schwaderer, supra note 19.
25
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
- 992 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
assert that the State was concealing the victim’s whereabouts.
Indeed, the record indicates that the State had been unable to
contact her despite its attempts to do so. The allegation that
the State somehow would have acted in bad faith if there had
been an order to supply the victim for the deposition is entirely
too speculative to be susceptible to proof at an evidentiary
hearing. Prejudice for purposes of ineffective assistance of
counsel cannot be founded on hypothetical bad acts that did
not occur but allegedly would have occurred had counsel not
acted deficiently.
We are able to conclusively determine on the record that
counsel was not ineffective for failing to move the court to
compel the State to produce the victim or assist in locating her
so that she could be deposed by trial counsel.
Anderson’s Statement to
Law Enforcement
Lastly, Anderson argues that trial counsel was ineffective for
failing to move to suppress his statement to law enforcement
as involuntarily made. Anderson asserts that he was heav-
ily medicated and therefore unable to understandably waive
his Miranda rights when he made the statement. Anderson
does not assert that any statements are at issue other than
those described in the affidavit in support of probable cause.
According to that report, Anderson specifically denied that he
had strangled the victim. Anderson admitted only that he “did
grab the victim by her coat” so that he could get his wallet and
telephone from her.
Anderson describes this as a “confession.” 26 It clearly was
not a confession to the original charge of strangulation, but
perhaps could be described as such in relation to the charge of
third degree domestic assault to which he pleaded. It cannot
be determined on the appellate record whether this “confes-
sion” was voluntarily made, and thus, we cannot determine on
26
Brief for appellant at 20.
- 993 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
this record whether a motion to suppress the statement would
have had any merit. Neither does the record affirmatively dis-
prove Anderson’s assertion that if the statement would have
been suppressed, he would not have pleaded no contest to the
charge of third degree domestic assault. Therefore, we do not
resolve on direct appeal the merits of this allegation of ineffec-
tive assistance.
CONCLUSION
For the foregoing reasons, we affirm the judgment below.
Affirmed. | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1713714/ | 447 So. 2d 1288 (1984)
Randy HYNUM
v.
George D. SMITH, Father and Next Friend of Connie Smith.
No. 54097.
Supreme Court of Mississippi.
April 4, 1984.
Thomas C. Gerity, Watkins & Eager, Jackson, R. Eugene Parker, Jr., Varner, Parker & Sessums, Vicksburg, for appellant.
Gerald E. Braddock, Ellis, Braddock & Bost, Vicksburg, for appellee.
Before ROY NOBLE LEE, P.J., and HAWKINS and DAN M. LEE, JJ.
DAN M. LEE, Justice, for the Court:
This is an appeal from the Circuit Court of Warren County wherein the trial judge gave the jury a peremptory instruction requiring them to find the defendant/appellant liable while at the same time granting an instruction on contributory negligence thereby leaving the calculation of damages as the sole question for the jury. The jury *1289 returned a verdict of $35,000.00 and upon a motion filed later by plaintiff the trial court stated he erred in granting the contributory negligence instruction and granted a new trial as to damages only unless defendant accepted an additur of $140,000.00 within 10 days. The defendant did not accept the additur and appealed to this Court. Because of previous decisions of this Court our scope of review is limited to determining whether the trial judge abused his discretion in granting the new trial because the verdict was so low as to clearly indicate bias, passion and prejudice of the jury. We reverse.
This case involves an automobile accident which occurred on January 28, 1981, on Highway 61, a four-lane divided highway with two northbound and two southbound lanes. The collision took place near Vicksburg at the entrance to a state-owned truck scale or weigh station. Because the only weigh station is on the western side of the highway, northbound trucks must necessarily cross the southbound lane in order to be weighed. At the point that northbound trucks cross the highway there is a yield sign indicating that they are to yield to southbound traffic before crossing to the weigh station. The collision in the instant case was between a southbound car driven by Connie Smith and a northbound truck crossing to the weigh station driven by Willie Bingham and owned by Randy Hynum. Most of the rest of the facts surrounding this incident are in dispute. Ms. Smith claimed that she was driving in the lefthand lane of the southbound traffic when the 18-wheel truck driven by Willie Bingham pulled out in front of her. She stated that the first time she saw the truck its cab was in the middle of the road in her lane 12 to 15 feet away. She testified that she did not have time to apply her brakes, sound her horn or escape the collision.
Willie Bingham told a different story. He stated that he came to a complete stop at the yield sign to allow another car to pass. Bingham testified that although he saw Ms. Smith's car approaching, he knew that he had time to cross the highway. Bingham testified that the accident occurred after his truck had cleared both lanes of the highway, thereby implying that Ms. Smith's car struck him once he was in the shoulder of the road. Testimony concerning location of the accident debris supported both arguments.
As a result of the collision Ms. Smith was pinned in her car for approximately 35 to 45 minutes. During this time she was in great pain, bleeding and afraid that the vehicle would catch on fire. Once removed from the car, she was taken to a nearby hospital emergency room where she was treated for a number of severe injuries. Among these injuries were a shattered kneecap on her right knee, a broken jaw, broken nose, severe facial lacerations, and the death of a five and one-half month old fetus she was carrying. After treatment in the emergency room, she was removed to surgery where her kneecap was removed and her jaw and nose worked on. The following morning she went into labor and the fetus was delivered dead. Ms. Smith was confined to the hospital for two and one-half weeks and forced to take all nourishment through a straw for two and one-half months following the accident. Her medical bills as a result of the accident totalled $12,590.45.
There was expert medical testimony that as a result of the loss of her kneecap she would have a 10% disability of her lower extremity or 5% of her total body. Also, she would have a 50% disability in her mouth and a 25% disability of her jaw.
Following all of the evidence the court sustained plaintiff's motion for a directed verdict as to liability. Although the court peremptorily instructed the jury to find the defendant guilty of negligence, the court also granted Instruction D-24, an instruction on contributory negligence. The jury returned a verdict of $35,000.00 and the plaintiff entered a motion for a new trial, or in the alternative an additur. In the court's ruling on the motion it stated that should the defendant fail to accept an additur of $140,000.00, thereby raising the total judgment to $175,000.00, a new trial would *1290 be granted on the issue of damages alone. The trial judge held that he had erred when he granted the contributory negligence instruction. He then ruled: "In the absence of negligence of the plaintiff, the verdict of the jury, $35,000.00, was so paltry and inadequate as to evince bias, passion and prejudice." The defense did not accept the additur and the motion for a new trial was granted. On the granting of that motion the defendant brings this appeal.
In a number of cases, this Court has written that its scope of review is limited to determining whether the trial court abused its discretion in granting a motion for a new trial where the defense refuses to accept an additur. Cortez v. Brown, 408 So. 2d 464 (Miss. 1981); Screws v. Parker, 365 So. 2d 633 (Miss. 1978); Walton v. Scott, 365 So. 2d 630 (Miss. 1978); Dorris v. Carr, 330 So. 2d 872 (Miss. 1976). As we stated in Walton, in determining whether the trial court abused its discretion we ask whether the verdict was so paltry as to evince bias, passion or prejudice. If the verdict was so paltry then the trial court cannot be said to have abused its discretion; however, where the verdict is not so unreasonable as to be indicative of those dangers, the granting of a new trial is an abuse of discretion. Indeed this case is virtually controlled by Screws v. Parker, supra.
Review of the record in this cause leave little doubt that Ms. Smith was seriously injured as a result of the collision. Undoubtedly the accident was emotionally traumatic and its consequences quite painful. Had we been jurors attempting to assess the value of Ms. Smith's damages, we may very well have concluded that she was entitled to more than $35,000.00. Regardless, we cannot say that the jury's assessment of her damages evinces bias, passion or prejudice on their part. She was granted a sum nearly three times her medical bills and while she may feel that she is entitled to a greater award, the jury obviously did not. In light of the contributory negligence instruction and conflicting evidence as to how the accident occurred, we would be hard pressed to label the jury's verdict the result of bias, passion or prejudice.
Therefore, based on all of the foregoing, we hereby reverse the trial court's granting of a new trial and reinstate the verdict of the jury at $35,000.00.
REVERSED AND RENDERED.
PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, PRATHER and ROBERTSON, JJ., concur.
BOWLING and SULLIVAN, JJ., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3849375/ | Judgment affirmed on the opinion filed to Nos. 47 and 78, March Term, 1928. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3984238/ | This is the second appeal of this case, On the first, Atwood v. Kelley et al., Tex.Civ.App. 127 S.W.2d 555, the judgment of the trial court, dismissing plaintiff's suit for lack of authority of E. K. Atwood and E. L. Raphael to bring the suit for "Kaufman County Levee Improvement District No. 13," was reversed and cause remanded for trial on the pleadings. Upon the second trial, the decision was recognized by the parties as "the law of the case"; no attempt being made to again challenge the right of Atwood and Raphael to bring suit for the District, and that question was not raised on this appeal, other than by suggestion of plaintiff in error that fundamental error is apparent in the record, hinging the contention merely on stages of the former proceedings.
The suit is brought by "Kaufman County Levee Improvement District No. 13 of Kaufman County, Texas," upon the relation of E. K. Atwood and E. L. Raphael, against H. M. Kelley, Aetna Life Insurance Company and the Southwestern Life Insurance Company, to establish the amount of delinquent taxes for levee improvements on certain described lands which are owned by Kelley, and in which the other defendants are claiming or asserting some right, title or interest, as lienholders, or otherwise; and for foreclosure of an alleged legal tax lien against all defendants.
On August 7, 1939, on trial before the court, judgment was entered in favor of plaintiff, "Kaufman County Levee Improvement District No. 13, of Kaufman County, Texas," and against the defendants "H. M. Kelley, Aetna Life Insurance Company * * * and the Southwestern Life Insurance Company * * *," for the amount of taxes due against the properties described in the petition, but limited execution merely against the properties, and directed foreclosure of the tax lien against each of the said tracts of land separately. The Southwestern Life Insurance Company alone gave notice of appeal, and has attempted to appeal by writ of error.
The record shows that the Southwestern Life Insurance Company appeared by counsel and participated in the trial of this cause, and that, on September 1, 1939, it filed in the court below a petition and bond for writ of error. The petition was directed against the Levee District and H. M. Kelley, defendants in error, and the bond was made payable to the same named defendants. On November 3, 1939, a citation was issued, commanding summons on "W. M. Youngman, C. R. Waldrup, and H. M. Kelley as supervisors of Kaufman *Page 444
County Levee Improvement District Number Thirteen, and H. M. Kelley individually"; and, on the same day, the sheriff made returns showing that he executed the citation by delivery to "W. M. Youngman, C. A. Waldrup and H. M. Kelley," of a true copy thereof. On this state of the record, plaintiff in error, on January 3, 1940, filed transcript and statement of facts with the clerk of this Court.
On February 17, 1940, because of lack of service of the citation in error on the Levee District and H. M. Kelley, individually, the cause, at suggestion of plaintiff in error, was stricken from the docket of this Court, and leave granted to withdraw the transcript for further use in perfecting the appeal, and to again present the cause after obtaining service on the proper defendants in error. On Feb. 28, 1940, alias citation was issued and served on the defendants; and thereafter, on March 5, 1940, the transcript and statement of facts were again filed in this Court.
We think there is no fundamental error apparent in this record; and, furthermore, this Court is without jurisdiction on the attempted appeal.
In May, 1939, the Legislature enacted a statute (Vernon's Ann.Civ.St., Art. 2249a), taking away the right of appeal by writ of error of participants in the actual trial of the case in the court below. The Act became a law immediately upon its passage, effective from and after January 1, 1940. Art. 2267, R.C., provides that appeal by writ of error is perfected when the bond has been filed and previous requirements of that chapter of the statute have been complied with. The phrase "previous requirements," as used in this statute, involves issuance and service of citation in error or the waiver thereof. It has long been the rule that until this has been done, the writ of error remains unperfected, and the appellate court does not acquire jurisdiction of the appeal. Borger v. Morrow, 125 Tex. 321, 82 S.W.2d 944; Campbell v. First National Bank in Lubbock, 125 Tex. 303, 82 S.W.2d 954; Adams v. Bida, 125 Tex. 458,84 S.W.2d 693. As stated above, the petition and bond for this appeal were filed on September 1, 1939, but the citation in error was not filed or served on the defendants in error until after January 1, 1940; therefore, the recent decisions of our Supreme Court make it clear that this attempted appeal by writ of error proceedings was not perfected, and this Court has not acquired jurisdiction over the subject matter. The case has not been removed to this Court so as to confer jurisdiction herein prior to January 1, 1940; United Employers Casualty Co. v. Skinner, Tex.Civ.App. 141 S.W.2d 955, writ denied; Edith Copus et al. v. J. H. Chorn et al., 150 S.W.2d 70, on certified question decided by the Supreme Court April 2, 1941, not yet reported [in State report]; Traders General Insurance Co. v. J. M. Ried, Tex.Civ.App.150 S.W. 74, not yet reported [in State reports], opinion by this court April 5, 1941.
This Court not having acquired jurisdiction over this cause, it becomes our duty to dismiss the appeal; it is so ordered.
Appeal dismissed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4553815/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/07/2020 12:08 AM CDT
- 542 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. VERNON
Cite as 306 Neb. 542
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Courtney J. Vernon, respondent.
___ N.W.2d ___
Filed July 17, 2020. No. S-20-213.
Original action. Judgment of suspension.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
INTRODUCTION
The State Bar of Arizona entered a “Final Judgment and
Order” regarding the respondent, Courtney J. Vernon, on
February 7, 2020. The Counsel for Discipline of the Nebraska
Supreme Court, the relator, filed a motion for reciprocal disci-
pline against the respondent. We grant the motion for recipro-
cal discipline and impose a suspension of 6 months and 1 day.
FACTS
The respondent was admitted to the practice of law in the
State of Nebraska on December 7, 2010, and has also been
admitted to the practice of law in Arizona. She is currently an
inactive member of the Nebraska State Bar Association and
an active member of the State Bar of Arizona.
On February 7, 2020, the State Bar of Arizona issued an
order entered on the consent of the parties that found that
the respondent violated the Arizona Rules of Professional
- 543 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. VERNON
Cite as 306 Neb. 542
Conduct. The order suspended the respondent from the prac-
tice of law for 6 months and 1 day, effective March 9, 2020, to
be followed by 2 years of monitored probation. The respond
ent conditionally admitted that she violated “Rule 41(g), Ariz.
R. Sup. Ct. (Duties and Obligations: members shall avoid
engaging in unprofessional conduct and to advance no fact
prejudicial to the honor or reputation of a party or a wit-
ness unless required by the duties to a client or the tribunal)”
and “Rule 42, ER 8.4(b) (It is professional misconduct for
a lawyer to commit a criminal act that reflects adversely on
the lawyer’s honesty, trustworthiness or fitness as a lawyer in
other respects)” when she was arrested on four separate occa-
sions for conduct while intoxicated.
On March 12, 2020, the relator filed a motion for recipro-
cal discipline pursuant to Neb. Ct. R. § 3-321 of the discipli
nary rules. The motion stated that the above-cited “Arizona
Supreme Court Rule 41(g) and Rules of Professional Conduct
8.4(b)” are in sum and substance the equivalent of Neb. Rev.
Stat. § 7-104 (Reissue 2012) and Neb. Ct. R. of Prof. Cond.
§ 3-508.4(b) and (d) (rev. 2016).
On March 17, 2020, this court filed an order to show cause
as to why it should not impose reciprocal discipline. On
March 19, the relator filed a response that requested reciprocal
discipline of a period of suspension without specification. On
April 3, the respondent filed a response in which she requested
that this court grant her a 3-month suspension or, in the event
that this court agrees with the discipline imposed in Arizona,
that the suspension and probation run concurrently to disci-
pline imposed in Arizona.
ANALYSIS
The basic issues in a disciplinary proceeding against an
attorney are whether discipline should be imposed and, if so,
the type of discipline appropriate under the circumstances.
State ex rel. Counsel for Dis. v. Murphy, 283 Neb. 982, 814
N.W.2d 107 (2012). In a reciprocal discipline proceeding, a
- 544 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. VERNON
Cite as 306 Neb. 542
judicial determination of attorney misconduct in one jurisdic-
tion is generally conclusive proof of guilt and is not subject to
relitigation in the second jurisdiction. Id. Neb. Ct. R. § 3-304
of the disciplinary rules provides that the following may be
considered as discipline for attorney misconduct:
(A) Misconduct shall be grounds for:
(1) Disbarment by the Court; or
(2) Suspension by the Court; or
(3) Probation by the Court in lieu of or subsequent to
suspension, on such terms as the Court may designate; or
(4) Censure and reprimand by the Court; or
(5) Temporary suspension by the Court; or
(6) Private reprimand by the Committee on Inquiry or
Disciplinary Review Board.
(B) The Court may, in its discretion, impose one or
more of the disciplinary sanctions set forth above.
Section 3-321 of the disciplinary rules provides in part:
(A) Upon being disciplined in another jurisdiction, a
member shall promptly inform the Counsel for Discipline
of the discipline imposed. Upon receipt by the Court of
appropriate notice that a member has been disciplined in
another jurisdiction, the Court may enter an order impos-
ing the identical discipline, or greater or lesser discipline
as the Court deems appropriate, or, in its discretion, sus-
pend the member pending the imposition of final disci-
pline in such other jurisdiction.
In imposing attorney discipline, we evaluate each case in light
of its particular facts and circumstances. State ex rel. Counsel
for Dis. v. Murphy, supra.
Upon due consideration of the record, and the facts as
determined by the State Bar of Arizona, we determine that
suspension is appropriate. Therefore, we grant the motion for
reciprocal discipline and impose a suspension of 6 months and
1 day to have commenced on May 1, 2020. We note that the
State Bar of Arizona is monitoring the respondent by requiring
- 545 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. VERNON
Cite as 306 Neb. 542
probation for 2 years following her Arizona suspension, and
we decline to impose probationary terms.
CONCLUSION
The motion for reciprocal discipline is granted. The respond
ent is suspended from the practice of law for 6 months and 1
day to be served starting on May 1, 2020. The respondent
shall comply with all notification requirements by suspended
members provided by Neb. Ct. R. § 3-316 (rev. 2014), and
upon failure to do so, shall be subject to punishment for con-
tempt of this court. The respondent is directed to pay costs
and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and
7-115 (Reissue 2012) and Neb. Ct. R. §§ 3-310(P) (rev. 2019)
and 3-323(B) of the disciplinary rules within 60 days after
an order imposing costs and expenses, if any, is entered by
the court.
Judgment of suspension. | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4553841/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/07/2020 12:08 AM CDT
- 108 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
Allen D. Acklie, appellant, v.
Greater Omaha Packing Co., Inc.,
a Nebraska corporation,
appellee.
___ N.W.2d ___
Filed June 12, 2020. No. S-18-1128.
1. Contracts: Appeal and Error. The construction of a contract is a mat-
ter of law, in connection with which an appellate court has an obligation
to reach an independent, correct conclusion irrespective of the determi-
nations made by the court below.
2. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
3. Contracts. In interpreting a contract, a court must first determine, as a
matter of law, whether the contract is ambiguous.
4. ____. A contract written in clear and unambiguous language is not sub-
ject to interpretation or construction and must be enforced according to
its terms.
5. ____. A contract is ambiguous when a word, phrase, or provision in the
contract has, or is susceptible of, at least two reasonable but conflicting
interpretations or meanings.
6. ____. The determination of whether a contract is ambiguous is to be
made on an objective basis, not by the subjective contentions of the par-
ties suggesting opposing meanings of the disputed language.
7. ____. A contract must receive a reasonable construction and must be
construed as a whole, and if possible, effect must be given to every part
of the contract.
8. Contracts: Proof. A party seeking to enforce a contract has the burden
of establishing the existence of a valid, legally enforceable contract.
9. Contracts. To create a contract, there must be both an offer and an
acceptance; there must also be a meeting of the minds or a binding
mutual understanding between the parties to the contract.
- 109 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
10. ____. It is a fundamental rule that in order to be binding, an agreement
must be definite and certain as to the terms and requirements. It must
identify the subject matter and spell out the essential commitments and
agreements with respect thereto.
11. ____. Generally, mutuality of obligation is an essential element of every
enforceable contract and consists in the obligation on each party to do,
or permit something to be done, in consideration of the act or promise
of the other. Mutuality is absent when only one of the contracting parties
is bound to perform, and the rights of the parties exist at the option of
one only.
12. ____. An agreement which depends upon the wish, will, or pleasure
of one of the parties is illusory and does not constitute an enforce-
able promise.
Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Affirmed.
Ari D. Riekes and Steven J. Riekes, of Marks, Clare &
Richards, L.L.C., for appellant.
Michael F. Coyle, Robert W. Futhey, and Brian J. Fahey, of
Fraser Stryker, P.C., L.L.O., for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Allen D. Acklie brought this breach of contract action
against Greater Omaha Packing Co., Inc. (Greater Omaha).
The matter was tried, and the jury returned a verdict in favor
of Greater Omaha. Acklie appeals, arguing that errors by the
district court necessitate a new trial. Because we determine
that Acklie’s action is based on an unenforceable contract, we
affirm the judgment.
BACKGROUND
Acklie began working for Greater Omaha as a corporate
controller in 1986. Acklie was part of Greater Omaha’s senior
management team and was responsible for supervising the cor-
poration’s financial accounts and managing office staff.
- 110 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
In 1989, the parties purported to enter into a deferred com-
pensation agreement (the agreement). The agreement provides
that in addition to a monthly salary, the company shall pay
Acklie deferred compensation. The agreement further pro-
vides that Greater Omaha would establish a general ledger
account and that the account would be funded at the discre-
tion of Greater Omaha’s board of directors. The agreement
does not contemplate Acklie’s contributing any amount of his
salary to the deferred compensation account. Greater Omaha
entered into similar deferred compensation agreements with
other members of the senior management team.
In 1994, Greater Omaha terminated Acklie’s employment,
and in 2006, Acklie turned 60 years old. In 2011, Acklie
demanded payment from Greater Omaha under the terms of
the agreement. He contended that his right to deferred com-
pensation vested upon his attaining age 60 and that payment
became due on the first day of the first month following his
attaining age 61. The agreement’s vesting provision, paragraph
6, provides:
The Employee’s Deferred Compensation Account shall
be one hundred percent (100%) vested upon and after
the earlier of his completing ten (10) consecutive years
of service commencing the date first above written or his
attaining age Sixty (60), so long as he does not violate
[the agreement’s covenant not to compete provision], or
if he terminates as a result of death.
Greater Omaha refused payment. As a result, in May 2012,
Acklie filed this action against Greater Omaha in the dis-
trict court for Douglas County, asserting claims of breach of
contract and violation of the Nebraska Wage Payment and
Collection Act, see Neb. Rev. Stat. § 48-1228 et seq. (Reissue
2010, Cum. Supp. 2018 & Supp. 2019). Acklie alleged that
Greater Omaha breached the agreement by failing to pay him
the amounts due to him. Acklie alleged that at the time of his
firing in June 1994, the value of his interest in the account
was $18,574.92.
- 111 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
Greater Omaha moved to dismiss the complaint, argu-
ing that Acklie’s rights under the agreement had not vested,
because his employment with the company ended prior to his
turning age 60. The court overruled the motion to dismiss,
finding that the language of paragraph 6 is unambiguous and
does not require that Acklie be employed with Greater Omaha
at the time he turned 60 in order to become fully vested. The
court stated that paragraph 6 has no “language limiting the
receipt of the deferred compensation to employees who were
still employed when they turned the specified age, nor was
there a provision specifying that an employee is not entitled to
any pension not accrued prior to termination.” Greater Omaha
filed an answer.
Acklie then moved for summary judgment. The court
granted Acklie’s motion for summary judgment with respect
to Greater Omaha’s liability for breach of contract and viola-
tion of the Nebraska Wage Payment and Collection Act. The
court found that “the language vesting [Acklie’s] deferred
compensation is unambiguous,” that a valid and enforceable
contract exists between the parties, and that as a matter of
law, Acklie was entitled to an amount equal to the fair mar-
ket value of “the assets placed in the [account] as deferred
compensation to [Acklie].” The court found that based on
Acklie’s claim, pursuant to § 48-1231, he is entitled to costs
and attorney fees not less than 25 percent of the damages to
be determined at trial.
The court found genuine issues of material fact regarding
the amount of Acklie’s damages. Acklie claimed that under
the agreement, he is entitled to the fair market value of the
assets in his deferred compensation account as of October
1, 2007, the first day of the first month following his turn-
ing age 61. Evidence adduced at the hearing showed that
Greater Omaha established a single investment account for
deferred compensation for all eligible employees and used
the account to pay multiple employees pursuant to several
- 112 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
separate deferred compensation agreements. The court noted
that an account record in evidence, dated December 31, 1993,
lists contributions made in 1989 and 1990 for six employees,
including Acklie, as well as their salaries and percent of distri-
bution. The account record indicated that the total value of the
account was $97,170.16 and that Acklie’s share of distribution
was $18,574.92. In a letter dated December 31, 2015, Greater
Omaha stated that, as of September 2007, the fair market value
of the total assets in the account was $98,130.63. Because the
2007 valuation did not itemize the asset distribution for each
employee, there was no evidence of the value of Acklie’s
general ledger account and there was a triable issue of fact
regarding damages.
Prior to the trial on Acklie’s damages, the court conducted
a bench trial on Greater Omaha’s counterclaim for reforma-
tion based on mutual mistakes made in the agreement. Greater
Omaha asked that the court reform the agreement’s covenant
not to compete provision, which prohibits working in the
meatpacking business “within any of the restricted areas,” to
add a schedule specifying that the provision includes Omaha
and Douglas County, Nebraska. In addition, Greater Omaha
asked that the court reform the vesting provision to make
clear that an employee vests upon attaining age 60 only if the
employee is still working at the company. The court found that
Greater Omaha failed to prove that there was a mutual mistake
and dismissed its counterclaim.
At the trial on Acklie’s damages, prior to the opening of
evidence, the court and parties’ counsel discussed the scope
of trial. They recognized that in disposing of Greater Omaha’s
motion to dismiss and Acklie’s motion for summary judg-
ment, the court determined that under the unambiguous mean-
ing of paragraph 6, Acklie’s right had vested. Consequently,
Greater Omaha could not present evidence that Acklie had
not vested. However, the court considered how another provi-
sion of the agreement, paragraph 11, affected the evidence.
- 113 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
Paragraph 11, referred to by Greater Omaha as the “discretion-
ary provision,” 1 provides:
Company’s powers and liabilities. The Company shall
have full power and authority to interpret, and administer
[the] [a]greement. The Company’s interpretations and
construction of any provision or action taken under [the]
[a]greement, including any valuation of the Deferred
Compensation Account, or the amount of recipient of the
payment due under it, shall be binding and conclusive
on all persons for all purposes. No member of the Board
shall be liable to any person for any action taken or omit-
ted in connection with the interpretation and administra-
tion of [the] [a]greement unless attributable to the mem-
ber’s willful misconduct or lack of good faith.
The court found paragraph 11 to be ambiguous when con-
strued with other provisions within the agreement, such as
paragraph 4, which provides for the creation of a deferred
compensation account into which Greater Omaha may dis-
tribute funds, and paragraph 7, which establishes the terms of
the benefits to be paid as deferred compensation. In ruling on
Acklie’s motion for summary judgment, the court found that
pursuant to paragraph 7, Greater Omaha must pay Acklie the
fair market value of the assets in his deferred compensation
account as of the first day of the first month following his
attaining age 61. The court determined that because paragraph
11 conflicts with the terms of paragraphs 4 and 7, the meaning
of paragraph 11 is ambiguous and is therefore a question of
fact for the jury.
Greater Omaha argued that it should be permitted to present
evidence that paragraph 11 gave it the discretion to eliminate
deferred compensation for employees who left the company
prior to attaining age 60 or retiring, so long as the company
did not act in bad faith. The court agreed, stating that Greater
1
Brief for appellee at 1.
- 114 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
Omaha could suggest that Acklie is “entitled to zero, but you
can’t suggest he’s not entitled.” Acklie’s counsel stated that
the court’s ruling conflicted with its prior determination that
Acklie had vested. Acklie’s counsel argued that if paragraph
11 were interpreted to contradict payment terms of the agree-
ment, then the agreement would be unenforceable, but claimed
the agreement is enforceable due to the duty of good faith and
fair dealing. The court stated that the issue of vesting would
not be relitigated.
Trial evidence showed that Greater Omaha contributed
$50,083.23 to the account in 1989 and $26,000 in 1991.
Greater Omaha maintained the investments in the account,
but made no other contributions. Thereafter, Greater Omaha
switched to a 401K compensation plan. The parties stipu-
lated that on September 19, 2007, the account balance was
$98,130.67, and that as of July 2018, the account balance was
$195,274.32. Based on his calculation of the account’s rate of
growth between those two dates, Acklie testified that at the
time of trial, the value of his share was $119,336.86.
Greater Omaha’s president testified that on September
1, 1989, he held an office meeting with several employees,
including Acklie, and presented them with identical deferred
compensation agreements to sign and return. Greater Omaha’s
president testified that Acklie’s account was reduced to zero
because he left the company prior to vesting and that in addi-
tion to Acklie, the company had eliminated deferred compen-
sation for two other employees who left the company prior to
vesting. Greater Omaha’s president stated that under the agree-
ment, this was a matter of the company’s discretion.
At the jury instruction conference, Acklie lodged an objec-
tion to the court’s statement of the case and damages jury
instructions, but the court found no merit to Acklie’s proposed
instructions. The court instructed the jury that as a matter of
law, Acklie’s deferred compensation rights under the agree-
ment had vested. The court instructed the jury that “[v]esting
- 115 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
creates a contractual right that may be upheld by law. A vested
right is fixed, settled, absolute, and not contingent upon any-
thing.” The court instructed the jury that Acklie carried the
burden to prove (1) that Greater Omaha breached the agree-
ment by failing to pay Acklie the amount due under the agree-
ment, (2) that the breach of contract was a proximate cause
of some damage to Acklie, and (3) the nature and extent of
that damage. The court instructed the jury that “[i]f you find
in favor of Acklie on his claim for breach of contract, then
you must determine the amount of Acklie’s damages. Acklie is
entitled to recover the amount of money in the deferred com-
pensation account to which he was entitled . . . .”
The jury returned a verdict in favor of Greater Omaha.
The district court entered judgment on the verdict, and later
overruled Acklie’s motion for new trial. Acklie appealed. We
moved the appeal to our docket pursuant to our statutory
authority to regulate the caseloads of the appellate courts of
this state. 2
ASSIGNMENTS OF ERROR
Acklie assigns that the district court erred in (1) finding
ambiguity in the agreement, (2) refusing proposed jury instruc-
tions, and (3) giving confusing, conflicting jury instructions.
STANDARD OF REVIEW
[1,2] The construction of a contract is a matter of law, in
connection with which an appellate court has an obligation
to reach an independent, correct conclusion irrespective of
the determinations made by the court below. 3 Whether jury
instructions are correct is a question of law, which an appellate
court resolves independently of the lower court’s decision. 4
2
See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018).
3
Johnson Lakes Dev. v. Central Neb. Pub. Power, 254 Neb. 418, 576
N.W.2d 806 (1998).
4
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
- 116 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
ANALYSIS
Acklie argues that the district court erred in determin-
ing that paragraph 11 is ambiguous when construed with
other provisions of the agreement. Acklie contends that para-
graph 11 is not ambiguous and that by finding ambiguity
where it did not exist, the court’s determination confused
the jurors as to whether they were to decide whether Greater
Omaha breached the agreement or were to exclusively con-
sider the damages owed to Acklie. Acklie further argues that
the court should have not permitted Greater Omaha to pre
sent evidence supporting its theory that it denied payment to
Acklie, because the company had denied payment to two pre-
vious employees under the same contract. In response, Greater
Omaha argues that the agreement grants it sole decision-
making authority over whether to contribute to the deferred
compensation account, as well as the amount of any payment
due, and that the district court properly admitted extrinsic
evidence to permit the jury to determine the meaning of
paragraph 11.
[3-7] The issues raised in Acklie’s appeal concern general
contract principles. In interpreting a contract, a court must
first determine, as a matter of law, whether the contract is
ambiguous. 5 A contract written in clear and unambiguous lan-
guage is not subject to interpretation or construction and must
be enforced according to its terms. 6 A contract is ambigu-
ous when a word, phrase, or provision in the contract has,
or is susceptible of, at least two reasonable but conflicting
interpretations or meanings. 7 The determination of whether
a contract is ambiguous is to be made on an objective basis,
not by the subjective contentions of the parties suggesting
5
City of Sidney v. Municipal Energy Agency of Neb., 301 Neb. 147, 917
N.W.2d 826 (2018).
6
Id.
7
Id.
- 117 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
opposing meanings of the disputed language. 8 A contract must
receive a reasonable construction and must be construed as a
whole, and if possible, effect must be given to every part of
the contract. 9
We do not interpret the terms provided within paragraph
11 to be ambiguous. When viewed objectively, paragraph 11
is not susceptible of two reasonable but conflicting meanings.
The provision unmistakably grants Greater Omaha the sole
authority to interpret and administer the agreement. Likewise,
the provision clearly grants Greater Omaha binding author-
ity to determine the valuation of the account and the amount
of any payment due under the agreement. We therefore con-
clude that paragraph 11 is unambiguous and must be under-
stood according to its clear terms, without regard to extrin-
sic evidence.
However, we determine that the plain and ordinary mean-
ing of paragraph 11, as well as paragraph 4, raises an issue
which goes to the heart of Acklie’s appeal: whether the agree-
ment is an enforceable contract under which Acklie could
recover. Acklie’s lawsuit is premised on the claim that Greater
Omaha breached the agreement by failing to pay him the
amount due to him. If, pursuant to our obligation to reach an
independent, correct conclusion irrespective of the determina-
tions made by the court below, we determine the agreement is
unenforceable, then Acklie would be entitled to no relief and
there would be no merit to the assignments of error Acklie has
raised. Therefore, the principal issue before us is whether the
agreement is enforceable.
Deferred compensation is presently earned but is to be paid
to an employee in the future if he or she possesses the qualifi-
cations required by the plan and complies with the conditions
8
Johnson Lakes Dev., supra note 3.
9
Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435
(2018).
- 118 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
prescribed by it. 10 The conditions of the agreement in this case
include the terms of paragraph 11, provided above, which
permits Greater Omaha to take “binding and conclusive”
“action[,]” “including any valuation of the [account], or the
amount of . . . payment due under [the agreement].” In addi-
tion, paragraph 4 states that a general ledger account shall
be established for the purpose of reflecting deferred com-
pensation and that Greater Omaha will annually determine
“an amount” to credit to the account. Critically, paragraph 4
uses clear language qualifying Greater Omaha’s obligation
to fund the account by stating, “The amount of the contribu-
tion and the decision as to whether to make one at all, shall
be solely the decision of [Greater Omaha].” Pursuant to a
plain and ordinary meaning of these terms, the decision of
whether Acklie ever qualifies for payment under the deferred
compensation plan is a matter left to Greater Omaha’s sole
discretion. The agreement clearly grants Greater Omaha the
binding and conclusive authority to decide whether or not to
pay Acklie.
[8-10] A party seeking to enforce a contract has the bur-
den of establishing the existence of a valid, legally enforce-
able contract. 11 To create a contract, there must be both an
offer and an acceptance; there must also be a meeting of the
minds or a binding mutual understanding between the parties
to the contract. 12 It is a fundamental rule that in order to be
binding, an agreement must be definite and certain as to the
terms and requirements. 13 It must identify the subject matter
and spell out the essential commitments and agreements with
respect thereto. 14
10
Sindelar v. Canada Transport, Inc., 246 Neb. 559, 520 N.W.2d 203 (1994).
11
Houghton v. Big Red Keno, 254 Neb. 81, 574 N.W.2d 494 (1998).
12
Id.
13
Davco Realty Co. v. Picnic Foods, Inc., 198 Neb. 193, 252 N.W.2d 142
(1977).
14
Id.
- 119 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
[11] Generally, mutuality of obligation is an essential ele-
ment of every enforceable contract and consists in the obliga-
tion on each party to do, or permit something to be done, in
consideration of the act or promise of the other. 15 Mutuality
is absent when only one of the contracting parties is bound
to perform, and the rights of the parties exist at the option of
one only. 16 One of the most common types of promise that is
too indefinite for legal enforcement is the promise where the
promisor retains an unlimited right to decide later the nature
or extent of his or her performance. 17 In that situation, the
promisor’s unlimited choice in effect destroys the promise
and makes it illusory. 18 An illusory promise is one that is so
indefinite that it cannot be enforced, or by its terms makes
performance optional or entirely discretionary on the part of
the promisor. 19
[12] An agreement which depends upon the wish, will, or
pleasure of one of the parties is illusory and does not consti-
tute an enforceable promise. 20 Without a mutuality of obli-
gation, the agreement lacks consideration and, accordingly,
15
Johnson Lakes Dev., supra note 3; De Los Santos v. Great Western Sugar
Co., 217 Neb. 282, 348 N.W.2d 842 (1984).
16
Id. Accord Hecker v. Ravenna Bank, 237 Neb. 810, 468 N.W.2d 88 (1991).
See, 17 C.J.S. Contracts § 135 (2011); 17A Am. Jur. 2d Contracts § 22
(2016).
17
Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306 (6th Cir. 2000);
Davis v. General Foods Corporation, 21 F. Supp. 445 (S.D.N.Y. 1937).
18
Floss, supra note 17, citing 1 Samuel Williston, A Treatise on the Law
of Contracts § 43 (3d ed. 1957); Davis, supra note 17. See Midland Steel
Sales Co. v. Waterloo Gasoline Engine Co., 9 F.2d 250 (8th Cir. 1925).
19
Fagerstrom v. Amazon.com, Inc., 141 F. Supp. 3d 1051 (S.D. Cal. 2015),
affirmed sub nom. Wiseley v. Amazon.com, Inc., 709 F. Appx. 862 (9th Cir.
2017).
20
Johnson Lakes Dev., supra note 3; Pantano v. McGowan, 247 Neb. 894,
530 N.W.2d 912 (1995), disapproved on other grounds, Weyh v. Gottsch,
303 Neb. 280, 929 N.W.2d 40 (2019); Chadd v. Midwest Franchise Corp.,
226 Neb. 502, 412 N.W.2d 453 (1987).
- 120 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
does not constitute an enforceable agreement. 21 As relevant
here, an agreement to pay such wages as the employer desires
is invalid. 22
In De Los Santos v. Great Western Sugar Co., 23 this court
considered a breach of contract action brought by a contrac-
tor which agreed to transport “‘such tonnage of beets as may
be loaded by’” a sugar company. Because the sugar company
hired other truckers in addition to the contractor, the com-
pany terminated the contractor’s services after 2 months. The
contractor sought to enforce the parties’ agreement, and the
district court granted summary judgment in favor of the sugar
company. On appeal, we stated the sugar company made no
promises other than to pay for the transportation of beets
which were in fact loaded by the company. We found that in
the absence of a contractual provision specifying quantity, the
company was not obligated to use the contractor’s services,
and the company’s decision to cease using those services
is not actionable. 24 In interpreting the contract at issue, we
found that “the right of the defendant to control the amount
of beets loaded onto the plaintiff’s trucks was in effect a
right to terminate the contract at any time, and this rendered
the contract as to its unexecuted portions void for want
of mutuality.” 25
In Davis v. General Foods Corporation, 26 the plaintiff
revealed an idea and recipe to the defendant for fruit flavors
to be used in homemade ice cream. The defendant agreed to
pay the plaintiff reasonable compensation if it used the recipe
21
See Floss, supra note 17.
22
See, Day’s Stores, Inc. v. Hopkins, 573 P.2d 1366 (Wyo. 1978); Varney v.
Ditmars, 217 N.Y. 223, 111 N.E. 822 (1916); Calkins v. Boeing Company,
8 Wash. App. 347, 506 P.2d 329 (1973).
23
De Los Santos, supra note 15, 217 Neb. at 283, 348 N.W.2d at 844.
24
See id.
25
Id. at 286, 348 N.W.2d at 845.
26
Davis, supra note 17.
- 121 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
and idea in its business, and it wrote that any compensation
paid would rest solely in the defendant’s discretion. The court
found the parties’ agreement was so indefinite that it could
not support a binding obligation. The court found that the
defendant’s promise was illusory, reasoning that by agreeing
to the defendant’s unlimited right to decide the compensation
to be paid, the plaintiff was in effect throwing herself upon the
mercy of those with whom she contracted. 27
Applying the foregoing principles to this case, we deter-
mine that Greater Omaha’s promise to pay Acklie deferred
compensation is fatally indefinite. The conditions relating to
payment were not fully determined and were left to the dis-
cretion of one contracting party only. Per the express terms of
the agreement, Acklie’s expectancy interest is no greater than
the possibility of receiving payment from Greater Omaha,
unless Greater Omaha chose not to make such a payment.
These terms did not create a binding contract or one under
which Acklie could establish a right to any specific funds. 28
One of the primary reasons that an illusory promise is unen-
forceable is that the indefiniteness of such a promise pre-
cludes the court from being able to fix exactly the legal liabil-
ity of the parties to the contract. 29 We find that the indefinite
features of the agreement here are like those addressed in
De Los Santos and Davis, because Greater Omaha’s right to
control the amount of payment due, if any, is in effect a right
to terminate the contract at any time. Accordingly, the agree-
ment is not a valid, legally enforceable contract under which
Acklie could recover.
The arguments made by Acklie and Greater Omaha in
anticipation of a determination that the agreement is unen-
forceable are not persuasive. While both parties contend that
27
See id.
28
See, Charter Inv. & Dev. Co. v. Urban Med. Serv., 136 Ga. App. 297, 220
S.E.2d 784 (1975); Calkins, supra note 22.
29
Fagerstrom, supra note 19.
- 122 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
the duty of good faith and fair dealing saves the agreement
from being rendered illusory, they provide no legal authority
demonstrating why such is the case under the circumstances of
this case. To be sure, there are circumstances under which the
duty of good faith and fair dealing is sufficient to avoid the
finding of an illusory promise. 30 However, this case does not
present such a circumstance, because the illusory nature of the
agreement stems from its express terms, and Greater Omaha’s
exercise of rights clearly granted to it cannot constitute bad
faith on its part. 31
The implied covenant of good faith and fair dealing exists in
every contract and requires that none of the parties to the con-
tract do anything which will injure the right of another party
to receive the benefit of the contract. 32 However, in order for
the implied covenant of good faith and fair dealing to apply,
there must be in existence a legally enforceable contractual
agreement. 33 In the case at bar, we have held that Acklie failed
to prove the existence of an enforceable contract. Therefore,
the implied covenant of good faith and fair dealing does not
save the agreement from being rendered illusory.
Additionally, there is no merit to the argument that the
covenant not to compete provision saves the agreement from
being rendered illusory. No party challenged the district
court’s conclusion that the covenant not to compete provision
is unenforceable, because it prohibits only working “within
any of the restricted areas” and the agreement does not specify
any restricted areas. Moreover, the fact that Greater Omaha
30
See, Milenbach v. C.I.R., 318 F.3d 924 (9th Cir. 2003); Fagerstrom, supra
note 19; Corthell v. Summit Thread Co., 132 Me. 94, 167 A. 79 (1933);
Horizon Corp. v. Westcor, Inc., 142 Ariz. 129, 688 P.2d 1021 (Ariz. App.
1984); Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410 (1973).
See, also, Chadd, supra note 20.
31
See De Los Santos, supra note 15.
32
Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d 390 (2003).
33
Cimino v. FirsTier Bank, 247 Neb. 797, 530 N.W.2d 606 (1995).
- 123 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
ACKLIE v. GREATER OMAHA PACKING CO.
Cite as 306 Neb. 108
made two contributions does not create an enforceable agree-
ment, because the contract’s unambiguous language imposes
no obligation upon Greater Omaha to pay Acklie any money
from the account.
Because the agreement lacks mutuality of obligation, the
agreement does not create a binding obligation, making the
agreement unenforceable. Because the agreement is unenforce-
able, all of Acklie’s claims fail as a matter of law. Where
the record adequately demonstrates that the decision of a
trial court is correct—although such correctness is based on
a ground or reason different from that assigned by the trial
court—an appellate court will affirm. 34 Because we find that
Acklie cannot recover under the agreement, we need not
address his remaining assignments of error.
CONCLUSION
For the foregoing reasons, the judgment is affirmed.
Affirmed.
34
State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018). | 01-03-2023 | 08-07-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3391549/ | Appellant was informed against in the Circuit Court of Marion County, Florida, charged with the offense of manslaughter in the negligent operation of a motor-driven vehicle resulting in the death of a person who was riding with him in a Ford truck when that truck collided with two other automobiles.
Appellant presents two questions. The first challenges the sufficiency of the affidavit of the State's Attorney verifying the information and the other challenges the sufficiency of the evidence to sustain the verdict.
The affidavit of the State's Attorney is in the following language: *Page 662
"STATE OF FLORIDA "COUNTY OF MARION.
"Personally appeared before me, J.W. Hunter, State Attorney for Fifth Judicial Circuit of Florida, in and for Marion County, who first being duly sworn, says that the allegations as set forth in the foregoing information are based upon facts that have been sworn to as true, and which if true, would constitute the offense therein charged."
Section 10 of the Declaration of Rights as amended by adoption at the general election of 1934, provides:
"Section 10. No person shall be tried for a capital crime unless on presentment or indictment by a grand jury, and no person shall be tried for other felony unless on presentment or indictment by a grand jury, or upon information under oath filed by the prosecuting attorney of the court wherein the information is filed." . . .
Subsection 2 of Section 279, Chapter 19554, Acts of 1939, Florida Criminal Procedure Act, provides:
"2. An information shall be in the same form and signed by the prosecuting attorney who shall also append thereto the oath of the prosecuting attorney to the effect following:
"Personally appeared before me __________ (official title of prosecuting attorney) who being first duly sworn, says that the allegations as set forth in the foregoing information are based upon facts that have been sworn to as true, and which, if true, would constitute the offense therein charged, which affidavit shall be made by the prosecuting attorney before some person qualified to administer an oath."
Section 5976 R. G. S., 8257 C. G. L., contained the *Page 663
same requirements as to the oath which are contained in Subsection 2 of Sec. 279, supra.
The affidavit in the instant case meets the requirements of the statute. When the statutory requirement is met and complied with the requirements of the Constitution, supra, are satisfied. See Kurtz v. State, 26 Fla. 351, 7 So. 869; Ransom v. State, 26 Fla. 364, 7 So. 860, Tuberson v. State, 26 Fla. 472, 7 So. 858; Anderson v. State, 134 Fla. 290, 183 So. 735; Cortes v. State, 135 Fla. 589, 185 So. 323.
The record has been examined and the evidence is found amply sufficient to support the finding of the jury that the defendant was criminally negligent in the operation of the motor vehicle which he was driving on the public highway and that such negligence was the direct and proximate cause of the injury and death.
On the entire record no reversible error is made to appear. The judgment is affirmed.
So ordered.
BROWN, C. J., WHITFIELD and ADAMS, J. J., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3391552/ | I concurred in the opinion in the case of State ex rel Lorenz v. Lorenz, cited in the above Per Curiam opinion and order, but I do not think that the cited case is applicable here.
On January 30, 1941, Mildred N. Cox filed her motion to vacate the decree pro confesso and the final decree which had been entered on August 3, 1938, which motion alleged that plaintiff had practiced a fraud upon the court in said divorce proceedings, in that it was not instituted in good faith, that he made a false affidavit for process by publication and gave false testimony on the merits of the cause before the examiner, and that she, the defendant, had no notice of said suit as required by law and did not learn definitely of it until a comparatively short time previously. The order vacating said decree pro confesso and final decree relate that: "After due notice to the said William R. Cox and his counsel John R. Parkhill, both by letter and telegram, of this hearing, the court proceeded to hear ore tenus the testimony of the movant, and upon that and other evidentiary matter filed in evidence, the court is of the opinion that the motion should be granted and the said decree vacated and set aside, and the defendant allowed to file answer to the bill of complaint therein."
Then the court proceeded to make an order, appropriate to his above stated conclusions, and the next day, Mildred N. Cox filed her answer and counterclaim.
It will be observed that no notice was given to Lee Lamar Cox, the second wife of William R. Cox, whom *Page 282
the latter had married after the rendition of the divorce decree of August 3, 1938.
At the time this motion to vacate was filed on January 30, 1941, and at the time said order vacating the decree pro confesso and final decree was entered and filed on December 19, 1941, the case of State ex rel Lorenz v. Lorenz had not been handed down by this court. Indeed it was not handed down for some two and a half months later, towit: on March 3, 1942. The excellent opinion of Mr. Justice THOMAS in the Lorenz case recognized the fact that prior to the decision of this court in that case this court had recognized that while a bill in the nature of a bill of review was the more appropriate remedy, the procedure by way of motion could be availed of in cases of this kind, as shown by the decisions cited by Mr. Justice THOMAS in his opinion in the Lorenz case.
The motion to vacate the final decree in this case was quite full and complete, and it might just as appropriately have been labelled as a bill in the nature of a bill of review, or as an independent bill for the impeachment of a prior final decree on the ground of fraud in its procurement, except that it did not have the prayer for the issuance of process in the form which would be applicable to such a bill. It was also defective in that it did not make the second wife, Lee Lamar Cox, a party respondent. This second wife manifestly had a vital interest in maintaining the integrity and full force and effect of the decree of divorce, upon the strength of which she had married said William R. Cox.
No objection was filed to the propriety of the attack on the final decree by way of motion. *Page 283
As a general rule, a Circuit Judge will not be held in error where he acts in accordance with the law and the decisions of this court as they stood at the time his action was taken, and especially is this true with reference to procedural matters. And in so far as William R. Cox is concerned I think that by failing to object he waived the procedural point.
But it seems to me that a fundamental error was committed in the omission of the drafter of the motion to ask for process or notice to Lee Lamar Cox, and likewise in the rendition of the order vacating the divorce decree without giving Lee Lamar Cox due notice and an opportunity to be heard. So far as the record discloses, this was not done. As I see it, the constitutional right of due process of law required that this second wife be given such due notice and an opportunity to be heard before any order was made vacating the divorce decree, which decree she no doubt relied upon when she subsequently married William R. Cox. See Mayflower Inv. Co. v. Brill, 137 Fla. 287, 188 So. 205. It is true that there is in the file a motion that the court issue a rule to show cause against Lee Lamar Cox, upon the ground that she had testified as a witness in the divorce proceedings and that her testimony was false in certain material particulars, but notice of this motion does not appear to have been served upon her and no order appears to have been made thereon.
In view of our previous decisions I do not think that a retroactive effect should be given in this case to our opinion and decision in the Lorenz case.
But for the reasons above pointed out, I concur in the judgment rendered by the Court in this case. *Page 284 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3847582/ | Plaintiff is a taxpayer of the City of Philadelphia and the owner of two of its bonds. Defendants are (1) the members of the Philadelphia Authority (hereinafter referred to as the Authority), a corporation organized under *Page 268
the "Municipality Authorities Act" of June 28, 1935, P. L. 463, as amended, and (2) the Mayor and the Director of Public Works of the City of Philadelphia.
This action was brought by the plaintiff to enjoin defendants from carrying out a plan whereby the City of Philadelphia will transfer to the Authority its sewer and water properties and then lease them back from the Authority at rentals sufficient to pay off, over a period of time, the principal and interest of any bonds which may be issued by the Authority to raise funds with which to improve the properties.
The properties involved are the water supply system and the sewer system of the City; the former was built and improved over a period of years at a cost in excess of $80,000,000, and the latter, at a cost of over $90,000,000. A large portion of the funds invested in these properties was raised by the sale of bonds; in the case of the water system the amount so raised was $44,985,000 and in the case of the sewer system the amount was $40,409,838. A large part of the cost of the sewer system was also raised by assessments against adjacent property owners. The City at present does not make any charge for the use of the sewer system. However, it does make a charge for water supply. For the years 1930 to 1937, inclusive, the average annual gross revenue from the water supply system was $6,715,124.91, the average annual operating expenses were $2,506,332.70, the average annual earnings in excess of operating expenses were $4,208,792.21. The average payment of interest and Sinking Fund charges on the water debt was $1,538,934, leaving an average annual net revenue of $2,669,858.21. For 1937 the net revenue was approximately $3,500,000.
The authorized and outstanding indebtedness of the City of Philadelphia, after all deduction allowable by law, has reached the debt limit fixed for the City by the State Constitution. The City's borrowing power is therefore at this time exhausted. *Page 269
The Authority was incorporated on September 20, 1938, and has made application to the Federal Emergency Administration of Public Works for grants under the provisions of the United States statute of June 16, 1933, C. 90 (National Industrial Recovery Act) 48 Stat. 200 et seq.; U S C A 40, sec. 401 et seq., the amendments, supplements and extensions thereof, for thirteen different projects, for the purpose of improving and extending both the water supply and sewer systems. The contemplated improvements and extensions will cost approximately $60,000,000; $20,000,000 of which is to be spent on the water system and $40,000,000 on the sewer system. The grants applied for are for 45% of the total amount, i. e., $27,000,000. The balance of $33,000,000 is to be supplied by the Authority and to be secured by it by a loan evidenced by the bonds of the Authority.
At the Authority's request, the City adopted resolutions on October 20, 1938, declaring its purpose to execute a contract with the Authority, under the terms of which the City will transfer to the Authority the water supply system and the sewer system, for the improvements and extensions of these systems by the Authority and for the lease of these systems by the Authority to the City for thirty years, on an annual rental basis sufficient to pay, over a twenty-nine-year period, the interest charges and to pay off the principal of the Authority's bonds in full, plus 10% to be paid into a reserve fund to be maintained at one-fifteenth of the total amount of bonds outstanding, plus an amount sufficient to pay the Authority's expenses. The City is to retain possession of the systems, to maintain and operate the same, to receive all revenues derived from consumers or users of such facilities and to pay the aforesaid rental and all operating and maintenance costs.
Plaintiff complains that the proposed contract contains "no provision for the conveyance back of the property or of the extensions and improvements, to the City." Defendants say: "At the end of the lease period, title *Page 270
and ownership of the property will be in the Authority unless, by operation of law or by the exercise of the City of rights under the law, some other result is effected." Section 14 of the "Municipality Authorities Act" of 1935, supra, as amended by the Act of May 20, 1937, P. L. 739, provides: "When any Authority shall have finally paid and discharged all bonds which, together with the interest due thereon, shall have been secured by a pledge of any of the revenues or receipts of a project, it may (subject to any agreements concerning the operation or disposition of such project) convey such project to the municipality." This section also provides that when the Authority shall have paid all its debts "it may convey all its property to the municipality and terminate its existence," and that when the Authority files a certificate of termination, if the certificate is approved by the municipality creating the Authority, the same shall be recorded in the office of the recorder of deeds of the county and "thereupon the property of the Authority shall pass to the municipality . . . and the Authority shall cease to exist." Amended section 18 of the Act provides: "If a project shall have been established under this act by a board appointed by a municipality or municipalities, which project is of a character which the municipality or municipalities have power to establish, maintain, or operate, and such municipality or municipalities desire to acquire the same, it or they may by appropriate resolution or ordinance, adopted by the proper Authorities, signify its or their desire to do so, and thereupon the Authorities shall convey by appropriate instrument said project to such municipality, or municipalities, upon the assumption by the latter of all the obligations incurred by the Authorities with respect to that project." This section makes it clear that the City of Philadelphia may secure the reconveyance to itself of the projects now under review upon its desire so to do, followed by appropriate action and the assumption of the projects' obligations. *Page 271
It is also clear that this proposed project is a self-liquidating one, for the rental to be paid by the City to the Authority, under the proposed contract of lease, will approximate $1,950,000 a year and will be sufficient to enable the Authority to meet its administration costs and all charges on the debt incurred by it. The City intends to impose a charge on the users of its sewer facilities. The proposed agreement between the Authority and the City provides, inter alia, as follows: "The City shall charge and collect water rentals from the consumers of water and may also charge and collect sewer rentals or charges from the users of the sewers. The total of the rentals . . . for water and for sewers . . . will be sufficient to pay the operating and maintenance costs of the water supply works and system and the sewers . . . [each year] and 133 1/3 per cent of the rental payable under the terms of the lease in that year." It is understood that the Citywill impose an adequate charge for sewerage service. This charge, together with the charge for water, will make the project self-liquidating. Since it is self-liquidating, it will add nothing to the City's indebtedness.
Plaintiff in his bill avers, inter alia, the following: The City is without current revenues or funds available for such rental, and it has had deficits during each of the past five years that now total approximately $38,493,000; that its estimated revenues will not be sufficient to meet its estimated expenses for the fiscal year 1939; and that if the proposed contract is entered into the obligation to pay the rental reserved thereunder would result in an increase of the indebtedness of the City. "The improvements and additions to the water and sewer systems are to be made over a period of time in the future, and, since the City now owns and operates the systems without cost to it, except for the actual operating costs, it will not presently receive any benefit from the contract . . . and it will not for a considerable period in the future, and may never, receive benefits commensurate with the *Page 272
annual consideration it will be compelled to pay." Plaintiff further avers that the "Municipality Authorities Act," supra, and the proposed contract are unconstitutional and quotes several sections of the Pennsylvania Constitution which he alleges they violate; that in conveying both the water and sewer systems the City is doing so in its proprietary or private capacity, rather than in its governmental capacity; "that the legislature is not empowered to authorize a municipality to convey, without consideration or with a nominal consideration, to an Authority, property owned by it in its proprietary capacity, as distinguished from property owned by it in its governmental capacity"; that the "Municipality Authorities Act" does not "authorize the conveyance of the water supply system to the Authority"; that the City in conveying these systems is parting with a valuable asset, the water system being a producer of revenue and the sewer system a potential income producer, and that their conveyance would therefore be in derogation of the rights of the taxpayers and the holders of City bonds and would diminish the security for these bonds; that the conveyance of the sewer system would also be in derogation of the rights of abutting landowners and users of the sewers who were assessed part of the cost of construction thereof; and that the conveyance, without consideration or for a nominal consideration, is in violation of the Act of May 16, 1929, P. L. 1773, as amended by the Act of May 28, 1937, P. L. 1010, requiring that where the City sells a capital asset, the funds received from such sale shall be deposited in the sinking funds for the redemption of any bonds that were sold and the proceeds of which were used to pay for said property, and which remain unpaid at the time of the sale of said property."
Plaintiff therefore prays that an injunction be issued enjoining defendants from (1) "carrying into effect the provisions of the Municipality Authorities Act," supra, (2) "entering into the proposed contract . . . for the *Page 273
transfer of the property . . . or obligating the City to pay any rental . . . for the use of the property," (3) "making, constructing and erecting any public works or improvements whatsoever," and (4) "executing and delivering any bonds or other evidences of indebtedness, and any trust indenture or other instrument purporting to secure any such bonds or evidences of indebtedness," and that the Municipality Authorities Act, supra, as amended, be declared unconstitutional.
In passing upon the constitutionality of acts of assembly this court neither commends nor questions the wisdom of the acts it judges. Its concern is with legislative power and not with legislative policy. In determining whether a measure is one which the legislature had the power to enact into law, this court starts with the presumption in favor of its validity. This rule this court has steadily adhered to since the foundation of the Commonwealth. If it is clear that the statute challenged breaches the Constitution of nation or state, it is our duty to say so. But when it is not clear that the statute challenged conflicts with the Constitution, it is our duty to uphold it.
The challenge that the Authorities Act contravenes Article I, section 17, of the Constitution of Pennsylvania, in that it makes an irrevocable grant of special privileges, we overrule. The pledge in the Act, to "not limit or alter the rights hereby vested in the Authority until all bonds at any time issued, together with the interest thereon, are fully met and discharged," is not an irrevocable one, for it ends when the obligations assumed by the Authority are fully discharged. SeeKelley v. Earle, 320 Pa. 449, 182 A. 501.
The challenge that the Act contravenes Article II, section 1, of our State Constitution, in that it creates a delegation of legislative power, we overrule. Powers similar to those granted under this Act were granted in the Second Class County Authorities Act and they were held not to be in contravention of the above section of *Page 274
the Constitution. See Tranter v. Allegheny County Authority,316 Pa. 65, 173 A. 289; Kelley v. Earle, 325 Pa. 337 (2nd case), 190 A. 140; and Dornan v. Phila. Housing Authority,331 Pa. 209, 200 A. 834.
The challenge that the Act contravenes Article III, section 7, of our State Constitution, in that it is a local or special law regulating the affairs of a city, creating a corporation and granting powers and privileges in a case where such powers have been provided for by general law, we overrule. This same challenge was made in the Second Class County Authorities Act and the General State Authorities Act and in each case this court found the challenges not well taken. See cases cited in the preceding paragraph.
The challenge that the Act contravenes Article III, section 20, of our State Constitution, in that it "delegates to a special commission, private corporation or association, power to make, supervise or interfere with any municipal improvement, money, property or effects," we overrule. The same challenge was made in the cases just cited and was not sustained. The decisions there are controlling here. In the Tranter Case
(supra) this court declared: "It cannot be said that the creation of a public corporation as a state agency to take over public highways for the limited purpose of improving them, paying for the improvement out of revenues collected for their use, and then returning them to the local political subdivisions to which they had formerly been entrusted by the state, is a special commission, in any sense in which those words were used in the constitution, either in substance or spirit."
The challenge that the exemption of the bonds and property of the Authority from taxation, contravenes Sections 1, 2 and 3 of Article IX of our State Constitution, is overruled on the authority of the second Kelley v. Earle Case, 325 Pa. 337,190 A. 140, in which it was held that the legislature may exempt from taxation the *Page 275
bonds of governmental instrumentalities. See also Dornan v.Phila. Housing Authority (supra).
The challenge that the Act contravenes Article IX, section 7, of our State Constitution, in that the proposed contract makes the City a "stockholder" in the Authority and results in "a loan of the City's credit" to the Authority, is overruled. The same challenge under a similar state of facts was made in theTranter Case (supra) and was found by this court to be without merit.
The challenge that the Act and the contracts proposed to be entered into pursuant to it violate Article IX, section 8, of our State Constitution which prescribes the debt limits and the methods of incurring debt by a municipality and the challenge that Article IX, section 10, of our State Constitution requiring the imposition of an annual tax sufficient to pay the debt charges at the time of incurring the debt is also violated, are both overruled. Section 4 of the Municipality Authorities Act contains the following provision: ". . . the Authority shall have no power at any time or in any manner to pledge the credit or taxing power of the Commonwealth of Pennsylvania or any political subdivisions, nor shall any of its obligations be deemed to be obligations of the Commonwealth of Pennsylvania or of any of its political subdivisions, nor shall the Commonwealth of Pennsylvania, or any political subdivision thereof, be liable for the payment of principal of or interest on such obligations." This language is the same as that used in section 4 of the General State Authorities Act and substantially similar language is used in section 501 of the Second Class County Authorities Act. As these acts were upheld in the Tranter Case (supra) and the second Kelley v. Earle Case
(supra), the decisions in these cases are decisive of the question posed in this paragraph.
It is contended by the plaintiff that the execution of the contract of lease for a term of thirty years and the agreement to pay the stipulated rent will result in an increase of the indebtedness of the City, which indebtedness *Page 276
has already reached the constitutional limit. The answer to that is, as we have already pointed out, that the rental to be paid by the City to the Authority from water and sewer rentals will be sufficient to meet the Authority's administration costs and all the charges of the debt incurred, and therefore there will be no increase in the City's indebtedness. Under the contract between the City and the Authority, sewer and water receipts are to be pledged to the extent necessary to assure payment of the rent agreed to be paid by the City to the Authority.
Plaintiff further contends that "if the Authorities Act could be construed to authorize the transfer to the Authority of existing water works, it violates sections 1 and 9 of Article I of the State Constitution and section 1 of the Fourteenth Amendment of the Federal Constitution. Section 1 of the former contains a statement of the inherent rights of man as to the acquisition of property, etc. Section 9 is a prohibition against deprivation of a man's "life, liberty or property, unless by the judgment of his peers or the law of the land." Section 1 of the 14th Amendment of the Federal Constitution is the well-known "due process" clause. The argument of plaintiff is that the water supply system is owned by the City in its proprietary capacity and that supplying water is not a governmental function, that "the State has no special power over the property held by the City in its proprietary capacity" and that therefore any attempted alienation of this property by the municipal authorities is a taking of the people's property without due process of law. Defendants concede that the City's ownership of the water works is proprietary. In Shirk v.Lancaster City, 313 Pa. 158, 169 A. 557, this court held that the "property employed by a municipality in furnishing water to its inhabitants is not used for governmental purposes, and in its ownership and operation the municipality acts in its proprietary character." The Act of March 11, 1789, 2 Sm. L. 463, provides expressly that the City may "grant, bargain, sell, alien and convey, *Page 277
mortgage, pledge, charge and encumber or demise and dispose of" at its will and pleasure all types of property there enumerated. This court declared in Baily v. Phila., 184 Pa. 594,39 A. 494: ". . . the right of alienation is given in express words in the charter of 1789, all the powers granted in which were preserved by the consolidation act (Act of February 2, 1854, sec. 6, P. L. 25) and which appears to be still in force: Com. v. Walton, 182 Pa. 373 [38 A. 790]. And the right is not taken away by the Act of 1885 [the Bullitt Bill] which, as already said, merely regulates the mode of exercise of executive, and incidentally of legislative, functions without changing the rights which appertain to those functions." The state can authorize its creature, the City, to transfer its sewer system to the Authority created by the state. This Authority was created for the improvement of property which ministers to the public welfare. It exercises its functions through a Board selected by the legislative body of the city. Sections 14 and 18 of the Authorities Act limit the title of the Authority in the property to be conveyed to it and section 6 of the Act protects the property conveyed to the Authority against sale, assignment, mortgage or other disposition by any receiver who may be appointed after default in the payment of principal or interest on any of the Authority bonds and who may, pursuant to order of court, take possession of the facilities of the Authority, or any part or parts thereof, the revenues or receipts from which are or may be applicable to the payment of the bonds so in default, and operate and maintain the same and collect and receive all rentals and other revenues thereafter arising therefrom in the same manner as the Authority or the board might do.
At the argument plaintiff's counsel stressed the fact that a large part of the city's bonded indebtedness was incurred by the sale of bonds whose proceeds were invested in a water supply system and a sewer system. Plaintiff says in his paper book: "It is true that there *Page 278
is no specific lien provided for in the bonds sold to plaintiff on either the properties or revenues. There is, however, a specific representation that a portion of the proceeds are to be used in the construction and improvement of the two systems involved. It was on this basis plaintiff, or his predecessor in title, loaned his money. The proposed transfer of the properties and pledge of the revenues to the Authority deprive plaintiff of a very substantial asset which he had a right to assume would be retained for the protection of his investment. For this additional reason, we submit that the proposed plan is invalid."
Plaintiff also calls attention to the Act of May 16, 1929, P. L. 1773, as amended by the Act of May 28, 1937, P. L. 1010, (53 PS 1992) which provides that when a municipality has been duly authorized, pursuant to the Act of April 20, 1874, P. L. 65, and the amendments thereto, "to increase its indebtedness to an amount exceeding two (2) per centum of the last preceding assessed valuation of the taxable property therein, with the assent of the electors thereof, and the corporate authorities, having acquired by fee simple any property by use of said funds, and the corporate authorities shall deem it for public interest to abandon the use of said property for the purpose as purchased, either in whole or in part, and, by either ordinance or resolution, shall so provide, then the said corporate authorities shall be and are hereby authorized to dispose of said property so acquired; and the funds so received from said properties shall be deposited in the funds of said public corporation, for the redemption of any bonds that were sold and used to pay for said property, remaining unpaid at the time of the sale of said property, or of any outstanding bonds issuedand used to refund bonds so sold and used."
It is obvious that, as plaintiff concedes, "there is no specific lien provided for in the bonds sold to plaintiff on either the properties or revenues," plaintiff is in no *Page 279
position, either as a bondholder or as a taxpayer, to challenge the city's proposed action in respect to its water and sewer systems. A holder of bonds such as those held by the plaintiff has as his security the city's credit and solvency and these rest on the valuation of the properties which are subject to taxation in the city and on the power the law gives a bondholder to compel the city to levy and collect taxes to discharge the city's contractual obligations as expressed in its bonds. Article IX, section 8, of the Constitution requires any municipality incurring any indebtedness to provide for the collection of an annual tax sufficient to pay the interest and also the principal thereof within thirty years. The City ordinances have complied with these requirements. The revenues to be derived from the city's water system and to be derived from the sewer system (for the City Solicitor states in his brief: "Sewer charges will be imposed at rates and in amounts in excess of the requirements for the rental from the City to the Authority on that property"), will not be diverted to any private or improper use but will be used to defray the cost of constructing and maintaining at a high degree of efficiency improved water and sewer systems, which systems are most vital to the health and well-being of the 2,000,000 inhabitants of Philadelphia. The expenditures to be made are not for municipal luxuries but for municipal necessities. The State Sanitary Water Board has heretofore made formal demand on the City of Philadelphia to provide for a complete system of sewage treatment and disposal and has ordered it to desist from discharging any untreated sewage into the Delaware and Schuylkill Rivers and has threatened to take legal action to force the accomplishment of these ends under the provisions of the Act of June 22, 1937, P. L. 1987. In the brief filed in this court by the Interstate Commission on the Delaware River Basin, appears this statement: "We have too long neglected caring for the wastes which arise as the result of a dense population and a great industrial development. *Page 280
Now that ways and means of overcoming the financial difficulties have been found, there should no longer be delay in prosecuting these public works which mean so much to the future prosperity of the people inhabiting the Delaware River Basin." Through the instrumentality of the City Authority, the taxpayers, instead of being compelled to pay 100% of the financial burden entailed, are relieved of 45% of it through a contribution of $27,000,000 from the Federal treasury, or in whatever amount the grant may be made. The assumption of a55% burden thus gives rise to a 100% benefit. A city without an adequate water system and an efficient sanitary sewer system suffers in civic prestige and places the lives and health of its citizens in jeopardy. All of a city's inhabitants are its taxpayers, either directly or indirectly. Whatever benefits the former, benefits the latter. When taxpayers are benefited, bondholders have cause for rejoicing rather than for complaint.
The laws and the municipal actions pursuant to them, all of which bring these self-liquidating projects into being, do not trench upon any provision of either the State or the Federal Constitution. All challenges made to their validity are overruled.
We are unanimously of the opinion that the Municipality Authorities Act of June 28, 1935, P. L. 463, as amended by the Act of May 20, 1937, P. L. 739, as it relates to the Philadelphia Authority of the City of Philadelphia and providing, as the proposed contract does, for self-liquidating projects, is constitutional.
The City Solicitor having stated in open court that a rental charge would be made for sewers sufficient to make the sewer projects self-liquidating, and also to avoid requiring any contribution out of the general tax levy, the judgment of this court is rendered on the express condition that such sewer rental shall be established and collected, and further that such sewer rental, together with all water receipts, shall nevertheless be *Page 281
used by the City in its budget as factors in estimating its gross current revenue.
The bill is dismissed, costs to be paid by the Authority. | 01-03-2023 | 07-06-2016 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.