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https://www.courtlistener.com/api/rest/v3/opinions/150899/	NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued July 7, 2010 Decided July 16, 2010 Before JOEL M. FLAUM, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 09‐4059 SANDRO SEGURA‐FELIPE, Petition for Review of an Order of the Board Petitioner, of Immigration Appeals. v. No. A089‐273‐726 ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. O R D E R An immigration officer questioned Sandro Segura‐Felipe over the phone while he was detained in the Kane County Jail for another offense. In that conversation, Segura said that he was from Mexico and had entered the United States unlawfully. Based on his admissions, the government issued a notice to appear, and an immigration judge ordered him removed. On appeal he raises several procedural challenges, including an argument that the questioning that led to his admissions violated a constitutional right to counsel. We deny the petition for review. No. 09‐4059 Page 2 Segura is a Mexican citizen who entered the United States without inspection. In 2008 he was pulled over for a traffic violation. As a result of the ensuing search, he was convicted of possessing fraudulent identification. While he was in the Kane County Jail, immigration officials asked him about his status and documented their findings in a Form I‐ 213,1 known as a “record of deportable alien.” Soon thereafter the Department of Homeland Security issued a notice to appear charging him as removable for being present without admission or parole, see 8 U.S.C. § 1182(a)(6)(A)(i), and for being convicted of a crime (possessing fraudulent identification) involving moral turpitude, see id. § 1182(a)(2)(A)(i)(I). At his initial hearing before an immigration judge, Segura, through his attorney, asserted that he had not been properly served with the notice to appear. He had been served twice, but puzzlingly, he denied having a copy of the notice. To dispel any confusion, the IJ asked the government to serve him with an additional copy in court. The charges were also read aloud during the hearing, and translated for him into Spanish by an interpreter. The IJ asked Segura a few questions about his wife, a Mexican citizen, and his U.S.‐born children. The IJ ended the hearing by granting a continuance for nearly four months, so that Segura could discuss his options with his attorney. At the second hearing, counsel filed a motion to terminate the case for improper service, arguing that Segura had been served with two different notices to appear that listed separate charges. But the two notices—copies of which he attached to the motion—were worded identically. After submitting the motion, counsel sought another continuance to file a supporting brief. The IJ responded that he was not going to continue the case beyond that day, noting that Segura had already been served with the notice to appear three separate times, the last time even in court. The IJ went on to say that he did not see any reason why the hearing could not be resumed and the issue resolved by asking Segura about the notices he received. Since Segura did not admit being removable, the government sought to prove removability by submitting an I‐213 Form. The form states that Segura is a Mexican citizen, entered the United States without being admitted in 2003, and was convicted of possessing fraudulent identification in 2008. Segura’s attorney objected to the form, though, contending that it was based on information the government obtained by denying Segura 1 I‐213 forms are routinely accepted as evidence in immigration proceedings, unless the information contained in them is “manifestly incorrect or was obtained by duress.” Barradas v. Holder, 582 F.3d 754, 763 (7th Cir. 2009). Segura does not argue that the information was manifestly incorrect or that he was subject to duress. No. 09‐4059 Page 3 his right to counsel. Segura then testified that he did not realize that the persons who interviewed him over the phone were immigration officers. Segura added that when he was served no one explained the notice to appear to him in Spanish. When the government tried to question him further, for the most part he refused to answer, saying that he was asserting his Fifth Amendment right against self‐incrimination. He did, however, concede that he was not a United States citizen, and that he had entered the country without being admitted. Ultimately, the IJ admitted the Form I‐213, explaining that he did not have a right to counsel at the time he was served or even before. Based on the information in the Form I‐213, the IJ concluded that Segura was removable on both charges: for being present without admission, and for being convicted of a crime of moral turpitude. The IJ also found that he failed to meet his burden of showing that he was eligible for voluntary departure. As the IJ noted during the hearing, Segura’s counsel did not present an argument for voluntary departure, and Segura, when asked, refused to say whether he was willing to leave voluntarily. The Board of Immigration Appeals dismissed Segura’s appeal, though it did conclude that the IJ erred in one respect. The Board agreed with Segura’s argument—which, so far as we can tell, he did not raise before the IJ—that it was improper to use the Form I‐213 to establish his criminal conviction, because that form is not specified in the statute as one of the forms admissible to prove a conviction. So the Board overturned the finding of removability based on the conviction, but it did not remand because it deemed the I‐213 sufficient to prove the other charge, that Segura was present in the country without being admitted. It rejected his argument that the statements in the I‐213 were taken in violation of his rights, and it was also unpersuaded that service was faulty. Finally, it found no error in the IJ’s refusal to continue the hearing. Segura petitioned for review. Segura first argues that the IJ erred in denying his motion for a continuance. He contends that the IJ did not sufficiently explain his reasons for denying the motion, going so far as to suggest that the IJ denied the motion based not on the merits but on a crowded docket. He also argues that he showed good cause for the continuance because he wanted to investigate whether the traffic stop that led to his conviction was based on racial profiling. An IJ has the discretion to grant a continuance for “good cause shown,” see 8 C.F.R. § 1003.29; Juarez v. Holder, 599 F.3d 560, 564‐65 (7th Cir. 2010), and must provide an appropriate reason if he denies the motion. Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004). The IJ provided an appropriate reason here: he explained that he would not continue No. 09‐4059 Page 4 the case to allow for briefing of an issue that could be addressed at the hearing, that is, whether Segura was properly served with a notice to appear. Contrary to Segura’s argument, the IJ said nothing to suggest that he was denying the motion based on a crowded docket. And as for Segura’s theory about racial profiling, he never presented that argument to the IJ, so the IJ could not have responded to it; thus, the argument is waived. See Ghani v. Holder, 557 F.3d 836, 839 (7th Cir. 2009). Segura next contends that when immigration officials first questioned him over the phone, without his attorney present, they violated a constitutional right to counsel. He equates this right with a criminal defendant’s right to counsel. And because of this violation, he continues, the admissions he made to the officials, which were recorded in the Form I‐213, should have been excluded from evidence. Segura’s conception of his right to counsel is not quite accurate, though. Although he recognizes that any right to counsel he had arises under the Fifth Amendment rather than the Sixth, he does not acknowledge that the protection the two amendments provide is different. It is; an alien receives less protection than a criminal defendant because a removal proceeding is civil rather than criminal. INS v. Lopez‐Mendoza, 468 U.S. 1032, 1038‐39 (1984); Flores v. Ashcroft, 350 F.3d 666, 669 (7th Cir. 2003). To the extent that there is a constitutional right to counsel in an immigration proceeding, it arises under the Fifth Amendment’s right to due process. See Stroe v. INS, 256 F.3d 498, 500‐01 (7th Cir. 2001); Ambati v. Reno, 233 F.3d 1054, 1061 (7th Cir. 2000); see also Lopez‐Mendoza, 468 U.S. at 1038‐39 (no Sixth Amendment right to counsel in removal proceedings); Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir. 2010). But to establish a due process violation, the alien would need to show prejudice, that is, that the evidence to which he objects is inaccurate or that its absence might result in a different outcome. Ramos v. Gonzales, 414 F.3d 800, 805 (7th Cir. 2005); Kuschchak v. Ashcroft, 366 F.3d 597, 601 (7th Cir. 2004). Segura has neither addressed the issue of prejudice nor challenged the facts presented in the I‐213. It is hard to see how he could, since at his hearing he admitted the facts in the I‐213 that were necessary to support the removal order: that he was not a United States citizen and that he was not admitted or paroled into the United States. See Ramos, 414 F.3d at 805. Next, Segura challenges the Board’s conclusion that he received adequate notice of the charges against him, as is required by 8 U.S.C. § 1229(a)(1). He first contends that he received two different notices to appear, specifying different charges. This argument is puzzling, though, because all of the copies of the notice that appear in the record, including the two attached to his motion to terminate, contain the same two charges. At oral argument he represented that yet another notice stated only one of the charges, but he acknowledged that this notice is not in the agency record. Segura also asserts that no one used Spanish to No. 09‐4059 Page 5 explain the notice to appear to him, even though he was served three times. But again, the record belies this argument: as the government points out, each certificate of service says that Segura was given oral notice in “Spanish/English.” Furthermore, it is not clear why oral notice in one’s native language would be required: the statute he cites does not require it, see 8 U.S.C. § 1229(a)(1), nor does due process, Nazarova v. INS, 171 F.3d 478, 483 (7th Cir. 1999). Finally, Segura challenges Board’s denial of voluntary departure. But we lack jurisdiction to review a denial of voluntary departure. See 8 U.S.C. § 1229c(f); 8 U.S.C. § 1252(a)(2)(B)(I); Singh v. Gonzales, 487 F.3d 1056, 1057 (7th Cir. 2007); Sofinet v. INS, 196 F.3d 742, 748 (7th Cir. 1999). Accordingly, the petition for review is DENIED.	01-03-2023	07-17-2010
https://www.courtlistener.com/api/rest/v3/opinions/4553858/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 12:08 AM CDT - 780 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 State of Nebraska ex rel. BH Media Group, Inc., doing business as Omaha World-Herald, appellee and cross-appellant, v. Scott Frakes, in his official capacity as director of the Nebraska Department of Correctional Services, appellant and cross-appellee. State of Nebraska ex rel. Lee Enterprises, Inc., doing business as Lincoln Journal Star, appellee and cross-appellant, v. Scott Frakes, in his official capacity as director of the Nebraska Department of Correctional Services, appellant and cross-appellee. State of Nebraska ex rel. Amy A. Miller and ACLU of Nebraska Foundation, appellees and cross-appellants, v. Scott Frakes, in his official capacity as director of the Nebraska Department of Correctional Services, appellant and cross-appellee. ___ N.W.2d ___ Filed May 15, 2020. Nos. S-18-604 through S-18-606, S-19-027 through S-19-029. 1. Mandamus: Words and Phrases. Mandamus is a law action, and it is an extraordinary remedy, not a writ of right. 2. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s factual findings have the effect of a jury verdict, and an appellate court will not disturb those findings unless they are clearly erroneous. 3. Mandamus. Whether to grant a writ of mandamus is within the trial court’s discretion. - 781 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 4. Statutes: Appeal and Error. Statutory interpretation is a question of law that an appellate court resolves independently of the trial court. 5. Legislature: Statutes: Intent: Records. In enacting the public records statutes, the Legislature has determined that the welfare of the people is best served through liberal public disclosure of the records of the three branches of government. 6. Legislature: Statutes: Intent: Records: Public Policy. Because the Legislature has expressed a strong public policy for disclosure, an appel- late court must narrowly construe statutory exemptions shielding public records from disclosure. 7. Mandamus: Proof. A party seeking a writ of mandamus under Neb. Rev. Stat. § 84-712.03 (Reissue 2014) has the burden to satisfy three elements: (1) The requesting party is a citizen of the state or other person interested in the examination of the public records, (2) the docu- ment sought is a public record as defined by Neb. Rev. Stat. § 84-712.01 (Reissue 2014), and (3) the requesting party has been denied access to the public record as guaranteed by Neb. Rev. Stat. § 84-712 (Reissue 2014). 8. Records: Proof. If the requesting party satisfies its prima facie claim for release of public records, the public body opposing disclosure must show by clear and conclusive evidence that Neb. Rev. Stat. § 84-712.05 (Reissue 2014) or Neb. Rev. Stat. § 84-712.08 (Reissue 2014) exempts the records from disclosure. 9. 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. 10. Statutes: Legislature: Intent. 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. 11. 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. 12. Records: Words and Phrases. Disclosure, within the meaning of the public records statutes, refers to the exposure of documents to pub- lic view. 13. Pleadings: Time: Appeal and Error. When any terminating motion such as a motion to alter or amend is timely filed, a notice of appeal filed before the court announces its decision upon the terminating motion shall have no effect, whether filed before or after the timely fil- ing of the terminating motion. - 782 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 14. Attorney Fees: Appeal and Error. On appeal, a trial court’s deci- sion awarding or denying attorney fees will be upheld absent an abuse of discretion. 15. Administrative Law: Records. The withholding of an entire document by an agency is not justifiable simply because some of the material therein is subject to an exemption. Appeals from the District Court for Lancaster County: Jodi L. Nelson, Judge. Appeals in Nos. S-18-604 through S-18-606 dismissed. Judgments in Nos. S-19-027 through S-19-029 affirmed in part, and in part reversed and remanded with directions. Douglas J. Peterson, Attorney General, and Ryan S. Post for appellant. Shawn D. Renner, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees BH Media Group, Inc., and Lee Enterprises, Inc. Christopher Eickholt, of Eickholt Law, L.L.C., for appellees Amy A. Miller and ACLU of Nebraska Foundation. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Freudenberg, JJ., and Moore, Judge. Funke, J. Scott Frakes, director of the Nebraska Department of Correctional Services (DCS), appeals from writs of manda- mus ordering the disclosure, pursuant to the Nebraska pub- lic records statutes, see Neb. Rev. Stat. §§ 84-712 through 84-712.09 (Reissue 2014, Cum. Supp. 2018 & Supp. 2019), of records related to DCS’ efforts to acquire lethal injection drugs. Frakes contends that the records are not subject to the public records statutes and that the district court erred in determining that he failed to prove that the records should not be disclosed. Because Frakes’ contentions contradict the text of Nebraska’s public records statutes and are adverse to this court’s public records precedent, we find that his appeal is without merit. - 783 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 Relators have cross-appealed, arguing that the court erred in not ordering the redaction of confidential portions of other- wise public records and compelling the release of the redacted documents. As a matter of first impression, we agree with relators. We therefore affirm in part, and in part reverse and remand with directions in cases Nos. S-19-027 through S-19-029. We dismiss the appeals in cases Nos. S-18-604 through S-18-606. BACKGROUND This matter concerns three cases consolidated for purposes of trial and appeal. The relators are BH Media Group, Inc., doing business as Omaha World-Herald (OWH); Lee Enterprises, Inc., doing business as Lincoln Journal Star (LJS); and Amy A. Miller and ACLU of Nebraska Foundation. In October and November 2017, each relator submitted public records requests pursuant to the public records statutes, seeking information related to DCS’ purchase of pharmaceuticals for use in the lethal injection execution protocol. DCS provided responsive documents to each request, and it informed relators that it had additional responsive documents in its possession that would be withheld from disclosure. DCS stated that the with- held records consist of (1) communications between a DCS execution team member and a lethal injection drug supplier, (2) Drug Enforcement Agency (DEA) forms, (3) inventory logs, (4) chemical analysis reports, (5) photographs of pack- aging, (6) invoices, and (7) purchase orders. DCS responded that these documents would not be disclosed, because they are confidential and exempt from disclosure under Neb. Rev. Stat. § 83-967(2) (Reissue 2014) and because they are not public records as defined under § 84-712.01(1). Each relator petitioned the district court for Lancaster County for a writ of mandamus to compel Frakes, in his official capac- ity as director of DCS, to produce the withheld records. In each case, the court entered a show cause order and Frakes filed an answer and response. Frakes argued that nondisclosure is justified under § 83-967(2), which makes the identity of all - 784 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 members of the execution team confidential and exempt from disclosure under the public records statutes. The matter proceeded to trial. The court heard testimony from Miller, a citizen of Nebraska and an attorney for the ACLU of Nebraska Foundation; JoAnne Young, a reporter for LJS; and Joe Duggan, a reporter for OWH. A previous public records request by Miller and response by DCS from August 16, 2016, was offered into evidence as exhibit 10. Exhibit 10 contains correspondence between Frakes and a drug supplier concerning DCS’ payment for lethal injection drugs, an offer to sell and purchase order, invoices, DEA forms, and photo copies of packaging showing the expiration dates of lethal injection drugs. Young testified about her reporting on state government and death penalty issues for the LJS since 2007. She admitted she may attempt to interview DCS’ lethal injection drug supplier if she learned its identity. Duggan testified that if he received information about the supplier, he would attempt to interview the supplier and would ask who else might have information about its transaction with DCS. The relators called Frakes as a witness. Under DCS’ execu- tion protocol, 1 which was received into evidence, the DCS director, the Nebraska State Penitentiary warden, and the Nebraska State Penitentiary public information officer are des- ignated as members of the execution team. In his testimony, Frakes admitted without objection that he is a member of the execution team. In addition, he confirmed the publicly known identities of the warden and public information officer. Frakes did not contend that the lethal injection drug supplier is a mem- ber of the execution team. Frakes testified that he would not publicly identify other members of the execution team, because there is the potential for threats or harassment. He testified that the purchase orders and chemical analysis reports were withheld, because they identify a member of the execution team “on their face.” He 1 69 Neb. Admin. Code ch. 11, § 003 (2017). - 785 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 testified that the communication with a supplier, DEA forms, photographs, and invoices were withheld, because they iden- tify the supplier and, if contacted, the supplier could share the identity of a team member. He stated that “since the supplier has direct knowledge of team members, or at least one team member . . . I can . . . draw the connection that [it] would be able to identify a member of the team.” Frakes testified that inventory logs were withheld, because they “contain informa- tion that ultimately could lead to identifying the supplier.” He admitted that he had the ability to redact identifying informa- tion contained in the records and that he could ask the supplier not to identify any team members. He did not know whether DCS’ contract with the supplier contains a confidentiality or nondisclosure provision. He asserted that the photographs of packaging are attorney work product. In closing arguments, the relators argued that the purchase orders and chemical analysis reports should undergo a redac- tion process and be disclosed. Regarding the remaining records, they argued that there is no provision under Nebraska law which makes the identity of a lethal injection drug supplier confidential. Frakes argued that because the withheld records name the supplier and the supplier knows the identity of a team member, the withheld records are reasonably calculated to lead to the identity of a team member. On June 18, 2018, the district court entered orders in each case partially granting and partially denying the requests for writs of mandamus. The court found that pursuant to § 84-712.01(3), it was required to liberally construe public records laws in favor of disclosure. The court found the rela- tors met their burden to show a prima facie claim that they were denied access to public records as guaranteed by public records laws. The court interpreted § 83-967(2) as an exemp- tion from disclosure under the public records statutes and found that the burden therefore shifted to Frakes to prove by clear and convincing evidence that the documents sought were exempt from disclosure. The court found that the purchase orders and chemical analysis reports identified execution team - 786 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 members on their face and therefore were exempt from disclo- sure under § 83-967(2). As to the remaining documents, the court found that Frakes failed to meet his burden to show that an exemption applies. The court stated that “[t]he evidence is speculative at best” that disclosure of these documents would lead to the identification of an execution team member. The court found that Frakes had not proved that the photographs of packaging are attorney work product. The court ordered Frakes to disclose within 7 days the communications with the sup- plier, DEA records, invoices, inventory logs, and photographs of packaging. On June 19, 2018, Frakes filed a notice of appeal. On June 27, relators filed motions to alter or amend the judgments to include an award of attorney fees and costs. The court determined that, despite Frakes’ notice of appeal, it had juris- diction over the motions to alter or amend. The court found the motions to alter or amend were proper, because relators had requested attorney fees in their petitions. Following a hearing, the court granted relators’ motions for an award of attorney fees and costs. Frakes appealed, and relators cross- appealed. We moved the appeals to our docket and consoli- dated them. ASSIGNMENTS OF ERROR Frakes assigns, restated, that the district court erred in (1) finding relators had established standing and jurisdiction, (2) finding relators had met their burden to show the documents sought are public records as defined by § 84-712.01, (3) find- ing § 83-967(2) is an exemption from disclosure that the public body must prove applies by clear and convincing evidence, (4) finding Frakes failed to establish by clear and convincing evi- dence that the withheld documents are reasonably calculated to lead to the identity of an execution team member, (5) find- ing Young’s public records request was properly submitted, (6) finding the court had jurisdiction to rule on the motions to alter or amend, and (7) finding relators were entitled to attor- ney fees and costs. - 787 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 Relators assign on cross-appeal that the district court erred in not requiring disclosure of the purchase orders and chemical analysis reports with the redactions of confidential information, in accordance with § 84-712.06. STANDARD OF REVIEW [1-3] Mandamus is a law action, and it is an extraordinary remedy, not a writ of right. 2 In a bench trial of a law action, the trial court’s factual findings have the effect of a jury verdict, and we will not disturb those findings unless they are clearly erroneous. 3 Whether to grant a writ of mandamus is within the trial court’s discretion. 4 [4] Statutory interpretation is a question of law that an appellate court resolves independently of the trial court. 5 ANALYSIS [5] In enacting the public records statutes, the Legislature has determined that the welfare of the people is best served through liberal public disclosure of the records of the three branches of government. 6 Section 84-712.01(1) defines public records in Nebraska: “[P]ublic records shall include all records and documents, regardless of physical form, of or belonging to this state, any county, city, village, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing.” [6] The Legislature intended that courts liberally construe §§ 84-712 to 84-712.03 for disclosure “whenever any state . . . record of receipt [or] voucher, invoice, purchase order . . . or 2 State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d 788 (2017). 3 Id. 4 Id. 5 Aksamit Resource Mgmt. v. Nebraska Pub. Power Dist., 299 Neb. 114, 907 N.W.2d 301 (2018). 6 Id. - 788 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 expenditure involving public funds is involved.” 7 And it did so “in order that the citizens of this state shall have the full right to know of and have full access to information on the public finances of . . . the public bodies and entities created to serve them.” 8 Because the Legislature has expressed a strong public policy for disclosure, an appellate court must narrowly construe statutory exemptions shielding public records from disclosure. 9 [7,8] A person denied access to a public record may file for speedy relief by a writ of mandamus under § 84-712.03. 10 A party seeking a writ of mandamus under § 84-712.03 has the burden to satisfy three elements: (1) The requesting party is a citizen of the state or other person interested in the examina- tion of the public records, (2) the document sought is a public record as defined by § 84-712.01, and (3) the requesting party has been denied access to the public record as guaranteed by § 84-712. 11 If the requesting party satisfies its prima facie claim for release of public records, the public body oppos- ing disclosure must show by clear and conclusive evidence that § 84-712.05 or § 84-712.08 exempts the records from disclosure. 12 Jurisdiction We have two sets of appeals: those taken following the June 18, 2018, orders and those taken after the district court awarded attorney fees to the relators. The first appeals were 7 § 84-712.01(3). 8 Id. 9 Aksamit Resource Mgmt., supra note 5. 10 Id. 11 Id. See State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784, 587 N.W.2d 100 (1998). 12 See Aksamit Resource Mgmt., supra note 5; State ex rel. Neb. Health Care Assn., supra note 11. Cf. State ex rel. Veskrna, supra note 2 (using clear and convincing burden of proof); Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). - 789 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 premature. 13 We dismiss those appeals for lack of jurisdiction. We have jurisdiction over the second set of appeals. Standing Frakes argues that the relators lack standing to bring this mandamus action, because they failed to prove, as a threshold matter, that the documents they seek are “public records” as defined by § 84-712.01. In framing this as a standing argu- ment, rather than a burden of proof argument, Frakes relies on language from State ex rel. Neb. Health Care Assn. v. Dept. of Health. 14 In that case, as referenced above, we set out the respective burdens of proof that applied to those seeking to use mandamus to compel access to public records and those seek- ing to withhold such records. Frakes is correct that, in dicta, we described the relator’s burden of proof as something that was necessary “[i]n order to establish standing and jurisdiction” 15 to bring a mandamus action under § 84-712.03. But our language regarding standing and jurisdiction was imprecise, and has caused unnecessary confusion. In the context of a public records denial, a district court’s jurisdiction over a writ of mandamus is governed by § 84-712.03, and such jurisdiction does not turn on whether the claim advanced by the relator has merit. The concept of standing relates to a court’s power to address the issues pre- sented and serves to identify those disputes which are appro- priately resolved through the judicial process. 16 The focus of the standing inquiry is on whether the plaintiff is the proper party to assert the claim. 17 Indeed, in considering standing, the legal and factual validity of the claim presented must be 13 See State ex rel. Fick v. Miller, 252 Neb. 164, 560 N.W.2d 793 (1997). 14 State ex rel. Neb. Health Care Assn., supra note 11. 15 Id., 255 Neb. at 789, 587 N.W.2d at 105. 16 Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169 (2019). 17 Id. - 790 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 assumed. 18 To the extent State ex rel. Neb. Health Care Assn. framed the relator’s showing in a mandamus action seek- ing public records as a matter of standing and jurisdiction rather than a threshold burden of proof, we disapprove of that language. A party denied access to records need only establish a prima facie claim that the requested record is a public record. 19 A party has established a prima facie claim if it has produced enough evidence to demonstrate that it is entitled to judgment if the evidence were uncontroverted. 20 The inquiry of whether a requested record is a public record focuses on the information or record sought. 21 The categories of records at issue in Frakes’ appeal are the records that the district court found did not on their face iden- tify an execution team member, which are (1) communications between a DCS execution team member and a supplier, (2) DEA forms, (3) inventory logs, (4) photographs of packag- ing, and (5) invoices. Relators have not sought the identity of any execution team member and have requested that any confidential information within the records be redacted prior to their disclosure. Here, after correctly setting out the parties’ respective burdens of proof, the district court made factual findings that relators met their burden to prove they were citizens of Nebraska or other persons interested in the examination of the public records, that the documents sought were pub- lic records as defined by § 84-712.01, and that Frakes had denied them access to the records. Because we do not find 18 Id. 19 See, City of Kimball, supra note 12; State ex rel. Neb. Health Care Assn., supra note 11. 20 See Chicago Lumber Co. of Omaha v. Selvera, 282 Neb. 12, 809 N.W.2d 469 (2011). 21 See, State ex rel. Adams Cty. Historical Soc. v. Kinyoun, 277 Neb. 749, 765 N.W.2d 212 (2009); City of Kimball, supra note 12; State ex rel. Neb. Health Care Assn., supra note 11. - 791 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 any of these findings to be clearly erroneous, we will not dis- turb them. Frakes’ position is distinguishable from our decision in State ex rel. Unger v. State. 22 In State ex rel. Unger, the rela- tor sought the disclosure of a portion of a presentence report consisting of a victim’s questionnaire, which raised the issue of whether a presentence report is within the definition of “public records” under § 84-712.01. We found that under Neb. Rev. Stat. § 29-2261(6) (Cum. Supp. 2014), a presen- tence report is privileged and wholly exempt from disclosure unless otherwise provided by statute, and that as a result, presentence report materials are not considered public records under § 84-712.01(1). Even recognizing that State ex rel. Unger upheld a public body’s decision to withhold informa- tion, that case does not support the overbroad theory that Frakes asserts here. If Frakes were correct on his standing and jurisdiction theory, we would have dismissed the appeal in State ex rel. Unger for lack of jurisdiction, but we did not do so. We affirmed the district court’s decision that the relator failed to establish a prima facie claim, because, in that case, the Legislature expressly made privileged a particular type of record, a presentence report. Consequently, the relator failed to set forth a prima facie claim, because even if his claim were uncontroverted, the information sought was privileged. Here, accepting their claims as uncontroverted for purposes of establishing a prima facie claim, relators have not sought privileged information, including the identity of any execu- tion team member, nor any information reasonably calculated to lead to the identity of an execution team member. Section 83-967(2) does not impede relators’ ability to establish a prima facie claim. Frakes separately argues that Young and Duggan did not submit records requests on behalf of LJS and OWH respec- tively. However, the record is clear that Young and Duggan submitted the requests as journalists for their respective news 22 State ex rel. Unger v. State, 293 Neb. 549, 878 N.W.2d 540 (2016). - 792 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 organizations. The record is also clear that DCS was respond- ing to Young and Duggan as representatives of their respective news organizations. Frakes further argues that Young’s request was in the form of questions and not requests. Assuming with- out deciding that Young’s records request was not submitted in the proper form, we find that Frakes has waived this argument pursuant to §§ 84-712(4) and 84-712.04. However, DCS did not deny Young’s request on this basis and simply responded in the same manner as it did to the other requesting parties. Therefore, Young did not have an opportunity to modify her request as provided under § 84-712(4). The relators have standing, and the district court had juris- diction under § 84-712.03. Documents Subject to Public Records Statutes Frakes next argues that the requested documents are not sub- ject to the public records statutes based on § 83-967(2). Frakes contends that the disclosure of the documents will lead to the identity of the execution team members. Frakes relies upon the first clause of § 83-967(2), which provides: “The identity of all members of the execution team, and any information reason- ably calculated to lead to the identity of such members, shall be confidential and exempt from disclosure pursuant to sec- tions 84-712 to 84-712.09 . . . .” It is well-understood that the public records statutes place the burden of proof upon the public body to justify nondisclo- sure. 23 In order for Frakes to withhold records responsive to relators’ public information requests based upon § 83-967(2), he has to show that the information identifies a member of the execution team or is reasonably calculated to lead to the iden- tity of such a member. [9-11] Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to 23 See, § 84-712.03(2); City of Kimball, supra note 12; State ex rel. Neb. Health Care Assn., supra note 11. - 793 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. 24 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. 25 It is not within the province of the courts to read a meaning into a statute that is not there or to read any- thing direct and plain out of a statute. 26 We first analyze Frakes’ argument that as a matter of statu- tory interpretation, § 83-967(2) provides a complete exception to Nebraska’s public records laws pursuant to the “other stat- ute” exception found in § 84-712(1). Section 84-712(1) states: “Except as otherwise expressly provided by statute, all citizens of this state and all other persons interested in the examina- tion of the public records as defined in section 84-712.01 are hereby fully empowered and authorized to (a) examine such records, and . . . obtain copies of public records . . . .” (Emphasis supplied.) Frakes argues that § 83-967(2) is an “other statute” and that when §§ 83-967(2) and 84-712(1) are read together, they combine to create an “exception from the entirety of the [public records statutes],” 27 and that therefore, the documents requested by relators are “not subject to the statute authorizing records requests.” 28 The public records statutes encourage open and transparent government. Even so, the Legislature has made certain records exempt from disclosure under §§ 84-712.05 and 84-712.08. Section 84-712.05 provides that 23 separate categories of records “may be withheld from the public,” so long as those 24 In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019). 25 J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 (2017). 26 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). 27 Reply brief for appellant in cases Nos. S-18-604 through S-18-606 at 9. 28 Brief for appellant in cases Nos. S-18-604 through S-18-606 at 20. - 794 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 records have not been “publicly disclosed in an open court, open administrative proceeding, or open meeting or disclosed by a public entity pursuant to its duties.” Section 84-712.05 permits the withholding of a variety of categories of sensi- tive information, such as medical records and Social Security numbers. Several of these types of records are identified as “confidential.” 29 Section 84-712.08 suspends §§ 84-712, 84-712.01, and 84-712.03 through 84-712.09, as well as Neb. Rev. Stat. § 84-1413 (Cum. Supp. 2016), when the application of those provisions would result in the loss of federal funds, services, or essential information which would otherwise be available to a state agency. A statute qualifies as an “other statute” under § 84-712(1) when the plain language of a statute makes it clear that a record, or portions thereof, is exempt from disclosure in response to a public records request. 30 An “other statute” exemption does not allow a court to imply an exemption but only allows a specific exemption to stand. 31 Section 83-967(2) provides that the identity of execution team members, and any information reasonably calculated to lead to the identity of such members, “shall be confiden- tial and exempt from disclosure pursuant to sections 84-712 to 84-712.09.” The plain and unambiguous language of § 83-967(2) contains an identifiable legislative intent to pre- vent the disclosure of the identities of execution team mem- bers. Section 83-967(2) thus qualifies as an “other statute” under § 84-712(1). Although we agree that § 83-967(2) qualifies as an “other statute” under § 84-712(1), we disagree with Frakes about the impact of this conclusion. The plain and ordinary lan- guage of § 83-967(2) does not provide a complete exception 29 See § 84-712.05(4), (13), and (16)(b). 30 See Doe ex rel. Roe v. Washington State Patrol, 185 Wash. 2d 363, 374 P.3d 63 (2016). 31 Id. - 795 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 to the public records statutes. Rather, § 83-967(2) makes records “exempt from disclosure pursuant to sections 84-712 to 84-712.09.” Frakes is attempting to imply an exception using § 84-712(1) without regard to the language found within § 83-967(2). [12] An exemption from disclosure should not be misunder- stood as an exception to the laws of the public records statutes. Disclosure, within the meaning of the public records statutes, refers to the exposure of documents to public view. 32 In argu- ing that § 83-967(2) creates an exception to the entirety of the public records statutes, Frakes presumes that the sole obliga- tion imposed by the public records statutes is the exposure of documents to public view. Contrary to Frakes’ presumption, however, the public records statutes impose other additional obligations upon governmental bodies. An example of such an additional obligation occurs when a public body denies a public records request and § 84-712.04(1) requires the public body to provide to the requesting party in writing a description of the withheld records and the reasons for denial, including citations to any particular supporting legal authority. The writ- ing must name the public official responsible for denying the request and provide notice of the requester’s right to adminis- trative or judicial review of the public body’s decision. Section 84-712.04(2) requires each public body to maintain a file of all denial letters and to make the file available to any person upon request. The language of § 83-967(2) states only that certain records are “confidential and exempt from disclosure,” which is simi- lar to language the Legislature has used in exempting other confidential records from disclosure under § 84-712.05, like § 84-712.05(4), (13), and (16)(b). There is no language within § 83-967(2) that would relieve DCS of its obligations under the public records statutes to respond to and document public information requests even where documents are not exposed to 32 State ex rel. Neb. Health Care Assn., supra note 11. - 796 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 public view. Were we to accept Frakes’ view that § 83-967(2) operates as a complete exception to the public records statutes, he would have no obligation to respond to a records request that he deems to implicate § 83-967(2), confirm the existence of records sought, explain why records may be withheld, pro- vide notice of a right to judicial or administrative review of his decision, or keep these requests on file or make such file available upon request. Under this court’s precedent, we have consistently respected the venerable policies of the public records statutes when adjudicating the applicability of exemptions from disclosure. 33 In State ex rel. Sileven v. Spire, 34 the relator filed a pub- lic records request for documents relevant to investigations of him by law enforcement. The trial court found that the documents fell within the plain and ordinary meaning of an exemption under § 84-712.05(5), because the records were developed or received by law enforcement agencies as part of an investigation. The relator claimed that he had a heightened interest in obtaining the records, because he was entitled to review information regarding his criminal history record as provided by Neb. Rev. Stat. § 29-3525 (Reissue 1989). This court cited to Neb. Rev. Stat. § 29-3506 (Reissue 1989), which provides that “[c]riminal history record information shall not include intelligence or investigative information.” In considering the impact of § 29-3506 on the relator’s argu- ment, we cited to the “other statute” exception found within § 84-712. We concluded that “[t]he information requested by the relator consists of records concerning an investigation of him and is specifically excluded from review under § 29-3506 as well as § 84-712.05(5).” 35 Thus, we understood in that context that both an “other statute” exception under § 84-712 33 See, State ex rel. Unger, supra note 22; State ex rel. Sileven v. Spire, 243 Neb. 451, 500 N.W.2d 179 (1993). 34 State ex rel. Sileven, supra note 33. 35 Id., 243 Neb. at 457, 500 N.W.2d at 183. - 797 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 and an exemption within § 84-712.05 applied, that both stat- utes protected the information sought from disclosure, and that applying either statute led to the same result. The fact that § 29-3506 qualified as an “other statute” did not render the public records statutes inapplicable nor preclude judicial review of the government’s decision to withhold information, as Frakes argues § 83-967(2) does here. State courts in other jurisdictions have held that all public records exceptions, including “other statute” exceptions, are construed narrowly. 36 The “narrow construction” rule means that if there is a plausible construction of a statute favoring disclosure of public records that construction will prevail. 37 Reference to federal laws confirms the rule that an “other statute” exception is to be narrowly construed. “Nebraska, like the federal government and many other states, has broad public records laws that generally provide open access to governmen- tal records.” 38 We have previously analogized decisions under the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2018), to construe Nebraska’s public records statutes. 39 As an analogy to § 84-712, the third exemption under the FOIA, 5 U.S.C. § 552(b)(3), provides that disclosure require- ments do not apply to matters “specifically exempted from disclosure by statute.” Exemptions under the FOIA “must be narrowly construed.” 40 36 Fisher Broadcasting v. City of Seattle, 180 Wash. 2d 515, 326 P.3d 688 (2014). See, American Civil Liberties Union of Northern California v. Superior Court, 202 Cal. App. 4th 55, 134 Cal. Rptr. 3d 472 (2011); County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 89 Cal. Rptr. 3d 374 (2009); Colby v. Gunson, 224 Or. App. 666, 199 P.3d 350 (2008). 37 Colby, supra note 36. 38 Kinyoun, supra note 21, 277 Neb. at 754, 765 N.W.2d at 217. 39 City of Kimball, supra note 12; State ex rel. Neb. Health Care Assn., supra note 11. 40 Dept. of Air Force v. Rose, 425 U.S. 352, 361, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976). - 798 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 With these principles in mind, we agree with the dis- trict court’s interpretation that § 83-967(2) is reasonably and ordinarily understood as an exemption like those under § 84-712.05. In the context presented here, we must interpret § 83-967(2) together with provisions under the public records statutes and narrowly construe § 83-967(2) in favor of disclo- sure, particularly due to the fact that this case concerns the expenditure of public funds. Frakes relies on language from Aksamit Resource Mgmt. v. Nebraska Pub. Power Dist. 41 In that case, the power district relied on an exemption under § 84-712.05(3) to withhold its competitive information; the power district did not rely on an “other statute.” We narrowly construed § 84-712.05(3) in favor of disclosure and held that the power district was required to disclose its records. We concluded our opinion by stating that had the Legislature passed a hypothetical “other statute” pro- tecting the power district’s competitive information, “we would not hesitate to apply the ‘other statute’ exception of the public records law and the general principle favoring a specific over a general statutes.” 42 Within 2 months of our decision, the Legislature passed superseding legislation in Neb. Rev. Stat. § 70-673 (Reissue 2018), which provides: (1) Notwithstanding any other provision of law, the public power industry . . . and the Nebraska Power Review Board may withhold competitive or proprietary information which would give an advantage to business competitors. . . . (2) Any request for records described in this sec- tion shall be subject to the procedures for public record requests provided in sections 84-712 to 84-712.09. The language of § 70-673 demonstrates the shortcomings of Frakes’ theory regarding § 83-967(2). First, by using the phrase 41 Aksamit Resource Mgmt., supra note 5. 42 Id., 299 Neb. at 127, 907 N.W.2d at 310. - 799 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 “[n]otwithstanding any other provision of law,” the Legislature demonstrated with clear intention that § 70-673(1) should prevail when it conflicts with another statute. By contrast, § 83-967(2) does not state that information is exempt from dis- closure “notwithstanding [the public records statutes].” Rather, § 83-967(2) states that information is exempt from disclosure “pursuant to [the public records statutes].” Under an appropri- ately narrow construction, § 83-967(2) can be harmonized with the public records statutes and interpreted as an exemption. Second, § 70-673(2) recognizes that, as described above, the public records statutes impose requirements to respond to and document public records requests. Under Frakes’ reading of § 83-967(2), he is not subject to those statutory requirements even though § 83-967(2) is silent on the matter. Frakes’ atex- tual interpretation must be rejected. The lessons of Aksamit Resource Mgmt. counsel against Frakes’ interpretation. In Aksamit Resource Mgmt., we over- ruled a district court’s determination that an exemption under § 84-712.05 applied and found that under an appropriately narrow construction of the exemption, the records at issue were required to be disclosed. We apply precisely the same rationale here. Guided by the Legislature’s requirement under § 84-712.01(3) that we liberally construe public records stat- utes in favor of disclosure in cases which concern the expen- diture of public funds, we conclude that the district court cor- rectly interpreted § 83-967(2) as an exemption under the public records statutes. This assignment of error is without merit. Failure of Proof Exemption Applies The next issue for consideration is whether Frakes met his burden of proving an exemption applies which justifies nondis- closure. The district court’s findings in favor of relators have the effect of a jury verdict and will not be disturbed unless they are clearly erroneous. 43 43 See State ex rel. Veskrna, supra note 2. - 800 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 Frakes argues on appeal that the documents ordered to be disclosed contain information “reasonably calculated to lead to the identity” of a team member as pronounced in § 83-967(2). However, the phrase “reasonably calculated” is undefined by statute and has not previously been interpreted by this court in the context of § 83-967(2). We need not do so here. But our analysis should not be read to disregard this phrase or to suggest that it could never lead to withholding records which would otherwise be subject to disclosure under the public records statutes. Even accepting, only for purposes of argument, Frakes’ proposed definition, the evidence did not rise to that level. He defines “reasonably calculated” as that which is “moderately likely.” 44 Thus, he argues, § 83-967(2) protects “information [moderately likely] to lead to the identity” of an execution team member. Frakes testified that he understood identifying information of an execution team member to include that per- son’s name, official title, personal or work email address, or office address. Apart from the purchase orders and chemical analysis reports, which identify a team member on their face, Frakes has not elicited any proof that the remaining records contain any identifying information with regard to an execu- tion team member. Nor did he present evidence of a chain of discovery moderately likely to result in the discovery of the identity of an execution team member. We digress to reject two arguments advanced by the par- ties. First, the relators disputed whether unidentified execu- tion team members truly are at risk of threats or harassment if identified. But regardless of the factual record on this issue, the Legislature has protected against the disclosure of the identities of execution team members under § 83-967(2). Second, there is no merit to Frakes’ argument that the occupations of Miller, Young, and Duggan make it more likely that disclosure of the records will lead to the identity of a team member. Frakes’ duty to disclose public records does not depend on who makes the 44 Brief for appellant in cases Nos. S-18-604 through S-18-606 at 25. - 801 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 request. The public records statutes apply “equally to all per- sons without regard to the purpose for which the information is sought.” 45 As a general rule, citizens are not required to explain why they seek public information. 46 “The information belongs to citizens to do with as they choose.” 47 The withholding of information under public records laws cannot be predicated on the identity of the requester. 48 Upon review of the sworn testimony, exhibits, the district court’s order, and the parties’ arguments on appeal, we con- clude that Frakes failed to prove by clear and conclusive evi- dence that any of the requested records are reasonably calcu- lated to lead to the identity of an execution team member. The evidence on this issue was slight on both sides, with the burden of proof on Frakes. While objections were sustained to numerous questions which may have been aimed at meeting this burden, Frakes made no offers of proof 49 nor does he assign any error on appeal to these evidentiary rulings. 50 In his presentation to the trial court, Frakes focused on arguing that the public records statutes are inapplicable and that relators carry the burden of proof. Frakes conceded that these records do not identify execution team members on their 45 State ex rel. Sileven, supra note 33, 243 Neb. at 457, 500 N.W.2d at 183. 46 National Archives and Records Admin. v. Favish, 541 U.S. 157, 124 S. Ct. 1570, 158 L. Ed. 2d 319 (2004). 47 Id., 541 U.S. at 172. 48 See id. See, also, U. S. Dept. of Justice v. Reporters Committee, 489 U.S. 749, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975); North v. Walsh, 881 F.2d 1088 (D.C. Cir. 1989). 49 See Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 N.W.2d 406 (2008) (to predicate error upon ruling to permit witness to answer specific question, record must show offer to prove facts sought to be elicited). 50 See Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015) (for appellate court to consider alleged error, party must specifically assign and argue it). - 802 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 face, and he did not argue that the five categories of withheld records at issue contained any identifying information with regard to an execution team member. Frakes testified that the records identify a lethal injection drug supplier, which if con- tacted could disclose the identity of an execution team member. But he provided no evidence that such disclosure was likely. We agree with the district court that Frakes’ attenuated reason- ing about whether an unidentified third party may or may not divulge confidential information is unpersuasive. Relators had little difficulty undermining Frakes’ position on cross-examination. Frakes admitted that he could ask the supplier not to identify any execution team members, but did not know if this had been done. He also did not know if the contract with the supplier contains any confidentiality or non- disclosure provisions. In addition, Frakes acknowledged that the inventory logs do not identify a supplier, but, rather, they “contain information that ultimately could lead to identifying the supplier.” Frakes failed to prove that the records contain any informa- tion which if disclosed would reasonably lead to the identity of a team member. Frakes faced a weighty burden to prove by clear and conclusive evidence that an exemption applies. Frakes’ conclusory allegations that records here come within an exemption are insufficient. The district court was well within its discretion to issue a partial writ to compel Frakes to produce these records. The court did not err in concluding that Frakes failed to prove by clear and conclusive evidence that an exemption applies. Attorney Fees Frakes argues the district court lacked jurisdiction to award relators attorney fees and costs, because he had already filed a notice of appeal and paid the docket fee. In addition, Frakes argues that the award of attorney fees was improper, because there is evidence that the relators’ expenses will be reim- bursed by a third party. We find no merit to these assignments of error. - 803 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 The district court issued orders on June 18, 2018, compel- ling Frakes to disclose the records which did not identify an execution team member on their face within 7 days. Frakes appealed the next day. Relators timely filed motions to alter or amend the judgments on June 27. Those motions asked the district court to alter or amend the judgments to award attor- ney fees and litigation costs to them pursuant to § 84-712.07, as requested in their petitions. The court’s June 18 order was silent on the issue of attorney fees and therefore implicitly denied relators’ request. 51 As to the relators’ motions to alter or amend, the district court found that it had jurisdiction over the motions and awarded the relators reasonable attorney fees and costs. Where a request for attorney fees is made pursuant to state law, attorney fees are generally treated as an element of court costs, and an award of costs in a judgment is considered a part of the judgment. 52 A party seeking statutorily authorized fees must make a request for such fees prior to a judgment in the cause. 53 If a postjudgment motion seeks a substantive alteration of the judgment, a court may treat the motion as one to alter or amend the judgment. 54 A motion to alter or amend a judgment under Neb. Rev. Stat. § 25-1329 (Reissue 2016) must be filed no later than 10 days after the entry of judgment. [13] A motion to alter or amend a judgment is a “terminat- ing motion” under Neb. Rev. Stat. § 25-1912(3) (Supp. 2017). Pursuant to § 25-1912(3), when any terminating motion such as a motion to alter or amend is timely filed, a notice of appeal filed before the court announces its decision upon the terminating motion shall have no effect, whether filed before 51 See Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015). 52 Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 920 N.W.2d 268 (2018). 53 Id. 54 Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017). - 804 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 or after the timely filing of the terminating motion. That sec- tion further states that a new notice of appeal shall be filed within the prescribed time after the entry of the order ruling on the motion. 55 Frakes admits that a timely filed motion to alter or amend would have nullified his notice of appeal filed on June 19, 2018, but argues that relators’ motions were not motions to alter or amend. To make this argument, Frakes mistakenly claims that relators never made a request for attorney fees prior to judgment. However, the record is clear that the rela- tors requested attorney fees in their pleadings. A request for attorney fees in a pleading is sufficient to comply with the requirement that a party must request such fees prior to judg- ment. 56 Relators’ motions to include an award for attorney fees and costs sought substantive alteration of the judgments. Additionally, relators’ motions were filed within 10 days of the entry of the judgment. As a result, under § 25-912(3), the motions to alter or amend caused Frakes’ notice of appeal to have no effect. The district court had jurisdiction to award relators attorney fees and costs. Frakes further argues that the court erred in award- ing fees because they were not “reasonably incurred by the complainant.” 57 Section 84-712.07 provides that in any case in which the complainant seeking access to public records has substantially prevailed, the court may assess against the pub- lic body which had denied access to their records reasonable attorney fees and other litigation costs reasonably incurred by the complainant. The record indicates that both OWH and LJS offered affidavits setting forth their fee arrangement with their counsel. The affidavits stated that OWH and LJS and their counsel agreed that “Media of Nebraska, Inc. would pay the 55 See, Bryson L. v. Izabella L., 302 Neb. 145, 921 N.W.2d 829 (2019); State v. Blair, 14 Neb. Ct. App. 190, 707 N.W.2d 8 (2005). 56 See, Webb, supra note 52; Murray, supra note 51; Olson v. Palagi, 266 Neb. 377, 665 N.W.2d 582 (2003). 57 § 84-712.07. - 805 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 legal fees for the litigation.” Frakes therefore contends that the relators “failed to offer any evidence they incurred any fees at all. Instead, they established the fees were incurred by a third party . . . .” 58 We disagree. [14] On appeal, a trial court’s decision awarding or denying attorney fees will be upheld absent an abuse of discretion. 59 Black’s Law Dictionary defines “‘incur’” as a verb meaning “‘[t]o suffer or bring on oneself (a liability or expense).’” 60 Here, the district court found that relators had incurred a fair and reasonable amount of attorney fees. Frakes does not contest the reasonableness of the amount of fees awarded, but merely argues that relators did not incur the fees because another entity has agreed to pay those fees. We find no error in the court’s decision. Billing records in evidence show that rela- tors did incur attorney fees. Section 84-712.07 requires only that the fees be “reasonably incurred.” There is no requirement under § 84-712.07 that the fees be “‘actually incurred’” 61 by the prevailing party. Relators incurred fees even if those fees were later reimbursed by a third party. This assignment of error is without merit. Cross-Appeals On cross-appeal, relators argue that the district court erred in not ordering Frakes to redact confidential information con- tained in the purchase orders and chemical analysis reports and disclose the balance of such records in accordance with § 84-712.06. Relators’ cross-appeals raise an issue of first impression under Nebraska law. [15] Section 84-712.06 of the public records statutes requires that “[a]ny reasonably segregable portion of a record shall be 58 Brief for appellant in cases Nos. S-19-027 through S-19-029 at 39. 59 TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908 N.W.2d 60 (2018). 60 Id., 299 Neb. at 285, 908 N.W.2d at 67, quoting Black’s Law Dictionary 885 (10th ed. 2014). 61 See id. (interpreting Neb. Rev. Stat. § 76-726 (Reissue 2018)). - 806 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 provided to the public as a public record upon request after deletion of the portions which may be withheld.” The FOIA contains an analogous provision under 5 U.S.C. § 552(b). In interpreting the FOIA, the Eighth Circuit has recognized that agencies are required to disclose nonexempt portions of a document, unless those nonexempt portions are inextricably intertwined with exempt portions. 62 Effectively, each document consists of “‘discrete units of information,’” all of which must fall within a statutory exemption in order for the entire docu- ment to be withheld. 63 The withholding of an entire document by an agency is not justifiable simply because some of the material therein is subject to an exemption. 64 The agency has the burden to show that the exempt por- tions of the documents are not segregable from the nonex- empt material. 65 The agency’s justification must be relatively detailed, correlating specific parts of the requested documents with the basis for the applicable exemption. 66 An agency need not commit significant time and resources to the sepa- ration of disjointed words, phrases, or even sentences which taken separately or together have minimal or no information content. 67 Ultimately, to carry its burden before the district court, the agency must provide a reasonably detailed justifi- cation rather than conclusory statements to support its claim that the nonexempt material in a document is not reasonably segregable. 68 When agencies demonstrate that the withheld records are exempt in their entireties, courts have upheld the 62 Mo. Coalition for Environment v. U.S. Army Corps, 542 F.3d 1204 (8th Cir. 2008). 63 Id. at 1212. 64 Id. 65 Id. 66 Id. 67 Mead Data Cent., Inc. v. U.S. Dept. of Air Force, 566 F.2d 242 (D.C. Cir. 1977). 68 See, id.; Schoenman v. F.B.I., 841 F. Supp. 2d 69 (D.D.C. 2012). - 807 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 determination that no segregation is possible. 69 The declara- tions must provide the relator a “‘“meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding.”’” 70 Frakes did not argue that confidential portions of the with- held documents are not segregable from nonexempt portions. Frakes instead made the argument, rejected above, that the documents were by definition wholly exempt from disclosure. Although relators properly raised the issue, the district court made no findings on the issue of segregability. Rather, the district court conducted a different analysis by distinguishing the withheld records between those which identified a team member on their face and those which did not. This left unad- dressed the argument raised by relators that under the public records statutes nonexempt portions of the purchase orders and chemical analysis reports should be disclosed. Appellate courts may address the issue of segregability on their own or may remand the matter to the district court to make findings on the issue. 71 Here, it is clear that Frakes has proved that an exemption applies to the names of execution team members as well as any of their identifying informa- tion, such as that person’s official title or contact information. However, we find nothing in our record on appeal which sug- gests that an exemption applies to the portions of the purchase orders and chemical analysis reports which do not identify an execution team member, and there is no evidence that the exempt portions of the records are inextricably intertwined with nonexempt portions. Nonexempt portions of those records are not entitled to protection under § 83-967(2) and must be disclosed pursuant to § 84-712.06. 69 See Jarvik v. C.I.A., 741 F. Supp. 2d 106 (D.D.C. 2010). 70 American Civil Liberties Union of Northern California, supra note 36, 202 Cal. App. 4th at 85, 134 Cal. Rptr. 3d at 495, quoting Wilderness Soc. v. U.S. Dept. of Interior, 344 F. Supp. 2d 1 (D.D.C. 2004). 71 See Juarez v. Dept. of Justice, 518 F.3d 54 (D.C. Cir. 2008). - 808 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE EX REL. BH MEDIA GROUP v. FRAKES Cite as 305 Neb. 780 On remand, the district court must order Frakes to pro- duce nonexempt portions of the purchase orders and chemical analysis reports after portions that may be withheld have been redacted, such as an execution team member’s name, title, home or work address, telephone number, or email address. CONCLUSION In cases Nos. S-18-604 through S-18-606, we dismiss the appeals for lack of jurisdiction. In cases Nos. S-19-027 through S-19-029, we affirm in part, and in part reverse and remand with directions to issue appropriate writs in conformity with this opinion. Appeals in Nos. S-18-604 through S-18-606 dismissed. Judgments in Nos. S-19-027 through S-19-029 affirmed in part, and in part reversed and remanded with directions. Papik, J., not participating.	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4553803/	T.C. Memo. 2020-118 UNITED STATES TAX COURT RITCHIE N. STEVENS AND JULIE A. KEEN STEVENS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent RITCHIE N. STEVENS AND JULIE KEEN-STEVENS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket Nos. 29815-13, 9539-15.1 Filed August 6, 2020. R issued notices of deficiency to Ps for 2006, 2008, 2009, and 2010. He also issued separate notices of deficiency to P-H and P-W for 2007, 2011, and 2012 because Ps had not filed a joint return for any of those years before R issued the notices of deficiency. Ps filed a 2011 return only after filing their petition in docket No. 9539-15 but have not, to date, filed a return for either 2007 or 2012. For 2007 and 2012, Ps provided R only with unsigned returns. Each return Ps filed or otherwise provided to R for the years in issue reports losses from partnerships sufficient to offset their reported income, including losses from PS1 and PS2 for 2006 and a loss from PS3 for 2008. Ps' 2008 return also reports a net farm rental loss. PS' returns for 2008 through 2012 report net operating loss carryforwards. R's notice of 1 We consolidated the cases at docket Nos. 29815-13 and 9539-15 for trial, briefing, and opinion. -2- [2] deficiency for 2008 determined that Ps had unreported capital gain from sources other than partnerships. Held: Because Ps, who were either citizens or residents of the United States, were PS1's only partners during 2006, the partnership was a "small partnership", as defined by I.R.C. sec. 6231(a)(1)(B)(i), for that year. Held, further, under Harrell v. Commissioner, 91 T.C. 242 (1988), Ps have the burden of proving that PS2 was not a small partnership for 2006 and that PS3 was not a small partnership for 2008; in each case, they have not met their burden. Held, further, because R's disallowance of the loss deductions Ps claimed for 2006 from PS1 and PS2 gave rise to a deficiency for that year, the "oversheltered return" rules of I.R.C. sec. 6234 do not apply and we have jurisdiction to redetermine the deficiency R determined for the year. Held, further, Ps did not substantiate the loss they reported for 2006 from PS1 or PS2; consequently, R's deficiency determination for that year is upheld. Held, further, I.R.C. sec. 6234 does not apply for 2007 or 2009 through 2012; Ps filed no return for 2007 or 2012, and the adjustments to nonpartnership items reflected in the notices of deficiency for 2009 through 2012 would not give rise to a deficiency for any of those years even if Ps had not reported a net loss for the year from partnership items. I.R.C. sec. 6234(a)(1), (c). Held, further, because the notices of deficiency for 2007 and 2009 through 2012 advised Ps that R had determined deficiencies, those notices are valid under Dees v. Commissioner, 148 T.C. 1 (2017); the fact that the adjustments to Ps' nonpartnership income did not result in deficiencies without the adjustment of partnership losses does not require invalidation of the notices; and R's possible failure to consider the returns Ps filed for 2009 and 2010 does not render -3- [3] invalid the notices for those years because any such failure was not manifest on the faces of the notices. Held, further, Ps' filing of a petition in response to the notices of deficiency issued for 2007 and 2009 through 2012 gave us jurisdiction to redetermine the deficiencies; because R's adjustments to Ps' nonpartnership income for each year are offset by losses Ps claim from partnerships the adjustment of which requires partnership- level proceedings, Ps have no deficiencies for 2007 or 2009 through 2012. Held, further, I.R.C. sec. 6234 applies for 2008 because (1) Ps' return for the year shows no taxable income and a net loss from partnerships, (2) R made a determination with respect to nonpartnership items for the year, and (3) while R's adjustments to nonpartnership items do not give rise to a deficiency, they would do so in the absence of the net partnership loss. Held, further, the 2008 notice of deficiency is treated as a notice of adjustment under I.R.C. sec. 6234(a) and the petition Ps filed is treated as a petition for redetermination of adjustments to nonpartnership items under I.R.C. sec. 6234(c). I.R.C. sec. 6234(h)(2). Held, further, Ps have not provided grounds for challenging R's determination of their capital gain from nonpartnership sources for 2008 or his disallowance of their deduction for their loss from PS3 or their net farm rental loss for that year; consequently, our declaratory judgment under I.R.C. sec. 6234(c) for 2008 will uphold R's determinations concerning those items. Ritchie N. Stevens and Julie A. Keen Stevens, pro sese. Rollin G. Thorley and Ric D. Hulshoff, for respondent. -4- [4] MEMORANDUM FINDINGS OF FACT AND OPINION HALPERN, Judge: Respondent determined deficiencies in petitioners' Federal income tax for their taxable years ended December 31, 2006, 2008, 2009, and 2010. He also determined additions to tax under section 6651(a)(1) and accuracy-related penalties under section 6662(a) for 2006, 2008 and 2010.2 Respondent issued separate notices of deficiency to each petitioner for his or her taxable years ended December 31, 2005, 2007, 2011, and 2012.3 The notices of deficiency for 2005, 2007, 2011, and 2012, dated January 9 and 12, 2015, determined deficiencies in each petitioner's Federal income tax for each of those years and also determined additions to tax under section 6651(a)(1) and (2) and estimated additions to tax under section 6654 for 2011 and 2012. After respondent issued the notices of deficiency, petitioners provided him with 2 All section references are to the Internal Revenue Code in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure unless otherwise indicated. We round all dollar amounts to the nearest dollar. 3 Petitioners had not filed a joint return for 2005, 2007, 2011, or 2012, when respondent issued the notices of deficiency for those years. See sec. 6013 (allowing married couples to file joint returns); Dritz v. Commissioner, T.C. Memo. 1969-175, 28 T.C.M. 874, 880 (1969) (holding that the privilege of joint filing status depends on an election made by "the 'making of a return,' as provided in section 6013"), aff'd, 427 F.2d 1176 (5th Cir. 1970). -5- [5] unsigned returns for 2007 and 2012 and a signed return for 2011. None of the returns that petitioners filed or otherwise provided to respondent showed a tax liability. For each year, petitioners report losses originating in partnerships subject to the unified partnership audit and litigation rules enacted by the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) and in effect before 2018. Those partnership losses more than offset the income shown on each return. Before we tried the cases, we granted respondent's motion to dismiss for lack of jurisdiction so much of each case as relates to partnership items. We then ordered respondent to provide recomputed deficiencies reflecting our dismissal of partnership items from the cases. During the course of the proceedings, petitioners presented no evidence challenging the adjustments underlying the deficiencies respondent determined. Therefore, the principal issue the cases raise is the extent to which we can uphold respondent's recomputed deficiencies in the face of the claimed partnership loss deductions. FINDINGS OF FACT Petitioners were residents of Nevada when they filed their petitions in these cases. Their petition in docket No. 9539-15, dated April 8, 2015, was filed by the Court on April 13, 2015. -6- [6] TYE December 31, 2006 In October 2010, petitioners filed a Form 1040, U.S. Individual Income Tax Return, for the taxable year ended (TYE) December 31, 2006. In June 2014, petitioners provided to one of respondent's Appeals officers an amended 2006 return. Petitioners' amended return reports losses from partnerships of $2,799,200, including a loss of $1,535,078 from a partnership called Arlington Farms and a loss of $917,896 from a partnership referred to as SNJ RNK RSJS. Arlington Farms failed to file a partnership return for TYE December 31, 2006. In December 2016, respondent conducted a name search of an online business registry maintained by the Oregon secretary of state. That search yielded an entry for an entity named Arlington Farms that bears a "Registry Date" of September 19, 2008, and identifies both petitioners and a woman named Mary Pesce as "registrants". The Certification of Lack of Record respondent submitted to attest to his inability to find a 2006 partnership return for Arlington Farms refers to Ms. Pesce as the entity's general partner. SNJ RNK RSJS also failed to file a partnership return for TYE December 31, 2006. In October 2014, petitioners provided respondent with an unsigned 2006 return for SNJ RNK RSJS that identifies them as the entity's only partners. -7- [7] As a result of the partnership losses petitioners reported on their 2006 amended return, that return reported adjusted gross income of !$2,079,805. It claimed itemized deductions of $143,348, including deductions for taxes and interest. The return also claimed a deduction for personal exemptions of $13,200 and reported no taxable income and no tax liability. The only noncomputational adjustments reflected in respondent's recomputed deficiency for 2006 are his disallowance of the loss deductions petitioners claimed from Arlington Farms and SNJ RNK RSJS. Respondent's calculation of his recomputed deficiency for 2006 shows "Taxable Income Per Return or as Previously Adjusted" of !$2,236,353.4 Although the notice of deficiency for 2006, dated September 24, 2013, determined a delinquent filing addition to tax under section 6651(a)(1) and an accuracy-related penalty under section 6662(a), respondent's calculation of a recomputed deficiency for 2006 includes only an accuracy-related penalty. 4 The amount respondent treated as negative taxable income on petitioners' 2006 amended return equals the adjusted gross income shown on that return (!$2,079,805) reduced by itemized deductions of $143,348 and a deduction for personal exemptions of $13,200. -8- [8] TYE December 31, 2007 Respondent has no record of having received a return from either petitioner for TYE December 31, 2007. Petitioners allege they filed a 2007 return and submitted a certified mail receipt showing that, on October 20, 2011, respondent's Ogden, Utah, Service Center received an item mailed by petitioner Ritchie Stevens (Dr. Stevens). In January 2015, respondent issued a separate notice of deficiency to each petitioner that included the taxable year 2007 and stated a deficiency of $15,825 for the year. Respondent based petitioners' deficiencies on the following items of unreported income: rents of $1,894, taxable interest of $285, wages of $144,500, and dividends of $26,157. The following January, petitioners provided respondent with an unsigned 2007 return. That return reports the following items of income from sources other than partnerships: wages of $144,500, interest of $81,151, dividends of $26,793, capital gain of $118, and patronage income of $1,894. The return also reports $700,959 of income from a partnership named RNS, Ltd., and a loss of $7,594,316 from another partnership, SNJ, Ltd. SNJ, Ltd., did not file a partnership return for 2007. Petitioners' unsigned 2007 return does not report a net operating loss (NOL) -9- [9] carryforward from 2006. Line 41 of that return (adjusted gross income less itemized deductions) reports !$5,288,778. Respondent based his recomputed deficiency for 20075 on the following adjustments: a deduction for personal exemptions of $6,800, interest income of $353, rent and patronage income of $1,894, wages of $144,500, dividends of $26,793, and capital gain of $118. Those adjustments do not include income from RNS, Ltd., or the disallowance of any deduction for a loss from SNJ, Ltd.-- presumably because those items were covered by respondent's motion to dismiss. TYE December 31, 2008 Respondent has no record of having received an original return from petitioners for TYE December 31, 2008. In June 2014, however, respondent received from petitioners a Form 1040X, Amended U.S. Individual Income Tax Return, for 2008. Petitioners' 2008 amended return reports no taxable income and a $5,165,631 loss from partnerships. The partnership losses include a loss of $14,743 from RSJS Holdings, a $144,766 loss from RNS, Ltd., and a $5,006,122 loss from SNJ, Ltd. Schedule E, Supplemental Income and Loss, of petitioners' 5 For 2007, as well as 2011, respondent calculated a single recomputed deficiency, accepting petitioners' claim of joint filing status despite their failure to have filed returns for those years. -10- [10] 2008 amended return reports a net farm rental loss of $19,834 in addition to the partnership losses. Line 21 of petitioners' 2008 amended return (other income) reports a loss of $5,288,778 labeled "NOL Carryover to 2008".6 The return reports adjusted gross income of !$9,766,818 and claims itemized deductions of $81,222 and a deduction for personal exemptions of $17,500. On January 13, 2015, respondent mailed petitioners a notice of deficiency for 2008. The determined deficiency rested on the following noncomputational adjustments: unreported rental and patronage income of $4,072 and capital gain of $11,746,163, and the disallowance of deductions for the partnership and farm rental losses and NOL carryforward claimed on petitioners' 2008 amended return. The 2008 notice of deficiency states "Taxable Income Per Return or as Previously Adjusted" as !$9,865,540.7 Respondent's recomputed deficiency for 2008 rests on four noncomputational adjustments: unreported rental and patronage income of $4,072 6 The NOL carryforward deduction claimed on petitioners' 2008 amended return equals the amount shown on line 41 (adjusted gross income less itemized deductions) of petitioners' unsigned 2007 return. 7 The amount respondent treated as negative taxable income shown on petitioners' 2008 amended return equals the adjusted gross income shown on that return (!$9,766,818) reduced by itemized deductions of $81,222 and a deduction for personal exemptions of $17,500. -11- [11] and capital gain of $3,378,419, and the disallowance of deductions for the partnership losses of $5,165,631, the net farm rental loss of $19,834, and the $5,288,778 NOL carryforward from 2007 that petitioners claimed on their 2008 amended return. After taking into account the effect of the noncomputational adjustments on petitioners' itemized deductions and a deduction for personal exemptions, respondent arrives at total adjustments of $13,881,333, corrected taxable income of $4,015,793, and a deficiency, before penalties, of $1,365,170. Respondent's recomputed deficiency for 2008 also includes an accuracy-related penalty under section 6662(a) of $273,034 and a delinquent filing addition to tax under section 6651(a)(1) of $298,615. Respondent computed his capital gain adjustment of $3,378,419 by comparing sales and purchases of stock reported on records of petitioners' investment accounts that he received by subpoena from brokers. One of petitioners' brokers, Interactive Brokers, provided an "Activity Statement" for their account that sets forth information on a list of transactions that runs over 100 pages. Some of the lines on that statement show positive amounts and others negative amounts. The column headings on the list include "Basis" and "Realized P/L". Respondent's calculation of petitioners' gain from that account makes no use -12- [12] of the transaction-by-transaction list of basis and gain or loss. Instead, respondent simply compares total purchases to total proceeds. TYE December 31, 2009 Respondent did not receive a return for TYE December 31, 2009, from petitioners until October 2013. Although the Form 4340, Certificate of Assessments, Payments, and Other Specified Matters, for that year does not indicate their filing a subsequent return for the year, the parties stipulated respondent's receipt of an amended 2009 return in July 2014. Petitioners' 2009 amended return reports the following items: Wages $707,948 Taxable interest 1,384 Ordinary dividends 24,904 Capital gain 12,903 Loss from sale of business property (Form 4797) (15,226) Rental real estate loss (5,749) Losses from partnerships (1,017,589) Net farm loss (9,843) Other income 2,950 NOL carryover (9,766,818) Adjusted gross income (10,065,136) Itemized deductions 140,509 -13- [13] Exemptions 18,250 Taxable income -0- (Petitioners' originally filed return for 2009 reports the same amounts of wages, interest, dividends, and other income.) According to Schedule B, Interest and Ordinary Dividends, of petitioners' return, the taxable interest includes $1,117 from SNJ, Ltd., $4 from RNS, Ltd., and $21 from Coy Products, LLC (Coy Products). The ordinary dividends and capital gain and the loss reported on Form 4797 are from SNJ, Ltd. The partnership losses include an $84,183 nonpassive loss from SNJ, Ltd., a $668,696 nonpassive loss from RNS, Ltd., a $3,506 passive loss from RSJS Holdings Limited Partnership, a $255,302 nonpassive loss from Kentucky Partners, and a $5,902 passive loss from Dart 5485 LLC. The NOL carryforward deduction claimed on petitioners' 2009 amended return equals the adjusted gross income shown on their 2008 amended return. The notice of deficiency for petitioners' 2009 taxable year advised petitioners of respondent's determination of a deficiency of $169,869, which purported to rest on the following adjustments: -14- [14] Sched. E loss--partnership or S corp. ($5,640) Wages 707,948 Rents received (Sched. E1) (7,427) Dividends 24,904 Other income--rent and patronage 2,950 Taxable interest 1,384 Capital loss (3,000) Itemized deductions (138,935) Exemptions (12,165) The notice of deficiency does not identify the source of the $5,640 Schedule E loss deduction allowed. The explanation of the adjustments, in comparing "per exam" and "per return" amounts, states each of the latter as zero. Respondent used petitioners' amended return for 2009 as the basis for calculating his recomputed deficiency for that year. That deficiency is based on adjustments that would increase petitioners' taxable income by $10,796,217. Among those adjustments is the disallowance of deductions for all $1,017,589 of partnership losses petitioners reported on Schedule E. Respondent treated petitioners' return as showing taxable income of !$10,223,895 (adjusted gross -15- [15] income of !$10,065,136 reduced by the claimed itemized deductions and exemptions). TYE December 31, 2010 In April 2014, respondent's Fresno, California, Service Center received a signed 2010 return from petitioners that reported the following items: Taxable interest $264 Ordinary dividends 24,149 Schedule C expenses (391,426) Capital gain 243 Other gain (Form 4797) 13,456 Loss from rental real estate (9,515) Losses from partnerships and S corporations (167,691) Net farm loss (15,485) Other income 9,050 NOL carryover (10,188,499) Adjusted gross income (10,725,454) Itemized deductions (71,137) Exemptions (18,250) Taxable income -0- According to Schedule B of petitioners' 2010 return, $84 of the taxable interest and all of the dividends came from SNJ, Ltd. (The remaining interest came from -16- [16] nonpartnership sources.) The capital gain and $12,872 of the gain reported on Form 4797 also came from SNJ, Ltd. The only reported S corporation loss was a passive loss of $584. The partnership losses include a $139,447 nonpassive loss from SNJ, Ltd., a $921 nonpassive loss from RNK Family Limited Partnership, a nonpassive loss of $20,190 from RSJS Holdings Limited Partnership, and a $6,549 nonpassive loss from Coy Products. The NOL carryforward deduction claimed on petitioners' 2010 return is approximately equal to the adjusted gross income reported on their 2009 return (!$10,065,136). Respondent's notice of deficiency for petitioners' 2010 taxable year advised them of his determination of a deficiency for that year of $230,772, which purports to rest on the following adjustments: Sch C1--gross receipts or sales $9,050 Ordinary dividends 24,149 Other income--rents & patronage 51 Taxable interest 264 Sch E1--rents received (9,515) Form 4797 Gain 13,456 Capital gain from partnerships 90,800 Capital gain from other sources 730,356 SE AGI adjustment (640) -17- [17] Itemized deductions (75,475) Exemptions (14,600) As was the case for 2009, the explanation of the proposed adjustments underlying the 2010 deficiency, in comparing "per exam" and "per return" amounts, states each of the latter as zero. Respondent bases his recomputed deficiency for 2010 on adjustments to taxable income that total $11,332,509 and also includes an accuracy-related penalty under section 6662(a) of $29,834 and an addition to tax under section 6651(a)(1) of $37,287. In arriving at his recomputed deficiency, respondent treats petitioners' 2010 return as showing taxable income of !$10,814,841, equal to the adjusted gross income shown on that return (!$10,725,454) reduced by itemized deductions of $71,137 and exemptions of $18,250. The only adjustment underlying respondent's recomputed deficiency for 2010 that appears on the notice of deficiency for that year is an increase to capital gain of $730,356. The recomputed deficiency also reflects a purported disallowance of the $10,188,499 NOL carryfoward deduction petitioners claimed on their 2010 return. TYE December 31, 2011 Respondent issued a separate notice of deficiency to each petitioner for TYE December 31, 2011. The notice issued to Mrs. Stevens advised her that -18- [18] respondent had determined a deficiency in her Federal income tax for that year of $107,796. The notice respondent issued to Dr. Stevens advised him of respondent's determination of a deficiency of $41,764. Those deficiencies reflected the following combined adjustments: Sch E1--rents received $25 Taxable interest 2,530 Wages 26,538 Standard deduction (11,600) Exemptions (7,400) Capital gain 201,496 Sch C1--gross receipts or sales 45,213 Pensions and annuities 244,709 Other income--rents & patronage 26 SE AGI adjustment (1,597) On April 18, 2015, respondent's Fresno Service Center received a signed return from petitioners for 2011. Their signatures on that return are dated April 12, 2015. -19- [19] Petitioners' 2011 return reports the following items: Wages $26,539 Taxable interest from SNJ, Ltd. 78 Other taxable interest 2,496 Ordinary dividends from SNJ, Ltd. 14,221 Schedule C gross income 8,929 Schedule C expenses (144,424) Net capital gain from SNJ, Ltd. 755 Loss from sale of rental property (201,268) Pensions and annuities 240,000 Rental real estate loss (52,985) Loss from SNJ, Ltd. (566,999) Losses from other passthrough entities (1,674) Net farm income 3,509 Other income 45,213 NOL carryover (10,750,110) Adjusted gross income (11,375,720) Itemized deductions 87,508 Exemptions 18,500 -20- [20] Taxable income -0- Tax -0- The loss reported from SNJ, Ltd., for 2011 was covered by respondent's motion to dismiss. Petitioners did not provide a reconciliation of the NOL carryforward deduction from 2010 claimed on their 2011 return ($10,750,110) and the adjusted gross income reported on their 2010 return (!$10,725,454). Respondent's recomputed deficiency for 2011 rests on the following adjustments: Exemptions ($7,400) SE AGI adjustment (3,824) Sch C--income 54,142 Pensions and annuities 244,709 Interest income 2,496 Other income (rents and patronage) 26 Wages and salary income 26,538 Standard deduction (11,600) TYE December 31, 2012 Petitioners did not file a return for 2012. Respondent determined deficiencies on the basis of unreported wages, receipts reported on Schedule C, Profit or Loss From Business, pensions and annuities, interest, and capital gain. -21- [21] The adjustments stated in the notices of deficiency resulted in corrected taxable income in the combined amount of $418,175. Respondent's recomputed deficiency for 2012 does not include an adjustment for capital gain and results in corrected taxable income of $389,326. The recomputed deficiency includes an addition to tax under section 6651(a)(1) of $24,649, an addition to tax under section 6651(a)(2) of $26,292, and an addition to tax under section 6654 of $1,964. In February 2016, petitioners provided respondent with an unsigned 2012 return. Among other things, that return reports a loss from SNJ, Ltd., of $33,147, and an NOL carryforward from 2011 of !$11,463,228.8 8 The NOL carryforward from 2011 reported on petitioners' unsigned 2012 return equals the amount reported on line 41 (adjusted gross income less itemized deductions) of their 2011 return. -22- [22] OPINION I. Overview Petitioners did not file timely returns for any of their taxable years from 2006 through 2012.9 For two of those years, 2007 and 2012, petitioners did not file returns at all. Petitioners allege that the document received in October 2011 by the Internal Revenue Service Center for Ogden, Utah, was their joint return for 2007. Respondent, however, has no record of having received a signed 2007 return from petitioners. Moreover, the record does not establish the contents of the October 2011 mailing. When Dr. Stevens sought to testify at trial that his accountant had filed a 2007 return for him and his wife, we sustained respondent's objection to that testimony as hearsay. We therefore find on the basis of the record that petitioners did not file a return for 2007. 9 The notices of deficiency in response to which petitioners filed their petition in docket No. 9539-15 covered their 2005 taxable years. Respondent, however, concedes the absence of deficiencies for those years. And we previously granted respondent's motion for summary judgment that we "lack[] jurisdiction to order a refund or credit of any overpayment with respect to * * [petitioners'] 2005 tax liability." Therefore, no issues remain for us to decide in regard to petitioners' 2005 taxable years. -23- [23] Petitioners did file returns for 2006 and 2008 through 2011, but those returns were late.10 They filed a 2011 return only after filing their petition in the case that covers that year. Although petitioners presented no evidence that challenges any of the adjustments underlying the deficiencies respondent determined, for the reasons explained below, we can uphold respondent's recomputed deficiency only for 2006. For petitioners' 2008 taxable year, while we lack jurisdiction to redetermine respondent's recomputed deficiency, we do have jurisdiction under the "oversheltered return" rules of section 6234 to issue a declaratory judgment regarding items not attributable to partnerships pending any adjustment of the losses from partnerships that petitioners claim to have offset their income. Section 6234 does not apply for any of the remaining taxable years in issue (that is, 2007 and 2009 through 2012). The oversheltered return rules provided in that section do not apply for petitioners' 2007 and 2012 taxable years because they did not file returns for those years. And section 6234 does not apply for petitioners' 2009, 2010, or 2011 taxable year because the adjustments in the notice of deficiency for each year would not result in a deficiency in petitioners' joint 10 Respondent has no record of having received an original return from petitioners for their 2008 taxable year. In June 2014, however, he received an amended 2008 return that he treated as petitioners' original return for that year. -24- [24] income tax liability even if petitioners had not claimed a net loss from partnerships for the year. Respondent concedes that the adjustments he seeks for petitioners' 2009 taxable year do not result in a deficiency. And we cannot uphold respondent's recomputed deficiency for 2007, 2010, 2011, or 2012. Upholding the deficiencies respondent determined for 2007, 2011, and 2012 would deny petitioners a prepayment forum for contesting the adjustment of partnership losses, contrary to Congress' intent in enacting section 6234. And the deficiency he determined for 2010 depends on the disallowance of an NOL carryforward deduction that cannot be adjusted without adjustment of the partnership losses that gave rise to it. Consequently, for petitioners' taxable years 2007 and 2009 through 2012, we face a choice between concluding that we lack jurisdiction or instead accepting jurisdiction under section 6214(a)11 and concluding that petitioners have no deficiency for any of those years. That choice turns on the validity of the notices of deficiency respondent issued for the affected years. We see no grounds on which to invalidate the notices of deficiency for petitioners' taxable years 2007 and 2009 through 2012, even though the adjustments reflected in those notices 11 Sec. 6214(a) grants us "jurisdiction to redetermine the correct amount of the deficiency" stated in a notice of deficiency when a taxpayer files a petition for redetermination of that deficiency. -25- [25] would not result in deficiencies after taking into account the claimed partnership losses. Therefore, we must conclude that petitioners have no deficiencies for any of those years. In the balance of this opinion, we explain in more detail our determination of the extent of our jurisdiction for each of the taxable years before us and how we exercise that jurisdiction. II. Year-by-Year Determination and Exercise of Jurisdiction A. 2006 Respondent asks that we uphold his recomputed deficiency for petitioners' 2006 taxable year. We can do so, however, only if the oversheltered return rules of section 6234 do not apply for that year. 1. Section 6234 Oversheltered Return Rules: In General TEFRA's unified partnership audit and litigation rules require that the tax treatment of partnership items12 be determined in partnership-level proceedings that are generally binding on all partners. When applicable, the TEFRA 12 Sec. 6231(a)(3) defines "partnership item" to mean "any item required to be taken into account for * * [a] partnership's taxable year * * * to the extent regulations prescribed by the Secretary provide that * * * such item is more appropriately determined at the partnership level than at the partner level." Special rules also apply to "affected items", which include any item that, though not itself a partnership item, is nonetheless "affected by a partnership item." See sec. 6231(a)(5). -26- [26] partnership rules avoid the need for duplicative partner-level proceedings that might produce inconsistent results. Staff of J. Comm. on Taxation, General Explanation of the Revenue Provisions of the Tax Equity and Fiscal Responsibility Act of 1982, at 268 (J. Comm. Print 1982). The rules generally require the Internal Revenue Service (IRS) to conduct partnership-level proceedings to adjust partnership items before assessing tax against a partner as a result of the partnership adjustments. If a partner claims a large enough loss from a partnership subject to the TEFRA rules, that loss might not only shelter the income reported by the partner on his individual return but also absorb the effect of any adjustments the IRS seeks to make to the partner's nonpartnership items, thereby preventing the determination of a deficiency. Congress enacted the "oversheltered return" rules of section 6234 to address that prospect. Those rules apply when four conditions are met. First, the taxpayer must "file[] an oversheltered return for a taxable year". Sec. 6234(a)(1). A return is "oversheltered" if it shows no taxable income and a net loss from partnership items. Sec. 6234(b). Second, the Commissioner must "make[] a determination with respect to the treatment of items (other than partnership items)" of the taxpayer for the taxable year in question. Sec. 6234(a)(2). Third, it must be the case that the Commissioner's adjustments to -27- [27] nonpartnership items "do not give rise to a deficiency". Sec. 6234(a)(3). And fourth, those adjustments "would give rise to a deficiency if there were no net loss from partnership items". Id. In short, the rules apply when the effects of adjustments to nonpartnership items are absorbed by the taxpayer's reported net partnership loss so that the adjustments do not produce a deficiency. When the oversheltered return rules apply, instead of issuing a notice of deficiency to the taxpayer, the Commissioner can "send a notice of adjustment" that reflects his determination regarding nonpartnership items. Sec. 6234(a). The taxpayer can then file with this Court "a petition * * * for redetermination of the adjustments." Sec. 6234(c). Such a petition gives us "jurisdiction to make a declaration with respect to all items (other than partnership items and affected items which require partner level determinations as described in section 6230(a)(2)(A)(i)) for the taxable year to which the notice of adjustment relates". Id.13 13 When partnership items are adjusted through partnership-level proceedings, the Commissioner can generally collect additional tax due from the partners as a result of those adjustments without following the deficiency procedures prescribed by subch. B of ch. 63. Sec. 6230(a)(1) provides as a general rule that those procedures "shall not apply to the assessment or collection of any computational adjustment." Sec. 6231(a)(6) defines the term "computational adjustment" to mean "the change in the tax liability of a partner which properly reflects the treatment under * * * [the TEFRA partnership rules] of a partnership (continued...) -28- [28] Congress enacted section 6234 to "overrule[]" this Court's decision in Munro v. Commissioner, 92 T.C. 71 (1989). S. Rept. No. 105-33, at 253 (1997). In Munro, the Commissioner sought to make adjustments to nonpartnership items of the taxpayers that would not, of themselves, have resulted in a deficiency because of losses the taxpayers reported from TEFRA partnerships. The taxpayers moved to dismiss for lack of jurisdiction on the ground that the Commissioner had not determined a deficiency. The Commissioner argued that "solely for the purpose of computing * * [the taxpayers'] deficiency attributable to disallowed nonpartnership items", he should be permitted to "prospectively disallow[]" the partnership losses pending the completion of TEFRA proceedings. Munro v. Commissioner, 92 T.C. 73. We concluded that we had jurisdiction and denied the taxpayers' motion to dismiss, reasoning as follows: [P]artnership items must be ignored in deficiency proceedings, which relate exclusively to nonpartnership items. * * * By the same token, respondent may not take his proposed TEFRA partnership adjustments into account in a deficiency proceeding for any purpose, including the computation of the deficiency arising out of adjustments to nonpartnership items. All partnership items must be separated from nonpartnership items and are exclusively the subject of a 13 (...continued) item." Sec. 6230(a)(2)(A), however, provides that deficiency procedures are required in the case of "any deficiency attributable to * * * affected items which require partner level determinations (other than penalties, additions to tax, and additional amounts that relate to adjustments to partnership items)". -29- [29] partnership proceeding. Deficiency proceedings must exclusively consider nonpartnership items. Consequently, partnership items (whether income, loss, deductions or credits) included on petitioners' return are completely ignored to determine if a deficiency exists that is attributable to nonpartnership items. Any proposed adjustments to those partnership items likewise must be ignored. Id. at 74. The upshot was that we ignored the partnership losses in determining whether the nonpartnership adjustments resulted in a deficiency. The approach we envisioned in Munro would put a taxpayer in the position of having to pay the tax resulting from adjustments to nonpartnership items that would be sheltered by partnership losses and then seek a refund if those partnership losses were ultimately upheld. That approach would effectively deny the taxpayer a prepayment forum for contesting the adjustment of the partnership items. Congress enacted section 6234 in part to address that concern. See Staff of J. Comm. on Taxation, General Explanation of Tax Legislation Enacted in 1997 (1997 Blue Book), at 369-370 (J. Comm. Print 1997). The Commissioner's issuance of a notice of deficiency does not preclude the application of the oversheltered return rules for the year or years covered by the notice. Section 6234(h)(2) provides: If the Secretary erroneously determines that subchapter B [regarding deficiency procedures] applies to a taxable year of a taxpayer and consistent with that determination timely mails a notice of deficiency to the taxpayer pursuant to section 6212, the notice of deficiency shall -30- [30] be treated as a notice of adjustment under subsection (a) and any petition that is filed in respect of the notice shall be treated as an action brought under subsection (c). 2. Applicability of Section 6234 for Petitioners' 2006 Taxable Year Respondent argues that "section 6234 does not apply to * * * [petitioners'] 2006 * * * tax year[] because * * * [his] adjustments to nonpartnership items are sufficient to establish a deficiency without adjusting any partnership items." The only noncomputational adjustments reflected in respondent's recomputed deficiency for petitioners' 2006 taxable year are his disallowance of the deductions for losses petitioners claimed from Arlington Farms and SNJ RNK RSJS. Respondent's position that section 6234 does not apply for that year rests on the premise that the losses from Arlington Farms and SNJ RNK RSJS are not partnership items because each partnership was covered by the "small partnership" exception from the TEFRA rules. If we accept that premise, it would follow that section 6234 does not apply for petitioners' 2006 taxable year because the third condition for its application would not be met: Respondent's disallowance of the loss deductions claimed from those partnerships would be nonpartnership adjustments that would give rise to a deficiency. See sec. 6234(a)(3). -31- [31] a. SNJ RNK RSJS' Qualification as a Small Partnership Section 6231(a)(1)(B)(i) provides: "The term 'partnership' shall not include any partnership having 10 or fewer partners each of whom is an individual (other than a nonresident alien), a C corporation, or an estate of a deceased partner." That limitation "is applied to the number of natural persons, C corporations, and estates of deceased partners that were partners at any one time during the partnership taxable year." Sec. 301.6231(a)(1)-1(a)(1), Proced. & Admin. Regs. Thus, a partnership qualifies for the exception for a taxable year only if it meets the 10-or-fewer limitation throughout that year. See id. subpara. (3) ("The determination of whether a partnership meets the requirements for the exception for small partnerships * * shall be made with respect to each partnership taxable year."). The record includes an unsigned 2006 partnership return for SNJ RNK RSJS that identifies petitioners as the entity's only partners. And petitioners did not object to respondent's proposed finding, on the basis of that return, that "SNJ RNK RSJS had two partners for the 2006 tax year, petitioner Ritchie N. Stevens and petitioner Julie A. Keen Stevens".14 We can treat petitioners' claim of 14 In violation of Rule 151(e)(3), petitioners' reply brief does not formally address any of respondent's proposed findings of fact. -32- [32] itemized deductions other than charitable contributions on their 2006 return as an admission that they were either citizens or residents of the United States during 2006. See sec. 873 (limiting the deductions allowable to nonresident aliens). Therefore, we find that petitioners were the only partners of SNJ RNK RSJS during 2006 and that each was either a citizen or a resident of the United States during that year. On the basis of that finding, we conclude that SNJ RNK RSJS qualified for the small partnership exception from the TEFRA rules for 2006. b. Arlington Farms' Qualification as a Small Partnership Disallowance of a deduction for the $917,896 loss petitioners reported for 2006 from SNJ RNK RSJS would not, by itself, result in a deficiency. Respondent's calculation of his recomputed deficiency for 2006 shows "Taxable Income Per Return or as Previously Adjusted" of !$2,236,353. If the $1,535,078 loss that petitioners reported for 2006 from Arlington Farms is a partnership item, the oversheltered return rules of section 6234 would apply for petitioners' 2006 taxable year. Therefore, we must decide whether, as respondent claims, Arlington Farms also qualified for the small partnership exception of section 6231(a)(1)(B)(i) for 2006. -33- [33] Respondent contends that we have already determined, for purposes of petitioners' 2006 case, that Arlington Farms "fell under the small partnership exception[]". Respondent bases that contention on our having granted his motion to dismiss for lack of jurisdiction those portions of the consolidated cases that "relate[] to * * * partnership items". But that motion asked only for a ruling that we did not have jurisdiction over items respondent viewed as partnership items. Respondent did not seek summary judgment affirming our jurisdiction over items of those partnerships he does not view as subject to the TEFRA rules. Respondent's motion included the assertion that "Arlington Farms qualifies for the small partnership exception of section 6231(a)(1)(B) and the Court has jurisdiction in the present cases to determine the nonpassive loss of $1,535,078.00" that petitioners reported from that partnership for 2006. But the motion did not ask for a ruling to that effect. As we read it, the motion addressed Arlington Farms and other partnerships that respondent does not regard as subject to the TEFRA rules only by way of explaining why he did not include those partnerships in his motion to dismiss for lack of jurisdiction. We find no evidence in the record concerning the constituency of Arlington Farms' partners during 2006. Respondent's posttrial brief includes a proposed finding of fact that "Arlington Farms had less than 10 partners, all of whom were -34- [34] individuals and not pass-thru partners". He bases that proposed finding on his search of the Oregon secretary of state's business registry, which identifies both petitioners and Ms. Pesce as "registrants". Even leaving aside that the entry speaks only as of 2008--two years after the year in issue--the online registry indicates that "Partner (PTN)" and "Registrant (REG)" are separate categories of persons associated with the entity in question. http://egov.sos.state.or.us/br/ pkg_br_web_assoc_name_srch.main (last visited May 1, 2020). Therefore, the three individuals identified as "registrants" may not be partners, or may not be the entity's only partners. As noted above, petitioners' reply brief did not formally address any of respondent's proposed findings of fact, as required by Rule 151(e)(3). In a portion of their opening brief in which they accuse respondent of having failed to comply with section 6234, however, petitioners assert: "Respondent's self-serving classifications, are severely wanting as even Arlington Farms partnership is one that is in excess of 10 people".15 Petitioners cite no evidence, however, concerning the number and identity of Arlington Farms' partners during 2006. 15 For good measure, petitioners add that one of respondent's attorneys "has personal knowledge thereof." -35- [35] Even if we were to accept respondent's proposed finding because of petitioners' failure to challenge it, however, that finding would not support the conclusion that Arlington Farms was a small partnership for 2006. Having 10 or fewer partners who were all individuals is not enough to qualify for the small partnership exception. In addition, none of the individuals can be a nonresident alien. And respondent's proposed finding does not address the citizenship or residence of Arlington Farms' partners. Because the record does not allow us to determine the identity of Arlington Farms' partners during 2006, we must consider which party bears the burden of proving those facts that establish our jurisdiction. We start with the "longstanding principle that the party invoking this Court's jurisdiction bears the burden of demonstrating that it exists." Dees v. Commissioner, 148 T.C. 1, 23 (2017) (Ashford, J., concurring in the result only). Application of that principle usually places the burden of proof on the taxpayer--who is, after all, the party who initially invoked the Court's jurisdiction by filing a petition. But when the Commissioner is the party arguing in favor of jurisdiction--for example, in response to a taxpayer's motion to dismiss--it may be appropriate to place on the Commissioner the burden of proving the facts that establish the Court's jurisdiction. See, e.g., Pietanza v. Commissioner, 92 T.C. 729, 736-737 (1989) (allocating to the -36- [36] Commissioner, for the purpose of the taxpayer's motion to dismiss, the burden of proving the existence of a notice of deficiency and the date of its mailing), aff'd, 935 F.2d 1282 (3d Cir. 1991); see also Jimastowlo Oil, LLC v. Commissioner, T.C. Memo. 2013-195, at 6 (imposing on the Commissioner the burden of proving facts to establish the Court's jurisdiction to disallow deductions without prior TEFRA partnership proceedings). We choose not to impose on respondent, however, the burden of proving Arlington Farms' qualification for the small partnership exception for purposes of petitioners' 2006 case. Respondent has sought information from petitioners about the constituency of Arlington Farms' partners. Petitioners, who ought to have better access to the relevant information than does respondent, either could not or would not provide it to him.16 Under those circumstances, we will not require 16 In March 2015, respondent provided petitioners with a request for the production of documents asking for, among other things, a copy of Arlington Farms' tax return for 2006 and supporting books and records. When petitioners failed to provide those documents, respondent moved to compel their production. We denied respondent's motion to compel production after being advised by petitioners during a conference call with the parties that they did not have any of the requested documents in their possession. After respondent found the entry for Arlington Farms in the Oregon secretary of state's business registry, he requested petitioners' answers to interrogatories concerning the partnership, including the number and identity of its partners. When petitioners failed to respond, respondent filed a motion to compel responses to those interrogatories. We issued an order granting respondent's motion and then denied a motion petitioners filed to (continued...) -37- [37] respondent to proceed at his peril in choosing the appropriate forum for challenging partnership items and create the risk of denying him any forum for contesting the loss deduction petitioners claimed for 2006 from Arlington Farms. See Harrell v. Commissioner, 91 T.C. 242, 247 (1988). Harrell addressed a condition for the small partnership exception that Congress repealed in 1997. Under pre-1997 law, a partnership did not qualify as a small partnership, regardless of the constituency of its partners, unless it allocated all partnership items among its partners pro rata. The parties in Harrell agreed that the partnership in question met the requirement regarding the number and identity of its partners. Moreover, during the year in issue, the partnership allocated all of its items among those partners in the same proportions. The partnership agreement provided for disproportionate allocations in some circumstances, but those circumstances had not arisen during the year in question. The Commissioner argued that he ought to be able to determine compliance with the "same share" rule simply by looking at the partnership return and Schedules K-1, Partner's Share of Income, Deductions, Credits, etc. A majority of the Court agreed. The Court 16 (...continued) vacate that order. The record provides no evidence that petitioners thereafter responded to respondent's interrogatories. At trial, when the Court asked whether petitioners had any evidence that Arlington Farms was subject to the TEFRA rules, the response given was: "We don't know, Your Honor." -38- [38] reasoned that the Commissioner, in determining whether to follow the TEFRA procedures, should not be required to make that determination "at his peril." Id. Even though Harrell's specific holding involved prior law and is thus irrelevant to petitioners' 2006 case, the general principle on which that holding rests remains viable and applies here. Jimastowlo Oil does not prevent us from applying the Harrell principle to impose on petitioners, rather than respondent, the burden of proving Arlington Farms' qualification as a small partnership for 2006. In Jimastowlo Oil, we imposed on the Commissioner the burden of establishing that a joint investment in oil and gas programs did not create a partnership. Jimastowlo Oil did not involve the qualification of an acknowledged partnership for the small partnership exception. The record before us identified the owners of the oil and gas programs and provided enough information about those programs to enable the Commissioner to conduct a partnership-level audit. Thus, the facts in Jimastowlo Oil did not raise the risk of whipsaw to the Commissioner by putting him in the position of learning, only after having initiated partnership proceedings, that he was correct to have addressed the deductions in issue at the partner level after all. -39- [39] Because the record does not allow us to determine whether Arlington Farms qualified for the small partnership exception for 2006, our assignment of the burden of proof to petitioners requires that we accept respondent's position that the partnership did qualify so that we have jurisdiction to consider petitioners' entitlement to the loss deduction they claimed for that year from Arlington Farms. Because respondent's disallowance of the loss deductions petitioners claimed from both SNJ RNK RSJS and Arlington Farms were adjustments to nonpartnership items that gave rise to a deficiency for petitioners' 2006 taxable year, the oversheltered return rules of section 6234 do not apply for that year. We thus have jurisdiction to redetermine the deficiency respondent determined, as recomputed to reflect our dismissal of partnership items from the case. 3. Determination of Deficiency Respondent's recomputed deficiency for petitioners' 2006 taxable year rests on the disallowance of the loss deductions they claimed from Arlington Farms and SNJ RNK RSJS. Petitioners offered no evidence to substantiate either loss. The notice of deficiency for 2006 determined an addition to tax under section 6651(a)(1) and an accuracy-related penalty under section 6662(a). Respondent's recomputed deficiency calculations provide only for an accuracy- related penalty for 2006. And on brief, respondent conceded that penalty. -40- [40] Therefore, we will uphold respondent's recomputed deficiency for petitioners' 2006 taxable year except to the extent it includes the addition to tax and the penalty that respondent now concedes. B. 2007 1. Inapplicability of Oversheltered Return Rules We agree with respondent that section 6234 does not apply for petitioners' 2007 taxable year. Because they did not file a return for that year, the condition specified in section 6234(a)(1) (the taxpayer's filing of an oversheltered return) cannot be met for that year. 2. Inability To Uphold Respondent's Recomputed Deficiency Respondent argues that, because the oversheltered return rules do not apply for petitioners' 2007 taxable year, we can--and should--uphold his recomputed deficiency for that year. Respondent reasons that, because petitioners did not file a 2007 return, "there is no net loss from partnership items to overcome." Therefore, he asserts, the adjustments underlying his recomputed deficiency for 2007 "are clearly sufficient to establish a deficiency". Respondent bases his recomputed deficiency for 2007 on $173,658 of nonpartnership income, all of which appears to have been shown on the unsigned return petitioners provided to respondent. But petitioners' unsigned 2007 return -41- [41] also reported a net loss of $6,893,357 from partnerships covered by respondent's motion to dismiss.17 In asking us to uphold his recomputed deficiency for 2007, respondent thus asks that we sustain his adjustments to nonpartnership items while ignoring partnership losses. In other words, he invites us to follow the approach we took in Munro and that Congress rejected when it "overrule[d]" our decision in that case with its enactment of the oversheltered return provisions. See 1997 Blue Book at 370. We decline the invitation. Petitioners' failure to file a return for 2007 renders inapplicable the provisions Congress enacted to deal with the problem Munro illustrates. But the inapplicability of section 6234 does not resuscitate Munro. The staff of the Joint Committee on Taxation explained that, in overruling Munro when it enacted the Taxpayer Relief Act of 1997, Congress intended the IRS to "return to its prior practice of computing deficiencies by assuming that all TEFRA items whose treatment has not been finally determined had been correctly reported on the taxpayer's return." 1997 Blue Book at 370. If we follow that approach here and accept the $6,893,357 net loss petitioners "reported" from 17 Because SNJ, Ltd., was covered by respondent's motion to dismiss, we take him to accept the partnership's existence even though it did not file a partnership return for 2007. Thus, petitioners are not seeking to avoid a deficiency for a year for which they failed to file a return by claiming a loss from a fictitious partnership. -42- [42] TEFRA partnerships (albeit on an unsigned, unfiled return), the adjustments respondent seeks to make to various nonpartnership income items would not result in a deficiency.18 3. Validity of Notices of Deficiency As noted at the outset, our inability to uphold respondent's recomputed deficiency presents us with the choice of either concluding that we do not have jurisdiction or instead accepting our jurisdiction under section 6214(a) and concluding that--at least at this juncture--petitioners do not have a deficiency for their 2007 taxable year. It might be tempting to think that Congress' overruling of Munro means that, in circumstances in which section 6234 does not apply, we should grant the result the taxpayers sought in that case. They did not seek a determination that they did not have a deficiency for the taxable year in issue. Instead, they asked that we dismiss the case for lack of jurisdiction. 18 A claim of a loss from a TEFRA partnership reported on a signed and filed return may be more credible than one reported on an unsigned return provided to the Commissioner in the course of litigation in that facts stated in the former are attested to under penalties of perjury. See sec. 6065. Nonetheless, taxpayers do not forfeit their right to a prepayment forum concerning their individual income tax liabilities when they fail to file returns. Similarly, petitioners' failure to file a 2007 return should not deprive them of a prepayment forum for contesting any adjustment of the loss they profess to have been allocated by SNJ, Ltd. Contrary to respondent's assertion, petitioners' failure to file a 2007 return does not establish that "there is no net loss from partnership items to overcome." -43- [43] Petitioners, as well, raise the issue of our jurisdiction. In fact, all of the assignments of error in their petition in docket No. 9539-15, which includes their 2007 taxable year, seem to go the question of our jurisdiction. And petitioners continue to raise the question of our jurisdiction in their briefs. To the extent we can decipher their arguments, however, they seem to go to respondent's alleged failure to consider the returns they filed rather than specifically to the need to adjust the reported partnership losses before deficiencies can be determined. The taxpayers in Munro argued that the notice of deficiency they received was invalid because it did not reflect the Commissioner's determination of a deficiency. The taxpayers reasoned that the Commissioner could not have determined a deficiency without adjusting through partnership-level proceedings the losses that they claimed offset their nonpartnership income. Because petitioners' case is distinguishable from Munro, the notices of deficiency they received for their 2007 taxable years cannot be invalid for the reasons on which the taxpayers based their argument in that case. The deficiencies stated in the notices respondent issued to petitioners do not purport to rest on the disallowance of partnership losses. When respondent issued the notices, he had no reason to know of petitioners' claim of partnership losses that, if valid, would eliminate the deficiencies he determined. -44- [44] The fact that the adjustments reflected in the notices of deficiency did not result in deficiencies after taking into account the partnership loss deductions petitioners now claim does not require us to invalidate the notices. In deficiency cases, "it is not the existence of a deficiency but the Commissioner's determination of a deficiency that provides a predicate for Tax Court jurisdiction." Hannan v. Commissioner, 52 T.C. 787, 791 (1969). In short, the notices of deficiency respondent issued to petitioners for their 2007 taxable years are not invalid for the reasons advanced by the taxpayers in Munro. But that, of course, does not establish the notices' validity. We must evaluate them under the generally applicable standards governing the validity of notices of deficiency. In Dees v. Commissioner, 148 T.C. 5, we distilled our prior caselaw into a "two-prong approach to the question of the validity of * * * [a] notice of deficiency." In the first step of the Dees approach, "we look to see whether the notice objectively put a reasonable taxpayer on notice that the Commissioner determined a deficiency in tax for a particular year and amount." Id. at 6. A notice that meets that test is valid, without the need for further inquiry. If instead the notice is "ambiguous", we wrote, "the party seeking to establish jurisdiction * * * [must] establish that the Commissioner made a determination and that the -45- [45] taxpayer was not misled by the ambiguous notice." Id. The notices of deficiency issued to petitioners for their 2007 taxable years satisfy the first prong of the Dees test. The notices advised petitioners that respondent had determined that each of them had a deficiency of $15,825 for 2007. The opinion of the Court of Appeals for the Ninth Circuit in Scar v. Commissioner, 814 F.2d 1363 (9th Cir. 1987), rev'g 81 T.C. 855 (1983), on which petitioners rely, does not give us reason to depart from our precedent in Dees.19 The taxpayers in Scar received a notice of deficiency that advised them of the Commissioner's purported determination of a deficiency in a specified amount for a specified year. The notice was accompanied by an explanation of the adjustments underlying the deficiency that referred to the disallowance of deductions that the taxpayers had not claimed, arising from a tax shelter in which they had not invested. Another document included with the notice of deficiency indicated that the deficiency was pro forma in amount, arrived at by multiplying the purportedly disallowed deduction by the highest marginal tax rate. The 19 Because petitioners resided in Nevada when they filed their petitions in the cases before us, appeal of our decisions would normally be to the Court of Appeals for the Ninth Circuit. See sec. 7482(b)(1). To the extent that that court's caselaw differs from our own, we would defer to the Court of Appeals. See Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff'd, 445 F.2d 985 (10th Cir. 1971). -46- [46] document explained that a more accurate calculation of a deficiency was not possible at that time because the taxpayers' return was "unavailable". Id. at 1365. The Court of Appeals for the Ninth Circuit, in contrast to this Court, agreed with the taxpayers' observation that "section 6212(a) authorizes the Commissioner to send a notice of deficiency only if he first 'determines that there is a deficiency.'" Id. at 1366. The Court of Appeals framed the issue before it as "whether a form letter that asserts that a deficiency has been determined, which letter and its attachments make it patently obvious that no determination has in fact been made, satisfies the statutory mandate." Id. at 1367. On the basis of the relevant statutory provisions, and in "the absence of evidence of contrary legislative intent," the court "conclude[d] that the Commissioner must consider information that relates to a particular taxpayer before it can be said that the Commissioner has 'determined' a 'deficiency' in respect to that taxpayer." Id. at 1368. "Because the Commissioner's purported notice of deficiency revealed on its face that no determination of tax deficiency had been made in respect to the Scars for the * * * [relevant] tax year," the court reasoned, the notice "did not meet the requirements of section 6212(a)." Id. at 1370. The notices of deficiency issued to petitioners for their 2007 taxable years are readily distinguishable from the notice at issue in Scar. The correspondence -47- [47] between several of the adjustments reflected in the notices of deficiency and the amounts shown on petitioners' unsigned return for 2007 shows that, in determining the deficiencies, respondent considered information related to petitioners (presumably reported to him by third parties). Respondent did not make his determinations in disregard of returns filed by petitioners; we have found that petitioners filed no return for 2007. Therefore, the opinion of the Court of Appeals for the Ninth Circuit in Scar does not require us to hold invalid the notices of deficiency respondent issued to petitioners for their 2007 taxable years. We thus conclude that the notices of deficiency respondent issued to petitioners for their 2007 taxable years were valid, so that petitioners' filing of a petition in response to those notices gave us jurisdiction under section 6214(a) to redetermine the deficiencies reflected in the notices. Our exercise of that jurisdiction requires that we determine whether petitioners have a deficiency for 2007 and, of so, in what amount. 4. Redetermination of Deficiency The adjustments underlying respondent's deficiency, as recomputed to take into account our dismissal of partnership items from the case, would not result in a deficiency unless and until the losses petitioners report from TEFRA partnerships -48- [48] are adjusted in partnership-level proceedings. Consequently, petitioners have no deficiency for 2007. We see no respect in which respondent will be prejudiced by our determination that, at this stage in the consideration of petitioners' 2007 taxable years, they have no deficiency. Following a sufficient adjustment, through partnership-level proceedings, of the loss petitioners report from SNJ, Ltd., respondent will be able to assess tax on the nonpartnership income reflected in the notices of deficiency. Our conclusion that petitioners have no deficiency at this juncture does not rest on the determination of any particular amount of nonpartnership income. Therefore, unless petitioners file a return for 2007 before the completion of partnership-level proceedings for SNJ, Ltd., for the same year,20 respondent will be unable to assess as a computational adjustment under section 6230(a)(1) the tax petitioners owe as a result of adjustment of the SNJ, Ltd. loss. In that event, further deficiency proceedings would presumably be required to determine petitioners' nonpartnership income for 2007. But our disposition of the present cases will not foreclose future deficiency proceedings. Section 6231(e)(1) 20 Should petitioners file a 2007 return before the completion of any partnership-level proceedings concerning SNJ, Ltd., for that year and respondent determines that that return understates petitioners' nonpartnership income, respondent could then issue a notice of adjustment under sec. 6234(a). -49- [49] provides in part: "No judicial determination with respect to the income tax liability of any partner not conducted under this subchapter [sections 6221 through 6234] shall be a bar to any adjustment in such partner's income tax liability resulting from--(A) a proceeding with respect to partnership items under this subchapter". C. 2008 1. Jurisdiction Although respondent argues that "the oversheltered return provisions of I.R.C. § 6234 have a limited application" in these cases, he accepts that the rules of that section apply for petitioners' 2008 taxable year. We agree. Petitioners' 2008 amended return reports no taxable income, and losses from partnerships. The partnership losses include a loss from RSJS Holdings, which respondent claims to be covered by the small partnership exception. For the reasons explained infra part II.C.2.b, we will accept that claim. But the remaining partnership losses were covered by respondent's motion to dismiss. Therefore, petitioners' 2008 amended return shows a net loss from TEFRA partnerships. Because that return shows no taxable income and a net loss from partnership items, it is an oversheltered return, within the meaning of section 6234(b). -50- [50] The notice of deficiency respondent issued to petitioners for their 2008 taxable year reflects "determination[s] with respect to the treatment of" nonpartnership items, see sec. 6234(a)(2), including $4,072 of unreported rental and patronage income and $3,378,419 of capital gain from sources other than partnerships and the disallowance of the $5,288,778 NOL carryforward deduction from 2007 that petitioners claimed on their 2008 return, a net farm loss of $19,834, and the $14,743 claimed loss deduction from RSJS Holdings. Respondent's adjustments to nonpartnership items "do not give rise to a deficiency". See sec. 6234(a)(3). Those adjustments would increase petitioners' taxable income by $8,705,846 ($4,072 + $3,378,419 + $5,288,778 + $19,834 + $14,743). By contrast, the notice of deficiency states "Taxable Income Per Return or as Previously Adjusted" as !$9,865,540. But the nonpartnership adjustments of $8,705,846 do exceed the amount of negative taxable income that would have been shown on petitioners' 2008 amended return in the absence of partnership losses (!9,865,540 + $144,766 loss from RNS, Ltd. + $5,006,112 loss from SNJ, Ltd. = !$4,714,662). Therefore, the adjustments to nonpartnership items shown on the 2008 notice of deficiency "would give rise to a deficiency if there were no net loss from partnership items." See sec. 6234(a)(3). All four conditions for the application of section 6234 are thus met in regard to petitioners' 2008 taxable year. -51- [51] Respondent determined that the deficiency procedures of subchapter B of chapter 63 applied for petitioners' 2008 taxable year and, consistent with that determination, timely mailed a notice of deficiency to petitioners pursuant to section 6212. Because all of the conditions for the application of section 6234 were met, however, respondent's determination was erroneous. Consequently, under section 6234(h)(2), the notice of deficiency must be treated as a notice of adjustment under section 6234(a) and the petition that petitioners filed in response to that notice must be treated as an action brought under section 6234(c). Because petitioners filed a petition that must be treated as one for redetermination of respondent's adjustments to their nonpartnership items for 2008, we have jurisdiction under section 6234(c) to "make a declaration with respect to" those items for that year that are neither partnership items nor affected items that require partner level determinations. 2. Exercise of Jurisdiction Respondent advises us that, because "the oversheltered return provisions of I.R.C. § 6234 are applicable to * * [petitioners'] 2008 tax year", we "should * * * issue a declaratory judgment as to the adjustments for the 2008 tax year." But he does not specify which adjustments he believes should be included in that judgment. -52- [52] On brief, respondent concedes that he erred in including in his recomputed deficiency for 2008 the $5,150,888 of loss deductions petitioners claimed from RNS, Ltd., and SNJ, Ltd. (both items that were covered by his motion to dismiss), and that the remaining adjustments "are insufficient to establish a deficiency." Respondent also "concedes the Other Income (rents and patronage) adjustment of $4,072.00 for the 2008 tax year". Therefore, we understand respondent to be seeking a declaratory judgment under section 6234(c) for petitioners' 2008 taxable year sustaining the following adjustments: (1) unreported capital gain of $3,378,419 from sources other than partnerships, (2) disallowance of the $14,743 loss deduction that petitioners claimed from RSJS Holdings, which respondent claims to be covered by the small partnership exception of section 6231(a)(1)(B)(i), (3) disallowance of a deduction for a net farm rental loss of $19,834 that petitioners reported on Schedule E, and (4) disallowance of the $5,288,778 NOL carryforward deduction from 2007 claimed on petitioners' 2008 amended return. In addition, we understand respondent to continue to assert that petitioners are liable for an addition to tax under section 6651(a)(1) and a section 6662(a) accuracy-related penalty for their 2008 taxable year. We address each of those items, in turn, below. -53- [53] a. Capital Gain i. The Parties' Arguments Respondent presents the following argument in support of his adjustment to petitioners' 2008 capital gain: The amounts realized from the stock sales in 2008 * * * are established by records summonsed from * * * brokers. In some instances, the summonsed brokerage records matched amount realized against cost basis to provide a net gain for stock transactions. Where such net gain (or loss) was provided in the summonsed records, it was accepted by respondent. However, in most instances, the brokerage records provided only the sales price received as to each transaction. Although the brokerage records also showed the petitioners' total stock purchases for the year, there was no way to connect any specific purchase to any specific sale. Respondent solicited basis information and records from petitioners so as to account for the basis in determining gain. Not receiving such information and records, respondent adopted a method to estimate basis. The method used to estimate basis was to allow the total purchases during the year as the established cost for the total amount of stock sold during such year. Thus, where net gain or loss was not provided by the brokerage records, respondent computed the gain by subtracting total purchases during the year from the total sales during the year. Although not precise, it at least allowed petitioners an estimated basis, a concession that respondent was willing to make. At trial, consistent with their prior approach, petitioners failed to adduce any specific evidence of basis in the stock sales * * . Certainly, they did not adduce evidence to establish that the actual basis was more than the amount respondent had established. According[ly], respondent's determinations * * should be sustained. Petitioners argue that "all of respondent's re-computations defy accepted accounting principles. It's patently evident that this involves stock transactions -54- [54] extending over a period from 2005 through 2012". We understand petitioners to suggest that some of the stock sold during 2008 may have been purchased in an earlier year. Petitioners thus claim that respondent's simplifying assumption defies all rationale in reason, as any stock existing over a year uses FIFO principles, and more importantly, records from the brokerage houses subpoenaed by respondent, provided the "cost basis" as reported on reporting documents forms 1099 etc. that are contained in respondent's records. It appears that respondent is oblivious to all of this and all of the documents and support (which contains approximately 769 pages as Attached to Petitioner's Motion for Order of Deposition and incorporated herein by reference) all of which has been submitted to respondent on at least three different occasions since June 2014 (See ER pages 2419-3817),[21] Petitioners' reply brief includes a worksheet from a 2008 Schedule D, Capital Gains and Loss, for one of their brokerage accounts (as well as for SNJ, Ltd.) that shows a loss. At the conclusion of their reply brief, petitioners state: Petitioners respectfully submit, that it should be self-evident, from the thousands of yearly stock transactions representing millions of dollars, that respondent's argument as to "cost basis" and "at risk" to disallow documented losses, is specious, if not scurrilous, and at the very least jejune, as we are talking about the majority of losses pursuant to and dictated from stock transactions as recognized by respondent, ergo, inherently the basis established by the value of the stock and SEC requirements establishing the "at risk" and "cost basis" thereof. 21 The paragraph of petitioners' brief from which we quote ends in mid- sentence. -55- [55] ii. Analysis Respondent is incorrect in claiming that he used in his calculations any information about stock basis provided by petitioners' brokers. Respondent's calculation of petitioners' gain from their Interactive Brokers account makes no use of the transaction-by-transaction list of basis and gain or loss included in the Activity Statement provided to him. Instead, respondent simply compares total purchases to total proceeds. Although the Activity Statement provides data that respondent failed to use, that statement offers no instructions on how to interpret that data, the meaning of which is not obvious.22 Because it is not clear how respondent should have used the data, we do not fault him for failing to take that data into account in computing a net gain from the activity in petitioners' Interactive Brokers account. Petitioners correctly observe that respondent's method of estimating basis is unauthorized. A taxpayer attempting to use that method would not meet his burden of proof. Section 1.1012-1(c)(1), Income Tax Regs., provides: If shares of stock in a corporation are sold or transferred by a taxpayer who purchased or acquired lots of stock on different dates or at different prices, and the lot from which the stock was sold or 22 For example, the inclusion in the statement of transactions with both positive and negative amounts suggests that it reports different types of transactions, but the statement does not identify those differences. -56- [56] transferred cannot be adequately identified, the stock sold or transferred shall be charged against the earliest of such lots purchased or acquired in order to determine the cost or other basis of such stock * . But petitioners' critique of respondent's method ignores the fact that he employed that method as a concession. He could have treated as gain petitioners' full amount realized and left it to them to establish bases other than zero. It has long been established that taxpayers bear the burden of proving the basis of property claimed as an offset to the amount realized upon its sale. See, e.g., Burnet v. Houston, 283 U.S. 223, 227-228 (1931). Petitioners cannot complain that respondent has been more generous than he had to be. And they have not demonstrated that the record supports higher basis amounts than respondent has allowed. Even if the Schedule D worksheet that petitioners reproduced in their reply brief is in the record, it was prepared by petitioners and thus cannot serve as substantiation of the basis amounts it shows. We therefore sustain respondent's adjustment to petitioners' 2008 capital gain from sources other than partnerships. b. Loss From RSJS Holdings Respondent claims, on the basis of the Court's having granted his motion to dismiss partnership items from the case, that we have jurisdiction to disallow the loss deduction petitioners claimed for 2008 from RSJS Holdings. As explained -57- [57] supra part II.A.2.b, however, respondent overstates the effect of our favorable ruling on that motion. Our jurisdiction to determine petitioners' loss from RSJS Holdings remains an open question. We have no evidence about the constituency of RSJS Holdings' partners during 2008. On the basis of an unsigned 2006 partnership return that petitioners provided to him, respondent proposed a finding that "RSJS Holdings Limited Partnership had two partners in the 2006 tax year, petitioners Ritchie N. Stevens and petitioner Julie A. Keen-Stevens". As noted above, petitioners did not formally respond to respondent's proposed findings of fact. Because of petitioners' failure to provide grounds for objection to respondent's proposed finding, we can accept that petitioners were RSJS Holdings' only two partners during 2006. See Ashkouri v. Commissioner, T.C. Memo. 2019-95, at 56 n.16. It would follow that RSJS Holdings was covered by the small partnership exception of section 6231(a)(1)(B)(i) for that year. But RSJS Holdings' qualification as a small partnership for 2006 does not establish that it also qualified for 2008: A partnership's qualification for the small partnership exception must be determined year by year. Sec. 301.6231(a)(1)-1(a)(3), Proced. & Admin. Regs. ("The determination of whether a partnership meets the requirements for the exception -58- [58] for small partnerships * * * shall be made with respect to each partnership taxable year."). As was the case in regard to Arlington Farms' qualification as a small partnership for 2006, RSJS Holdings' qualification for 2008 presents us with the choice of either assigning the burden of proof to respondent or, instead, applying the principle of Harrell v. Commissioner, 91 T.C. 242. Applying that principle here would necessarily stretch it further than we did in regard to Arlington Farms' qualification as a small partnership for 2006. In determining whether Arlington Farms was a small partnership for 2006, we had reason to accept that it had fewer than 10 partners who were all individuals. The only unavoidably open question was whether any of those individuals were nonresident aliens. By contrast, the record provides no information at all regarding the constituency of RSJS Holdings' partners during 2008. Further, the record does not establish how much effort respondent expended in trying to obtain that information. Even so, we accept that petitioners had better access than respondent does to information about the constituency of RSJS Holdings' partners. And petitioners have offered no evidence to establish that RSJS Holdings was subject to the TEFRA rules for 2008. Therefore, we will again apply the Harrell principle and accept respondent's -59- [59] claim that RSJS Holdings was a small partnership, excepted from the TEFRA rules, for 2008. Because petitioners presented no evidence to substantiate the loss they reported from RSJS Holdings for 2008, we will uphold respondent's adjustment disallowing any deduction for that loss in full. c. Net Farm Rental Loss Similarly, petitioners presented no evidence to substantiate the net farm rental loss they reported on their 2008 Schedule E. Therefore, we will also uphold respondent's disallowance of any deduction for that loss. d. NOL Carryover On the premise that "the evidence established that petitioners did not have a net operating loss in the 2005, 2006, and 2007 tax years," respondent argues "there can be no deduction in the 2008 tax year for a net operating loss carried forward from a previous year." That premise, however, is incorrect. The issue of whether petitioners incurred an NOL for 2007 turns in significant part on the amount and nature of any loss allocated to them by SNJ, Ltd. And those questions are not before us in this proceeding. Any NOL carryover from petitioners' 2007 taxable year to their 2008 year depends on the amount of any loss allocated to them for 2007 by SNJ, Ltd. -60- [60] Consequently, the deduction allowed to them for 2008 by section 172(a) is an affected item that "cannot be determined before final resolution and adjustment of the partnership items to which * * * [it] relate[s]." See GAF Corp. & Subs. v. Commissioner, 114 T.C. 519, 521 (2000); see also Maxwell v. Commissioner, 87 T.C. 783, 792 (1986) ("Affected items depend on partnership level determinations, cannot be tried as part of the personal tax case and must await the outcome of the partnership proceeding."). Because the amount of any NOL carryover from petitioners' 2007 taxable year to their 2008 taxable year cannot be determined before the determination of any loss to which they are entitled from SNJ, Ltd., for 2007, we cannot make any "declaration" concerning their 2008 NOL carryforward deduction in this proceeding. If petitioners' NOL carryforward to 2008 is reduced or eliminated as a result of the adjustment, through TEFRA procedures, to one or more of its partnership item components, respondent will be able to assess the resulting increase in petitioners' tax either by means of a computational adjustment or through deficiency procedures. See sec. 6230(a). e. Addition to Tax and Penalty Section 6651(a)(1) provides for an addition to tax when a taxpayer fails to file a timely return. The addition to tax is a prescribed percentage of the amount -61- [61] of tax required to be shown on the return. (The prescribed percentage increases, up to a stated maximum, according to the extent of the delinquency of the taxpayer's return.) This Court has jurisdiction to redetermine a taxpayer's liability for an addition to tax under section 6651(a)(1) only to the extent it is "attributable to a deficiency in tax described in section 6211". Sec. 6665(b)(1). Because the notice of deficiency respondent issued to petitioners for their 2008 taxable year reflected an erroneous determination that the deficiency procedures prescribed in subchapter B of chapter 63 apply, we have treated that notice as a notice of adjustment under section 6234(a). Sec. 6234(h)(2). Respondent thus did not issue for petitioners' 2008 taxable year a notice that was valid as a notice of deficiency. Consequently, we have no jurisdiction to redetermine petitioners' liability for any addition to tax for that year under section 6651(a)(1). Section 6662(a) provides for an accuracy-related penalty equal to 20% of an "underpayment" attributable to specified types of misconduct. The definition of "underpayment" is similar to the definition of "deficiency"--generally equal to the excess of the tax imposed over the tax shown on the taxpayer's return. See sec. 6664(a). We are unable in this proceeding to determine the extent, if any, by -62- [62] which the amount of tax imposed on petitioners for their 2008 taxable year exceeds the tax shown on the return they filed for that year. Thus, we cannot determine whether they had an underpayment for that year or whether they are liable for an accuracy-related penalty. If partnership-level proceedings establish an underpayment in petitioners' 2008 income tax, respondent will be able to assess an accuracy-related penalty as a computational adjustment without deficiency procedures. See sec. 6230(a)(1) and (2)(A)(i); sec. 301.6231(a)(6)-1(a)(1), Proced. & Admin. Regs. ("A computational adjustment includes * * * any penalty * * * that relates to an adjustment to a partnership item."). f. Summary For the reasons explained above, we will "make a declaration" under section 6234(c) for petitioners' 2008 taxable year that petitioners recognized $3,378,419 of unreported capital gain from sources other than partnerships and that petitioners are not entitled to the deductions for the $14,743 loss from RSJS Holdings or the net farm rental loss of $19,834 they claimed for that year. D. 2009 1. Inapplicability of Oversheltered Return Rules Respondent takes the position that the oversheltered return rules of section 6234 apply for petitioners' 2009 taxable year. He thus seeks a declaratory -63- [63] judgment under section 6234(c) disallowing the NOL carryforward deduction from 2008 that petitioners claimed on their 2009 amended return as well as the loss from RSJS Holdings shown on that return. Although respondent did not issue a notice of adjustment under section 6234(a) for 2009, he asks that the notice of deficiency he sent to petitioners for that year be treated as a notice of adjustment by reason of section 6234(h)(2). In determining the applicability of section 6234 for petitioners' 2009 taxable year, we must first identify which of the two returns they filed for that year is to serve as the frame of reference. As the Court of Appeals for the Fifth Circuit observed when it affirmed an order of this Court granting the Commissioner's motion for summary judgment in Jones v. Commissioner, 338 F.3d 463, 466 (5th Cir. 2003): "The IRS has discretion to accept or reject an amended return." Because respondent used petitioners' amended return for 2009 as the basis for calculating his recomputed deficiency, we will treat respondent as having accepted petitioners' amended 2009 return and use that return, rather than the one respondent received in October 2013, as the basis for determining the applicability of the oversheltered return rules. -64- [64] Petitioners' amended return for 2009 is an oversheltered return, within the meaning of section 6234(b). It shows no taxable income and a net loss of $990,360 from partnership items.23 We next consider whether respondent's notice of deficiency for 2009 reflects "a determination with respect to the treatment of items (other than partnership items)" for that year. See sec. 6234(a)(2). Toward that end, we must compare the "adjustments" underlying the deficiency with the amounts shown on petitioners' amended return for 2009. (Section 6234(a)(3), which considers the 23 Our computation of the net loss from partnership items shown on petitioners' amended return for 2009 includes the following items from SNJ, Ltd.: interest of $1,117, dividends of $24,904, capital gain of $12,903, Form 4797 loss of $15,226, and nonpassive loss of $84,183. It also includes interest of $4 and the nonpassive loss of $668,696 from RNS, Ltd., the nonpassive loss of $255,302 from Kentucky Partners, the $5,902 passive loss from Dart 5485 LLC, and interest of $21 from Coy Products. Respondent's motion to dismiss for lack of jurisdiction did not include the income petitioners reported from Coy Products for 2009, apparently because that income appeared on Schedule B rather than Schedule E. But the loss from Coy Products that petitioners reported on Schedule E for 2010 is covered by respondent's motion to dismiss. In support of his treatment of Coy Products' 2010 loss as a partnership item, respondent observed in his motion that "[p]etitioners have not provided a copy of a Form 1065 for Coy Products for 2010; nor have they provided any information concerning the number and type of partners." Because we find in the record no return for Coy Products for 2009, either, we conclude that its income for that year is also a partnership item that reduces the net loss from partnership items shown on petitioners' 2009 amended return. Finally, because respondent argues that RSJS Holdings was a small partnership for 2009, we have excluded from our calculation of the net partnership loss shown on petitioners' 2009 amended return the $3,506 passive loss shown on that return from RSJS Holdings. -65- [65] consequences of "the adjustments resulting from * * [the] determination" referred to in section 6234(a)(2), makes it clear that the "determination" must be one that results in an adjustment of a nonpartnership item shown on the taxpayer's return.) The deficiency stated in the notice of deficiency for 2009 rested on the following adjustments: allegedly unreported wages, dividends, rent and patronage income, and interest, and allowed Schedule E, rental, and capital loss deductions, itemized deductions, and exemptions. The notice of deficiency does not identify the source of the $5,640 Schedule E loss deduction allowed. Therefore, to the extent that it reflects an adjustment to an amount petitioners reported, we will treat it as an adjustment to a partnership item. The "adjustments" to wages, dividends, and taxable interest match amounts shown on petitioners' 2009 return. The net rental loss deduction allowed exceeds the amount shown on petitioners' return by $1,678 ($7,427 ! $5,749). The rent and patronage income of $2,950 is reported as "Other income" on petitioners' return. Because all of the capital gain petitioners reported relates to SNJ, Ltd., we will assume that the capital loss deduction respondent would allow is also a partnership item. The itemized deductions and exemptions shown on petitioners' return exceed the amounts respondent allowed by $1,574 and $6,085, respectively. Thus, the net effect of respondent's -66- [66] adjustments to nonpartnership items for petitioners' 2009 taxable year would increase their taxable income for the year by $5,981 ($1,574 + $6,085 ! $1,678). Because respondent's calculation of a recomputed deficiency for 2009 shows taxable income per petitioners' return of !$10,223,895, the adjustments to nonpartnership items shown on respondent's notice of deficiency for 2009 would not result in a deficiency. But those adjustments would not result in a deficiency regardless of the $990,360 loss from partnership items that petitioners reported. Without the partnership loss, their reported taxable income would have been !$9,233,535 (!$10,223,895 + $990,360). Adjustments to nonpartnership items that would increase taxable income by $5,981 would be insufficient to result in a deficiency. Because the adjustments to nonpartnership items shown in the notice of deficiency for 2009 would not "give rise to a deficiency [even] if there were no net loss from partnership items", we cannot, by reason of section 6234(h)(2), treat the notice of deficiency as a notice of adjustment. See sec. 6234(a)(3). 2. Deficiency Jurisdiction; Validity of Notice of Deficiency Having concluded that we lack jurisdiction to issue a declaratory judgment under section 6234(c) for petitioners' 2009 taxable year, we now consider our deficiency jurisdiction under section 6214(a). Respondent acknowledges that his recomputed deficiency for 2009 reflects the disallowance of "the entire net -67- [67] partnership loss claimed on petitioners' Schedule E", including losses from TEFRA partnerships that cannot be adjusted in the absence of partnership-level proceedings. Respondent also acknowledges that, "without adjustment of the net partnership loss attributable to * * * [the TEFRA] partnerships, the other adjustments in the recomputed deficiency for the 2009 tax year are insufficient to establish a deficiency." Because the existence of a deficiency for petitioners' 2009 taxable year depends on the validity of partnership losses whose adjustment requires partnership-level proceedings, we cannot uphold respondent's recomputed deficiency for that year. (Indeed, respondent does not ask that we do so.) We are thus faced again with the choice of either concluding that we lack jurisdiction or exercising jurisdiction under section 6214(a) and concluding that, as of now, petitioners do not have a deficiency for 2009. As was the case in regard to petitioners' 2007 taxable year, so, too, for 2009: The choice turns on the validity of the notice of deficiency for the year. The notice of deficiency respondent issued to petitioners for 2009, like the notices of deficiency for 2007, satisfies the first prong of the Dees test. The notice advised petitioners that he had determined a deficiency for their 2009 taxable year of $169,869. -68- [68] It is not clear that respondent took into account either petitioners' originally filed 2009 return or their amended return for that year in determining the deficiency in the notice. The accompanying explanations of the determined adjustments, in comparing "per exam" and "per return" amounts, state each of the latter as zero. The noncomputational adjustments on which respondent purported to have determined the deficiency would "increase" specified income items only up to the amounts actually shown on petitioners' returns. If, however, respondent failed to take into account either of petitioners' returns in determining the deficiency, that failure is not apparent on the face of the notice. Consequently, any such failure would thus not affect the validity of the notice under Dees. The first prong of the Dees test assesses the impact the notice would have on a "reasonable taxpayer". Dees v. Commissioner, 148 T.C. 6. Thus, in applying that prong of the test, we cannot look beyond the four corners of the notice itself. And we consider its impact not on the actual taxpayer or taxpayers to whom the notice is addressed (who presumably would know whether they had filed a return for the year in issue) but instead on a hypothetical taxpayer. The test, in other words, is objective: considering the content of the notice rather than the subjective impact it would have on the actual recipient. And any failure by respondent to consider the returns petitioners filed for 2009 would not be -69- [69] apparent to a hypothetical taxpayer considering only the notice of deficiency itself. The notice does not acknowledge the filing of a return, but a hypothetical taxpayer could readily assume that the actual taxpayer had not filed a return for the year. It is thus not manifest from the face of the notice that petitioners filed returns not reflected in the notice. Consequently, the notice is valid under Dees. Moreover, Pearce v. Commissioner, 95 T.C. 250 (1990), rev'd, 946 F.2d 1543 (5th Cir. 1991), establishes that the Commissioner's failure to take into account a taxpayer's return for a year does not invalidate a notice of deficiency issued for the year. Pearce involved the liability of transferees of a decedent for tax allegedly owed by the decedent. Although the decedent had filed a return for the year in issue, the Commissioner had sent that return back to him, keeping only the first page. During an examination for the year for which the return had been filed, the Commissioner tried without success to obtain a full copy of the return. The transferees filed a motion to dismiss on the grounds that, because the Commissioner had ignored the decedent's return in preparing the notice of deficiency, he had not made the statutorily required "determination". We accepted in Pearce that the Commissioner had determined a deficiency in the decedent's tax as though he had not filed a return and that, in that regard, his determination was incorrect. We reasoned that considering whether a taxpayer -70- [70] had filed a return is simply part of the process of determining a deficiency. An error in that determination is no different from other errors in determining a deficiency. Any such errors may lead to our redetermination of the erroneous deficiency, but they do not deprive us of jurisdiction to make that redetermination. In denying the transferees' motion to dismiss, we concluded that their reliance on the opinion of the Court of Appeals for the Ninth Circuit in Scar was misplaced. In distinguishing Scar, we wrote: "In Scar, there was never a question whether a return had been filed. It was clear from the face of the notice of deficiency that a return had been filed and was being ignored for reasons of administrative expediency." Pearce v. Commissioner, 95 T.C. 255. Like the notice of deficiency at issue in Pearce, and in contrast to the notice addressed in Scar, the notice of deficiency respondent issued to petitioners for their 2009 taxable year gives no indication that he was knowingly disregarding either petitioners' originally filed return or their amended return for that year. Therefore the opinion of the Court of Appeals for the Ninth Circuit in Scar does not give us reason to depart from our own precedents in Pearce and Dees. The Court of Appeals emphasized in Scar v. Commissioner, 814 F.2d at 1368, that it had no need to "look behind the notice sent to the taxpayers to determine its invalidity." Thus, the court's opinion left open the question of whether defects in -71- [71] procedure not apparent on the face of a notice of deficiency would require its invalidation. Indeed, it is not even clear that the Court of Appeals would view as a procedural defect the Commissioner's failure to consider a taxpayer's return, as long as the determined deficiency was based on "information that relates to" the taxpayer to whom the notice of deficiency is addressed. See id. We thus reach the same conclusion in regard to petitioners' 2009 taxable year as we did in regard to 2007. The notice of deficiency respondent issued to petitioners for 2009 was valid despite the possibility that respondent failed to consider either of the returns petitioners filed for the year in determining the deficiency in the notice. Consequently, petitioners' filing of a petition in response to the notice gives us jurisdiction under section 6214(a) to redetermine the deficiency in the notice. 3. Redetermination of Deficiency Exercise of our deficiency jurisdiction requires that we redetermine whether petitioners have a deficiency for 2009 and, if so, in what amount. We have already established that the adjustments in the notice would not result in a deficiency unless and until the losses petitioners claim from TEFRA partnerships are adjusted in partnership-level proceedings. Thus, we can only conclude that petitioners have no deficiency for 2009. -72- [72] That conclusion may not leave respondent without recourse to pursue the adjustments in regard to which he sought a declaration under section 6234(c). If the NOL carryforward from 2008 that petitioners reported on their 2009 return is reduced or eliminated as a result of adjustments to its partnership item components, respondent will be able to assess the resulting increase in petitioners' tax liability either by means of a computational adjustment or through deficiency procedures. See sec. 6230(a). If, however, respondent is correct that petitioners' loss from RSJS Holdings is not a partnership item, the period of limitations may bar the assessment of any additional tax that would result from the disallowance of a deduction for that loss. See sec. 6501(a). E. 2010 1. Inability To Uphold Recomputed Deficiency Respondent asks that we uphold his recomputed deficiency for petitioners' 2010 taxable year. For the reasons explained below, we agree with respondent that we have jurisdiction over that year under section 6214(a) rather than section 6234(c), but we conclude that petitioners have no deficiency for the year. Respondent claims that his adjustments to nonpartnership items for petitioners' 2010 taxable year "are sufficient to establish a deficiency without adjusting any partnership items". Arithmetically, the $11,332,509 of adjustments -73- [73] underlying respondent's recomputed deficiency would result in positive taxable income. (Petitioners' 2010 return in effect shows taxable income of !$10,814,841.) But the only adjustment underlying respondent's recomputed deficiency for 2010 that appears on the notice of deficiency for that year is an increase to capital gain of $730,356. Respondent did not seek to amend his answer to assert the other adjustments underlying his recomputed deficiency for 2010. And the adjustment to capital gain, by itself, would not result in a deficiency. Even if respondent had amended his answer to assert those adjustments taken into account in calculating his recomputed deficiency that were not shown on the notice of deficiency, we would have been unable to uphold respondent's recomputed deficiency. The recomputed deficiency reflects a purported disallowance of the $10,188,499 NOL carryfoward deduction petitioners claimed on their 2010 return. That NOL carryforward consists largely of losses from TEFRA partnerships reported for prior years. Because the NOL carryforward to 2010 is "affected by" partnership items, it is an "affected item", within the meaning of section 6231(a)(5). Consequently, the amount of any NOL carryforward deduction to 2010 to which petitioners are entitled "cannot be determined before final resolution and adjustment of the partnership items to -74- [74] which * * [it] relate[s]." See GAF Corp. & Subs. v. Commissioner, 114 T.C. 521. The adjustments reflected in respondent's recomputed deficiency for 2010 other than the purported disallowance of petitioners' claimed NOL carryforward deduction would not result in a deficiency. 2. Inapplicability of Oversheltered Return Rules Just as we cannot uphold respondent's recomputed deficiency, we cannot uphold the adjustments underlying that deficiency by issuance of a declaratory judgment under section 6234(c). Section 6234(h)(2) does not allow us to treat the notice of deficiency for 2010 as a notice of adjustment under section 6234(a) because the purported adjustments to nonpartnership items shown on the notice of deficiency would not result in a deficiency even if petitioners had not reported a net loss from partnership items. See sec. 6234(a)(3). To determine the extent to which the adjustments shown in the notice of deficiency for petitioners' 2010 taxable year reflect adjustments to nonpartnership items, we must compare them to the amounts reported on petitioners' 2010 return. Most of the adjustments are not adjustments at all. The purported adjustments for Schedule C gross receipts, dividends, interest, rental loss, and Form 4797 gain match amounts reported on petitioners' return. We cannot find on that return, however, the $51 of other income respondent took into account in determining the -75- [75] deficiency. The return also shows no adjustment for self-employment tax. It claims itemized deductions in an amount that is $4,338 less than the amount respondent allowed ($75,475 ! $71,137), but its claimed exemptions are $3,650 more than the amount respondent allowed ($18,250 ! $14,600). Thus, to the extent the notice of deficiency adjusted nonpartnership items shown on petitioners' return, the effect of those adjustments was to increase petitioners' taxable income by $729,079 ($51 other income + $730,356 capital gain ! $640 self employment tax adjustment ! $4,338 additional itemized deductions + $3,650 of disallowed exemptions). Would the adjustments to nonpartnership items shown on the notice of deficiency result in a deficiency if petitioners had not reported a net loss from partnership items? The partnership items reported on petitioners' 2010 return result in a net loss of $109,569.24 Without that loss, the deductions claimed on their return would still have exceeded their reported income by $10,705,272 24 Our computation of the net loss from partnerships that petitioners reported for 2010 includes the nonpassive losses from RNK Family Limited Partnership and Coy Products ($921 and $6,549, respectively) and the following items from SNJ, Ltd.: interest of $84, dividends of $24,149, capital gain of $243, $12,872 of gain reported on Form 4797, and the nonpassive loss of $139,447. Because respondent argues that RSJS Holdings was a small partnership for 2010, as well as for 2009, we have excluded from our calculation of the net partnership loss on petitioners' 2010 return the $20,190 reported loss from that partnership. -76- [76] ($10,814,841 ! $109,569). Thus, adjustments to nonpartnership items that would increase taxable income by $749,079 would not be enough to result in a deficiency even without the net loss from partnership items. Because one of the conditions specified in section 6234(a)(3) is not met, we cannot treat respondent's notice of deficiency for 2010 as a notice of adjustment under section 6234(a) that would give us jurisdiction to make a declaratory judgment concerning petitioners' 2010 nonpartnership items. 3. Validity of Notice of Deficiency; Exercise of Deficiency Jurisdiction Our inability to either uphold respondent's recomputed deficiency for petitioners' 2010 taxable year or issue a declaratory judgment upholding the adjustments on which respondent based that deficiency leaves us, again, with the choice of concluding that we have no jurisdiction or accepting jurisdiction under section 6214(a) and determining that petitioners have no deficiency for the year. As with petitioners' 2007 and 2009 taxable years, the choice turns on the validity of the notice of deficiency. We conclude that the notice of deficiency respondent issued to petitioners for their 2010 taxable year is valid for the same reasons we determined the notice for 2009 to be valid. The notice advised petitioners of respondent's determination -77- [77] of a deficiency of $230,772 for their 2010 taxable year. The notice thus satisfies the first prong of the Dees test. As with the 2009 notice, it is not clear that respondent took into account the return petitioners filed for 2010 in determining the deficiency for that year; but, if he did not, that failure is not apparent on the face of the notice and thus would not affect its validity. Because the notice of deficiency for petitioners' 2010 taxable year was valid, their filing of a petition in response to the notice gives us jurisdiction under section 6214(a) to redetermine the deficiency. As noted above, the only adjustment underlying respondent's recomputed deficiency for 2010 that appears in the notice of deficiency for that year would not result in a deficiency. Again, our only recourse is to conclude that petitioners have no deficiency for their 2010 taxable year. Because petitioners do not have a deficiency for that year, they are not liable for an addition to tax under section 6651(a)(1). See sec. 6665(b)(1). Further, because we have determined that the tax imposed on petitioners for their 2010 taxable year does not exceed the tax shown on the return they filed for the year, it follows that petitioners have no underpayment for the year, within the meaning of section 6664(a), and, consequently, are not liable for an accuracy-related penalty under section 6662(a). -78- [78] Again, respondent may not be foreclosed from pursuing at least some of the adjustments reflected in his recomputed deficiency for petitioners' 2010 taxable year. If the NOL carryforward from 2009 that petitioners reported on their 2010 return is reduced or eliminated as a result of adjustments to its partnership item components, respondent will be able to assess the resulting increase in petitioners' tax, possibly without deficiency procedures. See sec. 6230(a). The period of limitations on assessment provided in section 6501(a), however, may bar the assessment of any additional tax that would result from the adjustments of nonpartnership items taken into account in respondent's recomputed deficiency. F. 2011 1. Inapplicability of Oversheltered Return Rules Respondent also asks that we uphold his recomputed deficiency for petitioners' 2011 taxable year. He agues that section 6234 cannot apply to that year because petitioners did not file their return for that year "prior to the commencement of these cases". On the facts before us, we need not decide whether petitioners' late-filed 2011 return satisfies the requirement of section 6234(a)(1).25 Regardless of 25 We observe, however, that nothing in sec. 6234 prescribes a deadline for the filing of an oversheltered return. Moreover, we can imagine circumstances in (continued...) -79- [79] whether we can take into account petitioners' return, the fourth requirement for applying section 6234 is not met: The adjustments to nonpartnership items in the notices of deficiency would not give rise to deficiencies even if petitioners' 2011 return had not reported a net loss from partnership items. See sec. 6234(a)(3). Petitioners' 2011 return reports all of the nonpartnership income on which respondent based his deficiencies other than $4,709 of pension income and $26 of rental and patronage income.26 That return also reports a loss of $566,999 25 (...continued) which it would be in the Commissioner's interest to apply sec. 6234 for a year for which the taxpayer filed a return only after filing a petition with this Court in response to a notice of deficiency. If the taxpayer's return failed to report all of the nonpartnership income on which the Commissioner based his deficiency and also reported a net loss from partnerships sufficient to offset all of his nonpartnership income (including the allegedly unreported income), we would be unable to uphold the deficiency, for the reasons explained supra part II.B.2. If sec. 6234 did not apply, the Commissioner would be left with no obvious means of assessing tax on the income omitted from the taxpayer's return. 26 Because the $25 adjustment for "Sch E1--Rents received" taken into account in computing petitioners' deficiencies for 2011 does not appear in respondent's computation of their recomputed deficiency, we assume that item reflects partnership income. Similarly, because respondent based his recomputed deficiency on $2,496 of taxable interest (equal to the nonpartnership interest petitioners reported on their 2011 return), we assume that the additional $34 of interest taken into account in computing petitioners' deficiencies ($2,530 ! $2,496) reflects interest from partnership sources. Because respondent's recomputed deficiency makes no adjustment for capital gain, we assume that all of the capital gain taken into account in computing petitioners' deficiencies was from partnership sources. -80- [80] from SNJ, Ltd., which was covered by respondent's motion to dismiss, and an NOL carryforward of $10,750,110. Because of the NOL carryforward, an increase of $4,735 in petitioners' nonpartnership income for 2011 ($4,709 + $26) would not have given rise to a deficiency even if petitioners had not reported a loss from SNJ, Ltd. 2. Inability To Uphold Recomputed Deficiency The inapplicability of the oversheltered return rules for petitioners' 2011 taxable year, however, does not mean that we can do as respondent suggests and uphold his recomputed deficiency for the year. Respondent's recomputed deficiency, to the extent not conceded, rests entirely on nonpartnership income petitioners reported on their 2011 return.27 Respondent thus asks that we allow him to assess and collect tax on that income without regard to the losses reported on that return, even though the adjustment of those losses would require partnership proceedings. 27 On brief, respondent concedes the $26 adjustment to rental and patronage income and also concedes that petitioners' pension income for 2011 was $240,000, as reported on their 2011 return, rather than $244,709, as determined in the notice of deficiency. Respondent's adjustment of $54,142 for "Sch C--Income" equals the sum of the gross income petitioners reported on Schedule C ($8,929) and the "Other Income" of $45,213 included on line 21 of Form 1040. -81- [81] By including in his motion to dismiss the $566,999 loss from SNJ, Ltd., that petitioners reported for 2011, respondent conceded that he cannot adjust it without partnership-level proceedings concerning SNJ, Ltd., for 2011. And the NOL carryforward from 2010 of $10,750,110 reported on petitioners' 2011 return, consisting largely of losses from TEFRA partnerships reported for prior years, is an affected item that "cannot be determined before final resolution and adjustment" of its partnership item components. See GAF Corp. & Subs. v. Commissioner, 114 T.C. 521. 3. Deficiency Jurisdiction Unable to uphold respondent's recomputed deficiency for petitioners' 2011 taxable year, we face again the familiar choice between declining jurisdiction or instead determining that petitioners have no deficiency. We conclude that the notices of deficiency for 2011 are valid for the same reason that the notices for 2007 are valid. The notice issued to Mrs. Stevens advised her that respondent had determined a deficiency in her Federal income tax for 2011 of $107,796. And the notice issued to Dr. Stevens for that year advised him of respondent's determination of a deficiency of $41,764. The notices thus satisfy the first prong of the Dees test. Because petitioners did not file a return for 2011 until after respondent issued the notices of deficiency, we face no issue, in assessing the -82- [82] validity of those notices, of respondent's possible disregard of previously filed returns. And unlike the notice of deficiency at issue in Scar, the notices respondent issued to petitioners for 2011 give no indication on their faces that respondent determined the deficiencies on the basis of information that was irrelevant to petitioners' tax liability for the year. Because we conclude that respondent issued valid notices of deficiency to petitioners for their 2011 taxable year, petitioners' filing of a petition for redetermination in response to those notices established our deficiency jurisdiction over the year under section 6214(a). Because we cannot uphold respondent's recomputed deficiency for the year, we are again left with no recourse, in exercising our established jurisdiction, other than to conclude that petitioners have no deficiency for 2011. From our conclusion that petitioners' have no deficiency for 2011, it follows that they are not liable for an addition to tax under section 6651(a)(1). On brief, respondent concedes the additions to tax under sections 6651(a)(2) and 6654 for petitioners' 2011 taxable year.28 28 Sec. 6651(a)(2) imposes an addition to tax for failure to timely pay the tax shown on a return. That addition to tax is a prescribed percentage of the tax actually shown on the return. The prescribed percentage increases up to a stated maximum based on the extent of the delinquency of payment. Sec. 6654 imposes (continued...) -83- [83] Once again, our conclusion does not leave respondent without means of pursuing the assessment and collection of tax on petitioners' nonpartnership income for the year. If petitioners' loss from SNJ, Ltd., or their NOL carryforward to 2011 is reduced or eliminated as a result of partnership-level proceedings concerning SNJ, Ltd., or other partnerships whose losses contributed to the NOL carryforward, respondent will then be able to assess any resulting increase in petitioners' tax for 2011. See sec. 6230(a). G. 2012 Respondent's position in regard to petitioners' 2012 taxable year is much like his position in regard to 2007: He asks us to uphold a deficiency determined on the basis of increases to nonpartnership income while ignoring losses from partnerships. The principal difference between 2007 and 2012 is that most of the partnership losses that petitioners claim offset their 2012 income arose in prior years and take the form of an NOL carryforward to 2012. While the $11,463,228 NOL carryforward deduction from 2011 that petitioners claim on their unsigned 2012 return is not a partnership item, it is an affected item. In substantial part, petitioners' claimed NOL deduction for 2012 traces back to the $7,594,316 loss 28 (...continued) an addition to tax on a taxpayer who does not make estimated tax payments as required to satisfy the portion of his tax liability not covered by withholding. -84- [84] from SNJ, Ltd., reported on their unsigned 2007 return. Respondent's motion to dismiss shows that he accepts that the 2007 loss petitioners reported from SNJ, Ltd., can be adjusted only by means of a partnership-level proceeding concerning that entity. Thus, any NOL carryforward to petitioners' 2012 taxable year would be an affected item that "cannot be determined before final resolution and adjustment" of its partnership item components. See GAF Corp. & Subs. v. Commissioner, 114 T.C. 521. Because we cannot uphold respondent's recomputed deficiency for petitioners' 2012 taxable year and we have no grounds for holding invalid the notices of deficiency respondent issued for that year, we must conclude, at this juncture, that petitioners have no deficiency for that year. It follows that petitioners are not liable for an addition to tax under section 6651(a)(1) for the year. As previously noted, the addition to tax imposed by section 6651(a)(2) applies when a taxpayer fails to timely pay the tax shown on a return. When a taxpayer fails to file a return and the Commissioner prepares one on the taxpayer's behalf under section 6020(b), the so-called substitute-for-return (SFR) is treated as the taxpayer's return for purposes of the section 6651(a)(2) addition to tax. Sec. 6651(g). Respondent argues that petitioners are liable for an addition to tax under -85- [85] section 6651(a)(2) for their 2012 taxable year on the basis of an SFR he prepared for that year. We have determined, however, that--at least as of now-- petitioners do not owe any tax for 2012, so that their correct tax liability for the year is necessarily lower than whatever amount might appear on any SFR respondent prepared for the year. And section 6651(c)(2) provides: "If the amount required to be shown as tax on a return is less than the amount shown as tax on such return, subsection[] (a)(2) * * shall be applied by substituting such lower amount." It thus follows from our determination that petitioners have no deficiency for their 2012 taxable year that they are not liable for any addition to tax for that year under section 6651(a)(2). Section 6654 requires individual taxpayers to pay estimated tax for each taxable year in four quarterly installments due in April, June, and September of the year and January of the following year. Each payment must equal "25 percent of the required annual payment." Sec. 6654(d)(1)(A). Section 6654(d)(1)(B) defines "required annual payment" to mean "the lesser of--(i) 90 percent of the tax shown on the return for the taxable year (or, if no return is filed, 90 percent of the tax for such year), or (ii) 100 percent of the tax shown on the return of the individual for the preceding taxable year." A taxpayer who does not timely pay the required -86- [86] installments of estimated tax is subject to an addition to tax, computed in the nature of interest on the underpayment. See sec. 6654(a). Respondent argues that his recomputed deficiency for 2012 and petitioners' failure to file a return for that year establish that petitioners were required to make estimated payments equal to 90% of the tax reflected in his recomputed deficiency. Referring to evidence that petitioners made no estimated payments for 2012, respondent claims that they are liable for an addition to tax under section 6654(a). Respondent notes that, "[a]lthough petitioners eventually provided a return for the 2011 tax year, it was not until after the notices of deficiency had been issued", thereby suggesting that petitioners' 2011 return cannot be taken into account for purposes of section 6654(d)(1)(B)(ii). Because we have determined that petitioners do not have a deficiency for 2012, it follows that the amount described in section 6654(d)(1)(B)(i) in regard to that year is zero. We thus need not decide whether petitioners' 2011 return can be taken into account for purposes of section 6654(d)(1)(B)(ii). But see Rev. Rul. 2003-23, 2003-1 C.B. 511, 512 ("[W]hen an individual files a late return for the preceding taxable year and pays as required the installments properly predicated on tax shown on that return, the Service will not impose the addition to tax under section 6654(a) for the underpayment of estimated tax for the current taxable -87- [87] year."). Respondent thus has not established that petitioners were required to make estimated tax payments for the year. Consequently, we do not uphold his determination of the addition to tax for the year under section 6654(a). We see no respect in which our decision will prejudice respondent's ability to assess tax on petitioners' nonpartnership income for their 2012 taxable year in the event that the offsetting losses petitioners claim are sufficiently reduced as a result of adjustments effected through partnership proceedings. Decision will be entered under Rule 155 in docket No. 29815-13. Decision will be entered for petitioners for the taxable years ended December 31, 2007, 2009, 2010, 2011, and 2012, and an appropriate order will be issued for the taxable year ended December 31, 2008, in docket No. 9539-15.	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4553805/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 12:07 AM CDT - 646 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 In re Estate of Madeline A. Adelung, deceased. Lynda Adelung Heiden, Personal Representative of the Estate of Madeline A. Adelung, deceased, appellee and cross-appellant, v. Kent A. Adelung, appellant and cross-appellee. ___ N.W.2d ___ Filed July 31, 2020. No. S-19-705. 1. Appeal and Error. To 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. 2. ____. An argument that does little more than restate an assignment of error does not support the assignment, and an appellate court will not address it. 3. Jurisdiction: Statutes. Subject matter jurisdiction and statutory inter- pretation present questions of law. 4. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. 5. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court. 6. Decedents’ Estates: Judgments: Appeal and Error. In the absence of an equity question, an appellate court, reviewing probate matters, exam- ines for error appearing on the record made in the county court. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 7. Decedents’ Estates: Equity: Appeal and Error. Equity questions aris- ing in appeals involving the Nebraska Probate Code are reviewed de novo. - 647 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 8. Trial: Appeal and Error. Cases are determined in an appellate court on the theory upon which they were tried. 9. Equity: Decedents’ Estates: Accounting. An action for an accounting of estate property is in equity. 10. Judgments: Evidence: Appeal and Error. Despite de novo review, when credible evidence is in conflict on material issues of fact, the appellate court will consider and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another. 11. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. 12. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte. 13. Decedents’ Estates: Courts: Jurisdiction. Generally, the county court has exclusive original jurisdiction over all matters relating to dece- dents’ estates. 14. Decedents’ Estates: Courts: Jurisdiction: Equity. The county courts, in exercising exclusive original jurisdiction over estates, may apply equitable principles to matters within probate jurisdiction. 15. Constitutional Law: Decedents’ Estates: Courts: Jurisdiction. The county court’s jurisdiction under Neb. Rev. Stat. §§ 24-517(1) (Cum. Supp. 2018) and 30-2211 (Reissue 2016) cannot be exclusive as to mat- ters within the district court’s chancery and common law jurisdiction conferred by Neb. Const. art. V, § 9. 16. Constitutional Law: Courts: Jurisdiction. The grant of jurisdiction to the district court under Neb. Const. art. V, § 9, while original, is not exclusive. 17. Courts: Jurisdiction: Words and Phrases. Under the doctrine of juris- dictional priority, when different state courts have concurrent original jurisdiction over the same subject matter, basic principles of judicial administration require that the first court to acquire jurisdiction should retain it to the exclusion of another court. 18. Statutes: Legislature: Intent. A collection of statutes pertaining to a single 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, harmonious, and sensible. 19. Statutes. A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. - 648 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 20. Statutes: Appeal and Error. An appellate court will not resort to interpretation to ascertain the meaning of statutory words that are plain, direct, and unambiguous. 21. Principal and Agent. An agent and principal are in a fiduciary relation- ship such that the agent has an obligation to refrain from doing any harmful act to the principal. 22. ____. The Nebraska Uniform Power of Attorney Act places an agent under a power of attorney in a fiduciary relationship with his or her principal. 23. Decedents’ Estates: Actions: Equity: Courts: Jurisdiction. In common-law and equity actions relating to decedents’ estates, the county court has concurrent original jurisdiction with the district court. 24. Agency: Trusts. Neb. Rev. Stat. § 30-4045 (Reissue 2016)—the provi- sion of the Nebraska Uniform Power of Attorney Act governing retro- activity—should be construed similarly to Neb. Rev. Stat. § 30-38,110 (Reissue 2016)—the comparable provision of the Nebraska Uniform Trust Code. 25. Equity: Decedents’ Estates: Accounting: Limitations of Actions. The statute of limitations for an action in equity for an accounting of estate property is 4 years. 26. Limitations of Actions: Words and Phrases. The accrual of a cause of action means the right to maintain and institute a suit, and whenever one person may sue another, a cause of action has accrued and the statute begins to run, but not until that time. So whether at law or in equity, the cause of action arises when, and only when, the aggrieved party has a right to apply to the proper tribunal for relief. 27. Principal and Agent. A power of attorney authorizes another to act as one’s agent. 28. Agency: Words and Phrases. An agency is a fiduciary relationship resulting from one person’s manifested consent that another may act on behalf and subject to the control of the person manifesting such consent and, further, resulting from another’s consent to so act. 29. Principal and Agent. An agent and principal are in a fiduciary rela- tionship such that the agent has an obligation to refrain from doing any harmful act to the principal, to act solely for the principal’s ben- efit in all matters connected with the agency, and to adhere faithfully to the instructions of the principal, even at the expense of the agent’s own interest. 30. ____. An attorney in fact, under the duty of loyalty, always has the obligation to act in the best interest of the principal unless the principal voluntarily consents to the attorney in fact’s engaging in an interested transaction after full disclosure. - 649 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 31. Principal and Agent: Gifts: Intent. No gift may be made by an attor- ney in fact to himself or herself unless the power to make such a gift is expressly granted in the instrument and there is shown a clear intent on the part of the principal to make such a gift. 32. Principal and Agent: Gifts: Fraud. The basic policy concern underly- ing the law that forbids self-dealing is not linked to any duty an agent may have to third parties, but is primarily addressed to the potential for fraud that exists when an agent acting pursuant to a durable power of attorney has the power to make gifts, especially after the principal becomes incapacitated. 33. Agency. Powers of attorney are by necessity strictly construed, and broad encompassing grants of power are to be discounted. 34. Landlord and Tenant: Property. A life tenant is entitled to and owns by absolute title everything in the nature of income, profit, and gain realized or accrued from the property during his or her tenancy. 35. Agency: Intent. An agency relationship may be implied from the words and conduct of the parties and the circumstances of the case evi- dencing an intention to create the relationship irrespective of the words or terminology used by the parties to characterize or describe their relationship. 36. Principal and Agent: Property. An agent has a duty to account to his or her principal for all property or funds which he or she has received or paid out on behalf of the principal. 37. Laches. The defense of laches is not favored in Nebraska. 38. ____. Laches occurs only if a litigant has been guilty of inexcus- able neglect in enforcing a right and his or her adversary has suffered prejudice. 39. Laches: Equity. Laches does not result from the mere passage of time, but because during the lapse of time, circumstances changed such that to enforce the claim would work inequitably to the disadvantage or preju- dice of another. 40. Agency: Gifts. The rule of strict construction regarding authority under a power of attorney to make gifts continues under the Nebraska Uniform Power of Attorney Act. 41. ____: ____. The Nebraska Uniform Power of Attorney Act limits gifts made via a general grant of authority. 42. Principal and Agent: Liability. An exoneration clause in a power of attorney will not relieve an agent of liability if the clause was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal. 43. Appeal and Error. Appellate courts do not consider arguments and theories raised for the first time on appeal. - 650 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 Appeal from the County Court for Buffalo County: Gerald R. Jorgensen, Jr., Judge. Affirmed as modified, and cause remanded with directions. Jared J. Krejci, of Smith, Johnson, Baack, Placzek, Allen, Connick & Hansen, for appellant. Blake E. Johnson and Paul A. Lembrick, of Bruning Law Group, for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik, and Freudenberg, JJ. Cassel, J. I. INTRODUCTION Within a county court probate case, the personal representa- tive filed an action against the decedent’s son to recover money he received in two ways: (1) collecting and retaining farm rents receivable under the decedent’s life estate and (2) writing checks to himself and others under a power of attorney from the decedent. The county court entered a judgment, from which the son appeals and the personal representative cross-appeals. The son challenges the county court’s jurisdiction of the matter as one relating to a decedent’s estate and relating to the action of an agent under a power of attorney. We consider statutes governing powers of attorney, including retroactivity. Except as to the son’s statute of limitations defense, we find no merit to the appeal or the cross-appeal. We affirm the judgment as modified and remand the cause with directions. II. BACKGROUND 1. Decedent’s Family Madeline A. Adelung (the decedent) and her husband lived on a family farm outside Amherst, Nebraska. Her husband owned and operated the farm during his lifetime. They had three children: Sheralee Adelung Boe, Lynda Adelung Heiden, and Kent A. Adelung (Adelung). Adelung remained in the - 651 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 area, but in the mid-to-late 1970’s, Boe moved to Madison, Nebraska, and Heiden moved to Lincoln, Nebraska. The decedent’s husband died in 1987. He left a life estate in the farm property to the decedent with the remainder interest going to Adelung. The decedent wished to remain on the fam- ily farm, and from 2008 to 2010, Adelung stayed at the farm with the decedent nearly every night. In August 2010, the decedent was moved to an assisted living facility. She died on October 21, 2014. 2. Farm Income After Adelung graduated from high school in 1975, he farmed with his father. They had a 50-50 partnership, each being responsible for half of the expenses and being entitled to half of the revenue. Adelung continued to farm the land after his father’s death, and the decedent initially charged him half of the standard rental rate. In 2000, Adelung began to explore a career change. In return for Adelung’s care and companionship so that the decedent could remain on the farm, she agreed to pay all of the farm expenses, to not charge Adelung rent, and to let him collect all of the farm income. Also in approximately 2000, Adelung stopped farming the land in which the decedent held a life estate. He began renting the land to another individual. From 2010 to 2014, roughly half of the rent Adelung received was from land owned by the dece- dent. Adelung testified that he was essentially managing the farm during that time and that the value of farm management would be around 10 percent of the rental income. 3. Gifts In July 2008, the decedent executed a power of attorney conferring “[p]lenary [p]ower.” The document named Adelung and Heiden as the decedent’s agents. It contained an “addi- tional provision” on gifting which stated: Gifting. To carry out on my behalf any plan or pattern of gifting to my issue, including gifting to my Agent, - 652 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 which had apparently been established or clearly con- templated by myself. In determining whether to initiate or continue any such gifting plan, my Agent shall give consideration to the size of my estate in light of what might reasonably be anticipated as my future needs and the potential federal estate taxes which may be due upon my death in order that such taxes may be lessened or eliminated. If a gifting plan has not been initiated by me, my Agent shall have complete discretion to make gifts to my issue, including making gifts to my Agent, after con- sideration of the foregoing factors. No individual or entity shall have the right, by court action or otherwise, to com- pel the initiation or continuation of any type of gifting plan by my Agent and no individual or entity shall have any claim or right of reimbursement from my Agent for initiating or continuing a gifting plan or for not initiating or continuing a gifting plan; it being my intention hereby that my Agent shall have absolute discretion and shall bear no liability for any decision made. The decedent had never engaged in a pattern of gifting prior to July 2008. From that point on, Adelung or his wife received $2,000 checks each month from the decedent, which Adelung alleged to be gifts. Checks were made payable to Adelung’s wife for the purpose of staying within the annual federal gift tax exclusion amount for each donee. Adelung testified that the decedent wrote the checks for “quite a while,” but that in approximately 2010, she wanted him to write them because she was having trouble with arthritis. No gifts were made to Boe or Heiden. According to Adelung, because the decedent wanted him to continue writing the $2,000 monthly checks after she was placed in assisted living facilities, he did so. 4. Probate Proceedings In January 2015, a little less than 3 months after the dece- dent’s October 2014 death, Heiden filed an application for informal probate of the decedent’s will and to be appointed personal representative. Letters of personal representative were - 653 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 issued as evidence of such appointment. In the decedent’s will, Boe, Heiden, and Adelung were named as devisees. After the initial informal testacy and appointment proceeding, the record does not show any other proceeding in the probate case until February 1, 2016. On that date, Heiden, as personal representative, filed within the probate case a petition for an equitable accounting. She did not pay a filing fee in connection with this petition. She asserts that the county court did not assess a fee. We summarize the petition’s allegations: The decedent was “a vulnerable elderly person.” Adelung had a fiduciary or con- fidential relationship with the decedent, including the relation- ship of principal and agent by virtue of the power of attorney. From at least 2000, Adelung received rent from the decedent’s farmland without sufficient consideration. Adelung and his wife received over $100,000 of the decedent’s money with- out sufficient consideration. Adelung’s actions amounted to a conversion of the decedent’s property, an unjust enrichment of Adelung, and a breach of fiduciary duties. Based upon these allegations, Heiden’s petition requested that Adelung be ordered to account for that money and to repay the decedent’s estate. In an answer filed in the probate proceeding, Adelung raised a number of affirmative defenses, including the statute of limitations, the decedent’s ratification or consent during her lifetime, laches, and res judicata. 5. County Court’s Decision At some point, according to the county court’s judgment (styled as a journal entry and order), Adelung moved to dismiss the action for lack of subject matter jurisdiction. This motion is not in our record. In the judgment, the court characterized the proceeding as an “equity action.” The court determined that it had subject matter jurisdiction, noting that it had broad powers in probate matters and that Adelung was an interested party and heir. Based on this reasoning, the court overruled the motion. The court then turned to the merits. - 654 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 The court found that from 2000 to August 2010, “Adelung was benefiting from the farm rents, was foregoing [sic] other career opportunities and [the decedent] was benefitting in the form of care, companionship and being allowed to remain at home.” However, the court determined that farm rental income between August 2010—when the decedent moved into assisted living—and the decedent’s death was improperly collected by Adelung. The court reasoned that during that time, “all of the benefits were flowing to . . . Adelung to the detriment of [the decedent’s] financial position” and “Adelung was not actively working the farm, simply collecting the rents.” The court determined that the $2,000 monthly checks were not gifts. Instead, the court stated that the checks were com- pensation for the care and companionship Adelung and his wife provided to the decedent. The court found that 38 monthly $2,000 checks from August 2010 until late 2013, totaling $76,000, were improperly obtained by Adelung. The court entered judgment against Adelung. It determined that the value of the improperly obtained farm income was $114,550 and that together with the improper gifts obtained by Adelung, he must reimburse the estate $190,550. The judg- ment made no reference to either the statute of limitations or laches. Adelung filed a timely appeal, and Heiden cross-appealed. We granted Adelung’s petition to bypass review by the Nebraska Court of Appeals. Adelung also filed a motion asking this court to take judicial notice of the legislative history of 2015 Neb. Laws, L.B. 314, and of a printout from Nebraska’s online trial court case management system, known as JUSTICE, showing the filing fees paid to the county court. In resolving this appeal, we have taken notice to the extent appropriate to do so. III. ASSIGNMENTS OF ERROR Adelung assigns 10 errors. He claims that the county court erred in determining that it had equitable subject matter juris- diction over Heiden’s claims and in determining that it had subject matter jurisdiction over Heiden’s petition despite her - 655 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 failure to pay a filing fee or obtain leave to file in forma pau- peris. He also alleges the county court erred in (1) failing to apply the statute of limitations to transactions which occurred before February 2012, (2) finding that he was liable for the farm rent voluntarily given to him by the decedent, (3) fail- ing to apply the provisions of the Nebraska Uniform Power of Attorney Act (NUPOAA), 1 (4) failing to determine that Adelung was not liable due to the doctrine of consent, (5) fail- ing to determine that Adelung was not liable due to the doc- trine of exoneration, (6) failing to determine that Adelung was not liable due to the doctrine of laches, (7) making factual find- ings relating to the exoneration clause in the decedent’s power of attorney and to the extent that it determined the decedent lacked mental capacity other than the time shortly before her death, and (8) entering judgment against Adelung. On cross-appeal, Heiden alleges the county court erred in failing to require that all funds transferred from the decedent’s account from June 2008 to September 2013 and all farm rental income be returned to the estate. [1,2] In a few instances, Adelung’s brief fails to comply with one or both of two appellate rules. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party assert- ing the error. 2 Similarly, an argument that does little more than restate an assignment of error does not support the assignment, and an appellate court will not address it. 3 We do not consider those assignments or arguments. IV. STANDARD OF REVIEW [3-5] Subject matter jurisdiction and statutory interpretation present questions of law. 4 A jurisdictional question which does not involve a factual dispute is determined by an appellate 1 Neb. Rev. Stat. §§ 30-4001 to 30-4045 (Reissue 2016 & Supp. 2019). 2 Adair Holdings v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (2020). 3 Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015). 4 Christine W. v. Trevor W., 303 Neb. 245, 928 N.W.2d 398 (2019). - 656 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 court as a matter of law. 5 An appellate court independently reviews questions of law decided by a lower court. 6 [6,7] In the absence of an equity question, an appellate court, reviewing probate matters, examines for error appearing on the record made in the county court. When reviewing a judgment 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. 7 Equity questions arising in appeals involving the Nebraska Probate Code 8 are reviewed de novo. 9 V. ANALYSIS 1. Type of Action The county court characterized the proceeding below as an “equity action,” that is, a suit in equity. We do not read the parties’ briefs as challenging that classification. But two allega- tions were inconsistent with a suit in equity. First, an action for conversion sounds in law. 10 Second, a claim for unjust enrich- ment is a quasi-contract claim for restitution. 11 And we have held that any quasi-contract claim for restitution is an action at law. 12 [8] Because the county court treated the matter as an equity action, it necessarily tried the case on some basis other than conversion or unjust enrichment. Cases are determined in an 5 Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020). 6 Hochstein v. Cedar Cty. Bd. of Adjustment, 305 Neb. 321, 940 N.W.2d 251 (2020). 7 In re Estate of Radford, 304 Neb. 205, 933 N.W.2d 595 (2019). 8 Neb. Rev. Stat. §§ 30-401 to 30-406, 30-701 to 30-713, 30-2201 to 30-2902, 30-3901 to 30-3923, 30-4001 to 30-4045, 30-4101 to 30-4118, and 30-4201 to 30-4210 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019). 9 In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012). 10 Gallner v. Larson, 291 Neb. 205, 865 N.W.2d 95 (2015). 11 See City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809 N.W.2d 725 (2011). 12 See id. - 657 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 appellate court on the theory upon which they were tried. 13 Thus, we will determine the appeal based on the theory utilized in the court below. [9,10] Heiden sought to recover property that Adelung received but which Heiden asserted belonged to the decedent’s estate. In other words, she sought an accounting. An action for an accounting of estate property is in equity. 14 Because the action sounded in equity, we must review it accordingly. This requires us to review the county court’s judgment de novo on the record. Despite de novo review, when credible evidence is in conflict on material issues of fact, the appellate court will consider and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another. 15 2. Jurisdiction Adelung presents two arguments challenging the county court’s jurisdiction of this proceeding. One is based on the nature of Heiden’s claims. This has two components: the extent of the county court’s probate jurisdiction and its jurisdiction over powers of attorney. The other stems from the court’s failure to charge and collect a filing fee. In both arguments, he claims the court lacked subject matter jurisdiction. Before turning to his specific arguments, we recall general principles, change in probate jurisdiction, and the development of jurisdic- tion regarding powers of attorney. (a) General Principles [11,12] Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with 13 Robison v. Madsen, 246 Neb. 22, 516 N.W.2d 594 (1994). 14 Cheloha v. Cheloha, 255 Neb. 32, 582 N.W.2d 291 (1998), disapproved on other grounds, Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019). 15 Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d 569 (2017). - 658 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 the general subject matter involved. 16 Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte. 17 (b) Probate Jurisdiction [13] We have said that generally, the county court has exclu- sive original jurisdiction over all matters relating to decedents’ estates. 18 But this is not as simple as it sounds. Adelung directs us to Lambie v. Stahl, 19 where in 1965 this court recognized that a title dispute between an estate repre sentative and a third person with an adverse claim was “ordi- narily decided in another forum,” 20 that is, not in the probate court. There, we said, “Jurisdiction to enforce a right of retainer does not imply jurisdiction to render a personal judgment.” 21 In a later case, describing the legal regime prior to 1970, we explained, “At least since 1879, the county court has had exclusive original jurisdiction in all matters of probate and the settlement of decedents’ estates, and the District Court has had exclusive original jurisdiction in equity cases.” 22 Thus, at the time of the Lambie decision, a county court simply had no jurisdiction in equity cases. [14-17] Shortly after Lambie, however, that changed, as we explained in a 1985 case where we articulated three important concepts: 23 First, the county courts, in exercising exclusive orig- inal jurisdiction over estates, may apply equitable principles 16 Christine W. v. Trevor W., supra note 4. 17 Id. 18 In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018). See Neb. Rev. Stat. § 24-517(1) (Cum. Supp. 2018). See, also, § 30-2211(a). 19 Lambie v. Stahl, 178 Neb. 506, 134 N.W.2d 86 (1965). 20 Id. at 507, 134 N.W.2d at 87. 21 Id. at 508, 134 N.W.2d at 87. 22 In re Estate of Kentopp. Kentopp v. Kentopp, 206 Neb. 776, 785, 295 N.W.2d 275, 280 (1980). 23 See In re Estate of Steppuhn, 221 Neb. 329, 377 N.W.2d 83 (1985). - 659 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 to matters within probate jurisdiction. 24 Second, applying the constitutional avoidance canon, we determined that the county court’s jurisdiction under §§ 24-517(1) and 30-2211 cannot be “exclusive” 25 as to matters within the district court’s “chancery and common law jurisdiction” conferred by Neb. Const. art. V, § 9. Finally, we acknowledged that the grant of jurisdiction to the district court under article V, § 9, while original, is not exclusive. 26 Under the doctrine of jurisdictional priority, when different state courts have concurrent original jurisdiction over the same subject matter, basic principles of judicial administra- tion require that the first court to acquire jurisdiction should retain it to the exclusion of another court. 27 In the modern era, we have upheld a county court’s jurisdic- tion over matters related to a decedent’s estate in numerous situations. These include partitioning real estate belonging to a decedent, 28 adjudicating a claim against a decedent’s estate based upon an alleged oral contract to execute a will leaving the decedent’s business to the claimant employee, 29 determin- ing the title to personal property possessed by the decedent where ownership was asserted by another, 30 resolving a claim by a decedent wife’s personal representative of a share of ownership of bearer bonds allegedly owned as tenants in common as against a decedent husband’s personal represent ative, 31 and recovering an improper distribution from a pend- ing estate 32 pursuant to a probate statute. 33 In each instance, 24 Id. 25 See id. at 332, 377 N.W.2d at 85. 26 Id. 27 Brinkman v. Brinkman, 302 Neb. 315, 923 N.W.2d 380 (2019). 28 See In re Estate of Kentopp. Kentopp v. Kentopp, supra note 22. 29 See In re Estate of Layton, 207 Neb. 646, 300 N.W.2d 802 (1981). 30 See In re Estate of Severns, 217 Neb. 803, 352 N.W.2d 865 (1984). 31 See In re Estate of Steppuhn, supra note 23. 32 See Ptak v. Swanson, 271 Neb. 57, 709 N.W.2d 337 (2006). 33 See § 30-24,106. - 660 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 jurisdiction arose from the county court’s jurisdiction under § 24-517(1). (c) Powers of Attorney Section 24-517(13) confers upon the county court “[c]oncur- rent original jurisdiction with the district court in any matter relating to a power of attorney and the action or inaction of any agent acting under a power of attorney.” Adelung makes a complex argument, but before considering it, some history is helpful. At the time of the 2008 power of attorney, powers of attor- ney were governed by the Uniform Durable Power of Attorney Act (UDPAA) 34 and by the common law. 35 The provisions of the UDPAA were quite limited, focused mainly on validating a durable power of attorney—“thereby trumping the com- mon law agency principle that the authority of the agent ceased upon the disability of the principal.” 36 The sections of the UDPAA were, in turn, included in the definition of the Nebraska Probate Code. 37 In the UDPAA, the only statute con- ferring jurisdiction to a county court stated, “The county court and the district court of the principal’s domicile shall have concurrent jurisdiction to determine the validity and enforce- ability of a durable power of attorney.” 38 But the UDPAA lacked any provision for judicial review of an agent’s conduct or any authorization for an agent to make gifts. Thus, in 2008, the only forum for a challenge to an agent’s conduct was the district court. 39 34 See Neb. Rev. Stat. §§ 30-2664 to 30-2672 (Reissue 2008). 35 See Ronald R. Volkmer, Nebraska’s Real Property Transfer on Death Act and Power of Attorney Act: A New Era Begins, 46 Creighton L. Rev. 499 (2013). 36 Id. at 506. 37 See § 30-2201 (Reissue 2008). 38 § 30-2671. 39 See, Archbold v. Reifenrath, 274 Neb. 894, 744 N.W.2d 701 (2008); Crosby v. Luehrs, 266 Neb. 827, 669 N.W.2d 635 (2003). - 661 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 In 2012, the Legislature repealed the UDPAA and enacted the NUPOAA. 40 The 2012 legislation also repealed the Nebraska Short Form Act, 41 which provided numerous definitions that could be included in powers of attorney by reference to “[s]hort form expression[s].” 42 All of the sections of the NUPOAA were included within the scope of the Nebraska Probate Code. 43 The NUPOAA conferred concurrent jurisdiction on the county court and the district court “to determine the validity and enforceability of a power of attorney.” 44 But the NUPOAA also greatly expanded the statutory scope: The Uniform Law Commission “designed the [uniform act] to be comprehen- sive in nature, addressing the many issues that arose with the increased utilization of the durable power of attorney.” 45 And among the statutory provisions included in the NUPOAA was one authorizing a “petition [to] a court to construe a power of attorney or review the agent’s conduct and grant appropri- ate relief.” 46 Thus, when the NUPOAA conferred concurrent jurisdiction “to determine the validity and enforceability of a power of attorney,” 47 it did so in a much broader context than the same words had conveyed under the UDPAA. 48 At the time the Legislature adopted the NUPOAA, it made no corresponding change to § 4-517. The Legislature remedied this omission in 2015, 49 adding the above-quoted § 24-517(13). With this understanding, we turn to Adelung’s jurisdictional arguments. 40 See 2012 Neb. Laws, L.B. 1113. 41 See Neb. Rev. Stat. §§ 49-1501 to 49-1562 (Reissue 2010). 42 See § 49-1504(5). 43 See § 30-2201. 44 § 30-4006(1). 45 Volkmer, supra note 35 at 506. 46 § 30-4016(1). 47 § 30-4006(1). 48 See § 30-2671. 49 See 2015 Neb. Laws, L.B. 314. - 662 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 (d) Adelung’s Jurisdictional Arguments (i) Power of Attorney Adelung posits that the 2015 legislation adding § 24-517(13) changed the county court’s jurisdiction contrary to the Legislature’s purpose. He asserts that the 2012 grant of juris- diction in § 30-4006(1) is “limited to determining ‘the validity and enforceability of a power of attorney.’” 50 Reading the 2015 addition of § 24-517(13) as recognizing jurisdiction “in any matter relating to a power of attorney and the action or inac- tion of any agent acting under a power of attorney” 51 would, he asserts, render § 30-4006(1) superfluous. [18,19] Adelung relies on two well-established principles of law. First, a collection of statutes pertaining to a single subject matter are in pari materia and should be conjunc- tively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible. 52 Second, a court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. 53 Next, asserting that the difference between § 24-517(13) and § 30-4006(1) creates ambiguity, Adelung relies on legislative history to show that L.B. 314—which added § 24-517(13)— was not intended to make any substantive changes to county court jurisdiction. He first notes the introducer’s statement that the purpose of L.B. 314 was “to clearly define the juris- diction of the County Court in one statutory section.” 54 He 50 Brief for appellant at 27 (quoting § 30-4006(1)). 51 § 24-517(13). 52 Shelter Mut. Ins. Co. v. Freudenberg, 304 Neb. 1015, 938 N.W.2d 92 (2020). 53 Id. 54 Introducer’s Statement of Intent, L.B. 314, Judiciary Committee, 104th Leg., 1st Sess. (Jan. 29, 2015). - 663 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 also emphasizes the introducer’s testimony to the Judiciary Committee that the amendment “clarifies that the jurisdiction is not changing but only becoming clearly stated. [The amend- ment] does not change the jurisdiction of any court.” 55 We do not agree that the legislative history is as definitive as Adelung claims. The committee statement asserted that the amendment would “establish the county court’s concurrent original jurisdiction with the district court in a number of areas, including any matter relating to a power of attorney and the inaction of any agent acting under a power of attorney.” 56 [20] But more important, in the absence of ambiguity, we do not consult legislative history. An appellate court will not resort to interpretation to ascertain the meaning of statutory words that are plain, direct, and unambiguous. 57 And we need not do so here. The premise of Adelung’s ambiguity argument is flawed. He compares only §§ 24-517(13) and 30-4006(1) and reads the latter in isolation. But when § 24-517(13) is read in the context of all of the NUPOAA, § 30-4006(1) cannot be described as superfluous. The words “validity and enforce- ability” therein must be read together with the other sections governing virtually every aspect of a power of attorney. In light of the broad scope of the NUPOAA and its “compre- hensive . . . nature,” 58 the plain language of these sections becomes consistent, harmonious, and sensible. And they cer- tainly confer county court jurisdiction to “construe a power of attorney or review the agent’s conduct and grant appropri- ate relief.” 59 55 Judiciary Committee Hearing, L.B. 314, 104th Leg., 1st Sess. 11 (Jan. 29, 2015). 56 Committee Statement, L.B. 314, Judiciary Committee, 104th Leg., 1st Sess. (Jan. 29, 2015). 57 Shelter Mut. Ins. Co. v. Freudenburg, supra note 52. 58 Volkmer, supra note 35 at 506. 59 § 30-4016(1). - 664 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 (ii) Probate Jurisdiction Adelung’s arguments regarding the probate court’s jurisdic- tion of Heiden’s suit for an equitable accounting fare no better. Several statutory provisions apply. First, with certain specified exceptions, § 24-517(1) confers jurisdiction of “all matters relating to decedents’ estates” to the county court. Second, contrary to positions taken at oral argument, statu- tory authority for related proceedings appears in the Nebraska Probate Code. Section 30-2405 authorizes interested persons to “petition the court for orders in formal proceedings within the court’s jurisdiction including but not limited to those described in this article.” (Emphasis supplied.) This section also confers upon the county court “jurisdiction of all proceed- ings to determine how decedents’ estates subject to the laws of this state are to be administered, expended and distributed.” 60 Section 30-2464(c) granted Heiden, as personal representa- tive, the “same standing to sue and be sued in the courts of this state . . . as his or her decedent had immediately prior to death.” Before the decedent’s death, she had the right to seek a review of the agent’s conduct and appropriate relief. 61 And § 30-2470 empowered the personal representative to “maintain an action to recover possession of property or to determine the title thereto.” Third, § 30-2476(22) authorized Heiden to “prosecute or defend claims or proceedings in any jurisdiction for the pro- tection of the estate.” She certainly could have commenced this action in the district court, which had concurrent jurisdic- tion. But at that point, the district court’s jurisdiction had not been invoked. [21,22] These statutory provisions conferred ample author- ity to pursue the equitable action against Adelung. He was a devisee of the estate. As the decedent’s agent pursuant to the power of attorney, he stood in a fiduciary relationship with 60 § 30-2405. 61 See § 30-4016(1). - 665 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 the decedent. As we said prior to enactment of the NUPOAA, an agent and principal are in a fiduciary relationship such that the agent has an obligation to refrain from doing any harmful act to the principal. 62 The NUPOAA places an agent under a power of attorney in a fiduciary relationship with his or her principal. 63 To escape the county court’s statutory jurisdiction over all matters relating to decedents’ estates, Adelung relies on sev- eral cases; but none supports his argument. One was merely an example of a common-law or equitable action initiated in a district court. 64 Another pertained to nonprobate property, where the property was transferred by contract and was not testamentary in nature. 65 One addressed the jurisdiction over statutory fair and equitable distribution of tort claim proceeds subject to subrogation for workers’ compensation benefits paid by or on behalf of an employer. 66 One simply had no relationship to a decedent. 67 And one, which also had no rela- tionship to a decedent’s estate, attempted to use a different subsection of § 24-517 to support injunctive relief in a county court action. 68 [23] In common-law and equity actions relating to dece- dents’ estates, the county court has concurrent original jurisdic- tion with the district court. 69 This is such a case. (iii) Filing Fee Adelung’s jurisdictional argument asserts that because Heiden did not pay a filing fee at the time she filed her petition, the 62 Crosby v. Luehrs, supra note 39. 63 See § 30-4014. 64 See Crosby v. Luehrs, supra note 39. 65 Miller v. Janecek, 210 Neb. 316, 314 N.W.2d 250 (1982). 66 See In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016). 67 See Kracl v. Loseke, 236 Neb. 290, 461 N.W.2d 67 (1990). 68 See Iodence v. Potmesil, 239 Neb. 387, 476 N.W.2d 554 (1991) (addressing § 24-517(4)). 69 See In re Estate of Steppuhn, supra note 23. - 666 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 court did not acquire jurisdiction. Heiden responds that the court did not charge a filing fee. Adelung cites no authority for the proposition that a county court does not acquire subject matter jurisdiction of an origi- nal proceeding where no filing fee is paid. Certainly, the Legislature understands how to make the payment of a fee jurisdictional. 70 We find no merit to this argument. Because Adelung addressed the matter purely as an issue of jurisdiction, we express no opinion regarding any fees which may be owed to the county court. 71 Having concluded that all of Adelung’s arguments challenging the county court’s jurisdiction lack merit, we turn to the substantive issues. 3. Power of Attorney: Underlying Questions Before addressing specific questions regarding Adelung’s liability to the decedent’s estate, we resolve two issues regard- ing the 2008 power of attorney. (a) General Assignment Adelung generally assigns that that county court “fail[ed] to apply” several provisions of the NUPOAA, which he lists by section number. We agree with Heiden that the court’s decision does not disclose any erroneous recitation from the NUPOAA. We do not address this general assignment further. (b) UDPAA and Common Law, or NUPOAA? Adelung used the 2008 power of attorney both before and after the operative date of the NUPOAA on January 1, 70 See, Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018) (appeals from district court to Court of Appeals or Supreme Court); Neb. Rev. Stat. § 25-2729 (Cum. Supp. 2018) (appeals from county court to district court). 71 See Neb. Rev. Stat. § 33-125(1)(a)(ii) (Reissue 2016) (establishing fee for “any other proceeding under the Nebraska Probate Code for which no court fee is established by statute”). - 667 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 2013. 72 Heiden does not dispute that the NUPOAA applies to acts after that date. But the parties disagree whether it applies to actions taken before that date. Adelung argues that it does. We disagree. One section of the NUPOAA controls its effect, both retro- actively and prospectively. 73 Although it contains four subsec- tions, only three apply here. And the dispute focuses on the last one. The first specifies that unless the act provides otherwise, the NUPOAA applies to a power of attorney created before, on, or after January 1, 2013. 74 By this language, the NUPOAA would apply to the 2008 power of attorney. The second states that the NUPOAA applies to a judicial proceeding concerning a power of attorney commenced on or after that date. 75 Because Heiden’s petition was filed over 3 years after the operative date, the NUPOAA applied to the proceeding. The last subsection, which the parties dispute, states that “[a]n act done before January 1, 2013, is not affected by the [NUPOAA].” 76 Although § 30-4045 is patterned after a provision of the Uniform Power of Attorney Act, 77 which was adopted in over half of the states, our research did not uncover an examination by any court of language similar to that in § 30-4045(4). To aid in interpretation, Adelung directs us to the Nebraska Uniform Trust Code (NUTC), 78 which contains a substan- tially similar statute regarding its retroactive scope. 79 Our case 72 See 2012 Neb. Laws, L.B. 1113, § 48. 73 See § 30-4045. 74 § 30-4045(1). 75 § 30-4045(2). 76 § 30-4045(4). 77 See Unif. Power of Attorney Act § 403, 8B U.L.A. 262 (2014). 78 Neb. Rev. Stat. §§ 30-3801 to 30-38,110 (Reissue 2016 & Cum. Supp. 2018). 79 See § 30-38,110(a). - 668 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 law shows that we have applied the NUTC to trusts created prior to the NUTC’s enactment. 80 And we have recognized that § 30-38,110(a)(3) required application of the NUTC to judicial proceedings commenced prior to its operative date “except in those instances where we determine that such appli- cation would ‘substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the par- ties,’ in which instance, we must apply prior law which has been superseded by the NUTC.” 81 But the NUPOAA equivalent to § 30-38,110(a)(3)— § 30-4045(3)—does not apply here. Section 30-4045(3) gov- erns the treatment of a judicial proceeding commenced before January 1, 2013. Here, the proceeding was commenced in 2016, well after the NUPOAA’s operative date. Instead, this proceeding is governed by § 30-4045(2), which applies the NUPOAA to any judicial proceeding commenced after the NUPOAA’s operative date. Thus, the NUPOAA applies to this proceeding. But that does not end our inquiry. Like the NUPOAA, the NUTC states that “an act done before [the operative date] is not affected by the [NUTC].” 82 And in none of those cases did we apply or interpret the NUTC equivalent to § 30-4045(4). In one case, the equivalent subsection was not mentioned. 83 In another, the law was the same before and after the operative date. 84 For assistance regarding § 30-4045(4), we turn to a com- ment to the Uniform Trust Code which provides further guid- ance regarding retroactivity. It states: 80 See, In re Margaret Mastny Revocable Trust, 281 Neb. 188, 794 N.W.2d 700 (2011); In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638 (2007); In re Trust Created by Inman, 269 Neb. 376, 693 N.W.2d 514 (2005). 81 In re Trust Created by Inman, supra note 80, 269 Neb. at 381, 693 N.W.2d at 519. 82 § 30-38,110(a)(4). 83 See In re Margaret Mastny Revocable Trust, supra note 80. 84 In re Trust Created by Inman, supra note 80. - 669 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 This Code cannot be fully retroactive, however. Constitutional limitations preclude retroactive application of rules of construction to alter property rights under trusts that became irrevocable prior to the effective date. Also, rights already barred by a statute of limitation or rule under former law are not revived by a possibly longer statute or more liberal rule under this Code. Nor is an act done before the effective date of the Code affected by the Code’s enactment. 85 [24] We agree with Adelung that § 30-4045—the provi- sion of the NUPOAA governing retroactivity—should be con- strued similarly to § 30-38,110—the comparable provision of the NUTC. But we disagree with his conclusion. While the NUPOAA applies to this proceeding, the plain language of the statute makes it clear that the NUPOAA does not apply retroac- tively to acts done before its effective date. 86 To the extent that Adelung’s actions as an agent prior to January 1, 2013, may have violated a duty he owed to the decedent under the UDPAA or the common law, applying the NUPOAA would prejudice the decedent’s rights. And of course, as personal representative of the decedent’s estate, Heiden stands in the decedent’s shoes to assert those rights. Because the plain language of the statute makes it clear that the NUPOAA does not apply retroactively to acts done before its effective date, Adelung’s use of the power of attorney prior to January 1, 2013, is not governed by the NUPOAA but his actions after that date are. 4. Liability Issues We now turn to the other substantive issues raised by Adelung’s appeal and Heiden’s cross-appeal. Because of the county court’s factual findings, it seems expedient to address the issues in four segments of time. 85 Unif. Trust Code § 1106, comment, 7D U.L.A. 380 (2018) (emphasis supplied). 86 See § 30-4045(4). - 670 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 (a) Before August 2010: Heiden’s Cross-Appeal The county court determined that Adelung was not liable to the estate for either farm rents he collected or checks he wrote to himself or his family members prior to August 2010, when the decedent moved to an assisted living facility. Heiden’s cross-appeal, by separate assignments, challenges both of those conclusions. The court specifically found that the decedent was “very competent and aware of her surroundings and situation” dur- ing this period of time. Here, our standard of review becomes critical. We have reviewed the record de novo. But we are permit- ted to consider and give weight to the county court’s observa- tion of the witnesses and credibility assessments. Having done so, we find no merit to Heiden’s cross-appeal. In light of the county court’s findings, we are not persuaded that Adelung acted contrary to the decedent’s express instructions or in con- travention of her wishes. We affirm that portion of the county court’s judgment. (b) August 2010 Through January 2012: Statute of Limitations Although Adelung raised the statute of limitations below, the county court’s judgment made no mention of it. The parties agree that Neb. Rev. Stat. § 25-207 (Reissue 2016) governs this proceeding. Under that statute, an action must be brought within 4 years. Adelung argues that Heiden’s petition was filed on February 1, 2016; that the decedent “initiated and always knew about the money [Adelung] was receiving”; and that the county court erred in allowing Heiden to recover for transactions which occurred before February 1, 2012. 87 Heiden acknowledges the rules that a statute of limitations begins to run as soon as the claim accrues and that an action in tort accrues as soon 87 Brief for appellant at 28. - 671 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 as the act or omission occurs. 88 But she argues that in certain categories of cases, the injury is not obvious and the individual is wholly unaware that he or she has suffered an injury or dam- age. 89 In such cases, it is manifestly unjust for the statute of limitations to begin to run before a claimant could reasonably become aware of the injury. Heiden argues that Adelung “did not present sufficient evidence to demonstrate . . . that [the decedent] was even aware that such money was being taken.” 90 We disagree. [25,26] First, we have already determined that the parties tried this case as an action in equity for an accounting of estate property. The statute of limitations for an action in equity for an accounting of estate property is 4 years. 91 The accrual of a cause of action means the right to maintain and institute a suit, and whenever one person may sue another, a cause of action has accrued and the statute begins to run, but not until that time. So whether at law or in equity, the cause of action arises when, and only when, the aggrieved party has a right to apply to the proper tribunal for relief. 92 For the sake of completeness, we note that a probate statute prevents a cause of action belonging to a decedent, which had not been barred as of the date of the decedent’s death, from being barred sooner than 4 months after death. 93 Because this action was commenced more than 4 months after the dece- dent’s death, that statute does not apply here. Second, we think the evidence is essentially undisputed that the decedent initiated the practice of Adelung’s retaining the farm rents. The decedent initially signed the checks for gifts to Adelung and his family members. Coupled with the county 88 See Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376 (2007). 89 See Shlien v. Board of Regents, 263 Neb. 465, 640 N.W.2d 643 (2002). 90 Brief for appellee at 28. 91 See Fraser v. Temple, 173 Neb. 367, 113 N.W.2d 319 (1962). 92 Id. 93 See § 30-2409. - 672 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 court’s finding that the decedent was “very competent and aware of her surroundings and situation,” this evidence estab- lishes that the decedent was aware of these transactions at the times they were occurring. Thus, the cause of action accrued with each transaction. As personal representative, Heiden stands in the decedent’s shoes. The decedent’s knowledge binds the estate. Upon our de novo review, we conclude that the statute of limitations bars any recovery for money Adelung received prior to February 1, 2012. (c) February Through December 2012: Before NUPOAA’s Operative Date [27,28] In this section, we address the money Adelung received from or on behalf of the decedent prior to the opera- tive date of the NUPOAA. The 2008 power of attorney was in effect throughout this period. A power of attorney authorizes another to act as one’s agent. 94 An agency is a fiduciary rela- tionship resulting from one person’s manifested consent that another may act on behalf and subject to the control of the person manifesting such consent and, further, resulting from another’s consent to so act. 95 (i) Duty Under Power of Attorney [29,30] During this period of time, the duty of an agent under a power of attorney was well established; thus, we recall the general principles establishing that duty. An agent and principal are in a fiduciary relationship such that the agent has an obligation to refrain from doing any harmful act to the principal, to act solely for the principal’s benefit in all matters connected with the agency, and to adhere faithfully to the instructions of the principal, even at the expense of the agent’s own interest. 96 An attorney in fact, under the duty of loyalty, always has the obligation to act in the best interest 94 Crosby v. Luehrs, supra note 39. 95 Id. 96 Archbold v. Reifenrath, supra note 39. - 673 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 of the principal unless the principal voluntarily consents to the attorney in fact’s engaging in an interested transaction after full disclosure. 97 [31,32] With respect to gifts, we articulated a related rule. No gift may be made by an attorney in fact to himself or her- self unless the power to make such a gift is expressly granted in the instrument and there is shown a clear intent on the part of the principal to make such a gift. 98 The basic policy concern underlying the law that forbids self-dealing is not linked to any duty an agent may have to third parties, but is primar- ily addressed to the potential for fraud that exists when an agent acting pursuant to a durable power of attorney has the power to make gifts, especially after the principal becomes incapacitated. 99 [33] Closely related is a rule of strict construction. Powers of attorney are by necessity strictly construed, and broad encom- passing grants of power are to be discounted. 100 (ii) Collection of Farm Rents Adelung argues that he did not use the power of attorney to collect the farm rents. Thus, he argues, his duty to the decedent under the power of attorney was not implicated. We disagree. Adelung relies upon our decision in Eggleston v. Kovacich, 101 but he reads it too broadly. There, we stated that the defend ant did not use the power of attorney when the principal herself signed signature cards and the defendant also signed them but only as a co-owner on a multiple-party account that provided for a right of survivorship. In other words, because the principal acted on her own behalf and the agent did not 97 Crosby v. Luehrs, supra note 39. 98 Id. 99 Id. 100 Archbold v. Reifenrath, supra note 39. 101 Eggleston v. Kovacich, 274 Neb. 579, 742 N.W.2d 471 (2007). - 674 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 sign for the principal, we said he did not “use” the power of attorney. 102 That case does not stand for the proposition that an agent’s status must be disclosed or that express reference must be made in using a power of attorney. There, the principal acted directly and the agent did not act as an agent regarding those accounts. [34] The record here is clear that at all times, the decedent owned a life estate in the farm. A life tenant is entitled to and owns by absolute title everything in the nature of income, profit, and gain realized or accrued from the property during his or her tenancy. 103 There is no evidence that she ever termi- nated the life estate before her death. Nor is there any evidence that at any time after she began allowing Adelung to collect the rents, she collected any rents herself. [35] Even before the 2008 power of attorney, Adelung col- lected the farm rents as the decedent’s agent. An agency rela- tionship may be implied from the words and conduct of the parties and the circumstances of the case evidencing an inten- tion to create the relationship irrespective of the words or ter- minology used by the parties to characterize or describe their relationship. 104 The circumstances here show that an agency relationship existed prior to the 2008 power of attorney. The 2008 power of attorney simply created a more extensive, for- mal agency relationship. [36] Other than Adelung’s relationship as the decedent’s agent, the record does not establish any basis during the dece- dent’s lifetime enabling Adelung to collect the farm rents. An agent has a duty to account to his or her principal for all prop- erty or funds which he or she has received or paid out on behalf of the principal. 105 That is precisely the nature of this action. 102 Id. at 594, 742 N.W.2d at 484. 103 See Slocum v. Bohuslov, 164 Neb. 156, 82 N.W.2d 39 (1957). 104 Koricic v. Beverly Enters. - Neb., 278 Neb. 713, 773 N.W.2d 145 (2009). 105 Cheloha v. Cheloha, supra note 14. - 675 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 (iii) Power of Attorney We read all of Adelung’s arguments regarding the 2008 power of attorney to rely upon the NUPOAA. We have already rejected Adelung’s argument that the NUPOAA applies to his actions under the power of attorney prior to the NUPOAA’s operative date. Strictly construing the power of attorney in light of the common law that controlled his duties to the decedent at that time, we see no merit to any arguments he asserts regard- ing his liability for actions taken prior to January 1, 2013. (iv) Laches Adelung asserts that we should apply the equitable defense of laches. He asserts that if the decedent “had truly wanted [him] to stop receiving the money involved in this action, [she] would have been guilty of inexcusable neglect for allow- ing these transactions to go on so long and allowing so much potential monetary liability to accumulate.” 106 We disagree. [37-39] The defense of laches is not favored in Nebraska. 107 Laches occurs only if a litigant has been guilty of inexcus- able neglect in enforcing a right and his or her adversary has suffered prejudice. 108 Laches does not result from the mere passage of time, but because during the lapse of time, circum- stances changed such that to enforce the claim would work inequitably to the disadvantage or prejudice of another. 109 We are not persuaded that laches has any application here. We have already determined that the statute of limitations applies to bar collection of money Adelung received prior to February 1, 2012. His argument seems to be focused on the years of his life when he devoted his time and attention to keeping the decedent on the farm. But that changed in 2010, 106 Brief for appellant at 42. 107 Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 105 (2015). 108 Id. 109 Id. - 676 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 when the decedent moved to an assisted living facility. We see nothing about his circumstances between February 1, 2012, and January 1, 2013, that would support a laches defense. (d) January 2013 to Decedent’s Death: After NUPOAA’s Operative Date (i) Effect of NUPOAA As we have already explained, the NUPOAA applies to powers of attorney created before its operative date. 110 The NUPOAA also applies to a judicial proceeding commenced, as this one was, after that date. 111 And, obviously, the provision of § 30-4045(4), regarding acts done before the operative date, does not apply to the time period we consider in this part of our analysis. a. Rule of Strict Construction Adelung argues that § 30-4024(5) altered the common-law rule of strict construction of powers of attorney. That section states, “Subject to subsections (1), (2), and (4) of [§ 30-4024], if the subjects over which authority is granted in a power of attor- ney are similar or overlap, the broadest authority controls.” 112 At least as to gifts made by an agent, we disagree. First, by its terms, § 30-4024(5) is “[s]ubject to” § 30-4024(1). And § 30-4024(1) authorizes an agent to “[m]ake a gift,” but, in relevant part, “only if the power of attorney expressly grants the agent the authority.” The plain language of the statutory text requires an express grant of authority. The comment to the section of the uniform act correspond- ing to § 30-4024(1) explains that the uniform act “enumer- ates the acts that require an express grant of specific author- ity and which may not be inferred from a grant of general authority.” 113 This approach, the comment explains, “follows a 110 See § 30-4045(1). 111 See § 30-4045(2). 112 § 30-4024(5). 113 Unif. Power of Attorney Act § 201, comment, 8B U.L.A. 226 (2014). - 677 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 growing trend among states to require express specific author- ity for such actions as making a gift.” 114 The comment identi- fies the rationale for this approach: “the risk those acts pose to the principal’s property and estate plan. Although risky, such authority may nevertheless be necessary to effectuate the prin- cipal’s property management and estate planning objectives.” 115 We do not perceive any legislative intention to shield gift mak- ing under a power of attorney from strict construction. Indeed, the uniform act’s comment suggests otherwise. Second, the comment notes, “Ideally, these are matters about which the principal will seek advise [sic] before granting authority to an agent.” 116 Here, the attorney who drafted the 2008 power of attorney testified that he “drafted this docu- ment for [Adelung]” and that he “[n]ever met, never talked to [the decedent].” He recalled that there “may have been some conversation,” presumably with Adelung, about “whether there need[ed] to be a gifting clause or not.” He could not recall the purpose for including the gifting clause, but testified there “had to be some type of a conversation that led [him] to believe there needed to be the gifting clause.” And, again, he confirmed that the conversation was not with the decedent. Obviously, the decedent did not seek that attorney’s advice. Third, the comment goes on to state that “[n]otwithstand- ing a grant of authority to perform any of the enumerated acts . . . , an agent is bound by the mandatory fiduciary duties set forth in [the uniform act’s equivalent of § 30-4014(1)] as well as the default duties that the principal has not modified.” 117 These include acting in accordance with the “principal’s best interest,” 118 in “good faith,” 119 and “only within the scope 114 Id. 115 Id., 8B U.L.A. at 226-27. 116 Id., 8B U.L.A. at 227. 117 Id. 118 § 30-4014(1)(a). 119 § 30-4014(1)(b). - 678 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 of authority granted, or reasonably implied by, the grant of authority in the power of attorney.” 120 [40] Finally, § 30-4021 states that “[u]nless displaced by a provision of the [NUPOAA], the principles of law and equity supplement the act.” We are not persuaded that the drafters of the uniform act or the Nebraska Legislature intended to loosen the rule of strict construction with respect to gift making. Thus, we hold that the rule of strict construction regarding author- ity under a power of attorney to make gifts continues under the NUPOAA. b. Authority to Make Gifts Omitting the exoneration clause, we recall the specific lan- guage employed in the 2008 power of attorney. It stated: Gifting. To carry out on my behalf any plan or pattern of gifting to my issue, including gifting to my Agent, which had apparently been established or clearly con- templated by myself. In determining whether to initiate or continue any such gifting plan, my Agent shall give consideration to the size of my estate in light of what might reasonably be anticipated as my future needs and the potential federal estate taxes which may be due upon my death in order that such taxes may be lessened or eliminated. If a gifting plan has not been initiated by me, my Agent shall have complete discretion to make gifts to my issue, including making gifts to my Agent, after con- sideration of the foregoing factors. This gifting clause was, at most, a general grant. It did not specifically refer to the farm rentals. Nor did it refer to checks payable to Adelung or his spouse or child. [41] The NUPOAA limits gifts made via a general grant of authority in two ways. First, § 30-4040(2) states that “lan- guage in a power of attorney granting general authority with respect to gifts” authorizes gifts, as applicable here, only “(a) . . . in an amount per donee not to exceed the annual 120 § 30-4014(1)(c). - 679 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 dollar limits of the federal gift tax exclusion.” But more impor- tant, § 30-4040(3) permits a gift “only as the agent determines is consistent with the principal’s objectives if actually known by the agent and, if unknown, as the agent determines is con- sistent with the principal’s best interest based on all relevant factors.” The statute identifies five specific factors, including the value and nature of the principal’s property; the principal’s foreseeable obligations and need for maintenance; minimiza- tion of taxes; eligibility for a benefit, program, or assistance; and the principal’s personal history of making gifts. 121 As the comment to this section of the uniform act makes clear, to the extent a principal’s objectives “may potentially conflict with an agent’s default duties under the [NUPOAA], the principal should carefully consider stating those objectives in the power of attorney, or altering the default rules . . . , or both.” 122 Adelung does not claim that the 2008 power of attor- ney altered the default rules. The stated objectives did not support the gifts. The power of attorney stated only two: “what might reasonably be antici- pated as [the decedent’s] future needs” and lessening or elimi- nating federal estate taxes. Neither objective was furthered by these gifts. Heiden testified that Adelung told her the decedent “had less than $50,000 in the bank, because [the decedent] was broke.” A certified public accountant testified that “currently, you could pass through your estate over 12 million without any federal estate tax.” Upon our de novo review, we are not persuaded that the provisions of the NUPOAA authorized the gifts Adelung made on the decedent’s behalf. In reaching this conclusion, we give weight to the county court’s factual findings. c. Exoneration Clause Adelung also relies upon the exoneration clause of the 2008 power of attorney, which states: 121 See § 30-4040(3)(a) to (e). 122 Unif. Power of Attorney Act § 217, comment, 8B U.L.A. 248 (2014). - 680 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 No individual or entity shall have the right, by court action or otherwise, to compel the initiation or con- tinuation of any type of gifting plan by my Agent and no individual or entity shall have any claim or right of reimbursement from my Agent for initiating or continuing a gifting plan or for not initiating or continuing a gifting plan; it being my intention hereby that my Agent shall have absolute discretion and shall bear no liability for any decision made. Adelung focuses on § 30-4015(1), which states that a pro- vision “relieving an agent of liability for breach of duty is binding on the principal . . . except to the extent the provision: (a) [r]elieves . . . for breach of duty committed dishonestly, with an improper motive, or with reckless indifference[.]” He claims not to have acted in any of these ways. [42] In passing, Adelung acknowledges § 30-4015(1)(b). Under § 30-4015(1)(b), an exoneration clause in a power of attorney will not relieve an agent of liability if the clause was “inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.” He asserts that at the time of the 2008 power of attorney, he “was not in a confidential or fiduciary relationship with [the decedent].” 123 We disagree. The comment to the uniform act provision mirroring § 30-4015(1) explains that the language in subsection (1)(b) “provides . . . an additional measure of protection for the principal.” 124 But the Nebraska Legislature was not satisfied with only that measure of protection. It supplemented the uniform act by adding § 30-4015(2), which states that an “exculpatory term drafted or caused to be drafted by an agent is invalid as an abuse of fiduciary or confidential relation- ship unless the agent proves that the exculpatory term is fair under the circumstances and that its existence and contents were adequately communicated to the principal.” 123 Brief for appellant at 36. 124 Unif. Power of Attorney Act § 115, comment, 8B U.L.A. 208 (2014). - 681 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 At the time of the 2008 power of attorney, Adelung had already been acting for some years as the decedent’s agent in collect- ing the farm rents. That activity imposed upon him a fiduciary relationship. This alone seems sufficient under § 30-4015(1)(b) to defeat the exoneration clause. But § 30-4015(2) reinforces our conclusion. By hiring his own attorney to draft the power of attorney, Adelung “caused [the exoneration clause] to be drafted.” 125 Section 30-4015(2) imposed upon him the burden to prove that the clause was fair and adequately communicated to the decedent. He did not do so. The attorney who prepared it never spoke with the decedent. The notary public who administered the decedent’s acknowledgment did not recall discussing with her what the document authorized Adelung to do and denied that he would “normally” do so. Even Adelung did not claim that he provided any explanation to the decedent regarding its contents and meaning. He merely left it with her the day before it was signed and recalled her statement that she “had looked it over.” Adequate communication required more than this. Adelung also asserts that Heiden waived the right to contest the exoneration clause, by failing to attack it in her petition. He relies upon a rule of pleading recited in a case long ago, that “where the illegality of an agreement is not suggested by the plaintiff’s pleadings or proofs it must, in order to be avail- able to the adverse party, be especially pleaded.” 126 We are not sure that this rule survives under our current pleading rules, 127 but, in any event, the challenge to the exoneration clause was asserted by the proofs. We find no merit to Adelung’s arguments attempting to rely upon the exoneration clause. The Legislature demanded an extra measure of protection regarding such provisions. This appeal illustrates why it did so. 125 See § 30-4015(2). 126 Fitzgerald v. Fitzgerald & Mallory Construction Co., 44 Neb. 463, 485, 62 N.W. 899, 907 (1895). 127 See Neb. Ct. R. Pldg. § 6-1109 (rev. 2008) (pleading special matters). - 682 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports IN RE ESTATE OF ADELUNG Cite as 306 Neb. 646 d. Arguments Not Raised Below [43] On appeal, Adelung raises two arguments for the first time. He argues that the NUPOAA authorizes an agent to per- form the acts necessary to maintain the customary standard of living of the principal’s close family members, including the principal’s children. He also contends that under the NUPOAA, agents are entitled to reasonable compensation, and that he is not liable for the decedent’s subsequent qualification for Medicaid. Because appellate courts do not consider arguments and theories raised for the first time on appeal, 128 we decline to further consider these arguments. (ii) Laches As we discussed in a preceding section, Adelung relies upon the defense of laches. There, we determined that it did not apply to the period from February through December 2012. For the same reasons, it does not apply to the time period from January 2013 to the decedent’s death. VI. CONCLUSION Because the county court had jurisdiction of the proceeding, we have jurisdiction of this appeal. We find no merit to Heiden’s cross-appeal. Except as to the defense of the statute of limita- tions, Adelung’s appeal lacks merit. Upon our de novo review, we affirm the judgment as modified and limited to Adelung’s actions after February 1, 2012, and we remand the cause to the county court with directions to calculate the amount of the modified judgment in conformity with this opinion. Affirmed as modified, and cause remanded with directions. Funke, J., not participating. 128 Junker v. Carlson, 300 Neb. 423, 915 N.W.2d 542 (2018).	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4553833/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 12:08 AM CDT - 147 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 James Saylor, appellant, v. State of Nebraska et al., appellees. ___ N.W.2d ___ Filed June 19, 2020. No. S-18-794. 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. Tort Claims Act: Political Subdivisions Tort Claims Act: Appeal and Error. Where the relevant facts are undisputed, whether the notice requirements of the State Tort Claims Act or the Political Subdivisions Tort Claims Act have been satisfied is a question of law, on which an appellate court reaches a conclusion independent of the lower court’s ruling. 4. 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. 5. Administrative Law. Agency regulations that are properly adopted and filed with the Secretary of State have the effect of statutory law. 6. Political Subdivisions Tort Claims Act: Notice. In cases under the Political Subdivisions Tort Claims Act, the substantial compliance doc- trine applies when deciding whether the content of a claim satisfies the presuit claim presentment requirements in Neb. Rev. Stat. § 13-905 (Reissue 2012). 7. ____: ____. Substantial compliance with the statutory provisions per- taining to a claim’s content supplies the requisite and sufficient notice - 148 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 to a political subdivision in accordance with the Political Subdivisions Tort Claims Act when the lack of compliance has caused no prejudice to the political subdivision. 8. Tort Claims Act: Political Subdivisions Tort Claims Act. Generally, provisions of the State Tort Claims Act should be construed in har- mony with similar provisions under the Political Subdivisions Tort Claims Act. 9. ____: ____. Under the State Tort Claims Act, when a question is raised about whether the content of a presuit tort claim complied with the man- ner in which the State Claims Board prescribed such claims to be filed, the substantial compliance doctrine may be applied, just as it is applied under the Political Subdivisions Tort Claims Act. 10. ____: ____. Under both the State Tort Claims Act and the Political Subdivisions Tort Claims Act, application of the substantial compliance doctrine is limited to the content of a presuit claim. The doctrine of sub- stantial compliance does not apply when considering whether a presuit tort claim has complied with statutory timing requirements or whether it has been served on the recipient described in the statute. 11. Tort Claims Act: Political Subdivisions Tort Claims Act: Notice. Under both the State Tort Claims Act and the Political Subdivisions Tort Claims Act, application of the doctrine of substantial compliance is confined to situations where the content of the tort claim nevertheless satisfies the primary purpose of the presuit notice requirements by noti- fying the state or political subdivision about possible tort liability for a recent act or omission so it may investigate and make a decision whether to pay or defend the claim. Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Reversed and remanded for further proceedings. Michael J. Wilson, of Berry Law Firm, for appellant. Douglas J. Peterson, Attorney General, Scott R. Straus, and, on brief, David A. Lopez, Deputy Solicitor General, for appel- lee State of Nebraska. Miller-Lerman, Cassel, Stacy, and Funke, JJ. Stacy, J. James Saylor, an inmate at the Nebraska Department of Correctional Services (DCS), appeals from an order dismissing - 149 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 his lawsuit under the Nebraska State Tort Claims Act (STCA), 1 based on a finding that Saylor failed to comply with the pre- suit filing requirements of the STCA. 2 Because we find Saylor substantially complied with those requirements, we reverse, and remand for further proceedings. BACKGROUND Tort claims against the State are governed by the STCA. 3 This case requires us to focus on the presuit administrative requirements of the STCA. Before suit can be commenced under the STCA, a claimant must present the claim in writing to the Risk Manager for the State Claims Board within 2 years after the claim accrued. 4 Pursuant to § 81-8,212, such claim “shall be filed with the Risk Manager in the manner prescribed by the State Claims Board.” Generally speaking, a claimant cannot file suit under the STCA until the Risk Manager or State Claims Board makes a final disposition of the claim. 5 However, if no final disposition of a claim has been made after 6 months, § 81-8,213 authorizes the claimant to withdraw the claim and commence an action under the STCA. 6 We have described the presuit claim presentment require- ment in § 81-8,212 and the final disposition requirement in § 81-8,213 as procedural conditions precedent to commenc- ing a tort action against the State in district court, and not as jurisdictional prerequisites for the adjudication of a tort claim against the State. 7 Noncompliance with these procedural 1 Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp. 2018). 2 See § 81-8,212. 3 Komar v. State, 299 Neb. 301, 908 N.W.2d 610 (2018). 4 See, § 81-8,227(1); Komar, supra note 3. 5 § 81-8,213; Komar, supra note 3. 6 Komar, supra note 3. 7 See Cole v. Isherwood, 264 Neb. 985, 653 N.W.2d 821 (2002) (superseded by rule on other grounds as stated in Weeder v. Central Comm. College, 269 Neb. 114, 691 N.W.2d 508 (2005)). - 150 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 conditions precedent is considered an affirmative defense to be raised by the State. 8 We apply the same rules to the presuit claim presentment and final disposition procedures under the Political Subdivisions Tort Claims Act (PSTCA). 9 Under both the STCA and the PSTCA, the primary purpose of the presuit claim presentment procedures is the same: to notify the state or political subdivision about possible tort liability for a recent act or omission, to provide an opportunity to investigate the allegedly tortious conduct, and to enable the state or politi- cal subdivision to make a decision whether to pay or defend the claim. 10 Saylor Files Tort Claims With Risk Manager Between June 12, 2016, and February 23, 2017, Saylor filed 16 separate tort claims with the Risk Manager. 11 Pursuant to § 81-8,212 of the STCA, these claims had to “be filed with the Risk Manager in the manner prescribed by the State Claims Board.” Saylor filed all 16 of his claims using the standard form provided by the Risk Manager. Each claim form con- tained 18 fields requesting information regarding the claim. Some fields were marked with an asterisk indicating it was a “required” field. Further, each form contained a blank area with the following instructions: Provide detailed itemization of all known facts/ circumstances/damages leading to your claim. Identify all property, places, and people involved. Include names, 8 Id. 9 Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012 & Cum. Supp. 2018). See, e.g., Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007); Big Crow v. City of Rushville, 266 Neb. 750, 669 N.W.2d 63 (2003); Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003); Millman v. County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990) (superseded by rule on other grounds as stated in Weeder, supra note 7). 10 See, Cole, supra note 7; Chicago Lumber Co. v. School Dist. No. 71, 227 Neb. 355, 417 N.W.2d 757 (1988). 11 See § 81-8,212. - 151 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 addresses and phone numbers of witnesses, if any. The information provided herein, along with the findings of the investigating agency, will form the basis of any decision. In this section, most of Saylor’s claim forms described instances in which he claimed the actions of DCS or its employees either denied him timely medical care, aggravated his existing post-traumatic stress disorder, or deprived him of the use of devices that eased his pain. In a few claim forms, Saylor alleged DCS staff deprived him of the use of certain legal materials in his possession or interfered with his ability to meet with his attorney. Saylor generally stated that all these things caused him physical and emotional pain and suffering. On each form, Saylor provided information in all required fields. One of the required fields, field No. 9, was titled “Total Amount of Claim.” When completing field No. 9 on each claim form, Saylor wrote “[t]o be proven” without specifying a dollar amount. The Risk Manager, in a series of letters, acknowledged receiving all of Saylor’s claims. Those letters notified Saylor of the claim numbers assigned to his claims and advised it may take up to 6 months to receive final disposition. None of the letters indicated the claim forms were incomplete, and there is no evidence that additional information was requested from Saylor during the Risk Manager’s investigation. The parties generally agree the Risk Manager denied Saylor’s tort claims in a series of letters dated June 15, 2017. Those denial letters indicated that upon investigating the claims, “it was determined that there is no evidence of staff misconduct or negligence.” Complaint and Motion for Summary Judgment On June 16, 2017, Saylor filed a complaint in district court against the State of Nebraska, DCS, and 10 unnamed DCS employees (the State). He thereafter filed an amended - 152 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 complaint, styled as 16 separate causes of action, each one premised on a tort claim previously submitted to and denied by the Risk Manager. The State moved to dismiss the amended complaint for failure to state a claim. 12 The parties stipulated to the receipt of evidence and agreed the motion should be treated as one for summary judgment. 13 The State’s sole argument for summary judgment was that Saylor failed to satisfy the claim presentment provi- sions of § 81-8,212 with respect to his claimed damages. The State asserted, summarized, that § 81-8,212 requires all tort claims to be filed “in the manner prescribed by the State Claims Board” and that regulations adopted by the State Claims Board 14 require all claims to “contain all information called for” on the claim form. 15 The State argued that Saylor’s claims did not “contain all information called for” on the form because he did not specify a dollar amount in field No. 9. In remarks to the court, the State suggested there were other pos- sible deficiencies in Saylor’s tort claims, but in the interest of time, it had elected to seek dismissal only on the basis that no dollar amount was specified in field No. 9. The district court limited its analysis accordingly. District Court Order The district court agreed with the State that by not specify- ing a dollar amount in field No. 9, Saylor had not filed his claim in the manner prescribed by the State Claims Board, and that therefore, he had not complied with § 81-8,212. The court expressly rejected Saylor’s assertion that the State waived its right to contest compliance with the claims procedure under § 81-8,212 by accepting his claim forms, sending him letters acknowledging receipt and assigning claims numbers, and then denying the claims on their merits. 12 See Neb. Ct. R. Pldg. § 6-1112(b)(6). 13 § 6-1112(b). 14 See § 81-8,221. 15 Neb. Admin. Code, State Claims Board, rule No. 12 (1975). - 153 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 The district court granted the State’s motion for summary judgment and dismissed Saylor’s amended complaint with prejudice. Saylor timely appealed, and we moved the case to our docket on our own motion. ASSIGNMENTS OF ERROR Saylor assigns, restated, that the district court erred in grant- ing the State’s motion for summary judgment because (1) Saylor’s tort claim forms provided the requested information and substantially complied with the presuit requirements of the STCA and (2) the State waived any challenge to compliance with requested information on the tort claim forms. STANDARD OF REVIEW [1,2] 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. 16 In reviewing a summary judgment, an appel- late 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. 17 [3] Where the relevant facts are undisputed, whether the notice requirements of the STCA or the PSTCA have been sat- isfied is a question of law, on which an appellate court reaches a conclusion independent of the lower court’s ruling. 18 [4] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 16 JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71 (2019). 17 Id. 18 Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664 N.W.2d 461 (2003). - 154 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 independent conclusion irrespective of the decision made by the court below. 19 ANALYSIS The sole issue on appeal is whether the district court erred in dismissing Saylor’s STCA action for failure to comply with the presuit claim presentment requirement of § 81-8,212. As stated, that statute requires, in relevant part, that “[a]ll tort claims shall be filed with the Risk Manager in the manner pre- scribed by the State Claims Board.” 20 The State Claims Board has adopted rules and regulations that prescribe not only the manner of filing a tort claim, but also the form and content of such claims. Assuming without deciding that the statutory authority to prescribe the “manner” of filing tort claims with the Risk Manager includes prescrib- ing the form and content of such claims, we summarize, in the next section, the pertinent regulations adopted by the State Claims Board. [5] A certified copy of those regulations was received into evidence at the summary judgment hearing. It showed the regulations were adopted in 1975 and have not been amended since that time. It also showed the regulations have been signed and approved by the Governor and the Attorney General, as well as filed with the Secretary of State. We have held that agency regulations that are properly adopted and filed with the Secretary of State have the effect of statutory law. 21 State Claims Board Rules and Regulations Regarding the manner of filing a tort claim, the regulations require it “shall be filed in triplicate with the Secretary of the Board, State Capitol Building, State House Station, Lincoln, 19 JB & Assocs., supra note 16. 20 § 81-8,212 (emphasis supplied). 21 Val-Pak of Omaha v. Department of Revenue, 249 Neb. 776, 545 N.W.2d 447 (1996). - 155 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 Nebraska, 68509.” 22 Regarding the form of filing a tort claim, the regulations require that it “should be typewritten and upon a form provided by the Board, but claims printed by hand upon the Board’s form will be accepted if legible.” 23 And regarding the content of a tort claim, the regulations require that “[a]ll claims shall contain all information called for on the Board’s ‘Claim for Injury or Damage’ form, including the instructions printed on the back of the blue sheet of the form set, and also such other information as is pertinent to the claim.” 24 Also received into evidence was a certified copy of a docu- ment titled “Standard Operating Procedures: How to File a Tort Claim Against the State of Nebraska.” According to the certificate, these operating procedures are available online and were created by the State’s risk management division of the Department of Administrative Services. Unlike properly adopted administrative regulations, an agency’s operating pro- cedures do not have the force and effect of law. 25 As relevant to the issues on appeal, the Risk Manager’s operating procedures contain instructions regarding which form to use when filing a tort claim, how to complete the form, and how to file the form once completed. These instruc- tions differ from the State Claims Board’s regulations in several key respects. Specifically, the Risk Manager’s instruc- tions do not reference the “Claim for Injury or Damage” form required by the regulations, and instead, they direct that a “Tort & Miscellaneous Claim Form” be completed. The Risk Manager’s instructions do not direct that the claim form be filed in triplicate with the secretary of the State 22 Neb. Admin Code, State Claims Board, rule No. 6 (1975). 23 Neb. Admin Code, State Claims Board, rule No. 7 (1975). 24 Rule No. 12, supra note 15. 25 See, e.g., Reed v. State, 272 Neb. 8, 717 N.W.2d 899 (2006) (in contrast to agency regulations, agency manuals and guidelines lack force of law and do not warrant deference). - 156 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 Claims Board as required by the regulations, but instead, they direct that the form should be submitted electronically to “as.riskmanagement@nebraska.gov” or mailed to the “Office of Risk Management” at a specific post office box in Lincoln. The Risk Manager’s operating procedures also provide that “[o]nly fully completed and signed Tort Claim Forms will be accepted by the office of Risk Management.” It is undis- puted that all of Saylor’s tort claims were accepted by the Risk Manager and that all were presented using the “Tort & Miscellaneous Claim Form.” Arguments of Parties After Saylor commenced his tort action in district court, the State sought dismissal based on a single affirmative defense: that Saylor’s presuit tort claims were deficient because when he answered field No. 9, asking for the “Total Amount of Claim,” he did not provide a dollar amount, and instead stated “[t]o be proven.” The State contends that because the answer to field No. 9 did not reference a dollar amount, the forms did not “contain all information called for,” 26 and that thus, the claims were not filed “in the manner prescribed by the State Claims Board” as required by § 81-8,212. The State also asserts, as it did before the trial court, that the substantial com- pliance doctrine which this court has applied when reviewing the content of presuit claims under the PSTCA 27 should not be applied under the STCA. The State argues, summarized, that the substantial compliance doctrine is inconsistent with the principle that “requirements of the [STCA] must be fol- lowed strictly.” 28 26 Rule No. 12, supra note 15. 27 See, e.g., Jessen, supra note 9; West Omaha Inv. v. S.I.D. No. 48, 227 Neb. 785, 420 N.W.2d 291 (1988); Chicago Lumber Co., supra note 10. 28 See Jill B. & Travis B. v. State, 297 Neb. 57, 69, 899 N.W.2d 241, 252 (2017). - 157 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 Saylor contends that even though his answer to field No. 9 was not stated in dollars, he nevertheless provided “all infor- mation called for” 29 on the standard form, and that he thus substantially complied with the provisions of § 81-8,212. He also argues it was impossible for him to strictly comply with the “manner prescribed by the State Claims Board” for fil- ing claims, pursuant to § 81-8,212, because the State Claims Board’s rules and regulations are outdated and inconsistent with the information and instructions on the only claim form currently made available for filing tort claims—the “Tort & Miscellaneous Claim Form.” Substantial Compliance Doctrine Under PSTCA [6] In cases under the PSTCA, we have long applied the substantial compliance doctrine when deciding whether the content of a claim satisfied the statutory presuit claim present- ment requirements. 30 Section 13-905 sets out the PSTCA’s pre- suit claim presentment requirements, and it is the counterpart to § 81-8,212 under the STCA. Section 13-905 requires that “[a]ll [tort] claims shall be in writing and shall set forth the time and place of the occur- rence giving rise to the claim and such other facts pertinent to the claim as are known to the claimant.” We pause here to observe that when the Legislature prescribed the content of presuit claims under the PSTCA, it identified some require- ments that are specific and objective (like the time and place of the occurrence) and some which are nonspecific and subjec- tive (like “other facts pertinent to the claim as are known to the claimant”). The challenge of determining compliance with similar presuit notice requirements that predated the PSTCA 29 Rule No. 12, supra note 15. 30 See, e.g., Jessen, supra note 9; West Omaha Inv., supra note 27; Chicago Lumber Co., supra note 10. - 158 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 led this court, more than a century ago, to adopt the substantial compliance doctrine. In City of Lincoln v. Pirner, 31 we applied the substantial compliance doctrine to a statute requiring that before a tort action could be commenced against the city, “‘it shall be nec- essary that the party file in the office of the city clerk, within three months from the time such right of action accrued, a statement giving full name and the time, place, nature, cir- cumstances and cause of the injury or damage complained of.’” In that case, the plaintiff’s written claim stated that he fell into a “coal-hole” in a city sidewalk, but it incorrectly identified the block number. 32 We rejected the city’s argument that this claim was deficient, reasoning that the presuit notice requirement “should be liberally construed by the courts” and that “if the description given and the inquiries suggested by it will enable the agents and servants of the city to find the place where the accident occurred, there is a substantial compliance with the law.” 33 In Chicago Lumber Co. v. School Dist. No. 71, 34 we addressed whether a letter complied with the presuit claim presentment requirements of the PSTCA. At the time, those requirements were codified at Neb. Rev. Stat. § 23-2404 (Reissue 1983) and provided, as § 13-905 does now, that a claim must “set forth the time and place of the occurrence giving rise to the claim and such other facts pertinent to the claim as are known to the claimant.” The claim letter at issue did not reference a particular time or place, but it complained that the plaintiff had provided the school district with building materials and supplies in connec- tion with a recent project to renovate a specific school. The 31 City of Lincoln v. Pirner, 59 Neb. 634, 639-40, 81 N.W. 846, 847 (1900) (quoting Comp. Stat. ch. 13a, § 36 (1899)). 32 Pirner, supra note 31, 59 Neb. at 637, 81 N.W. at 846. 33 Id. at 640, 81 N.W. at 847. 34 Chicago Lumber Co., supra note 10. - 159 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 letter cited to statutes requiring the school district to obtain a construction bond from the contractor. The letter further stated that the district had failed to obtain such a bond in connection with the particular renovation project and that the plaintiff had suffered damages as a result. [7] On appeal, the school district claimed this presuit notice was insufficient under the PSTCA because it did not state with precision the time and location of the occurrence giving rise to the claim. 35 We disagreed, reasoning that the language of § 23-2404 did not require a claimant to “state the indicated information, circumstances, or facts with the full- ness or precision required in a pleading.” 36 We explained “the notice requirements for a claim filed pursuant to the [PSTCA] are [to be] liberally construed so that one with a meritorious claim may not be denied relief as the result of some techni- cal noncompliance with the formal prescriptions of the act.” 37 And we said that “substantial compliance with the statutory provisions pertaining to a claim’s content supplies the requi- site and sufficient notice to a political subdivision in accord ance with [the PSTCA], when the lack of compliance has caused no prejudice to the political subdivision.” 38 Because the claim letter identified the contractor to whom the plaintiff had delivered the supplies and identified the particular school renovation project at issue, we found the content of the claim substantially complied with the time and place requirements under the PSTCA. In West Omaha Inv. v. S.I.D. No. 48, 39 we again addressed whether the content of a letter complied with the presuit pre- sentment requirements of the PSTCA. In a letter to the political 35 Id. 36 Id. at 368, 417 N.W.2d at 765. 37 Id. at 369, 417 N.W.2d at 766. 38 Id. (emphasis supplied). 39 West Omaha Inv., supra note 27. - 160 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 subdivision, the plaintiff claimed fire damage to specific prop- erty on a specific date and alleged that a contributing cause of the fire damage was the defendant’s negligence in failing to furnish water with which to extinguish the fire. The political subdivision argued this claim was insufficient because it did not specify a dollar amount of damage. We held the contents of the letter were sufficient, noting in part that the statutory language did not “mandate that the claim contain the amount of damages or loss.” 40 We also reasoned that the letter substan- tially complied with the statute because it set forth the date, location, and circumstances of the event giving rise to the claim and alleged that property loss had occurred as a result of the political subdivision’s negligence. As these cases illustrate, we have long applied the sub- stantial compliance doctrine when the question presented was whether the content of a presuit tort claim satisfied the statute and supplied the political subdivision with sufficient notice to enable it to accomplish the primary goals of the presuit claim presentment requirements under the PSTCA and similar statutes. 41 But as other cases illustrate, we have declined to apply the substantial compliance doctrine when the question presented did not involve compliance with content- based requirements. We have refused to apply the substantial compliance doc- trine when the presuit claim was not filed with the statutorily authorized recipient, 42 reasoning that notice to the wrong recipient may deprive a political subdivision of the opportunity 40 Id., 227 Neb. at 790, 420 N.W.2d at 295. Compare Jessen, supra note 9 (holding presuit presentment requirements of PSTCA not substantially met because claim did not make any demand). 41 Accord, Loontjer v. Robinson, 266 Neb. 902, 914, 670 N.W.2d 301, 310 (2003) (Hendry, C.J., concurring) (“‘[s]ubstantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case’”). 42 See, e.g., Estate of McElwee, supra note 18; Willis v. City of Lincoln, 232 Neb. 533, 441 N.W.2d 846 (1989). - 161 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 to investigate and settle claims and thus must be given to a person or entity specified in the statute. 43 Similarly, we have refused to apply the substantial compliance doctrine to presuit claims that did not comply with the statutory time limits under the PSTCA, reasoning that, unlike the general requirements regulating the content of presuit claims, the time limits are specific and can be determined with precision. 44 And finally, we have refused to apply the substantial compliance doctrine when the content of the purported claim was so indefinite or contingent in nature it could not fairly be characterized as pre- senting a tort claim at all. 45 Substantial Compliance Doctrine and STCA [8] We have not yet had occasion to consider the propriety of applying the substantial compliance doctrine to the content of a presuit claim under the STCA. Generally, provisions of the STCA should be construed in harmony with similar provisions under the PSTCA. 46 We have expressly recognized the simi- larity of the presuit content claim presentment requirements under § 81-8,212 of the STCA and § 13-905 of the PSTCA, 47 and as discussed already, we have consistently applied the substantial compliance doctrine to the content of such claims under the PSTCA. The State concedes the substantial compliance doctrine has been applied for decades to similar presuit claims under the 43 Willis, supra note 42. 44 See, Big Crow, supra note 9; Schoemaker v. Metro. Utilities Dist., 245 Neb. 967, 515 N.W.2d 675 (1994). 45 See, e.g., Jessen, supra note 9 (letter to physician accusing malpractice but not making any demand is not written tort claim under § 13-905); Peterson v. Gering Irr. Dist., 219 Neb. 281, 363 N.W.2d 145 (1985) (letter to irrigation district that made no actual demand but merely alerted district to possible claim for damages that may occur is not claim). 46 Cole, supra note 7. 47 See id. - 162 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 PSTCA, but it asks us to find the doctrine is incompatible with the STCA. As support for this argument, the State relies exclusively on the principle, articulated in Jill B. & Travis B. v. State, 48 that “because the State has given only conditional consent to be sued and there is no absolute waiver of immu- nity by the State, requirements of the [STCA] must be fol- lowed strictly.” The State argues this principle is incompatible with the doctrine of substantial compliance. We agree that strictly following the requirements of the STCA, and any statute that purports to waive the sovereign immunity of the state or a political subdivision, 49 is a foun- dational principle in our sovereign immunity jurisprudence. But as we explain, we are not persuaded that this principle is offended by applying the substantial compliance doctrine to the content of presuit claims under either the PSTCA or the STCA. The principle from Jill B. & Travis B. on which the State relies was not being applied to the content of presuit claims. Instead, in Jill B & Travis B., we were considering the applicability of exceptions to the State’s waiver of sovereign immunity for tort claims arising out of misrepresentation and deceit. 50 In that context, we emphasized the importance of strictly construing statutes that are in derogation of sovereign immunity. 51 The presuit claim procedures under the PSTCA and the STCA are not statutes in derogation of sovereign immunity, but, rather, they are administrative in nature, intended to give the government notice of a recent tort claim so it can investi- gate and, if appropriate, resolve the claim before suit is com- menced. 52 Unlike statutes in derogation of sovereign immunity, 48 Jill B. & Travis B., supra note 28, 297 Neb. at 69, 899 N.W.2d at 251-52. 49 Rutledge v. City of Kimball, 304 Neb. 593, 935 N.W.2d 746 (2019). 50 See § 81-8,219(4). 51 Jill B. & Travis B., supra note 28. 52 See, e.g., Cole, supra note 7; Chicago Lumber Co., supra note 10. - 163 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 the presuit claim procedures do not identify the particular tort claims for which the State has conditionally waived its sov- ereign immunity and consented to suit, 53 nor do they identify the tort claims the State has exempted from that waiver. 54 Instead, the presuit claim presentment requirements are proce- dural conditions precedent to commencing a tort action against the government in district court; they are not jurisdictional. 55 We see no incompatibility between our precedent that rules of strict construction must be applied to statutes in derogation of sovereign immunity and our precedent that the doctrine of substantial compliance may be applied to statutes governing the content of presuit notice requirements. 56 Indeed, given how some of the content requirements are described in the statutes and regulations, it is difficult to imagine how strict compliance could be utilized by courts if we were to require it. Applying the substantial compliance doctrine to the general content provisions under the PSTCA was, in some respects, a practical necessity because there was no principled way for a court to determine whether a claimant had strictly complied with the general requirement in § 13-905 that a claim include “such other facts pertinent to the claim as are known to the claimant.” Similarly, under the STCA, we question how a court would go about determining whether a claimant has strictly complied with the State Claims Board’s regulation requiring that a claim include “such other information as is pertinent to the claim.” 57 But as our cases make clear, our application of the substan- tial compliance doctrine has been limited to a claim’s content, 53 See, e.g., §§ 81-8,215 and 81-8,215.01. 54 See, e.g., § 81-8,219. 55 See Cole, supra note 7. 56 Accord Franklin v. City of Omaha, 230 Neb. 598, 432 N.W.2d 808 (1988) (acknowledging some states apply strict construction to all presuit claim requirements under their tort claims acts, but Nebraska does not). 57 Rule No. 12, supra note 15. - 164 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 and the doctrine is not applied to all of the presuit notice requirements. We still apply rules of strict construction when considering whether a presuit tort claim has complied with statutory timing requirements 58 and whether it has been served on the recipient described in the statute. 59 We therefore disagree with the State that applying the sub- stantial compliance doctrine when analyzing the content of presuit tort claims under the PSTCA and the STCA is incon- sistent with the well-settled principle that statutes in derogation of sovereign immunity must be strictly construed or with the principle that the “requirements of the [STCA] must be fol- lowed strictly.” 60 [9-11] We hold that when a question is raised about whether the content of a presuit tort claim complied with the manner in which the State Claims Board prescribed such claims to be filed, the substantial compliance doctrine may be applied under the STCA, just as it is applied under the PSTCA. And, consistent with what we have done under the PSTCA, the doctrine is limited to the content of the presuit claim and does not apply when such a claim is not filed with the statutorily authorized recipient 61 or when it is not filed in compliance with the statutory time limits. 62 Furthermore, application of the doctrine of substantial compliance under both the PSTCA and the STCA is confined to situations where the content of the presuit claim nevertheless satisfied the primary purpose of the presuit notice requirements by notifying the state or politi- cal subdivision about possible tort liability for a recent act or 58 Big Crow, supra note 9; Schoemaker, supra note 44. See, also, State v. Saylor, 304 Neb. 779, 936 N.W.2d 924 (2020) (strictly construing STCA statute of limitation provisions). 59 Estate of McElwee, supra note 18; Willis, supra note 42. 60 Jill B. & Travis B., supra note 28, 297 Neb. at 69, 899 N.W.2d at 252. 61 See, e.g., Estate of McElwee, supra note 18; Willis, supra note 42. 62 See, e.g., Big Crow, supra note 9; Schoemaker, supra note 44. - 165 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 omission so it may investigate and make a decision whether to pay or defend the claim. 63 Having concluded the substantial compliance doctrine can apply to the content of claims under the STCA, we proceed to analyze whether Saylor’s claim was properly dismissed for failing to comply with the presuit presentment requirements under the STCA. Content of Saylor’s Claim Forms Substantially Complied As noted, the State argues that on all 16 of Saylor’s claim forms, his response to field No. 9 was insufficient in that it did not reference a dollar amount. Saylor responds that even though his answers were not stated in dollars, they neverthe- less contained “all information called for” 64 on the standard form, and thus, they substantially complied with the provisions of § 81-8,212. Saylor also contends that on the record in this case, he could not have strictly complied with all the require- ments of the State Claims Board. We agree with Saylor that, in this case, there was no way he could have strictly complied with the “manner pre- scribed by the State Claims Board” 65 for filing his tort claims. This is so for at least two reasons. First, the specific claim form required by the regulations—the Board’s form entitled “Claim for Injury or Damage”—is not the same form currently being used by the Risk Manager—the “Tort & Miscellaneous Claim Form.” Consequently, there was no way the content of Saylor’s claims could have strictly complied with the regula- tion’s requirement that it “contain all information called for on the Board’s ‘Claim for Injury or Damage’ form.” 66 Second, the requirement under the regulations that the completed 63 See, Cole, supra note 7; Chicago Lumber Co., supra note 10. 64 Rule No. 12, supra note 15. 65 § 81-8,212. 66 Rule No. 12, supra note 15. - 166 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 claim form be filed in triplicate with the secretary of the State Claims Board is not the same filing method as is required under either § 81-8,212 (which requires filing the claim “with the Risk Manager”) or under the Risk Manager’s standard operat- ing procedures (which asks that the form be either emailed or mailed to the Risk Manager). Consequently, although Saylor filed his claims with the statutorily authorized recipient, there was no way he could have strictly complied with the statutory requirement that he do so “in the manner prescribed by the State Claims Board.” 67 The State’s briefing ignored the dis- parity between the Board’s adopted regulations and the Risk Manager’s standard operating procedures, but we agree with Saylor that, as a practical matter, this disparity prevents strict compliance with the statutory and regulatory requirements concerning the manner of filing a tort claim. The question then is whether the content of Saylor’s tort claims substantially complied with the requirements of § 81-8,212 and its related regulations prescribing the manner of filing such claims. We conclude that as to the challenged content, Saylor’s tort claims did substantially comply with the requirements of § 81-8,212 and afforded the State sufficient notice to satisfy the purpose of the presuit claim presentment requirement. 68 The State challenges the sufficiency of Saylor’s responses to only field No. 9 on the claim forms, which asks for the “Total Amount of Claim.” The State insists that the term “Amount” in this context necessarily requires the answer to be stated in terms of a dollar amount. But the claim form does not specify that a dollar amount must be provided, and the regulation governing the content of claims does not require that a dollar amount be provided. And to the extent the instructions in the Risk Manager’s operating procedures can fairly be understood to indicate that “Total Amount of 67 § 81-8,212. 68 See Cole, supra note 7. - 167 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 Claim” should be stated in terms of dollars, those instructions do not have the force and effect of law. On this record, we find Saylor’s answer stating “[t]o be proven” substantially complied with the question asked in field No. 9. That is particularly so where, as here, the tort claims were seeking general damages. The State’s singular focus on the answer to field No. 9 paints an incomplete picture of the State’s knowledge regarding the damages being sought, and it ignores altogether the additional information Saylor provided in the narrative sections of his claim forms, many of which stated that the various acts and omissions of the State caused him physical and emotional pain and suffering. So although it is true that Saylor did not, in either field No. 9 or in his narratives, place a specific dollar amount on his damages, his failure to do so is nevertheless consistent with the nature of his claims and the relief he sought. Saylor’s tort claims were premised on assertions that the State had denied him (1) timely and adequate medical care, (2) the use of his personal property, and (3) access to his attorney. His claims generally stated that this conduct caused him physical and emotional pain and suffering. In light of the nature of Saylor’s claims, his answer that the total amount of his claim was “[t]o be proven” was entirely consistent with how we treat allegations of general damages. 69 It would be an odd result if we were to demand more specificity regarding general damages in a presuit tort claim than is required in the complaint once litigation is commenced. Finally, we do not doubt the State’s assertion that know- ing the specific dollar amount of a tort claim can make “a significant difference in terms of how the claim is processed and at what level.” 70 But given the nature of his claims and the 69 See, e.g., Neb. Ct. R. Pldg. § 6-1108(a) (“[i]f the recovery of money be demanded, the amount of special damages shall be stated but the amount of general damages shall not be stated . . .”). 70 Brief for appellee at 6. - 168 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports SAYLOR v. STATE Cite as 306 Neb. 147 damages he seeks, we cannot find that Saylor’s answer to field No. 9 caused the State any prejudice regarding its ability to investigate his claims or decide whether to settle them before litigation commenced. Indeed, the State’s frank admission during oral argument that it would have sufficed for Saylor to write any amount in field No. 9, even an “exorbitant” amount such as “$20 million,” belies its argument that a particular dollar amount was essential to the proper investigation and processing of his claims. Although the Risk Manager certainly has the prerogative to refuse to accept a tort claim form on the basis that it does not contain all of the information called for, that is not what happened here. On this record, we reject the State’s contention that Saylor’s presuit tort claims were deficient because they did not state a specific dollar amount being sought as damages and that therefore, they were not filed “in the manner prescribed by the State Claims Board” as required by § 81-8,212. We instead find, as a matter of law, that the content of Saylor’s presuit tort claims in regard to damages substantially complied with the presuit notice provisions of § 81-8,212. Given this disposition, we do not reach Saylor’s argument that the State waived his failure to comply with § 81-8,212 by accepting the forms when submitted. CONCLUSION Because the content of Saylor’s tort claims substantially complied with the requirements of § 81-8,212, the district court erred in granting summary judgment in favor of the State and dismissing his action. We therefore reverse the judg- ment in favor of the State and remand the matter for further proceedings. Reversed and remanded for further proceedings. Heavican, C.J., and Papik and Freudenberg, JJ., not participating.	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/3989020/	This is the claimant's appeal referred to and disposed of in the companion case reported in the 102 Vermont Reports at page 194. Order vacated and proceedings dismissed with costs. Let theresult be certified to the commissioner of industries. *Page 202	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3391932/	In this case demurrer to an original bill of complaint was sustained. Likewise was a demurrer to the amended bill of complaint sustained. A second amended bill of complaint was filed. A demurrer was interposed thereto and was sustained and order made dismissing the bill. From the order sustaining the demurrer to the second amended bill of complaint and dismissing such bill of complaint appeal was taken. In short, the allegations of the bill are that the complainant was in need of $1,500.00 and that his wife, the defendant here, agreed to loan him that amount on condition that he would execute and deliver to her quit-claim deed to the lands described in the bill of complaint to be held by her to secure the loan. That the complainant prepared a quit-claim deed and himself had it placed upon record in the proper public records of Brevard County, Florida. That when the quit-claim deed had been recorded the complainant took it and offered to deliver it to his wife, the defendant, as a mortgage to secure the loan of $1,500.00, but that she refused to accept the quit-claim deed as security and refused to make the loan but then proffered to Page 360 make the loan to complainant's mother if the mother would execute a mortgage upon her own property to secure the $1,500.00 and that in pursuance of this proposition, Martha E. Wilson, the mother of the complainant, did execute and deliver to the defendant a mortgage upon certain of her own property to secure the loan of $1,500.00 from the defendant. That such loan was made and was afterwards paid in full and the mortgage from Martha E. Wilson was cancelled. That defendant did not loan any money to complainant and that complainant did not deliver the quit-claim deed to the defendant or to any other person and has at all times kept the same in his possession and control. The bill further alleges that the defendant has since all the facts transpired obtained an order of circuit court making her a free dealer and that such decree was obtained by defendant for the purpose of enabling her to execute deeds of conveyance of the lands described in this quit-claim deed and to do so without the joinder of her husband. The bill further alleges that prior to and at the time when the mortgage in the form of quit-claim deed was executed from the complainant to the defendant the complainant was in possession of the lands therein described and has ever since that date continued to hold possession of all of said lands and every part and parcel thereof. The prayer is for a decree that the court has acquired jurisdiction of the parties and of the subject matter and that the equities of the cause are with the complainant. That the supposed quit-claim deed of conveyance, though a deed in form, was in fact intended to be a mortgage and would have been a mortgage if the loan had been made which was intended to be secured thereby. That the supposed quit-claim deed whether as deed or Page 361 mortgage is void and of no effect; is a cloud upon the title of the complainant to the lands therein described and that the same be cancelled of record and that the clerk of the circuit court be directed to note on the margin of the record of the said instrument the date and record of the decree cancelling the same. In equity the duality of husband and wife has always been recognized and whenever the interests of the two are conflicting the wife is allowed to bring suit against her husband or the husband against the wife as if she were sole and unmarried. Barber v. Barber, 21 Howard 582, 16 Law Ed. 226; Whitman v. Abernathy, 33 Ala. 154, 30 C. J. 945, 951. The bill of complaint in this case alleges that the wife has procured a decree of the circuit court constituting her a free dealer. If this allegation is true, the defendant has placed herself in position to sue and to be sued the same as if she were not married. It is contended that inasmuch as the bill of complaint alleges that the instrument sought to be cancelled which appeared on its face to be a quit-claim deed was caused by the grantor to be recorded that such recording constituted a valid delivery of the deed to the grantee and that the complainant could not be heard to pray for the cancellation of the deed in the absence of fraud and that the opinion of this Court as enunciated in the case of International Kaolin Co. v. Vause,55 Fla. 641, 46 So. R. 3, is conclusive against his right to maintain the suit. We cannot agree with this contention. The allegations of the bill of complaint are that the written instrument which was recorded was never intended to convey the fee simple title, but was only intended as a mortgage to secure the loan, in the event the loan was made. That the loan was not made and that the instrument was never delivered and in effect that the defendant never acquired any *Page 362 interest in the property. This Court has repeatedly held that "the filing and recording of a deed is prima facia evidence of its delivery, but the presumption thus created may be rebutted by other evidence." See Smith v. Owens, 91 Fla. 995, 108 So. R. 891. There appears to be equity in the bill. The order sustaining the demurrer should be reversed and it is so ordered. Reversed. WHITFIELD, P. J., AND TERRELL, J., concur. STRUM AND BROWN, J. J., concur in the opinion and judgment. ELLIS, C. J., dissents.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3431128/	This is an action to quiet title to real property, and involves only a question of the validity of the tax deed upon which appellee predicates his title. The tax deed was issued by the county treasurer of Woodbury county on May 23, 1933, to appellee. Page 541 Appellant is the holder and owner, by assignment, of a special paving assessment certificate under which he claims rights and interests in some of the property superior to those of appellee. This contention proceeds upon the theory that the tax deed held by appellee is wholly void. Appellant's plea of invalidity is based upon the alleged failure of appellee to cause the necessary notice of redemption to be served upon the owner of the property. [1] The facts and procedure affecting the sale are as follows: The property was sold on December 2, 1929, by the county treasurer for the regular 1928 taxes, and also upon special assessments to appellee. Notice of expiration of the period of redemption, with affidavit of service attached, was filed in the office of the county treasurer on February 2, 1933. On the 23d day of May, 1933, the tax deed in question was issued to appellee. The property involved was last assessed in the name of the owner, Anna Morin, who deceased on August 3, 1930. The defendant D.A. Morin is her surviving spouse, and Marguaritte Morin Paschall her sole and only heir at law. On the 1st day of June, 1932, the clerk of the district court of Woodbury county filed in the office of the county auditor the certificate required by section 10125 of the Code. The notice of expiration was served only upon the person in possession. The affidavit of service recites the fact that Anna Morin was then deceased. It is the claim of appellant that the notice of redemption should have been served upon D.A. Morin, who, according to the certificate of the clerk of the district court, was then the owner of the property, and that, in the absence of such notice, the tax deed is without validity. It is provided by section 7279 of the Code of 1931, that the notice of redemption shall be served upon the person in possession of the real property, and also upon the person in whose name the property is taxed, if such person resides in the county where the land is situated. No statutory provision is made for service upon any other person or persons. Except as the certificate of the clerk of the district court, filed in compliance with section 10125 of the Code of 1931, enters into consideration, Anna Morin was the person in whose name the property was taxed. The purpose of the certificate of the clerk is to show the record of transfer in the office of the county recorder. The record required to be kept of transfers of real property is in no sense a taxing statute. It is a requirement affecting the transfer of real property. The property in question Page 542 was subject to a lien for the taxes assessed thereon for the year 1928. No further action of any kind was necessary to complete the assessment or the lien thereon for the taxes levied. The statute does not require notice of redemption to be served upon the owner, but upon the person in whose name the property is taxed, who, of course, was then the owner. The property in question had never been taxed in the name of D.A. Morin. If the person in whose name the property is taxed is deceased, the statutory requirement for notice thereon ceases to be effective. Nugent v. Cook, 129 Iowa 381, 105 N.W. 421; Grimes v. Ellyson, 130 Iowa 286, 105 N.W. 418. It is no doubt true that, had appellee searched the office of the county auditor for the record of transfers of real property, he would have ascertained the fact that the certificate of the clerk of the district court had been duly filed, and that the transfer entered upon the proper record would have shown that D.A. Morin was the owner of the property. In the absence of statute requiring service upon the owner who acquired title subsequent to the last preceding listing of the property for taxation, none is necessary. The notice involved in this action in controversy complied with the requirements of the statute, as also did the proof of service. [2] There would seem to be a further conclusive reason why appellant cannot prevail in this action. It is provided by section 7290, Code of 1931, that: "No person shall be permitted to question the title acquired by a treasurer's deed without first showing that he, or the person under whom he claims title, had title to the property at the time of the sale, or that the title was obtained from the United States or this state after the sale, and that all taxes due upon the property have been paid by such person, or the person under whom he claims title." Appellant does not claim title to the real property, but only that, as the holder of the special assessment certificate, he has the right to redeem from the tax sale. He therefore does not come within the class designated by the foregoing statute who may question the validity of a tax deed. This statute has been interpreted and applied in numerous cases by this court, and, under the rule apparently firmly established, appellee has no right to contest the validity of the deed. Incorporated Town of Story City v. Hadley, 214 Iowa 132, 241 N.W. 649, and cases therein cited. *Page 543 Appellant concedes that if the tax deed be held valid all of his rights as the holder of a special assessment certificate are extinguished. It is the conclusion of the court that the judgment and decree should be, and it is, affirmed. All Justices concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3391983/	Proceeding by the Miami Laundry Company, a Florida corporation, against the Laundry, Linen, Dry Cleaning Drivers, Salesmen and Helpers, Local Union No. 935, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A.F. of L., for a writ of certiorari to review an order denying a motion to dismiss a bill of complaint filed by respondent to enjoin petitioner from discharging employees because of membership in any labor organization, and for other relief. Petition for writ granted, and order quashed. The petitioner seeks a review of an order entered by the Chancellor below which was one denying a motion to dismiss the bill of complaint filed in the Circuit Court by the respondent herein. In its bill of complaint the respondent alleged that it is "a labor organization within the meaning of Florida Statutes Annotated 481.02(1) and 481.11". The gravamen of the complaint is that certain of the employees of the petitioner who had filed application for membership in the respondent union were discharged on account of membership in a labor union, to-wit: the respondent labor organization, which the discharged employees had, in their membership applications, designated as their bargaining agent. The bill further alleged that the petitioner had been guilty of unlawfully and unjustly coercing and intimidating other employees by threatening them with discharge from their employment as a penalty for their membership in any labor union. The bill asserts that the unlawful discharges and denial and abridgement of the right of persons to work on account of membership in a labor union or a labor organization were and are contrary to the provisions of Section 12 of the Declaration of Rights of the Constitution of the State of Florida, F.S.A., and also in violation of Florida Statutes Annotated, § 481.09(1) and (11) and in derogation of the rights guaranteed by Florida Statutes Annotated, § 481.03. The respondent in and by its bill of complaint endeavored to show a basis for a cause of action on its own behalf and set forth the following allegation: "That your plaintiff is engaged in an organizational drive for the purpose of representing the drivers, salesmen and helpers of the defendant corporation in the matters of collective bargaining with their employer and that by its unlawful acts of coercion and intimidation and by its unlawful discharges of union members, your plaintiff and the employees of defendant corporation are being deprived by defendant corporation of the rights and privileges guaranteed by Section 12 of the Declaration of Rights of the Constitution of the State of Florida and of Florida Statutes Annotated, § 481.03 and Florida Statutes Annotated, § 481.09(1) and (11) and unless the defendant corporation is immediately restrained from wrongfully denying the rights of persons to work on account of membership in a labor organization and are immediately enjoined from coercing and intimidating its employees in the full enjoyment of the rights guaranteed by the statutes of the State of Florida irreparable injury will result to the said employees and to your plaintiff and that the injuries thus sustained will be impossible of ascertainment in terms of money but will be a deprivation of the rights, privileges and immunities of the citizens of the State of Florida, as hereinabove set forth and the rights, privileges and immunities of citizens of the United States of America as guaranteed by Amendments I, V and XIV of the Constitution of the United States of America and your plaintiff is without adequate remedy at law." The respondent felt that it was entitled to and prayed for the following relief: 1. A temporary restraining order to enjoin the Miami Laundry Company from discharging any person from work, coercing Page 307 or intimidating any of its employees because of membership in any labor organization. 2. To require the company defendant to make full, true and complete accounting of the monies held by it which it is alleged were due and owing to Neal Tomer, Elmer Blecke and Henry B. Munigle. 3. To require the defendant company to reinstate in their employment four certain former employees of the company in their former capacities and respective seniorities and by declaratory decree to define the rights of said four former employees and by such definition of the rights of the forenamed employees require such re-employment; that the former employees be made whole and without loss as to such monies as may be due the employees because of their wrongful discharge. 4. To make the injunction permanent. 5. To define by declaratory decree the rights of four former employees under and by virtue of identical terms of employment as set forth in a contract, a form of which is attached and made a part of the bill of complaint. The respondent's position seems to be that Section 12 of the Declaration of Rights of the Constitution of the State of Florida and Florida Statutes Annotated, § 481.03 and § 481.09(1) and (11) guarantee certain rights, privileges and immunities to a labor organization such as the respondent herein and that such rights, privileges and immunities are not necessarily personal to the employee. In the case of Miami Water Works, Local 654, v. City of Miami,157 Fla. 445, 26 So.2d 194, 166 A.L.R. 967, we stated, in effect, that these provisions were contained in the Declaration of Rights and in the Florida Statutes as personal protection to employees and that the question of whether their rights had been infringed was not one which could be raised by the Union. It is true in that case we were dealing with a bill which sought a declaration of rights under the Declaratory Judgments Statute, F.S.A. § 87.01 et seq. Here we have a bill in equity seeking injunctive relief and a declaratory judgment defining the rights of the alleged discharged employees under and by virtue of their contracts of employment. Said employees are not parties to this suit. We have studied with a great deal of interest briefs filed by counsel, cases cited therein, and have read several illuminating articles upon the history of the use of injunctive process by the employer over the years and more recently the resort to equity on the part of the employee and the unions in The Columbia Law Review, Harvard Law Review, The Yale Law Journal as well as Teller's "The Law Governing Labor Disputes and Collective Bargaining". Although we are cognizant of the fact that any labor organization may maintain an action or suit in its commonly used name by virtue of Florida Statutes Annotated, § 481.11, we are of the opinion that the bill of complaint now before us does not present a proper case for the invocation of equitable jurisdiction on behalf of the respondent. We fail to find any rights, privileges or immunities which the bill of complaint discloses have been invaded or infringed which are rights, privileges or immunities granted or guaranteed to any labor organization as such. These rights and guaranties exist only in favor of the individual employee and do not inure to the benefit of the union in which he holds membership. They are purely personal to the employee and may be protected under the facts and circumstances alleged in the instant case only in an action brought by the employee. It is alleged that the several discharged employees had filed with the respondent applications for membership which disclosed that they had designated the respondent as their bargaining agent. The bill fails to show that the employer-petitioner had ever recognized such designation or that any contract for collective bargaining, or for that matter a contract of any character had ever been entered into between the respondent and the petitioner which contained a recognition on the part of the petitioner of the respondent's right to represent the discharged employees in any capacity. If there had been such a contract and it had been breached by the employer it is Page 308 possible that a suit predicated upon the contract and the breach thereof might have been maintained by the respondent against the petitioner in a court of equity. No such case is now before the court. Consequently we do not decide the point. As a matter of observation it is deemed appropriate to state that generally it would seem equitable and just to permit a labor union to bring an appropriate action seeking injunctive relief against the employer for the courts have consistently entertained such actions by the employer against organized labor. However certain labor leaders have been slow in advocating the use of equitable suits by the union against the employer. They have apparently observed a possible inconsistency because throughout the history of labor disputes they have maintained that courts of equity should not entertain actions brought by the employer against the union. The modern trend, however, is toward the use of the injunctive process by the union as well as the employer in cases wherein a proper showing for equitable relief can be made. The difficulty which the unions have had in successfully maintaining equitable suits for injunctive relief has lain largely in the fact that they have frequently failed to observe the maxim, "He who comes into equity must come with clean hands". Peaceful cessation of work and lawful picketing are beginning to replace violence, threats of violence and other unlawful activities of the yesteryears. Verily and appropriately "the old order changeth". Such change is indeed worthy of encomiastic comment. As a consequence of this mutation of modernity, resort on the part of the unions to equitable relief and injunctive process is beginning to find a more favorable reception. It is to be hoped that the use of the courts will replace the old order. In that event it is our firm belief labor and labor organizations will find such use as effective under our form of government based upon law and order as it is appropriate. As desirous as we are of encouraging this notable and praise-worthy incipient transition, we are unable to sustain this bill of complaint because of our pronouncements herein, both supra and infra. However, we are constrained to pointedly call attention to the fact that in this case there is no intimation of a lack of clean hands. We hold that the rights, privileges and immunities granted and guaranteed by our Declaration of Rights and Statutory Law are protection and guaranties which are accorded, in a purely personal and non-assignable manner, to the employees as individual citizens. Consequently, the bill of complaint does not contain equity and it should have been dismissed. The petition for writ of certiorari is granted and the order now before us for review should be and it is hereby quashed. It is so ordered. ADAMS, C.J., and CHAPMAN and SEBRING, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3850671/	Upon agreement this case was tried without a jury. The court below found, inter alia, the following facts: John M. Huston was duly elected Register of Wills of Allegheny County for a four-year term commencing the first Monday of January, 1936, and on the same day J. I. Simon, the plaintiff, was appointed and sworn in as Deputy Register of Wills, to hold office during Huston's term. At the request of Register Huston a meeting of the Salary Board, consisting of the County Commissioners, the County Controller and the Register of Wills, Page 438 was called to fix the salary of the plaintiff as Deputy Register of Wills, in accordance with section 2 of the Act of April 29, 1915, P. L. 200, which provides as follows: "The said board shall meet, from time to time, when required by any county officer, president, or other executive head of any separate board or division whatsoever, the number or compensation of whose employes is sought to be fixed and determined, and shall forthwith consider and fix and determine the same, in the manner as they may deem best for the public service; and such county officer, president, or executive head shall sit as a member of said board, and be entitled to vote, so long as the matter affecting his office is under consideration, and no longer; and a decision of the majority shall govern. A full minute of all meetings of said board shall be entered in a book kept for that purpose." At the meeting duly held on January 14, 1936, plaintiff's salary was fixed at $500 a month, effective January 6, 1936. The court below found further that at no time since that date has Mr. Huston requested the Salary Board to meet for the purpose of fixing the salary of plaintiff, that at all times since January 1, 1936, until the present time, the amount of fees collected by the Register of Wills' office have been in excess of the total salaries payable to the Register of Wills and his employees; and that in February, 1936, the county commissioners and the county controller "met with the various elected officials and with the heads of the various departments of the County of Allegheny in what purported to be meetings of the salary board." Prior to the meeting held on February 26, 1936, notice was given to the office of Huston, the Register of Wills (who was absent from the city), "of the contemplated meeting of what purported to be the Salary Board as affecting his office." Plaintiff, who had been left in charge of the Register of Wills office, was told by telephone that he was wanted at the meeting. He responded and when he was present Page 439 a resolution was adopted, over his negative vote, fixing the salary of the plaintiff at $400 a month, effective March 1, 1936. "Beginning March 1, 1936, and each subsequent month thereafter" the plaintiff "was paid, received and accepted the sum of $400 per month, subject to both oral and written protest made by him." The trial judge held that the meeting of February 26, 1936, was not a valid meeting of the Salary Board, because it was not called and participated in by the Register of Wills himself even though it was attended by the Deputy Register; that therefore the resolution passed at the meeting which attempted to reduce plaintiff's salary was void; and that there was owing and due the plaintiff from March 1, 1937, and ending September 15, 1938, the sum of $3,050, together with interest. The exceptions filed by defendant county to the findings of fact and conclusions of law were dismissed. Defendant also filed a petition for a rehearing, averring that shortly prior to his taking office, the newly elected Register of Wills submitted a list of the prospective positions in his office for the coming year 1936, together with the salaries requested by him for those positions, and that, since the salaries as requested involved an increase over the salaries for the same positions for the preceding year, which increases must in accordance with the law be passed upon at a meeting of the Salary Board, the submission of the list was in effect a request for Salary Board action; further that the request for increases in salaries for these various positions was not passed upon until the meeting of February 26, 1936, at which time the salary of the plaintiff was reduced. This petition was denied and judgment was entered on the verdict. This appeal followed. The law is clear that a meeting of the Salary Board to fix the number or compensation of the employees of any county office must be a meeting called by the administrative head of the office to be affected. As the court below aptly said: "Without this limitation any Board Page 440 of County Commissioners would occupy a dominant czar-like position in the control of the county's business and would be in a position to dominate or control each and every elected public official and each and every county officer, president, or other executive head of any separate board or division whatsoever. It is futile to argue that they would not do so. It is better to say, as the legislature has, that they cannot do so." It is assumed that in the joint counsels of the head of any office and the controller and commissioners, a reasonable decision will be reached as to the number of employees in any office and their compensation. If by a subsequent change of conditions, the number and the compensation of employeesshould be changed, the presumption is that the head of the office affected will do his duty and "require" a meeting of the Salary Board. If he is remiss in this duty, the remedy is in the hands of the electorate and not in the hands of other county officials of the same rank. Appellant says: "It was not necessary that the meeting be called by the Register of Wills if he actually participated in it." It then contends that he did participate in it through the presence of his chief deputy. Appellant cites section 233 of the Act of May 2, 1929, P. L. 1278, reading as follows: "The Register shall appoint a deputy to officiate in his absence, for whose conduct he and his sureties shall be accountable. Such deputy shall be capable in law to do whatever by law appertains to the office of register." If the meeting attended by the Deputy Register had been duly called by his chief, it would have had a status of legality which under the circumstance it lacked. If the Deputy himself had in the absence of his chief "required" the meeting, we would have a different question before us. But the meeting to which the Deputy was summoned by telephone was not a meeting "required" by either the Register of Wills or his Chief Deputy. Therefore, it was not such a meeting as could lawfully fix salaries in the Register of Wills' Page 441 office. The physical presence of the Deputy after being so summoned did not invest the meeting with legality for the purpose it was used in respect to the Register's office nor did that presence estop the Deputy from challenging the act done there which affected him and which he voted against and protested against. Whether or not a Deputy Register of Wills has the same authority a Register has to require a meeting of the Salary Board and to participate in those meetings we do not in this case need to decide, but it would seem to be the better practice for the Register himself, if he is mentally and physically capable of performing the duties of his office, to function officially in his own proper person in a matter so important to his office as the determination of the number of his employees and the salaries they shall be paid. The electorate has a right to expect that the official whom they have chosen to administer the office of Register of Wills, will, in a matter so vital to the proper administration of that office, give the county whose servant he is the benefit of his attentiveness and his judgment. It is doubtful if the legislature ever intended by the above quoted section of The General County Law of 1929 to confer upon a deputy register the power to summon a meeting of the Salary Board to determine the salaries to be paid in the Register's office and to sit at that meeting in place of the Register himself. If a deputy can lawfully do this, it means that he can vote on the question of the amount of his own salary. There are some official duties which by their inherent nature are not delegable. In appellant's supplemental brief the argument is stressed that "if a Register of Wills need not call a Salary Board meeting unless he so desires, and, in addition, if he is not bound by action at a meeting of which he is notified, but does not attend, he may forever prevent any change in the salaries of his subordinates and this even though such salaries may be excessive and out of proportion to the salaries of other county employees." *Page 442 We have already answered this contention but by way of further answer we will add that if a Register of Wills fails to do his duty in such a matter and the electorate is indifferent, the legislature can remedy the situation by providing that a meeting of the Salary Board to fix the number of employees in all county offices and their compensation shall be held at stated intervals. There is only one reasonable interpretation of the law in this matter as it is now written and that is the interpretation embodied in the conclusion of the court below that "a regularly and legally constituted meeting of the Salary Board never convened on February 26, 1936, and what purported to be a meeting of such Salary Board was a nullity." The judgment is affirmed.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3984909/	Mary Ann Martin died intestate in Sanpete County, Utah, on January 28, 1917. She left surviving, her husband, Samuel Henry Martin, three daughters and a son. The daughters were Jessie Martin Freston, Esther Martin Jackson and Sylvia Martin Reynolds. The son was Samuel Martin. At the time of Mary Ann Martin's death all of her children were living. Samuel Henry Martin, the surviving husband of Mary Ann Martin, died intestate in Sanpete County, Utah, on April 16, 1944. Sylvia Martin Reynolds was his only child surviving him. His daughter Jessie Martin Freston died June 30, 1928. She left surviving, her husband, a son and a daughter. Esther Martin Jackson, the other daughter, died September 6, 1939. She was survived by her husband and five children. Samuel Martin, the only son of Mary Ann Martin and Samuel Henry Martin, died March 17, 1943, survived by his wife, Ruby A. Martin, and three sons, namely, Lowell, Reed and Fremont Martin. A few days after the death of Samuel Henry Martin, Sylvia Martin Reynolds, joined by Alice Freston Olsen and David E. Freston, the daughter and son of Jessie Martin Freston, deceased, filed a petition in the District Court, Probate Division, of Sanpete County, asking that Sylvia M. Reynolds be appointed administratrix of the joint estates of Mary Ann Martin and Samuel Henry Martin. The petition Page 133 contained allegations of the deaths of Mary Ann Martin and Samuel Henry Martin; that each had died intestate; and that each had left estate situated in Sanpete County. The petition also contained an allegation as to who were the surviving heirs of the intestate parties. Upon the face of the petition it is apparent that the surviving spouses of the children of Mary Ann and Samuel Henry Martin who survived their mother, but who preceded the father in death, were not named as heirs. The petition also definitely alleges that Mary Ann Martin left estate consisting of real estate with some improvements and that Samuel Henry Martin left estate consisting of both real and personal property. From the descriptions of the realty it is certain that the property of the one is not property inherited from the other. Lowell, Reed and Fremont Martin, surviving sons of Samuel Martin and grandsons of Mary Ann and Samuel Henry Martin, filed objections to the petition just mentioned. They also filed an answer and with it filed a cross-petition. They objected to the appointment of Mrs. Reynolds under Sec. 102-4-5, U.C.A. 1943, on the ground that she was a married woman. When the petitioners and objectors came before the court this ground of objection was recognized by the court. Mrs. Reynolds and her co-petitioners then nominated Paul E. Nelson for appointment as administrator. This was objected to and after a hearing the court denied the cross-petition of Lowell Martin and his brothers for the appointment of Lowell Martin as administrator; denied the request of Mrs. Reynolds for the appointment of Paul E. Nelson, and appointed James Frost as administrator, who then qualified. Subsequently Mrs. Reynolds petitioned the court for the discharge of James Frost on the ground that he refused to act. Mr. Frost later filed a written resignation and was discharged as administrator. We shall not attempt to state all the details of the proceedings. The nomination of Paul E. Nelson was revived, findings and conclusions were made and entered and Nelson was appointed to act as administrator of the estates. The Page 134 cross-petition of Lowell Martin et al., asking for his own appointment, was again denied. The record shows that Nelson refused to qualify and on December 28, 1944, a third petition for letters of administration was filed by Mrs. Reynolds and the two grandchildren asking for the appointment of Hans Christensen, a stranger to the estates, as administrator. After issues were joined a hearing was had and the court appointed Christensen administrator to administer both estates jointly. It is from this order that the objectors appeal. No attempt was ever made to probate the estate of the mother, Mary Ann Martin, until these proceedings were commenced following the death of the father, Samuel Henry Martin, in which the petitioners asked for administration of the two estates jointly. In support of its order appointing Christensen administrator of the estates, the court found, in substance, that Mary Ann Martin died intestate on January 28, 1917, and at the time of her death she was the owner of a tract of land containing 4.7 acres upon which there is a small home and other improvements of the probable value of $500 with an annual rental value of about $47.50; that she left surviving her as her heirs at law her husband and the four children hereinabove named; that Samuel H. Martin, the husband, died intestate April 16, 1944, and at the time of his death he was owner of a tract of farm land (located across the road and to the west of the home property) containing 26.22 acres, together with ten shares of the capital stock of the Moroni Irrigation Company, subject to a certain tax deed and a claimed ownership by Ruby A. Martin, the widow of the deceased son Samuel Martin; that the water right is represented by a certificate of stock issued to Ruby A. Martin prior to the death of Samuel H. Martin; that the probable value of this land is $2600 and the water stock $750 and that the land has an annual rental value with the water right of about $260.00; that the deceased also died possessed of a small amount of cash and personal property; that all of the property described is in the possession of Ruby A. Martin who claims to be the owner thereof and that it may Page 135 be necessary that an action be brought to recover possession and quiet the title to such property for the use and benefit of the heirs and creditors of the estates. By assignments of error, appellants (objectors) raise several questions on this appeal which may be condensed and substantially stated as follows: (1) That the court erred in appointing Christensen as administrator on the nomination of Mrs. Reynolds on the ground that her disqualification to act as administratrix because of being a married woman deprived her of the right to nominate; (2) that the court erred in appointing Christensen and ordering a joint administration of the two estates because the property of Mary Ann Martin did not descend to the estate of Samuel Henry Martin and there is a diversity of heirship which precludes joint administration and the court failed to so find; and (3) that the court erred in appointing an administrator of either or both estates because the record shows that Ruby A. Marton, the widow of the deceased son Samuel Martin, at the time of filing the third petition for letters was the owner of the real estate and water stock involved. (1) As to the question of nomination, we quote Sec. 102-4-5, U.C.A. 1943, relating to the competency of married women to act as administratrices: "When objection is made by any person interested in an estate, a married woman must not be appointed administratrix. When an unmarried woman appointed administratrix marries, the court may, upon the motion of any such interested person, revoke her authority and appoint another person in her place." Sec. 102-4-1, U.C.A. 1943, relating to whom letters of administration may be granted, provides: "Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his personal estate or some portion thereof; and they are, respectively, entitled thereto in the following order: "(1) The surviving husband or wife. "(2) The children. Page 136 "(3) The father or mother. "(4) The brothers or sisters. "(5) The grandchildren. "(6) The next of kin. "Administration may be granted to one or more competent persons, although not otherwise entitled to the same, at thewritten request of the person entitled filed in the court." (Italics added.) Appellants contend that when they objected to the appointment of Mrs. Reynolds as administratrix on the statutory ground that she was a married woman, she thereby was rendered incompetent and was deprived of any right to nominate an administrator, or, if she was not so deprived, she lost or waived any further right of nomination when she nominated Paul E. Nelson who refused to qualify and act. Sec. 102-4-4, U.C.A. 1943, relating to persons incompetent to act as administrator or administratrix, provides that: "No person is competent or entitled to serve as administrator or administratrix who is either: "(1) Under the age of majority or an incompetent person; but in such cases letters must be granted to his or her guardian, or, in the discretion of the court, to any person entitled to administration; "(2) Not a bona fide resident of the state; but if the person entitled to serve is not a resident of the state, he may request the court or judge to appoint a resident of the state to serve as administrator, and such person may be appointed; "(3) Convicted of an infamous crime; "(4) Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity; or, "(5) The surviving partner of a firm of which the decedent was a member." This statute expressly designates those who are incompetent to act as a matter of law. Even strangers to the estate, if otherwise qualified, may be appointed to administer it. Page 137 Appellants argue that, because of the disqualification of Mrs. Reynolds to serve by reason of being a married 1 woman, she thereby became incompetent to nominate an administrator. She falls in the second class of persons enumerated by Sec. 102-4-1, supra. Grandchildren fall in the fifth class so enumerated. This statute further provides that: "Administration may be granted to one or more competent persons, although not otherwise entitled to the same, at thewritten request of the person entitled filed in the court." (Italics added.) Mrs. Reynolds became disqualified to serve when objection was made as provided in the statute, but such disqualification did not render her incompetent to nominate. This right was not exhausted when she nominated Nelson and he refused to qualify and act. It should be remembered that Mrs. Reynolds filed her petition for letters shortly after the death of her father and within the three months period prescribed by the statute and thus preserved this right. See Sec. 102-4-3, U.C.A. 1943; In reJohnson's Estate, 84 Utah 168, 35 P.2d 305; In re Smith'sEstate, 85 Utah 606, 40 P.2d 180; In re Owens' Estate, 30 Utah 351,85 P. 277. Even though the statute declares them to be incompetent to administer an estate, infants and incompetents, through guardians, and nonresident heirs may exercise the right of nomination under the statute. Appellants do not seriously contend that there is merit to their argument that Mrs. Reynolds "waived" her right to nominate. A right cannot be waived by exercising it. Had she failed to file a petition for letters of administration within the statutory period, she might have waived her right to nominate. The cases cited by appellants on this point involve express waivers under circumstances not involved in the instant case and are therefore of no assistance. (2) In considering this question of joint administration and heirship, we quote Sec. 102-4-6, U.C.A. 1943: "In all cases where the estate left by a deceased person has descended from another deceased person whose estate has never been probated, Page 138 or where two or more deceased persons held property during their lifetime as tenants in common, and neither estate has been probated, and where the heirs are the same, the court may grant letters of administration upon such estates jointly, and they may be administered the same as if they were but one estate." Appellants contend that the estate, if any, of which Samuel Henry Martin died possessed, did not descend from Mary Ann Martin, his wife, who predeceased him over twenty-seven years; that Mary Ann and Samuel Henry Martin never held the property involved as tenants in common and that the heirs in the two estates are not the same, and therefore it was error for the court to order administration of both estates jointly. At the time of the intestate death of Mary Ann Martin, the succession statute which applied to any estate left by her was substantially as it now appears in Sec. 101-4-5 (1), U.C.A. 1943: "* * * if the decedent leaves a surviving husband * * * and more than one child living * * * one-third to the surviving husband * * * and the remainder in equal shares to his children, and to the issue of any deceased child by right of representation * * ." Samuel Henry Martin, the husband, and four children survived Mary Ann Martin at her death. The husband under the above statute therefore inherited an undivided 1/3 interest in the estate left by the deceased wife; the remainder went to the children. At the time of the intestate death of the father, one daughter, Mrs. Reynolds, and the children of the two deceased daughters and of the one deceased son survived him. The succession statute applying to the estate at that time is contained in Sec. 101-4-5 (2), supra, as follows: "If the decedent leaves no surviving husband or wife, but leaves issue, the whole of the estate goes to such issue, and if such issue consists of * * one child living and the issue of one or more deceased children, then the estate goes in equal shares to the * * * child living and the issue of the deceased * * * children by right of representation." Page 139 Sec. 101-4-23, U.C.A. 1943, provides that: "Inheritance or succession `by right of representation' takes place when the descendants of any deceased heir take the same share or right in the estate of another person that their parents would have taken if living * ." The statute, Sec. 102-4-6, first above quoted under this heading, has been construed by this court only once before (Inre Cloward's Estate, 95 Utah 453, 82 P.2d 336, 338, 119 A.L.R. 123) and in that case the construction hinged on the question as to when an estate has been probated. However, the opinion in that case poses several questions as to the meaning and interpretation of this section which it was not necessary there to answer, but of which two at least must be answered in the instant case, namely: " * * (a) Does the clause `Where the heirs are the same' apply to the case when the estate of a deceased person descended from another deceased person as well as to a case where the estates of deceased persons had been held by tenants in common during their lifetime? (b) Does the first clause of the section require that the entire estate of the second deceased person shall have descended from another deceased person?" (Italics added.) We construe that statute, at least under the facts presented in the case at bar, as containing two parts 2 which must be read separately as follows: First, "In all cases where the estate left by a deceased person has descended from another deceased person whose estate has never been probated, * * * the court may grant letters of administration upon such estates jointly, and they may be administered the same as if they were but one estate." And, second, "In all cases * * * where two or more deceased persons held property during their lifetime as tenants in common, and neither estate has been probated, and where the heirs are the same, the court may grant letters of administration upon such estates jointly," etc. In the instant case the estate left by Samuel Henry Martin consisted of the 26.22 acre tract of farm land, the water Page 140 stock and some personal property which he owned in his own right at the time of his death, and an undiveded 1/3 interest in the estate left by Mary Ann Martin, the other 3 "deceased person." Following the language of the statute, therefore, it cannot be said that "the estate" left by Samuel Henry Martin "descended from another deceased person," within the strict meaning of the words quoted when only a small fraction of his estate so descended. Applying the second provision of the section to this case, in view of appellants' contention that the heirs in the two estates are not the same, it is conceded that the property involved in the estates was never held by the deceased parents as tenants in common during their lifetime, and therefore this provision has no application here. Appellants contend that the surviving spouses of the two deceased daughters and the one deceased son are heirs of the estate of Mary Ann Martin but not the heirs of Samuel H. Martin and that as such heirs they were entitled to notice of the probate proceedings, which was not given. Sec. 102-4-8, U.C.A. 1943, provides: "When a petition praying for letters of administration is filed, the court or clerk must set the petition for hearing and give notice thereof by publication or by posting and by mailingnotices to the heirs." (Italics added.) Who are the heirs of the estate of Mary Ann Martin, deceased? She was survived by her husband and four children. Three of these children died after the mother's death and prior to the death of the father. That part of the mother's estate which passed to these children who are now deceased, passed to their heirs upon their respective deaths. Therefore, the inheritance of these three deceased children passed to the surviving spouse and children of each. Thus, the surviving spouses became heirs of their deceased spouses, but they are not the heirs of Mary Ann Martin, their mother-in-law. The result of our consideration of this second question, therefore, is that the court erred in appointing an administrator Page 141 to administer the two estates jointly because "the estate" left by Samuel Henry Martin did not descend from his deceased wife, Mary Ann Martin, within the meaning of Sec. 102-4-6, supra. (3) The third question relates to title of the real and personal property involved in both estates. The court found that, at the time of her death, Mary Ann Martin owned the 4.7 acre tract of land on which the family home is located, but found that Ruby A. Martin claims title thereto by 4 virtue of tax deeds from the county. The petitioners (respondents herein) contend that her title is void. Also, the court found Samuel Henry Martin to be the owner of the 26.22 acres of farm land at the time of his death, subject, however, to the claim of Ruby A. Martin that she is the owner of this land under a warranty deed executed and delivered to her by Samuel Henry Martin prior to his death, and that she is the owner of the water stock involved which is evidenced by a certificate of stock issued in her name prior to the father's demise. Respondents also contend that these claims of ownership are void. The case of Hampshire v. Woolley, judge, 72 Utah 106,269 P. 135, 138, is controlling on this point. There it was held that "under the provisions of Secs. 7733 and 7734 of the Probate Code of this state [Secs. 102-11-18, 102-11-19, U.C.A. 1943] the [Probate] court is not given the power to hear and determine the title to property where the same is held under a claim of title." It may be necessary, as contended for by respondents, that appropriate suits to quiet title be instituted. The order and judgment of the lower court is reversed with costs to appellants. LARSON, C.J., concurs.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/161693/	269 F.3d 1198 (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.STEVEN A. SCHILD, Defendant-Appellant. No. 01-3002 UNITED STATES COURT OF APPEALS TENTH CIRCUIT October 30, 2001 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 00-CR-40021-RDR)James E. Flory, United States Attorney, and T.G. Luedke, Assistant United States Attorney, Topeka, Kansas, for Plaintiff-Appellee. David J. Phillips, Federal Public Defender, and Marilyn M. Trubey, Assistant Federal Public Defender, Topeka, Kansas, for Defendant-Appellant. Before HENRY, PORFILIO, and MURPHY, Circuit Judges. JOHN C. PORFILIO, Senior Circuit Judge. 1 Defendant-appellant Steven Schild pleaded guilty to one count of bank fraud in violation of 18 U.S.C. 1344. He appeals his sentence, arguing that his offense level should not have been increased based on loss to the bank. We affirm.1 2 Defendant was a customer of Bennington State Bank in Bennington, Kansas (BSB). During 1994 and early 1995, he borrowed money from BSB to finance his cattle operation. When his line of credit with the bank ran out, defendant sold cattle out of trust and then filed false cattle count reports with the bank to conceal his fraud. In August of 1995, defendant filed for bankruptcy protection. 3 The base offense level for bank fraud under United States Sentencing Guidelines Manual (USSG) 2F1.1 is six. Defendant's sentence was enhanced eight levels to reflect an intended loss of more than $200,000 but less than $350,000, and defendant was sentenced to a term of imprisonment of one year and one day. On appeal, defendant contends that the bank he defrauded did not lose any money in the end, and that, therefore, it was error to increase his offense level based on loss to the bank. 4 After hearing testimony from the vice president of BSB that defendant had converted approximately five hundred head of cattle at a fair market value of approximately $270,000, the district court relied on that figure to arrive at an intended loss of between $200,000 and $350,000. "We must accept these factual findings unless clearly erroneous, but we review de novo what may be included in computing loss." United States v. Haddock, 12 F.3d 950, 961 (10th Cir. 1993). The government bears the burden of proving loss by a preponderance of the evidence. United States v. Nichols, 229 F.3d 975, 979 (10th Cir. 2000). To prove intended loss, the government must show "that the defendant realistically intended a particular loss, or that a loss in that amount was probable." Id. (quotation omitted). 5 Application note 8 to the commentary following 2F1.1 states that "if an intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss." Note 8(b) states: 6 In fraudulent loan application cases and contract procurement cases, the loss is the actual loss to the victim (or if the loss has not yet come about, the expected loss). For example, if a defendant fraudulently obtains a loan by misrepresenting the value of his assets, the loss is the amount of the loan not repaid at the time the offense is discovered, reduced by the amount the lending institution has recovered (or can expect to recover) from any assets pledged to secure the loan. However, where the intended loss is greater than the actual loss, the intended loss is to be used. 7 USSG 2F1.1, cmt. 8(b) (emphasis added). An intended loss amount should be used for sentencing purposes if it can be determined and if it exceeds the actual loss. Nichols, 229 F.3d at 978-79. 8 The fact of actual loss in this case is problematic and was so for the district court. In trying to arrive at an amount of actual loss for purposes of a restitution order, the district court addressed defendant's argument that his offense level should reflect no loss to the bank. In fact, according to the bankruptcy court, it appeared BSB had been paid in full. Appellant's Br., tab C (Bankruptcy Ct. Mem. Op. and Order at 13-14). 9 At the sentencing hearing, however, BSB's vice-president testified that BSB did not include the claim for the lost cattle in its proof of claim filed in the bankruptcy proceedings because it had already entered into a separate agreement with defendant for repayment of those amounts. According to BSB's vice president, apart from the recovery in bankruptcy, the bank was still owed $206,000 as a result of defendant's fraud. Because the evidence was conflicting, the district court refused to award any restitution due to its inability to determine actual loss. 10 Seizing on this fact, defendant argues that, because the government could not prove actual loss to BSB, his offense level should not have been increased. This argument ignores the fact that, when actual loss cannot be determined but intended loss can be ascertained, the latter is to be used for sentencing purposes. See, e.g., United States v. Moore, 55 F.3d 1500, 1503 (10th Cir. 1995) (remanding for evidentiary development of defendant's intent to deprive rental car companies of the full value of fraudulently rented vehicles, where the government presented no evidence of actual loss to owners); Haddock, 12 F.3d at 963 ("Intended or probable loss may be used instead of actual loss where there is no actual loss, or where actual loss is less than the loss the defendant intended to inflict." (internal quotation omitted)); United States v. Smith, 951 F.2d 1164, 1168 (10th Cir. 1991) (noting that a district court need not find actual loss in order to increase an offense level under 2F1.1). 11 In a related argument and relying on the second sentence of the commentary quoted above, defendant essentially argues that the amount of intended loss should be determined by netting out the amounts eventually recovered by the bank against the fair market value of the cattle sold out of trust. Defendant is correct that "[a]ctual loss under 2F1.1 is the amount of money the victim has actually ended up losing at the time of sentencing, not what it could have lost." Haddock, 12 F.3d at 961 (quotation omitted). Defendant's sentence, however, was properly based on intended loss, not on actual loss. 12 In the intended loss calculation, the amount of money repaid to a fraud victim is not included in the loss amount unless the defendant voluntarily returned value to the victim as part of the ongoing fraud. United States v. Janusz, 135 F.3d 1319, 1324 (10th Cir. 1998). "[T]he purpose of the loss calculation under the Sentencing Guidelines is to measure the magnitude of the crime at the time it was committed. The fact that the victims have been able to recover part of their loss after the discovery of the fraud does not diminish [defendant's] culpability and responsibility for purposes of sentencing." Id. Thus, the fact that BSB may have recovered some of the money it lost due to defendant's fraud is not taken into account at sentencing. See also United States v. Burridge, 191 F.3d 1297, 1300 (10th Cir. 1999) (holding that district court is not required "as a matter of law, to exclude from the intended loss calculation all funds returned to a fraud victim"); Nichols, 229 F.3d at 982 (refusing to credit bad check writer with amounts he had restored to bank or with amounts bank recovered in setoff). 13 Defendant blends into his setoff argument, the point that, because the loans to purchase the cattle were fully secured, that fact should be taken into account in reducing the amount of loss to BSB. That is true when sentencing is based on actual loss. See Smith, 951 F.2d at 1166. This court has also required that the value of security given for a loan be taken into account in determining intended loss. Nichols, 229 F.3d at 980 (finding it "error to ignore the contemporaneous exchange of security for the note in considering the economic reality of the transaction and any intended loss in excess of actual loss. The security of the loan is a valid consideration in evaluating a defendant's realistic intent and the probability of inflicting the loss."). Defendant's situation, however, differs from that of the defendants in Smith and Nichols. 14 The record indicates that defendant's numerous loans with BSB were cross-collateralized. However, it is undisputed that by April 1995, the value of defendant's collateral equaled the amount of his debt to the bank. When defendant began converting the cattle, there was apparently no extra collateral available to secure the bank in the absence of the cattle themselves. The point defendant ignores is that the loan to him for his cattle operation was a line of credit, part of the security for which was the cattle themselves. When defendant sold the cattle, he sold the bank's collateral. See Nichols, 229 F.3d at 979 ("[T]he mere presence of collateral securing an item that was fraudulently obtained does not automatically reduce the loss calculation under 2F1.1 where it can be shown that the defendant intended to permanently deprive the creditor of the collateral through concealment."). 15 Intent is a question of fact for the sentencing court to be determined on a case-by-case basis. Burridge, 191 F.3d at 1300, 1304. At the sentencing hearing, defendant testified that he did not intend to cause loss to BSB. While the district court might have believed this assertion, it was not clearly erroneous for the court to discount it based on defendant's concealment of the fraud. See id. at 1303. 16 This case is controlled by United States v. Banta, 127 F.3d 982 (10th Cir. 1997), which involved the purchase of two vehicles by the defendant based on a fraudulent loan application. The fair market value of the vehicles involved in the defendant's fraud was approximately $50,000. After the bank repossessed the vehicles and sold them, the net loss to the bank was approximately $18,000. This court rejected the defendant's argument that $18,000 more closely represented economic reality, or that the defendant could not have intended to inflict a loss equal to the full amount of the loans because the loans were collateralized by the vehicles themselves. The court noted the false information the defendant provided to the bank and the fact that the defendant could have inflicted a loss equal to the face value of the loans if he intended to permanently deprive the bank of its collateral by simply concealing the vehicles. The defendant was thus properly held accountable for the full value of the loans. 17 Based on Banta, it is clear that this defendant was properly sentenced. BSB loaned defendant money to purchase cattle, with the cattle themselves as collateral. Defendant filed false cattle count reports on more than one occasion in an effort to mislead the bank about the number of cattle remaining in his operation. Contrary to the facts in Banta, BSB has never recovered any of the cattle converted by defendant and has never learned exactly what happened to them. The speculation of the court in Banta that the defendant there could have concealed the vehicles from the bank is a reality in this case: defendant actually did permanently conceal and/or deprive BSB of its collateral. This case is unlike Smith, 951 F.2d 1164, or Nichols, 229 F.3d 975, where the defendants fraudulently procured loans, albeit with some type of collateral given. Here, defendant simply sold the bank's collateral. Because the factual findings of the district court are not clearly erroneous and because there is no error in the amounts included in the computation of the loss, defendant was properly sentenced. 18 The judgment of the United States District Court for the District of Kansas is AFFIRMED. NOTES: 1 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.	01-03-2023	08-14-2010
https://www.courtlistener.com/api/rest/v3/opinions/166649/	F I L E D United States Court of Appeals Tenth Circuit November 10, 2005 UNITED STATES COURT OF APPEALS TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 05-3235 v. (D. Kansas) CARLOS VALENCIA-MARTINEZ, (D.C. No. 04-10098-01-MLB) Defendant-Appellant. ORDER Before EBEL, McKAY, and HENRY, Circuit Judges. Carlos Valencia-Martinez, a federal prisoner proceeding pro se, seeks a certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2255 petition for habeas corpus. We deny his request for a COA and dismiss this appeal. I. BACKGROUND In 1997, Mr. Valencia-Martinez was convicted of illegal re-entry into the United States following removal for commission of an aggravated felony, a violation of 8 U.S.C. § 1326. He was sentenced to fifty-one months of incarceration, followed by three years of supervised release. In 2001, he was released from incarceration and began his supervised release. In April 2004, Mr. Valencia-Martinez pleaded guilty to a new charge of illegal re-entry in violation of § 1326. In his plea agreement, Mr. Valencia- Martinez waived the right to file a 28 U.S.C. § 2255 habeas corpus petition, subject to the limitations of United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) (stating that “a plea agreement waiver of postconviction rights does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or the waiver” but that “collateral attacks based on ineffective assistance of counsel claims that are characterized as falling outside that category are waivable”). The district court revoked Mr. Valencia-Martinez’s supervised release from the 1997 conviction and sentenced him to serve the remaining fifteen months of that supervised release term in prison. For the 2004 re-entry, the court sentenced him to eighty-seven months’ incarceration, followed by two years’ of supervised release. The court imposed the prison sentences consecutively. Mr. Valencia-Martinez has now filed a §2255 habeas petition, asserting four grounds for relief: (1) he has been subjected to double jeopardy; (2) he received an improper criminal history calculation because the district court considered the 1997 offense; (3) his guilty plea should be withdrawn because of 2 his double jeopardy claim; and (4) his counsel was ineffective for failing to raise a double jeopardy claim. The district court denied relief on all grounds, noting each of Mr. Valencia-Martinez’s claims was without merit. The district court denied a COA, and granted his motion to proceed in forma pauperis. II. DISCUSSION Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A COA can issue only “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327. “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. Although Mr. Valencia-Martinez is not required to prove the merits of his case in applying for a COA, he must nevertheless demonstrate “something more than the absence of frivolity or the existence of mere good faith on his or her part.” Id. at 338 (internal quotation 3 marks omitted). With these principles in mind, we have carefully reviewed the record of these proceedings. As the district court observed, in his plea agreement, Mr. Valencia-Martinez waived his right to challenge his 2004 reentry conviction though a § 2255 petition. This waiver is enforceable, absent a claim that the petitioner received ineffective assistance of counsel in the negotiation of the plea or the waiver. See Cockerham, 237 F.3d at 1187. Accordingly, Mr. Valencia-Martinez’s first three claims are barred by the waiver provision of the plea agreement. In his remaining claim, asserting ineffective assistance of counsel, Mr. Valencia-Martinez contends that his counsel should have challenged the plea agreement and waiver by arguing that the prosecution of the 2004 reentry violated the Double Jeopardy Clause of the Fifth Amendment. However, that contention is without merit. See Jones v. Thomas, 491 U.S. 376, 381 (1989) (noting that the Double Jeopardy Clause protects against (1) “a second prosecution for the same offense after acquittal,” (2) “a second prosecution for the same offense after conviction,” and (3) “multiple punishments for the same offense”) (internal quotation marks omitted). The two reentry prosecutions involve entirely separate violations of the law–one 1997 and one in 2004, and the Double Jeopardy Clause is thus inapplicable. 4 III. CONCLUSION Having reviewed Mr. Valencia-Martinez’s brief, the record, and the applicable law, we conclude he has raised no issues that are debatable or adequate to deserve encouragement to proceed further. See Miller-El, 537 U.S. at 327. We therefore DENY a COA and DISMISS this appeal. Entered for the Court, Robert H. Henry Circuit Judge 5	01-03-2023	08-14-2010
https://www.courtlistener.com/api/rest/v3/opinions/8707807/	AMENDED OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION DANIEL R. DOMINGUEZ, District Judge. Pending before the Court are: (a) Defendant’s Motion For Summary Judgment And Memorandum Of Law In Support Thereof, Docket No. 11; (b) plaintiffs response, Docket No. 16; (c) Defendant’s Reply To Plaintiff’s Opposition To Motion For Summary Judgment, Docket No. 23; (d) Report and Recommendation issued by the Magistrate Judge Silvia Carreño-Coll (hereinafter “Magistrate Judge”). The Report and Recommendation concluded that the federal claims be dismissed with prejudice. The state law claims were not dismissed, as the Magistrate Judge concluded that she did not wish “to undermine 97any jurisdictional basis for state-law claims.” Docket No. 38, page 12. The Court interprets that the state claims were to be dismissed without prejudice. For the reasons set forth below, the Magistrate Judge’s Report and Recommendation is adopted in toto, as supplement herein. Factual and Procedural Background Plaintiff Migdalia Santiago Rodriguez (hereinafter “Santiago” or “plaintiff’) alleges in the Complaint. several employment violations under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., and the American with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and constructive discharge. Plaintiff also seeks compensatory damages, lost, wages and benefits, past and future, including loss of Social Security benefits triggered by plaintiffs supervisors on the ground of plaintiffs filing of an administrative claim with the Equal Employment Opportunities Commission (“EEOC”), attorneys fees and costs. Defendant Sistema San Juan Capestrano (“Capestrano” of “hospital” or “defendant”) moved for summary judgment and the dismissal of the instant action with prejudice based on the fact that the plaintiff was unable to show a disability under the ADA, and a discrimination case under the ADEA, Docket No. 11. Plaintiff generally opposed on the grounds that the tests used by the defendant under the ADA and the ADEA are incorrect, as well as their applicability to the facts of the instant complaint. For example, plaintiff alleges that the defendant failed to apply the prima facie test showing discrimination under the ADEA as per McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which is the applicable test in cases under ADEA. See Docket No. 16, pages 11-15. Plaintiff further alleges that she is “regarded as disabled” under the ADA “because [of] her condition of positive cancer nodules on the thyroids.” Id. at page 15. Defendant replied that plaintiffs opposition is “proposing new additional facts and claiming that Defendant failed to proffer a non-discriminatory reason for. Plaintiffs demotion.” See Docket No. 23. “Plaintiff argues that Defendant did not rebut the presumptions of discrimination and provided ‘blunt and unsupported allegations.’” Id. “Plaintiffs arguments in opposition fall flat.” Id. The instant case was referred to the Magistrate Judge for report and recommendation. See Docket entries No. 31 and 32. The Magistrate Judge entered The Report and Recommendation on January 14, 2013, Docket No. 33. Pursuant to the Order Referring Case, Docket No. 31, the parties were granted five business days to file any objections, that is, January 22, 2013. The record shows that plaintiff opposed the Report and Recommendation on January 28, 2013, Docket No. 34. The Court finds that plaintiffs opposition is tardy and was filed without leave of Court. Defendant filed a reply on February 7, 2013, Docket No. 35 without leave of Court. See Docket No. 33, pages 12-13. The Court is cognizant that the Report and Recommendation provides the parties fourteen days to object, however, this provision is contrary to the Court’s Order, Docket No. 31. In any event, the Court has reviewed plaintiffs tardy objection, as well as defendant’s reply, and finds that plaintiffs objections are merely a rehash of the arguments raised in the opposition to the motion for summary judgment. Hence, plaintiffs tardy objection will not alter the Court’s analysis nor the filing ruling. Standard of Review The district court may refer dispositive motions to a United States Magistrate Judge for a report and recommendation. 28 U.S.C. § 636(b)(1)(B); Rule 72(b) of the Federal Rules of Civil Procedure (“Fed. 98R.Civ.P.”); Local Civil Rule 72(a) of the Local Rules of the United States District Court for the District of Puerto Rico (“L.Civ.R.”). “Absent objection, ... [a] district court há[s] a right to assume that [the affected party] agree[s] to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “failure to raise objections to the Report and Recommendation waives that party’s right to review in the district court, and those claims not preserved by such objections are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). In the instant case, plaintiffs objections to the Magistrate Judge’s Report and Recommendation were filed tardy. Hence, the Court will consider the Magistrate Judge’s Report and Recommendation as being unopposed. Thus, in order to accept the unopposed Report and Recommendation, the Court needs only satisfy itself by ascertaining that there is no “plain error” on the faqe of the record. See Douglass v. United Servs. Auto, Ass’n, 79 F.3d 1415, 1419 (5th Cir.1996) (en banc) (extending the deferential “plain error” standard of review to the unobjected legal conclusions of a magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) (en banc) (appeal from district court’s acceptance of unobjected findings of magistrate judge reviewed for “plain error”); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) (“Court reviews [unopposed] Magistrate’s Report and Recommendation to ascertain whether or not the Magistrate’s recommendation was clearly erroneous”) (adopting the Advisory Committee note regarding Fed.R.Civ.P. 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990) (“when no objections are filed, the district court need only review the record for plain error”). After a careful review of the Magistrate Judge’s Report and Recommendation, the Court finds no “plain error” and agrees with the Magistrate Judge’s conclusions, as supplemented herein. As stated above, the Court’s review of plaintiffs tardy objections do not change the final ruling of the Court, as the Court finds that the arguments were properly address by plaintiff prior thereto in a filing, and the Court address then in this Opinion and Order. Analysis A review and in absence of plain error, the Court hereby accepts, adopts and incorporates by reference, the Magistrate Judge’s Report and Recommendation, Docket No. 33. The Magistrate Judge found that the following facts were uncontested. Plaintiff was hired by the defendant in June 2006 as a general supervisory nurse. Plaintiff was 45 years old at the time she was hired by Sistema San Juan Capestrano. See Report and Recommendation, Docket No. 33, page 2. On November 21, 2009, an incident occurred at San Juan Capestrano, consisting of a per diem nurse’s administration of flu shots to some of defendant’s employees without authorization. Id. at page 3. This incident triggered an investigation by the defendant in early December 2009, which included plaintiffs failure to inform the incident to the defendant’s administration. Id. Plaintiff was interviewed by the defendant’s department of human resources, and confronted with the question of whether or not she informed the incident to the defendant’s administration. Id., see also Docket No. 11-2, at pages 34-36. During plaintiffs meeting with the department of human resources, plaintiff informed that she had scheduled an emergency surgery to remove her thyroid for 99December 21, 2009. See Report and Recommendation, Docket No. 33, page 3. Plaintiff was later notified through defendant’s letter dated December 15, 2009, that the investigation has revealed that plaintiff failed to report the November 21, 2009 incident to the administration. Hence, plaintiff would be released from her current position of general supervisory registered nurse, and was to be transferred to the position of general registered nurse effective December 21, 2009.1 Id. at pages 3-4, and Docket No. 11-5, and the certified English translation, Docket.No. 14-3. Plaintiff proceeded with her surgery as scheduled on December 21, 2009, and never returned to work, resigning from the hospital through letter of January 7, 2010 effective January 12, 2010, see Docket No. 11-6, and the certified English translation, Docket No. 4. The Court finds that because the language of plaintiffs resignation letter addressed to Mrs. Colón, Clinical Services Director, is critical for plaintiffs claims, the same is cited below: This is to inform you that effective January 12, 2010, I resign my position as General Nurse, a position to which I was demoted early in December after four years as General Supervisor of the 3-11 shift, the position for which I was hired. I wish to reiterate my position that the incident on which you based your decision to demote me was an isolated case of involuntary forgetfulness whereby I did not make the entry in the shift report, in the understanding that, since other supervisors were involved, the hospital administration was aware of and approved the vaccination. Also, the person providing the service was not a stranger to the institution, but rather an employee who, at the request of several coworkers, during her free time provides material and equipment to protect other employees, a function she performs on a daily basis as an employee of the Government of Puerto Rico. Having nothing further to say, I thank you for the opportunity you gave me to work for the hospital. (Emphasis ours). Docket No. 14-4. Plaintiff further alleges that her position of general supervisory registered nurse was assigned to Lisa Rivera, a younger nurse, who was being trained to a supervisory position by plaintiff prior to her demotion- and resignation. See Report and Recommendation, Docket No. 33, pages 4-5. The American with Disabilities Act The Court agrees with the legal analysis made by the Magistrate Judge as to the ADA, and incorporates the same herein: Title I of the Americans with Disabilities Act (“the ADA”) prohibits employers from discriminating against persons with disabilities. 42 U.S.C. § 12112(a). To establish an ADA claim, a person must prove: (1) that she was “disabled within the meaning of the ADA”; (2) that she was “qualified to perform the essential functions of the job, either with or without a reasonable accommodation”; and (3) “that the employer took adverse action against” the employee “because of the disability.” Bailey v. Ga.-Pac. Corp., 306 F.3d 1162, 1166 (1st Cir.2002). An ADA plaintiff has several options for showing that she is disabled under the 100ADA;, here, Plaintiff has opted to argue that she is disabled under the ADA because she was “regarded as having” an impairment that substantially limited one or more of her major life activities. See Ruiz Rivera v. Pfizer Pharmaceuticals, LLC, 521 F.3d 76, 82-83 (1st Cir.2008). “Regarded as” claims under the ADA are meant to protect plaintiffs from “myths, fears, and stereotypes” that may arise regarding their non-disabling medical conditions. See id. at 82. To prevail under this test, the plaintiff must show not only that her employer “perceived h[er] as somehow disabled,” but that “the employer regarded h[er] as disabled within the meaning of the ADA.” Id. at 83 (citing Bailey, 306 F.3d at 1169). Plaintiff “must demonstrate not only that the employer thought [she] was impaired in [her] ability to do the job that [she] held, but also that the employer regarded h[er] as substantially impaired ‘in either a class of jobs or a broad range of jobs in various classes as compared with the average person having comparable training, skills, and abilities.’” Sullivan v. Neiman Marcus Grp., Inc., 358 F.3d 110, 117 (1st Cir.2004) (quoting Murphy v. United Parcel Serv., 527 U.S. 516, 523, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999)). Almost nothing in the statements of facts addresses how Plaintiff was perceived by her employer. The following, however,' is undisputed: Plaintiff was never subjected to any comments about any perceived disability, and she admitted during her deposition that she was not perceived or treated as disabled. All Plaintiff has to hang her “regarded as” argument on is the fact that she told the hospital’s human resources department that she was going to have thyroid surgery, and .that this surgery could cause muteness. It is the muteness that Plaintiff claims led to her being regarded as disabled, but there are two salient facts that make her argument implausible: first, it is uncontested that Plaintiff was demoted before the surgery, and she never returned to work after it was performed; and second, she does not even allege that she told the hospital that muteness was a possible consequence of the surgery. It is our opinion that Plaintiffs “regarded as” claim under the ADA must fail because she was at no time working with any condition that could have been regarded by her employer as a disability under the Act. To the contrary, it is uncontested that Plaintiff ceased to work at the hospital before undergoing the surgery that she says led to the perception of disability. We cannot understand, then, how such a perception might have been formed. Thus, we recommend that the motion for summary judgment be granted with regard to her ADA claim. See Report and Recommendation, Docket No. 33, pages 7-10. See also Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182, 187 (1st Cir.2011): In assessing whether someone is disabled under the ADA, we must consider the impairment’s effect on the particular individual. Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir.1996). The limitation caused by the impairment must be permanent or long-term. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); see also 29 C.F.R. § 1630.2(j)(2)(ii), (iii) (1991). Evidence of a medical diagnosis of impairment, standing alone, is insufficient to prove a disability. See Toyota Motor Mfg., Ky., Inc., 534 U.S. at 198, 122 S.Ct. 681. What is required is evidence showing that the impairment limits this particular plaintiff to a substantial extent. See 101Carroll v. Xerox Corp., 294 F.3d 231, 238 (1st Cir.2002) (quoting Toyota Motor Mfg., Ky., Inc., 534 U.S. at 196-200, 122 S.Ct. 681) (internal quotations marks omitted). In the instant case, the Court finds that the record is devoid of any supporting documents regarding plaintiffs thyroid condition. The record is plagued with plaintiffs bare, general conclusory allegations, which indeed are in itself contradictory with plaintiffs own statements given in her deposition. Question: How many tests did you have prior to the surgery? Answer: Only the biopsy. Question: What activities are you precluded from performing due to this medical condition that your mentioned that Dr. Giraldes identified? Answer: None. Question: How did this condition affect your ability to work? Answer: In no way. Question: Is there something that you used [to do] that you cannot perform now? Answer: No. Question: Are there any limitations imposed on you by this condition that you undergo surgery for? Answer: No. Question: Was this a temporary or permanent condition? Answer: Permanent. Question: Did you consult any other doctor, besides Dr. Giraldes, for this condition? Answer: No. Question: Did you request leave under SINOT at San Juan Capestrano? Answer: No. Question: Were you dismissed from work at San Juan Capestrano? Answer: No. Question: At the time that you handed your resignation to San Juan Capestrano, were you authorized to work from your doctor? Answer: Yes. See Docket No. 11-2, pages 17-18. Question: Did you ever request a reasonable accommodation at San Juan Capestrano due to this condition that you’re claiming [possibility of muteness for a period of three months after the thyroid surgery, and end up hoarse]? Answer: No, but they indicated to me that I was going to be rotated.” Id. at page 19. Question: Were you ever perceived or treated as disabled by someone at San Juan Capestrano? Answer: No. Question: Before undergoing surgery, did you ever report to San Juan Capestrano on medical leave? Answer: Yes. Question: Were you subject to any disciplinary action, or a comment because you went on sick leave? Answer: No. Question: Did you ever report to Workmen’s Compensation? Answer: Yes. Question: Were you reinstated in your job after you were released from Workmen’s Compensation? Answer: Yes. Question: Were you subjected to any remarks, or comments, or disciplinary action because you reported yourself to Workmen’s Compensation? Answer: No. Id. at page 20. Plaintiff also admitted never hearing comments regarding her disability, or that someone perceived or treated her as 102disabled. See Report and Recommendation, Docket No. 33, page 5. The Court notes-that there are no medical certificates or diagnosis on the record regarding plaintiffs thyroid condition. Hence, the Court finds that the plaintiff failed to show that indeed she had a disability either by direct evidence or by indirect evidence using the prima facie case test as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Age Discrimination in Employment Act Plaintiff Santiago alleges that she was discriminated against due to her age. See Report and Recommendation, Docket No. 33, pages 5-6. However, the Court finds that according to plaintiffs deposition, she did not feel discriminated against due to her age. Likewise, the Court agrees with the legal analysis made by the Magistrate Judge as to the ADA, and incorporates the same herein: The Age Discrimination in Employment Act prohibits employers from taking adverse employment actions against employees who are forty years of age or older because of the employee’s age. Bennett v. Saint-Gobain Corp., 507 F.3d 23, 30 (1st Cir.2007) (citing 29 U.S.C. §§ 623(a)(1), 631(a)). To prevail on her ADEA claim, Plaintiff must prove that she suffered an adverse employment action that was motivated by her age, and that she suffered an injury as a result. Mélendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 33 (1st Cir.2001). Here, Plaintiff was over forty years old and was replaced, in at least some of her responsibilities, by a person younger than her. In this case, the central question is whether Plaintiffs demotion was motivated by age discrimination. Plaintiff alleges that her age triggered her demotion; the hospital argues that Plaintiffs demotion was precipitated by errors she made on the job. At the summary judgment state, the relevant question is whether Plaintiff “has pointed to enough admissible evidence to create a factual issue for trial on the issue of motivation — that is, to permit a reasonable jury to conclude that the decision to demote her was taken or prompted by someone based on age-based stereotyping or hostility.” Id.; see also Dávila v. Corporación de P.R. para la Difusión Pública, 498 F.3d 9, 16 (1st Cir.2007) (“At summary judgment, this question reduces to whether or not the plaintiff has adduced minimally sufficient evidence to permit a reasonable factfinder to conclude that he was fired because of his age.”). Plaintiff has adduced no evidence supporting discrimination apart from the mere facts of her age and that of her supposed replacement. She admits that she heard no comments directed at her age and that other, older employees worked around her. More relevantly, her resignation letter from her position takes some responsibility for the errors in judgment that the hospital says led to her demotion. Simply put, we do not think there is enough here to permit a reasonable factfinder to conclude that Plaintiff suffered age discrimination. See Dávila, 498 F.3d at 17 (“For a quondam employee to withstand summary judgment in an age discrimination case, there must be some significantly probative evidence from which the factfinder can infer that the employer discharged the employee because of his age.”). Accordingly, we must recommend that the motion for summary judgment be granted with regard to her ADEA claim. Plaintiff further alleges that she was discriminated against due to her age. See 103Report and Recommendation, Docket No. 33, pages 5-6. However, the Court finds that according to plaintiffs deposition, she did not feel discriminated against due to her age. Question: Did someone at Capestrano ever made a comment to you that you were old? . .Answer: No. Question: Did you ever contact him [the director of human resources] to report any conduct or any situation regarding these comments? Answer: No. Question: Did you ever try to reach Mr. Rivera [the director of human resources], and he refused to listen to you? Answer: No. See Docket No. 11-2, page 8. In the instant case, there is not one single allegation of age discrimination supported by plaintiffs own admissions. The record clearly shows otherwise, to wit: (a) plaintiff was hired when she was 45 years old; (b) plaintiff is a registered nurse with post-graduate studies, and is currently studying a doctoral degree; (c) plaintiff was unable to establish that her demotion was age related, hence, she failed to meet the “but for” test, required by the Supreme Court in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (requiring that the termination must be “the motivating factor” instead of “a motivating factor”). In sum, the Court finds that summary judgment is warranted on plaintiffs ADEA claim. Constructive Discharge Plaintiff claims constructive discharge due to her demotion. “Constructive discharge typically ‘refers to harassment so severe and oppressive that staying on the job while seeking redress— the rule save in exceptional circumstances — is intolerable.’ ” Gerald v. University of Puerto Rico, 707 F.3d 7, 25 (1st Cir.2013), citing Lee-Crespo v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 45 (1st Cir.2003) (internal quotations and citation omitted). “A successful constructive discharge claim requires ‘working conditions so intolerable that a reasonable person would have felt compelled to resign.’ ” Id., citing Pennsylvania State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). In the instant, case, the record clearly shows otherwise. Plaintiff stated in her deposition that she presented her resignation under pressure, even though she was not asked by the administration to, resign. See Docket No. 11-2, page 15. Moreover, .plaintiff admitted that she did not return .to work after the surgery, notwithstanding that she had a job at the hospital, and her doctor allowed her to return to work and perform as usual. See Docket No. 11-2, pages 16-18. Hence, plaintiff could not have suffered “severe and oppressive” working conditions while she was away on sick leave. Gerald v. University of Puerto Rico, 707 F.3d at 25. Lastly, plaintiff admitted that she was not dismissed from work at San Juan Capestrano. Id. Contrariwise, plaintiff sent a resignation apologetic letter admitting that she had in fact provided “unauthorized employees” [the per diem nurse, who was also an employee of the Government of Puerto Rico] to receive fhi vaccinations. See Letter of Resignation, Docket No. 14-4. Plaintiff further admitted that she forgot to make the proper entry on the “shift report.” Id. The record reflects that the defendant was a “general supervisory nurse” with a license to act as a registered nurse, occasionally acting as the registered nurse in charge of the hospital. See Report and Recommendation, Docket No. 33, page 2. 104Considering that plaintiff was never terminated but only demoted, and never returned to work after surgery, notwithstanding she was capable and authorized by her physician to work, the Court refuses to act as a super overseeing personnel office. The Court remains mindful that its role is not to “second-guess[ing] the business decisions of an employer, nor to impose [its] subjective judgments of which person would best fulfill the responsibilities of a certain job.” Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 31 (1st Cir.1990). “Courts may not sit as super personnel departments, assessing the merits—or even the rationality — of employer’s nondiscriminatory business decisions.” Mesnick v. General Electric Co., 950 F.2d 816, 823 (1st Cir.1991). Question: Were you dismissed from work at San Juan Capestrano? Answer: No. Question: At the time you handed your resignation to San Juan Capestrano, were you authorized to work from your [personal] doctor? Answer: Yes. See Docket No. 11-2, page 18. Hence, the Court finds that plaintiff was not constructively discharged, rather that she resigned knowingly and voluntarily without any “sever and oppressive” conditions present. Gerald v. University of Puerto Rico, 707 F.3d at 25. The record also shows that another supervisor resigned from Capestrano, however, plaintiff could not provide the name of said supervisor and the circumstances that triggered the supervisor’s alleged resignation. See Docket No. 11-2, page 21. The Court finds that this bare allegation is irrelevant, as it fails to prove any type of discrimination conduct from the defendant, or how this resignation is related, if any, to plaintiffs resignation. Plaintiffs claim for constructive discharge is denied, as she failed to show that her working conditions were “so intolerable that a reasonable person would have felt compelled to resign.” Gerald v. University of Puerto Rico, 707 F.3d at 25. Hence, summary judgment is warranted as to the claim of constructive discharge. Conclusion For the reasons stated above, the Court finds that there is no plain error in the Magistrate Judge’s Report and Recommendation, Docket No. 33. Hence, the Report and Recommendation is hereby adopted in toto, as supplemented herein. All federal causes of action are dismissed with prejudice and all causes of action under state law are dismissed without prejudice. Judgment is to be entered accordingly. IT IS SO ORDERED. REPORT AND RECOMMENDATION SILVIA CARRE ÑO-COLL, United States Magistrate Judge. In this employment discrimination suit, Defendant Sistema San Juan Capestrano, Inc., has filed a motion for summary judgment, Docket No. 11, which has been referred to the undersigned by the presiding district judge for a report and recommendation, Docket No. 31. We recommend that the motion be granted and the case be dismissed. I. Background We will begin with those facts not in dispute.1 Plaintiff Migdalia Santiago-Rodriguez was hired by San Juan Capestrano 105in June 2006 as a general supervisory nurse. Statement, ¶ 2; Opposition Statement, ¶ 1.2. At the time, Plaintiff was 45 years old. Statement, ¶ 3; Opposition Statement, ¶ 1.3. Plaintiff held a masters degree in hospital administration, as well as a degree in mental health. Statement, ¶ 5; Opposition Statement, ¶ 1.5. In Plaintiffs capacity as a general supervisory nurse, she supervised hospital personnel during her shift, and, when the hospital’s administration was absent, she was in charge of the hospital.2 Statement, ¶ 6; Opposition Statement, ¶ 1.6. Among Plaintiffs duties, she was required to draft daily incident reports at the end of her shifts describing incidents that had occurred; she was also to report such incidents to her supervisor, Olga Colon, by phone. Statement, ¶ 9; Opposition Statement, ¶ 1.9. On November 21, 2009, an incident occurred at the hospital. The details are disputed, but it is agreed that a per diem nurse3 gave flu shots to some employees without authorization. Statement, ¶ 12; Opposition Statement, ¶ 1.12. It is also undisputed that Plaintiff did not inform the hospital administration of this incident.4 Statement, ¶ 15; Opposition Statement, ¶ 1.15. Plaintiff was subsequently interviewed by human resources and “confronted” about not informing the administration. Statement, ¶ 19; Opposition Statement, HI.19. During this interview, Plaintiff informed the hospital that she would be undergoing thyroid surgery in December 2009. Statement, ¶ 20; Opposition Statement, ¶1.20. On December 15, 2009, the hospital sent Plaintiff a letter informing her that because of her failure to report the immunization incident, she was being demoted to the position of general nurse.5 Statement, ¶ 21; Opposition Statement, ¶ 1.21. After being informed of the demotion, Plaintiff went on medical leave and never returned, resigning from the hospital on January 7, 2010. Statement, ¶¶ 23-25; Opposition Statement, ¶¶1.23-1.25. In her resignation letter, Plaintiff takes at least some responsibility for her demotion6 Statement, ¶ 26; Opposition Statement, ¶ 1.26. After Plaintiff resigned, at least some of her work responsibilities were assigned to Lisa Rivera,6 7 a new su106pervisory nurse who is younger and possesses, fewer degrees than Plaintiff, and who Plaintiff had been training. Statement, ¶ 28,' 30; Opposition Statement, ¶ 1.28, 1.30, 11.16; Reply Statement, ¶ 16. Finally, Plaintiffs complaint alleges age and disability discrimination, and so we pay some attention to the facts bearing on those allegations. Plaintiff began working at the hospital when she was 45, and she was 48 or 49 at the time she resigned. Statement, ¶¶ 3, 4. Lisa Rivera, the person who took over some of Plaintiffs duties after her resignation, is currently 38. Reply Statement, ¶ 43. While employed at the hospital, Plaintiff was not the oldest employee. Statement, ¶ 10; Opposition Statement, ¶ 1.10. She was never subjected to any comments about her age, nor did she ever hear comments about her “disability.” Statement, ¶¶ 11, 31; Opposition Statement, ¶¶1.11, 1.31. Indeed, Plaintiff admitted in her deposition that no one perceived or treated her as disabled. Statement, ¶ 32; Opposition Statement, ¶ 1.32. Nonetheless, the thyroid surgery that Plaintiff told the hospital she was going to have ran the risk of causing (temporary 8) muteness. Opposition Statement, ¶ 35; Reply Statement, ¶ 35. II. Summary Judgment Standard A motion for summary judgment will be granted “if the pleadings, the discovery and disclosure material on file, and any affidavits show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is in genuine dispute if it could be resolved in favor of either party, and it is material if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.2004). The movant carries the burden of establishing that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden may be satisfied by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations ... or other materials.” Fed.R.Civ.P. 56(c)(1)(A). The movant may also point to a lack of evidence supporting the nonmovant’s case. See Fed.R.Civ.P. 56(c)(1)(B); see also Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the movant makes a preliminary showing that no genuine issues of material fact exist, “the nonmovant must produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy [dispute].” Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir.2006) (internal quotation marks omitted); see also Fed.R.Civ.P. 56(c)(1). In evaluating a motion for summary judgment, we view the record in the light most favorable to the nonmovant. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). III. The Federal Claims A. The Americans with Disabilities Act Title I of the Americans with Disabilities Act (“the ADA”) prohibits employers from 107discriminating against persons with disabilities. 42 U.S.C. § 12112(a). To establish an ADA claim, a person must prove: (1) that she was “disabled within the meaning of the ADA”; (2) that she was “qualified to perform the essential functions of the job, either with or without a reasonable accommodation”; and (3) “that the employer took adverse action against” the employee “because of the disability.” Bailey v. Ga.-Pac. Corp., 306 F.3d 1162, 1166 (1st Cir.2002). An ADA plaintiff has several options for showing that she is disabled under the ADA; here, Plaintiff has opted to argue that she is disabled under the ADA because she was “regarded as having” an impairment that substantially limited one or more of her major life activities. See Ruiz-Rivera v. Pfizer Pharmaceuticals, LLC, 521 F.3d 76, 82-83 (1st Cir.2008). “Regarded as” claims under the ADA are meant to protect plaintiffs from “myths, fears, and stereotypes” that may arise regarding their non-disabling medical conditions. See id. at 82. To prevail under this test, the plaintiff must show not only that her employer “perceived h[er] as somehow disabled,” but that “the employer regarded h[er] as disabled within the meaning of the ADA.” Id. at 83 (citing Bailey, 306 F.3d at 1169). Plaintiff “must demonstrate not only that the employer thought [she] was impaired in [her] ability to do the job that [she] held, but also that the employer regarded h[er] as substantially impaired ‘in either a class of jobs or a broad range of jobs in various classes as compared with the average person having comparable training, skills, and abilities.’” Sullivan v. Neiman Marcus Grp., Inc., 358 F.3d 110, 117 (1st Cir.2004) (quoting Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 523, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999)). Almost nothing in the statements of facts addresses how Plaintiff was perceived by her employer. The following, however, is undisputed: Plaintiff was never subjected to any comments about any perceived disability, and she admitted during her deposition that she was not perceived or treated as disabled. All Plaintiff has to hang her “regarded as” argument on is the fact that she told the hospital’s human resources department that she was going to have thyroid surgery, and that this surgery could cause muteness. It is the muteness that Plaintiff claims led to her being regarded as disabled, but there are two salient facts that make her argument implausible: first, it is uncontest'ed that Plaintiff was demoted before the surgery, and she never returned to work after it was performed; and second, she does not even allege that she told the hospital that muteness was a possible consequence of the surgery. ..... It is our opinion that Plaintiffs “regarded as” claim under the ADA must fail because she was at no time working with any condition that could have been regarded by her employer as a disability under the Act. To the contrary, it is uncontested that Plaintiff ceased to work at the hospital before r undergoing the surgery that she says led to the perception of , disability. We cannot understand, then, how such a .perception might have been formed. Thus, we recommend that the ipotion for summary judgment be .granted with regard to her ADA claim. B. The Age Discrimination in Em-; ployment Act The Age Discrimination in Employment Act prohibits employers from taking adverse employment actions against employees who are forty years of age or older because of the employee’s age. Bennett v. Saint-Gobain Corp., 507 F.3d 23, 30 (1st Cir.2007) (citing 29 U.S.C. §§ 623(a)(1), 631(a)). To prevail on her ADEA claim, 108Plaintiff must prove that she suffered an adverse employment action that was motivated by her age, and that she suffered an injury as a result.. Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 33 (1st Cir.2001). Here, Plaintiff was over forty years old and was replaced, in at least some of her responsibilities, by a person younger than her. In this case, the central question is whether Plaintiffs demotion was motivated by age discrimination. Plaintiff alleges that her age triggered her demotion; the hospital argues that Plaintiffs demotion was precipitated by errors she made on the job. At the summary judgment state, the relevant question is whether Plaintiff “has pointed to enough admissible evidence to create a factual issue for trial on the issue of motivation — that is, to permit a reasonable jury to conclude that the decision to demote her was taken or prompted by someone based on age-based stereotyping or hostility.” Id.; see also Davila v. Corporacion de P.R. para la Difusión Pública, 498 F.3d 9, 16 (1st Cir.2007) (“At summary judgment, this question reduces to whether or not the plaintiff has adduced minimally sufficient evidence to permit a reasonable factfinder to conclude that he was fired because of his age.”). Plaintiff has adduced no evidence supporting discrimination apart from the mere facts of her age and that of her supposed replacement. She admits that she heard no comments directed at her age and that other, older employees worked around her. More relevantly, her resignation letter from her position takes some responsibility for the errors in judgment that the hospital says led to her demotion. Simply put, we do not think there is enough here to permit a reasonable factfinder to conclude that Plaintiff suffered age discrimination. See Davila, 498 F.3d at 17 (“For a quondam employee to withstand summary judgment in an age discrimination case, there must be some significantly probative evidence from which the factfinder can infer that the employer discharged the employee because of his age,”). Accordingly, we must recommend that the motion for summary judgment be granted with regard to her ADEA claim.9 IV. The State-Law Claims Plaintiff also raises several state-law claims against Defendants. We will not address these claims, however, because our recommended course of dismissing the federal claims would undermine any jurisdictional basis for state-law claims’ consideration. V. Conclusion For all of the reasons stated above, we recommend that the Court GRANT the motion for summary judgment, Docket No. 11, and DISMISS Plaintiffs complaint, Docket No. 1, in its entirety. IT IS SO RECOMMENDED. The parties have fourteen days to file any objections to this report and recommendation. Failure to file the same within the specified time waives the right to appeal this report and recommendation. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986). . The Court notes that this is not the first time that plaintiff has been interviewed by the defendant's department of human resources, see defendant’s Employee Corrective Actions Report of July 3, 2009, Docket No. 14-5, regarding plaintiff’s frequent absences from work without proper and/or timely notice with her supervisors. No disciplinary action was taken by the defendant at the time. . These facts are drawn from Defendant’s Statement of Uncontested Facts ("Statement”), Docket No. 11-1, Plaintiff's Opposing Statement of Uncontested Material Facts ("Opposition Statement”), Docket No. 16-1, and Defendant's Reply to Plaintiff’s Additional Uncontested Material Facts ("reply Statement”), Docket No. 23-1. . This phrase is drawn from the statement of uncontested facts, which provides no details explaining just what Plaintiff's responsibilities were when she was "in charge of the hospital.” . The statement of uncontested facts doesn’t explain the phrase, but we assume that a per diem nurse is one paid daily for her work at the hospital. See, e.g., Holyoke Visiting Nurses Ass'n v. NLRB, 11 F.3d 302, 304 (1st Cir.1993). . However, Plaintiff disputes whether or not it was her responsibility to inform the administration about the immunizations. . Plaintiff admits this fact with regard to the time that she was informed of her demotion, as well as the contents of the demotion letter; she disputes, however, the letter's accuracy. Opposition Statement, ¶ 1.21. . In the letter, Plaintiff writes that the incident leading to her demotion "was an isolated case of involuntary forgetfulness whereby I did not make the entry in the shift report.” Docket No. 14-4. She goes on to say that because other supervisors were involved, she assumed the administration had approved the vaccinations. Id. The hospital interprets this language as an "acknowledgement] of her wrongdoing.” Statement, ¶ 26. Plaintiff denies that it is such an acknowledgment, Opposition Statement, ¶ 1.26, but we agree with the hospital that its language does include an admission of wrongdoing, though it also attempts to explain Plaintiff's supposed error. . According to the hospital, Plaintiff’s position was not replaced. Instead, the hospital claims that Rivera was already training to be a supervisory nurse before Plaintiff’s demotion, and that she was sharing responsibilities with Plaintiff, who had been training her; the hospital says that she continued in this position. Plaintiff's position is that after she resigned, her position was given to Rivera. In *106either case, many of Plaintiff’s former responsibilities ended up becoming Rivera's after Plaintiff’s demotion and resignation. . At her deposition,' Plaintiff testified that her physician had told her that with the surgery, "there was a possibility that I would be mute for a period of three months, and end up hoarse.” Docket No. 11-2, at 19. . The parties devote much space to arguing whether or not Plaintiff was constructively discharged; we don't consider the matter, however, because even if she was, she would also need to establish that her age was the "but-for” cause for the constructive discharge — something that she has failed to do. See Cabrera-Ruiz v. Rocket Learning, Inc., 852 F.Supp.2d 154, 169 (D.P.R.2012).	01-03-2023	11-26-2022
https://www.courtlistener.com/api/rest/v3/opinions/3849410/	Argued September 26, 1927. At the audit of the account of the executors of David F. Henry, deceased (appellees), Jacob H. Goehring (appellant), presented a claim for $52,500, as commission on the sale of certain property belonging to the decedent's estate. This claim was rejected by the court Page 538 below in a decree filed July 20, 1926, to which appellant excepted on July 29th. These exceptions, together with those taken by other parties, were argued before the court in banc, and, on November 5, 1926, the following decree was entered, PER CURIAM: "It is ordered, adjudged and decreed [that] the exceptions be sustained in part and the decree of distribution made on July 20, 1926, be and the same is hereby vacated and set aside. . . . . . It is further ordered and decreed that the funds in the hands of the accountants, to wit, $1,634,941.13, be now paid in accordance with the schedule of distribution hereto attached and made part hereof." The schedule of distribution did not provide for the payment of appellant's claim, and, no exceptions being filed within the time allowed for an appeal, distribution was made in accordance with the decree of the court below. On January 31, 1927, three days before the time expired within which an appeal from the order of November 5th could be taken, the following order was made by the court below: "The decree in the above entitled proceedings of November 5, 1926, is amended as follows: It is ordered, adjudged and decreed that the exceptions of the Union Trust Company, administrator of the estate of Henry E. Lineaweaver, deceased, are sustained in part, and all other exceptions are dismissed. The schedule of distribution of the funds in the hands of the accountant and all other matters as ordered by the said decree of November 5, 1926, are affirmed." On April 28, 1927, this appeal was taken. Appellees have moved to quash the appeal on the ground that it was not taken within three calendar months from the decree of November 5, 1926. Appellant contends that he could not have taken an appeal from that decree; that no final judgment upon his claim was entered until January 31, 1926, and that he appealed three days before the expiration of three calendar months from the last mentioned date. Page 539 Section 4 of the Act of May 19, 1897, P. L. 67, as amended by the Act of March 12, 1925, P. L. 32, provides that an appeal must be taken within three calendar months from the entry of the decree appealed from. The decree of November 5th disposed of appellant's claim and in effect dismissed all exceptions other than those expressly sustained; that is the decree which should have been appealed from and subsequent proceedings in the court below could not extend the time for appeal: Barlott v. Forney, 187 Pa. 301, 303; Groff v. City Saving Fund and Trust Co., 38 Pa. Super. 567; Frazier's Est., 7 Pa. Super. 473, affirmed 188 Pa. 415. See also Opening of Parkway, 267 Pa. 219, 226. This appeal came too late and therefore the motion to quash must be granted. The appeal is quashed.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/17663/	Revised June 2, 1999 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 97-10858 IVING THOMAS; BARBARA THOMAS Plaintiffs-Appellees versus CITY OF DALLAS; ET AL Defendants DARWIN GAINES; AQUILLA ALLEN Defendants-Appellants Appeals from the United States District Court for the Northern District of Texas May 11, 1999 Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges. HIGGINBOTHAM, Circuit Judge: This claim arises from a bureaucratic snafu. The City of Dallas, by a series of mistakes, demolished a small house after erroneously concluding it was a nuisance. This suit by the property owner ensued. We must decide whether the district court erred in refusing to recognize a defense of absolute immunity to a claim for money damages asserted by an official of the responsible city agency and qualified immunity asserted by one of its employees. We conclude that the invoked defenses are available and reverse and remand. I In 1993, Iving and Barbara Thomas purchased a single family home at 4226 Landrum Avenue, Dallas, Texas. The Thomases never resided there but were making repairs and improvements to the house over time. In January 1994, the Code Enforcement Department of the City of Dallas gave Mr. Thomas a notice of violation regarding the detached garage and told Mr. Thomas to repair or demolish the accessory structure within 30 days. Four months later, the code inspector found no repairs or demolition of the garage and issued a citation to Mr. Thomas. The code inspector forwarded the file on the garage to the Urban Rehabilitation Standards Board on June 20, 1994. The URSB is a board of volunteers appointed by the mayor and city council to decide cases about urban nuisance. The URSB scheduled a hearing on October 4, 1996 regarding the demolition of the garage. Notice was sent to the last known address for Iving Thomas, 4226 Landrum Avenue, Dallas, Texas 75216, but the notice was returned to the URSB as unclaimed. At the hearing, the case was “passed” so that the URSB could later assess the main structure with the accessory structure in one hearing.1 1 The Thomases assert that there is neither a record of an interior inspection of the house nor a record that they were given any notice about substandard conditions of the house. 2 A new hearing on the two structures was set for November 1, 1994. In the meantime, on October 6, 1994, Mr. Thomas applied for and received a demolition permit from the city and demolished the garage. Aquila Allen, the URSB Administrator, sent notice of the scheduled November 1, 1994 URSB hearing to the last known address of Iving Thomas. The notice provided, in pertinent part, the following: Property located at 4226 Landrum Avenue, Lot(s) 12, Block 5/6083 will be among the properties considered. At this hearing the Administrator will present evidence of the condition of the structure(s). The owner, lessor, occupant or lienholder, will be given the opportunity to present evidence and witnesses if so desired. The notice then listed ten actions which the URSB could take with respect to the property; the last action listed was demolition. In addition to this mailed notice, Allen also published notice of the hearing in the Daily Commercial Record at least five days before the hearing. While § 27-13 of the Dallas City Code permits notice by publication, it does so only after both written notice and a diligent search to ascertain the party’s correct address have failed. The code also provides optional personal notice, which was not attempted in this case. On November 1, 1994, the URSB reviewed the Thomases’ case, even though there was no mail return receipt on file indicating that the Thomases had been given notice by mail. Darwin Gaines, member and chairman of the URSB, presided over the hearing and 3 voted to demolish the Thomases’ house on the ground that it was an urban nuisance. The URSB issued a demolition order for the entire dwelling at 4226 Landrum Avenue and a notice was sent to the Thomases’ same address. The demolition order was also published in the Dallas Commercial Record. On November 11, 1994, a certified mail return receipt was finally received by the URSB, indicating that the Thomases did not receive notice of the scheduled November 1 hearing until a week after the hearing was held. Nonetheless, the city proceeded with its November 1 decision to demolish the structure. Notice of the demolition order was sent by certified mail, but was returned to the URSB as “return to sender, attempted not known.” Eleven months later, on October 25, 1995, the city demolished the Thomases’ house and sent them a bill for $1379.32. The Thomases filed suit asserting claims that Gaines and Allen violated their right to due process under the Fourteenth Amendment by failing to provide proper notice of the URSB hearings concerning the demolition of their house.2 The district court granted the Thomases’ summary judgment motion, specifically denying the absolute and qualified immunity defenses raised by Gaines and Allen. 2 The Thomases also sued the City of Dallas under § 1983 and filed a motion for partial summary judgment against the City. The district court granted the motion. That ruling is not before us. 4 Gaines and Allen appeal. Under the collateral order doctrine, we have jurisdiction over this interlocutory appeal to review the district court’s denial of immunity to Gaines and Allen. See Cantu v. Rocha, 77 F.3d 795, 802-03 (5th Cir. 1996)(citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). II We review a summary judgment de novo, applying the same standards as used by the district court, reviewing the facts and drawing inferences in favor of the nonmoving party. See Elliott v. Lynn, 38 F.3d 188 (5th Cir. 1994). Summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). “To win summary judgment, the movant must show that the evidence would not permit the nonmovant to carry its burden of proof at trial.” Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998). III Gaines claims absolute immunity, alternatively qualified immunity, contending the URSB performs a quasi-judicial function. The Thomases do not say otherwise for orders to demolish houses. Rather, they contend that Gaines voted to demolish their house when there was no evidence in the URSB file of notice to the Thomases of such a hearing and that act should not be shielded. This argument fails to grasp the reach of absolute immunity. As we will explain, if the job enjoys absolute immunity, the inquiry into liability 5 narrows to whether the official was about his work when engaged in the accused conduct. Failure in a given case to apply the rules correctly does not leave an official unsheltered from liability -- indeed, that is the protection afforded by absolute immunity. An official who seeks absolute immunity has the burden of showing that public policy justifies the extension of the doctrine of judicial immunity. See Butz v. Economou, 438 U.S. 478, 506-07 (1978). To assess whether absolute immunity should be extended, we must examine the character of the officer’s duties and the relationship to the parties. See Mylett v. Mullican, 992 F.2d 1347, 1352 (5th Cir. 1993)(citing Stump v. Sparkman, 435 U.S. 349, 359 (1978)). Unfortunately, our inquiry is less than exact. We consider the following factors: (1) the need to assure that the individual can perform his functions without harassment or intimidation; (2) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (3) insulation from political influence; (4) the importance of precedent; (5) the adversarial nature of the process; (6) the correctability of the error on appeal. Cleavinger v. Saxner, 474 U.S. 193, 202 (1985) (citing Butz, 438 U.S. at 512). Absolute immunity extends to agency or board officials performing functions that are quasi-judicial in nature. See 6 O’Neal v. Mississippi Bd. of Nursing, 113 F.3d 62, 65 (5th Cir. 1997); Johnson v. Kegans, 870 F.2d 992, 996 (5th Cir. 1989). We are to use a "functional approach" that looks to "the nature of the function performed, not the identity of the actor who performed it." Imbler v. Pachtman, 424 U.S. 409, 431 (1976). The six enumerated factors, characteristics of the judicial processes, serve to assist in the inquiry into function. See Cleavinger, 474 U.S. at 202. Here, it appears that at least five of the six factors favor absolute immunity. First, the URSB is charged with the inherently controversial task of demolishing private residences. It is comprised of volunteer members serving in unpaid, two-year positions. This is significant because harassing litigation takes a heavy toll when the task depends on volunteers from the community. Second, the URSB proceedings have sufficient procedural safeguards. The City Code provides that property owners have a right: to receive notice of URSB hearings, see Dallas, Tex., Rev. City Code ch. 27, art. II, § 27-13(b); to present and cross-examine witnesses, see id. § 27-9(c); to request that a case be reheard, see id. § 27-14(a), (b); and to appeal an adverse decision to state district court, see id. § 27-9(e). Third, the members of the URSB are not elected, but appointed by members of the city council. To this extent, they are shielded from direct political influence. 7 Fourth, although the URSB’s decisions are not guided by URSB precedent, the board is bound by specific standards for evaluating structures set in the Dallas City Code. This factor does not meaningfully point in one direction or the other. Fifth, hearings before the URSB are adversarial. Parties are free to present evidence and testimony, see id. § 27-9(c); witnesses must testify under oath, see id. § 27-9(a); and parties have the right to cross-examine adverse witnesses, see id. § 27- 9(c). The district court was persuaded that the city code aside, there was in fact no meaningful cross-examination because staff had briefed the board privately before the hearing. We find no record basis for a conclusion as a matter of law that the city code was ignored in the routine of business. That most matters are uncontested does not mean that the right was not available. Finally, as already noted, errors may be corrected on appeal to state district courts. See id. § 27-9(e). The federal district court did not think this judicial review was of much practical value. As we see it, the procedural apparatus is sound, and we have no record basis for concluding that it is unsound in operation. These general factors favor immunity. Our focus now must be upon the defendants’ particular job responsibilities and their acts about which the Thomases complain. See Mylett v. Mullican, 992 F.2d 1347, 1352 (5th Cir. 1993). 8 Gaines is a member of the URSB and its chairman. As chairman he presides over all URSB hearings and is responsible for administering oaths. As a participating member, he votes on cases based on the testimony and evidence before the panel. Gaines functions in a manner comparable to that of a judge. See Swann v. Dallas, 922 F. Supp. 1184, 1192-95 (N.D. Tex. 1996) (holding in a comprehensive and well-reasoned opinion that members of URSB are entitled to absolute immunity); see also Butz, 438 U.S. at 511-17; O’Neal, 113 F.3d at 65. We are persuaded that the district court erred in rejecting Gaines’ claim of absolute immunity. IV Allen also claims absolute immunity, alternatively, qualified immunity. She asserts her position is essentially that of a prosecutor. See URSB Code § 27-13(j). We agree with the district court that the claim of absolute immunity is not supportable. Allen’s duty is more accurately characterized as administrative, rather than prosecutorial, and a person performing routine administrative duties is not entitled to absolute immunity. See Tarter v. Hury, 646 F.2d 1010, 1012 (5th Cir. 1981); Williams v. Wood, 612 F.2d 982, 984-85 (5th Cir. 1980). V To determine whether Allen is entitled to qualified immunity, we must determine (1) whether the Thomases stated a claim for violation of a constitutional right; (2) whether this constitutional right was established at the time of the actions 9 underlying this lawsuit; and (3) whether the Thomases established that Allen’s conduct was objectively unreasonable in light of the legal rules clearly established. See Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995). The Thomases alleged that Allen denied them due process by failing to provide them with proper notice of the hearing concerning the demolition of their house. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (holding that state action affecting property generally requires advance notice). The first two prongs of the qualified immunity test are satisfied, and we turn to the third -- whether Allen’s actions were objectively unreasonable. The district court denied qualified immunity finding that Allen’s conduct was not objectively reasonable. The district court concluded that “[t]he uncontroverted facts show that Ms. Allen knew that the Plaintiffs had not received notice of the October or November hearings and that the Board could not proceed until they had been given proper notice.” Allen challenges the district court’s conclusion and argues that she is entitled to qualified immunity because her actions were objectively reasonable. While the summary judgment record indicates that either the members of the URSB, the URSB Administrator, or the URSB staff typically would check a file before a hearing to see if there was a return receipt from a targeted individual, Chapter 27 of the Dallas City Code, entitled Minimum Urban Rehabilitation Standards, 10 provides that the director/administrator of the URSB is responsible for giving notice to targeted individuals. We agree with the district court that Allen, as the administrator of the URSB, bears the responsibility of ensuring that notice is given. Allen maintains that she gave the notice required by Chapter 27 of the Dallas City Code. She mailed certified notice of the scheduled October and November hearings as well as the outcome of the November 1 hearing to the Thomases’ last known address. In addition, she gave notice by publication of the pending demolition order. Yet, the Thomases argue it was objectively unreasonable to allow the November 1 hearing to proceed when no return receipt was on file, and the certified mail receipt showed the Thomases did not receive the notice of the November 1 meeting until November 8. While it is arguable that Allen should have known that the Thomases’ return receipt card was not in the file at the time of the November 1, 1994 hearing, that alone does not establish that she intentionally and knowingly violated the Thomases’ due process right in violation of § 1983. Allen made the proper attempts to notify the Thomases, but was undoubtedly negligent in failing to bring the lack of a return receipt in the Thomases’ file to the URSB’s attention. Whether Allen’s conduct constituted an intentional deprivation of the Thomases’ due process rights or demonstrated that she was “plainly incompetent” in her duties as the URSB Administrator is a genuine issue of material fact that should be determined by a jury. See Cantu, 77 F.3d at 806 (stating 11 that “[q]ualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law’” (citing Anderson, 483 U.S. at 638 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986))). VI In sum, we find that Gaines is entitled to absolute immunity, but Allen is not entitled absolute immunity. The district court’s grant of summary judgment against Allen on the question of qualified immunity is REVERSED and REMANDED for proceedings consistent with this opinion. 12	01-03-2023	04-25-2010
https://www.courtlistener.com/api/rest/v3/opinions/4553870/	If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS NATHAN CAMPAU, by Next Friend MICHAEL UNPUBLISHED CAMPAU, August 6, 2020 Plaintiff-Appellant, v No. 347622 Oakland Circuit Court TIMOTHY RENAUD, HEATHER RENAUD, and LC No. 2018-163388-NO TIMOTHY RENAUD, Defendant-Appellees. Before: RIORDAN, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ. SHAPIRO, J. (dissenting). I respectfully dissent. This case arises out of a youth soccer game. Plaintiff Nathan Campau was the goalkeeper for one team, and defendant Timothy Renaud1 was a forward for the opposing team. A player on defendant’s team “crossed” the ball into the goal area where plaintiff was positioned. Plaintiff came out to the edge of the six-yard goalie box to catch the ball. What happened next is disputed. According to plaintiff’s father, Michael Campau, plaintiff jumped about one foot into the air, caught the ball, and landed. Michael estimated that plaintiff had possession of the ball for one or two seconds before defendant ran into plaintiff’s right side. Plaintiff also testified that he had possession of the ball before defendant ran into him as did plaintiff’s coach, who testified that plaintiff had completed the catch and was standing on the ground holding the ball when defendant collided with him. Plaintiff was seriously injured by the collision and was transported to the hospital. He suffered a fractured femur and significant knee damage requiring multiple surgeries. Michael explained, “The knee was completely disconnected from the leg and the femur was—you 1 Hereinafter, “defendant” refers to the minor, TJ Renaud, who was the actor at issue in this case. Timothy Renaud and Heather Renaud, TJ Renaud’s parents, were voluntarily dismissed as parties by plaintiff in the lower court. -1- could see the edge of the femur on his skin.” While multiple witnesses, some with years’ of experience playing and coaching the game, testified that collisions are common in soccer, none could recall an injury of this magnitude. Defendant was unharmed by the collision and able to finish the game. He testified that he was running to make a header to the goal, never saw plaintiff, jumped to make the header and collided with plaintiff in midair. He testified that plaintiff did not attempt to catch the ball but was instead trying to “punch it out” of the goal area. He admitted that he did not attempt to slow down or make any effort to avoid colliding with plaintiff. In contrast, the other two attacking players on defendant’s team were able to stop and avoid colliding with plaintiff. Several witnesses testified that the collision was the result of a “50/50 ball,” meaning that each player—until and unless the goalie had possession—had an equal chance of making a play on the ball. The evidence just reviewed demonstrates that there are genuine issues as to material facts. Some evidence supports the conclusion that plaintiff and defendant were both leaping for a 50/50 ball, and other evidence supports the conclusion that plaintiff was standing on the ground in full and obvious possession of the ball for one to two seconds and that defendant, who was looking at the ball, continued to run directly at him at full speed with no effort to avoid collision.2 In reviewing motions for summary disposition under MCR 2.116(C)(10), courts “may not weigh evidence, make determinations of credibility, or otherwise decide questions of fact.” Sabbagh v Hamilton Psychological Servs, PLC, 329 Mich. App. 324, 346; 941 NW2d 685 (2019). “The court must consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the party opposing the motion.” Liparoto Const, Inc v Gen Shale Brick, Inc, 284 Mich. App. 25, 29; 772 NW2d 801 (2009). “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich. 177, 183; 665 NW2d 468 (2003). Thus, the question before us is whether the version of the events presented by plaintiff’s evidence would allow a reasonable jury to conclude that defendant acted recklessly, i.e., he exhibited a “complete indifference toward the risk of injury.” Behar v Fox, 249 Mich. App. 314, 320; 642 NW2d 426 (2001). I believe it would. Accordingly, I conclude that the trial court erred by granting summary disposition. It is a jury’s job—not ours—to assess credibility, make factual findings, draw inferences from those findings and decide the ultimate issue in this case. /s/ Douglas B. Shapiro 2 The majority notes that defendant was not issued a red or yellow card for the collision. However, a referee’s ruling on the field does not control whether recklessness occurred. See Ritchie- Gamester v Berkley, 461 Mich. 73, 92-93; 597 NW2d 517 (1999). The referee testified that he could not recall the play and he merely assumed that because no cards were issued, one was not warranted. It is also possible that the issuance of foul cards was not a priority given that there was a seriously injured player needing immediate assistance. -2-	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/3840770/	Action by C.L. Chatfield against A.R. Zeller and Philip J. Zeller, partners doing business under the firm name and style of A.R. Zeller Co., under the Employers' Liability Act for personal injuries sustained by plaintiff in falling down an elevator shaft. At the conclusion of plaintiff's case in chief an order of voluntary nonsuit as to Philip J. Zeller was entered. From judgment for plaintiff, A.R. Zeller appeals. AFFIRMED. The plaintiff, C.L. Chatfield, was in the employ of defendant, A.R. Zeller, as a janitor. The principal part of the plaintiff's work for defendant was done on Fridays, but he was on call at other times. Defendant was the proprietor of an undertaking establishment. The building in which plaintiff was working, being a three story building, was equipped with an elevator or hoist operated by an electric motor. On Friday, April 17, 1942, while working for defendant as janitor, and thinking that the car of the elevator was in position for entry at the first floor, plaintiff opened the door thereto and attempted to turn the electric light switch therein preparatory to entering the car. In fact, the car was not at the first floor but above it. Plaintiff fell from the first floor to the pit of the elevator shaft and was injured. This action originally was brought against A.R. Zeller and his son, Philip J. Zeller, but at the conclusion of plaintiff's case in chief, an order of voluntary nonsuit as to Philip J. Zeller was entered. For that reason, no references herein will be made to Philip J. Zeller as a defendant. Defendant's first assignment of error is based upon the failure of the trial court to sustain defendant's objection to a question asked of Dr. Charles N. Holman, a physician employed in an administrative capacity as associate medical director of Multnomah County Hospital, to which plaintiff was transferred from Providence Hospital, and where he remained Page 62 from April 24, 1942, to July 23, 1942. Dr. Holman had in his hand while testifying the Multnomah County Hospital report; and he was asked: what treatment plaintiff was given at the Multnomah County Hospital and his answer was: "He was treated for a fractured vertebra and was treated by being given complete bed rest." Thereupon the following transpired: "Mr. Gooding: We object to that. `What he was treated for.' They can give the type of treatment. "The Court: Yes, if he knows from the treatment what it was for, I think, he can testify. "Mr. Sims: Q. You may state, if you know, what that treatment he received was for. "A He was treated by being placed at bed rest — on boards — boards placed upon the mattress so it will be solid — hard — and his back would be unable to move, and he was kept on his back and abdomen so the spine would be fairly well immobilized, and give the lesions a chance to heal. "Q As a physician, do you know what that treatment was for? "A Yes, sir. "Q What was it for? "A What was it for? "Q Yes. "A For a fractured vertebra." It will be noted that defendant through his counsel agreed that Dr. Holman might give the type of treatment, although upon this appeal recourse is had to the principle that an opinion of an expert must be based upon the record and not upon matteraliunde the record and it is urged that the Multnomah County Hospital report not having been received in evidence comprised no part of the record. Whatever the ruling Page 63 should have been as to the admissibility of the oral testimony, as to the type of treatment before the record thereof had been introduced, if seasonable objection had been made to such oral testimony, we think that in the absence of any such objection and because defendant through his counsel expressly consented to the giving of the oral testimony as to the type of treatment, no prejudicial error was committed by permitting Dr. Holman speaking from his own knowledge to testify as to the character of injury customarily given such treatment. Moreover, upon re-cross examination, defendant's attorney asked the doctor the following question, which he answered as follows: "Q This bed-rest that you spoke of a minute ago; isn't that a standard treatment for any back injury? "A For many back injuries it is; for many of them." In support of his first assignment of error defendant cites the following three cases: Frint v. Amato, 131 Or. 631, 284 P. 183, Vale v. State Industrial Accident Commission, 160 Or. 569, 86 P.2d 956, and McKay v. State Industrial Accident Commission, 161 Or. 191, 87 P.2d 202. The question of the admissibility of testimony is not presented in either of the foregoing cases. In the first named this court held that there was no evidence of permanency of damage. In the second and third it was held that the evidence was insufficient to sustain a finding that decedent's death was caused as claimed by plaintiff. The second assignment of error is based upon the denial of defendant's motions for an order of nonsuit Page 64 and for a directed verdict. Defendant's seventh assignment of error is based upon the failure of the trial court to instruct the jury to return a verdict for the defendant. It is argued by defendant, in reference to these assignments of error that because the defendant, A.R. Zeller, was called by plaintiff as a witness, plaintiff is bound by his testimony. The statute, however, prescribes "that when a party calls as a witness either an adverse party, or the assignor, agent, officer or employe of an adverse party, he shall not be deemed to have vouched for the credit of such witness and he may impeach the credit of such witness in the same manner as in the case of a witness produced by an adverse party." Sec. 4-709, O.C.L.A., Chap. 23, Oregon Laws 1937, p. 26. It is also urged by defendant that a close analysis of the proof submitted by plaintiff will disclose that his employment or the kind of work he was employed to perform did not involve risk or danger. This presents the question whether in a light most favorable to plaintiff, the testimony tends to support plaintiff's claim that as part of his duties as the employe of defendant he was called upon to enter the elevator or hoist, in the shaft of which he fell. Plaintiff's testimony as to his duties covers three pages and hence it must be condensed. During the later years there was routine every Friday. On Fridays plaintiff would do the mopping, clean the rubber mats and the marquee, sweep the floors, sweep the sidewalk in front of the chapel, sweep and clean the long hall, then the short hall in front of the elevator and mop that, then to the work room where they dress Page 65 the caskets, then the elevators and that would be the routine. Plaintiff testified directly that he cleaned the elevator; that he would be in the elevator but not very often; that he was shown how to run the elevator by Mr. A.R. Zeller; that the only time he had help with the elevator was when he was taking caskets up; sometimes plaintiff would take people up to show them caskets. Plaintiff said in answer to one question whether cleaning the elevator was a part of his routine duty, that he didn't know how to answer that. At that point he used the following language: "On Friday's work there was nothing specified, but if I was ordered to clean it, I gave it a thorough cleaning, and after that, why, it was only desultory." It will be noted that this language could be interpreted as meaning when expressly ordered to clean the elevator, a thorough job of cleaning would be done, otherwise the cleaning of the elevator which plaintiff did was slight, hasty or loose. As to the frequency with which he was supposed to go into that elevator and do that cleaning, plaintiff said: "It was only when I would take the notion, maybe once a month or once in two or three months I would go in there and clean." Construing plaintiff's testimony as we are required to do in considering motions for non-suit or directed verdict, that is, in a light most favorable to plaintiff, we think that no error was committed in overruling defendant's motions therefor. In the motion of defendant for non-suit as presented to the trial court four grounds were assigned: (1) failure to show any violation of duty on the part of defendant; (2) proximate cause of accident shown to have been plaintiff's negligence; (3) no showing that it was the duty of defendant to warn plaintiff that Page 66 the elevator shaft was open, and not at the floor from which plaintiff attempted to enter and that it was an unguarded opening; (4) that the contract of employment did not contemplate any work by plaintiff that involved risk or danger. The Employer's Liability Act enjoins upon the owner having charge of or responsible for, any work involving risk or danger to the employe or the public, the duty of using "every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity of preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices." Vol. 7, O.C.L.A., pp 596-597, Sec. 102-1601. An elevator is within the term machinery as used in the Employer's Liability Act. Thompson v. Union Fishermen's Co-op.P. Co., 118 Or. 436, 448, 235 P. 694. There is testimony in the record that there is a device which could be installed in defendant's elevator that would render the door incapable of being opened except when the car of the elevator was at the floor from which entry is sought to be made. In view of the testimony the jury were warranted in finding that the failure by defendant to have his elevator so equipped constituted a violation of his duty to his employes who were called upon to make use of such elevator. As above outlined there is direct testimony that plaintiff was such an employe. Contributory negligence is not a defense under the terms of the Employer's Liability Act, though it may be taken into account by the jury in fixing the damages. Sec. 102-1606, ibid. Page 67 Defendant's assignments of error numbered 3, 4 and 5, present the question whether there is any substantial testimony in the record supporting plaintiff's claim that he suffered a compression fracture of the anterior margin of the first and second lumbar vertebrae and the twelfth dorsal vertebra; and a disturbance of the bony portions of the spine. X-ray pictures of plaintiff's spine were received in evidence without objection. Referring to Defendant's Exhibit B for identification, which is one of the x-ray pictures so received in evidence, Dr. Clarence W. Smith, a witness called by defendant, was questioned and testified as follows: "Q Is there any evidence of fracture appearing in Defendant's Exhibit B for Identification? "A There is no evidence of fracture. There is evidence of compression." "Q By compression, Doctor, what do you mean? "A Narrowing of the vertebrae itself. "Q In other words, pressure from above and below, would that be it? "A There is evidence, when I say that, of fracture at the same time, or compression fracture, as we call it, with a narrowing of the vertebrae. "Q And where would you say that compression fracture is located with reference to the picture Defendant's Exhibit B for Ident.? "A There is a narrowing of the twelfth dorsal and the first lumbar vertebrae." In referring to one of the x-ray photos received in evidence as stated, Dr. Chas. N. Holman, a witness Page 68 called by plaintiff, was questioned and gave answers as follows: "Q Do you find any deformity at the conjunction of the first and second dorsal and lumbar vertebrae? "A No; nothing, except the abnormality already mentioned; that the bodies of the first and second lumbar are somewhat compressed. "Q What does that indicate? "A A compression type of fracture." It is true that the question whether the compression fracture sustained by plaintiff was of recent origin or due to a fall which plaintiff sustained several years ago is reflected in the testimony. Dr. Smith expressed the opinion that plaintiff's compression fracture was not of recent origin. We quote from Dr. Smith's testimony: "Q Well, is your opinion the same as Dr. Ree's then, that there is a compression fracture there, or is it your opinion that the man simply has arthritic lipping that broke off at the time of this fall? "A I agree with Dr. Rees, that there has been a compression fracture, but not of recent origin. "Q Would you indicate on the x-ray there where there is a separation of arthritic lipping from the twelfth dorsal vertebrae, or the first or second lumbar vertebrae? "A There is no evidence — the x-ray lots of times does not show, as most of your x-ray men will tell you, that you cannot always demonstrate a separation of arthritic lipping. "Q You wouldn't want to testify, Doctor, that this man could not have sustained fracture in this area as of April 17, 1942, would you? Page 69 "A That he would not have? "Q Yes. "A As far as I am concerned, I would say he didn't, according to the x-ray evidence, and also with Dr. Burton's records as shown at the County Hospital, as evidence, since we have compared them with the previous ones. "Q So your opinion you are giving us now is based, not upon your own examination and studies, but upon the x-ray reports that you have been given by at least two other radiologists, one Dr. Rees and the other some doctor at the County Hospital, is that right? "A No, not necessarily. I base my reports on this, what they personally have read to me, not on their reports of the comparison. "Q That is what I am getting at? "A That is right. "Q So that if you would disregard these reports received from radiologists and depend entirely upon your own manual examination, it would be your opinion, would it not, that this man did sustain traumatic injury to the back, either in the nature of a compression fracture, or of fracture of arthritic lipping in that area; is that right? "A I never heard the expression, fracture of arthritic lipping. "Q Well, breaking of it, anything you want to call it — separation of it then, if that is a nicer word. I am a lawyer, and not a doctor. "A That is true. But due to a recovery so fast, I would say that it is not a compression fracture. "A And that it is what? "Q More of a piece of arthritic lipping breaking off. "Q You are going to use the word "breaking" of arthritic lipping? Page 70 "A Separation of arthritic lipping. "Q You couldn't fracture an arthritic lipping because it is not a bony growth; isn't that right? "A No, it is a bony growth. "Q Consequently we wouldn't call it a fracture, is that right? "A You could in a sense, but we don't use it in that respect." As shown from the foregoing excerpt of Dr. Smith's testimony, the record before us presents substantial testimony in support of plaintiff's claim that he suffered "a disturbance of the bony portions of the spine." The only former injury sustained by plaintiff as shown by this record, was described by plaintiff thus: "Q Do you recall before this date ever having been hurt? Was your back ever hurt? "A Well, a little. I fell in Alaska in 1902. "Q Tell us about that. "A I was going on a casting schooner from Nome, Alaska, to Council City, and there was a storm — and the steamer was delayed, and the Captain said, `If you are in such and such a place, I will find you,' and then word came we are ready to sail and I was in the warehouse and there was a chute there, where they shoot things down, and that lid should have been turned over, and the captain said `Come on', he said `We want to sail', and I stepped into the chute and I shot — "Q Did you shoot down that chute? "A I will say so. I didn't stop on the way, I'll say. "Q Did you hurt your back? "A It must have been hurt some. I was unconscious for a while. The ship was sailing when I came to. Page 71 "Q How long were you laid up? "A I was not laid up at all. I went to work shoveling ore into cars back in Council City for the Wild Goose Mining Company." According to the testimony before us, the fall into defendant's elevator shaft kept plaintiff in the hospitals from the 17th day of April until the 23rd day of July, 1942, a period of three months and six days. The fall through the chute in Alaska, 40 years before, was followed by an immediate recovery without any hospitalization. The jury, therefore, could have found that due to such a speedy recovery, the Alaska experience did not cause a compression fracture. Dr. Smith's testimony indicates that a recovery after more than three months' treatment in hospitals is too fast to support the conclusion that the malady was a compression fracture. Accepting that statement as a guide, certainly a recovery within a few hours or days at most would prove that the patient had not then sustained a compression fracture. The presence of callous exudation is indicative of a recent fracture. The testimony upon that phase of the case is of a negative character — simply that the expert witnesses are unable to find the callous or to recognize it in the x-ray if they should see it. We are unable to agree with defendant that there is no substantial testimony supporting the issues submitted to the jury by the trial court. During the course of the Court's instruction to the Jury the Court instructed the Jury as follows (Tr. 160): "In connection with the matter of the Employer's Liability Law, if your deliberations reach that point, you are instructed that the evidence in this Page 72 case introduced to show compliance with the law and regulations with respect to the operation of elevators does not necessarily, in and of itself, satisfy the requirements of the duty to use every device, care and precaution which it was practicable to use for the protection and safety of life and limb, limited only by the necessity of preserving the efficiency of the operation of the elevator involved in this case." To the giving of a portion of instruction, the defendant, A.R. Zeller duly saved an exception as follows (Tr. 167-8): "Mr. Gooding: And we except to the instructions of the court on the Employer's Liability Act, in failing to define `practicable' on the ground and for the reason there is no evidence to support the practicability of any device that could have been installed by the defendant Zeller which would have prevented the injury. "The Court: Exception allowed." Excerpt from bill of exceptions. Addressing ourselves to the reason assigned for taking the last above mentioned exception, namely that "there is no evidence to support the practicability of any device that could have been installed by the defendant Zeller which would have prevented the injury", we quote from the testimony of Mr. William Clifford Van Cott, who was then employed by the State of Oregon as an elevator inspector, who had been so employed for two years prior thereto and prior to that was in the employ of the State of Kansas for five years and for about seven months was in the employ of the Otis Elevator Company in Kansas City: "Mr. Sims: * * Are you acquainted with or familiar with the Zeller Funeral Parlor elevator and elevator shaft? Page 73 "A I have inspected it about four times. "Q Directing my inquiry to that particular elevator, is there any device or equipment that is practicable to be used on this elevator door so that the door can not be opened except when it is at that level? "A Yes, sir. "Q Would a device of this type interfere with the normal use of the elevator? "A It would not. "Q How does this device work? What is the principle? "A Well, there is what is known as an electrical inter locking device there, for an electric contact; that prevents the car moving if the door is open, and a mechanical lock which prevents the door to open if the elevator is not at that line. "Q Does this elevator, and by that, I mean the Zeller elevator, have an electric light in the shaft that could be operated from the hall, outside the elevator? An electric switch in the hall by which you can turn it on in the elevator shaft? "A Not to my knowledge. "Q Would it be practicable to have such a light without interfering with the operation of the elevator? "A Yes. "Q Was there such a device, as you refer to, an inter-locking device, in that elevator at Zeller's? "A No." Clearly the above quoted testimony of Mr. Van Cott refutes the statement that "there is no evidence to support the practicability of any device that could have been installed by defendant Zeller which would have prevented the injury." Page 74 No error was committed by giving the instruction last above quoted. No request by defendant was presented to the trial court embodying a definition of the term, practicable. Indeed, the inherent clarity of that term is such as to render supererogatory any attempt further to clarify it. Finding no reversible error, the judgment of the circuit court is affirmed. *Page 75	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/4523492/	Opinion issued April 7, 2020 In The Court of Appeals For The First District of Texas ———————————— NO. 01-19-00016-CV ——————————— THOMAS MALONE, Appellant/Cross-Appellee V. PLH GROUP, INC. AND POWER LINE SERVICES, INC., Appellees/Cross- Appellants On Appeal from the 295th District Court Harris County, Texas Trial Court Case No. 2015-24766 MEMORANDUM OPINION Thomas Malone worked for Power Line Services, Inc. under an employment agreement that contained a provision for severance pay if Malone were to be terminated without cause. PLS terminated him without cause but did not pay him a severance. Malone sued PLS and its parent company, PLH Group, Inc., asserting multiple causes of action, including breach of contract. PLS and PLH Group counterclaimed for breach of contract and misappropriation of trade secrets. After a bench trial, the trial court entered take-nothing judgments against all parties. All parties appealed. In six issues, Malone argues the trial court made multiple errors of law and there was legally insufficient evidence to support the trial court’s judgment. He also challenges the trial court’s rulings in connection with the denial of his claims for attorney’s fees. In two issues, PLS and PLH Group argue the trial court erred in denying them equitable relief. We affirm. Background PLS constructs electrical transmission lines, builds substations and distribution systems, and provides construction and maintenance services. In 2014, Malone entered into a three-year employment agreement with PLS to be its Vice President of Operations. The employment agreement contained restrictive covenants to prohibit Malone from competing against PLS, soliciting PLS’s employees, and using or disclosing confidential company information. The employment agreement contained a provision for injunctive relief, whereby Malone agreed any breach of the restrictive covenants would cause irreparable 2 damage to PLS and that, in the event he were to breach the covenants, PLS “will be entitled as a matter of right to equitable relief, including temporary or permanent injunction, to restrain such breach.” The employment agreement also contained a provision for severance pay, providing that, if Malone were to be terminated without cause, the company would pay one year of salary as severance pay unless either of two specified events occurred. Severance pay would not be owed if Malone failed to “execute a general waiver and release of claims agreement in the Company’s customary form” within 30 days of termination without cause. It also would not be owed if Malone were to “violate any Restrictive Covenants” from his 2014 employment agreement during his period of employment or during the first year after his termination. Malone signed the 2014 employment agreement without negotiating the terms of the restrictive covenants or the severance-pay obligation. When Malone entered into the employment agreement with PLS, he had a pre-existing professional role in another company. He owned MMT, Inc., which is a minority-owned business that performed building maintenance services on federal government properties. Malone ran MMT from the same office location as PLS. PLS knew he did so. To the extent Malone’s roles at the two entities did not conflict or violate the restrictive covenants, the coexisting roles were agreeable to all parties. 3 An issue arose about MMT while Malone was employed with PLS. It came to PLS’s attention that Malone’s MMT website listed various services it could provide clients and included in that list utility service consulting work, which was a service provided by PLS. PLS approached Malone about the possible conflict. Malone stated he was not providing such services through MMT. PLS requested that Malone remove the reference to utility service consulting from the MMT website, and Malone did. In early 2015, which was about one year after entering into the employment agreement, PLS terminated Malone without cause. PLS provided Malone a general waiver and release of claims agreement—otherwise known as a separation agreement—to sign to access his severance pay. The agreement waived all claims Malone might have against PLS. It also stated that “nothing in this Agreement is intended to alter or change [Malone’s] prospective obligations pertaining to the restrictive covenants, as set forth and defined in [Malone’s 2014] Employment agreement, which [Malone] executed in connection with and in consideration for his continued employment.” Malone would not sign the agreement as written. The change Malone wanted was not the deletion of terms from the release or some other narrowing of the release. Instead, the change Malone wanted was the addition of new terms to the release. Immediately below the above quoted language, Malone sought to add 4 terms that would have altered the scope of the non-compete and confidentiality clauses in his original 2014 employment agreement. The 2014 employment agreement had provided that Malone would not directly or indirectly use or disclose any confidential or proprietary information or trade secrets of or relating to PLS, including information about PLS’s business practices, customers, potential customers, and bidding practices. And it provided that he would not directly or indirectly engage in any business located where PLS operates that provides any service that may be used as a substitute for or competes with PLS’s services or for which PLS has taken active steps to engage in or acquire. The employment agreement stated that the restricted period for the restrictive covenants would extend throughout Malone’s employment and for one year after his termination, which was the same duration as the severance payments. The terms Malone sought to include in his 2015 separation agreement would have limited Malone’s ongoing obligations under both the non-compete and the confidentiality clauses. Malone proposed adding this limitation: the restrictive covenants detailed in the 2014 employment agreement are “only intended to preclude [Malone] from using information gained from [PLS] in competition with [PLS] for electric power line, pipeline and oilfield electrical service clients, and not to preclude [Malone] from utilizing his education and experience [1] for other 5 markets or [2] for products and services in the electric power line, pipeline and oilfield electrical service markets not served by [PLS].” PLS rejected Malone’s addition. Nevertheless, Malone signed a version of the separation agreement that included his proposed language and returned the signed document to PLS, claiming he had signed the company’s release and was therefore owed severance payments. PLS refused to pay him any severance, citing (1) his failure to sign the agreement “in the Company’s customary form” and (2) its later-developed contention, based on information learned post-termination, that Malone had contacted PLS customers on behalf of his MMT entity and had forwarded PLS confidential information to his MMT email address. When PLS would not pay Malone any severance, Malone sued PLS and PLH Group for breach of contract, fraud, and other causes of action. PLS and PLH Group (collectively, PLS) counterclaimed for breach of contract and misappropriation of trade secrets. The trial court held a bench trial and entered a take-nothing judgment against all parties. Both parties appealed. Malone’s Breach-of-Contract Claim Malone argued at trial that PLS breached its contract when it failed to pay him a severance. The trial court ruled that Malone did not comply with the contractual prerequisites to access severance pay in that he did not execute a 6 waiver and release agreement “in the Company’s customary form,” as required by the 2014 employment agreement to qualify for severance pay. Malone argues he did comply because the terms he added to the separation agreement did not alter the scope of his waiver and release—which was the focus of that 2015 separation agreement—but, instead, “addressed the scope of a covenant not to compete” found in his 2014 employment agreement. A. Standard of review A trial court should construe an unambiguous contract as a matter of law, and, on appeal, the court’s ruling is subject to de novo review. Choice! Power, L.P. v. Feeley, 501 S.W.3d 199, 205 (Tex. 2016). In construing a written contract, the primary concern is to “ascertain the true intent of the parties, as expressed in the instrument.” Id. at 206. The intent of the parties usually can be discerned from the instrument itself. Id. “Contract terms are given their plain, ordinary, and generally accepted meanings unless the contract itself shows them to be used in a technical or different sense.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005). “We examine and consider the entire writing to harmonize and give effect to all provisions so that none is rendered meaningless.” Choice! Power, 501 S.W.3d at 206. We may not consider any single provision in isolation as 7 controlling but must, instead, consider all provisions in context of the entire instrument. Id. Contracts may contain conditions precedent. “A condition precedent can be either a condition to the formation of a contract or a condition to an obligation to perform an already existing agreement.” Sacks v. Hall, 481 S.W.3d 238, 249 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). The latter type of condition precedent involves an act or event “that must occur before there is a right to immediate performance or before there is a breach of a contractual duty.” Id. B. Malone’s actions disqualified him from severance pay Malone’s 2014 employment agreement provided that he would be paid a severance only if certain conditions were met, including that he timely signed a separation agreement “in the Company’s customary form.” PLS provided him a separation agreement in 2015 when it terminated him without cause. PLS’s employee, C. Lam, testified the separation agreement PLS gave Malone to sign was the company’s customary form used for all employee terminations. Malone added terms to the 2015 separation agreement before he signed it. Malone seeks to minimize the change by noting it “addressed” the scope of the 2014 employment agreement’s restrictive covenants, not the scope of the 2015 separation agreement’s waiver or release. 8 Malone fails to articulate any legal argument why, upon his termination, he was permitted to amend a form separation agreement to alter the terms of an earlier-executed employment agreement to lessen those contractual obligations. We are unaware of any theory of contract law that would support Malone’s argument that, so long as he does not delete any relevant terms in a proposed separation agreement, he may add terms to that agreement to amend an earlier- executed contract and still maintain that he executed the separation agreement “in the Company’s customary form.” The unambiguous terms of both agreements contradict his argument. First, the 2014 employment agreement states that Malone will not be paid a severance if he violates any restrictive covenant as therein defined and described. Second, the 2015 separation agreement—even after Malone’s unilateral edit—states that “nothing in this Agreement is intended to alter or change [Malone’s] prospective obligations pertaining to the restrictive covenants, as set forth and defined in [his] Employment Agreement.” All parties agree that executing a separation agreement in PLS’s customary form was a condition precedent to Malone receiving severance pay. Lam testified the form provided to Malone was PLS’s customary form. Malone agreed he would not sign it without his added language revising his contractual obligations under the 2014 employment contract. The trial court did not err in concluding Malone 9 failed to satisfy the condition precedent of executing a separation agreement “in the Company’s customary form” to qualify for severance pay. Because Malone did not comply with the condition precedent, PLS had no contractual obligation to pay a severance. Thus, the trial court did not err in concluding Malone failed to establish his breach of contract claim. See Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 283 (Tex. 1998) (“A party seeking to recover under a contract bears the burden of proving that all conditions precedent have been satisfied.”). We overrule Malone’s third and fourth issues. C. Malone’s claim for attorney’s fees on his breach-of-contract claim Because Malone did not prevail on his breach-of-contract claim, his claim for attorney’s fees under Section 38.001 on the Civil Practice and Remedies Code likewise failed. See TEX. CIV. PRAC. & REM. CODE § 38.001(8) (providing for recovery of reasonable attorney’s fees on successful breach-of-contract claim). Accordingly, we overrule as moot Malone’s fifth issue, challenging an evidentiary ruling related to his proof of attorney’s fees in support of his breach-of-contract claim. Malone’s Legal Sufficiency Argument Malone argues there is legally insufficient evidence to support the trial court’s judgment because the evidence conclusively establishes the opposite of the 10 trial court’s ruling. Specifically, he argues his evidence established he was owed a severance. We have already determined the trial court did not err in concluding Malone’s breach-of-contract claim failed because he did not comply with the condition precedent. There was legally sufficient evidence that PLS provided Malone a separation agreement in the company’s customary form and that Malone refused to execute the agreement in that form. We overrule Malone’s first issue. Malone’s TUTSA Attorney’s Fee Claim Next, Malone argues that he has a statutory right to attorney’s fees on PLS’s claim for misappropriation of PLS’s trade secrets. The Texas Uniform Trade Secrets Act provides that a “court may award reasonable attorney’s fees to the prevailing party if: (1) a claim of misappropriation [of trade secrets] is made in bad faith . . . .” TEX. CIV. PRAC. & REM. CODE § 134A.005(1). It is within the trial court’s discretion to award attorney’s fees on bad-faith claims. See Performance Pulsation Control, Inc. v. Sigma Drilling Technologies, LLC, No. 05-17-01423-CV, 2018 WL 6599180, at 1–2 (Tex. App.—Dallas Dec. 17, 2018, no pet.) (mem. op.) (noting abuse-of-discretion standard for award of attorney’s fees on bad-faith TUTSA claim). When applying the abuse-of-discretion standard, we will reverse “only if the trial court acted without reference to any guiding rules or principles such that the ruling was 11 arbitrary or unreasonable.” Id. at 2 (quoting Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007)). Malone argues an “absence of evidence” in support of PLS’s TUTSA claim “suggests bad faith.” Yet Malone offers no argument why the trial court’s decision to deny attorney’s fees on these facts was an abuse discretion. Without any argument why the denial of attorney’s fees abused the trial court’s discretion, we overrule Malone’s sixth and final issue. PLS’s Claim for Equitable Relief PLS contends the trial court abused its discretion in denying it injunctive relief for Malone’s violation of TUTSA and the confidentiality provision of Malone’s employment agreement. We consider first the alleged TUTSA violation. A. Injunctive relief for TUTSA violation PLS argues it was entitled to injunctive relief because Malone violated TUTSA by forwarding confidential PLS trade secrets to his MMT email address, thereby misappropriating confidential information. The trial court’s findings on this matter were as follows. First, the trial court found that Malone transmitted PLS’s bid log report from his PLS email account to his MMT email account. Second, it found that PLS established the transfer violated the confidentiality restrictive-covenant provision in Malone’s employment agreement. And, third, it found that PLS did not met its burden of persuasion to 12 establish by a preponderance of evidence that Malone misappropriated its trade secrets in violation of TUTSA with the transfer. Based on those findings, the trial court denied PLS the equitable relief it requested, which was an injunction. A plaintiff may recover for misappropriation of a trade secret by establishing (1) a trade secret existed, (2) the trade secret was acquired through a breach of a confidential relationship or was discovered by improper means, (3) the defendant used the trade secret without the plaintiff’s authorization, and (4) the plaintiff suffered damages as a result. Texas Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 366–67 (Tex. App.—Dallas 2009, pet. denied). Here, the third element is in dispute—whether Malone “used” the trade secret. PLS argues the element of “use” can be satisfied with a showing that Malone was in possession of its trade secret, even if he did not affirmatively use it. The cases on which PLS relies to make this argument analyzed whether to award pretrial temporary injunctive relief on misappropriation claims. See, e.g., TFC Partners, Inc. v. Stratton Amenities, LLC, No. 1:19-CV-58-RP, 2019 WL 369152 (W.D. Tex. Jan. 30, 2019). It is accurate that, in the pre-trial temporary-injunctive- relief context, a trade-secret owner is not required to prove that its ex-employee is actually using a trade secret to be entitled to temporary injunctive relief. The owner “need only prove that he is in possession of the information and is in a position to 13 use it.” Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 860 (Tex. App.—Fort Worth, no pet.); see Hughes v. Age Industries, Ltd., No. 04-16-00693-CV, 2017 WL 943423, at 5 (Tex. App.—San Antonio Mar. 8, 2017, no pet.) (mem. op.) (“Because the very purpose of an injunction is to prevent disclosure of trade secrets pending trial, an applicant is not required to show the defendant is actually using the information.”). But this is not a pretrial request for temporary injunctive relief. On the contrary, this is an appeal of a judgment entered after trial on the merits, at which PLS had the burden to establish all elements of its TUTSA claim, including “use.” In a merits trial, “[a]ctual and unauthorized use of trade secrets must be proved to prevail on a misappropriation claim.” Eagle Oil & Gas Co. v. Shale Expl., LLC, 549 S.W.3d 256, 273 (Tex. App.—Houston [1st Dist.] 2018, pet. dism’d). In this context, “use” means “commercial use for the purpose of profit,” and includes “use likely to injure the secret’s owner, enrich the defendant, or aid the defendant in its own research and development.” Id.; see Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 450–51 (5th Cir. 2007) (“[A]ny exploitation of the trade secret that is likely to result in injury to the trade secret owner or enrichment to the defendant is a ‘use’ ... [including] relying on the trade secret to assist or accelerate research or development ....”). 14 Malone admitted he forwarded the PLS bid log to his MMT email account. He testified he forwarded it from his PLS email account to his MMT email account a few minutes before 9:00 a.m. on a Monday. He explained PLS held weekly “bid log calls” at 9:00 a.m. on Mondays. The bid logs were complex and could not be easily viewed from the computer screen. So, he needed to print the reports for use during bid log calls. Malone had trouble printing from his PSL computer at times. This email was forwarded a few minutes before a 9:00 a.m. call. So, he surmised, he forwarded the report to his MMT email account, which he opened from his MMT computer, and he successful printed the report for use during the imminent meeting. Malone noted that, had he been able to print the report from his PLS email account on his PSL computer, it would have printed to the same printer, would have been used by the same person—him—and would have been physically held in the same office space, which he used for both companies, with PSL’s knowledge and consent. In a bench trial, the trial judge is the factfinder and the sole arbiter of witness credibility. Townsend v. Vasquez, 569 S.W.3d 796, 807–08 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). The trial judge was free to credit Malone’s explanation and to conclude that forwarding the PLS report to his other email account for the sole purpose of printing the PLS report for use on a PLS call in furtherance of PLS’s business did not establish the element of “use” of trade 15 secrets for a misappropriations claim. Under Malone’s explanation, the forwarding of the report did not injure PLS or enrich Malone. PLS has not established error in the trial court’s ruling that it failed to meet its burden to establish all elements of its TUTSA claim to support injunctive relief. B. Injunctive relief for continuing violation of confidentiality provision PLS argues it was entitled to injunctive relief because Malone violated the confidentiality provision of his employment agreement when he forwarded the bid logs from his PLS email account to his MMT email account, relying on a clause in that employment agreement in which Malone agreed a violation of a restrictive covenant would entitle PLS “as a matter of right to equitable relief, including temporary or permanent injunction, to restrain such breach.” Malone explained at trial that he forwarded the email minutes before a PLS bid log call so he could print the report for the PLS call. He also stated he has since looked through his emails and deleted all PLS materials. In other words, according to his testimony, Malone no longer possesses electronic versions of PLS materials. The trial court found Malone violated the confidentiality provision of his employment contract when he forwarded the PLS bid log report from his secure PLS email account to his private MMT email account. But the trial court also found PLS failed to meet its burden of persuasion to establish by a preponderance of evidence that Malone engaged in a “continuing violation” of his obligations 16 under the confidentiality provision, and, therefore, denied equitable relief. In other words, the trial court found PLS failed to establish that Malone still possessed confidential materials for which injunctive relief could provide a remedy. In a bench trial, the trial court is the factfinder and the sole arbiter of witness credibility. Townsend, 569 S.W.3d at 807–08. The trial court was free to credit Malone’s testimony, and there was sufficient evidence in Malone’s testimony to support the trial court’s finding. See id. What is more, a contracting party’s acknowledgment that the other contracting party has a right to equitable relief does not bind judicial actors or require a court to grant the equitable relief ultimately requested. Trial courts are afforded discretion in granting equitable relief. Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 428–29 (Tex. 2008). PLS cannot remove that discretion by eliciting a contractual term from Malone authorizing injunctive relief. Cf. Shoreline Gas, Inc. v. McGaughey, No. 13-07-00364-CV, 2008 WL 1747624, at 11 (Tex. App.—Corpus Christi April 17, 2008, no pet.) (mem. op.) (party seeking injunctive relief for breach of contract pointed to contract language authorizing injunctive relief but, as the intermediate appellate court noted, “pointed [the court] to no Texas case holding that an agreement such as this establishes, for injunction purposes, that remedies at law will be inadequate or that irreparable injury will necessarily be suffered”). 17 Having concluded that the trial court did not err in denying PLS injunctive relief, we overrule PLS’s two issues. Conclusion We affirm. Sarah Beth Landau Justice Panel consists of Chief Justice Radack and Justices Landau and Hightower. 18	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/3850092/	Argued October 5, 1928. In August, 1924, the defendant, Peter Coyne, so operated his auto truck that it collided with the automobile of the plaintiff, Michael J. Burns, causing him personal injury. The suit, brought a year later to recover for damages thus sustained, resulted in a verdict for plaintiff of $3,500, on which judgment was entered in April, 1927, in the Court of Common Pleas of Allegheny County. The judgment remaining unpaid and the defendant therein having no visible means of payment, the plaintiff, in December, 1927, brought this suit in equity Page 515 against Peter Coyne and Mary Coyne, his wife, seeking to charge the above judgment upon a certain house and lot located on Robinson Street, Pittsburgh, of which the wife defendant was the record owner. The defendants were married in July, 1924, and previous thereto James J. Coyne, a brother of Peter Coyne, in view of the approaching marriage, arranged for the purchase of the Robinson Street property as a gift to the bride and advanced $5,000 for that purpose. As the contract for the purchase was made prior to the marriage, Mrs. Coyne, then Miss Donnelly, suggested the title be taken temporarily in the name of Peter Coyne, which was done and it so stood when the accident above mentioned occurred. Thereafter, in December, 1924, at the suggestion of the wife, the title for the property was transferred to her and duly recorded. According to the facts found by the chancellor, which are unchallenged, Mrs. Coyne paid for the property with money given her for that purpose and the husband never had any equitable interest therein. But it is plaintiff's contention that, inasmuch as the title stood in the name of the husband at the time of the accident, with no declaration of trust of record or action of ejectment pending, it may be taken in satisfaction of the judgment. This is based on the Act of June 4, 1901, P. L. 425, section 1 of which is: "That whenever hereafter a resulting trust shall arise with respect to real property, by reason of the payment of the purchase money by one person, and the taking or making of the legal title in the name of another, if the person advancing the purchase money has capacity to contract, such resulting trusts shall be void and of none effect as to bona fide judgment or other creditors, or mortgagees of the holder of the legal title, or purchasers from such holder without notice, unless either (1) a declaration of trust in writing has been executed and acknowledged by the holder of the legal title, and recorded in the recorder's office of the county where the land is situated, or (2) unless an action of ejectment Page 516 has been begun, in the proper county, by the person advancing the money, against the holder of the legal title." From the final decree of the trial court sustaining plaintiff's contention, the defendants have appealed. In our opinion the decree entered was error. Prior to the act above quoted, a judgment bound only the interest the defendant actually had in real estate standing in his name: Sill v. Swackhammer, 103 Pa. 7; Rodgers' Lessee v. Gibson et al., 4 Yeates 110; and see Davey v. Ruffell, 162 Pa. 443; Morris v. Ziegler, 71 Pa. 450. The record might indicate extensive holdings, of which he was the ostensible owner in his own right, yet if, in fact, he was trustee thereof, the judgment bound nothing. This the legislature sought to correct by compelling a sui juris beneficiary to make the trust a matter of record, otherwise to treat the trustee as actual owner. Appellee's contention, however, goes further and holds that a failure to comply with the statute converts the trust estate into a pledge for the security of the trustee's personal liabilities, whether arising from tort or contract and whether liquidated or unliquidated. Under this contention, as suggested by appellants, the trust estate might remain liable to answer on some sealed obligation given by the trustee and not reduced to judgment for many years after the property had been turned over to the real owner. The trustee's unrecorded obligations would thus remain, in effect, secret liens upon the property so long as it continued in the hands of the beneficiary. We are sure the legislature never contemplated such a result. What the words "or other creditors" following the word "judgment" really mean is, other creditors of like rank; that is, lien creditors. This accords with the familiar rule of statutory construction, that, where specific expressions are followed by those which are general, the latter will be confined to things of the same class as the former. This question is fully discussed in Chapter XIV of Endlich on Interpretation of Statutes, beginning on page 554; and see In re Brady Page 517 Street, 99 Pa. 591, 595; Allen's App., 81 Pa. 302; Sullivan's App., 77 Pa. 107; Weiss v. Swift Co., 36 Pa. Super. 376. The other matters included must be of the same generic character: Renick v. Boyd, 99 Pa. 555; Pittsburgh v. Pittsburgh Rys. Co., 47 Pa. Super. 476. So construed, the act is reasonable and corrects the evil at which it was aimed. So far as the writer is aware, this is the first attempt, under the Act of 1901, to hold the trust estate liable for the floating debts of the trustee. Beman Thomas Co. v. White, 269 Pa. 261, holds that a judgment entered against the trustee after he had conveyed the land to the beneficiary could not be charged thereon under the Act of 1901. True, the report of that case fails to show that the debt existed during the trust, although such seems to have been the fact. See Maple-Gallia Coal Co. v. Thomas, 266 Pa. 120. Other cases construing the Act of 1901 are Rosa v. Hummel, 252 Pa. 578; Levy v. Hersberger, 249 Pa. 504, and Rochester Trust Co. v. White, 243 Pa. 469. The transfer of property by a trustee to the beneficiary is a conveyance for value (30 C. J. 690), and that in the instant case having been made before the damage suit in question was brought and over two years before judgment was entered thereon, it follows that plaintiff was not a lien creditor when the legal title vested in Mrs. Coyne and, under our construction of the statute, cannot now take her property to satisfy the judgment against the trustee. Had the latter made the conveyance to a third party, for value, it would have vested a good title and the beneficiary should not occupy a less favorable position. As we hold the statute above quoted does not extend to general creditors, it is unnecessary to decide whether one having an unliquidated claim in tort comes within that category. The decree is reversed and plaintiff's bill is dismissed at his costs. *Page 518	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3392195/	Affirmed.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3845861/	Argued November 23, 1926. As in the preceding case, Taylor et al. v. The Sesqui-Centennial Exhibition Association, the questions of substantive law raised on the present appeal have become moot by force of circumstances there explained. The appeal is dismissed.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3986306/	This is an original proceeding in which the plaintiffs are seeking to restrain and enjoin the defendant district court from authorizing the defendant Hanson, as special administrator, Page 237 to pay to one Kathryne C. Kidman money out of the estate of John Phillip Byrne to be used by her for her support and maintenance and as suit money and for counsel fees to assist her in establishing that she is the surviving widow of the deceased, and as such entitled to participate in the distribution of his estate. The following facts are alleged in the petition: (a) That John Phillip Byrne died July 22, 1931, and that he was a resident of San Juan county, Utah, in which county he left an estate having a value of more than $15,000. (b) That the deceased left a will dated October 14, 1929; that the plaintiffs in this action are named in said will as the executors thereof; and that they have filed a petition in the district court of San Juan county, for the admission of said will to probate and for their appointment as executors. (c) That on the 10th day of February, 1930, a marriage ceremony was performed between the deceased, John Phillip Byrne, and Kathryne C. Kidman, and that thereafter no will nor other provision was made by Byrne whereby Kathryne C. Kidman would be permitted to share in the estate. (d) That after the performance of said marriage ceremony, the parties thereto cohabited together as husband and wife until his death. (e) That on the 10th day of September, 1931, upon petition and without notice to the plaintiffs or to the heirs of the estate of John Phillip Byrne, Hon. George Christensen, one of the judges of the Seventh judicial district, appointed the defendant herein H. Lloyd Hanson as special administrator of said estate, and directed him to pay out of said estate to Kathryne C. Kidman, as her allowance as surviving widow of the deceased, $60 per month, until further order, and that said Hanson is now qualified and acting as such special administrator of said estate. (f) That on the 10th of November, 1931, these plaintiffs filed and presented to Hon. Dilworth Woolley, a judge of Page 238 the Seventh judicial district, a protest and application for an order restraining the said special administrator from expending any of the funds of said estate until the validity of the last will and testiment of said John Phillip Byrne, and his legal heirs are determined, but that said application was denied, and an order made by said judge directing the said special administrator to pay to Kathryne C. Kidman for counsel fees and suit money, the sum of $250 and the further sum of $60 a month during the pendency of the suit; that none of said payments have been made. (g) That in the petition to admit the will to probate and for the appointment of these plaintiffs as executors thereof filed in the district court of San Juan county, on the 9th day of November, 1931, it was alleged that the defendant entered into a purported marriage with Kathryne C. Kidman, but that the said will was not revoked for the reason that said marriage was null and void and of no effect ab initio, in that the said Kathryne C. Kidman at the time of said purported marriage was of the age of 27 years and for several years prior thereto and ever since has been subject to chronic epileptic fits, and that she was on the date of said purported marriage afflicted with syphilis, then uncured; that in the petition asking that the special administrator be restrained from expending the funds of the estate, it is also alleged that the marriage was void ab initio for said reasons. (h) That on the 3d day of December, 1931, said Kathryne C. Kidman filed in said court her protest before probate of will, but that she wholly failed to challenge or deny the affirmative allegations of her incompetency to enter into a valid marriage, and that there is no pleading on file in said district court denying said allegations. (i) That unless restrained by the court, said special administrator will carry out the orders of the district court, and that if said payments are made, neither the special administrator nor his bondsmen will be liable therefor, and if it shall be finally determined that said marriage was void Page 239 ab initio, then said Kathryne C. Kidman will have no interest in said estate, and the money paid by the special administrator will be wholly lost in the estate, to its irreparable damage and injury; that plaintiffs have no plain, speedy, and adequate remedy in the ordinary course of law. Other facts are alleged, but in the view we take, they are immaterial to a determination of those issues. To the petition and affidavit filed herein, the defendants have demurred on the ground that the said affidavit and petition does not state facts sufficient to justify the issuance of a peremptory writ of prohibition. The following sections of our statute (Comp. Laws Utah 1917) are material to a determination of the questions involved in this action: Sec. 6334. "Effect upon will of subsequent marriage. 1. If, after having made a will, the testator marries, and has issue of such marriage, born either in his lifetime or after his death, and the wife or issue survive him, the will is revoked, unless provision is made for such issue by some settlement, or unless such issue are provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation can be received. "2. If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made for her either by marriage contract, or by some written settlement showing on its face the testator's intention to substitute such contract or settlement for a provision in her favor in his will, or unless she is provided for in the will, or in any such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation must be received." Sec. 2967. "Other void marriages. Marriages prohibited and declared void: "1. With an idiot, lunatic, or person afflicted with syphilis or gonorrhea, that is uncured, or a person subject to chronic epileptic fits; provided, that the last qualification shall not apply to a female over the age of forty-five years; "2. When there is a husband or wife living from whom the person marrying has not been divorced; "3. When not solemnized by an authorized person, except as provided in § 2970; Page 240 "4. When, at the time of marriage, the male is under sixteen or the female is under fourteen years of age; "5. Between a negro and a white person; "6. Between a Mongolian and a white person; "7. Between a divorced person and any person other than the husband or wife from whom the divorce was secured, within the period allowed for an appeal, and, if an appeal is taken, until after the affirmation of the decree of divorce." In Sanders v. Industrial Commission, 64 Utah 372,230 P. 1026, 1027, section 2967 was construed with reference to subdivision 7. In that case Ruby Clark Sanders was denied compensation which she claimed to be entitled to as the widow of O.R. Sanders, who had been killed in an accident arising in the course of his employment. The record showed that she had been divorced from one Sam Saris, April 25, 1923, in Utah, and that she married Sanders at Evanston, Wyo., June 16, 1923. This court, after pointing out that a decree of divorce does not become absolute for six months after its entry, and that any marriage contracted by a party to a divorce proceeding within the time allotted for an appeal from such final decree shall be null and void, says: "The marriage was a nullity from its inception, was void ab initio, and that was simply a fact which had been presented to the Industrial Commission, which could not possibly validate the marriage or in any way affect it. No other decree of court nor finding of any other body was needed to determine that the * * * marriage ceremony was a nullity and could not be recognized as having any legal status in Utah. Such a marriage could not be ratified or validated in Utah, as claimed by plaintiff. Holding each other out as husband and wife, believing in good faith that they were legally married — all these things are of no avail in this state, where common-law marriages are not valid, and where marriages to be valid must be solemnized as by statute provided." Every reason that exists for holding void a marriage performed in violation of the provisions of subsection 7 of the statute applies with equal force to a marriage entered into in violation of the provisions of subdivision 1. As a matter of fact, there is no necessity for a construction of either of Page 241 the provisions of the statute. The language is plain. If a woman under the age of 45 is subject to chronic epileptic fits, any marriage covenant she may enter into is void. The same is true of a marriage covenant entered into by a person afflicted with syphilis. There is no language in the act from which it may be inferred that if the parties cohabit together in good faith, believing that they are husband and wife, or if they both hold each other out as husband and wife fully relying on the marriage as being valid, that the effect of the statute should be modified. Such construction would defeat the purpose of the enactment which expresses a policy of this state to prevent the marriage of and the rearing of children by such people as may pass on to succeeding generations the afflictions aimed at by the statute. We think it clear that if Kathryne C. Kidman was in fact suffering with either of the maladies named in the statute and alleged in the pleadings' before the court when the orders complained of were made, that she was not the wife of the deceased during his lifetime nor his widow after death. Unless she is in fact the surviving widow of the deceased, it is not her right to participate in the distribution of the estate. Counsel for the defendant argue that the demurrer to the petition should be sustained because marriage once shown is presumed legal until legally disproved; because the widow is morally entitled to her allowance and attorneys' fees; because she is legally entitled to her allowance and attorneys' fees until the marriage is judicially decleared invalid. In Hilton v. Roylance, a Utah case reported in 25 Utah 129,69 P. 660, 663, 58 L.R.A. 723, 95 Am.St.Rep. 821, the rule is laid down that where a man and woman are living together as husband and wife, the law will presume them to be married even against strong possibilities that they are not, or where a ceremony of marriage is shown, there will be the like presumption that it is valid unless some distinct or special fact clearly appears in the particular case to the contrary. Other cases are cited by counsel Page 242 for the defendants tending to establish that where actions are brought by a husband in his lifetime for the annulment of marriage, he should be required on application being made to assist the defendant in the preparation and presentation of her case by furnishing suit money and attorneys' fees, as in cases of divorce. But none of the cases cited are authority for the rule contended for in this case by the defendants. Here we have a case in which it appears from the undenied pleadings which were before the court at the time the order for such payments was made, that the woman to the marriage covenant upon which defendants rely was suffering from those afflictions, which make the covenant void. As in the Sanders Case, the record establishes the invalidity of the marriage. No judicial finding or decree could make the fact more plain. It is not enough to say that the performance of a marriage ceremony being admitted that its legality is presumed and that every intendment must be indulged in its favor. The office of a presumption is not to overthrow admitted facts. Where there is no pleading upon which to base a finding of fact, there is no occasion to indulge presumptions as to the existence of facts. The record before the district court established the performance of a marriage ceremony prohibited by law and void. The allegations being undenied, there was no occasion for proof, and therefore no place for the indulgence of the presumption. The authorities quite generally teach that where a man seeks the annulment of a marriage ceremony, under which he has sustained the relation of husband and wife with a woman, that the burden is upon him to establish the invalidity of the marriage, and many authorities adhere to the rule that the burden is also upon him to furnish the woman with whom he has so lived the means of support and defense necessary to protect her rights. But we think it would be carrying the rule too far to permit a woman to profit by such allowances from the estate of her claimed Page 243 husband, where, as in this case, there are allegations undenied, which if true, make her marriage a total nullity and void. To justify such allowances there should be before the court such a record as would establish at least a probability of her succeeding in the final dispostion of the case. Had the allegations of her unfitness to enter into the marriage covenant been untrue, it would have been a simple matter to have denied them and to have supported such denials with some preliminary evidence tending to establish her physical condition. Counsel have actively assisted her in the filing of many papers and in earnest legal discussion, but for some reason a little difficult to understand, they evaded the crucial point of formally denying those allegations which, if true, wholly defeat either their or her right to allowances out of the estate of the deceased. Under such conditions we do not think it a sufficient answer to say that they are entitled to allowances as a condition precedent to their being required to answer. Plaintiffs contend that under the law as laid down inFarnham v. Farnham, 227 N.Y. 155, 124 N.E. 894, Kathryne Byrne would not have been entitled to an allowance in any event for the reason that alimony and counsel fees can be allowed only during coverture and that the right ceases with death. But the allowance for the support of the claimed widow was not made by the district court in the nature of alimony. It was made in the administration of the estate under the statute providing for family support. If it should be finally established that the parties were in fact husband and wife, then it necessarily follows that the allowance is proper. But the allowance for attorney's fees and suit money must rest on a different basis. As pointed out in the Farnham Case, the right to suit money and counsel fees in actions affecting the marriage relations cease with death. The rights of the parties after the death of one spouse depend upon the law applicable to the administration of estates. Neither statute nor decisions have been called to Page 244 the attention of the court. and the writer has been unable to discover any, providing that where a person is attempting to establish his or her right to participate in the distribution of an estate, that the sinews of war should be furnished by or from the estate. In the Farnham Case, it is clearly pointed out that where such a contest as this is before the court, the opposing parties are not obligated to furnish suit money nor counsel fees to the woman who is attempting to establish her marital status. In like manner the estate should be protected from being depleted. No question is raised as to the right of the court to issue a writ of prohibtion under the facts of this case. We therefore refrain from considering it. It is therefore ordered that the temporary writ heretofore issued be made permanent upon the record as it now stands. STRAUP, ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur. CHERRY, C.J., did not participate herein.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/867214/	271 P.3d 1104 (2012) Era C. NUNEZ, as personal representative of the Estate of LINDA JOYCE BROWN, Plaintiff/Appellee, v. PROFESSIONAL TRANSIT MANAGEMENT OF TUCSON, INC., an Arizona corporation; and Grace Zoellner, a single woman, Defendants/Appellants. No. CV-11-0186-PR. Supreme Court of Arizona, En Banc. February 23, 2012. 1105 Law Office of William D. Nelson, Esq. by William D. Nelson, Tucson, and Knapp & Roberts, P.C. by David L. Abney, Scottsdale, Attorneys for Era C. Nunez. Snell & Wilmer L.L.P. by William N. Poorten, III, Andrew M. Jacobs, Daniel P. Wierzba, Tucson, Attorneys for Professional Transit Management of Tucson, Inc. and Grace Zoellner. OPINION HURWITZ, Vice Chief Justice. ¶ 1 The issue in this negligence action is whether a common carrier has the duty to exercise the highest degree of care practicable under the circumstances or rather only the duty to exercise reasonable care. We hold that the general negligence standard reasonable care under all the circumstancesapplies. I. ¶ 2 On May 2, 2008, Linda Brown boarded a Tucson city bus operated by SunTran. Brown was confined to a wheelchair. The bus driver, Grace Zoellner, secured the wheels to the bus floor. After the bus resumed its trip, a car abruptly stopped in front of it. Zoellner braked sharply and Brown was thrown from her wheelchair, sustaining serious injuries. ¶ 3 Brown[1] sued SunTran and Zoellner (collectively, "SunTran"), alleging that Zoellner was negligent both in driving the bus and in failing to fasten Brown's seatbelt. Sun-Tran argued that Brown's refusal to wear a seatbelt caused her injury. SunTran also argued that Brown's injuries were caused by the negligence of the driver of the car that stopped in front of the bus. ¶ 4 SunTran requested the judge to instruct the jury that common carriers have a duty to passengers to exercise reasonable care under the circumstances. The judge rejected that instruction, instead instructing as follows: Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. Negligence is the failure to act as a reasonably careful person would act under the circumstances. 1106 The DefendantsProfessional Transit Management of Tucson, Inc. and Grace Zoellneras common carriers of passengers for hire, are bound to exercise the highest degree of care practicable under the circumstances. A failure to exercise the highest degree of care under the circumstances is negligence. ¶ 5 The jury awarded $186,777.87 in compensatory damages, but found Brown 30% at fault and Zoellner 70% at fault. The jury allocated no fault to the driver of the car that stopped in front of the bus. ¶ 6 The court of appeals affirmed, finding that this Court's case law required the highest degree of care instruction. Nunez v. Prof'l Transit Mgmt. of Tucson, Inc., 2 CA-CV 10-0201, 2011 WL 1998433, at 1-2 ¶¶ 1, 10 (App. May 18, 2011) (mem. decision). ¶ 7 We granted SunTran's petition for review to address the appropriate standard of care for common carriers. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003). II. A. ¶ 8 Under the English common law, common carriers were bailees when transporting goods, and as such were strictly liable for damage to the goods. 2 Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick, The Law of Torts § 260 at 27 (2d ed. 2011); Robert J. Kaczorowski, The Common-Law Background of Nineteenth-Century Tort Law, 51 Ohio St. L.J. 1127, 1130 n.14 (1990). But because passengers, unlike goods, had some ability to protect themselves, common law courts rejected strict liability in negligence actions by passengers. See, e.g., Aston v. Heaven, (1797) 170 Eng. Rep. 445, 445-46 (K.B.). Instead, courts imposed a duty of the highest degree of care practicable under the circumstances. See id. ¶ 9 The rationale for applying a heightened standard of care to common carriers was that passengers depended upon the carrier to protect them from hazardous conditions that were frequently encountered in the early days of public transportation. See Dobbs et al., supra, § 262 at 31. Early American decisions adopted the heightened standard of care, the so-called "common carrier rule." See, e.g., Stokes v. Saltonstall, 38 U.S. 181, 191, 13 Pet. 181, 10 L.Ed. 115 (1839); Chicago & A.R. Co. v. Pillsbury, 123 Ill. 9, 14 N.E. 22, 23-26 (1887); Fairchild v. Cal. Stage Co., 13 Cal. 599, 605, 1859 WL 1069 (1859); Ingalls v. Bills, 50 Mass. 1, 12-13 (1845). This approach remains in widespread use. See, e.g., Fieve v. Emmeck, 248 Minn. 122, 78 N.W.2d 343, 347-48 (1956); Speed Boat Leasing, Inc. v. Elmer, 124 S.W.3d 210, 212 (Tex.2003). ¶ 10 Opinions of this Court have also long repeated the common carrier rule. See S. Pac. Co. v. Hogan, 13 Ariz. 34, 37-38, 108 P. 240, 241 (1910); Atchison, Topeka & Santa Fe Ry. Co. v. France, 54 Ariz. 140, 145, 94 P.2d 434, 436 (1939); Nichols v. City of Phoenix, 68 Ariz. 124, 130, 202 P.2d 201, 204 (1949); Napier v. Bertram, 191 Ariz. 238, 242 n. 9, 954 P.2d 1389, 1393 n. 9 (1998). On analysis, however, past Arizona decisions have been less than entirely enthusiastic in embracing the rule. ¶ 11 In Atchison, the trial court instructed the jury that a railroad was required "to exercise the highest degree of care for the safety of its passengers which is practicable under the circumstances." 54 Ariz. at 144, 94 P.2d at 436. This Court, noting its agreement with the "majority" rule, stated that the instruction "correctly state[d] the duty of a carrier for hire to its passengers and that a failure to exercise the highest degree of care practicable under the circumstances amounts to negligence." Id. at 144, 145, 94 P.2d at 436. Atchison nonetheless reversed a judgment in favor of the plaintiffs because the trial court failed to give the standard negligence instruction requested by the railroad, which read: You are instructed that negligence is the omission to do something which a reasonably prudent man, guided by those considerations which usually regulate the conduct of human affairs would do; or is the doing of something which a prudent and reasonable man, guided by those same considerations 1107 would not do; it is not intrinsic or absolute, but is always relative to the surrounding circumstances of time, place and persons. Id. at 143-44, 94 P.2d at 436. ¶ 12 This Court found that this "reasonably prudent man" instruction "correctly states the law," and that failure to give it "tended to mislead the jury, by failing to point out sufficiently to it the limitations on the care required... of a common carrier." Id. at 145, 94 P.2d at 437. The Court emphasized that "the duty of a prudent and reasonable man is... always relative to the surrounding circumstances of time, place and persons, and this applies to common carriers, as it does to all others." Id. ¶ 13 Atchison is hardly a model of analytical consistency. On the one hand, the Court found that the "highest degree of care" instruction "correctly" stated a common carrier's duty, but on the other, reversed for failure to give an ordinary "reasonable care" negligence instruction. Atchison's ruling could be read as merely fact-specific. See id. ("Under some circumstances this failure to give the suggested instruction, even though, as we have said, it correctly states the law, might not have been prejudicial, but we think in the present case it was."). But one week later, in another personal injury action by a passenger against a railroad, this Court cited the instruction requested by the railroad in Atchison as "an excellent definition of negligence." S. Pac. Co. v. Buntin, 54 Ariz. 180, 185, 94 P.2d 639, 641 (1939). ¶ 14 Subsequent opinions of this Court reciting the "highest degree of care" language did not involve jury instructions. See Napier, 191 Ariz. at 243-44, 954 P.2d at 1394-95 (discussing whether common carriers have a duty to carry uninsured motorist insurance); Nichols, 68 Ariz. at 129, 135-39, 202 P.2d at 204, 208-11 (discussing proximate cause). Indeed, no Arizona opinion "holds that it is reversible error to instruct the jury that a common carrier merely owes a duty of reasonable care toward its passengers." Block v. Meyer, 144 Ariz. 230, 234, 696 P.2d 1379, 1383 (App.1985). Citing Atchison, Block found "no error in the trial court's failure to instruct the jury that a common carrier owes its passengers the highest standard of care practicable, or words to that effect." Id. The court of appeals cited with approval Prosser's comment that "[t]echnically the `high degree' instruction is incorrect." Id. at 236, 696 P.2d at 1385 (citing William L. Prosser, Law of Torts § 34 at 181 (4th ed. 1971), and Restatement (Second) of Torts ("Second Restatement") § 314 (1965)). ¶ 15 Seventeen years later, the court of appeals upheld a "trial court's refusal to apply the common carrier doctrine because ... it adds no useful element to the ordinary negligence standard of reasonable care under the circumstances." Lowrey v. Montgomery Kone, Inc., 202 Ariz. 190, 195 ¶ 20, 42 P.3d 621, 626 (App.2002). Lowrey found persuasive the reasoning of other courts that rejected the common carrier doctrine, id. at 196 ¶¶ 21-23, 42 P.3d at 627 (citing Bethel v. N.Y.C. Transit Auth., 92 N.Y.2d 348, 681 N.Y.S.2d 201, 703 N.E.2d 1214, 1215-16 (1998) and Sebastian v. District of Columbia, 636 A.2d 958, 962 (D.C.1994)), noting that an attempt to explain the common carrier doctrine to a jury would be riddled with the prospect of confusion.... To hold that a common carrier must exert more than reasonable care under the circumstances not only serves no useful purpose; it is a hard concept to make sense of and one very likely to be misunderstood. Id. at 196 ¶ 23, 42 P.3d at 627. The court of appeals therefore concluded "that the time has come to discard the notion that a common carrier bears a higher duty toward its passengers than that of reasonable care under all of the circumstances." Id. ¶ 16 The decision below cited Lowrey, but suggested that Division One "lacked the authority" to abandon the common carrier doctrine in light of this Court's previous decisions. Nunez, 2011 WL 1998433, at 2 ¶ 10 (citing Napier, 191 Ariz. at 242 n. 9, 954 P.2d at 1393 n. 9). We do not today criticize that conclusion; as noted above, Atchison and its progeny are not entirely clear, and several of our opinions (albeit in dicta) have described the common carrier doctrine as settled law. See, e.g., Nichols, 68 Ariz. at 130, 139, 202 P.2d at 204, 210; Lunsford v. Tucson Aviation Corp., 73 Ariz. 277, 280, 240 P.2d 545, 1108 546 (1952). But whether a highest degree of care instruction is appropriate in a passenger's negligence action against a common carrier is squarely presented in this case, and we now turn to that question. B. ¶ 17 In general, "every person is under a duty to avoid creating situations which pose an unreasonable risk of harm to others." Ontiveros v. Borak, 136 Ariz. 500, 509, 667 P.2d 200, 209 (1983) (emphasis added) (quoting Nazareno v. Urie, 638 P.2d 671, 674 (Alaska 1981)). Because common carriers have a special relationship with passengers, their duties traditionally have extended beyond the mere obligation not to create a risk of harm. See Second Restatement § 314A(1)(a) and cmt. b. The special relationship imposes a duty to avoid harm from "risks created by the individual at risk as well as those created by a third party's conduct." Restatement (Third) of Torts ("Third Restatement"): Liability for Physical Harm § 40 cmt. g (Proposed Final Draft No. 1 2007);[2]see also Ft. Lowell-NSS Ltd. P'ship v. Kelly, 166 Ariz. 96, 101, 800 P.2d 962, 967 (1990) (noting that common carriers "are often held to possess an affirmative duty to guard the safety of their [passengers]"); Second Restatement § 314A cmt. d. In addition, a common carrier owes a duty to render passengers "first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others," regardless of whether the carrier created the risk of harm. Second Restatement § 314A(1)(b). ¶ 18 But, "[t]he existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case." Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 10, 150 P.3d 228, 230 (2007). Although they impose broader duties on common carriers than on ordinary actors, the Restatements require only the exercise of "reasonable care." Second Restatement § 314A cmt. e (stating that even with special relationships and affirmative duties "[t]he duty in each case is only one to exercise reasonable care under the circumstances"); Third Restatement § 40 cmt. d. ¶ 19 Brown argues that a heightened standard of care is required because passengers entrust their safety to common carriers. But people entrust their safety to others in many different contexts, such as undergoing surgery. In the medical context, however, the common law imposed upon the surgeon only the duty to act as a reasonable surgeon would under the circumstances. See Acton v. Morrison, 62 Ariz. 139, 142, 155 P.2d 782, 783 (1945).[3] The standard of reasonable care "may be modified by the surrounding circumstances of time, place and persons." Buntin, 54 Ariz. at 185, 94 P.2d at 641; see also Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 357, 706 P.2d 364, 369 (1985) ("What is reasonable on the one hand or negligent on the other will depend on the circumstances."); Second Restatement § 283. It is difficult to see why we should impose upon the common carrier a duty to do more than a reasonable carrier would do under the facts of each particular case. See Pannu v. Jacobson, 909 A.2d 178, 194 (D.C.2006) (stating that the standard of care for common carriers and doctors is the course of action that a reasonably prudent actor within the same field would have taken). ¶ 20 Brown also argues that most jurisdictions still adhere to the "highest standard of care" doctrine for common carriers. But we, of course, are not bound by decisions of other state courts in advancing our common law. Indeed, as one court has aptly noted, even cases that continue to "speak[] of a common carrier as being held to the highest degree of care," in fact subject carriers "to essentially the same standard as any other alleged tortfeasor, i.e., an obligation to exercise due care." Sebastian, 636 A.2d at 962 (internal quotation marks and citation omitted); see 1109 also Wash. Metro. Area Transit Auth. v. Jeanty, 718 A.2d 172, 175 (D.C.1998) (harmonizing cases articulating standards of care for common carriers). ¶ 21 The New York Court of Appeals has expressly rejected the common carrier doctrine, instead adopting the general standard of reasonable care under the circumstances. Bethel, 681 N.Y.S.2d 201, 703 N.E.2d at 1218.[4] As Bethel noted, one underpinning of the doctrinethe 19th century perception that the steam railroad and other instruments of public transport were "ultrahazardous"is no longer accurate. Id., 681 N.Y.S.2d 201, 703 N.E.2d at 1216. But more importantly, Bethel correctly recognized that any dangers in common carriage and the passenger's dependence upon the carrier can appropriately be considered under the general standard of reasonable care under the circumstances, which "necessarily takes into account the circumstances with which the actor was actually confronted," including "any special relationship of dependency between the victim and the actor." Id. ¶ 22 As the Lowrey court did, we find Bethel persuasive. See Lowrey, 202 Ariz. at 196 ¶ 23, 42 P.3d at 627. We particularly agree with the court's observation in Lowrey that "an attempt to explain the common carrier doctrine to a jury would be riddled with the prospect of confusion." Id. Our cases confirm that proposition. Atchison found a heightened degree of care instruction misleading, and we have since cautioned that "[t]he law does not require [carriers] to exercise all the care, skill, and diligence of which the human mind can conceive." Lunsford, 73 Ariz. at 280, 240 P.2d at 547. The dividing line between the exercise of reasonable care under all the circumstances and the common carrier doctrine is thus both practically and intellectually elusive. We have also emphasized that common carriers are not insurers of the safety of their passengers. Alexander v. Pac. Greyhound Lines, Inc., 65 Ariz. 187, 193, 177 P.2d 229, 233 (1947). But, by requiring that a carrier exercise more care than that reasonable under the circumstances of the case, the "highest degree of care" instruction approaches the insurance standard, as virtually every accident could be avoided if the carrier acted differently in some way. ¶ 23 We therefore conclude that the appropriate standard of care in negligence actions by passengers against common carriers is the objective, reasonable person standard in traditional negligence law. This "standard provides sufficient flexibility, and leeway, to permit due allowance to be made... for all of the particular circumstances of the case which may reasonably affect the conduct required." Second Restatement § 283 cmt. c. The finder of fact should consider that the defendant is a common carrier for hire when determining whether the carrier "met the standard of carethat is, whether there has been a breach of duty." Gipson, 214 Ariz. at 143 ¶ 10, 150 P.3d at 230. But if the carrier has acted with reasonable care in light of all the circumstances, it has discharged its duty to its passengers. III. ¶ 24 Brown argues that abandonment of the common carrier doctrine would violate the "anti-abrogation" clause of the Arizona Constitution, which provides that "[t]he right of action to recover damages for injuries shall never be abrogated." Ariz. Const. art. 18, § 6. She reasons that the doctrine was part of the English common law and adopted in Arizona before statehood in Hogan, 13 Ariz. at 37-38, 108 P. at 241, and that we therefore may not abandon the "highest degree of care" standard. ¶ 25 We reject the argument. We have repeatedly noted that the legislature "is entitled to regulate common law tort actions," as long as a claimant is left "`a reasonable possibility of obtaining legal redress.'" State Farm Ins. Cos. v. Premier Manufactured 1110 Sys., Inc., 217 Ariz. 222, 229 ¶ 32, 172 P.3d 410, 417 (2007) (quoting Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 18, 730 P.2d 186, 195 (1986)). Application of the traditional negligence standard of care to actions against common carriers does not violate the anti-abrogation clause because it does not "prevent the possibility of redress for injuries; the claimant remains entirely free to bring his claim against all responsible parties." Id. at 229 ¶ 34, 172 P.3d at 417. Today's decision does not prevent a passenger from seeking damages caused by the negligence of a common carrier; we merely clarify that the carrier, like others, departs from its duty to the passenger only when acting unreasonably under all the circumstances. ¶ 26 Our anti-abrogation jurisprudence normally asks whether a statute unconstitutionally deprives a litigant of access to the courts. See, e.g., id. at 228-29 ¶ 32, 172 P.3d at 416-17. Brown argues that by departing from the common carrier rule, this Court itself would violate the anti-abrogation clause. But, if the legislature may regulate common law tort actions as long as reasonable legal redress remains available for those claiming injury, see id., the Constitution imposes no greater restriction when this Court exercises its "obligation to participate in the evolution of tort law so that it may reflect societal and technological changes," Law v. Superior Court, 157 Ariz. 147, 156, 755 P.2d 1135, 1144 (1988). "Just as the common law is court-made law based upon the circumstances and conditions of the time, so can the common law be changed by the court when conditions and circumstances change." Fernandez v. Romo, 132 Ariz. 447, 449, 646 P.2d 878, 880 (1982). IV. ¶ 27 Brown also argues that if we abandon the common carrier rule, we should do so only prospectively. The general rule, however, is that "Arizona appellate opinions in civil cases operate both retroactively and prospectively." Law, 157 Ariz. at 160, 755 P.2d at 1148 (supplemental opinion). The presumption in favor of retroactive application may be overcome if three conditions are present: 1. The opinion establishes a new legal principle by overruling clear and reliable precedent or by deciding an issue whose resolution was not foreshadowed; 2. Retroactive application would adversely affect the purpose behind the new rule; and 3. Retroactive application would produce substantially inequitable results. Id. ¶ 28 Those conditions are not satisfied here. Far from overruling "clear and reliable precedent," our decision was foreshadowed by Lowrey, an opinion not a decade old. Indeed, as noted above, no decision of this Court has required a heightened standard of care instruction in a common carrier tort action. Our decision today serves to avoid jury instructions that would be quite difficult to apply, and retroactive application would neither adversely affect this goal nor produce substantially inequitable results. V. ¶ 29 For the reasons above, we vacate the memorandum decision of the court of appeals and remand to the superior court for a new trial. CONCURRING: REBECCA WHITE BERCH, Chief Justice W. SCOTT BALES, A. JOHN PELANDER, and ROBERT M. BRUTINEL, Justices. NOTES [1] Before trial, Brown died from causes unrelated to this incident. Her personal representative, Nunez, was substituted as plaintiff. We refer to the plaintiff as Brown in this opinion for simplicity. [2] "With the exception of Comment d to § 27 and Comment a to § 28, the substance of Proposed Final Draft No. 1 (issued on April 6, 2005), has been finally approved by both the [American Law] Institute's Council and its membership." Third Restatement § 40 (Proposed Final Draft No. 1 2007) Note. [3] The standard of care in medical malpractice cases has now been codified in A.R.S. § 12-563. [4] See also Union Traction Co. of Ind. v. Berry, 188 Ind. 514, 121 N.E. 655, 657 (1919) (stating that the appropriate standard of care for common carriers is what "a person of reasonable or ordinary prudence would exercise in view of all the conditions and circumstances"); Frederick v. City of Detroit, 370 Mich. 425, 121 N.W.2d 918, 923 (1963) (concluding that a carrier owes its passengers "the duty to exercise such diligence as would be exercised in the circumstances by a reasonably prudent carrier").	01-03-2023	05-11-2013
https://www.courtlistener.com/api/rest/v3/opinions/4553874/	If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS BENJAMIN JAIME, UNPUBLISHED August 6, 2020 Plaintiff-Appellant, V No. 349901 Saginaw Circuit Court VILLAGE OF ST. CHARLES, LC No. 18-036279-CD Defendant-Appellee. Before: METER, P.J., and BECKERING and O’BRIEN, JJ. PER CURIAM. In this discrimination action, plaintiff, Benjamin Jaime, appeals as of right an order granting summary disposition in favor of defendant, the Village of St. Charles. On appeal, plaintiff argues that there were issues of material fact that should have precluded the order for summary disposition; namely, defendant’s inconsistent reasons for declining to promote plaintiff. We affirm. I. FACTUAL BACKGROUND This case arises out of defendant’s decision to not hire plaintiff for the position of police chief, and instead to hire John Meehleder. Plaintiff is a Hispanic male with cancer, who has an associate’s degree in criminal justice and began working for the department in a part-time position in 2008. Plaintiff was later hired to a full-time position. During plaintiff’s tenure as a full-time officer, he was disciplined for several incidents, and at one point, had to sign a last chance agreement. Prior to his employment with defendant, plaintiff’s only supervisory experience was over inmates at a prison and operating a car wash. In contrast, Chief Meehleder, a Caucasian, nondisabled male, had worked for several years as a sergeant in the Saginaw City Police Department. In 2014, plaintiff was diagnosed with cancer. Plaintiff did not request any accommodations, and took eight weeks off work before returning without any restrictions. In November 2015, Matthew Lane became the Village Manager. Shortly after beginning, Lane asked plaintiff how to pronounce his name. Plaintiff explained that it should be pronounced ‘xaime,’ but that many people incorrectly pronounce it ‘dʒeɪmi.’ In August 2017, prior to the opening of the -1- police chief position, plaintiff discussed his cancer with Lane after the Saginaw County Sheriff announced that he was removing his employees from the St. Charles substation where the St. Charles police department was also housed. Plaintiff was named Acting Chief in August 2017 and Interim Chief in December 2017. Chief Meehleder, however, was one of Lane’s top choices to fill the position of police chief permanently, despite Chief Meehleder’s lack of interest in the position. Former Chief Rabideau spoke with Lane and they agreed that plaintiff should not be appointed. Chief Rabideau claimed to have told plaintiff that he was not qualified for the position, but plaintiff claimed that Chief Rabideau merely said that Lane would not hire plaintiff. Three people were interviewed, including plaintiff. Lane initially stated that every candidate that was interviewed was qualified, but later said that plaintiff was not qualified. While answering one question during his interview, plaintiff stated that a person could lie and have integrity, which prompted concern from multiple members of the Village Council, including one who wrote “Yikes!!” on the evaluation sheet. In another question, a council member intended to ask about body cameras, but instead said, “You want to describe your body with the body police cameras[?]” Following the three interviews, Lane chose to hire Randall Praski. Plaintiff claims that Lane told him that Praski was chosen because he thought it would be best to hire outside of the department. Lane rescinded the offer after receiving Praski’s background check, and subsequently offered the job to the third candidate who was interviewed, Michael Hosking, who declined it. Despite the fact that plaintiff was the only remaining candidate, Lane did not offer him the position. Instead, Lane asked Chief Meehleder to consider accepting the position. Ultimately, Lane hired Chief Meehleder without conducting a formal interview or background check. Plaintiff filed a complaint against defendant alleging racial and disability discrimination in violation of the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., and the Persons with Disabilities Civil Rights Act (PWDCRA), MCL 31.1101 et seq. Plaintiff claimed that defendant discriminated against him by refusing to hire him as police chief because he was Hispanic and had cancer. Defendant filed for a motion for summary disposition under MCR 2.116(C)(10), arguing that summary disposition was warranted because plaintiff failed to provide any admissible evidence of discrimination, apart from the allegations in his pleadings. Further, plaintiff’s work history and interview performance made him a poor candidate compared to Chief Meehleder. Plaintiff responded by arguing that Lane’s inconsistent statement that all candidates who were interviewed were qualified, yet Lane later stated that plaintiff was not qualified created an issue of fact. Additionally, there was a question of whether any of the rationales provided by Lane actually motivated defendant’s decision to not hire plaintiff. Following a hearing, the trial court granted defendant’s motion for summary disposition, concluding that plaintiff failed to establish a prima facie case of disability or race discrimination. The court held that plaintiff failed to meet the fourth element for his prima facie case for race discrimination, and to establish any connection between plaintiff’s disability and defendant’s decision to hire Chief Meehleder over plaintiff. This appeal follows. -2- II. DISCUSSION On appeal, plaintiff argues that the trial court erred by determining that plaintiff had not satisfied the prima facie case for race and disability discrimination, and that defendant’s inconsistent reasons for not hiring plaintiff created an issue of fact. We agree that plaintiff satisfied the prima facie cases for race and disability discrimination, but disagree that defendant’s inconsistent reasons created an issue of fact. This Court reviews a trial court’s decision to grant or deny summary disposition de novo. Burkhardt v Bailey, 260 Mich App, 636; 680 NW2d 453 (2004). Defendant moved for summary disposition under MCR 2.116(C)(10). “A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.” Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999). “In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.” Quinto v Cross & Peters Co, 451 Mich. 358, 362; 547 NW2d 314 (1996). “Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.” Maiden, 461 Mich. at 120. A. PRIMA FACIE CASE OF RACE DISCRIMINATION Plaintiff argues that the trial court erred by folding the McDonnell Douglas1 burden shifting analysis into plaintiff’s prima facie case, and that plaintiff did establish his prima facie case for race discrimination. We agree. Plaintiff brought suit under MCL 37.2202(1)(a), which states that an employer shall not “[f]ail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment . . . because of race . . . .” There are two ways for a plaintiff to prove the prima facie case of race discrimination. The first is to provide direct evidence of discrimination. Hazle v Ford Motor Co, 464 Mich. 456, 462; 628 NW2d 515 (2001). If, as in this case, there is no direct evidence, the plaintiff must use the McDonnell Douglas framework. Id. Under this framework, the plaintiff must establish a prima facie case by showing that (1) he belongs to a protected class, (2) he suffered an adverse employment action, (3) he was qualified for the position, and (4) the job was given to another person under circumstances giving rise to an inference of unlawful discrimination. Id. at 463, citing Lytle v Malady (On Rehearing), 458 Mich. 153, 172-173; 579 NW2d 906 (1998). If the plaintiff does so, the burden shifts to the defendant who must provide a legitimate, non- discriminatory reason for the adverse decision that was made. Hazle, 464 Mich. at 463-464. After that, the burden shifts back to the plaintiff to prove that the provided reason was a pretext for discrimination. Id. at 464-466. In Hazle, the plaintiff, a black woman, brought suit after being passed over for a promotion in favor of a white woman. Id. at 460. She was told during the hiring process, and again at the end of it, that she was qualified for the position that she was seeking, and she was also interviewed 1 McDonnell Douglas Corp v Green, 411 U.S. 792; 93 S. Ct. 1817; 36 L. Ed. 2d 668 (1973). -3- for the position. Id. at 459-460. The Supreme Court held that the plaintiff met the third element because she was told during the interview process that she was qualified, and she was able to meet the fourth element by presenting evidence that she was passed over in favor of a less qualified white woman. Id. at 471-472. The plaintiff had some college credits that were relevant to the position whereas the woman who was hired did not. Id. at 472. Similarly to Hazle, plaintiff is a member of a protected race and was passed over for a promotion, so he clearly meets the first two elements of the prima facie case. Id. at 467. Also, similarly to Hazle, plaintiff met the third element because he was able to provide evidence that he was qualified for the position; specifically, Lane’s statement in his deposition that everyone who was interviewed was qualified. Id. at 463. Plaintiff also met the fourth element. The Hazle Court stated that to prove the fourth element, a plaintiff “must present evidence that the employer’s actions, ‘if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.’ ” Id. at 470-471, quoting Texas Dep’t of Community Affairs v Burdine, 450 U.S. 248, 253; 101 S. Ct. 1089; 67 L. Ed. 2d 207 (1981). Plaintiff correctly argues that the unique circumstances surrounding the decision to hire Chief Meehleder over plaintiff could lead to such an inference of discrimination, whereas, defendant states that the mere hiring of a white man over a Hispanic man is not enough to create such an inference. Defendant set out a hiring process and when faced with the fact that plaintiff was the only remaining candidate, departed from the process and hired Chief Meehleder, who was not a member of a protected class and had not applied for the position. If otherwise unexplained, this decision, viewed in the light most favorable to plaintiff, could lead to an inference that defendant’s decision not to hire plaintiff was based on impermissible factors. Accordingly, plaintiff has proven the prima facie case; however, under the McDonnell Douglas burden shifting analysis, this merely means that the burden of production shifts to defendant to provide a legitimate, nondiscriminatory reason for his decision. B. PRIMA FACIE CASE OF DISABILITY DISCRIMINATION Plaintiff argues that the trial court erred by folding the McDonnell Douglas burden shifting analysis into plaintiff’s prima facie case, and that plaintiff did establish his prima facie case for disability discrimination. We agree. Plaintiff brought suit under the PWDCRA, which states that an employer shall not “[f]ail or refuse to hire, recruit, or promote an individual because of a disability or genetic information that is unrelated to the individual’s ability to perform the duties of a particular job or position.” MCL 37.1202(1)(a). Just as with race discrimination cases, disability discrimination cases follow the McDonnell Douglas burden shifting analysis when there is no direct evidence of discrimination. Peden v City of Detroit, 470 Mich. 195, 205; 680 NW2d 857 (2004). First, a plaintiff must prove the three elements of the prima facie case: “(1) that he is [disabled] as defined in the act, (2) that the [disability] is unrelated to his ability to perform his job duties, and (3) that he has been discriminated against in one of the ways delineated in the statute.” Id. at 204. The PWDCRA defines a disability as meeting at least one of the following requirements: -4- (i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: (A) . . . substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. * * * (ii) A history of a determinable physical or mental characteristic described in subparagraph (i). (iii) Being regarded as having a determinable physical or mental characteristic described in subparagraph (i). [MCL 37.1103(d).] Cancer can be a disability as long as it substantially limits one or more major life activities. MCL 37.1103(d)(i)(A). It is undisputed that plaintiff had cancer which required him to take eight weeks off of work in 2014. Therefore, he fulfilled the first element of the prima facie case which required a history of a disability. Because plaintiff was already working in the position, it is also unlikely that the disability would prevent plaintiff from performing his duties, which means that he fulfilled the second element. Plaintiff fulfilled the third element of the prima facie case by asserting that defendant failed to promote plaintiff to chief of police because of plaintiff’s disability. MCL 37.1202(1)(a). Defendant and the trial court both stated that plaintiff had not fulfilled the prima facie case because he was not able to establish the causal relationship between his disability and the adverse employment decision. This is not necessary for the prima facie case. Instead, the issue of causation only becomes relevant in the McDonnell Douglas analysis. “Because a prima facie case under the McDonnell Douglas test creates a presumption of unlawful discrimination, causation is presumed.” Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124,134-135; 666 NW2d 186 (2003). Once the plaintiff has established the prima facie case, the burden shifts to defendant, who “may rebut the presumption of causation by articulating a legitimate, nondiscriminatory reason for the employment decision.” Id. at 135. Accordingly, the issue of causation is a presumptive part of the prima facie case. Thus, the trial court erred by considering the issue of causation within its analysis of plaintiff’s prima facie case. C. PRETEXT FOR DISCRIMINATION Plaintiff argues that defendant’s inconsistent reasons created a genuine issue of material fact concerning whether defendant’s preferred reasons were pretext for discrimination. We disagree. After a plaintiff establishes the prima facie case for discrimination, the burden shifts to the defendant to provide a legitimate non-discriminatory reason for the adverse employment decision. Hazle, 464 Mich. at 462-466. The burden then shifts back to the plaintiff to prove that the stated reasons were pretext for discrimination. Id. A plaintiff can establish that a reason is pretext “(1) -5- by showing the reasons had no basis in fact, (2) if they have a basis in fact, by showing that they were not the actual factors motivating the decision, or (3) if they were factors, by showing that they were jointly insufficient to justify the decision.” Major v Newberry, 316 Mich. App. 527, 541; 892 NW2d 402 (2016). Furthermore, a plaintiff cannot just prove that the employer’s reasons were pretext, but must establish that the reasons were pretext for discrimination. Lytle, 458 Mich. at 176. Here, defendant provided a variety of reasons for not hiring plaintiff. At one point, Lane told plaintiff that he felt it was best to hire from outside the department. At other times, plaintiff’s interview and record with the department were given as reasons. Additionally, in Lane’s deposition, he stated that every candidate who was offered an interview was qualified for the position, before later stating that plaintiff was not qualified. Plaintiff claims that the inconsistency combined with other evidence can be used to form an inference that defendant’s reasons were pretext for discrimination because it “calls into question the foundation of the employer’s rationale or factually contradicts that rationale.” This argument is the same as the first way of proving that an argument is pretext. Plaintiff cites to Howard v BP Oil Co, Inc, 32 F3d 520, 526 (CA 11, 1994)2 for the proposition that inconsistencies in a defendant’s testimony is evidence of pretext. In Howard, the plaintiff, a black man, applied for a B.P. dealership, and while the company did not have any written criteria for their dealers, the plaintiff met the general requirements that they sought; however, he was unable to get a dealership. Id. at 522. Instead, B.P. selected white and Asian candidates. Id. The plaintiff was able to provide evidence that B.P.’s reasons were false by showing inconsistencies in the defendant’s testimony and shifting criteria. Id. at 526. For example, many of the selected candidates had ties to B.P. dealerships and the company said that it had a policy that gave preferential treatment to candidates with such ties; however, the district manager said that he knew of no such policy favoring nepotism. Id. at 527. Furthermore, the court stated ad hoc criteria like those used by B.P. were subject to greater scrutiny. Id. Ultimately, the court held that “a plaintiff withstands summary adjudication by producing sufficient evidence to allow a reasonable finder of fact to conclude that the defendant’s articulated reasons for its decision are not believable.” Id. at 526. The Howard Court also noted: [P]roof that a defendant’s articulated reasons are false is not proof of intentional discrimination; it is merely evidence of intentional discrimination. However, evidence of intentional discrimination is all a plaintiff needs to defeat a motion for summary judgment. That evidence must be sufficient to create a genuine factual issue with respect to the truthfulness of the defendant’s proffered explanation. [Id. at 525 (emphasis omitted).] On its face, the present case seems similar to Howard. Lane provided inconsistent reasons for declining to hire plaintiff and went outside the hiring protocol that he established. Also, plaintiff was able to provide some evidence that the reasons given were false; namely that Lane 2 We note that Howard is a decision from a federal court, which may be considered for its persuasive value, but is not binding on this Court. Hill v Warren, 276 Mich. App. 299, 314; 740 NW2d 706 (2007). -6- initially said that it was best to hire from outside the department before hiring Chief Meehleder from within. However, there is still a substantial difference between the two cases: Lane had a legitimate reason for not wanting to hire plaintiff, which was not the case in Howard. Plaintiff had a disciplinary record and there is evidence to suggest that it was communicated to plaintiff, before he was even interviewed, that he would not get hired as a result of that record, which suggests that defendant’s reasons were consistent. Additionally, it is clear that plaintiff’s interview left several members of the council dissatisfied. Finally, even if Howard stands for the proposition that proving that defendant’s reasons are false is enough to overcome summary disposition, and if plaintiff has proven that defendant’s reasons were actually false, binding caselaw still requires plaintiff to prove that defendant’s reasons were not just pretext, but pretext for discrimination, Hazle 464 Mich. at 465-466, which plaintiff is unable to do. Regarding plaintiff’s claim of disability discrimination, plaintiff admits that he has no evidence that members of the Village Council were even aware of his cancer diagnosis. Plaintiff also provides no evidence that Lane refused to hire him as a result of his cancer. Similarly, the only evidence that plaintiff provides for his claim of racial discrimination is that Lane asked him how to pronounce his name, which is often considered polite. While the preferential treatment that Chief Meehleder was given is suspect, it does nothing to prove that plaintiff was not hired for any reason apart from the reasons Lane provided. Lane had sought to hire Chief Meehleder and considered plaintiff unqualified from the outset, and that never changed. In conclusion, defendant offered legitimate, nondiscriminatory reasons for refusing to hire plaintiff—his disciplinary record and poor interview performance—and plaintiff offered no evidence to prove that these reasons were pretext for discrimination. Thus, the trial court properly granted summary disposition in favor of defendant. III. CONCLUSION Although plaintiff was able to establish the prima facie cases for race and disability discrimination, plaintiff was unable to prove that defendant’s proffered reasons for not hiring plaintiff were pretext for discrimination. Thus, the trial court properly granted defendant’s motion for summary disposition. Affirmed. /s/ Patrick M. Meter /s/ Colleen A. O’Brien -7-	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4553879/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 AM CDT - 683 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 REO Enterprises, LLC, a Nebraska limited liability company, appellee, v. Village of Dorchester, a Nebraska political subdivision, appellant, and Ange Lara, appellee. ___ N.W.2d ___ Filed August 7, 2020. No. S-18-970. 1. Ordinances. Interpretation of a municipal ordinance is a question of law. 2. Constitutional Law: Ordinances. The constitutionality of an ordinance presents a question of law. 3. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court. 4. Equal Protection. Equal protection requires the government to treat similarly situated people alike. 5. ____. Equal protection does not forbid classifications; it simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike. 6. ____. When a classification created by governmental action does not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, equal protection requires only that the classification rationally further a legitimate state interest. 7. Constitutional Law: Ordinances: Presumptions. Courts begin with a presumption of validity when passing upon the constitutionality of an ordinance. 8. Equal Protection: Proof. Under the rational basis test, whether an equal protection claim challenges a statute or some other government act or decision, the burden is upon the challenging party to eliminate any rea- sonably conceivable state of facts that could provide a rational basis for the classification. 9. Equal Protection. The rational basis test, which is the most relaxed and tolerant form of judicial scrutiny of equal protection claims, is satisfied - 684 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 as long as (1) there is a plausible policy reason for the classification, (2) the legislative facts on which the classification is based may ratio- nally have been considered to be true by the governmental decision- maker, and (3) the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational. 10. Equal Protection: Records. In equal protection claims, where the record does not contain information regarding the adoption of an ordi- nance, statute, or other governmental action, courts analyze the underly- ing legislative facts the governmental entity alleged to have considered when such basis is clearly apparent. 11. Equal Protection: Ordinances: Proof. The burden is upon a party chal- lenging an ordinance under an equal protection claim to eliminate any reasonably conceivable state of facts that could provide a rational basis for the classification. 12. Equal Protection: Legislature: Intent. Social and economic measures violate equal protection only when the varying treatment of different groups or persons is so unrelated to the achievement of any legitimate purposes that a court can only conclude that the Legislature’s actions were irrational. 13. Equal Protection. The rational basis test does not require a govern- mental entity to choose a specific course of action to address its legiti- mate interest. 14. Appeal and Error. An appellate court will not consider an issue on appeal that was not passed upon by the trial court. 15. Constitutional Law: Appeal and Error. A constitutional issue not presented to or passed upon by the trial court is not appropriate for con- sideration on appeal. Appeal from the District Court for Saline County: Vicky L. Johnson, Judge. Reversed and remanded for further proceedings. Kelly R. Hoffschneider, of Hoffschneider Law, P.C., L.L.O., for appellant. Gregory C. Damman, of Blevens & Damman, for appellee REO Enterprises, LLC. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. - 685 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 Funke, J. The Village of Dorchester, Nebraska (Dorchester), appeals the district court’s order granting summary judgment for REO Enterprises, LLC (REO). In its order, the district court declared Dorchester’s ordinance No. 684 unconstitutional because it treated tenants and owners of property differently when apply- ing for utility services by requiring tenants to obtain a land- lord’s written guarantee that the landlord would pay any unpaid utility charges for the rented property. Dorchester claims that the district court erred in this declaration and that ordinance No. 684 does not violate the Equal Protection Clauses of the U.S. and Nebraska Constitutions. For the reasons set forth herein, we reverse the judgment and remand the cause to the district court for further proceedings. BACKGROUND REO is a Nebraska limited liability company which owns residential rental property in Dorchester. Prior to May 1, 2017, tenants who leased REO’s property applied for utility services with Dorchester, paid a deposit, and received water, sewer, and electrical services. On May 1, 2017, Dorchester’s village board passed ordi- nance No. 684 mandating the use of village utility services and setting forth terms for billing, collection of bills, and discon- tinuance of service. As relevant to the instant case, “Section 3-002: Consumer’s Application; Service Deposit” provides: A. Every person or persons desiring utility services must make application therefor to the Village clerk, who shall require the applicant to make a service deposit and tap fees for water and sewer service in such amounts as set by resolution by the Village Board and placed on file at the Village office. . . . Utility services shall not be sup- plied to any house or private service pipe except upon the order of the utilities superintendent. B. Before a tenant’s utility application will be accepted, the landlord shall be required to sign an owner’s consent - 686 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 form and agree to pay all unpaid utility charges for his or her property. In July 2017, Ange Lara entered into a lease agreement with REO for the rental of REO’s Dorchester property. Pursuant to this agreement, Lara contacted Dorchester’s village clerk to apply for utility services and paid a $250 deposit with this application. At that time, Lara was informed that there was a prior, unpaid utility bill associated with a prior renter of the property and that she would not receive the services until this bill was paid and REO signed a form titled “Owner’s Consent and Guaranty of Payment for Unpaid Utility Charges for Rental Property.” Lara told a representative of REO about her interaction with the village clerk. An REO representative then contacted representatives of Dorchester and was informed of ordinance No. 684 and its requirement that REO sign the “Guaranty” before Lara could receive utility services for the property. The village clerk also reiterated the requirement that the prior ten- ant’s past-due bill be paid. REO responded to these require- ments by asserting that ordinance No. 684 is invalid and that it would not sign the “Guaranty.” Due to this noncompliance, Dorchester refused to provide Lara utility services at the property in Lara’s name. However, Dorchester did begin to provide services to the property through an account set up in an REO representative’s name. At the time of this action, Dorchester had retained Lara’s deposit and was continuing to provide utility services for the property, still occupied and leased by Lara, through the REO representa- tive’s account. In October 2017, REO filed a complaint seeking that the district court declare ordinance No. 684 void and unenforce- able and order Dorchester to pay REO’s attorney fees and court costs. REO alleged four claims as follows: (1) Ordinance No. 684 violated the Equal Protection Clauses of article 1, § 3, of the Nebraska Constitution and the 14th Amendment to the U.S. Constitution; (2) ordinance No. 684 violated the Equal - 687 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 Credit Opportunity Act 1; (3) ordinance No. 684 violated the special legislation provision of article 3, § 18, of the Nebraska Constitution; and (4) ordinance No. 684 violated Nebraska’s Uniform Residential Landlord and Tenant Act. 2 Dorchester filed an answer which claimed, in part, that REO’s complaint failed to state a claim upon which relief could be granted and that REO’s claims were barred in whole or in part by the doctrine of unclean hands, laches, waiver, and estoppel. In May 2016, REO filed a motion for summary judgment claiming there were no genuine issues of material fact and it was entitled to judgment as a matter of law. Dorchester, in turn, also filed a motion for summary judgment, agreeing there were no genuine issues of material fact and claiming it was entitled to judgment as a matter of law. Following a hearing, the district court entered summary judgment for REO and overruled Dorchester’s motion. In its order, the court analyzed REO’s claim that ordinance No. 684 violated the Equal Protection Clauses. First, the court found that residential tenants and owners of Dorchester property were similarly situated under ordinance No. 684 for equal protection purposes. The court noted that by requiring a landlord to be a cosigner to a tenant’s utility obligations, but not requiring a residential owner to obtain a third-party cosigner, ordinance No. 684 treated tenants and owners differently. The court then found there was not a rational relationship between the dif- ference in treatment and Dorchester’s interest in collecting unpaid bills from tenants. Specifically, the court reasoned that Dorchester’s policy was applied to tenants irrespective of their creditworthiness and ability to pay without taking into account the tenants’ security deposits and the ability of Dorchester to impose liens on the rented property or provide other rem- edies to meet Dorchester’s offered goal. Thus, the court determined ordinance No. 684 unconstitutionally violated the 1 15 U.S.C. § 1691 et seq. (2012). 2 Neb. Rev. Stat. §§ 76-1401 to 76-1449 (Reissue 2018). - 688 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 Equal Protection Clauses and, because it found this claim dis- positive, did not discuss REO’s remaining claims. ASSIGNMENT OF ERROR Dorchester assigns, consolidated and restated, that the district court erred by finding that ordinance No. 684 vio- lated the Equal Protection Clauses of the U.S. and Nebraska Constitutions. STANDARD OF REVIEW [1-3] Interpretation of a municipal ordinance is a question of law. 3 Similarly, the constitutionality of an ordinance presents a question of law. 4 An appellate court independently reviews questions of law decided by a lower court. 5 ANALYSIS Equal Protection [4-6] The Nebraska Constitution and the U.S. Constitution have identical requirements for equal protection challenges. 6 Equal protection requires the government to treat similarly sit- uated people alike. 7 It does not forbid classifications; it simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike. 8 When a clas- sification created by governmental action does not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, equal protection requires only that the classification rationally further a legitimate state interest. 9 3 Wilkison v. City of Arapahoe, 302 Neb. 968, 926 N.W.2d 441 (2019). 4 Dowd Grain Co. v. County of Sarpy, 291 Neb. 620, 867 N.W.2d 599 (2015). 5 Wilkison, supra note 3; Dowd Grain Co., supra note 4. 6 Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881 N.W.2d 892 (2016). 7 Id. 8 Id. 9 Id. - 689 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 Ordinance No. 684 creates two classifications relevant to the instant action: (1) residential tenants and (2) residential owners. REO does not claim, and the district court did not find, that tenants are a suspect class or that ordinance No. 684’s differ- ence in treatment affected a fundamental right. Additionally, we have not held that a specific application and collection structure for payment of utility services by tenants and landowners is a fundamental right. As such, and because the interests at issue are economic, we apply the rational basis test. 10 [7-9] This court begins with a presumption of validity when passing upon the constitutionality of an ordinance. 11 Accordingly, under the rational basis test, whether an equal protection claim challenges a statute or some other government act or decision, the burden is upon the challenging party to eliminate any reasonably conceivable state of facts that could provide a rational basis for the classification. 12 The rational basis test, which is the most relaxed and tolerant form of judi- cial scrutiny of equal protection claims, is satisfied as long as (1) there is a plausible policy reason for the classification, (2) the legislative facts on which the classification is based may rationally have been considered to be true by the govern- mental decisionmaker, and (3) the relationship of the classifica- tion to its goal is not so attenuated as to render the distinction arbitrary or irrational. 13 In this three-part analysis, we first consider the policy reason for the classification. 14 Under ordinance No. 684, Dorchester requires residential tenants to provide written guarantees from their landlords but does not require similar third-party guarantees for residential owners. In requiring the written 10 See id. 11 DeCoste v. City of Wahoo, 255 Neb. 266, 583 N.W.2d 595 (1998). 12 State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019); Lingenfelter, supra note 6. 13 See Lingenfelter, supra note 6. 14 Id. - 690 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 guarantee, Dorchester claims it has a legitimate interest in maintaining a financially stable municipal utility by collect- ing from tenants who abscond without paying their bills when those bills are in excess of the tenant’s security deposit. Dorchester argues that requiring a landlord’s guarantee “‘remind[s] each landlord owner of its obligations and liabil- ity to . . . Dorchester and will further the goal of collection by reducing the possibility that . . . Dorchester will be faced with the administrative expenses associated with repeatedly resorting to cumbersome and expensive foreclosure or collec- tion proceedings.’” 15 A village has the statutory authority to make and enforce all necessary rules and regulations in the use of its system of waterworks or water supply and the use of the water from such system. 16 Along with charges for the use of a village’s sewer system, 17 a village has the power to assess and collect from its inhabitants rates for the use and benefit of water used or supplied to them which includes the authority to enforce liens upon the real estate where the water and sewer system are used or supplied. 18 A village also has the authority to contract to furnish electricity to any person or corporation. 19 Pursuant to its authority to provide and charge for utility services, Dorchester has a legitimate interest in ensuring col- lection of accounts for these services. By requiring a landlord to guarantee any unpaid utility charges not paid by the tenant, Dorchester increases the likelihood that it will be able to col- lect payment for services with minimal additional collection costs even if the tenants move away and collection efforts from the tenants are unsuccessful. Such guarantee involves a third party who is tied to real estate located within Dorchester 15 Brief for appellant at 13. 16 See Neb. Rev. Stat. § 17-537 (Cum. Supp. 2016). 17 See Neb. Rev. Stat. § 17-925.02 (Cum. Supp. 2016). 18 See Neb. Rev. Stat. § 17-538 (Cum. Supp. 2016). 19 See Neb. Rev. Stat. § 17-901 (Reissue 2012). - 691 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 and against whom collection may be more easily pursued. This consideration does not equally apply when determining whether to require a third-party guarantee from a residential landowner where the utility customer owns the land at issue and cannot as easily avoid his or her obligations without aban- doning the property to its creditors. We find ensuring payment for utility services is a plausible policy reason for the classifi- cations requiring landlords’ guarantees for tenants but not for residential owners. [10] We next consider whether the legislative facts on which the classification is based may rationally have been considered to be true. 20 Where, as here, the record does not contain infor- mation regarding the adoption of an ordinance, statute, or other governmental action, we have analyzed the underlying legisla- tive facts the governmental entity alleged to have considered when such basis is clearly apparent. 21 Dorchester claims by requiring a landlord guarantee for ten- ants and not requiring a third-party guarantee for residential owners, it was recognizing that tenants are less likely to be creditworthy than owners and that collection from tenants who moved away is more difficult than from owners who are tied to the property within the village. In support of these alleged facts, Dorchester provided an affidavit from Dorchester’s vil- lage clerk and treasurer. She explained that “[i]n the past, [Dorchester] spent substantial resources in trying to locate former residential tenant utilities customers that . . . left town with unpaid utility account obligations” and “collections agen- cies would be used to collect these unpaid utilities accounts [and] charge 50% of the amount collected.” She also described that there remains an unpaid utility bill on REO’s property in the previous tenant’s name and that the location of the previous tenant is unknown. REO argues the affidavit should be viewed with skepticism in that it was conclusory and self-serving and failed to include 20 Lingenfelter, supra note 6. 21 See id. - 692 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 specific information supporting its conclusion. REO contends that there is no evidence that Dorchester ever conducted a study or analysis of utility bill payment tendencies in order to establish that tenants were any more likely than property own- ers to fail to pay utility bills and, if so, at what level. REO’s argument is based upon the proposition that Dorchester had a burden to offer evidence in support of its alleged policy reason for the classification. We first note the court granted summary judgment in favor of REO, and as such, Dorchester is entitled to have the evi- dence viewed in its most favorable light and have all reason- able inferences deducible from the evidence. 22 [11] Additionally, as stated above, the burden is upon REO as a party challenging the ordinance to eliminate any reason- ably conceivable state of facts that could provide a rational basis for the classification. 23 The U.S. Supreme Court has explained, “A State . . . has no obligation to produce evidence to sustain the rationality of a statutory classification.” 24 The Court further explained, “‘[A] legislative choice is not sub- ject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’” 25 Contrary to REO’s argument, Dorchester was not required to present evidence to support the classification under ordi- nance No. 684, and instead, REO had the duty to disprove Dorchester’s alleged factual basis or establish the facts were not reasonably conceivable. As the district court correctly noted, individual residen- tial tenants and owners are not intrinsically with or without creditworthiness. However, other jurisdictions have recognized 22 See JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71 (2019). 23 See, Montoya, supra note 12; Lingenfelter, supra note 6. 24 Heller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). 25 Id. - 693 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 an increased likelihood that an individual who rents a prop- erty may have less available reachable assets and resources than an owner who may have applied for and acquired debt to buy the property or had enough resources to buy the property outright. 26 When analyzing the underlying facts Dorchester relied on in enacting ordinance No. 684, the question is not whether such assertion is correct but whether it may rationally have been considered to be true. 27 Accordingly, the inherent increased likelihood of a tenant’s lack of creditworthiness com- pared to a residential owners’ creditworthiness is an appropri- ate consideration. Even more compelling is Dorchester’s allegation that admin- istrative and collection costs associated with unpaid utility bills are more likely to increase when seeking payment for services provided to tenants versus residential owners. Tenants are con- nected to the property through a lease agreement which means their connection with that property ceases when they are no longer acting under the agreement. Dorchester noted in the vil- lage clerk’s affidavit that, in the past, this lack of continuing connection with the property can result in Dorchester’s spend- ing “substantial resources” in trying to locate the tenant to col- lect on unpaid services. REO argues that Dorchester does not define “substantial resources” expended to locate and collect from tenants in con- trast to residential owners. However, evidence of a study and a precise comparison is unnecessary to support Dorchester’s conclusion. 28 Residential owners own the property until they sell, abandon, or are removed. Dorchester, therefore, has a static source to contact and pursue collection from residential owners. It is rational to conclude that the costs associated 26 See, Midkiff v. Adams County Reg. Water District, 409 F.3d 758 (6th Cir. 2005); DiMassimo v. City of Clearwater, 805 F.2d 1536 (11th Cir. 1986); Chatham v. Jackson, 613 F.2d 73 (5th Cir. 1980). 27 See, Montoya, supra note 12; Lingenfelter, supra note 6. 28 See id. See, also, Heller, supra note 24. - 694 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 with locating a residential landowner is likely to be less than locating a previous tenant. Finally, we must consider whether the relationship of the classification to its goal is so attenuated as to render the dis- tinction arbitrary or irrational. 29 [12] The village clerk’s affidavit claims Dorchester has expended substantial resources in pursuing collection of unpaid utility accounts from tenants who have moved away, including costs associated with locating the tenants and collection agen- cies. Landlord guarantees help to ensure that Dorchester can minimize these costs because the landlords are more directly tied to property within Dorchester and the guarantees provide another party to account for the amounts due. Such a third-party guarantee does not equally apply to residential owners who do not have a landlord third-party relationship and are already tied to the serviced property. Social and economic measures violate equal protection only when the varying treatment of different groups or persons is so unrelated to the achievement of any legitimate purposes that a court can only conclude that the Legislature’s actions were irrational. 30 Here, we find ordinance No. 684’s treatment of tenants and residential owners was suf- ficiently related to Dorchester’s stated purpose so as not to render the distinction arbitrary or irrational. In DeCoste v. City of Wahoo, 31 the city enacted an ordi- nance which authorized collection of landfill management fees from city residents by adding the fees to the electri- cal bills of “‘all appropriate electrical customers.’” Because some city residents such as those within units of multiple-unit apartment complexes did not have individual electrical meters and electrical bills, a number of these residents did not have to pay the landfill management fees. 32 We determined this 29 See Lingenfelter, supra note 6. 30 Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739 N.W.2d 742 (2007). 31 DeCoste, supra note 11, 255 Neb. at 271, 583 N.W.2d at 599. 32 Id. - 695 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 difference in treatment violated equal protection because the classifications did not rationally relate to the city’s objec- tive of funding its landfill management. 33 We reasoned that whether or not a residence had an electrical meter did not relate to landfill management and was wholly irrelevant to the city’s stated objective. 34 The ordinance at issue in DeCoste is different than the land- lord guarantee requirement under ordinance No. 684, which directly relates to Dorchester’s objective. Dorchester provides utility services to properties and charges for the services. Ordinance No. 684 requires that the property owners of the residences who are provided the services, including landlords and residential owners, agree to the responsibility for payment of these utility charges. Having a landlord guarantee increases the likelihood that these bills are paid. REO argues the landlord guarantee requires a landlord to agree to cover unpaid bills for services the landlord will not receive. REO also claims allowing Dorchester to require a landlord guarantee would have far-reaching negative implica- tions and allow municipalities and power districts to require similar guarantees for rented farmland, industrial land, and commercial land which could greatly increase the potential liability of those landlords. This argument ignores the fact that a landlord receives a benefit from the property’s having access to and use of utility services in that a property which has access to utilities and in which this access is reliable and consistent has an increased property value. 35 The statutory scheme also assumes a property owner is a relevant party to the availability and use of utilities at a property in permitting the imposition of a lien against the owner’s property when a tenant fails to pay. 36 Finally, whether 33 See id. 34 Id. 35 See Chatham, supra note 26. 36 See, § 17-925.02; § 17-538. - 696 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 ordinance No. 684 may influence other municipalities and power districts to require landlord guarantees which may have their own expanded implications is immaterial to the question of whether Dorchester’s landlord guarantee requirement fur- thers the legitimate interest of ensuring collection of accounts for the provision of utility services to Dorchester residents. REO also argues Dorchester “is already adequately protected by its ability to require the tenant to make a deposit . . . to cover the last month’s bill and to place a lien on the property for any amounts that remain unpaid for water and sewer services after application of the deposit.” 37 REO contends Dorchester can further limit its potential risk of nonpayment over the deposit amount by promptly shutting off utility services when a tenant fails to pay. [13] While Dorchester may have had alternate avenues to address its goal of ensuring payment of utility bills through higher security deposits and collecting from liens imposed on properties, the rational basis test does not require a govern- mental entity to choose a specific course of action to address its legitimate interest. REO has pointed to no authority under a rational basis review that would require a municipality to choose an individual means of pursuing its legitimate interest. Instead, the question remains whether the classification ratio- nally furthers a legitimate state interest. 38 We find DiMassimo v. City of Clearwater 39 instructive. There, the 11th Circuit evaluated a requirement that a landlord join in a tenant’s application for utilities and found the require- ment was obviously related to the city’s legitimate purpose of maintaining a financially stable municipal utility. The court explained that “a landowner, whose property is readily subject to liens and foreclosure may be rationally presumed to be more readily held to account as the ultimate guarantor of the bills 37 Brief for appellee at 18. 38 See Lingenfelter, supra note 6. 39 DiMassimo, supra note 26. - 697 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 than a tenant who may freely abandon the lease, leaving behind only his outstanding debts.” 40 In addressing the plaintiff’s argument that the city already had adequate protection through liens and the ability to require greater security deposits, the court stated: Requiring a landlord’s joinder in the application for utili- ties serves to remind each owner of his obligations and liability to the City and therefore, furthers the goal of collection by reducing the possibility that the City will be faced with the administrative expenses of repeatedly resorting to cumbersome and expensive foreclosure pro- ceedings. A financial deposit sufficient to provide the City with the same degree of security would indeed be burden- some to any potential tenant. 41 REO cites Golden v. City of Columbus 42 and O’Neal v. City of Seattle 43 for the proposition that classifications and dispar ate treatment of tenants and owners is not rationally related to a municipality’s interest in collecting unpaid utility debts. However, these cases are distinguishable because they involve whether a municipality could require a tenant to pay a previ- ous, unpaid utility bill for the initiation and continuation of service even though the tenant had not received the previous service and had no previous relationship with the property. 44 In Golden, the Sixth Circuit analyzed a city policy where, after a tenant moved into a property which was already receiv- ing water services, the city would terminate the services if the landlord owed for a prior tenant’s water usage. 45 The city would inform the tenant that water services would only recom- mence once the landlord satisfied that debt. The Golden court 40 Id. at 1541. 41 Id. at 1542. 42 Golden v. City of Columbus, 404 F.3d 950 (6th Cir. 2005). 43 O’Neal v. City of Seattle, 66 F.3d 1064 (9th Cir. 1995). 44 Golden, supra note 42; O’Neal, supra note 43. 45 Golden, supra note 42. - 698 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 analyzed the equal protection claim solely with regard to the city policy’s irrationally differential treatment of tenants whose landlords owed the city for water service and other tenants whose landlords did not have such debt. The court found the policy violated equal protection because it treated tenants who moved into properties and whose owners were encumbered with preexisting utility debts differently from properties that were not. 46 The court expressed no opinion regarding the pol icy’s differential treatment of landlords and tenants. 47 It is note- worthy that the court left undisturbed the city’s requirements that a tenant obtain a landlord’s consent prior to receiving utility services and that a property owner is liable for unpaid utility bills of a tenant. 48 Similarly, in O’Neal, the Ninth Circuit analyzed a city pol- icy of refusing to provide water service to new tenants when there is a balance due for prior water service to the premises. 49 The O’Neal court also found the policy treated tenants differ- ently based upon whether the properties were encumbered with preexisting utility debts. The court determined that this scheme was divorced from the reality of legal accountability for the debt because the person directly penalized by the scheme was not the debtor but an innocent third party with whom the debtor contracted. Requiring a tenant to pay previous, unpaid utility bills to initiate or continue service where the tenant was not a party to those services nor connected to the property is different from Dorchester’s requirement that a tenant obtain the landlord’s guarantee prior to the initiation of service. Unlike the tenants in Golden and O’Neal, landlords are connected to the property for which the utilities are being provided and, as discussed, receive a benefit from the availability and use of utilities at 46 Id. See, also, O’Neal, supra note 43. 47 Golden, supra note 42. See, also, Midkiff, supra note 26. 48 Golden, supra note 42. 49 O’Neal, supra note 43. - 699 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 their property. Landlords have agency in minimizing their risk by choosing a creditworthy tenant, mandating in the lease that the tenant promptly pay all utility bills, and terminating the lease should the tenant fail in that duty. On this third consideration, we find Dorchester’s goal of ensuring the collection of utility accounts through a cost- effective means is sufficiently related to, and not too attenuated from, ordinance No. 684’s requirement that a residential tenant obtain a landlord’s guarantee of payment while not requiring a residential owner to obtain a third-party guarantee. In consideration of all of the above, we find that ensuring collection of utility bills was a plausible policy reason for requiring tenants to obtain landlord guarantees but not requir- ing residential owners to obtain third-party guarantees. We further find that this classification was based on facts which Dorchester could rationally have considered to be true and that the classification was sufficiently related to the goal of ensuring payment of utility bills so as not to render the treat- ment arbitrary or irrational. Accordingly, ordinance No. 684’s requirement that a residential tenant obtain a landlord’s guar- antee for initiating utility services does not violate the Equal Protection Clauses of the U.S. and Nebraska Constitutions and the district court erred. Additional Claims Even though the district court declined to address REO’s remaining claims, REO asks that we address them on appeal, which claims include whether ordinance No. 684 violated the Equal Credit Opportunity Act; violated article 3, § 18, of the Nebraska Constitution; and violated Nebraska’s Uniform Residential Landlord and Tenant Act. [14,15] An appellate court will not consider an issue on appeal that was not passed upon by the trial court. 50 As to constitutional claims specifically, we have held that a con- stitutional issue not presented to or passed upon by the trial 50 Siedlik v. Nissen, 303 Neb. 784, 931 N.W.2d 439 (2019). - 700 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports REO ENTERS. v. VILLAGE OF DORCHESTER Cite as 306 Neb. 683 court is not appropriate for consideration on appeal. 51 Based upon these established rules and REO’s failure to cross-appeal, we decline to address REO’s remaining claims on appeal and remand this cause to the district court for further consideration of the remaining claims. CONCLUSION Because the requirement under ordinance No. 684 that ten- ants must obtain a landlord guarantee in order to initiate utility services did not violate the Equal Protection Clauses of the U.S. and Nebraska Constitutions, we reverse the judgment of the district court and remand the cause for further proceedings to consider the remaining claims. Reversed and remanded for further proceedings. 51 Capitol City Telephone v. Nebraska Dept. of Rev., 264 Neb. 515, 650 N.W.2d 467 (2002).	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4553878/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 AM CDT - 740 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. CERVANTES Cite as 306 Neb. 740 State of Nebraska, appellee, v. Nicole Cervantes, appellant. ___ N.W.2d ___ Filed August 7, 2020. No. S-19-1169. 1. Trial: Convictions: Appeal and Error. An appellate court will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support that conviction. 2. Evidence: Appeal and Error. An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented, which are within a fact finder’s province for disposition. 3. Trial: Convictions: Evidence. In connection with a conviction in a bench trial, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reason- able doubt. Appeal from the District Court for Dawson County: James E. Doyle IV, Judge. Affirmed. Claude E. Berreckman, Jr., and Claire K. Bazata, of Berreckman, Davis & Bazata, P.C., 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. - 741 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. CERVANTES Cite as 306 Neb. 740 Miller-Lerman, J. I. NATURE OF CASE Law enforcement officers returning property to the appel- lant, Nicole Cervantes, approached her home and were greeted by her husband, Casey Cervantes (Casey), against whom Cervantes had a protection order. Upon hearing the officers, Cervantes fled through a window because she was “scared [she] was going to get in trouble.” Law enforcement pursued Cervantes and found her about a block away. Following a bench trial in the district court for Dawson County, Cervantes was convicted of obstructing a peace officer. Cervantes appeals and claims that the evidence was insufficient to support her conviction. We affirm. II. STATEMENT OF FACTS Following an incident on September 26, 2018, at Cervantes’ home in Cozad, Nebraska, the State charged her with aiding and abetting the violation of a protection order, a Class IV felony in violation of Neb. Rev. Stat. § 42-924 (Reissue 2016), and with obstructing a peace officer, a Class I misdemeanor in violation of Neb. Rev. Stat. § 28-906(1) (Reissue 2016). A bench trial was held on June 4, 2019. At trial, Sgt. John Peden and Officer Garrett McArdle of the Cozad Police Department testified that they were on duty when they arrived at Cervantes’ home in Cozad to return a backpack they had collected during a prior unrelated arrest. Peden knew that the residence was the home of Cervantes and intended to return the backpack to her. Both officers were dressed in uni- form and displayed their badges. McArdle testified that when they approached the entrance, the main door was open and the officers could see through the screen door. The officers knocked, and Casey answered the door, holding a tape measure in his hands. Peden observed Cervantes’ daughter and another woman at the home. The officers knew that Cervantes had an active protection order against Casey which prohibited contact between Casey - 742 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. CERVANTES Cite as 306 Neb. 740 and Cervantes, and upon seeing Casey in the home, Peden believed that Casey was violating the order. He did not know whether Cervantes was in the home. Peden briefly observed an unknown person exiting the living room toward the south side of the home. He heard a door slam in the direction that this person had fled. The three people Peden had originally observed at the home were still visible when he heard the door slam, which led him to believe there had been a fourth person in the home. McArdle testified that he did not observe anyone else in the home other than Cervantes’ daughter and that he did not hear sounds or noises that suggested somebody else was present. McArdle testified that he confirmed through dispatch that a protection order remained active against Casey, and the officers then handcuffed Casey. Cervantes’ daughter told McArdle no one else was in the home and gave consent for him to search the home. As McArdle took a few steps into the home, someone driving a vehicle pulled up and reported that a woman had jumped out the window of the home and run south. McArdle ran out of the house and found Cervantes walking in an alley about a block away. McArdle handcuffed her and took her back to the residence. McArdle acknowledged that Cervantes stopped and cooperated when apprehended, aside from “pull[ing] away a little bit” when she was handcuffed. Cervantes answered his questions and did not take action to prevent McArdle and Peden from arresting Casey. McArdle spoke with Cervantes, and she admitted that she had been in the home when Casey greeted the officers at the door. Both officers testified that Cervantes admitted being in the home and leaving to avoid getting in trouble. On cross- examination, Peden acknowledged that Cervantes told officers that she had asked Casey to leave the home. Peden indicated that he did not believe her; he did not observe anything to indicate that Casey was not welcome at the home or that any- one there was trying to remove him. Peden was not aware that - 743 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. CERVANTES Cite as 306 Neb. 740 Cervantes had a prior arrest for aiding and abetting Casey’s prior violation of a protection order. Cervantes testified in her own behalf. She stated that Casey is her husband and that she obtained the protection order due to his actions resulting from a mental health issue. Cervantes initially sought the protection order because Casey would not take medication for his mental health issue and was becoming violent. The couple had separated a short time before she got the protection order and had not since resumed living together. She moved from her previous home to get away from him. However, Cervantes testified that she understood “there was a 30-day restraining order,” but that she later learned that it was for 1 year. Cervantes testified that she previously pled guilty to aiding and abetting the violation of the same protection order. With respect to the prior incident, according to Cervantes, Casey entered her car without permission and law enforcement pulled her over and arrested her. On the day of the incident leading to the charges filed in this case, Cervantes denied inviting or allowing Casey into the home. She testified that she had been sleeping in her bed- room when he entered. She stated that she “told him to leave my house or I was going to call the cops, and he said he had my phone and nobody was going to call them.” According to Cervantes, Casey was in the home for a half hour during which Cervantes repeatedly told him to leave. Cervantes admitted that when she heard law enforcement at her front door on September 26, 2018, she left the home. She was surprised that Casey would answer the front door and talk to police officers. Cervantes fled from the house through the bathroom window because she was scared that she would “get in trouble for something I didn’t do” and would be arrested again. Cervantes acknowledged on cross-examination that the bathroom in the home was being remodeled that day and that Casey, who is a carpenter, answered the door with a tape meas ure in his hand. - 744 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. CERVANTES Cite as 306 Neb. 740 The district court acquitted Cervantes of the felony charge of aiding and abetting a violation of a protection order. However, with regard to the charge for obstructing a police officer, the court found Cervantes guilty beyond a reason- able doubt. The court stated that fleeing law enforcement was obstruction of a peace officer under the law and that “the more logical, rational, and careful thing” for Cervantes to have done would have been to call out to the police officers and ask for their help once they were in the home. The court said that Cervantes knew the officers were there, but instead of asking them for help, she “fled the scene, and [was] found a block away.” On December 4, 2019, the district court sentenced Cervantes to a term of 6 days’ imprisonment, with credit for 6 days already served, and a term of probation for a period of 12 months. Cervantes appeals. III. ASSIGNMENT OF ERROR On appeal, Cervantes claims, restated, that the district court erred because it convicted her without sufficient evidence that she obstructed a peace officer. IV. STANDARDS OF REVIEW [1-3] An appellate court will sustain a conviction in a bench trial of a criminal case if the properly admitted evi- dence, viewed and construed most favorably to the State, is sufficient to support that conviction. State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019). In making this determina- tion, an appellate court does not resolve conflicts in the evi- dence, pass on the credibility of witnesses, evaluate explana- tions, or reweigh the evidence presented, which are within a fact finder’s province for disposition. Id. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. - 745 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. CERVANTES Cite as 306 Neb. 740 V. ANALYSIS 1. Applicable Law We begin by setting forth the applicable statutes and legal principles relevant to our analysis. The obstructing a peace officer statute, § 28-906, provides in relevant part: (1) A person commits the offense of obstructing a peace officer, when, by using or threatening to use vio- lence, force, physical interference, or obstacle, he or she intentionally obstructs, impairs, or hinders (a) the enforcement of the penal law or the preservation of the peace by a peace officer or judge acting under color of his or her official authority or (b) a police animal assist- ing a peace officer acting pursuant to the peace officer’s official authority. .... (3) Obstructing a peace officer is a Class I misdemeanor. To show a violation of § 28-906(1), the State must prove that (1) the defendant intentionally obstructed, impaired, or hindered either a peace officer, a judge, or a police animal assisting a peace officer; (2) at the time the defendant did so, the peace officer or judge was acting under color of his or her official authority to enforce the penal law or preserve the peace; and (3) the defendant did so by using or threatening to use either violence, force, physical interference, or obstacle. State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020). We recently clarified the law under § 28-906(1) in State v. Ferrin, where we stated that the proper inquiry under § 28-906(1) is not whether a defendant has engaged in “some sort of physical act,” but, rather, whether a defendant’s conduct, however expressed, used or threatened to use either violence, force, physical interference, or obstacle to intentionally obstruct, impair, or hinder a peace officer or judge who was acting to either enforce the penal law or preserve the peace under color of his or her official authority. - 746 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. CERVANTES Cite as 306 Neb. 740 305 Neb. at 776, 942 N.W.2d at 415. For purposes of § 28-906(1), we defined the words “interference” and “obsta- cle” as follows: Used in its common and ordinary sense, the word “inter- ference” means “[t]he action or fact of interfering or intermeddling (with a person, etc., or in some action).” Similarly, “obstacle” means “[s]omething that stands in the way or that obstructs progress (literal and figurative); a hindrance, impediment, or obstruction.” State v. Ferrin, 305 Neb. at 777, 942 N.W.2d at 415. For completeness, we note that the district court did not have the benefit of our clarifications in State v. Ferrin, but the district court’s reliance on “flight” and other factors as bases for conviction in this case is not incorrect. See In re Interest of Richter, 226 Neb. 874, 415 N.W.2d 476 (1987). 2. Obstruction of a Peace Officer: Sufficiency of Evidence Cervantes claims that the evidence is insufficient to support her conviction for obstruction of a peace officer. We conclude that Cervantes’ assignment of error is without merit. (a) Cervantes’ Intentional Acts The first inquiry in this case under § 28-906 as explained in State v. Ferrin, supra, includes an examination of whether the defendant’s acts which involved peace officers were inten- tional. There is no dispute that peace officers were involved. With respect to intentionality, Cervantes told police officers that she believed she would be “in trouble” because of Casey’s presence in the home contrary to a protection order. There was evidence that Casey had previously violated the protection order. Cervantes testified that she fled out of the bathroom window when she heard law enforcement at the home to avoid speaking with them. Cervantes did not want to talk to officers, but she knew that officers wanted to talk to her. There was sufficient evidence at trial to conclude Cervantes’ acts were - 747 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. CERVANTES Cite as 306 Neb. 740 done intentionally to obstruct, impair, or hinder Peden and McArdle in their enforcement efforts. (b) The Police Officers Were Enforcing Penal Law at the Time of the Incident The second inquiry in this case under § 28-906, as explained in State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020), includes an examination of whether the peace officers were enforcing a penal law. Cervantes contends that the police officers were not enforc- ing the penal law or preserving the peace at the time of the incident. We do not agree. The evidence shows that Casey answered the door at Cervantes’ house and that Peden testi- fied he knew that Cervantes had a no-contact protection order against Casey that was in force, violation of which is against the penal law. Section 42-924(4) provides that a knowing vio- lation of a protection order is “a Class I misdemeanor, except that any person convicted of violating such order who has a prior conviction for violating a protection order shall be guilty of a Class IV felony.” Casey was subject to a prior violation. The continued presence of law enforcement at Cervantes’ home was in service of the enforcement and investigation of a penal law, § 42-924(4). There was sufficient evidence supporting the district court’s conclusion that the police officers were enforc- ing the penal law at the time of the incident. (c) Cervantes’ Acts Were Used to Obstruct or Impair Enforcement of a Penal Law The third inquiry under § 28-906, as explained in State v. Ferrin, supra, includes an examination of whether Cervantes’ acts were used to obstruct or impair enforcement of a penal law. Cervantes contends that her flight from law enforcement, standing alone, was insufficient to satisfy the element of obstructing or impairing the work of a peace officer. We do not agree. As noted above, running away to avoid a peace officer’s - 748 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. CERVANTES Cite as 306 Neb. 740 acting to enforce the penal law can result in an interference or obstacle to the progress of that enforcement. See id. Under the facts presented at trial, Cervantes’ flight out the window physically obstructed and impaired law enforce- ment. The evidence shows that upon observing Casey, Peden and McArdle remained at Cervantes’ residence so they could investigate the violation of a protection order. Cervantes was ultimately apprehended with the aid of a passer-by who reported that a woman had jumped out of a window and run away from the home. Nevertheless, the officers’ questioning of Cervantes in connection with their enforcement of a penal law was hindered or impeded by Cervantes’ intentional acts. VI. CONCLUSION The evidence received at trial, taken in the light most favorable to the State, was sufficient to find that Cervantes’ intentional acts impaired peace officers’ enforcing a penal law. Accordingly, we affirm the judgment and sentence of the dis- trict court. Affirmed.	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/3392446/	Appeal dismissed on motion of counsel for Appellee.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/4553885/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 AM CDT - 591 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 State of Nebraska, appellee, v. Christine A. Theisen, appellant. ___ N.W.2d ___ Filed July 24, 2020. No. S-19-911. 1. Pleas: Appeal and Error. A trial court is afforded discretion in deciding whether to accept guilty pleas, and an appellate court will reverse the trial court’s determination only in case of an abuse of discretion. 2. Judges: Appeal and Error. An abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a liti- gant of a substantial right and denying just results in matters submitted for disposition. 3. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. 4. Effectiveness of Counsel: Appeal and Error. In reviewing a claim of ineffective assistance of trial counsel on direct appeal, an appellate court determines as a matter of law whether the record conclusively shows that (1) a defense counsel’s performance was deficient or (2) a defend ant was or was not prejudiced by a defense counsel’s alleged deficient performance. 5. Indictments and Informations. An information must inform the accused with reasonable certainty of the crime charged so that the accused may prepare a defense to the prosecution and, if convicted, be able to plead the judgment of conviction on such charge as a bar to a later prosecution for the same offense. 6. ____. An information must allege each statutorily essential element of the crime charged, expressed in the words of the statute which prohibits the conduct charged as a crime or in language equivalent to the statutory terms defining the crime charged. - 592 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 7. ____. Where an information alleges the commission of a crime using language of the statute defining that crime or terms equivalent to such statutory definition, the charge is sufficient. 8. Indictments and Informations: Due Process. When the charging of a crime in the language of the statute leaves the information insufficient to reasonably inform the defendant as to the nature of the crime charged, additional averments must be included to meet the requirements of due process. 9. Indictments and Informations: Appeal and Error. An information first questioned on appeal must be held sufficient unless it is so defec- tive that by no construction can it be said to charge the offense for which the accused was convicted. 10. Indictments and Informations. A complaint or information is fatally defective only if its allegations can be true and still not charge a crime. 11. ____. No information shall be deemed invalid for any defect or imper- fection which does not prejudice the substantial rights of the defendant upon the merits. 12. Conspiracy. Expressly alleging an overt act in furtherance of a con- spiracy cannot simply be stating that the parties committed an overt act. 13. ____. The expressed overt act in furtherance of a conspiracy cannot be the act of conspiring. 14. Indictments and Informations: Conspiracy. A proper information charging conspiracy should indicate the offense which is the object of the conspiracy and expressly allege an overt act conducted in further- ance thereof. 15. Pleas. To support a plea of guilty or no contest, the record must establish that (1) there is a factual basis for the plea and (2) the defendant knew the range of penalties for the crime with which he or she is charged. 16. Criminal Law: Proof. A sufficient factual basis requires that the State present sufficient facts to support the elements of the crime charged. 17. Conspiracy. Wharton’s Rule, applied when evaluating conspiracy charges, stands for the principle that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission. 18. ____. The application of Wharton’s Rule is limited to instances where the number and identity of persons involved in the conspiracy are the same as the number and identity of persons required to commit the underlying substantive offense. 19. ____. There is an exception to Wharton’s Rule that provides a con- spiracy charge may be filed if more or different people participate in the conspiracy than are necessary to commit the substantive offense. - 593 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 20. Effectiveness of Counsel: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal depends upon the sufficiency of the record to address the claim to determine whether a defense counsel’s performance was deficient and whether the defendant was prejudiced by the alleged defi- cient performance. 21. ____: ____: ____. The record on direct appeal is sufficient if it estab- lishes either that trial counsel’s performance was 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 plausible trial strategy. 22. Effectiveness of Counsel: Appeal and Error. The fact that an inef- fective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. 23. Effectiveness of Counsel: Records: Appeal and Error. The deter- mining factor in deciding whether an ineffective assistance claim can be resolved on direct appeal is whether the record is sufficient to adequately review the question. Appeal from the District Court for Madison County: Mark A. Johnson, Judge. Affirmed. Mark E. Rappl for appellant. Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Funke, J. Christine A. Theisen appeals her plea-based convictions of conspiracy to distribute or deliver a controlled substance (hydrocodone), conspiracy to distribute or deliver a controlled substance (tramadol), and child abuse. Theisen assigns the district court erred in accepting her guilty pleas, because the charging information contained insufficient allegations of overt acts and the factual basis was insufficient under Wharton’s Rule to support the conspiracy offenses. Theisen also claims she was denied the right to effective assistance of trial counsel, based upon a failure to properly inform her of the insufficient - 594 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 factual basis and application of Wharton’s Rule and upon trial counsel’s conflict of interest with a material witness for the State. For the reasons set forth herein, we affirm. BACKGROUND Theisen was charged by an amended information with seven charges, including: conspiracy to distribute or deliver a con- trolled substance (hydrocodone), conspiracy to distribute or deliver a controlled substance (oxycodone), conspiracy to dis- tribute or deliver a controlled substance (tramadol), tampering with evidence, felony child abuse, and two counts of misde- meanor child abuse. Theisen and the State entered into a plea agreement whereby Theisen would plead guilty to conspiracy to distribute or deliver hydrocodone and tramadol and to felony child abuse and the State would dismiss the remaining charges. This dismissal was noted by an interlineated copy of the amended information which contained the following remaining allegations: [Conspiracy to Distribute or Deliver Hydrocodone:] Theisen, on or about the 1st day of June, 2016, through the 23rd day of August, 2018, in Madison County, Nebraska, with intent to promote or facilitate the commission of a felony offense, did agree with another person or persons that they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense of delivery or distribution of the controlled substance hydrocodone. Complainant further states that [Theisen] or another with whom [she] conspired with committed an overt act in furtherance of the conspiracy, to wit: [Theisen] was buying and/or sell- ing hydrocodone. .... [Conspiracy to Distribute or Deliver Tramadol:] Theisen, on or about the 1st day of June, 2016 through the 23rd day of August, 2018, in Madison County, Nebraska, with the intent to promote or facilitate the commission of a felony, did agree with another person or persons that - 595 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense of the delivery or the distribution of the controlled substance tramadol. Complainant further alleges that [Theisen] or another person with whom [she] conspired with committed an overt act in furtherance of the conspiracy, to wit: [Theisen] was buying and/or sell- ing tramadol. .... [Child Abuse:] Theisen, on or about the 1st day of June, 2016 through the 23rd day of August, 2018, in Madison County, Nebraska, did knowingly and intentionally cause or permit a minor child, or minor children, specifically K.S. to be a) placed in a situation that endangered the minor child’s or minor children’s life or physical or men- tal health; and/or b) cruelly confined or cruelly punished; and/or c) deprived of necessary food, clothing, shelter, or care; and/or d) placed in a situation to be sexually exploited by allowing, encouraging, or forcing such minor child to solicit for or engage in prostitution, debauchery, public indecency, or obscene or pornographic photog- raphy, films, or depictions; and/or e) placed in a situa- tion to be sexually abused as defined in Section 28-319, 28-319.01, or 28-302.01; and/or f) placed in a situation to be a trafficking victim as defined in Section 28-830[.] The district court was informed of this agreement at a pre- trial conference, and the court rearraigned Theisen on the three remaining counts, to which Theisen pled guilty. Following an advisement of Theisen’s rights, the court asked Theisen to explain what gave rise to these charges, to which Theisen answered: Last year in August, Department of Health and Human Services became involved in my life, and my children were removed because I admitted everything. I — I guess the painkillers stemmed from a back injury and I became addicted to them, and I was buying and selling - 596 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 them to support my habit. There is so much information, it’s hard to explain. In response to the court’s questioning regarding whether Theisen was selling hydrocodone and tramadol between the dates of June 1, 2016, and August 23, 2018, in Madison County, Nebraska, Theisen responded, “Yes.” The court then asked the State to provide the balance of the factual basis for the charges, and the State explained: In terms of the child abuse, law enforcement officers interviewed both the victim, [Theisen’s] mother, as well as [Theisen’s] other daughter. I think, approximately, vic- tim was age 17, the other daughter was approximately age 15, I believe, at the time. They all confirmed that [Theisen] physically and psy- chologically abused one daughter in particular over an extended period of time. Would hit her, slap her, essen- tially force her to do, you know, menial tasks around the home. Giving her deadlines to get things done rather than doing those tasks herself, those type of things. .... [As to the conspiracy to distribute or deliver hydroco- done and tramadol charges, Theisen] would, as she sort of said, she would buy and get painkillers and then sell them as well. Additionally, according to her daughter, she would actually have them text potential buyers ahead of time that the sales would be taking place. They reported — the daughters reported actually receiving threats back from some of those drug dealers and purchasers about the sales going on. Additionally, she would work with others involved in this ring to buy and sell the drugs. The court found there was a sufficient factual basis and accepted Theisen’s guilty pleas. Theisen was sentenced to con- secutive terms of 6 to 12 years’ imprisonment for conspiracy to distribute or deliver hydrocodone, 1 to 3 years’ imprisonment - 597 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 for conspiracy to distribute or deliver tramadol, and 1 to 3 years’ imprisonment for child abuse. ASSIGNMENTS OF ERROR Theisen assigns that the district court erred in accepting her guilty pleas to the conspiracy charges, because (1) the charging information was insufficient to establish overt acts in furtherance of the conspiracy and (2) the factual basis was insufficient under Wharton’s Rule to establish participation of two or more persons beyond those actions which are neces- sary for the commission of the underlying offenses. Theisen also assigns she received ineffective assistance, because trial counsel failed to advise her that under Wharton’s Rule, she could not be convicted of conspiracy, and trial counsel had a conflict of interest from previous representation of a State’s material witness. STANDARD OF REVIEW [1,2] A trial court is afforded discretion in deciding whether to accept guilty pleas, and an appellate court will reverse the trial court’s determination only in case of an abuse of discre- tion. 1 An abuse of discretion 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 sub- mitted for disposition. 2 [3,4] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a ques- tion of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. 3 We determine as a matter of law whether the record conclusively shows that (1) a defense counsel’s performance was deficient or (2) a defendant was 1 State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019). 2 State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018). 3 State v. Hood, 301 Neb. 207, 917 N.W.2d 880 (2018). - 598 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 or was not prejudiced by a defense counsel’s alleged defi- cient performance. 4 ANALYSIS Sufficiency of Amended Information Theisen was charged, by the amended information, with conspiracy to distribute or deliver hydrocodone and tramadol. Under Neb. Rev. Stat. § 28-202(1) (Cum. Supp. 2018), a per- son is guilty of criminal conspiracy if, with intent to promote or facilitate the commission of a felony: (a) He [or she] agrees with one or more persons that they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense; and (b) He [or she] or another person with whom he [or she] conspired commits an overt act in pursuance of the conspiracy. Neb. Rev. Stat. § 29-2014 (Reissue 2016) specifies that the State must allege overt acts in charging conspiracy, by stating: In trials for conspiracy, in cases where an overt act is required by law to consummate the offense, no conviction shall be had unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts so alleged be proved on trial; but other overt acts not alleged in the indictment may be given in evidence on the part of the prosecution. Theisen assigns the amended information failed to suffi- ciently allege conspiracy to distribute or deliver hydrocodone and tramadol. Specifically, Theisen claims the amended infor- mation failed to allege overt acts conducted in furtherance of the alleged conspiracy. [5-8] An information must inform the accused with rea- sonable certainty of the crime charged so that the accused may 4 Id. - 599 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 prepare a defense to the prosecution and, if convicted, be able to plead the judgment of conviction on such charge as a bar to a later prosecution for the same offense. 5 As such, an informa- tion must allege each statutorily essential element of the crime charged, expressed in the words of the statute which prohibits the conduct charged as a crime or in language equivalent to the statutory terms defining the crime charged. 6 Where an information alleges the commission of a crime using language of the statute defining that crime or terms equivalent to such statutory definition, the charge is sufficient. 7 However, when the charging of a crime in the language of the statute leaves the information insufficient to reasonably inform the defendant as to the nature of the crime charged, additional averments must be included to meet the requirements of due process. 8 [9-11] We have held that an “‘information first questioned on appeal must be held sufficient unless it is so defective that by no construction can it be said to charge the offense for which the accused was convicted.’” 9 And “‘a complaint or information is fatally defective only if its allegations can be true and still not charge a crime.’” 10 In addition, “‘[n]o infor- mation shall be deemed invalid for any defect or imperfection which does not prejudice the substantial rights of the defendant upon the merits.’” 11 Under each conspiracy charge, the amended informa- tion alleged Theisen “did agree with another person or per- sons” to “engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense of [delivery or distribution of hydrocodone and tramadol].” The 5 In re Interest of Jordan B., 300 Neb. 355, 913 N.W.2d 477 (2018). 6 Id. 7 Id. 8 Id. 9 Peterson v. Houston, 284 Neb. 861, 868, 824 N.W.2d 26, 33 (2012). 10 Id. 11 Id. - 600 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 information further alleged Theisen “or another [person] with whom [Theisen] conspired with committed an overt act in fur- therance of the conspiracy, to wit: [Theisen] was buying and/ or selling [hydrocodone and tramadol].” The language used in the charging information modeled the statutory language of § 28-202(1)(a) in alleging Theisen “did agree” with another person or persons to “engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense.” The information continued by naming distribution or delivery of hydrocodone and tra- madol as each count’s underlying offense. The information likewise modeled the language of § 28-202(1)(b) in alleging Theisen “or another [person] with whom [Theisen] conspired” committed “an overt act in furtherance of the conspiracy.” Accordingly, the information was sufficient to inform Theisen that the State was charging her with conspiracy under § 28-202 and alleging she engaged with others for the distribution or delivery of hydrocodone and tramadol. Theisen further argues that the information was insufficient to reasonably inform her as to the nature of the crime by operation of § 29-2014. As quoted above, § 29-2014 requires a charging document “expressly” allege one or more overt acts in furtherance of a conspiracy. Theisen contends that § 29-2014 required the State to allege an overt action other than the underlying offense of distribution or delivery of a controlled substance. In support of this proposition, Theisen cites State v. Marco 12 and State v. McKay, 13 a Nebraska Court of Appeals unpublished opinion. [12] Contrary to this argument, neither of these opinions held § 29-2014 requires that the expressed overt acts cannot be allegations of the underlying crime for which the parties conspired. Instead, Marco held that an allegation the defend ant “‘or another person with whom he conspired did commit 12 State v. Marco, 230 Neb. 355, 432 N.W.2d 1 (1988). 13 State v. McKay, No. A-92-057, 1993 WL 13458 (Neb. App. Jan. 26, 1993) (not approved for permanent publication). - 601 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 an overt act,’” without more, failed to expressly allege an overt act. 14 The case explained that “expressly” alleging an overt act cannot simply be stating that the parties committed an overt act. 15 [13,14] Similarly, in McKay, the defendant was charged with criminal conspiracy. The State’s information alleged that the defendant “‘agree[d] with one or more persons that they or one or more of them would harvest more than one pound of mar- ijuana and he or another person with whom he conspired did commit an overt act in pursuance of the conspiracy, to-wit: Defendant along with [another person] conspired together to harvest and possess more than one pound of marijuana.’” 16 The Court of Appeals explained that “[i]t is axiomatic that the open, manifest, and apparent conduct or overt act of a conspir- acy which tends to show a preexisting conspiracy . . . cannot be [the defendant’s and conspirator’s] conspiring together.” 17 Stated another way, the expressed overt act in furtherance of the conspiracy cannot be the act of conspiring. 18 Instead, a proper information charging conspiracy should indicate the offense which is the object of the conspiracy and expressly allege an overt act conducted in furtherance thereof. 19 Here, the information explicitly alleged overt acts. In addi- tion to its language mirroring § 28-202(1)(a) and (b) and alleging Theisen agreed with others to engage in the underly- ing offenses, the information also alleged “overt act[s] in fur- therance of the conspiracy, to wit: [Theisen] was buying and/ or selling [hydrocodone and tramadol].” These allegations are 14 Marco, supra note 12, 230 Neb. at 357, 432 N.W.2d at 3. 15 Id. 16 McKay, supra note 13, 1993 WL 13458 at 1. 17 Id. at 2. 18 See id. 19 Id. - 602 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 sufficient to satisfy the requirement under § 29-2014 that the charging document expressly allege an overt act in furtherance of the conspiracy. Because the information sufficiently alleged conspiracy under § 28-202 and expressly alleged overt acts pursuant to § 29-2014, the information was sufficient to reasonably inform Theisen as to the nature of the crime charged and the district court did not err in accepting Theisen’s pleas. Sufficiency of Factual Basis Theisen challenges the sufficiency of the factual basis to support her convictions of conspiracy to distribute or deliver hydrocodone and tramadol. On this assignment, Theisen argues the State failed to establish conspiracy under Wharton’s Rule by failing to allege participation of two or more persons beyond those necessary for the commission of the underly- ing crimes. [15,16] To support a plea of guilty or no contest, the record must establish that (1) there is a factual basis for the plea and (2) the defendant knew the range of penalties for the crime with which he or she is charged. 20 A sufficient factual basis requires that the State present sufficient facts to support the elements of the crime charged. 21 One criminal statute regarding controlled substances explains that “it shall be unlawful for any person knowingly or inten- tionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dis- pense a controlled substance.” 22 Under Neb. Rev. Stat. § 28-401 (Supp. 2019), subsection (9) currently defines “[d]istribute” as “to deliver other than by administering or dispensing a con- trolled substance” and subsection (12) defines “[d]eliver” as “the actual, constructive, or attempted transfer from one person 20 State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019). 21 See id. 22 See Neb. Rev. Stat. § 28-416(1)(a) (Cum. Supp. 2018). - 603 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 to another of a controlled substance, whether or not there is an agency relationship.” Under § 28-202(1), all that is required for a conviction is proof that the agreement was entered into and an overt act in furtherance of the conspiracy was committed. 23 The criminal act is the agreement itself, and the ultimate act agreed to by the conspirators need never take place. 24 [17] In evaluating conspiracy charges, we have applied Wharton’s Rule as an exception to conspirator liability. 25 This exception stands for the principle that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission. 26 [18,19] The application of Wharton’s Rule is limited to instances where the number and identity of persons involved in the conspiracy are the same as the number and identity of per- sons required to commit the underlying substantive offense. 27 As such, there is an exception to Wharton’s Rule that provides a conspiracy charge may be filed if more or different people participate in the conspiracy than are necessary to commit the substantive offense. 28 Theisen contends that distributing and delivering controlled substances necessarily involves multiple people, including the sellers and buyers of the product. Because of that necessary involvement, Theisen suggests that she could not be convicted 23 See §§ 28-202 and 29-2014. 24 See id. 25 State v. Utterback, 240 Neb. 981, 485 N.W.2d 760 (1992), disapproved on other grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999). 26 Id. See Iannelli v. United States, 420 U.S. 770, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975). 27 See Utterback, supra note 25. See, also, State v. Clason, 3 Neb. Ct. App. 339, 526 N.W.2d 673 (1994). 28 See Utterback, supra note 25. See, also, Clason, supra note 27, citing Baker v. United States, 393 F.2d 604 (9th Cir. 1968), and People v. Incerto, 180 Colo. 366, 505 P.2d 1309 (1973). - 604 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 of conspiracy. In support of her contention, Theisen directs us to our holding in State v. Utterback. 29 In Utterback, the issue on appeal concerned the reliability of an informant and analyzed whether an admission by the informant that he bought marijuana from a specific individual was against his penal interests. Since purchasing marijuana was not a statutorily proscribed act in Nebraska, the court looked at whether such admission could be used to pros- ecute for conspiracy to distribute or deliver a controlled sub- stance. Applying Wharton’s Rule, we found that the informant could not be charged with conspiracy to distribute or deliver, because he was the buyer, a necessary party to the underly- ing crime. The instant case is distinguishable from Utterback. Here, the factual basis provided by the State sets forth sufficient facts to find the participation of conspirators beyond the specific sell- ers and buyers of the drugs. In the court’s receipt of Theisen’s pleas, Theisen confirmed that she had sold hydrocodone and tramadol between June 1, 2016, and August 23, 2018. The State then explained that Theisen “would actually have [her daughters] text potential buyers ahead of time that the sales would be taking place,” that “the daughters reported actually receiving threats back from some of those drug dealers and purchasers about the sales,” and that Theisen “would work with others involved in this ring to buy and sell the drugs.” We note as well that the police reports contained within the presentence investigation report further detail the participation of Theisen’s daughters in the overt act of purchasing controlled substances. Such participation involved more and different people than necessary for the delivery and distribution of hydrocodone and tramadol. Accordingly, Wharton’s Rule does not prohibit Theisen’s conviction for the conspiracy counts and the district court did not err in accepting Theisen’s pleas. 29 Utterback, supra note 25. - 605 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 Failure to Advise Theisen of Wharton’s Rule Theisen assigns her trial counsel was ineffective for failing to properly advise her that Wharton’s Rule prohibited her con- victions on the conspiracy charges. [20,21] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal depends upon the sufficiency of the record to address the claim to determine whether a defense counsel’s performance was deficient and whether the defendant was prejudiced by the alleged deficient performance. 30 We have said the record is sufficient if it estab- lishes either that trial counsel’s performance was 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 plausible trial strategy. 31 For the reasons stated above, Wharton’s Rule did not restrict Theisen from being charged and convicted of conspiracy to distribute or deliver hydrocodone and tramadol. Therefore, Theisen cannot show prejudice from trial counsel’s alleged failure to properly advise her on the application of Wharton’s Rule and this assignment is without merit. Conflict of Interest Theisen assigns she received ineffective assistance due to her trial counsel’s representation of a material witness for the State. Under this assignment, Theisen claims her counsel “pre- viously represented Brooks Boyer who was a defendant against [Theisen] in a divorce action which was filed by [Theisen].” 32 Theisen alleges Brooks Boyer “played a very large role in the criminal investigation being initiated against [her], includ- ing providing statements and documentary evidence against 30 See Hood, supra note 3. 31 State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). 32 Brief for appellant at 24. - 606 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. THEISEN Cite as 306 Neb. 591 [Theisen].” 33 Citing a long-term attorney-client relationship between trial counsel and Boyer, Theisen argues there existed an actual conflict of interest which compromised trial counsel’s ability to adequately and properly represent Theisen. [22,23] The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. 34 The determining factor is whether the record is sufficient to adequately review the question. 35 The record on appeal contains no information as to trial counsel’s alleged representation of Boyer or how that previous relationship could have affected the representation of Theisen. Thus, the record is insufficient to review this assignment on direct appeal. CONCLUSION The information expressly alleged overt acts in further- ance of the charged conspiracy to distribute and deliver hydrocodone and tramadol, and the factual basis was suffi- cient to satisfy Wharton’s Rule and support Theisen’s guilty pleas. Accordingly, we affirm Theisen’s convictions and find Theisen’s assignment of ineffective assistance of trial coun- sel for failure to advise her of Wharton’s Rule to be without merit. However, we conclude the record is insufficient to reach Theisen’s claim of ineffective assistance due to her trial coun- sel’s alleged conflict of interest. Affirmed. 33 Id. 34 State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). 35 Id.	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4553886/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 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/3392448/	An alternative writ of mandamus issued and filed July 19, 1939, by the circuit judge in effect alleges that the Northern Investment Corporation, a Florida corporation, on about June 25, 1937, filed a written request with the Clerk of the Circuit Court for Pinellas County, Florida, that he offer for sale any and all tax certificates then held by the State of Florida and more than two years old, together with all subsequent omitted or levied taxes covering lands in Pinellas County, Florida, described as Lots 9 to 12, inclusive, Block 46, Bayboro Subdivision, Section 30, Township 31 South, Range 17 East, such sale to be conducted in accordance with the provisions of Chapter 18296, Laws of Florida, 1937; that notice was published in accordance with said chapter; that on July 16, 1937, the clerk offered for sale Tax Certificate No. 14862, sale of 1929, Tax Certificate Page 388 No. 14747, sale of 1930, and part of Tax Certificate No. 29090, sale of 1933, all covering the described land, together with subsequent and omitted State and county taxes for the years 1930, 1931, and 1933 to 1937, inclusive, assessed and levied upon said land; that said tax certificates and subsequent and omitted taxes were sold to Northern Investment Corporation; that more than two years have expired since the purchase of the tax certificates and taxes referred to, and no person holding the legal title to the described land nor a lien holder has offered to redeem the same under the provisions of Chapter 18296; that under said chapter relator has become and is entitled to the right to apply for a tax deed covering said lands, said lands not constituting a homestead; that on July 17, 1939, relator by its attorneys, presented to respondent clerk at his office, said tax certificates together with receipts for subsequent and omitted taxes and requested said clerk to accept relator's application for a tax deed upon said lands and to issue to relator a tax deed covering said lands in accordance with the provisions of the statutes of Florida relating to the procedure for obtaining a tax deed by the holder of said tax sale certificates, and at the same time tendered to said clerk $11.20 representing his fees, costs and charges for issuing said tax deed; "and presented to said clerk a statement showing the full amount due upon said tax certificates and taxes, calculated at the original statutory rate and upon the original principal amounts of said tax certificates and taxes, to be $1,504.83, and asked that the tax deed issue for this amount plus the amount tendered by relator in payment of the clerk's fees, costs and charges for issuing said tax deed, unless those entitled by law to redeem said lands pay said respective amounts; that relator's request was refused by the respondent because of his belief that the only amount Page 389 recoverable upon said tax sale certificates and taxes is the amount bid and paid therefor at the sale held under Chapter 18296, together with interest at the rate of 3 per cent per annum from the date of such sale; that the taxes evidenced by the tax sale certificates and subsequent or omitted taxes hereinabove described were lawfully assessed and levied, and no valid or legal reason exists for the clerk not accepting relator's application for tax deed and for not issuing said tax deed as requested; that relator is still the owner and holder of said tax sale certificates and taxes and that the same are ready to be produced upon the direction of this court; that it was and is the legal duty of respndent to accept relator's application for tax deed and to issue and execute such tax deed to relator upon failure of those having a lawful right to redeem to pay to the clerk the sum of $1,516.03; that no one except the respondent could legally accept relator's application for tax deed and legally execute such deed upon failure of those having a lawful right to redeem to exercise such right, and relator was and is without remedy except by mandamus. "Now THEREFORE, we being willing that justice may be done in the premises, do hereby command you the respondent, Ray E. Green, as clerk of the Circuit Court of Pinellas County, Florida, to forthwith accept relator's application for tax deed based upon the tax certificates and subsequent or omitted taxes hereinabove described and issue, execute and deliver to relator a tax deed covering the lands described in said tax sale certificates, upon failure of those having the lawful right to redeem to exercise such right and pay to you the sum of $1,516.03, or that you show cause before this court, on the 20th day of July, 1939, at ten o'clock A. M. or as soon thereafter as this cause can be reached, why a peremptory writ should not issue from this Page 390 court commanding the same to be done, and have you then and there this writ. "DONE AND ORDERED at Chambers in Clearwater, Florida, this 18th day of July, A.D. 1939. "T. FRANK HOBSON, Judge of the Circuit Court." The answer of respondent includes the following: "Respondent says that no proof has been submitted as to whether or not said land described in said petition constitutes a homestead and respondent says that until such question is adjudicated or determined he cannot, without endangering the rights both of respondent as well as the fee simple owner of said property, advertise said property for sale for purpose of issuance of tax deed. Respondent says that he is without knowledge or precedent as to the manner or method whereby determination or adjudication of the said question should be made, but deems it imperative that such determination or adjudication be made before relator's said application for tax deed is accepted; * * that he was, and is, under no legal duty to accept relator's application for tax deed, and particularly upon the basis requested by relator, for the reasons heretofore, and hereinafter, set forth; * * * that he is without legal precedent as to what sum is required of the owner to redeem the said certificates of relator, or what sums shall be determined and considered the bid of relator for the property in the event same is advertised and sold for tax deed, but respondet's interpretation of said law is that the amount required by the owner of the property to redeem said certificate, or the amount to be considered the bid of relator for the property in the event same is advertised and sold for tax deed, is the actual amount paid by relator, plus interest and costs. Respondent denied that relator is entitled to any such sum as $1,560.03 in the event the owner Page 391 of the property now wishes to redeem, nor is the relator entitled to have any such sum considered as relator's bid for the property upon advertisement of the property for sale for tax deed, but respondent is ready and willing, when proper determination or adjudication is made of the question as to whether or not this property constitutes a homestead, to accept relator's application for tax deed, and proceed with the sale of said property on the following basis: "Respondent's records show that relator paid for said tax certificates the sum of $40.10, $30.00 of said amount represented the bid for said certificates, and $10.10 the cost of fees in connection with the sale thereof; the relator will be required to pay the sum of $11.20 to respondent for additional fees, costs and publication charges, in order to have the property advertised for tax deed, and in the event the taxes are redeemed prior to the sale, respondent will require the party redeeming to pay the sum of $40.10 plus 3% interest per annum on the sum of $30.00 from July 16th, 1937, the date of the sale of said certificates, plus the said sum of $11.20, and in addition to said amount interest on the total of such sums for one month at the rate of 8% per annum. Respondent says that if the said tax certificates are not redeemed prior to the sale for tax deed the amount considered the bid of relator will be the amount hereinbefore referred to as the amount required of the owner to redeem said certificates. * * "Wherefore, it is apparent that relator is not entitled to receive any such sum as $1,504.83 in the event said certificates are redeemed, or is not entitled to have any such sum considered as his bid upon said property in the event same is sold for tax deed, but if entitled to any sum more than the amount actually paid for such certificates, plus costs Page 392 and interest, is entitled to no more than the face amount of the certificate upon which application for tax deed is based, plus interest, together with the amount actually paid for other certificates and subsequent and omitted taxes." A peremptory writ was awarded with the following command: "Now THEREFORE, we command you the respondent, Ray E. Green, as Clerk of the Circuit Court of Pinellas County, Florida, to forthwith accept relator's application for tax deed based upon the tax certificates and subsequent or omitted taxes described in relator's petition for writ of mandamus and upon the surrender and delivery to you of said tax sale certificates and receipts for subsequent or omitted taxes by relator, proceed to issue, execute and deliver to it a tax deed covering the lands described in said tax sale certificates, in accordance with the provisions of the statutes of Florida relating to the procedure for obtaining a tax deed by the holder of tax sale certificates, upon failure of those having a lawful right to redeem to exercise such right; and that in calculating the amount necessary to redeem and the amount to be considered as the bid of the relator at the sale held in connection with its application for tax deed, you will add to the amount due you for your legal fees and costs, the full amount due upon said tax sale certificates and taxes calculated upon their original principal amounts at the original statutory rate of interest. The total of said amounts including your legal fees and costs, is hereby determined to be $1,516.03." Respondent took writ of error and assigned as error the peremptory writ as issued. In a written application for a tax deed upon tax certificates sold under Chapter 18296, Acts of 1937, a statement in such written application or otherwise made a part thereof Page 393 that the lands described in the tax certificates do not constitute a homestead may if not duly challenged be primafacie sufficient to justify the issuance of a tax deed, when it is otherwise lawful to issue the tax deed. Chapter 18296, Acts of 1937, known as the Murphy Act, provides that: "It shall be the duty of any Clerks of Circuit Courts of the State of Florida, having custody or control of any tax certificates held by the State of Florida, that are more than two years old, to offer such certificates together with all subsequent omitted or levied taxes for sale at public outcry to the highest and best bidder for cash, when written request is made by any person for such sale, such written request to give description of land covered by such certificate sought to be purchased." The clerk is required to publish notice of the sale "at public outcry," "not more than three weeks after such application." If a "tax certificate together with subsequent or omitted taxes are purchased under the terms of this Act by any person or persons or corporation, not the owner of the land described in such certificate, then at the expiration of two years from the date of such certificate, such purchaser shall have the right to apply for tax deed as now provided by law for land described in such certificate, provided that for two years from date of sale of such certificate the owner of said land, that is, the person who held title to said land on date said certificate became two years old, or any grantee of such person, or their legal representative or any one holding any lien on such land, shall have the right to re-deem such land from any or all of such tax certificates so sold, by the payment to purchaser thereof the amount bid therefor plus 3% per annum from the date of such certificate Page 394 together with all costs paid by such purchaser in connection with purchasing said certificate." "In the event any tax certificate together with subsequent or omitted taxes on a homestead are purchased under terms of this Act by any person or persons or corporations, not the owner of the land described in such certificate, then at the expiration of ten (10) years from the date of such sale of such certificate such purchaser shall have the right to apply for tax deed as now provided by law for land described in such certificate, provided that for ten (10) years from date of sale of such certificate the owner of said land, that is, the person who held title to said land on date said certificate became two years old or any grantee of such person or their legal representative or anyone holding any lien on such land shall have the right to redeem such land from such tax certificates so sold by the payment to purchaser thereof the amount bid therefor plus three per cent (3%) per annum from the date of sale of such certificate together with all costs paid by such purchaser in connection with purchasing said certificate." The statute and the tax sale certificate in this case provide that the lands described in the tax sale certificate may "be redeemed by payment of such amount and within such periods of time as are provided by law," Section 981 (766) C. G. L. as amended by Chapter 14572, Acts 1929, Section 981 (766) Perm. Supp. to C. G. L.; and Section 985 (770) C. G. L. as amended by Section 9, Chapter 14572, Acts of 1929, Section 985 (770) Perm. Supp. to C. G. L. authorizes a redemption "at any time after a tax sale and before a tax deed is issued therefor." The statutory tax deed contains the following: "No person entitled to do so having appeared to redeem said land." "That said land should continue Page 395 subject and liable to any unpaid taxes thereon." See Sec. 10, Ch. 17457, Acts 1935. The clear intendments of Chapter 18296 are that in the redemption of lands covered by tax sale certificates sold under that Chapter to one not the owner of the land, the personsentitled to so redeem shall have the privilege of redeeming the lands by paying the amount bid and paid for the certificate and the subsequent omitted or levied taxes on the land to be redeemed, "plus 3%, per annum from the date of such certificate together with all costs," etc., not only when the redemption is during the two-year period "from date of sale of such certificate," but shall also have those terms applied to the first two-year period when redemptions are made after two yearsfrom the sale of tax certificates under Chapter 18296, Acts of 1937. This accords with the terms of the tax sale certificates covering the lands and the provisions of the other statutes allowing redemption to be made at any time before a tax deed is issued by the payment of "such amounts as are prescribed by law." Chapter 18296 gives to the purchaser of tax certificates, who is not the owner of the land, after two years from the purchasing the certificates "the right to apply for tax deed as now provided by law for land described in such certificate, provided that for two years from date of sale of such certificate" the owner and others may redeem on the above liberal terms. It is the manifest purpose of the Act that the stated liberal terms shall be allowed for two years even though the redemption is not made until after two years from the sale of the tax certificate under Chapter 18296, since the object and intent of the statute is to afford more liberal terms for redemption than is allowed by any previous enactment. Page 396 Section 6, Chapter 18296, makes the general law on the subject apply to applications for tax deeds and it is entirely consistent and appropriate for the statutes to require the application of the general law for redeeming the land before a tax deed is issued, not to the entire period after the sale of tax certificates under Chapter 18296 to the date of redemption, but only to the time after the two years during which more liberal terms of redemption were expressly provided for by Section 6, Chapter 18296. The purpose of the latter Act is to facilitate and encourage redemption of land from delinquent tax burdens; and the purpose of the general law, Section 985 (770) C. G. L. as amended in 1929, is to allow redemptions until tax deeds are issued, upon such terms as the law may provide, as stated in the tax certificate under the statute. The terms upon which lands described in tax sale certificates issued to the State may be redeemed have been changed many times in the interest of taxpayers, the leading purpose being that tax sale certificates issued to the State shall be subject to redemptionat any time before tax deeds are issued covering the land described in the tax certificates, and upon the terms stated in the latest statutes as far as they may be applied to accomplish the legislative intent to afford all legal means to enable land owners to redeem their lands from delinquent tax liens. Section 6, Chapter 18296, Acts of 1937, in providing that purchasers, other that the land owner, of tax sale certificates held by the State for unpaid taxes and sold at public outcry, may, after two years from the sale of the tax certificates, apply for a tax deed covering the land described in the purchased tax certificates under the law then in force, necessarily referred to Chapter 17457, Acts of 1935, which requires all applications for tax deeds issued on the Page 397 tax certificates to be filed with the clerk of the circuit court whose duty is to publish notice of a future sale at public outcry of the lands described in the tax certificates to the highest and best bidder for cash; and a tax deed may in due course be issued to the purchaser of the tax certificate at such public outcry. Those authorized to do so may redeem the land before a tax deed is issued by paying to the holder of the tax certificate "the amount required to redeem the tax certificate, plus the amounts paid by the holder thereof to the clerk of the circuit court in fees, costs of sale, redemption of other tax certificates on the same property, in short, all costs which the applicant for tax deeds has been put to, plus interest thereon at the rate of 8 per centum per annum for one month." Sec. 999 (142) Perm. Supp. to C. G. L. What is "the amount required to redeem the tax certificate' during the two years after the sale of the tax certificate under Chapter 18296, Acts of 1937, is definitely stated in the latter Act. But as the land may be redeemed at any time before a tax deed is issued, such Act does not expressly regulate redemptions after such two-year period, and the amount required to redeem the tax certificate after two years from the sale of the tax certificate under Chapter 18296, must be found in other statutes on that subject. Section 985 (770) C. G. L. as amended by Section 9, Chapter 14572, Acts of 1929, provides that the owner, etc., of "lands sold for taxes * * * may redeem the same at any time after such sale (by the tax collector) and before a tax deed is issued therefor, by paying * * * the face of the certificate of sale and interest thereon at the rate of 18 per cent per annum for the first year and 10 per cent per annum for the second year, and eight per cent per annum thereafter, but not less than 5 per cent of the face of the Page 398 certificate." The redemption of subsequent tax certificates or omitted taxes is also provided for by the statute. In this case the tax certificates were sold by the clerk under Chapter 18296 and the tax deed is applied for after two years from such sale of the tax certificates, and after application has been made for a tax deed to the land described in the tax certificates mentioned above. It is entirely clear that Chapter 18296, Acts of 1937, is intended to afford extremely liberal terms for the redemption by authorized parties of lands covered by tax sale certificates held by the State for more than two years; and that such liberal terms were to apply pro tanto to the period after the two years from such sale and after tax deed is issued, as well as to the two years after such sale expressly provided for in Chapter 18296. This is in accord with the policy and intendments of Chapter 18296, and with the statutes making the lands described in the tax certificates redeemable according to laws regulating from time to time the periods within which, and the payments for which, such lands may be redeemed, the laws all being intended to favor taxpayers both as to amounts required and to time of redemption. The result is that the amounts required to be paid for redemption in this case are (1) the $40.10 paid for the tax certificates and subsequent or omitted taxes; (2) interest thereon at 3 per cent per annum from the date of the tax certificate to July 16, 1939, two years after the sale under Chapter 18296; (3) the face of the oldest of the three tax certificates; (4) interest thereon at 18 per cent per annum for the first year from July 16, 1939, 10 per cent per annum for the second year, 8 per cent per annum thereafter, "but not less than 5 per cent of the face of the tax certificate"; (5) all clerk's costs and expenses incurred in obtaining the Page 399 tax certificates, etc. Secs. 985 (770) Perm. Supp. C. G. L. See also Sec. 999 (143) Perm. Supp. C. G. L. Under Chapter 18296 the oldest tax certificate and all subsequent certificates or omitted taxes are sold and redeemed together. Under prior statutes each certificate and omitted tax is redeemed or sold separately. The two latter tax certificates and the tax receipts issued by the clerk in this case, representing subsequent or omitted taxes on the land, were included in the sale made for $40.10 under Chapter 18296. Chapter 18296, Acts of 1937, was intended to greatly modify in favor of taxpayers the policy expressed in Section 42 and other provisions of Chapter 14572, Acts of 1929, and other statutes on the subject of the redemption of lands covered by tax sale certificates held by the State. The judgment awarding a peremptory writ of mandamus on the terms stated in the writ is reversed and the cause is remanded for appropriate proceedings not inconsistent with this opinion. It is so ordered. TERRELL, C. J., and BROWN, BUFORD, CHAPMAN and THOMAS, J. J., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3848693/	For the reasons given in No. 16, May Term, 1933, between G. Frank Lindenmuth and the Commonwealth of Pennsylvania, just preceding, these appeals between the same parties, are reversed and judgments are directed to be entered for the Commonwealth, costs to be paid by appellee.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/4553889/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 AM CDT - 499 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 State of Nebraska, appellee, v. Richard J. Saitta, appellant. ___ N.W.2d ___ Filed July 17, 2020. No. S-19-697. 1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding histori- cal facts, an appellate court reviews the trial court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews indepen- dently of the trial court’s determination. 2. Constitutional Law: Search and Seizure: Appeal and Error. An appellate court applies a two-part analysis when reviewing whether a consent to search was voluntary. As to the historical facts or circum- stances leading up to a consent to search, the appellate court reviews the trial court’s findings for clear error. However, whether those facts or circumstances constituted a voluntary consent to search, satisfying the Fourth Amendment, is a question of law, which the appellate court reviews independently of the trial court. And where the facts are largely undisputed, the ultimate question is an issue of law. 3. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Search and Seizure: Investigative Stops: Arrests: Probable Cause: Words and Phrases. There are three tiers of police-citizen encounters under Nebraska law. The first tier of police-citizen encounters involves no restraint of the liberty of the citizen involved, but, rather, the volun- tary cooperation of the citizen is elicited through noncoercive question- ing. This type of contact does not rise to the level of a seizure and there- fore is outside the realm of Fourth Amendment protection. The second category, the investigatory stop, as defined by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is limited to brief, nonintrusive detention during a frisk for weapons or - 500 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 preliminary questioning. This type of encounter is considered a seizure sufficient to invoke Fourth Amendment safeguards, but because of its less intrusive character requires only that the stopping officer have spe- cific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime. The third type of police-citizen encounters, arrests, is characterized by highly intrusive or lengthy search or detention. The Fourth Amendment requires that an arrest be justified by probable cause to believe that a person has committed or is committing a crime. Only the second and third tiers of police-citizen encounters are seizures sufficient to invoke the protections of the Fourth Amendment to the U.S. Constitution. 4. Constitutional Law: Search and Seizure. A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances sur- rounding the incident, a reasonable person would have believed that he or she was not free to leave. In addition to situations where an officer directly tells a suspect that he or she is not free to go, circumstances indicative of a seizure may include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen’s person, or the use of language or tone of voice indicating the compliance with the officer’s request might be compelled. 5. Police Officers and Sheriffs: Investigative Stops: Time. An investi- gative stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. 6. Police Officers and Sheriffs: Investigative Stops: Probable Cause. Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the circumstances and must be determined on a case-by-case basis. 7. Police Officers and Sheriffs: Probable Cause. In determining whether a police officer acted reasonably, it is not the officer’s inchoate or unpar- ticularized suspicion or hunch that will be given due weight, but the specific reasonable inferences which the officer is entitled to draw from the facts in light of the officer’s experience. 8. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject to a few established and well-delineated exceptions. 9. Warrantless Searches. The warrantless search exceptions Nebraska has recognized include: (1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest. - 501 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 10. Warrantless Searches: Motor Vehicles. Nebraska has recognized that among the established exceptions to the warrant requirement is the auto- mobile exception. 11. Warrantless Searches: Probable Cause. Probable cause, standing alone, is not an exception that justifies the search of a person without a warrant. 12. Warrantless Searches. One well-recognized exception to the warrant requirement is a search undertaken with consent. 13. Constitutional Law: Search and Seizure: Duress. Generally, to be effective under the Fourth Amendment, consent to a search must be a free and unconstrained choice, and not the product of a will overborne. 14. Warrantless Searches: Duress. Consent must be given voluntarily and not as a result of duress or coercion, whether express, implied, physical, or psychological. 15. Constitutional Law: Search and Seizure. The determination of whether the facts and circumstances constitute a voluntary consent to a search, satisfying the Fourth Amendment, is a question of law. 16. Search and Seizure. Whether consent to a search was voluntary is to be determined from the totality of the circumstances surrounding the giving of consent. 17. ____. Consent to search may be implied by action rather than words. Appeal from the District Court for Douglas County: J Russell Derr, Judge. Affirmed. Thomas C. Riley, Douglas County Public Defender, and Mary M. Dvorak for appellant. Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Miller-Lerman, J. NATURE OF CASE Richard J. Saitta appeals his conviction and sentence in the district court for Douglas County for possession of a con- trolled substance. The court overruled Saitta’s motion to sup- press evidence, and thereafter in a bench trial, it found Saitta guilty and sentenced him to probation for 1 year. Saitta claims - 502 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 on appeal that the court erred when it overruled his motion to suppress. We affirm Saitta’s conviction and sentence. STATEMENT OF FACTS Saitta was arrested on July 3, 2018, after police officers found a clear plastic bag containing a substance later identified as methamphetamine inside a glove worn by Saitta. Before trial, Saitta filed a motion to suppress all evidence obtained as a result of his encounter with the police on July 3. He asserted that he was seized in violation of the Fourth Amendment because the police did not have reasonable suspicion to detain and question him and that the search of his personal effects was in violation of the Fourth Amendment because the circum- stances did not justify a search without a warrant. At a hearing on the motion to suppress, the State presented the testimony of Cory Buckley, one of the police officers who arrested Saitta. Buckley’s testimony is set forth in more detail below. During Buckley’s testimony, the State offered and the court received into evidence a video recording from Buckley’s body camera depicting Buckley’s encounter with Saitta. During Saitta’s cross-examination of Buckley, Saitta offered and the court received into evidence three still photographs depict- ing the scene of the encounter. The State offered no further testimony or evidence, and Saitta offered no other evidence in his defense. Buckley testified that he was an officer with the Omaha Police Department. At approximately 5:43 a.m. on July 3, 2018, he and his partner were driving on patrol, and as they drove past an alleyway, they observed a person who appeared to be looking into the window of a building that was in the process of being demolished. Buckley testified that he had been aware of the building’s being demolished and that he had made observing the building part of his regular route on patrol because there had been problems with trespassers and people sleeping in the building. He was also aware that there had been “scrappers in that area,” which as he further described - 503 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 meant that “[w]herever there’s buildings under construction, there’s people trying to take metals out of the building being demolished . . . for money.” Upon observing a person in the alley, the officers stopped and backed up their patrol car to get a closer look; Buckley tes- tified that he “believe[d] the person saw us because when we reversed the person was gone.” They turned into the alley to try to make contact or to see if the person had entered the build- ing; as they drove into the alleyway, they noticed the person, who would later be identified as Saitta, “hiding in the bushes” that were “up against the building.” Buckley testified that the officers’ purpose in making contact with Saitta was “[j]ust to see why he was looking in the building” and to “[b]asically, identify him, make sure he’s not breaking in, not stealing any- thing, that he actually belongs in that area.” When the officers got out of their patrol car, Saitta came “out of the bushes to make contact with” them. As Saitta came out of the bushes, Buckley saw “him shove something into his left glove with his right hand.” Buckley observed upon initial contact that Saitta was “super nervous” and “did not like [the officers’] being there.” Buckley also observed, based on his “training and experience,” that the glove Saitta was wearing on his left hand was of “the kind of gloves that are used by like electricians, so they don’t cut their hands up when they’re dealing with wires.” Buckley’s partner asked Saitta what he was doing and whether he was breaking into the building; Saitta replied that he was doing nothing and that he did not have any tools on him, and he put his hands in the air. Buckley’s partner then asked Saitta, “‘Well, what’s this pile of metal doing right here?’” as he gestured toward a small pile of scrap metal that was “[u]p against the build- ing, right by the bush . . . where [Saitta] came out of from behind.” Saitta replied that the metal was not his, and then “he began to back away from” the officers. When Saitta began to back away, Buckley “put [his] hand on [Saitta’s] back to get him to stop.” - 504 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 Buckley replied in the affirmative to the State’s question whether he “inquire[d] to [Saitta] what was in his glove.” He then testified that he “asked [Saitta] to remove the glove and [Saitta] complied.” Buckley then “asked [Saitta] to hand [him] the glove,” and when Saitta handed the glove to him, Buckley saw that “inside the glove was a clear plastic bag” that contained a substance that “later field-tested positive for methamphetamine.” Upon finding the bag and its contents, the officers “immediately placed [Saitta] into handcuffs” and arrested him. On cross-examination, Saitta referred to Buckley’s testi- mony that he “asked” Saitta to remove his glove. Saitta asked Buckley whether “[i]n fact, [he] directed [Saitta] to remove his gloves,” and whether he “told [Saitta] to give it to [him] so that [he] could inspect it.” Buckley agreed with both characteriza- tions. Buckley also agreed with Saitta’s characterization that he and his partner got only a “fairly quick glance” at Saitta when he was looking into a window of the building as they first drove past the alleyway and before they reversed course and turned into the alley. Buckley acknowledged that he had not previously encountered anyone trying to steal scrap metal from that particular building. Buckley further acknowledged that when he approached Saitta, he did not observe any metal in Saitta’s hands and did not observe a vehicle, shopping cart, or other mode of transport available to carry metal. Buckley acknowledged that he and his partner had not found evidence that Saitta was trying to take metal from the building and that at the date of the suppression hearing, he did not “actually know whether . . . Saitta was or was not attempting to get metal from this particular building.” Following the suppression hearing, the district court filed an order overruling Saitta’s motion to suppress. The district court evaluated the evidence and, at the beginning of its analysis, stated with regard to the glove that “this is not a ‘seizure’ as characterized by” Saitta. Instead, the court found that “Officer Buckley simply asked [Saitta] for his glove and [Saitta] gave - 505 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 it to him. There was no seizure at all.” Despite this finding, the court discussed arguendo that there had been a seizure of the glove and continued its analysis accordingly. After discussing the different levels of police-citizen encoun- ters, the court determined that the encounter between Saitta and the officers began as a “tier-one encounter” in which Saitta’s liberty was not constrained but then became an “investigatory stop,” or a “tier-two encounter,” which enjoys a level of Fourth Amendment protection. The court found that the investigatory stop was proper “because, under the totality of the circum- stances, the officers had reasonable suspicion that [Saitta] had, was about to, or was in the process of committing a crime.” The court noted Buckley’s testimony that he saw Saitta when he was looking into the building at around 5:43 a.m., that he knew the building was in the process of being demolished and individuals frequently stole scrap metal from such buildings, and that when he and his partner drove into the alley, Saitta tried to hide in the bushes. The court found these to be “spe- cific and articulable facts that criminal activity was afoot,” and it concluded that reasonable suspicion supported a lawful detention for an investigatory stop. The court then reviewed law to the effect that searches with- out a valid warrant are per se unreasonable, subject to certain exceptions. The court noted that in addition to the evidence which supported reasonable suspicion justifying the investiga- tory stop, Buckley testified that he saw Saitta put something in his left glove when the officers approached him. The court found that it was “reasonable for the officers to believe the furtive gestures of [Saitta were] an attempt to conceal items of a crime.” The court concluded that “probable cause existed in order to justify the search of [Saitta’s] glove” and that Saitta’s “Fourth Amendment rights were not violated because probable cause existed.” The court overruled Saitta’s motion to suppress. After Saitta waived his right to a jury trial, the court con- ducted a bench trial in which the State offered two exhibits—a - 506 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 stipulation of the parties regarding laboratory testing of the substance in the plastic bag found in Saitta’s glove and sepa- rately the transcript of the suppression hearing. Saitta objected to the admission of both exhibits based on the reasons set forth in his motion to suppress, and he renewed the motion to sup- press. The court overruled the renewed motion to suppress and received the evidence over Saitta’s objection. Saitta offered no evidence in his defense, and the court thereafter found Saitta guilty of possession of a controlled substance. After hearing argument by the parties on the issue of sentencing, the court sentenced Saitta to probation for a term of 1 year. Saitta appeals his conviction and sentence. ASSIGNMENTS OF ERROR Saitta claims generally that the district court erred when it overruled his motion to suppress. He specifically claims the court erred when it determined that (1) reasonable and articu- lable suspicion of criminal activity existed to support Saitta’s detention, (2) probable cause existed to search Saitta’s glove, and (3) probable cause to conduct a search provides a valid exception to the Fourth Amendment’s warrant requirement. STANDARDS OF REVIEW [1] In reviewing a trial court’s ruling on a motion to sup- press based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. State v. Degarmo, 305 Neb. 680, 942 N.W.2d 217 (2020). Regarding historical facts, an appellate court reviews the trial court’s find- ings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court’s deter- mination. Id. [2] Likewise, we apply the same two-part analysis when reviewing whether a consent to search was voluntary. Id. As to the historical facts or circumstances leading up to a consent to search, we review the trial court’s findings for clear error. Id. However, whether those facts or circumstances constituted a - 507 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 voluntary consent to search, satisfying the Fourth Amendment, is a question of law, which we review independently of the trial court. State v. Degarmo, supra. And where the facts are largely undisputed, the ultimate question is an issue of law. Id. ANALYSIS Saitta claims that the district court erred when it overruled his motion to suppress evidence obtained as a result of his encounter with police on July 3, 2018. He generally challenges two aspects of the encounter: the seizure of his person and the search of his glove. He argues that the seizure of his person was illegal because the police lacked reasonable suspicion for an investigatory stop, and he argues that the search of the glove was illegal both because the police lacked probable cause to conduct the search and because probable cause alone does not justify a search without a warrant. We conclude that the seizure of Saitta’s person was proper because the police had reasonable suspicion to conduct an investigatory stop, and we conclude that the search of the glove was proper because it was under- taken with consent. Seizure of Saitta’s Person Was Proper Because Police Had Reasonable Suspicion to Conduct an Investigatory Stop. We first address whether the seizure of Saitta’s person was proper. The evidence Saitta sought to suppress was found as a result of the search of the glove, and that search occurred as a result of the seizure of Saitta’s person. Therefore, if the seizure was illegal, then evidence obtained from the search of the glove should have been suppressed. However, we conclude that the detention of Saitta was an investigatory stop that was justified by reasonable suspicion. The State acknowledges that Saitta was detained at the point that Buckley, as he testified, “put [his] hand on [Saitta’s] back to get him to stop.” The State contends, and we agree, that prior to that time, the encounter involved no restraint on Saitta’s liberty. The State further contends that Buckley’s - 508 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 act of detaining Saitta by putting his hand on Saitta’s back was justified as an investigatory stop supported by reason- able suspicion. [3] There are three tiers of police-citizen encounters under Nebraska law. The first tier of police-citizen encounters involves no restraint of the liberty of the citizen involved, but, rather, the voluntary cooperation of the citizen is elicited through noncoercive questioning. State v. Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020). This type of contact does not rise to the level of a seizure and therefore is outside the realm of Fourth Amendment protection. State v. Krannawitter, supra. The second category, the investigatory stop, as defined by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is limited to brief, nonintrusive detention during a frisk for weapons or prelimi- nary questioning. State v. Krannawitter, supra. This type of encounter is considered a seizure sufficient to invoke Fourth Amendment safeguards, but because of its less intrusive char- acter requires only that the stopping officer have specific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime. State v. Krannawitter, supra. The third type of police- citizen encounters, arrests, is characterized by highly intrusive or lengthy search or detention. Id. The Fourth Amendment requires that an arrest be justified by probable cause to believe that a person has committed or is committing a crime. State v. Krannawitter, supra. Only the second and third tiers of police- citizen encounters are seizures sufficient to invoke the protec- tions of the Fourth Amendment to the U.S. Constitution. State v. Krannawitter, supra. [4] A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. State v. Krannawitter, supra. In addition to situations where an officer directly tells a suspect that he or she is not free to go, circumstances indicative of a seizure - 509 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 may include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen’s person, or the use of language or tone of voice indicating the compliance with the officer’s request might be compelled. Id. [5] In this case, a seizure occurred when Buckley physi- cally touched Saitta with the purpose of stopping him from walking away. An investigative stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763 (2019). Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. Id. In this case, the investigatory stop of Saitta was brief and did not extend beyond what was necessary to investigate the sus- picion that prompted Buckley to stop Saitta. Although Saitta was arrested soon after Buckley stopped him from walking away, the arrest was based on the discovery of the bag con- taining methamphetamine, and Saitta does not assert the arrest per se was improper. Instead, he contends the investigatory stop that led to the arrest was improper. We must therefore consider whether Buckley had “specific and articulable facts sufficient to give rise to reasonable suspicion that [Saitta had] committed or [was] committing a crime” and whether he was therefore justified in detaining Saitta for an investigatory stop. See State v. Krannawitter, 305 Neb. 66, 71, 939 N.W.2d 335, 341 (2020). [6,7] As we have said above, an investigatory stop of a person requires that the stopping officer have specific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime. See id. Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the cir- cumstances and must be determined on a case-by-case basis. State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015). In deter- mining whether a police officer acted reasonably, it is not the - 510 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 officer’s inchoate or unparticularized suspicion or hunch that will be given due weight, but the specific reasonable infer- ences which the officer is entitled to draw from the facts in light of the officer’s experience. Id. In this case, Buckley and his partner saw a person looking into the window of a building that was in the process of being demolished. Buckley was familiar with the building because it was on the route of his regular patrol. He knew of complaints about people trespassing and sleeping in the building, and he was also familiar in a general sense that people sometimes took scrap metal from buildings being demolished. Based on the time of day, 5:43 a.m., Buckley could reasonably infer that the person was not there for a proper purpose related to the building, and based on his general and specific knowledge, he could infer the person might be trespassing and possibly attempting to steal metal from the building. During their initial voluntary encounter with Saitta, Buckley and his partner made further observations relevant to suspicion of criminal activ- ity. Buckley’s partner saw a small pile of scrap metal, and he asked Saitta about it. Buckley saw Saitta “shove something into his left glove,” and Buckley knew the glove to be the type one might wear when handling wires. Based on this knowl- edge and knowing that it was a time of year—July—when one would not normally be wearing gloves, Buckley had additional reason to suspect Saitta might be trying to take metal from the building. We conclude that considering the totality of the circum- stances, including the aforementioned observations and rea- sonable inferences from his knowledge as an officer, at the time he detained Saitta, Buckley had a reasonable suspicion based on specific and articulable facts that Saitta had com- mitted or was committing a crime. The investigative stop of Saitta was supported by reasonable suspicion, and therefore, the court did not err when it denied the motion to suppress to the extent the motion relied on an allegedly illegal seizure of Saitta’s person. - 511 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 Search of Saitta’s Glove Was Proper Because It Was Undertaken With Consent. We next consider whether the search of Saitta’s glove vio- lated the Fourth Amendment. Saitta argues that the district court erred when it determined that the officers had probable cause to search the glove and when it determined that prob- able cause in itself is an exception to the warrant requirement. The State concedes that probable cause alone did not justify the warrantless search and that the district court’s reasoning was erroneous. See State v. Perry, 292 Neb. 708, 874 N.W.2d 36 (2010). Notwithstanding the district court’s rationale, the State argues that an exception to the warrant requirement was present because the search was incident to an arrest that was supported by probable cause. However, we need not consider whether there was a proper search incident to an arrest because we conclude that, given the district court’s factual finding, a warrantless search was proper in this case for the reason that it was within a different exception to the warrant requirement— that is, it was conducted with consent. [8-10] Warrantless searches and seizures are per se unreason- able under the Fourth Amendment, subject to a few established and well-delineated exceptions. State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019). The warrantless search excep- tions Nebraska has recognized include: (1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest. State v. Degarmo, 305 Neb. 680, 942 N.W.2d 217 (2020). We have also recognized that among the established exceptions to the warrant require- ment is the automobile exception. State v. Lang, 305 Neb. 726, 942 N.W.2d 388 (2020). [11] The district court in this case determined that “probable cause existed in order to justify the search of [Saitta’s] glove.” However, as Saitta recognizes, we have said that “probable cause, standing alone, is not an exception that justifies the search of a person without a warrant.” State v. Perry, 292 Neb. - 512 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 at 713, 874 N.W.2d at 41. See, also, City of Beatrice v. Meints, 289 Neb. 558, 567, 856 N.W.2d 410, 417 (2014) (“probable cause, standing alone, is not an exception to the search warrant requirement of the Fourth Amendment as applied to real prop- erty”). Compare State v. Lang, 305 Neb. at 740, 942 N.W.2d at 400 (automobile exception applies “when a vehicle is readily mobile and there is probable cause to believe that contraband or evidence of a crime will be found in the vehicle”). As noted above, the State acknowledges that “probable cause to search Saitta’s glove, as articulated in the district court’s written order, is insufficient to resolve whether a Fourth Amendment violation occurred.” Brief of appellee at 20. The State argues, however, that the “search incident to lawful arrest” exception applies. Id. The State explains that for the same reasons the officers had reasonable suspicion to con- duct an investigatory stop of Saitta, they also had probable cause to arrest Saitta “for a criminal offense, such as trespass- ing, burglary, or theft, or an attempt to commit any of those offenses.” Id. at 21. Although the officers eventually arrested Saitta for possession of methamphetamine and did not have probable cause related to that offense until the search of the glove, the State maintains that probable cause for one of the other asserted crimes justified the search as a search incident to arrest. The State’s argument regarding search incident to arrest is problematic because, inter alia, although the officers’ observa- tions were sufficient to provide reasonable suspicion to inves- tigate possible criminal activity such as trespass or theft, the search occurred early in the investigation and at a time when the officers did not yet have probable cause to arrest Saitta for those crimes. In this regard, we note that Buckley conceded at the suppression hearing that he and his partner had not found evidence that Saitta was trying to take metal from the building and that even at the date of the suppression hearing, he did not “actually know whether . . . Saitta was or was not attempting to get metal from this particular building.” - 513 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 [12-16] We need not further consider the State’s argument related to search incident to arrest because we determine that a different exception to the warrant requirement applies in this case—the exception for a search undertaken with consent. One well-recognized exception to the warrant requirement is a search undertaken with consent. State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019). Generally, to be effective under the Fourth Amendment, consent to a search must be a free and unconstrained choice, and not the product of a will overborne. State v. Degarmo, 305 Neb. 680, 942 N.W.2d 217 (2020). Consent must be given voluntarily and not as a result of duress or coercion, whether express, implied, physical, or psychological. Id. The determination of whether the facts and circumstances constitute a voluntary consent to a search, sat- isfying the Fourth Amendment, is a question of law. State v. Degarmo, supra. Whether consent to a search was voluntary is to be determined from the totality of the circumstances sur- rounding the giving of consent. Id. In its order, the district court began its analysis by stating with regard to the glove that “this is not a ‘seizure’ as char- acterized by” Saitta. Instead, the court found that “Officer Buckley simply asked [Saitta] for his glove and [Saitta] gave it to him. There was no seizure at all.” This order includes find- ings of fact that Buckley “simply asked” Saitta for the glove and that Saitta “gave it to him.” Based on those facts, the court made a conclusion of law that there was no Fourth Amendment violation because there was no seizure. On appeal, we review the findings of fact for clear error, but we reach an independent legal conclusion as to whether those facts trigger or violate Fourth Amendment protections. See State v. Degarmo, supra. We determine the district court’s fact findings in this case were not clearly erroneous. Contrary to the district court’s analysis, to the effect that the import of those facts was that there was no seizure, we conclude that those factual findings support the legal conclusion that the circumstances constituted a voluntary consent to the search of the glove. - 514 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 First, we review the fact findings for clear error. The court found that Buckley “simply asked” for the glove. This finding is relevant to our legal analysis of consent because it goes to whether the officers employed duress or coercion to effect the search of the glove. There was some conflict in the evidence on this fact because although in direct testimony Buckley tes- tified that he “asked” Saitta, on cross-examination, he agreed to Saitta’s characterizations that he “directed” or “told” Saitta to give him the glove. The court credited Buckley’s char- acterization on direct examination over his agreement with Saitta’s characterization on cross-examination. The court was also able to view the video from Buckley’s body camera. From our review of the video, we note that in the video, Buckley appears to say to Saitta, “Let me see your glove.” Although these words may be ambiguous as to whether it is a request or a command, the court was able to judge Buckley’s tone of voice and the circumstances and it found that Buckley “simply asked” for the glove. After the district court viewed the video and listened to the testimony, and following our review of the record, we conclude that the finding of the district court was not clearly erroneous. The court also found that Saitta “gave” Buckley the glove. This is also relevant to consent because it goes to whether Saitta made a free and unconstrained choice or whether his will was overborne and he merely acquiesced to duress or coercion. There does not appear to be conflict in Buckley’s testimony that Saitta gave him the glove. The video shows that Buckley did not forcefully take the glove but that instead, almost imme- diately after Buckley said, “Let me see your glove,” Saitta, without hesitation or protest, handed the glove to Buckley. The finding that Saitta “gave” the glove to Buckley was also not clearly erroneous. [17] From these fact findings and our review of the record, we reach a legal conclusion that the search of the glove was undertaken with consent. Buckley “simply asked” for the glove and Saitta “gave” it to him. These facts show and the record - 515 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAITTA Cite as 306 Neb. 499 supports that Buckley did not use coercion or duress when he asked to see the glove, and Saitta almost immediately handed the glove to Buckley without hesitation or protest, showing that his will was not overborne and that he did not merely acquiesce to duress or coercion. Although Saitta did not verbally indicate his consent, we have held that consent to search may be implied by action rather than words. See State v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015) (not- ing that defendant allowed phlebotomist to draw his blood without doing anything to manifest refusal). See, also, State v. Tucker, 262 Neb. 940, 636 N.W.2d 853 (2001) (noting that after request to search his home, defendant responded by step- ping back and gesturing with his arms raised and his hands outward and upward); State v. Juhl, 234 Neb. 33, 42, 449 N.W.2d 202, 209 (1989), disapproved on other grounds, State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991) (noting that defendant’s right to be free from unreasonable search and seizure was not violated when, in response to question from police officer as to what he had in his jacket, the defendant raised his right arm and said, “‘[C]heck’”). Saitta handed the glove to Buckley upon request, and consent may be implied from such action. We conclude that Buckley’s search of the glove was undertaken with consent and that therefore, the court did not err when, to the extent Saitta asserted an illegal search, it overruled his motion. CONCLUSION Because the detention of Saitta was an investigatory stop justified by reasonable suspicion and because the search of the glove was undertaken with consent, we conclude that the district court did not err when it overruled Saitta’s motion to suppress the evidence obtained as a result of the seizure of his person and the search of his glove. We therefore affirm Saitta’s conviction and sentence. Affirmed.	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4017504/	IN THE SUPREME COURT OF THE STATE OF DELAWARE WESLEY J. FISHER, § § No. 326, 2015 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. 1110018244 STATE OF DELAWARE, § § Plaintiff Below, § Appellee. § Submitted: May 20, 2016 Decided: July 19, 2016 Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices. ORDER This 19th day of July 2016, upon consideration of the appellant’s opening brief and the appellee’s motion to affirm, it appears to the Court that: (1) The appellant, Wesley J. Fisher, filed this appeal from the Superior Court’s denial of his motion for resentencing. The State of Delaware has moved to affirm the Superior Court’s judgment on the ground that it is manifest on the face of the opening brief that the appeal is without merit. We agree and affirm. (2) Following his guilty plea to two counts of Drug Dealing, Fisher was sentenced on March 5, 2012 to two consecutive four-year terms of unsuspended Level V incarceration. In June 2015, Fisher filed a “motion for resentencing under House Bill 312” asking the Superior Court to resentence him to concurrent terms of incarceration under a 2014 amendment of 11 Del. C. § 3901(d).1 The Superior Court denied the motion, ruling that the sentence was appropriate for all the reasons stated at the time of sentencing and that the motion was time-barred. This appeal followed. (3) Superior Court Criminal Rule 35(b) provides that the court may modify a sentence of imprisonment on a motion made within ninety days after the sentence is imposed.2 When a motion is filed more than ninety days after sentencing, the court can consider the motion only in extraordinary circumstances.3 The denial of a motion under Rule 35(b) is reviewed for abuse of discretion.4 (4) Here, the Superior Court did not abuse its discretion when denying Fisher’s motion for resentencing. The amendment of § 3901(d), which gives judges the discretion to impose concurrent terms of imprisonment for certain crimes, does not apply retroactively to sentences imposed before July 9, 2014, the effective date of the amendment.5 Fisher was sentenced in 2012. 1 See 11 Del. C. § 3901 (governing term of imprisonment) (Supp. 2016). 2 Del. Super. Ct. Crim. R. 35(b). 3 Id. 4 State v. Lewis, 797 A.2d 1198, 1202 (Del. 2002). 5 Fountain v. State, __ A.3d __, 2016 WL 2927750, at *4-5 (Del. May 16, 2016). 2 NOW, THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED. BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice 3	01-03-2023	07-20-2016
https://www.courtlistener.com/api/rest/v3/opinions/4227656/	Fourth Court of Appeals San Antonio, Texas December 6, 2017 No. 04-17-00719-CV Juan ENRIQUEZ, Appellant v. Dwayne VILLANUEVA, Karnes County Sheriff, Individually and in his Official Capacity, Appellees From the 81st Judicial District Court, Karnes County, Texas Trial Court No. 17-09-00210-CVK Honorable Russell Wilson, Judge Presiding ORDER Appellant’s brief is due to be filed on January 2, 2018. On December 1, 2017, appellant filed a motion requesting a copy of the clerk’s record filed in this appeal. Appellant is indigent and representing himself on appeal pro se. Appellant’s request is GRANTED. The clerk of the court is instructed to provide appellant with a copy of the clerk’s record with appellant’s copy of this order. _________________________________ Sandee Bryan Marion, Chief Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 6th day of December, 2017. ___________________________________ KEITH E. HOTTLE, Clerk of Court	01-03-2023	12-11-2017
https://www.courtlistener.com/api/rest/v3/opinions/3846183/	This is an appeal from the judgment in favor of the defendant in a mandamus proceeding. Bertha Spigelmire was a holder of a permanent state teacher's certificate issued to her by this Commonwealth on October 1, 1921. She taught in the defendant's ("third class") school district in 1931 and 1932. On December 5, 1937, four of the seven members of the Board of the defendant's school district met informally and discussed the desirability of employing as an additional clerk in the Superintendent's office, one who was certified to teach and would be available to teach in emergencies. They discussed the matter with the plaintiff, and it was understood that she would be available as a teacher if employed as a clerk. On December 6, 1937, the members of the School Board met officially and by affirmative vote of 4 to 3 appointed the plaintiff as a "clerk in the Superintendent's office" at a salary of $125 per month. On the following day she went to work as a clerk and was so employed until she was dismissed on May 15, 1940. On March 11, 1938, the President and Secretary of the defendant Board prepared, executed and delivered to the plaintiff "a professional employe" contract in duplicate in the form prescribed in the Teachers' Tenure Act. It provided that Miss Spigelmire was to teach in the school district. By an error this contract called for the payment of a salary of $125 peryear, but the parties have agreed that this figure was inserted by mistake and that the plaintiff was to receiver $125 permonth. The plaintiff signed this contract. On May 15, 1940, by affirmative action of a majority of the directors of the defendant school district the plaintiff was dismissed as a clerk and a man was appointed in her place. The question involved is: Did this plaintiff execute an enforceable contract with the defendant? The case was tried before Judge RICHARDSON without a jury. He found, inter alia, the following facts: "On or about December Page 507 6, 1937, at the meeting of the Board of Directors of the defendant school district, the plaintiff was appointed clerk in the office of the Superintendent of schools at a salary of $125 per month. The minutes of this meeting show a majority of the Board voting in favor of the motion, and also contains the names of the several Directors and their respective votes on the motion. On the day following her election, to wit, on December 7th, 1937, she entered upon her duties as clerk of the Superintendent of Schools and continuously discharged her duties as such until May 15th, 1940. On March 11, 1938, a form designated as a "teacher's contract" was executed by the plaintiff and by the president and secretary of the Board of Directors of the defendant school district. This contract was in the form prescribed by the Act of April 6, 1937, P. L. 213, otherwise designated as the "Teachers' Tenure Act." It described the plaintiff as a professional employe and provided that she should teach in defendant school district for an annual compensation of $125. The parties have agreed that this figure was inserted by mistake, and that the salary plaintiff was to receive was in the amount of $125 a month." In Com. ex rel. Ricapito v. Bethlehem S. Dist., 148 Pa. Super. 426,437, 25 A.2d 786, President Judge KELLER said: "Two things must enter into the creation of a valid and enforceable teacher's, or professional employe's contract. (1) The appointment must be made and the salary fixed by the affirmative vote of the majority of all the members of the board of school directors, duly recorded on the minutes, showing how each member voted. (2) A contract must be duly signed by the teacher and executed by the president and secretary on behalf of the board, drawn in strict compliance with the action taken by the board and the provisions prescribed by the School Code and its amendments: Hawkins'Petition, 129 Pa. Super. 453, 195 A. 761. Page 508 If either of these is lacking, there is no valid, enforceable contract." (Citing many cases.) Applying the law thus stated to the facts found by the court below, we reach the conclusion that the question involved must be answered in the negative. The contract relied upon was manifestly not "drawn in strict compliance with the action taken by the Board." That action related to the plaintiff's election "to the full time position of clerk." The contract signed more than three months later did not relate to the position of clerk. It stipulates that the plaintiff "shall teach in the said school district . . . during the school term or year." This plaintiff had been certified as a teacher on October 1, 1921, but in the motion adopted by the School Board for her appointment as clerk, there is no indication that she was employed as a clerk because she was a certified teacher. If we adopt plaintiff's view of the law, any person employed by a school district in any full-time capacity is entitled, if he possesses a teacher's certificate, to be employed to teach school. Section 2 of the Act of April 6, 1937, P. L. 213, 24 P.S. 1126 (1944 Cumulative Pocket Part, p. 100) says, inter alia: "In all school districts, all contracts with professional employes shall be in writing, in duplicate, and shall be executed on behalf of the board of school directors (or board of public education) by the president and secretary and signed by the professional employe." It then says, inter alia: "Said contracts shall contain only the following: 'It is agreed by and between ___________________, Professional Employe, and the Board of Directors . . . that said Professional Employe shall . . . teach in the said school district for a term of . . . for an annual compensation of. . .' " In view of the fact that under Section 1 of the Act of April 6, 1937, P. L. 213, the term "professional employe" includes not only "teachers," but also "dental hygienists, . . . school secretaries, . . . school nurses, . . . and any regular full-time employe of a school district who Page 509 is duly certified as a teacher," and in view of the fact that "regular full-time employes" of a school district includes attendance officers, clerks, janitors, engineers, librarians and many other workers, and in view of the further fact that it is possible that some of these employes are certified teachers (as is the appellant in the instant case), it is obvious that. Section 2 of the Act of 1937 requires judicial interpretation to make it workable. One of the most important duties of the judiciary is to construe statutes. 25 R. C. L., Sec. 214, page 958 says: "The most common occasion for construing statutes is where there is found in a statute some obscurity, ambiguity or other fault of expression; for in that case it is necessary to interpret the law in order to discover the true meaning. And if the legislature has enacted two or more statutes which from their wording appear to be inconsistent, or if the statute under consideration appears to be in conflict with a provision of the constitution, state or federal, there is an ambiguity, for it is always presumed that the legislature did not intend to violate either constitution; it is always presumed it intended its enactments to become valid and enforceable laws. Another occasion for construing a statute is where uncertainty as to its meaning arises not alone from ambiguity of the language employed, but from the fact that giving a literal interpretation to the words will lead to such unreasonable, unjust or absurd consequences as to compel a conviction that they could not have been intended by the legislature." 59 Corpus Juris, Sec. 574, page 970, makes a similar statement, saying "the court will, if possible, place upon the statute a construction which will not result in . . . prejudice to public interest, or absurd consequences, or conclusions not contemplated by the legislature. . . ." In a recent opinion,1 Mr. Justice JONES, Page 510 speaking for this court, said: "In interpreting a contract, a construction which would affect an unreasonable or unlawful end is to be avoided." Appellant would have us clothe the verb "teach" with a meaning that it has never had in any dictionary or in any known judicial opinion. The verb "teach" is a very old word of long established and universally known meaning. Changing the meaning of words is not a legislative function.2 There is nothing in the Teachers' Tenure Act which indicates that the legislature intended to make the words "teach" and "clerk" synonymous. This court said in the Teachers' Tenure Act Cases, 329 Pa. 213, at page 235: "The legislature did not intend those named in the Act as professional employees who were not teachers to contract to teach. . . . If it is necessary to correct the apparent ambiguity another word may be substituted for 'teach' to conform to the duties the employee is to perform." A contract between a school district and a professional employe to "teach" in the schools of that district cannot bind the professional employe named in that contract to do the work of a clerk, or bind the district to retain that professional employe in the position of clerk to which she was chosen by the Board, but in respect to whose position as clerk no contract was ever entered into by the district and that employe. In reply to the argument that "the word 'teach' is but a word in the contract, and as such is open to judicial construction," wewill construe it by giving it "its plain and obvious meaning," as the canons of judicial construction bid us to do. See 25 R. C. L., Sec. 217, page 962. The Statutory Construction Act of May 28, 1937, P. L. 1019, art. III, Sec. 33, 46 P.S. 533, declares that "words and phrases shall be construed according to rules of grammar and according to their common and approved usage." It is often stated in judicial opinions that where Page 511 the language used in a statute is clear and unambiguous there is no need for interpretation or construction. The same rule applies to the construction of contracts. Nowhere can a decision be found that "teach" and "clerking" when used in either statutes or contracts are interchangeable terms. Since Section 2 of the Act of 1937, supra, requires construction, the question is which construction is the least absurd and the most reasonable? First, the construction which declares that the contract prescribed is a form to be followed by the school district and its professional employes in entering into contractual relations, but that the verb "teach" is to be used in the contract only when a professional employe is engaged to teach, and if the employe is engaged to clerk or to do any other of the many things full-time employes may do for a school district the contract shall so state. Or, second, the construction now urged upon us, that no matter what service a professional employe is engaged to perform for the school district that employe shall be given a contract to "teach in the said school district." If the latter construction is adopted, any professional employe possessed of such a contract could demand the right to teach even though he or she was hired to do something else; and a Board of Directors could order a teacher possessed of such a contract to do any kind of work which any "full-time employe" of a school district can legally be called upon to perform.3 Page 512 The Statutory Construction Act of May 28, 1937, P. L. 1019 (46 P.S. 551), declares (section 51): "The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature." Section 52 declares that "in ascertaining the intention of the legislature in the enactment of a law, the courts may be guided by the following presumption: (1) That the Legislature does not intend a result that is absurd, impossible of execution or unreasonable." This court has said that "statutes must be so construed, if possible, that absurdity and mischief may be avoided" (quoting from Chief Judge CARDOZO): See Watson v.Witkin et al., 343 Pa. 1, 22 A.2d 17. Justice FIELD, speaking for the United States Supreme Court, said in U.S. v. Kirby, 7 Wall. 482, 486, in refusing to interpret an act of Congressliterally: "All laws should receive a sensible construction." We decide that the contract set forth in Section 2 of the Act of April 6, 1937, is obviously meant to serve as a form and that when a person is employed to teach school the contract shall say so, but if the "professional employe" is engaged to act as a school secretary, or a dental hygienist, or in any other capacity, the contract shall state what he or she is employed to do. This court cannot accept the contention that a clerk is protected from removal from office by a contract "to teach" school, when the only authorization she can invoke for that contract is a motion adopted by the School Board that she "be appointed clerk in the office of the Superintendent of Schools."4 To accept this contention Page 513 would be giving the School Code a palpably absurd and unreasonable interpretation and would be detrimental to our public school system. In Commonwealth ex rel. v. Sunbury SchoolDistrict et al., 335 Pa. 6, 6 A.2d 279, this court, speaking through Mr. Justice DREW, said: "All legislation must be construed as intending to favor the public interest; and when it conflicts with private interests, the public interest to be primarily served is the dominating one, not that of the individual: Walker's Appeal, 332 Pa. 488, 2 A.2d 770." We said in Ehret v. Kulpmont Boro. Sch. Dist., 333 Pa. 518, 524,5 A.2d 188: "It was not the intention of the legislature [in enacting the Tenure Act] to confer any special privileges or immunities upon professional employees to retain permanently their position and pay regardless of a place to work and pupils to be taught; . . . nor was it the intention of the legislature to disrupt a school district's financial scheme, which must be operated upon a budget limited by the Code, that cannot be exceeded except in the manner provided by the legislature." We also said in the same opinion: "The Code must be construed in the light of the command of Article 10, Sec. 1 of the Constitution to 'provide for the maintenance and support of a thorough and efficient system of public schools.' " It is difficult to imagine anything which would be more detrimental to the efficiency of our public school system than a decision by this court that the School Code requires that every "regular full-time employe"5 of a School District who is "duly certified as a teacher" must be given a contract to "teach school in that district," with the valuable perquisites which under the School Page 514 Code now attach to such a contract, including in many cases qualified "permanent tenure."6 What Judge BALDRIGE said in Parnell v. School Board of ClymerBoro., 99 Pa. Sup. Ct. 281, applies here: "The representatives of the Board who executed the contract had the power only that was granted. They were unwarranted in changing the terms of employment as sanctioned by the Board. . . Our appellate courts . . . have uniformly held that notwithstanding the president and secretary may have executed a contract in behalf of the Board of Directors, unless the action of the Board expressly authorized the terms of the contract, it was not enforceable." The judgment is affirmed; costs to be paid by School District of the Borough of North Braddock. 1 Block, Exr. v. Mylish et al., 351 Pa. 611, 618. 2 Legislative fiat may not take the place of fact": W. R. R.v. Henderson, 279 U.S. 639, 641.2. 3 It is true that the Act of April 6, 1937, P. L. 213, Sec. 3, 24 P.S. (1944 Pocket Part) 1161, prohibits the "demotion of any professional employe, either in salary or in type of position," but if all professional employes have exactly the same kind of contract in respect to their employment, how could it be contended that if a School Board ordered a teacher to act as a school nurse, or as attendance officer, or as a clerk, the order would involve an unlawful demotion? In Com. ex rel.Wesenberg v. Bethlehem Schl. Dist., 148 Pa. Super. 250,24 A.2d 673, it was held that "a refusal by a professional employe to accept an assignment which the board has the power to make may be classed as 'persistent and wilful violation of the school laws,' and a direct violation of his contract, and also amounts to 'persistent negligence.' " 4 The provisions relating (1) to the dismissal of professional employees, Sec. 2 of the Act of June 20, 1939, P. L. 482, 24 P.S. 1126 (1944 Cumulative Pocket Part, p. 100), and (2) the removal of officers, employees or appointees, Art. 4, Sec. 406 of the Act of May 18, 1911, P. L. 309, 24 P.S. 341, only after hearing, obviously relates to those employees who possess enforceable employment contracts with the school district. 5 The number of persons other than teachers who answer the description of "regular full-time employe" of a school district is illustrated by the number of such employes in the Scranton School District, a school district of the second class. In that district there are 61 janitors, 22 clerks, 9 nurses, 5 attendance officers, 2 dental hygienists and more than a score of other full-time employes. 6 The Act of May 18, 1911, P. L. 309, as amended by the Act of July 17, 1919, P. L. 1030, 24 P.S., Sec. 1267, provides, inter alia: "That any person teaching in the public schools of this Commonwealth who has held a professional certificate for not less than ten years may continue to teach the subjects embraced in his certificate in the school district in which he is now teaching without further examination, and his proper superintendent, when requested, shall by indorsement on his present certificate certify to that effect."	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/1974747/	153 Pa. Commw. 4 (1992) 623 A.2d 364 COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant, v. Kirk SLACK and Jean Slack, Appellees. Commonwealth Court of Pennsylvania. Submitted on Briefs July 24, 1992. Decided September 15, 1992. 5 Timothy P. Wile, Asst. Counsel-In-Charge of Appellate Section, for appellant. No appearance for appellees. 6 Before PALLADINO and PELLEGRINI, JJ., and NARICK, Senior Judge. NARICK, Senior Judge. Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the order of the Court of Common Pleas of Northampton County that sustained the appeal of Kirk Slack and Jean Slack (Slacks) from two notices of registration privilege suspension imposed by DOT. We reverse. On May 16, 1991, DOT notified Jean Slack that the registration privilege on her 1990 Nissan would be suspended for three months, as a result of Allstate Insurance Company (Allstate) notifying DOT that the motor vehicle liability insurance policy covering that vehicle had been terminated on February 9, 1991. That same date, DOT notified Kirk Slack that the registration privilege on his 1974 Oldsmobile would be suspended for three months, as a result of Allstate's notification that the motor vehicle liability insurance policy, covering that vehicle had also been terminated on February 9, 1991. The Slacks filed a single appeal petition from both notices of suspension to the trial court. The parties agreed to submit the matter to the trial court on the documents offered by the parties. DOT submitted the correspondence from Allstate to DOT, which stated that it had cancelled the Slacks' motor vehicle liability insurance policies on both vehicles for nonpayment of the policy premium.[1] The Slacks submitted: (1) the statement of their payment record with Allstate, showing two notations of "notice of intent" sent to the Slacks for late payments; (2) Allstate's letter to Jean Slack mailed to the Slacks' last known address, but which was returned to Allstate as addressee unknown, which included the notice of policy cancellation; and (3) an application form for liability insurance with Atlantic Insurance Agency under an assigned risk plan which became effective April 18, 1991. 7 On September 23, 1991, the trial court sustained the Slacks' appeal, asserting that DOT had not met its burden of proving that the Slacks operated or permitted the operation of their vehicles during the period they were without financial responsibility and because there was no "evidence that the [Slacks] intentionally operated their motor vehicle without insurance." (34a-35a). On appeal,[2] DOT argues that: 1) the trial court erred in permitting the Slacks to appeal two separate and distinct registration suspension notices in a single civil appeal; 2) the trial court erred in holding that DOT had not met its burden of showing that the Slacks used their vehicles during the lapse of financial responsibility; and 3) the trial court erred by adding an element of intent to Section 1786(d). Before the trial court, the Slacks appealed two separate and distinct notices of registration suspension, concerning two separate and distinct motor vehicles in a single appeal filed under 75 Pa.C.S. § 1377.[3] These registration suspension orders also involved two different vehicle owners. DOT asserts that the single civil appeal from the two orders is improper. We agree. Each notice of suspension constitutes a final order of a governmental agency pursuant to 42 Pa.C.S. § 933(a)(1)(iii). The Commonwealth's appellate courts have expressly disapproved 8 of the practice of filing a single appeal from more than one order. See Philadelphia Federation of Teachers, Local No. 3 v. Board of Education, 458 Pa. 342, 327 A.2d 47 (1974); General Electric Credit Corp. v. Aetna Casualty and Surety Co., 437 Pa. 463, 263 A.2d 448 (1970); Posel v. Redevelopment Authority of Philadelphia, 72 Pa.Commonwealth Ct. 115, 456 A.2d 243 (1983). In Department of Transportation v. Vento, 120 Pa. Commw. 211, 548 A.2d 385 (1988), we held that each DOT notice of suspension is a separate, appealable order and that in order for a court of common pleas to have jurisdiction over those suspensions, a separate appeal must be filed for each order.[4] Here, the Slacks filed a single appeal from two separate and distinct notices of revocation suspensions. Under the rationale expressed in Vento, a separate appeal should have been filed for each vehicle whose registration was being suspended. The Slacks did not do so. While we believe the trial court erred in allowing the single appeal from the two notices of revocation suspensions, because of our final disposition of this case and for reasons of judicial economy, we will not remand to the trial court on this issue. DOT suspended Slacks' registrations for a period of three months, pursuant to 75 Pa.C.S. § 1786, which provides in pertinent part: § 1786. Required financial responsibility. (a) General rule. Every motor vehicle of the type required to be registered under this title which is operated or currently registered shall be covered by financial responsibility. * * * * * * (d) Suspension of registration and operating privilege. The Department of Transportation shall suspend the registration 9 of a vehicle if it determines that the required financial responsibility was not secured as required by this chapter and shall suspend the operating privilege of the owner or registrant for a period of three months if the department determines that the owner or registrant has operated or permitted the operation of the vehicle without the required financial responsibility. The operating privilege shall not be restored until the restoration fee for operating privilege provided by section 1960 (relating to restoration of operating privilege or vehicle restoration) is paid. Whenever the department revokes or suspends the registration of any vehicle under this chapter, the department shall not restore the registration until the vehicle owner furnishes proof of financial responsibility in a manner determined by the department, accompanied by the fee for restoration provided by section 1960. This section shall not apply in the following circumstances: (1) The owner or registrant proves to the satisfaction of the department that the lapse in financial responsibility for a period less than 21 days and that the owner or registrant did not operate or permit the operation of the vehicle during the period of lapse in financial responsibility. * * * * * In order to sustain its burden of proof, DOT must establish: (1) that the vehicle in question is of a type required to be registered in the Commonwealth; and (2) that the required automobile liability insurance had been cancelled or otherwise terminated. Once DOT establishes these two facts the burden shifts to the registrant to show that Section 1786(d) is inapplicable because the lapse in the automobile liability insurance was for a period of less than 21 days. Additionally, the registrant must show that the vehicle in question was not operated during the period of lapse. See Department of Transportation v. Andrews, 143 Pa. Commw. 601, 600 A.2d 622 (1991). There is no dispute that the Slacks' vehicles must be insured in this Commonwealth. Furthermore, the evidence is 10 uncontroverted that the Slacks' coverage had lapsed effective February 9, 1991, and that the replacement insurance was not effective until April 18, 1991, 69 days from the cancellation date. The Slacks also continued to drive their vehicles while coverage had lapsed. While the trial court in one sentence properly states that the sole exception to suspension is when the registrant proves that the "lapse of financial coverage was for a period of less than 21 days and that the owner or registrant did not operate or permit the operation of the vehicle during the period of lapse . . .," the trial court in the following paragraph places the burden upon DOT to prove that the Slacks had operated their "vehicles during the period they were without financial responsibility." (34a). The trial court added an element of intent in its interpretation of Section 1786(d) stating there was no evidence that the Slacks "intentionally operated their motor vehicles without insurance." Id. DOT asserts that the trial court erred in incorporating an element of intent into Section 1786 which is clearly not present in the plain unambiguous language of the statute. We agree. The General Assembly has determined that vehicles required to be registered prior to their operation on highways within this Commonwealth, must be covered by some acceptable form of financial responsibility. 75 Pa.C.S. §§ 1785 and 1786(a). The purpose of Sections 1785 and 1786(a) is to ensure that some minimal level of compensation would be available for victims of motor vehicle accidents. Furthermore, individuals registering their motor vehicles must sign a form which acknowledges that their registration may be suspended if they fail to maintain liability insurance on their vehicle during the period of registration. 75 Pa.C.S. § 1781; see also Department of Transportation v. Thomas, 143 Pa. Commw. 531, 537, n. 7, 600 A.2d 237, 240 n. 7 (1991). Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(b), provides that, "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." A 11 court can neither incorporate additional elements into a statute, or resort to "alternative" rules of statutory construction, under the pretext of satisfying an alleged implied element of the statute. See Department of Transportation v. Empfield, 526 Pa. 220, 585 A.2d 442 (1991); Allright Auto Parks v. Zoning Board of Adjustment, 107 Pa. Commw. 448, 529 A.2d 546 (1987). Nothing in the language of Section 1786 explicitly or impliedly suggests a scienter requirement. In Department of Transportation v. Hill, 117 Pa. Commw. 160, 543 A.2d 211 (1988), DOT suspended Hill's driver's license for failure to have liability insurance and Hill appealed. The trial court excused Hill from the automobile liability insurance requirement because the insurance agent failed to place his vehicle on the policy as Hill had requested, causing Hill to be unaware that he was not insured when the vehicle was involved in an accident. We reversed the trial court holding that Section 1785[5] does not contain a provision which excuses a failure to maintain financial responsibility. When the common pleas court finds that the licensee has committed the violation for which the penalty was imposed, it is a manifest abuse of discretion to modify the penalty because the court disagrees with the penalty. Department of Transportation, Bureau of Driver Licensing v. Ratliff, 114 Pa. Commw. 121, 538 A.2d 599 (1988). The trial court has but two choices; it may affirm the penalty because the law as applied to the facts establishes a violation of the statute, or it may reverse because the facts do not establish a violation. Department of Transportation, Bureau of Driver Licensing v. Miller, 107 Pa. Commw. 458, 528 A.2d 1030 (1987). Here the trial court found that the licensee had violated Section 1785 of the Motor Vehicle Code. In such circumstances, *12 the trial court `may not, because of the possible unfairness or inequity of the result, reverse the [DOT] or modify the penalty imposed.' Ratliff, 114 Pa. Commonwealth Ct. at 124, 538 A.2d at 600 (quoting Department of Transportation, Bureau of Traffic Safety v. Verna, 23 Pa. Commw. 260-262, 351 A.2d 694-695 (1976)). Hill, 117 Pa. Commonwealth Ct. at 162-63, 543 A.2d at 212-13. As this court held in Hill, we hold that where a motorist has violated a statute with a specified penalty, the trial court may not, because of "possible unfairness," reverse a penalty imposed by DOT. Accordingly, we reverse. ORDER AND NOW, this 15th day of September, 1992, the order of the Court of Common Pleas of Northampton County in the above-captioned matter is hereby reversed in accordance with the foregoing opinion. PELLEGRINI, Judge, concurring. I concur only because I believe that the majority should not reach the issue of whether the Slacks were required to file separate and distinct appeals from each of PennDot's orders suspending the registration of their two vehicles. The majority should not have reached that issue because there is nothing in the record to establish whether PennDot properly raised this issue. PennDot filed no motion to quash the appeal raising this issue, this issue is not addressed in the trial court's opinion, and, because PennDot chose not to order a transcript of the proceedings before the trial court, we are unable to determine whether PennDot raised the issue in the hearing before the trial court. Consequently, I concur in the result only. NOTES [1] 42 Pa.C.S. §§ 6103 and 6109 allows certain documents or copies thereof to be introduced into evidence under the seal of the public officer whose official duties concern the governmental unit in question. [2] Our scope of review is limited to determining whether the findings made by the trial court are supported by competent evidence of record, an error of law committed, or whether the trial court manifestly abused its discretion. Department of Transportation v. Korchak, 506 Pa. 52, 483 A.2d 1360 (1984). [3] § 1377. Judicial review of denial or suspension of registration. Any person whose registration has been denied or suspended by the department shall have the right to appeal to the court vested with jurisdiction of appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure). The filing of the appeal shall act as a supersedeas and the suspension of registration shall not be imposed until determination of the matter as provided in this section. The court shall set the matter down for hearing upon 30 days written notice to the department, and thereupon take testimony and examine into the facts of the case and determine whether the petitioner is entitled to registration or subject to suspension of registration under the provisions of this title. [4] The question of appealability of an order goes to the jurisdiction of the court which has been requested to entertain the matter. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); Therefore, although DOT did not object to the filing of the single appeal before the trial court, because such issue is jurisdictional, it may be raised at any time. See generally Monroe County Board of Assessment Appeals v. Miller, 131 Pa. Commw. 538, 570 A.2d 1386 (1990). [5] Section 1785 provides: If the department determines that the owner of a motor vehicle involved in an accident requiring notice to a police department pursuant to section 3746 (relating to immediate notice of accident to police department) did not maintain financial responsibility on the motor vehicle at the time of the accident, the department shall suspend the operating privilege of the owner, where applicable, and the department shall revoke the registration of the vehicle.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4523503/	In The Court of Appeals Seventh District of Texas at Amarillo No. 07-20-00003-CV IN THE INTEREST OF A.C., K.C., D.K., AND M.K., CHILDREN On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. 2010-552,767, Honorable Jim Bob Darnell, Presiding April 7, 2020 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ. The trial court terminated F.C.’s parental rights to her four children, A.C., K.C., D.K., and M.K., and she appealed from that judgment. Appointed counsel for F.C. filed a motion to withdraw, together with an Anders1 brief in support thereof. In the latter, counsel certified that she diligently searched the record and concluded that the appeal was without merit. Appellate counsel also filed a copy of a letter sent to F.C. informing her of her right to file a pro se response. F.C. was also provided a copy of the appellate record, according to counsel. By letter dated March 10, 2020, this Court notified F.C. of her right to file her own brief or response by March 30, 2020, if she wished to do so. To date, no response has been received. 1 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). 1 In compliance with the principles enunciated in Anders, appellate counsel discussed potential areas for appeal concerning the three grounds upon which the trial court relied to terminate the mother’s parental rights. Those three grounds involved § 161.001(b)(1)(D), (E), and (O) of the Texas Family Code. Counsel’s discussion encompassed the sufficiency of the evidence to support 1) all three statutory grounds upon which termination was based and 2) the finding that termination was in the children’s best interest. Per our obligation specified in In re D.D., 279 S.W.3d 849, 850 (Tex. App.— Dallas 2009, pet. denied) (citing Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005)), we too reviewed the appellate record in search of arguable issues for appeal. None were found. Per In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam), we also conducted an independent review of the evidence underlying the trial court’s findings that termination was warranted under § 161.001(b)(1)(D) and (E) of the Texas Family Code. See In re L.G., No. 19-0488, 2020 Tex. LEXIS 185 (Tex. Mar. 13, 2020) (per curiam) (court of appeals erred “by not detailing its analysis [on (D) and (E)] as required by [In re N.G.].” That evidence illustrated 1) F.C. abused controlled substances (methamphetamine) during all of her past and present dealings with the Department, 2) all four children were removed due to being left alone and ranged in ages from eight years old to one year old, 3) little food was found in the house and what food there was the eight year old was preparing it for the other children, 4) F.C. continued to test positive for methamphetamine (when she did submit to a drug test) and failed to work her service plan as ordered by the court to regain possession of her children, 5) F.C. failed or refused to submit to court ordered drug testing, 6) F.C. lived from motel to motel and refused to give her current 2 address to her caseworker, and 7) the children were not enrolled in school for over a year and when they did attend school they were dirty and usually late. Combined, this evidence is both legally and factually sufficient to support a finding warranting termination under (D) and (E). See In re V.A., No. 07-17-00413-CV, 2018 Tex. App. LEXIS 1521, at 10 (Tex. App.—Amarillo Feb. 27, 2018, no pet.) (mem. op.) (stating that a parent’s continued use of drugs demonstrates an inability to provide for the child’s emotional and physical needs and a stable environment); In re S.H., No. 07-15-00177-CV, 2015 Tex. App. LEXIS 9731 at 8 (Tex. App.—Amarillo Sept. 16, 2015, no pet.) (mem. op.) (stating that “[f]rom the evidence presented, the trial court reasonably could have reached a firm conviction W.W. had pursued a course of conduct, through her chronic drug use, that endangered S.H.’s physical and emotional well-being” which warranted termination under § 161.001(b)(1)(E)); accord In re A.W., No. 07-19-00104-CV, 2019 Tex. App. LEXIS 5203, at *2—3 (Tex. App.—Amarillo June 21, 2019, no pet.) (mem. op.). We concur with counsel’s representation that the appeal is meritless due to the absence of arguable error. Accordingly, the judgment is affirmed.2 Brian Quinn Chief Justice 2 We call counsel’s attention to the continuing duty of representation through the exhaustion of proceedings, which may include the filing of a petition for review. Counsel has filed a motion to withdraw, on which we will take no action. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam). 3	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4523506/	In The Court of Appeals Seventh District of Texas at Amarillo ________________________ No. 07-18-00320-CV ________________________ HEATHER HAMILTON, APPELLANT V. ARTHUR MAESTAS, APPELLEE On Appeal from the 72nd District Court Lubbock County, Texas Trial Court No. 2013-506,691; Honorable Ruben G. Reyes, Presiding April 7, 2020 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ. Appellant, Heather Hamilton, appeals from the trial court’s Order in Suit to Modify Parent-Child Relationship rendered in favor of Appellee, Arthur Maestas. She presents four issues asserting abuse of discretion by the trial court as follows: (1) in finding sufficient evidence of a material and substantial change in circumstances to modify the exclusive right to determine the children’s primary residence; (2) in determining there was sufficient evidence that modification of the exclusive right to determine the children’s primary residence was in the best interests of the children; (3) in refusing to impose a geographic restriction; and (4) in failing to grant her counter-petition to modify child support. Maestas did not favor us with a brief. We affirm. BACKGROUND Hamilton and Maestas divorced on January 23, 2014. At that time, they were appointed joint managing conservators of their two sons, who were two and four years old. Hamilton was awarded the exclusive right to designate the children’s primary residence and Maestas was ordered to pay $800 per month in child support. Maestas was working as an EMT in a county other than the county where the children lived, Hamilton was in school and working at a car wash, and the children were in daycare. In February 2016, Hamilton quit her job due to a salary cut, filed for unemployment, and in August 2016, she enrolled in cosmetology school. That same year, Maestas remarried and had a child with his new wife. Maestas has lived in the same house for over a decade. Since the divorce, he has changed jobs and now was works as a foreman with Union Pacific Railroad. He earns a good salary and has his family insured through his employment. His schedule requires him to work out of town for eight days and be off for eight days. His wife works as a sales account manager for Coca Cola and has a very flexible schedule that allows her to care for the children when Maestas works out of town. In September 2017, Maestas petitioned to modify the parent-child relationship alleging a material and substantial change in circumstances and seeking (1) the exclusive 2 right to designate the children’s primary residence, (2) modification of the conditions for access to or possession of the children, and (3) modification of previously ordered child support should he be given the exclusive right to determine the children’s residence. Maestas also alleged the modifications would be in the children’s best interests. By counter-petition, Hamilton also sought modification of the possession and access order contained in the divorce decree. Specifically, she requested that Maestas’s possession correspond to his days off from work. She also requested the right of first refusal when Maestas was unavailable for his periods of possession. Hamilton also sought specific dates and times for Maestas to communicate with his children by telephone and an increase in child support in accordance with the Family Code guidelines. Finally, she sought injunctive relief that prohibited Maestas from using a tracking device during her periods of possession. Following a hearing, the trial court found Maestas’s allegations to be true and granted his petition to modify conservatorship. The trial court ordered that both parents remain as joint managing conservators but appointed Maestas as the parent with the exclusive right to designate the children’s primary residence without regard to a geographic location. Hamilton was ordered to pay Maestas $225 per month in child support beginning June 1, 2018. APPLICABLE LAW Texas’s public policy assures that children have frequent and continuing contact with parents who have shown the ability to act in the children’s best interests and it serves to encourage parents to share in the duties and rights regarding raising their children after 3 divorce. TEX. FAM. CODE ANN. § 153.001(a)(1)(3) (West 2014). A trial court may modify a prior conservatorship order if modification would be in the best interest of the child and the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since rendition of the prior order. TEX. FAM. CODE ANN. § 156.101(a)(1)(A) (West 2014). The burden of proof by a movant seeking modification of the parent-child relationship as well as a trial court’s findings on modification of conservatorship shall be based on a preponderance of the evidence. TEX. FAM. CODE ANN. § 105.005 (West 2014).1 STANDARD OF REVIEW Findings in a conservatorship case are reviewed under the ordinary legal and factual sufficiency standards.2 In re A.L.H., 515 S.W.3d 60, 80 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). In reviewing evidence for legal sufficiency, we view the evidence in the light most favorable to the finding, crediting favorable evidence if a reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). A factual sufficiency review requires us to examine the entire record and set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. 1 Hamilton filed a Request for Findings of Fact and Conclusions of Law on August 6, 2018; however, her Notice of Past Due Findings of Fact and Conclusions of Law was not filed until September 24, 2018, making the past due notice untimely. See TEX. R. CIV. P. 297. In her brief, Hamilton asserts she filed her notice of past due findings on September 2, 2018, but the clerk’s file stamp and Certificate of Service both reflect September 24, 2018. Therefore, we presume the trial court made all implied findings necessary to support its order. Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 401 (Tex. 2016). 2 Essentially, a challenge to the sufficiency of the evidence in a family law matter is a component of an overarching abuse-of-discretion analysis. See Willett v. Rodriguez, No. 03-16-00084-CV, 2017 Tex. App. LEXIS 5096, at 6 n.11 (Tex. App.—Austin June 2, 2017), pet. denied, No. 17-0691, 2017 Tex. LEXIS 1085, at 1 (Tex. Dec. 1, 2017) (mem. op.). See also Bradshaw v. Bradshaw, 555 S.W.3d 539, 549 (Tex. 2018) (Devine, J. concurring) (noting that in family law cases, the abuse of discretion standard of review “overlaps with the traditional sufficiency-of-the-evidence standards of review”). 4 In re A.L.H., 515 S.W.3d at 80. The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819. In conducting our review, we may not substitute our judgment for that of the fact finder’s even if we would reach a different answer on the same evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998), cert denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998). When a party fails to properly request findings of fact and conclusions of law, the trial court is presumed to have made all findings of fact necessary to support its judgment, and it must be affirmed on any legal theory that is supported by the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Garcia v. Garcia, 170 S.W.3d 644, 648 (Tex. App.—El Paso 2005, no pet.). When a reporter's record is filed, however, the implied findings are not conclusive and may be challenged for legal and factual sufficiency of the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). A trial court’s order modifying conservatorship is reviewed for abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Nichol v. Nichol, No. 07-12- 00035-CV, 2014 Tex. App. LEXIS 492, at 7 (Tex. App.—Amarillo Jan. 15, 2014, no pet.) (mem. op.). Absent a clear abuse of discretion, the trial court’s order modifying the prior order will not be disturbed on appeal. In re M.S.F. & M.S.F., 383 S.W.3d 712, 715 (Tex. App.—Amarillo 2012, no pet.) In reviewing a trial court’s decision for abuse of discretion, we determine whether the trial court acted without reference to any guiding rules and principles or, alternatively, whether the trial court’s actions were arbitrary and unreasonable based on the 5 circumstances of the case. Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). The fact that a trial court may decide a matter within its discretion in a different manner than an appellate court in a similar circumstance does not demonstrate an abuse of discretion. Downer, 701 S.W.2d at 242. ISSUE ONE—MATERIAL AND SUBSTANTIAL CHANGE The existence of a material and substantial change in circumstances is a threshold determination in a modification proceeding. In re A.L.E., 279 S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2009, no pet.). The burden to establish a material and substantial change in circumstances falls on the party seeking modification. Agraz v. Carnley, 143 S.W.3d 547, 553 (Tex. App.—Dallas 2004, no pet.). A material and substantial change occurs when the party seeking modification demonstrates the conditions that existed at the time of entry of the prior order have changed as compared to the circumstances existing at the time of the modification hearing. Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. App.—Austin 2006, pet. denied). However, there are no guidelines as to what constitutes a material and substantial change in circumstances, and each case must be determined according to the facts and circumstances of that particular case. See In re N.R.T., 338 S.W.3d 667, 679 (Tex. App.—Amarillo 2011, no pet.). In her counter-petition, Hamilton alleged “[t]he circumstances of the children, a conservator, or other party affected by the order to be modified have materially and substantially changed since the date of rendition of the order to be modified.” (Emphasis added). An opposing party’s pleadings can constitute a judicial admission that may substitute for evidence that has a “conclusive effect and bars the admitting party from 6 later disputing the admitted fact.” See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001); Gonzalez v. Sanchez, No. 07-16-00289-CV, 2018 Tex. App. LEXIS 1467, at 7-8 (Tex. App.—Amarillo Feb. 23, 2018, no pet.) (mem. op.). A judicial admission is a formal waiver of proof that dispenses with the production of evidence on an issue and bars the admitting party from disputing it. See In re Guerrero, 465 S.W.3d 693, 705 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). Hamilton’s allegation of a material and substantial change precludes her from asserting on appeal that there were no material and substantial changes in circumstances since rendition of the divorce decree. See In re R.A.W., No. 07-13-00316-CV, 2015 Tex. App. LEXIS 3039, at 5 (Tex. App.—Amarillo March 27, 2015, no pet.) (mem. op.) (finding that mother had judicially admitted an essential element of the father’s case for modification). In addition to Hamilton’s judicial admission, changes did occur since the divorce decree that individually and considered alone may not have been significant, but when considered together, satisfy the statutory requirement for a material and substantial change in circumstances. Maestas had remarried since the previous order. He and his new wife had a child, and Maestas had changed jobs. See Arredondo v. Betancourt, 383 S.W.3d 730, 734-35 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (finding that marriage of one of the parties may be a material and substantial change). See also In re J.A.R., 02-04-123-CV, 2005 Tex. App. LEXIS 8912, at 22 (Tex. App.—Fort Worth Oct. 27, 2005, no pet.) (mem. op.) (finding that remarriage and birth of a child may support a material and substantial change). Although these factors alone may not have been sufficient to find a material and substantial change, we cannot say that when considered together, they did not constitute a material and substantial change. Based on the record before us 7 and Hamilton’s judicial admission that there have been material and substantial changes,3 we cannot say the trial court abused its discretion in finding material and substantial changes in circumstances since rendition of its prior order. Issue one is overruled. ISSUE TWO—BEST INTEREST REGARDING THE EXCLUSIVE RIGHT TO DESIGNATE THE CHILDREN’S PRIMARY RESIDENCE A court’s primary consideration in determining conservatorship and possession of and access to a child must always be the best interest of the child. TEX. FAM. CODE ANN. § 153.002 (West 2014). The Family Code does not list factors for a trial court to consider in determining whether modification of custody is in a child’s best interest. However, the factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), are helpful. Those factors, which are not exhaustive, include (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist the individual to promote the best interest of the child; (6) the plans for the child by the individual or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. In the context of a custody modification, other factors to consider include the child’s need for stability and the need to prevent constant litigation in child custody cases. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000). 3 Interestingly, in her argument under issue four by which she challenges the trial court’s child support order, she alleges “there is a material and substantial change.” Then, in the conclusion of her brief, she maintains “[t]here was no material and substantial change in circumstances.” 8 Here, the evidence established that both parents love their children and are bonded with them. Neither parent is an inappropriate caregiver and neither presents a danger to the children. There was no evidence to indicate that either of the parents’ homes were unsuitable or that the environment in which the children would be raised was incompatible with their best interests. At the time of the final hearing, the boys were six and eight years old. The older son participates in gifted and talented classes. Maestas described him as “happy-go- lucky,” loving, and a “rule-follower.” He suffers from allergies and asthma. Maestas described his younger son as ornery, brilliant, and witty. He has a sensory issue that sometimes causes him distress with the way his clothes fit. He also requires frequent dental care due to serious tooth decay. Regarding his older son, Maestas testified to one occasion when his son had been prescribed a ten-day antibiotic. When it was time for the children to go to Maestas’s home, Maestas realized that Hamilton had not dispensed the medication as prescribed. Maestas testified that since the divorce, he has remarried, has another child, and has changed jobs. He testified he was willing to change his work schedule to accommodate periods of possession. He also testified that when he works out of town, he communicates regularly with his children by telephone or Facetime. His wife’s schedule is very flexible and she is able to maintain the children’s routine and extracurricular activities when he is away working. He testified about various weekend activities he and the children engage in such as fishing, camping, and sports. He planned for the children to attend church camps in the summer. 9 Maestas testified that even when the children were young and in daycare, teachers and former daycare staff reported issues with hygiene, ill-fitting clothes, inappropriate apparel for cold weather, and sleeping during class. The younger child’s kindergarten teacher testified that Maestas and his wife were very involved parents. Conversely, she did not have much interaction with Hamilton Maestas admitted that he had high expectations for his children. He felt it was important that they have structure, routine, and discipline in their lives which he and his wife can provide with more consistency than Hamilton. He described the children’s daily routine after school as consisting of one hour to play and unwind, followed by required reading and homework, if any. The family would then share dinner together, after which the children bathed or showered, brushed their teeth, and went to bed. His wife maintained the routine even when he worked out of town. After Maestas remarried, issues arose concerning Hamilton’s belief that the new wife wished to replace her as the mother of the children. The parents’ communications, mostly by text, became strained and according to Hamilton, were not always appropriate. She added her own mother to a group text with Maestas and his wife, which she claimed softened the tone of the communications. Although both parents claimed to have set bedtimes for the children, some of the children’s teachers testified the children were extremely tired and sleepy on the mornings after they had spent the night or the previous weekend with their mother. The teachers noticed a difference and improvement in their work on the days after they had spent the night or the previous weekend with Maestas and his wife. See In re A.B.O., No. 06-14- 10 00071-CV, 2015 Tex. App. LEXIS 4755, at *21 (Tex. App.—Texarkana May 12, 2015, no pet.) (mem. op.) (considering the conservator’s involvement in the children’s education, maintaining contact with school officials and counselor, and making sure children were involved in extracurricular activities in determining conservatorship). Maestas and his wife were very involved with the children’s education as well as their extracurricular activities which included football and baseball. The evidence showed that Maestas and his wife consistently attended practices as well as games. Hamilton enrolled the children in karate but the children did not complete the program. Hamilton has a daughter that is older than her sons. She is involved in cheer competitions and Hamilton accompanies her to those competitions which usually occur out of town. One witness who appeared for Maestas testified that her son and the parties’ older son played football together. She recalled that one evening after practice and after all the coaches and parents had left, the parties’ older son had not been picked up by his mother and he appeared “a little shook up.” She offered to wait with him until someone came for him. Eventually, an adult whom she did not recognize arrived to pick up the child. The witness also testified that during baseball season, Hamilton attended the games but not the practices, while it was “very rare” for Maestas and his wife to miss anything. According to Hamilton, Maestas’s remarriage created hostility in co-parenting the children. She admitted she was not as involved with the children’s school and teachers because she herself was in school. She did modify her schedule to be more available after she finished cosmetology school. 11 Hamilton’s mother testified that she and her husband help care for the children when Hamilton is unavailable. She was cross-examined about some Facebook posts that Hamilton posted showing photos and comments related to drinking habits. She did not comment on the posts other than to say that Hamilton had consumed three beers at the grandmother’s birthday party while the children were present. During Hamilton’s testimony, she admitted the Facebook posts related to her drinking habits had occurred since the divorce. Photos introduced into evidence over objection showed her with Jell-O shots and photos with captions such as “downing shots” and comments related to drunk texting. She denied having a drinking problem and claimed that she never drank to a point that prevented her from caring for her children. The record also contains evidence of trivial disputes between the parents that does not directly affect the children and is more likely the result of Hamilton’s dislike of Maestas’s wife. For instance, Hamilton complained that Maestas allowed his sister and his wife to exercise his possessory rights if he was out of town working. However, Hamilton likewise allowed her mother and stepfather to care for the children on many occasions. The parties also argued over a watch that Maestas had given to one of the children which Hamilton accused him of using to track her whereabouts. Based on the evidence presented, we cannot say that the trial court abused its discretion in finding that the children’s best interests were served by appointing Maestas as the managing conservator with the exclusive right to determine their residence. Issue two is overruled. 12 ISSUE THREE—FAILURE TO IMPOSE A RESIDENCY RESTRICTION Section 153.134(b)(1) of the Family Code authorizes the trial court to establish “a geographic area within which the conservator shall maintain the child’s primary residence” or “specify that the conservator may determine the child’s primary residence without regard to geographic location.” TEX. FAM. CODE ANN. § 153.134(b)(1) West 2014). The Family Code does not, however, provide specific factors for a court to consider when determining whether a geographic restriction is in the best interest of a child. In the final decree of divorce that appointed Hamilton as the managing conservator with the exclusive right to determine domicile, the trial court imposed a three-county geographic restriction (Lubbock County, Hansford County, and Ochiltree County) for a two-year period and thereafter the restriction was for the State of Texas. The three-county restriction was due to Maestas’s employment at the time as an EMT in a county other than where the children resided. In their live pleadings in the underlying modification proceeding, neither party requested or even addressed a geographic restriction. Several months after the trial on the merits, the parties reconvened to address the contested matter of whether the trial court should include a geographic restriction in its modification order. The trial court suggested that it was not required to consider or rule on something that had not been pleaded by either party. The parties discussed whether the trial court had a responsibility to determine whether to include a geographic restriction or whether the issue was discretionary. The trial court gave the parties an opportunity to brief the issue. Hamilton filed a brief in support of imposing a geographic restriction on Maestas, should he be awarded the exclusive right to designate the primary residence of the children. Her brief emphasized the public policy of Texas embodied in section 13 153.001(a) of the Family Code.4 She argued that section 153.134 of the Family Code imposed responsibility on the trial court to address the issue of a geographic restriction. Maestas did not submit a brief on the issue. A week or so later, the trial court issued a letter ruling indicating that based on the pleadings, evidence, and arguments of counsel, it would not be imposing a geographic restriction on Maestas whom the trial court had already decided to appoint as the primary managing conservator. In line with its letter ruling, the court’s final order specifies that Maestas has the exclusive right to designate his children’s primary residence “without regard to a geographic location.” Hamilton urges that based on public policy considerations, the trial court had a responsibility, whether pleaded for or not, to impose a residency restriction on Maestas’s exclusive right to designate the children’s primary residence. We disagree. Section 153.134(b)(1)(B) of the Family Code specifically authorizes a trial court to specify that a conservator “may determine the child’s primary residence without regard to geographic location.” (Emphasis added). The trial court’s order specifies the statutory language that Maestas has the exclusive right to designate the children’s primary residence “without regard to a geographic location.” Whatever rationale the trial court may have expressed for not including a geographic location is irrelevant. It had the authority and the discretion under the statute to exclude a geographic location. Issue three is overruled. 4 Section 153.001(a) provides that the public policy of Texas is to “(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. 14 ISSUE FOUR—MOTION TO MODIFY CHILD SUPPORT In the final decree of divorce, the trial court ordered that Maestas pay Hamilton $800 per month in child support. In the order being appealed, because Maestas was appointed the conservator with the exclusive right to designate the children’s residence, the trial court ordered that Hamilton pay Maestas $225 per month in child support beginning June 1, 2018. By her final issue, Hamilton does not challenge that portion of the court’s order directing her to pay child support. Instead, relying on section 156.401 of the Family Code, which provides the grounds for modification of child support, she argues that three years have passed since the initial child support order and the current support she receives differs from the statutory guidelines. TEX. FAM. CODE ANN. § 156.401(a)(2) (West 2014). She argues that due to material and substantial changes in circumstances, she should be receiving $1,000 per month instead of $800 from Maestas in child support. Because the trial court’s new order extinguished Maestas’s obligation to pay Hamilton any child support and because she does not challenge that portion of the new order that she pay child support to him, her complaint about the amount of child support Maestas should pay to her is thereby rendered moot. See TEX. R. APP. P. 38.1(a)(i). Issue four is overruled. 15 CONCLUSION The trial court’s Order in Suit to Modify Parent-Child Relationship is affirmed. Patrick A. Pirtle Justice 16	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4523509/	Case: 18-12536 Date Filed: 04/08/2020 Page: 1 of 11 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-12536 ________________________ D.C. Docket No. 1:18-cv-00357-RWS, Bkcy No. 15-bkc-58440-WLH In Re: BAY CIRCLE PROPERTIES, LLC, Debtor. _____________________________________________________ CHITTRANJAN THAKKAR, Plaintiff-Appellant, DCT SYSTEMS GROUP, LLC, Plaintiff, versus BAY POINT CAPITAL PARTNERS, LP, BAY POINT ADVISORS, LLC, CHARLES ANDROS, JOHN DOE, 1, JOHN DOE, 2, Defendants-Appellees. Case: 18-12536 Date Filed: 04/08/2020 Page: 2 of 11 ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (April 8, 2020) Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges. WILSON, Circuit Judge: Initially, when co-plaintiffs Chittranjan Thakkar and DCT Systems Group, LLC (DCT) jointly appealed to this court, we had no reason to doubt our jurisdiction. But then, after briefing, DCT settled and dismissed its appeal, leaving Thakkar as the sole appellant. DCT’s exit created a jurisdictional problem— Thakkar, an individual without injury, lacks standing. We thus dismiss Thakkar’s appeal. I. Thakkar claims to be “affiliated with” DCT. Thakkar and DCT each had loans with Wells Fargo. When DCT declared bankruptcy, Thakkar, DCT, and Wells Fargo entered into a Settlement Agreement for debt owed on the loans, securing them with two properties DCT owned and to which Thakkar asserted a “beneficial interest.” 1 Thakkar alleges the properties were worth at least $8 million together. The Agreement included a deeds-in-lieu-of-foreclosure remedy for Wells 1 For simplicity’s sake, we omit reference to other entities involved in the bankruptcy case and attendant agreements. 2 Case: 18-12536 Date Filed: 04/08/2020 Page: 3 of 11 Fargo: upon default, “Lender may at any time and in its discretion, without further notice to any Obligor or any other Person, record one or more of the Deeds in Lieu to effectuate a transfer of title to one or more Parcels of the Encumbered Property.” Wells Fargo sold its interest in the Agreement to Bay Point, and DCT ultimately defaulted on the loans. Thakkar alleges that, upon default, DCT owed $2.7 million on the debt, and Bay Point chose to record the properties’ deeds. Thakkar alleges that recording one deed would have satisfied the debt. The bankruptcy court overseeing DCT’s bankruptcy authorized Bay Point “to exercise (in Bay Point’s sole discretion) any and all rights and remedies,” including foreclosure, and Bay Point pursued foreclosure on both properties. Two days before the foreclosure sale, counsel for DCT purported to tender payment of the remaining debt to Bay Point, stating over email, “I can confirm to you that the sum of [$2.8 million] is in escrow to be tendered on behalf of DCT and such sum [can] be remitted to Bay Point upon receipt of written acknowledgment that it will accept this tender.” Bay Point did not respond. At the sale, Thakkar appeared and read the email letter aloud, but he did not produce payment. Bay Point sold the properties for $2.85 million. Thakkar sued Bay Point in state court and added DCT as a plaintiff in an amended complaint. In the amended complaint, Thakkar alleges that Bay Point’s 3 Case: 18-12536 Date Filed: 04/08/2020 Page: 4 of 11 foreclosure of two properties caused him to lose the collateral’s value exceeding the debt balance, and to suffer mental anguish. Bay Point removed to bankruptcy court and moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), which the court granted and entered for Bay Point. The district court affirmed the bankruptcy court in all respects. Thakkar and DCT appealed. On July 24, 2019, we granted DCT’s motion to dismiss its appeal, following a settlement with Bay Point where DCT relinquished all claims regarding the two properties it owned. Now Thakkar alone challenges Bay Point’s decision to record both properties’ deeds instead of one and Bay Point’s failure to accept the purportedly proper “tender.” II. Article III standing “represents a jurisdictional requirement which remains open to review at all stages of the litigation.” Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255 (1994). We analyze three elements for Article III standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The first of these is injury in fact—“an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal quotation marks omitted) (citations omitted). A particularized injury is one that “affect[s] the plaintiff in a personal and individual way.” Id. at 560 n.1. 4 Case: 18-12536 Date Filed: 04/08/2020 Page: 5 of 11 At the pleading stage, “plaintiff[s] must clearly allege facts demonstrating each element” of standing. Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S. Ct. 1540, 1547 (2016) (alteration adopted) (internal quotation marks omitted). “[L]abels,” “conclusions,” or “naked assertions devoid of further factual enhancement” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration adopted) (internal quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Important too is that “standing is not dispensed in gross.” Town of Chester v. Laroe Estates, Inc., 581 U.S. ___, 137 S. Ct. 1645, 1650 (2017). An appellate court must examine its jurisdiction if the sole party with standing in the lower court is absent as an appellant. See Diamond v. Charles, 476 U.S. 54, 61 (1986). The ability of a party without its own standing to “piggyback” on another party’s standing “exists only if the [party with standing] is in fact an appellant . . . ; in the absence of the [party with standing] in that capacity, there is no case.” Id. at 64. To start, DCT undoubtedly had standing, but now its “absence as an appellant requires that we examine our jurisdiction to entertain this appeal.” See id. at 61. Thakkar can no longer piggyback on DCT’s standing because DCT relinquished all claims to the properties in its settlement with Bay Point. He must 5 Case: 18-12536 Date Filed: 04/08/2020 Page: 6 of 11 have sufficiently alleged facts in the operative complaint to establish his own standing independent of any interest in DCT. He did not. Thakkar failed to allege an actual injury personal to him. In the operative complaint, Thakkar alleges that Bay Point’s foreclosure on DCT’s two properties caused him to lose the collateral’s value exceeding the debt balance, and to suffer mental anguish. But he also alleges that DCT—not he—was the properties’ owner, and he otherwise fails to elaborate on the nature of his “beneficial interest” in DCT and its properties. Without more, we cannot say that any alleged loss Thakkar suffered as an individual is more than speculative. His “naked assertions devoid of further factual enhancement” will not suffice. See Iqbal, 556 U.S. at 678 (alteration adopted) (internal quotation marks omitted). As for mental anguish, Thakkar asserted that, “[i]n a wrongful foreclosure action, an injured party may seek damages for mental anguish in addition to cancellation of the foreclosure,” quoting Blanton v. Duru, 543 S.E.2d 448, 452 (Ga. Ct. App. 2000). But, unlike the injured party in Blanton, Thakkar has not demonstrated that he owned the foreclosed properties here. See id. at 449–50. On the contrary, he alleges DCT owned them. Blanton did not hold that a nonowner may seek damages for mental anguish, so Blanton does not benefit Thakkar. To the extent Thakkar asserts other injuries, none amount to an injury in fact. He asserts on appeal that (1) he personally guaranteed the loans at issue; and 6 Case: 18-12536 Date Filed: 04/08/2020 Page: 7 of 11 (2) the property could satisfy or decrease his personal liability stemming from judgments that two creditors have against him individually. First, the foreclosures satisfied the Settlement Agreement debt, so even assuming that he truly did personally guarantee the loans, it is unclear why any personal guaranty matters. And more importantly, we see no reference in his complaint to such a personal guaranty. Second, it is unclear how DCT’s recovery of any lost property value would pay off Thakkar’s alleged personal liability on creditors’ judgments against him individually; he is neither a debtor nor creditor in the original bankruptcy proceedings. Indeed, in his supplemental brief, he says that he or the bankruptcy estate could get the property, and he offers no basis for concluding that the property would likely become his. And, anyway, the complaint contained no allegations about Thakkar’s personal liability to these two creditors. All in all, because Thakkar failed to allege a particularized, actual injury for Article III standing, we have no jurisdiction over this appeal. III. Beyond Article III standing, “we have adopted the person aggrieved doctrine as our standard for determining whether a party can appeal a bankruptcy court’s order.” Atkinson v. Ernie Haire Ford, Inc. (In re Ernie Haire Ford, Inc.), 764 F.3d 1321, 1325 (11th Cir. 2014). That “standard does not speak to a court’s subject- matter jurisdiction. Rather, it tells us which parties may appeal from a bankruptcy 7 Case: 18-12536 Date Filed: 04/08/2020 Page: 8 of 11 court order.” Id. at 1325 n.3. The “doctrine restricts standing more than Article III standing.” Heatherwood Holdings, LLC v. HGC, Inc. (In re Heatherwood Holdings, LLC), 746 F.3d 1206, 1216 (11th Cir. 2014). It “limits the right to appeal a bankruptcy court order to those parties having a direct and substantial interest in the question being appealed,” i.e., those whom a bankruptcy court’s order “directly, adversely, and pecuniarily” affects by “diminish[ing] their property, increas[ing] their burdens, or impair[ing] their rights.” Ernie Haire Ford, 764 F.3d at 1325 (internal quotation mark omitted). Based on that doctrine, we also dismiss this appeal because Thakkar certainly cannot clear the higher hurdle of showing that he is a person aggrieved. Assuming the bankruptcy-court order injured Thakkar at all, it did so indirectly because the order affected DCT’s pecuniary interest, not Thakkar’s. See LorCon LLC # 1 v. Heyl (In re Heyl), 770 F.3d 729, 729–31 (8th Cir. 2014) (per curiam) (holding an individual did not have person-aggrieved standing because he had no more than a derivative interest in his company’s claim). He fails to allege a direct and substantial interest in the question being appealed or explain how the order diminishes his—rather than DCT’s—property, increases his burdens, or impairs his rights. See Fortune Nat. Res. Corp. v. U.S. Dep’t of Interior, 806 F.3d 363, 366– 67 (5th Cir. 2015) (holding entity had no person-aggrieved standing because it “did not show that it would have accessed any funds from the bankruptcy estate had the 8 Case: 18-12536 Date Filed: 04/08/2020 Page: 9 of 11 court not approved” a sale, and the contested order “left [the entity] in the same position”). Thakkar argues that he has person-aggrieved standing to appeal the bankruptcy-court order because the order will ultimately cause him financial loss akin to the loss suffered by homeowners in Westwood Community Two Association, Inc. v. Barbee (In re Westwood Community Two Association, Inc.), 293 F.3d 1332 (11th Cir. 2002). However, Westwood is distinguishable. There, the trustee for a debtor homeowners’ association imposed a special assessment on the homeowners to cover the cost of claims against the association in its bankruptcy proceeding. Id. at 1333–34. The homeowners appealed two bankruptcy-court orders: (1) an order denying their request to reconsider allowance of the claims against the debtor homeowners’ association; and (2) an order allowing the special assessment. Id. at 1334. We held that, under the proper person-aggrieved standard, the homeowners had standing to challenge both orders because, in short, the orders directly permitted the special assessment that cost each homeowner thousands of dollars. Id. at 1336–37. Thakkar alleged no equivalent to the Westwood special assessment—no “direct financial stake” in the bankruptcy order at issue in this case. See id. at 1337. Therefore, Thakkar has not shown person-aggrieved standing under Westwood. 9 Case: 18-12536 Date Filed: 04/08/2020 Page: 10 of 11 Finally, to the extent Thakkar argues that he is a person aggrieved simply by virtue of attacking the inherent fairness of a bankruptcy proceeding, citing Ernie Haire Ford and Kabro Associates of West Islip, LLC v. Colony Hill Associates (In re Colony Hill Associates), 111 F.3d 269 (2d Cir. 1997), he is wrong. Thakkar misconstrues Ernie Haire Ford and its reference to Kabro. In Ernie Haire Ford, we merely referenced Kabro to support the proposition that three other circuits “have recognized that a person is not ‘aggrieved’ when the interests harmed by a court order are not interests the Bankruptcy Code seeks to protect or regulate.” Ernie Haire Ford, 764 F.3d at 1326 (citing Kabro Assocs. of West Islip, 111 F.3d at 273–74). In the next sentence, we held that “for a person to be aggrieved, the interest they seek to vindicate on appeal must be one that is protected or regulated by the Bankruptcy Code.” Id. But that was not to say that, if someone fails to assert a direct harm, he may still appeal if he attacks the inherent fairness of a proceeding. In fact, we later said, “Allowing appeals from parties who have suffered only an indirect harm or who hold interests outside the scope of the Bankruptcy Code would defeat the very purpose underlying our person aggrieved standard.” Id. (emphasis added). In other words, a party must both show a direct harm and hold an interest within the scope of the Bankruptcy Code. See id. at 1327 (“Assuming arguendo that Atkinson has suffered a direct harm . . . , he is still not a person aggrieved because his interest is not protected or regulated by the 10 Case: 18-12536 Date Filed: 04/08/2020 Page: 11 of 11 Bankruptcy Code.”). Thakkar’s harm is not cognizable, see supra section II, much less direct. Therefore, Thakkar is not a person aggrieved, and he may not pursue this appeal. IV. In conclusion, Thakkar lacks standing, whether Article III or person- aggrieved. So we dismiss this appeal. DISMISSED. 11	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4523507/	In The Court of Appeals Seventh District of Texas at Amarillo No. 07-20-00094-CV IN RE JAY ANTHONY NOTTINGHAM, RELATOR ORIGINAL PROCEEDING April 6, 2020 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ. Relator, Jay Anthony Nottingham, appearing pro se, has filed a motion for leave to file a petition for writ of mandamus and a petition for writ of mandamus. Relator presents two complaints in his petition: (1) that respondent, the Honorable David L. Gleason, erred in denying Relator’s motion to disqualify the Honorable John B. Board as the trial court judge in a long-dismissed criminal case; and (2) that Judge Gleason erred in designating Relator a vexatious litigant with instructions that the district clerk “not accept any more documents Mr. Nottingham may attempt to file in this matter.” We deny the petition. By opinion of March 31, 2020,1 this Court held that Cause 27,150-B, the matter in which Relator sought to disqualify Judge Board, had been dismissed in 2017. Accordingly, there was no pending case or controversy at the time Relator filed his motion to disqualify in 2019. The motion had become moot and could not have been granted. See State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 482 (Tex. Crim. App. 1985) (granting mandamus relief to void order of recusal after motion to recuse had become moot). Moreover, by the Government Code’s own language, the objection provision that Relator claims to have invoked applies only in a “civil case.” TEX. GOV’T CODE ANN. § 74.053(b) (West 2013). Finally, nothing in the language of Texas Government Code section 74.053 requires an assigned judge to wait seven days after appointment before ruling on a motion to disqualify. See TEX. GOV’T CODE ANN. § 74.053. Relator provides no support for his position that Judge Gleason’s denial of the motion to disqualify was “premature,” and we find no supporting authority. Relator’s first issue is overruled. Likewise, with regard to Relator’s second complaint – that the trial court erred in sua sponte ordering the district clerk not to accept documents that “Mr. Nottingham may attempt to file in this matter” -- the Court holds that Relator demonstrates no basis for mandamus relief as the issue is moot. As per the prior opinion of this Court, the “matter” from which Relator has been prohibited from filing has been dismissed for more than two years. Relator has not been barred from filing in pending matters in which he is a party, 1 Nottingham v. State, No. 07-20-00067-CR, 2020 Tex. App. LEXIS 2832 (Tex. App.—Amarillo, Mar. 31, 2020, no pet. h.) (per curiam) (mem. op., not designated for publication). 2 only in Cause 27,150-B.2 We find no abuse of discretion in the trial court’s directions in prohibiting Relator from filing further in Cause 27,150-B. We, therefore, deny the petition for mandamus. We dismiss relator’s request for leave to file a petition for writ of mandamus as moot. See TEX. R. APP. P. 52, Notes and Comments (“The requirement of a motion for leave in original proceedings is repealed”); TEX. R. APP. P. 52.1; In re Bryant, No. 07-11-00052-CV, 2011 Tex. App. LEXIS 1421, at 5 n.4 (Tex. App.—Amarillo Feb. 25, 2011, orig. proceeding) (per curiam, mem. op.). Per Curiam 2 Accordingly, we find it unnecessary to determine at this time whether the trial court possessed authority to deem Relator a vexatious litigant. There is no evidence in the record that the order contained an anti-suit injunction barring Relator from filing documents in other litigation matters in which he was a party. See In re Lagaite, No. 07-11-00398-CV, 2011 Tex. App. LEXIS 8995, at 1-2 (Tex. App.—Amarillo Nov. 9, 2011, orig. proceeding) (per curiam); In re Amir-Sharif, No. 03-16-00100-CV, 2016 Tex. App. LEXIS 1780, at *1-2 (Tex. App.—Austin Feb. 19, 2016, orig. proceeding) (mem. op.). Relator’s name does not appear on the Texas Office of Court Administration’s list of vexatious litigants subject to a prefiling order. See https://www.txcourts.gov/judicial-data/vexatious-litigants/, last visited April 2, 2020. 3	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4523511/	[Cite as Billman v. Smith, 2020-Ohio-1358.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY DAVID BILLMAN, : : Petitioner-Appellant, : Case No. 19CA18 : vs. : : DECISION AND SHELBIE SMITH, WARDEN, : JUDGMENT ENTRY : Respondent-Appellee. : _____________________________________________________________ APPEARANCES: David Billman, Orient, Ohio, Appellant, pro se. David Yost, Ohio Attorney General, and William H. Lamb, Assistant Attorney General, Cincinnati, Ohio, for Appellee. _____________________________________________________________ Smith, P.J. {¶1} This is an appeal from two Pickaway County Common Pleas Court decisions and entries. The first decision and entry denied Appellant’s petition for a writ of habeas corpus for failure to state a claim. The second decision and entry denied Appellant’s motion for reconsideration. Because, in a criminal context, there is no authority for the filing of a motion for reconsideration of a final judgment, such a motion is generally considered a legal nullity and thus, an order denying such motion does not constitute a final, appealable order and this Court Pickaway App. No. 19CA18 2 lacks jurisdiction to review the related arguments on the merits.1 State v. Campbell, 4th Dist. Adams No. 16CA1029, 2017-Ohio-4252, ¶ 8, 11 and 12. Accordingly, to the extent Appellant is appealing the trial court’s denial of his motion for reconsideration, his appeal is dismissed. {¶2} Appellant raises four very lengthy assignments of error, however, related to the trial court’s denial of his petition for a writ of habeas corpus. On appeal, Appellant essentially contends 1) that the trial court erred in determining he was not denied access to the courts, which he claims caused his motion for a delayed appeal to the Supreme Court of Ohio to be denied; 2) that the trial court erroneously determined his arguments regarding double jeopardy and the failure to prove venue were barred by res judicata; 3) that the trial court erroneously determined he did not meet the standard for habeas corpus relief; and 4) that the trial court erroneously accepted “the state’s misdirection that the double jeopardy issue is only about the indictment.” {¶3} However, because we conclude Appellant’s current appeal fails on procedural grounds as a result of his failure to comply with the filing requirements of R.C. 2969.25(A), we must dismiss the appeal for lack of jurisdiction. Furthermore, because we find Appellant’s petition fails on substantive grounds, we 1 Moreover, despite the fact that Appellant has represented he is appealing the trial court’s denial of his motion for reconsideration, none of his assigned errors on appeal relate to the denial of that motion. Pickaway App. No. 19CA18 3 cannot conclude that the trial court erred in granting Appellee’s Civ.R. 12(B)(6) motion for dismissal for failure to state a claim. As such, the arguments raised by Appellant on appeal are without merit. Accordingly, the appeal is dismissed. FACTS AND PROCEDURAL HISTORY {¶4} Because Appellant has not provided this Court with the entire criminal record of this case, including the underlying criminal record from his convictions in the Monroe County Court of Common Pleas, we take judicial notice of the facts of this matter as set forth in his first, direct appeal, as follows: Appellant and his wife, Mary Billman, are foster parents working with Monroe County Child and Family Services. According to testimony, the two live in Monroe County at 31143 Liberty Ridge Rd., Wingett Run, Ohio 45789 and have lived there since 1994. A total of seven children lived in the house under the care of the couple at all periods relevant to this matter. In 2006 Appellant and his wife accepted responsibility for Child X and Child Y, who had been removed from the home of their biological father due to sexual abuse. According to Appellant's wife, when the two children entered Appellant's home, both had physical indications of sexual abuse. Both children lived in Appellant's home from February of 2005 until the present. Appellant resided in the family home until 2011, when Pickaway App. No. 19CA18 4 his wife asked him to leave. Appellant moved out on October 28, 2011, after his wife confronted him with the accusations of Child X and Child Y, who told her that Appellant had been sexually abusing Child Y the entire time she lived with him, and that he had just started abusing Child X. On October 28, 2011, after he left the house, Appellant called a friend, David A. Preston, and announced: “I molested [Child Y].” (Pretrial Motion Hrg. Tr., p. 46; Tr. Vol. III, p. 93.) Preston was initially uncertain who was speaking because Appellant had not identified himself. When Appellant identified himself, Preston asked if he had a place to stay and offered to allow Appellant to stay the night in his house. Appellant and Preston had been friends for more than six years; they initially met through work near Cincinnati. Although they met because of their work, the two bonded through their Christian faith and regularly discussed religious issues. The two men were both assistant pastors, but attended different non- denominational churches. Neither man attended seminary or had undertaken any formal program of religious or pastoral study. Each man had been “ordained” by the pastor of his respective church. Neither church is formally affiliated with any organized Christian Pickaway App. No. 19CA18 5 denomination. Appellant stayed with Preston for a brief period, but eventually called the Monroe County Sheriff's Department and turned himself in. On November 17, 2011, Appellant was indicted on twelve counts alleging abuse of both Child X and Child Y. The counts included two instances of gross sexual imposition with regard to Child X, who was then eight years old. The remaining ten counts involved Child Y, who was then nine years old, and included two instances of rape, two instances of attempted rape, and six instances of gross sexual imposition. The charges as they related to Child X were alleged to have occurred between January 1, 2011 and October 28, 2011. The charges as they related to Child Y were alleged to have occurred between January 1, 2006 and October 28, 2011. The trial court found both children competent to testify at trial and their testimony, coupled with that of the various adults to whom Appellant admitted his crimes, composed the bulk of the case against Appellant. Although Appellant was originally charged with two counts of gross sexual imposition involving Child X, her testimony at trial was confused, and ultimately, she described a single incident. Child Y, however, described Appellant touching and rubbing her vagina on ten Pickaway App. No. 19CA18 6 separate occasions in three different locations in the home: the living room, her mother's bedroom, and another sister's room. Child Y also described having been made to touch Appellant's genitals on six occasions and revealed multiple instances when Appellant licked her genitals. Child Y recounted three instances when Appellant placed his penis, which she described as a “[s]oft-ish/hard-ish thing,” in her mouth. (Tr. Vol.III, p. 71.) During two of these incidents, according to Child Y, a “clear-ish” liquid went into her mouth, which she then spit into the toilet. (Tr. Vol.III, p. 74.) According to Child Y, during one of the three occasions there was no liquid. In the entirety of Child Y's testimony she related nineteen separate encounters with Appellant that could support gross sexual imposition charges. At least three and possibly thirteen of those nineteen incidents involved conduct constituting rape (oral and digital). Child Y said Appellant told her not to tell anyone about the things he did “cause I could go to prison for it.” (Tr. Vol. III, p. 74.) Ten of the original twelve counts were submitted to the jury: two counts of gross sexual imposition involving Child X; two counts of rape involving Child Y; and six counts of gross sexual imposition involving Child Y. The jury returned guilty verdicts on nine of the ten Pickaway App. No. 19CA18 7 counts. Appellant was acquitted of the second count of gross sexual imposition involving Child X. After sentencing, Appellant filed a motion for new trial based on an audio recording made by his wife of the two girls. Appellant argued that in the recording the girls suggested that they would recant their testimony. The state responded with affidavits describing conversations between Appellant and his wife that were recorded by the facility in which Appellant was being held. The recorded conversations between Appellant and his wife reflected that the two had planned the best way to record the girls to undermine their testimony. Appellant's wife told the girls that they would not have to testify in court at the sentencing hearing if they made a tape for her. The trial court concluded, without a hearing, that the recording offered by Appellant was self-serving and not credible. The trial court overruled Appellant's motion for new trial. Appellant filed timely appeals of his conviction and sentence and of the ruling denying his motion for new trial and the two appeals were consolidated. State v. Billman, 7th Dist. Monroe Nos. 12MO3 and 12MO5, 2013-Ohio-5774, ¶ 2- 7. Pickaway App. No. 19CA18 8 {¶5} Appellant’s first, direct appeal to the Seventh District Court of Appeals resulted in a complete affirmance of Appellant’s convictions by a decision issued on December 16, 2013. In affirming Appellant’s convictions for gross sexual imposition and rape, the court denied Appellant’s arguments that the State failed to sufficiently prove venue, i.e. that the crimes occurred in Monroe County. Id. at ¶ 11, 18. The court also considered and rejected Appellant’s argument, under a plain error analysis, that his indictment was “duplicative” in that it “failed to allege with enough specificity what events made up the gross sexual imposition charges, and a bill of particulars and testimony at trial did not correct for [sic] this deficiency, in violation of his right to due process of law.” Id. at ¶ 18. Further, in rejecting this argument the court found no merit to Appellant’s claim that the indictment was insufficient because it charged multiple instances of the same crime, and therefore failed to “satisfy the notice and double jeopardy protection purposes of grand jury indictments.” Id. at ¶ 33. {¶6} Thereafter, it appears that Appellant filed a motion for a delayed appeal to the Supreme Court of Ohio, which was denied on April 23, 2014. State v. Billman, 138 Ohio St. 3d 1467, 2014-Ohio-1674, 6 N.E.3d 1203. From there, Appellant filed a federal petition for habeas corpus on October 15, 2014, asserting four grounds for relief. Billman v. Warden, S.D.Ohio No. 2:14-CV-1910, 2016 WL 931262 (Mar. 11, 2016). The first ground for relief consisted of a claim that Pickaway App. No. 19CA18 9 the “State did not prove venue, nor present evidence, to support the convictions, at trial.” Id. at 2. The second ground consisted of a claim that “[t]he convictions were against the manifest weight of the evidence.” Id. The third ground consisted of a claim that “[t]he charges are duplicitous (carbon copies) without distinction and do not protect the petitioner against double jeopardy.” Id. The fourth claim has no relevance to the present appeal. {¶7} The federal court ultimately determined that all of Appellant’s claims “were procedurally defaulted” and the petition was ultimately denied on March 11, 2016. Id. at 5.2 In denying the petition, and pertinent to Appellant’s denial of access to courts argument in the present appeal, the federal court found that “the record does not support Petitioner’s claim that he was denied access to notary services required to complete his indigency affidavit until it was too late for him to take a timely appeal.” Id. at 5. The court further found that because “no additional research was needed in order for him to perfect his appeal[,]” he had not established good cause for his delay in filing his appeal to the Supreme Court of Ohio. Id. The court further noted, in support of its decision, that “[t]he federal 2 The court explained that “[t]he term ‘procedural default’ has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the courts of the trial or the appeal before a federal court intervenes in the state criminal process.” Id. at 3. The court further explained that “[t]his ‘requires the petitioner to present “the same claim under the same theory” to the state courts before raising it on federal habeas review.’ ” Pickaway App. No. 19CA18 10 courts have not been particularly sympathetic to claims that lack of access to a law library should excuse a procedural default.” Id. {¶8} The federal court further went on to discuss the fact that Appellant would not have been able to meet the standard to show that his claims were meritorious, even if they had not been procedurally defaulted. Id. The court explained as follows: When the claims presented in a habeas corpus petition have been presented to and decided by the state courts, a federal habeas court may not grant relief unless the state court’s decision was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence that was presented. Id. at 6. The federal court noted that Appellant’s sufficiency argument involving the establishment of venue, as well as Appellant’s double jeopardy argument related to the indictment on multiple counts of rape and gross sexual imposition, had been considered and addressed by the state court of appeals. Id. at 6, 8. The court further determined that the fact that all of his claims had been procedurally defaulted caused Appellant no prejudice, as none of his claims were meritorious. Id. at 7, 8. Pickaway App. No. 19CA18 11 {¶9} Subsequently, Appellant filed the underlying petition for a writ of habeas corpus in the Pickaway County Court of Common Pleas. Appellant set forth three arguments in support of his petition. First, Appellant raised a double jeopardy/due process argument related to his indictment and prosecution on multiple counts of rape and gross sexual imposition charges. He essentially claimed that the State had prosecuted him multiple times for the same crime without making any distinction between the charged crimes. He argued that an “indictment of identical charges is vague and duplicative” and that the repetitive rape and gross sexual imposition charges contained in his indictment were mere “carbon copies” of one another. He contended that the State’s failure to differentiate between the charges violated his Sixth Amendment right to be informed of the nature of the accusations being made against him and did not provide him with notice of all of the elements of the offenses being charged. He contended that, as a result, he was convicted of a generic pattern of offenses rather than being convicted of specific, separately proven offenses with the threat of more charges to come. He cited Valentine v. Kontech, 395 F.3d 626, 634 (6th Cir.2005) in support of his argument, stating that Valentine held that an indictment that fails to comport with due process, to the extent that it contained identical Pickaway App. No. 19CA18 12 charges that were undifferentiated at trial, failed to give the defendant adequate notice of the charges against him.3 {¶10} Second, Appellant argued that he was deprived of his constitutional right to due process and equal protection under the Fifth and Fourteenth Amendments, claiming that venue had to be proven for each and every count of the indictment, and that the State failed to prove venue for any of the counts. He argued that although one of the children testified that the incidents at issue occurred in the living room and in her mom’s bedroom, that the State failed to connect any of the those rooms to a location to prove venue for counts one, three, four, and seven through twelve of the indictment. He claims his conviction in light of this failure has resulted in him being wrongfully imprisoned. Ultimately, he claimed these alleged errors at trial caused him to be convicted based upon insufficient evidence and resulted in a denial of his constitutional rights to due process and equal protection. He noted in his petition that he raised this venue argument on direct appeal, but that it was denied. {¶11} Third, Appellant argued that he was denied his federal constitutional right of access to the courts because prison authorities prevented and deprived him 3 The Seventh District Court of Appeals decision found that Appellant’s reliance on Valentine in support of his arguments regarding his indictment were misplaced, explaining that “the Valentine decision was based on Fifth Amendment law that does not apply to the Ohio Grand Jury indictment requirement[,]” and importantly, that the Valentine decision “misapplies existing federal law and misrepresents a number of the cases on which it relies.” State v. Billman, supra, at ¶ 34-35. Pickaway App. No. 19CA18 13 of access to the prison law library, someone trained in law to assist him, notary services, copying services, and failed to respond to his kites requesting assistance. He argued that only after he filed a grievance was he permitted access to the law library and provided assistance in filing his appeal to the Ohio Supreme Court. He further argued that he was denied access to the courts because he missed his filing deadline and was only able to file a motion for a delayed appeal with the Supreme Court, which was denied. He argues that the denial of his motion for leave to file a delayed appeal was a direct result of prison officials denying him access to the courts. Finally, he contends this denial entitles him to an immediate release from prison. {¶12} The State opposed Appellant’s petition below. As to Appellant’s first argument that his indictment was defective, which he couched in terms of a double jeopardy violation, the trial court found the issue was “addressed and ruled on” in his first, direct appeal and was, thus, res judicata. As to his second argument that venue was never established, the court found this issue was also “addressed and ruled on” in his first, direct appeal and was res judicata as well. Finally, as to Appellant’s third argument that he was denied access to the courts, the trial court found that because Appellant was able to make a delayed appeal to the Supreme Court of Ohio, he was not denied access to the courts despite the fact that his motion was denied. The trial court ultimately dismissed Appellant’s petition. Pickaway App. No. 19CA18 14 Appellant now appeals from the trial court’s dismissal of his petition and assigns four errors for our review. ASSIGNMENTS OF ERROR I. “THE COURT IS IN ERROR WHEN IT STATED IN ITS DECISION AND ENTRY THAT MR. BILLMAN WAS PERMITTED A DELAYED APPEAL TO THE OHIO SUPREME COURT (O.S.CT.) SEE BONILLA, ID. WHEREAS MR. BILLMAN WAS DENIED A DELAYED APPEAL AND WAS TIME BARRED FROM THE COURT IN VIOLATION OF MR. BILLMAN’S FUNDAMENTAL CONSTITUTIONAL RIGHT OF ACCESS TO THE COURT ANNUNCIATED IN BOUNDS V. SMITH, ID. UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND HIS RIGHT TO DUE PROCESS OF THE LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, U.S. SUPREME COURT RULINGS IN BOUNDS V. SMITH, HOOKS V. WAINWRIGHT. ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.” II. “THE COURT IS IN ERROR WITH REGARD TO RES JUDICATA. THE ISSUES OF PROVED VENUE AND DOUBLE JEOPARDY ARE NOT RES JUDICATA AS MR. BILLMAN WAS NEVER ALLOWED TO ARGUE AGAINST THE FABRICATED EVIDENCE INTRODUCED BY THE STATE. SEE BONILLA, ID. MR. BILLMAN WAS NOT PERMITTED TO RESPOND TO, OR DEFEND HIMSELF AGAINST, THE FABRICATED EVIDENCE THAT THE STATE PROVED VENUE, NOR THE DECEPTION THAT THE DOUBLE JEOPARDY ISSUE WAS ABOUT THE INDICTMENT, PRESENTED BY THE STATE. IN VIOLATION OF ACCESS TO THE COURT UNDER THE SIXTH AMENDMENT AND OF DUE PROCESS OF THE LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.” III. “THE COURT IS IN ERROR WHEN IT SAID THAT MR. BILLMAN DOES NOT MEET THE STANDARD FOR HABEAS CORPUS. WHEREAS MR. BILLMAN’S CONVICTIONS ARE A DIRECT CONTRADICTION TO THE STATE CONSTITUTION, ARTICLE I, § 10 Pickaway App. No. 19CA18 15 WHICH SAYS THAT A CONVICTION MAY NOT BE HAD WHERE THE VENUE ALLEGED IN THE INDICTMENT IS NOT PROVEN. AND BEING DENIED ACCESS TO THE COURT PREVENTED HIM FROM ADDRESSING THIS ISSUE IN THE NORMAL COURSE OF LAW. A VIOLATION OF HIS SIXTH AMENDMENT RIGHT OF ACCESS TO THE COURT U.S. SUPREME COURT RULINGS AND TO DUE PROCESS OF THE LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. THEREFORE MR. BILLMAN CLEARLY MEETS THE STANDARD OF EXTRAORDINARY CIRCUMSTANCES AS ANNUNCIATED IN, THE DECISION AND ENTRY, STATE EX REL. JACKSON V. MCFAUL.” IV. THE COURT IS IN ERROR WHEN IT ACCEPTS THE STATE’S MISDIRECTION THAT THE DOUBLE JEOPARDY ISSUE IS ONLY ABOUT THE INDICTMENT. WHEREAS MR. BILLMAN WAS CONVICTED MULTIPLE TIMES FOR THE EXACT SAME OFFENSE AND THE STATE MADE NO DISTINCTION BETWEEN THE CONVICTIONS DURING TRIAL. IN VIOLATION OF THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION, AND IN VIOLATION OF DUE PROCESS OF THE LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.” Standard of Review {¶13} As set forth above, the State moved to dismiss Appellant’s petition below for failure to state a claim and the trial court granted the State’s motion and dismissed the petition. “A motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the complaint.” Volbers– Klarich v. Middletown Mgt., Inc., 125 Ohio St. 3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. In order for a court to dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted, it must Pickaway App. No. 19CA18 16 appear beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to the relief sought. Ohio Bur. Of Workers' Comp. v. McKinley, 130 Ohio St. 3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12; Rose v. Cochran, 4th Dist. Ross No. 11CA3243, 2012-Ohio-1729, ¶ 10. When a trial court considers a Civ.R. 12(B)(6) motion to dismiss, it must review only the complaint, accepting all factual allegations contained in the complaint as true and making all reasonable inferences in favor of the nonmoving party. State ex rel. Talwar v. State Med. Bd. of Ohio, 104 Ohio St. 3d 290, 2004-Ohio-6410, 819 N.E.2d 654, ¶ 5; Perez v. Cleveland, 66 Ohio St. 3d 397, 399, 613 N.E.2d 199 (1993); Estate of Sherman v. Millhon, 104 Ohio App. 3d 614, 617, 662 N.E.2d 1098 (10th Dist.1995). Furthermore, the trial court “cannot rely on evidence or allegations outside the complaint to determine a Civ.R. 12(B)(6) motion.” State ex rel. Fuqua v. Alexander, 79 Ohio St. 3d 206, 207, 680 N.E.2d 985 (1997). {¶14} This same standard applies in cases involving claims for extraordinary relief, including habeas corpus. Boles v. Knab, 130 Ohio St. 3d 339, 2011-Ohio- 5049, 958 N.E.2d 554, ¶ 2 (“Dismissal under Civ.R. 12(B)(6) for failure to state a claim was warranted because after all factual allegations of Boles's petition were presumed to be true and all reasonable inferences therefrom were made in his favor, it appeared beyond doubt that he was not entitled to the requested extraordinary relief in habeas corpus”). “Appellate courts review de novo a Pickaway App. No. 19CA18 17 dismissal for the failure to state a claim.” Hammond v. Perry, 4th Dist. Hocking No. 12CA27, 2013-Ohio-3683, ¶ 11, citing Allen v. Bryan, 4th Dist. Hocking No. 12CA15, 2013-Ohio-1917, ¶ 7; Barley v. Hearth & Care of Greenfield, L.L.C., 4th Dist. Highland No. 12CA13, 2013-Ohio-279, ¶ 11. “In other words, an appellate court affords no deference to a trial court's decision and, instead, applies its own, independent review to determine if the Civ.R. 12(B)(6) requirements were satisfied.” Hammond at ¶ 11, citing McDill v. Sunbridge Care Ents., Inc., 4th Dist. Pickaway No. 12CA8, 2013-Ohio-1618. ¶ 10; Estep v. State, 4th Dist. Ross No. 09CA3088, 2009-Ohio-4349, ¶ 5. Habeas Corpus {¶15} Habeas corpus petitions are governed by R.C. 2725. They are available to a person who is “unlawfully restrained of his liberty * * to inquire into the cause of such imprisonment, restraint, or deprivation.” R.C. 2725.01. “An individual may petition for a writ of habeas corpus if his maximum sentence has expired and he is being held unlawfully.” Nedea v. Cook, 4th Dist. Hocking No. 15CA12, 2015-Ohio-3668, ¶ 8, citing State v. Wilburn, 4th Dist. Lawrence No. 98CA47, 1999 WL 1281507 (Dec. 22, 1999) and Frazier v. Strickrath, 42 Ohio App.3d 114, 115-116, 536 N.E.2d 1193 (4th Dist.1988); see also Bradley v. Hooks, 4th Dist. Ross No. 16CA3576, 2017 -Ohio- 4105, ¶ 10. Pickaway App. No. 19CA18 18 {¶16} A habeas corpus petition must conform to certain statutory requirements. It must be signed and verified, and it must specify: (A) that the petitioner is imprisoned or restrained of his liberty; (B) the name of the person restraining the petitioner, if known; (C) the place the petitioner is imprisoned or restrained, if known; and (D) it must include a copy of the commitment papers, if the commitment papers can be obtained without impairing the efficiency of the remedy. R.C. 2725.04. A petitioner's failure to attach all pertinent commitment papers renders the petition fatally defective. See Tucker v. McAninch, 82 Ohio St.3d 423, 696 N.E.2d 595 (1998) (affirming this court's dismissal of a habeas corpus petition where petitioner did not attach all the relevant commitment papers); Workman v. Shiplevy, 80 Ohio St. 3d 174, 685 N.E.2d 231 (1997); Bloss v. Rogers, 65 Ohio St. 3d 145, 146, 602 N.E.2d 602 (1992). It appears Appellant met these procedural requirements below and that the trial court did not dismiss Appellant’s petition on these procedural grounds. {¶17} Additionally, a failure to comply with the provisions of R.C. 2969.25 requires the dismissal of an action in habeas corpus. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982. R.C. 2969.25(A)(1)-(4) requires that an inmate who files a civil action or appeal against a government entity or employee must file an affidavit that contains a description of each civil action or appeal the inmate has filed in the previous five years. A review of the record Pickaway App. No. 19CA18 19 indicates Appellant met this requirement below with the initial filing of his petition at the trial court level. According to the plain language of the statute, he was required to file another affidavit along with his appeal to this Court, however, he did not. As a result, his appeal is procedurally defective and must be dismissed. See Robinson v. Miller, 148 Ohio St. 3d 429, 2016-Ohio-7828, 71 N.E.3d 255, ¶ 7 (“The requirements of R.C. 2969.25 are ‘ “mandatory, and failure to comply with them subjects an inmate’s action to dismissal.” ’ ”), quoting Hazel v. Knab, 130 Ohio St. 3d 22, 2011-Ohio-4608, 955 N.E.2d 378, ¶ 1, in turn quoting State ex rel. White v. Bechtel, 99 Ohio St. 3d 11, 2003-Ohio-2262, 788 N.E.2d 634, ¶ 5. {¶18} R.C. 2969.25(C)(1) further requires that inmates who file civil actions or appeals against a government entity or employee, and who seek waivers of the prepayment of the full filing fees assessed by the court, shall file with the complaint, or notice of appeal, an affidavit that the inmate is seeking a waiver of the prepayment of the court's full filing fees, as well as an affidavit of indigency. Washington v. Morgan, 4th Dist. Scioto No. 14CA3664, 2014-Ohio-5834, ¶ 9. These affidavits must include a statement that sets forth the balance in the inmate's account for each of the preceding six months and must be certified by the institutional cashier. Id.; citing Boles v. Knab, 129 Ohio St. 3d 222, 2011-Ohio- 2859, 951 N.E.2d 389, ¶ 1 (court of appeals did not err in dismissing inmate's petition for a writ of habeas corpus because inmate must include a statement Pickaway App. No. 19CA18 20 setting forth the balance in his inmate account for each of the preceding six months, as certified by the institutional cashier); State ex rel. McGrath v. McDonnell, 126 Ohio St. 3d 511, 2010-Ohio-4726, 935 N.E.2d 830; State ex rel. Thacker v. Evans, 4th Dist. Gallia No. 05CA4, 2005-Ohio-933. Here, Appellant filed an affidavit of indigency averring he was without sufficient funds to pay the required costs and fees of the habeas action and requested a waiver at the trial court level. His request included the required affidavit as well as the certified statement regarding his inmate account balance. On appeal, however, although Appellant filed an affidavit of indigency, he did not further seek a waiver of prepayment of the filing fees. Nor did he attach a certified statement regarding his inmate account balance. Thus, we do not construe Appellant’s filing of an affidavit of indigency alone as a request for a waiver of fees. Therefore, Appellant was not bound by the additional statutory filing requirements on appeal, the noncompliance with which would have been additional grounds for dismissal of his appeal. Legal Analysis {¶19} Despite the procedural defect on appeal, we note that Appellant’s petition was properly dismissed on substantive grounds by the trial court, albeit for incorrect reasons as to the double jeopardy, venue, insufficiency, due process, and equal protection arguments. First, to the extent Appellant argues he was denied access to the courts by prison officials by virtue of the fact that he missed his Pickaway App. No. 19CA18 21 appellate filing deadline to the Supreme Court of Ohio and, as a result, had to file a motion for leave to file a delayed appeal, which was denied, his argument has no merit. As noted by the State in its motion to dismiss below and also on appeal, Appellant’s motion for leave to file a delayed appeal to the Supreme Court was an adequate remedy at law, despite the fact that the motion was ultimately denied. Webber v. Kelly, 120 Ohio St. 3d 440, 2008-Ohio-6695, 900 N.E.2d 175. As explained in Webber, a petitioner has an adequate remedy at law by way of an appeal to the Supreme Court and simply because an attempt to appeal to the Supreme Court fails when a motion for leave to file a delayed appeal is denied, a petitioner is not entitled to extraordinary relief in habeas corpus. Id. at ¶ 9. Thus, Appellant’s access-to-the-courts argument had no merit. {¶20} Second, with respect to Appellant’s arguments regarding his defective indictment and duplicative prosecution for multiple offenses (which were couched in terms of double jeopardy and due process violations) and failure to prove venue/sufficiency of the evidence (which were couched in terms of due process and equal protection violations), as noted by the trial court below and also by the federal court in Appellant’s federal habeas corpus petition, these exact arguments were raised on direct appeal and were considered and denied. However, contrary to the trial court’s decision, as well as arguments by the State both below and on appeal, they are not barred by res judicata, at least to the extent they were already Pickaway App. No. 19CA18 22 decided under Appellant’s first, direct appeal. The doctrine of res judicata generally states as follows: [A] final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. State v. Perry, 10 Ohio St. 2d 175, 176, 226 N.E.2d 104, paragraph nine of the syllabus (1967). {¶21} However, this Court has observed that the Supreme Court of Ohio has previously “recognized that habeas corpus actions are typically exempt from res judicata because ‘ “[c]onventional notions of finality of litigation have no place where life or liberty is at stake.” ’ ” Lloyd v. Robinson, 4th Dist. Ross No. 14CA3462, 2015-Ohio-1331, ¶ 12-13 (also holding, however, that res judicata applied to bar successive petitions for habeas corpus), quoting Natl. Amusements, Inc. v. Springdale, 53 Ohio St. 3d 60, 63, 558 N.E.2d 1178 (1990), in turn quoting Sanders v. United States, 373 U.S. 1, 8, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963); see also Patterson v. Bracy, 2019-Ohio-747, 132 N.E.3d 1115, ¶ 21 (“Under Ohio law, habeas corpus proceedings are exempt from res judicata.”). Thus, because the trial Pickaway App. No. 19CA18 23 court determined that these arguments were barred by res judicata because they were already raised and rejected as part of Appellant’s first, direct appeal, the trial court’s decision was in error. However, Appellant’s petition was arguably barred by res judicata as a successive petition in light of the fact that Appellant had filed a previous motion for a federal writ of habeas corpus. Because Appellant’s arguments fail for other reasons, however, we decline to address whether res judicata applies to bar a state petition for habeas corpus that is filed after a federal petition for habeas corpus is denied, when the grounds for denial were based on procedural default and were not based upon the merits. {¶22} As explained in Webber, supra, “in general, ‘habeas corpus is not available to remedy claims concerning * * * the sufficiency of the evidence.’ ” Webber at ¶ 8, quoting State ex rel. Tarr v. Williams, 112 Ohio St. 3d 51, 2006- Ohio-6368, 857 N.E.2d 1225, ¶ 4; see also Bradley v. Hooks, 4th Dist. Ross No. 16CA3576. 2017-Ohio-4105, ¶ 14. Likewise, challenges to an indictment are properly brought on direct appeal in the ordinary course of law and cannot be challenged collaterally by an extraordinary writ. See generally, State v. Lambert, 2017-Ohio-4310, 82 N.E.3d 29, ¶ 15 (4th Dist.), citing State ex rel. Bandarapalli v. Gallagher, 128 Ohio St. 3d 314, 2011-Ohio-230, 943 N.E.2d 1020, ¶ 1; see also Lloyd v. Robinson, supra, at ¶ 14. Stated another way, challenges to the Pickaway App. No. 19CA18 24 indictment, arguments challenging the sufficiency of the evidence, and alleged due process violations that occur as a result, are not cognizable in habeas corpus. Thus, the trial court reached the correct result as to these arguments in dismissing Appellant’s petition, albeit for the wrong reasons. {¶23} Moreover, this Court could not review the merits of Appellant’s arguments even if we were so inclined because Appellant has not provided us with the trial court record related to his Monroe County, Ohio convictions. Finally, as noted by the State and though not mentioned by the trial court, Appellant is not entitled to extraordinary relief because his maximum sentence has not expired. As set forth above, an individual may only petition for a writ of habeas corpus if his maximum sentence has expired and he is being held unlawfully. Nedea v. Cook, supra, at ¶ 8 and Bradley v. Hooks, supra, at ¶ 10. Appellant, however, is currently serving two concurrent terms of life in prison without parole, along with seven consecutive sixty-month prison terms. As a result, he cannot demonstrate that his maximum sentence has expired. {¶24} Thus, to summarize, because Appellant’s petition failed on substantive grounds below, we cannot conclude the trial court erred in dismissing his petition for failure to state a claim. Furthermore, because Appellant’s appeal to this Court fails on procedural grounds, it likewise must be dismissed. Accordingly, Pickaway App. No. 19CA18 25 the present appeal is hereby dismissed. APPEAL DISMISSED. Pickaway App. No. 19CA18 26 JUDGMENT ENTRY It is ordered that the JUDGMENT BE DISMISSED and costs be assessed to Appellee. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. & Hess, J.: Concur in Judgment and Opinion. For the Court, _________________________ Jason P. Smith Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4523519/	18-3001-cr United States v. Connelly UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of April, two thousand twenty. PRESENT: JOHN M. WALKER, JOSÉ A. CABRANES, ROBERT D. SACK, Circuit Judges. UNITED STATES OF AMERICA, Appellee, 18-3001-cr v. GEORGE J. CONNELLY, JR., Defendant-Appellant, PAUL WILLIAM MUZYKA, WILLIAM REIDELL, Defendants. FOR APPELLEE: John T. Pierpont, Jr. (Marc H. Silverman, on the brief), Assistant United States Attorneys, for John H. Durham, United States Attorney for the District of Connecticut, New Haven, CT. 1 FOR DEFENDANT-APPELLANT: Bobbi C. Sternheim, Law Offices of Bobbi C. Sternheim, New York, NY. Appeal from an October 5, 2018 judgment of the United States District Court for the District of Connecticut (Michael P. Shea, Judge). UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is AFFIRMED. Defendant-Appellant George J. Connelly, Jr. (“Connelly”) was found guilty, after a jury trial, of one count of conspiracy to transport stolen property, in violation of 18 U.S.C. § 371, and two counts of interstate transportation of stolen property, in violation of 18 U.S.C. § 2314. In addition to a prison sentence, the District Court ordered that Connelly pay $8,385 in restitution and forfeit his proceeds from the sale of stolen property, which included an interest of up to $200,000 in his family home. Connelly raises two challenges on appeal, both of which focus on the restitution and forfeiture orders. First, he argues that he was denied effective assistance of counsel under the Sixth Amendment during that portion of the sentencing hearing in which restitution and forfeiture were considered. Second, he argues that the District Court abused its discretion in failing to order, sua sponte, that proceedings be temporarily adjourned when it allegedly became apparent that defense counsel was unprepared to effectively advocate for Connelly. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We note that although “direct appellate review is not foreclosed” we are “generally disinclined to resolve ineffective assistance claims on direct review.” United States v. Gaskin, 364 F.3d 438, 467-68 (2d Cir. 2004). This “baseline aversion to resolving ineffectiveness claims on direct review” results from our preference to have a District Court fully develop the record on the claim of alleged ineffective assistance before we make a ruling. United States v. Salameh, 152 F.3d 88, 161 (2d Cir. 1998). It is for this reason that “in most cases a motion brought under [28 U.S.C.] § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.” Massaro v. United States, 538 U.S. 500, 504 (2003). Accordingly, we decline to hear Connelly’s claim for ineffective assistance at this point, but note that he is permitted to bring an ineffective assistance of counsel claim in a future § 2255 petition. For the same reason, we decline to consider whether the District Court abused its discretion in failing to exercise its supervisory powers to adjourn proceedings so that defense counsel could have more time to prepare. Presumably, a District Court can only abuse its discretion in exercising its supervisory powers if, in doing so, it knowingly permitted ineffective assistance of counsel to go 2 forward. Here, however, we do not reach the question of whether there was ineffective assistance of counsel, so we do not reach the question of whether the District Court erred in any way by not halting proceedings. CONCLUSION We have reviewed all of the arguments raised by Connelly on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 3	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4523518/	18-3311-cr United States v. Doka UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of April, two thousand twenty. PRESENT: JOSÉ A. CABRANES, ROBERT D. SACK, RAYMOND J. LOHIER, JR., Circuit Judges. UNITED STATES OF AMERICA, Appellee, 18-3311-cr v. ALBI DOKA, Defendant-Appellant. FOR APPELLEE: MATTHEW HELLMAN, Assistant United States Attorney (Jordan Estes, Won S. Shin, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney, Southern District of New York, New York, NY. FOR DEFENDANT-APPELLANT: JEREMIAH DONOVAN, Law Offices of Jeremiah Donovan, Old Saybrook, CT. 1 1 Appeal from a judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge). UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the October 18, 2018 judgment of the District Court be and hereby is AFFIRMED. Defendant-Appellant Albi Doka (“Doka”) appeals from a judgment revoking his term of supervised release, following a violation hearing, in which the District Court found by a preponderance of the evidence that Doka committed three violations of his conditions of supervised release: (1) second-degree assault; (2) third-degree criminal possession of a controlled substance; and (3) use of controlled substances. Specifically, the District Court found that it was more likely than not that Doka assaulted a police officer while fleeing a lawful stop, possessed more than 300 pills of oxycodone with the intent to sell them, and used oxycodone on various dates while on supervised release. The District Court sentenced Doka principally to imprisonment for 48 months, to be followed by ten years of supervised release. On appeal, Doka challenges the constitutionality of his revocation of supervised release, the sufficiency of the evidence supporting the District Court’s findings that Doka committed the first two violations, and the reasonableness of his revocation sentence. We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal. In an opinion filed simultaneously herewith, we reject Doka’s challenge to the constitutionality of the revocation of his term of supervised release. We now address the remainder of Doka’s arguments and conclude that the judgment of October 18, 2018, should be affirmed in its entirety. I. Challenge to the Sufficiency of the Evidence Doka challenges the sufficiency of the evidence supporting the findings that Doka committed second-degree assault of a police officer and third-degree criminal possession of controlled substance, in violation of New York Penal Law and his conditions of supervised release. The District Court was authorized to revoke Doka’s term of supervised release and impose a term of imprisonment if it “f[ound] by a preponderance of the evidence, [as it did,] that [Doka] violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3). We review the District Court’s finding that Doka violated his conditions of supervised release for “abuse of discretion” and the factual findings for “clear error.” United States v. Glenn, 744 F.3d 845, 847 (2d Cir. 2014) (citation omitted). In doing so, we “view the evidence in the light most favorable to the government,” United States v. Gasperini, 894 F.3d 482, 485 (2d Cir. 2018) (internal quotation marks omitted), and “accord 2 strong deference to a district court’s credibility determinations, particularly where that court based its findings on such determinations,” United States v. Carlton, 442 F.3d 802, 811 (2d Cir. 2006). Moreover, so long as “‘the district court’s account of the evidence is plausible in light of the record viewed in its entirety,’” we “‘may not reverse it even though [we are] convinced that [if we] had . . . been sitting as the trier of fact, [we] would have weighed the evidence differently.’” United States v. Mi Sun Cho, 713 F.3d 716, 722 (2d Cir. 2013) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)). On review, we conclude that the District Court did not abuse its discretion in concluding, based on the totality of the record, that Doka violated his conditions of supervised release. We do so for substantially the reasons given by the District Court in its thorough and well-reasoned August 14, 2018 “Findings of Fact and Conclusions of Law,” see App’x at 27–37, and its September 25, 2018 “Order and Revised Findings of Fact” denying Doka’s Motion for Reconsideration, see id. at 39–44. II. Challenges to the Reasonableness of the Revocation Sentence Doka also appeals both the procedural and substantive reasonableness of his revocation sentence. Specifically, Doka contends that the District Court committed procedural error at sentencing by failing to: (1) consider the policy statements of the Sentencing Commission (“Commission”) regarding violations of supervised release; (2) provide notice of its intent to impose a sentence above the sentencing range of 30–37 months’ imprisonment; and (3) explain adequately the revocation sentence. Doka also argues that his 48-month sentence of imprisonment is substantively unreasonable. “We review the procedural and substantive reasonableness of a sentence under a deferential abuse-of-discretion standard.” United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018) (citation omitted). “A district court commits procedural error where it fails to calculate (or improperly calculates) the . . . [United States Sentencing Guidelines (“Guidelines”)] range, treats the . . . Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citation omitted). Our review of a sentence for substantive reasonableness is “particularly deferential.” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012). We will set aside a sentence as substantively unreasonable only if it is “so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing [it] to stand would damage the administration of justice.” Id. (internal quotation marks and citation omitted). In the circumstances presented, we find no procedural error in the District Court’s sentence. First, the District Court properly considered the Commission’s Guidelines and policy statements, as the law requires, see United States v. Pelensky, 129 F.3d 63, 69 (2d Cir. 1997), and there is no evidence in the record suggesting otherwise. See App’x at 239, 241, 251. The only evidence that Doka relies 3 upon to support his allegation of error is the District Court’s passing statement at the sentencing hearing that it “pay[s] only the minimum attention to the guidelines that [it is] required to by law.” Id. at 238. But that statement reinforces the fact that the District Court did consider the Guidelines and policy statements; it does not, by itself, give rise to any procedural error. Second, the District Court did not abuse its discretion in failing to provide notice of intent to impose a sentence above the applicable sentencing range of imprisonment because it was not required to do so. See Pelensky, 129 F.3d at 71 (“When imposing a sentence for violation of supervised release, the court is bound only by the statutory maximum imposed by Congress, and is therefore under no obligation to provide notice to defendants of its intent to exceed the non- binding sentencing range recommended in Chapter Seven of the Guidelines.”). Regardless, Doka had notice of the Probation Office’s above-the-Guidelines recommendation prior to sentencing, and this recommendation was before the District Court when he considered the sentence. Third, the District Court adequately explained the reasons for Doka’s revocation sentence in open court. Specifically, the District Court explained that the prison sentence was warranted as a measure of “general deterrence,” App’x at 241, and in light of the lenient time-served sentence for the original conviction and the seriousness of the violations of supervised release, see id. at 235, 250– 51. These statements are sufficient under our precedent. See United States v. Lewis, 424 F.3d 239, 245 (2d Cir. 2005) (“[A] court’s statement of its reasons for going beyond non-binding policy statements in imposing a sentence after revoking a defendant’s supervised release term need not be as specific as has been required when courts departed from guidelines.”) (emphases in original); accord United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020). Moreover, the District Court did not err or abuse its discretion in failing to provide a written statement of reasons in support of Doka’s revocation sentence above the applicable policy statement range because, as we recently held in Smith, such written statements are not required. See Smith, 949 F.3d at 64–65 (overruling prior precedent to the contrary through our “mini-en banc” procedure and holding that “unless and until the Judicial Conference and Sentencing Commission issue a written [statement-of-reasons] form . . . the sentencing judge need not file a written statement of reasons for a [violation of supervised release] sentence that is outside the advisory Guidelines range”). Accordingly, as in Smith, the District Court here did not commit procedural error in failing to provide the written statement of reasons. See id. at 65–66. Finally, we reject Doka’s challenge to the substantive reasonableness of his revocation sentence as meritless. Despite receiving a lenient sentence for his original conviction, Doka committed serious violations of his conditions of supervised release. Accordingly, an above- Guidelines sentence was appropriate. The sentence principally of imprisonment for 48 months “does not ‘shock the conscience’ or constitute a ‘manifest injustice,’ as it is not ‘shockingly high, shockingly low, or otherwise unsupportable as a matter of law.’” Smith, 949 F.3d at 67 (quoting 4 United States v. Rigas, 583 F.3d 108, 123–24 (2d Cir. 2009)). In the circumstances presented here, we conclude that the sentence is manifestly not substantively unreasonable. CONCLUSION We have reviewed all of the arguments raised by Doka on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the October 18, 2018 judgment of the District Court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 5	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4523517/	19-305-cr United States v. Quarterman UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of April, two thousand twenty. PRESENT: JOHN M. WALKER, JR., JOSÉ A. CABRANES, ROBERT D. SACK, Circuit Judges. UNITED STATES OF AMERICA, Appellee, 19-305-cr v. ALEXANDER QUARTERMAN, Defendant-Appellant. FOR APPELLEE: Thomas R. Sutcliffe, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney, Northern District of New York, Syracuse, NY. FOR DEFENDANT-APPELLANT: John S. Wallenstein, Law Office of John S. Wallenstein, Garden City, NY. 1 Appeal from a judgment of the United States District Court for the Northern District of New York (Mae A. D’Agostino, Judge). UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the January 30, 2019, judgment of the District Court be and hereby is AFFIRMED. Defendant-Appellant Alexander Quarterman (“Quarterman”) appeals from a judgment revoking his term of supervised release, following a violation hearing, in which the District Court found by a preponderance of the evidence that Quarterman violated conditions of supervised release. The District Court sentenced Quarterman principally to imprisonment for 11 months, to be followed by 36 months of supervised release. On appeal, Quarterman challenges both the procedural and substantive reasonableness of his revocation sentence. Specifically, Quarterman contends that the District Court committed procedural error by failing to explain adequately its reasons for the sentence imposed. Quarterman also argues that his additional 36-month sentence of supervised release is substantively unreasonable because he has proven to be unable to abide by conditions on his supervision. We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal. “The standard of review on the appeal of a sentence for violation of supervised release is now the same standard as for sentencing generally: whether the sentence imposed is reasonable.” United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005) (citation omitted). “We review the procedural and substantive reasonableness of a sentence under a deferential abuse-of-discretion standard.” United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018) (citation omitted). “A district court commits procedural error where it . . . fails adequately to explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citation omitted). Our review of a sentence for substantive reasonableness is “particularly deferential.” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (citation omitted). We will set aside a sentence as substantively unreasonable only if it is “so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing [it] to stand would damage the administration of justice.” Id. (internal quotation marks and citation omitted). In the circumstances presented, we find no procedural error in the District Court’s revocation sentence because the District Court adequately explained the reasons for Quarterman’s revocation sentence in open court. Specifically, the District Court explained that the revocation sentence was warranted because Quarterman had repeatedly failed drug tests; had “a history of an armed bank robbery with the use of a firearm,” which was “worrisome” in light of his ongoing drug use; and continued to make “excuses” for the violations of his terms of supervised release. App’x at 34–35. These reasons are sufficient under our precedent. See United States v. Lewis, 424 F.3d 239, 245 (2d Cir. 2005) (“[A] court’s statement of its reasons for going beyond non-binding policy statements in 2 imposing a sentence after revoking a defendant’s supervised release term need not be as specific as has been required when courts departed from guidelines.”) (emphases in original); accord United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020). Nor did the District Court err in considering Quarterman’s prior conviction for armed robbery in revoking his term of supervised release. Rather than continue to punish Quarterman for his original conviction, the District Court properly explained that his prior armed-robbery conviction and ongoing drug use, in combination, supported the conclusion that Quarterman posed a “danger to the community” and that his term of supervised release should be revoked. App’x at 38; see United States v. Williams, 443 F.3d 35, 44, 47–48 (2d Cir. 2006) (explaining that the statute authorizing revocations of supervised release permits a trial judge to consider the seriousness of an offense to “protect[ ] the public from further crimes of the defendant”); accord United States v. Burden, 860 F.3d 45, 56–57 (2d Cir. 2017). Finally, we also reject Quarterman’s challenge to the substantive reasonableness of his revocation sentence as meritless. Far from suggesting that the additional term of supervised release is substantively unreasonable, Quarterman’s ongoing failures to comply with his terms of release weigh in favor greater supervision. See United States v. Leon, 663 F.3d 552, 555 (2d Cir. 2011) (stating that “a defendant’s violation of the terms of his supervised release ‘tends to confirm the judgment that help was necessary, and if any prisoner might profit from the decompression stage of supervised release, no prisoner needs it more than one who has already tried liberty and failed’” (quoting Johnson v. United States, 529 U.S. 694, 709 (2000)). Indeed, at the sentencing hearing, Quarterman specifically asked the District Court for continuing supervised release in order to “comply with the Court[’s] recommendations” and participate in outpatient therapy. App’x at 30. The imposed term of 36 months of supervised release “does not ‘shock the conscience’ or constitute a ‘manifest injustice,’ as it is not ‘shockingly high, shockingly low, or otherwise unsupportable as a matter of law.’” Smith, 949 F.3d at 67 (quoting United States v. Rigas, 583 F.3d 108, 123–24 (2d Cir. 2009)). In the circumstances presented here, we conclude that the sentence is manifestly not substantively unreasonable. CONCLUSION We have reviewed all of the arguments raised by Quarterman on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the January 30, 2019, judgment of the District Court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 3	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/1713811/	906 S.W.2d 322 (1995) Mark TENNER, Appellant, v. Toni TENNER, Appellee. No. 94-SC-660-DG. Supreme Court of Kentucky. July 6, 1995. Rehearing Denied October 19, 1995. Stanley K. Spees, Paducah, for appellant. Charles W. Brien, Benton, for appellee. STEPHENS, Chief Justice. The narrow issue we address on this appeal is the correct standard of proof necessary, in a marriage dissolution action, where a spouse who is at fault attempts to mitigate or excuse that fault, while seeking maintenance, by alleging the mental illness of multiple personality disorder. Believing that the Court of Appeals applied a too limited standard, we reverse.[1] 323 The parties to this action were married in 1978 and lived together until 1990. The husband worked as an engineer and earned $45,000 per year. Appellee worked in the home as a homemaker. Until 1988, that is. While a student at Murray State University, she took to herself a lover and engaged in a sustained course of adultery, regularly, telling her husband about it. When the affair ended, appellee "took up" with another man. This dissolution action resulted. In an effort to erase her admitted fault, appellee introduced medical evidence that she suffered from a condition known as multiple personality disorder (hereinafter MPD). It is a fair inference that both parties' medical witnesses agree that appellee did suffer from some degree of MPD. Their medical opinion differences will be discussed later. The crux of appellee's defense to this admitted fault was that the "person" who committed adultery was not the same person who was married to appellant, even though they occupied the same body. This "logic" was termed "psycho-babble" by the dissenting opinion in the Court of Appeals. The domestic relations commissioner initially found, as a matter of fact, that appellee failed to sustain her burden of proof that she lacked control over her "switching" from one personality to another. Applying standards which required appellee to show by "clear and convincing" evidence that she did not have control of the "switching," he reduced her request for maintenance of $1,103.23 per month to an amount of $500.00 per month for 48 months. The trial court affirmed the commissioner, stating: The Commissioner followed Rutherford v. Rutherford [303 S.C. 424], 401 S.E.2d 177 (S.C.1990). The Court agrees with the commissioner that such rule should be followed as the law in this state except that the standard applied to the "switching" issue is that of a "preponderance of the evidence" and not that of "clear and convincing evidence."[2] Further, the Court agrees with the Commissioner that the petitioner did not show that she lacked the degree of control over her switching into the personality of Andrea that would relieve her from a finding of fault. The Court of Appeals in a 2-1 decision, its view as follows: The issue in this case is not whether Toni had a adulterous affair. Admittedly, she did. The issue is not whether she could control either the presence of the personality of "Andrea" or Andrea's actions once Andrea did appear. Regardless of the amount of "control" Toni had over "switching," the evidence in this record, particularly that of the expert witnesses, established that a mentally healthy person cannot switch from one personality to another and that Toni, at the time of her affair, was profoundly mentally ill. The issue, as far as maintenance is concerned, is whether Toni's mental condition excuses her "fault." Without hesitation we hold it does. (emphasis added.) In reversing the trial court's decision and remanding the issue to that court, the Court of Appeals attempted to establish the following "standard" of proof: "a spouse seeking maintenance need only establish a causal link between alleged misconduct and his or her mental condition to overcome any attempt to reduce sums otherwise appropriate." In remanding the case, the majority directed the trial court to make an appropriate award without consideration of appellee's misconduct, and for such duration that is consistent with the treatment for MPD. It is certainly true that both doctors that of the appellant and that of the appellee established the fact that appellee had some degree of MPD. However, the 324 evidence of appellant's doctor clearly shows a disagreement with appellee's doctor in several key issues. The husband's physician, contradicted the wife's physician, and emphasized the following matters: (1) The value of appellee being employed; (2) Her lack of motivation if allowed to be totally dependent on maintenance; (3) The likelihood of her mental condition to deteriorate if she was not required to contribute to her own well-being; (4) Her susceptibility to being "coached" by her doctor; (5) Her definite ability to control her "switching" from one personality to another; (6) Her use of the MPD diagnosis as an excuse for wrongful behavior; and (7) His belief that she was not seriously impaired by her disease. The impact of the standard adopted by the majority of the Court of Appeals is to adopt no standard. All that is required is to establish a "causal link" between the misconduct and his or her mental condition in order to defend fault. No degree of proof to establish the "causal link" is set forth. No guidance to the fact-finder is given. The door is swung wide open for any type of "mental condition" to negate any kind of fault. The Court of Appeals without setting any viable or identifiable standard and while ignoring the finding of fact by the trial judge that appellant did have some control over the "switching" of personalities (thus clearly indicating that she was not totally or fully controlled by the MPD), declared, as a matter of law that she was mentally ill and that "fact" obviated her admitted fault. We agree with the trial court that the standard of proof necessary in this case is properly set forth in Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992). In that case, the husband brought a divorce action based on the adultery of the wife. As an alternate defense, the wife, at trial, argued that even if she had committed adultery she should not be held responsible due to her suffering from MPD. Analogizing to criminal law, in affirming the standard of proof adopted by the Court of Appeals on rehearing, the South Carolina Court: A defendant is excused from responsibility for his or her acts only if as a result of his or her mental disease or defect he or she lacks the capacity to distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong . . . We are not convinced a lower standard of mental impairment in a divorce action is appropriate. . . We also find that the sum degree of mental impairment must be proven to avoid the statutory bar of alimony for an adulterous spouse. Therefore, in order to avoid the husband's action for divorce on the grounds of adultery and the bar of adultery, the wife bears the burden of proving by the preponderance of the evidence that the time she committed adultery, she was unable to appreciate the wrongfulness of her conduct. Id., 414 S.E.2d at 161. (emphasis added.) We believe that this standard places a fair burden i.e., a preponderance of the evidence upon the spouse at fault, to show the extent to which he or she was mentally ill and that because of the mental illness he or she was not able to appreciate "fault" because of the mental illness. In the present case, ultimately both the domestic relations commissioner and the trial judge applied this standard. The finding was that the appellant, based on her ability to "switch" personalities, was not under control of the MPD and therefore she was able to appreciate the wrongfulness of her conduct. Under all too familiar legal principles, an appellate court cannot substitute its judgment for that of the fact-finder unless that judgment was clearly erroneous. In this case, the evidence of appellant's doctor was clearly sufficient to justify the trial court's finding of fact. This alone justifies reversal of this case. Moreover, it is the view of a majority of this Court that the "standard" applied by the Court of Appeals was in error, and we believe that the Rutherford standard, as noted, is the correct one. Under these circumstances, we reverse the decision of the Court of Appeals and reinstate the judgment of the trial court. LAMBERT, REYNOLDS, SPAIN, and WINTERSHEIMER, JJ., concur. 325 STEPHENS, C.J., files a separate concurring opinion. STUMBO, J., would overrule Chapman v. Chapman, Ky., 498 S.W.2d 134 (1973) and concurs with the separate concurring opinion of STEPHENS, C.J. D. SCOTT FURKIN, Special Justice, files a separate dissenting opinion. STEPHENS, Chief Justice, concurring. As indicated, it is my view that entertaining the appeal in this case was necessitated by the existence of the Chapman v. Chapman, Ky., 498 S.W.2d 134 (1973). Supra, cited in majority opinion. In that controversial case, the Court, in spite of a legislatively enacted no-fault divorce statute, declared that fault, while not to be considered in determining whether a spouse is entitled to maintenance, may, nevertheless, be considered as to the amount of that maintenance. The rationale advanced by the Court is as follows: Be that as it may, it is for this court to interpret the law, not to enact legislation. It is noted that the Act presents two requisites for maintenance: One, that the spouse seeking maintenance lacks sufficient property to support himself, and two, he is unable to support himself through appropriate employment, or is the custodian of a child which prevents his seeking employment. It is plain up to this point that fault is not to be considered. The next subsection provides that the "maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including: * ." This provision throws wide open the chancellor's discretionary considerations insofar as the amount is concerned. What might be deemed "just" could very well include marital misconduct. Id. at 137. I will not burden the reader and unduly lengthen this dissent with an extensive criticism of the Chapman opinion. It is my belief that the Chapman opinion opens in part that which the No-Fault Act intended to close; i.e., the injection of fault into a divorce case. What does the statute itself say? KRS 403.110 is as follows: This chapter shall be liberally construed and applied to promote its underlying purposes, which are to: (3) Mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of the marriage. (emphasis added.) Once a financial determination has been made by the trial court that a spouse is needful of maintenance, and that the other must pay, based on the need of one and the ability of the other to pay, of what possible relevance is fault? The purpose of the no-fault statute as specifically is stated is to "mitigate potential harm to spouses and children caused by the process of dissolution of the marriage." What could be more harmful to children and their spouses than to open up the can of worms of fault? Nothing! For additional thoughts on the correctness of Chapman, I invite the readers to read Platt v. Platt, Ky.App., 728 S.W.2d 542 (1987). In addition, Judge Johnstone, in a concurring opinion to the Court of Appeals majority in the case sub judice, states his view of Chapman, I concur in several important points made in the majority's opinion. First, it may well be time to revisit the issue of whether fault should be considered at all when determining an appropriate award of maintenance. Even the Chapman Court recognized that seldom is one party blameless and the other without some redemptive features. Fault, by the very nature of the evidence it evokes, has the tendency (1) to exacerbate the problems which cause the breakdown of a marriage; (2) to cause further damage to the parties and children, if any, at a point when redemption and reconciliation are needed; and (3) to blur the other issues that trial judges must resolve. Second, KRS 403.200 is designed to be rehabilitative, not punitive. The goal is to assist the party seeking maintenance to become self-supporting, if possible, within a reasonable length of time. 326 Third, it is absurd to use fault in an attempt to punish a spouse who is mentally ill, or to use his or her mental illness as a bar to maintenance. The majority makes the important point that Kentucky has refused for many years to deny maintenance to a spouse due to marital misconduct which was attributable to a disturbed mental condition. I think, however, that we need go no further than to reiterate such holding. If a spouse seeking maintenance can prove that marital misconduct was caused by a recognized mental disease or condition, that marital misconduct shall not be used to diminish an award of maintenance. (emphasis added.) I totally agree with Judge Johnstone. In the present case, if Chapman were not rearing its ugly head, the only issue to have been decided would have been appellee's financial needs and abilities, and the appellant's similar financial needs and abilities. Those (and others) are the queries authorized by the statute. Fault has no relevance to the issue in this case or for that matter in any case under the No-Fault Act. I would overrule Chapman. D. SCOTT FURKIN, Special Justice, dissenting. Respectfully, I dissent. I believe the Court of Appeals arrived at the right result via the wrong route. This Court charted a proper course but nevertheless went astray. I acknowledge that Chapman v. Chapman, Ky., 498 S.W.2d 134 (1973), does permit trial courts to consider marital misconduct for the limited purpose of setting the amount of a spouse's maintenance award after entitlement to maintenance has been established. There is much to be said for the view that evidence of misconduct has no rightful place in a no-fault divorce system; but unless and until Chapman is overruled, its holding prevails. Still, marital misconduct is but one factor to be considered in setting the amount of maintenance and should ordinarily be used to reduce an otherwise appropriate award only when necessary to prevent a windfall. I also acknowledge that an appellate court should not disturb a trial court's factual finding unless that finding is clearly erroneous. However, when the finding is palpably against the clear weight of the evidence, it is both an appellate court's prerogative and duty to reverse it in order to prevent an injustice. With these principles in mind, I turn to what I see as the only real issue in this case: Did the appellee sustain her burden of proving that she suffered from a mental disease or condition sufficient to excuse her admitted marital misconduct? Based on the evidence in this record, I believe she did. The appellee's treating psychiatrist testified that she suffers from multiple personality disorder (MPD), a dissociative disorder recognized by the American Psychiatric Association in which complex behaviors take place outside the awareness of the patient's predominant consciousness and are completely forgotten by the patient afterward. He diagnosed the appellee's MPD while she was hospitalized for depression and suicidal ideation, and he had treated her with individual and group psychotherapy for over two years at the time of his testimony. He explained that during therapy the appellee exhibited at least thirteen different alter personalities, many of whom were demonstrated on videotape, which came out in full control of her ego. While the appellee had shown improvement during the course of her treatment, according to his testimony she still had psychogenic memory loss, switched involuntarily to alter personalities and was very inconsistent in her behavior. Nevertheless, he was hopeful that with continued therapy she would be able to "fuse" all her alter personalities within three to five years. A qualified psychiatrist retained by the appellant to evaluate the appellee also testified in the trial court. Although he allowed that MPD is "somewhat controversial in psychiatry," he conceded that it is a recognized dissociative disorder. More importantly, he concurred that the appellee does suffer from MPD as well as anxiety, depression and dependency. Based on his one-hour evaluation which occurred after the appellee was well into her treatment, he opined that she may *327 have some control over switching into alter personalities at the same time acknowledging that she lacked some control. The only real substantive difference between his conclusions and those of the appellee's psychiatrist had to do with the therapeutic value of her being employed. The testimony of the parties' experts is strikingly similar. The only medical evidence before the trial court leads inescapably to the conclusion that at the time of her marital misconduct the appellee was seriously mentally ill. In my view, both the trial court and this Court have given undue emphasis to whether the appellee lacks all control over her "switching." As observed by the Court of Appeals: "Regardless of the amount of `control' [the appellee] had over `switching,' the evidence in this record, particularly that of the expert witnesses, established that a mentally healthy person cannot switch from one personality to another. . . ." Nevertheless, I believe that the standard of proof for excuse of fault adopted by the Court of Appeals mere establishment of a "causal link" between a spouse's misconduct and his or her mental condition is insufficient. To this extent, I agree with this Court that a spouse resisting reduction of an otherwise appropriate maintenance award must show by a preponderance of the evidence that by virtue of a mental disease or condition, he or she was unable to appreciate the wrongfulness of his or her conduct. This is the standard of proof enunciated by the Supreme Court of South Carolina in Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992). I part company with this Court only over its holding that the appellee has failed to sustain her burden of establishing a mental disease or condition sufficient to excuse her marital misconduct. As I have indicated, the proof is overwhelming in this regard. For many years, Kentucky law has refused to withhold deserved maintenance from a spouse due to marital misconduct attributable to mental illness. See, e.g., Snider v. Snider, Ky., 302 S.W.2d 621 (1957). The most unfortunate result of the Majority's decision in this case that is it condones punishment for mental illness. In my opinion, this is a step in the wrong direction and is entirely at odds with the rehabilitative purpose of our maintenance statute. I would reverse so much of the Court of Appeals' decision as concerns the standard of proof, but affirm its remand of the case to the trial court for determination of a proper maintenance award without consideration of the appellee's marital misconduct. NOTES [1] As will be seen, we are forced to consider this esoteric area of the law because of the continued viability of the case of Chapman v. Chapman, Ky., 498 S.W.2d 134 (1973), in which this Court's predecessor, by judicial fiat, injected the issue of fault into the law in spite of the legislatively enacted no-fault divorce statute. The author of the opinion, as will be seen in a separate opinion, believes Chapman to be clearly wrong. [2] Although not specifically noted at this point in the trial court's Order, the commissioner had relied upon the decision of the South Carolina Court of Appeals in its application of the "clear and convincing" standard, but this standard was rejected on rehearing in favor of the "preponderance of the evidence" standard, which Judge Buckingham endorses.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4523525/	NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4987-17T2 WHITESELL ENTERPRISES, LLC, Plaintiff-Appellant/ Cross-Respondent, v. KENNETH LONG, KATHLEEN LONG, and JONATHAN SHEVELEW, Defendants, and JOHN SCHEFFEY, Defendant/Cross-Appellant. Argued January 9, 2020 – Decided April 8, 2020 Before Judges Alvarez, Nugent and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2397-14. William G. Wright argued the cause for appellant/cross-respondent (Capehart & Scatchard PA, attorneys; William G. Wright, on the briefs). Lawrence P. Powers argued the cause for respondent/cross-appellant (Hoagland Longo Moran Dunst & Doukas, attorneys; Lawrence P. Powers, of counsel; Richard J. Mirra, of counsel and on the briefs). PER CURIAM Plaintiff Whitesell Enterprises, LLC, appeals a February 2018 jury verdict, as captured on the verdict sheet, that defendant John Scheffey's "action or lack of action" demonstrated "an intent to ratify" his forged signature on a personal guarantee for a commercial lease. The jury nonetheless found he did not owe $179,981.63 in unpaid rent because his "conduct or silence" did not benefit him or harm Whitesell. We vacate the jury's verdict, as we find Scheffey should have been granted summary judgment dismissing him from the case and, for the same reasons, a directed verdict. The question of his liability should have never reached the jury. Before the jury trial, Whitesell filed three amended complaints, finally amending the third amended complaint to add Scheffey as a defendant after he was dismissed from the first complaint by way of a motion in lieu of answer. See R. 4:6-2. Whitesell's cause of action against Scheffey was amended to allege that even if he did not personally sign the lease guarantee, he either A-4987-17T2 2 authorized another to sign on his behalf or failed to repudiate his signature— thus "by his inaction, and/or by his acceptance of the benefits of [the lessee 's] occupancy and use of the leased premises . . . ratified or adopted his signature on the guarantee." We have no copy of the transcript or documents regarding the motion to dismiss in lieu of answer, granted on May 8, 2015. Nor do we have copies of the moving papers or a transcript regarding the trial judge's decision to allow the amendment to the third party complaint.1 All we know is that the amendment anchored the cause of action against Scheffey on the theory of ratification "by inaction" and "acceptance of the benefits." Turning to Scheffey's summary judgment motion, the statement of material facts included the undisputed fact that when the lease was negotiated he was only an investor with the company and was never involved in the day- to-day operations. Scheffey knew nothing about the terms of the lease, or the lease negotiations, and his signature was forged on the personal guarantee. He did know the company was moving to a new location. We assume from 1 The order allowing the amendment to the third complaint was not provided in the record, so we do not know the exact date Whitesell's motion was granted. Whitesell filed the amendment on November 7, 2016. A-4987-17T2 3 references in the record the motion in lieu of answer was granted because Scheffey's signature was forged. The person who acknowledged the signature, defendant Jonathan Shevelew, did not witness Scheffey signing the document. Shevelew acted first as a consultant for the tenant, Solular, eventually becoming Chief Executive Officer in June 2011. He stated in an affidavit submitted with the motion for summary judgment: "it is entirely possible that [Shevelew] signed as a witness to the lease guarantee without seeing [Scheffey] actually sign in person." Shevelew also stated that at the time he mistakenly believed Scheffey was a "partner" in Solular, a limited liability company, the named tenant on the commercial lease. Scheffey did not acquire an ownership interest in the company, a 20.2 percent share of 100 units, until approximately six months after the lease was signed. Even then, he did not review the lease terms. When the lease was signed, Kenneth Long, 2 also a named defendant in this lawsuit, was Solular's president and ran the business. Kenneth also owned 2 We refer to Kenneth Long and Kathleen Long by their first names to avoid confusion. No lack of respect is intended by the usage. A-4987-17T2 4 a 20.2 percent interest in the company. In a letter to Whitesell's counsel regarding rent arrears, dated October 3, 2014, Kenneth said: . . . Scheffey and Kathleen . . . did not sign the personal guarantees in the lease for the facility. I realize they were owners and knew of the unit being leased by Solular, but they were not apprised of their having to personally sign on this lease. One of our other partners signed for them. They are engaging counsel to defend this so this will present another legal front for you to address. I have nothing to do with their actions as they are not owners of the firm any longer. .... I am pretty sure the responsibility of attending to paying Whitesell will fall to me since I am the only one remaining who actually did sign the personal guarantee. In the selection from Kenneth's depositions attached to Scheffey's statement of material facts, Kenneth explains the letter as meaning that he never saw Scheffey sign the lease and knew no one who had. Kenneth understood that he was the only one personally responsible for the lease and denied that the letter was an admission that he forged Scheffey's signature. Kenneth filed for bankruptcy before the trial, but the court did not discharge his obligation to A-4987-17T2 5 Whitesell, presumably because of the falsification of signatures, and the unauthorized submission of documents to the landlord.3 The lease was signed in December 2010. Scheffey acquired his ownership interest in Solular in May 2011. By then he had invested approximately $300,000, including guaranteeing a company credit line. As required during the credit line application process, Scheffey provided Solular with a copy of his 2009 tax return. The tax return would later be given to Whitesell without Scheffey's knowledge or consent. It was included with the documents submitted by Solular in the lease negotiation process. In the summer of 2011, Scheffey installed a mock-up in the Solular warehouse at the leased premises of a bank interior Scheffey's separate business was proposing to construct. He hoped not only to succeed in getting the building contract, but that by using the Solular premises, the bank might become interested in using Solular's services. Scheffey's project occupied the Solular warehouse premises some three or four months. Whitesell's amendment to the third amended complaint alleges in general terms that Scheffey gained the 3 The record includes mention of the fact Kenneth's obligation under the lease was not discharged in bankruptcy. The appendix does not include any pertinent documentation. A-4987-17T2 6 benefit of the leased premises—it is not clear if the benefit alleged referred to this use or Solular's occupancy over the years. Without identifying the source of the information, Whitesell responded to Scheffey's statement of material facts that he knew as of December 9, 2010, the date the lease was signed, "that [Whitesell] was requiring the 'principals' of Solular to personally guarantee the lease." It is undisputed that on December 6, 2010, a representative for Whitesell sent the proposed lease to Shevelew. Shevelew forwarded this email to Kenneth and Kathleen, another Solular partner whose signature was also forged, requesting that they meet to review the terms of the lease. On December 7, Kathleen forwarded that email to Scheffey while also discussing charitable contributions from Solular. Shevelew had also sent a December 6, 2010 email calling a meeting of owners to review the terms of the lease. Scheffey ignored the proposed unsigned lease attached to the second email because he was not an owner, had no involvement in day-to-day operations, and had not been approached about it by anyone. He assumed since he was an investor that he was merely being kept informed of important developments, like with the information regarding charitable donations. Scheffey's records A-4987-17T2 7 established he was actually traveling out-of-state the month the lease was signed. In March 2014, Scheffey learned about the forgery when Kenneth sent him a copy of the fully executed lease, warning him that Solular had been unable to pay the rent. Scheffey immediately recognized that his signature had been forged and immediately told Kenneth. Kenneth responded that perhaps the witness to the signature, Shevelew, had signed it. In July 2014, Whitesell informed Kenneth, as the business manager, that the lease was in default. In August, Whitesell sent letters to all the guarantors, including Scheffey, advising them of their obligations under the lease. In September, they were further advised by Whitesell's attorneys that the payments were being accelerated, and that Solular and the personal guarantors were in default. In response, Scheffey retained counsel. When asked at trial for the reason he did not inform Whitesell in August of the forgery, Scheffey testified that Kenneth assured him he was negotiating with Whitesell to sublease the property to another company, so the rent would be paid. In his deposition, Shevelew acknowledged no one signed the lease guarantees in his presence, despite "witnessing" all the signatures on the document. Shevelew remembered telling Scheffey when the lease was signed A-4987-17T2 8 that all the Solular "partners" had to personally guarantee payment. Shevelew at the time believed that Scheffey was a partner, and thus assumed Scheffey knew about the obligation. Scheffey did not recall any such conversation, but because he was not a partner, even if it had occurred, he testified he would not have thought anything of it because at the time he had no ownership interest in the company. On July 6, 2017, the trial judge denied the motion for summary judgment. The following is her decision on the subject, which we reproduce in its entirety: Nonetheless, I think that there are issues of material fact in this case [and] that this needs to be resolved by a jury. It can go either way. But for the purposes of summary judgment, and the activity of Mr. Scheffey at the outset, his interest in the corporation, the notice that he was supposed to be a guarantor, no indication -- it doesn't appear to be any resistance to that when the lease was being prepared. In addition, he occupied some of the premises for a portion of the time. He didn't disavow it immediately once he came to the conclusion that it was forged. In addition, the jurors can look at the signature and determine if it's forged. He can have his testimony and the jury can decide. But there's many issues of fact that preclude the Court from granting the motion for summary judgment. It doesn't mean he might not succeed in trial, but the Court cannot grant summary judgment as to that issue. A-4987-17T2 9 The trial court denied Scheffey's motion for a directed verdict. See R. 4:37-2(b). Her opinion included a discussion of relevant cases as well as the following: They -- let me say this, a jury could infer that at the point in time in March when . . . Scheffey learned about it, it was to his benefit to have Solular continue to operate. And if they didn't have the lease or if they were evicted at that point in time, there was no benefit to Solular continuing to operate and perhaps pay him back. That is quite clearly an obvious possibility, and the jury can conclude that. In addition, Mr. -- and maybe the jury will accept that . . . Scheffey was willing or preparing to negotiate favorable terms to extricate himself from this. And had they notified Whitesell and gotten evicted there would be less opportunity for him to get any benefit from this LLC, which he was trying to get out of. In addition it came out during cross, Mr. Grace should know, did Mr. Field tell you that part of that agreement that you wanted to come in came -- basically the gist of that agreement came in on cross of . . . Scheffey. And it became relevant at that point in time because . . . Scheffey made certain statements. So that's -- in addition, it's hard to conceive that . . . Scheffey -- he is a businessman, a very successful businessman. It's inconceivable to the Court, and maybe to the jury -- the jury -- maybe the jury will accept this, that the partners -- and it's interesting that the partners – . . . Shevelew referred to . . . Scheffey as a partner, and I guess the partnership agreement came after the fact. But, nonetheless, . . . Shevelew knew or considered . . . Scheffey a partner and therefore there A-4987-17T2 10 was knowledge that a guarantee would be required. So that's an issue that the jury can consider in addition. So . . . Scheffey is partner in Solular LLC. They are operating out of this warehouse. They -- he benefits from the mock-up. He's benefitting from the lease. I. Both Whitesell and Scheffey raise a number of points on appeal and cross- appeal related to the law of agency and ratification, based on alleged errors in the jury instruction and the verdict sheet. We address only two points raised in Scheffey's cross-appeal, that the court should have granted summary judgment and a directed verdict. The familiar standard as to summary judgment requires us to apply the same analysis as did the trial court. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). If the moving party demonstrates there are no genuine issues of material fact, then we address whether the moving party is entitled to judgment as a matt er of law. Ibid. All legitimate factual inferences are drawn in favor of the non- moving party. R. 4:46-2(c). Addressing just the first portion of the test, and even drawing all favorable factual inferences in Whitesell's favor, it is undisputed that Scheffey's signature was forged. He flatly alleges in his certification that he did not even know his name was on the document until years after the lease was signed. Whitesell A-4987-17T2 11 produced no one who saw him sign his name, or any person who contradicted his ignorance of the lease terms. Whitesell's focus in opposition to summary judgment was Scheffey's purported ratification of his signature by his months- long silence after learning of the forgery. That Scheffey was silent for several months over the spring and summer is also an undisputed fact. But as a matter of law, in order for Whitesell to establish that Scheffey's silence constituted ratification, Whitesell would first have to prove that he had made some other person his agent to act for him within the company, thus triggering the possibility that the ratification doctrine would apply. Whitesell did not present any such proof when summary judgment was denied, or at any time thereafter for that matter. At the time the lease was signed, Scheffey had invested some $300,000 in the company, but that was the extent of his involvement. He was not legally liable for the rent. He had no ownership interest when the lease was signed, played no role in the management of the company or its day-to-day operations, and was not paid a salary. Solular's limited liability organizational structure was designed to protect owners, and should have done so here.4 4 N.J.S.A. 42:2C-30 states that the "debts, obligations, or other liabilities" of a limited liability company are solely those of the company. They do not become A-4987-17T2 12 Scheffey's limited use of Solular's warehouse, his only personal use of the premises, does not expose him to liability for the unpaid rent. His use was a convenience to an investor who had sunk substantial sums in the business without yet seeing a return. Absent from the record is any suggestion that Scheffey vested or authorized anyone to legally bind him to company obligations. The cases cited by both parties on appeal, and the trial judge, relating to ratification, all assume an agency relationship between principal and agent. In Chetwood v. Berrian, 39 N.J. Eq. 203, 209 (Ch. 1884), the first reported opinion in New Jersey regarding the ratification doctrine, the agent had been granted broad powers, in writing, as attorney-in-fact for his principal while the latter was abroad. The ratification by silence doctrine was applied because the agent engaged in unauthorized and damaging transactions which the principal did not repudiate. Id. at 210. In Thermo Contracting Corp. v. Bank of New Jersey, 69 N.J. 352 (1976), a more complex relationship existed between principal and agent—however, the a personal obligation of a member of an LLC "solely by reason of the member acting as a member . . . ." Ibid. Even when an LLC does not observe particular formalities relating to the exercise of its management powers, personal liability cannot be imposed on members. Ibid. A-4987-17T2 13 complexity substituted for a specific designation of agency. Thermo, a general contractor, brought suit against a bank for its wrongful deposit of checks payable to Thermo on the forged signature of Kashulines, a subcontractor working for Thermo. Id. at 356. After discovering the wrongful deposit, Thermo continued to do business with Kashulines for months on various unrelated jobs, and continued to be paid a twenty-five percent management fee, despite the fact Kashulines was not making good on his promises to repay Thermo for the misappropriated checks. Id. at 357-59. Kashulines had been given physical access to checks issued to Thermo on prior occasions. Id. at 356. It behooved Thermo to continue to do business with Kashulines because, not only did it believe Kashulines would reimburse the checks, it knew that if Kashulines was pressed, he would stop working on Thermo jobs, and the company needed him to do so in order to be paid. Id. at 359. The intertwined business relationship was the basis for the Court's application of the ratification by silence doctrine in finding the bank was not liable for its deposit of checks bearing Kashulines 's forged endorsement. Id. at 362. Thermo is also factually distinguishable. Scheffey was a passive investor, and a passive owner, who had no involvement or engagement with the company A-4987-17T2 14 other than the expectation his investment would eventually be returned with interest. He made no ongoing income from Solular's business activities. In Citizens First National Bank of New Jersey v. Bluh, 281 N.J. Super. 86 (App. Div. 1995), another case cited by both parties, a real estate investment partnership was formed between several individuals, including an attorney. The attorney was designated by the partnership to act in its behalf, and in fact the attorney was named as the trustee of the partnership. Id. at 89-90. The deed to certain partnership real property was placed in his name as trustee, which he used for personal gain. Id. at 90. While the partnership agreement limited his authority to act on behalf of the partnership, he clearly acted with apparent authority as an agent of the partnership. Id. at 90-91. In In re Dweck, No. 7-11757, 2010 W.L. 2196417 (Bankr. D.N.J. June 1, 2010),5 a husband and wife gave their nephew millions of dollars to invest for them and in their names. They continued to invest with him even after discovering he had committed a fraud involving a mortgage and note that they 5 We recognize that this court generally does not cite to unpublished opinions. R. 1:36-3; see also Glukowsky v. Equity One, Inc., 360 N.J. Super. 1, 28 (App. Div. 2003), rev'd on other grounds, 180 N.J. 49 (2004). However, a brief discussion is warranted because both parties relied on the case and it was discussed extensively by the trial court. It does not constitute precedent nor is it binding upon this court. We discuss it for sake of completeness. A-4987-17T2 15 had not authorized. Again, in that case, unlike this, the principals gave their agents apparent or actual authority, which the agents later abused. Whether the doctrine of ratification is characterized as equitable or arising out of contract law, as argued by the parties, is irrelevant here. The doctrine is premised on an agent/principal relationship. Whitesell had no fact or law from which to argue that Scheffey's silence over a few months effectively created an agency relationship where none previously existed. A principal/agent relationship requires conduct that would have given the third party reason to believe the agent had the authority to act on behalf of the principal . Whitesell at that juncture assumed Scheffey had personally signed the lease. The Restatement of Agency defines agency as "the fiduciary relationship that arises when one person . . . manifests assent to another person . . . that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act." Restatement (Third) of Agency § 1.01 (Am. Law Inst. 2006). Clearly no fiduciary relationship between Scheffey and whomever forged his signature existed. Scheffey never manifested assent for an agent to sign the lease on his behalf. He never read the lease, did not know of its terms, and was not even in the state at the time the lease was signed. There was no foundational agency relationship A-4987-17T2 16 to justify the trial court's imposition of the ratification by silence doctrine. See id. at § 4.01. In her summary judgment decision, the judge glossed over the undisputed forgery. She did not explain the legal basis upon which a jury might conclude that Scheffey's silence amounted to ratification of the forged signature. If Whitesell's claim rested on the doctrine of ratification, which requires an agency relationship, the existence of the agency relationship needed to be at least raised. It was not. Opposition to the motion skipped that step altogether. The judge should have granted Scheffey's motion, even viewing plaintiff's facts in the most favorable light. Scheffey did not at any time designate anyone to act as his agent. Based on the business structure of Solular, Scheffey had every reason to believe he would be protected from personal liability for debts of the business, should it fail. The forgery of his signature exposed his personal assets to collection of a debt precisely along the lines of what the limited liability statute was intended to prevent. Nor did the judge's decision denying the motion for summary judgment explain the reason Scheffey's three- or four-month use of a warehouse—the only use he made of the premises over several years—might be dispositive, or why she otherwise found that there was any conflict of material fact. In reality, there A-4987-17T2 17 was no genuine issue of material fact and as a matter of law, Scheffey was entitled to dismissal of the third amendment to the third complaint. In the absence of any proof of an agency relationship, or the appearance of one, as a matter of law, the motion should have been granted. II. Scheffey contends for the same reasons his motion for directed verdict should have been granted. We apply the same standard as applicable to the trial courts. Prioleau v. Kentucky Fried Chicken, Inc., 434 N.J. Super. 558, 569 (App. Div. 2014). "Under Rule 4:37-2(b), a motion for a directed verdict is granted only if, accepting the plaintiff's facts and considering the applicable law, 'no rational jury could draw from the evidence presented' that the plaintiff is entitled to relief." Ibid. (quoting Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 340 (App. Div. 2001)). In light of the absence of any proof of an agency relationship as a matter of law, no properly charged rational jury could have found in favor of Whitesell. At the time the motion for directed verdict was made at the close of Whitesell's case, additional facts had been developed which made denial of the directed verdict motion even more problematic. For example, Kenneth's bankruptcy proceedings did not discharge him for the debt to Whitesell. The bankruptcy A-4987-17T2 18 court determined at least that Scheffey's forged signature and reliance on Scheffey's income tax return when negotiating with Whitesell over the lease without Scheffey's knowledge or consent, did not allow for discharge of the accelerated lease payments. Even if we were to conclude, which we do not, that an agency relationship existed, Scheffey's silence could not, at the close of Whitesell's case, be construed by a reasonable jury as ratification of the forged signature. His silence, for as many months as the silence in the Thermo case, was contingent upon his understanding that Kenneth was going to pay the debt. Such a payment would have not changed Scheffey's status but would have benefitted Whitesell. In denying the motion for directed verdict, the judge appears to have said that ratification was a contract principle. She reiterated the definition as being the affirmance by a person of a prior act which did not bind him but which was professedly done on his account so as to give third parties the impression it was originally authorized by him. This definition should not apply to a forgery where the forger never held himself out as the agent of the principal prior to the wrongful act. The judge equated Scheffey's silence with the hope he could extricate himself from a failed business on "favorable terms." The terms, however, would A-4987-17T2 19 have been favorable only to Whitesell while neutral to Scheffey, an owner protected by the structure of the limited liability company. The judge also relied on Shevelew, who did not actually witness any signatures and who claimed, mistakenly, that he believed Scheffey was a partner when the lease was signed. She also mentioned Scheffey's use of Solular's warehouse and said that it bordered on the "inconceivable" that he would not have known he was on the lease. When counsel reminded the judge that no one alleged Scheffey had knowledge of the lease terms, she did not directly address counsel's correction, only stating that she was "not satisfied that there's no benefit to . . . Scheffey." Essentially, the judge's decision appears to have been grounded on her mistaken belief that Scheffey knew about the personal guarantee language in the lease. This error of fact, and her enumeration of other possibilities, was not the analysis the directed verdict rule requires. Furthermore, as a matter of law, she assumed an agency relationship when none existed. She should have granted Scheffey's motion. Accordingly, we reverse on the cross-appeal and do not reach Whitesell's points on appeal. The motion for summary judgment should have been granted, as should the motion for directed verdict. A-4987-17T2 20 We vacate the jury's verdict, reverse denial of the summary judgment and directed verdict motions, and dismiss the complaint as to Scheffey. A-4987-17T2 21	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4523522/	18-1037 Iverson v. Surber UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of April, two thousand twenty. PRESENT: JOHN M. WALKER, JR., JOSÉ A. CABRANES, ROBERT D. SACK, Circuit Judges. _____________________________________ ERNEST IVERSON, Plaintiff-Appellant, v. 18-1037 BRENDA L. SURBER, GLENN TROMBLY, Defendants-Appellees, MAURICE W. AHEARN, T. FISHER, CHRIS A. FREDERICKS, Defendants. _____________________________________ FOR PLAINTIFF-APPELLANT: Ernest Iverson, pro se, Stormville, NY. FOR DEFENDANTS-APPELLEES: Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, Amit R. Vora, Assistant Solicitor General, for Letitia James, Attorney General of the State of New York, New York, NY. Appeal from a judgment of the United States District Court for the Southern District of New York (Ronnie Abrams, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED. Appellant Ernest Iverson, pro se, sued corrections officers Brenda Surber and Glenn Trombley under 42 U.S.C. § 1983, alleging that the defendants interfered with his mail and used excessive force on him. After a trial, a jury found in favor of the defendants. Iverson moved before the District Court for judgment notwithstanding the verdict under Fed. R. Civ. P. 50(b) and for a new trial under Fed. R. Civ. P. 59(a). The District Court denied both motions. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. A. In his renewed motion for judgment as a matter of law, Iverson’s argued that Trombley, Surber, and Dr. David Karandy, a defense witness, either perjured themselves or lacked credibility. We review a district court’s denial of a motion for judgment as a matter of law de novo. Caruolo v. John Crane, Inc., 226 F.3d 46, 51 (2d Cir. 2000). Iverson’s motion is not properly granted unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in its favor. Id. Accordingly, the motion should only be granted if: “(1) there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded persons could not arrive at a verdict against it.” Id. (internal quotations and brackets omitted). The testimony presented at trial plainly supported the jury’s verdict in favor of defendants. Iverson’s sole argument is that this testimony was not credible and that the witnesses committed perjury. This Court, however, “must give deference to all credibility determinations and reasonable inferences of the jury and may not weigh the credibility of witnesses or otherwise consider the weight of the evidence.” Id. (internal quotation omitted); see also Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir. 2005) (in reviewing Rule 50 motion, “we cannot weigh conflicting evidence, determine the credibility of witnesses, or substitute our judgment for that of the jury”). Accordingly, we find no error in the District Court denial of Iverson’s Rule 50(b) motion. 2 B. As part of his Rule 59 motion for a new trial, Iverson challenged the judgment based on the NYAG attorney’s contact with a juror. This argument is meritless. A new trial is not required “whenever a juror has been exposed to extrinsic information or outside contacts.” Manley v. AmBase Corp., 337 F.3d 237, 251 (2d Cir. 2003). To determine whether a jury was prejudiced, courts apply an “objective test” that examines “(1) the nature of the information or contact at issue, and (2) its probable effect on a hypothetical average jury[.]” Id. at 252 (internal quotation marks omitted). If the contact was objectively harmless then remand is not required. See id. No new trial is warranted here. The NYAG attorney’s interaction with the juror was harmless. The attorney did not know what case the juror was assigned to and the juror did not know the attorney worked for the NYAG. The extent of the discussion was a statement that the juror was on jury duty and that the attorney was attending court on another matter. Because the conversation did not involve any discussion of this case, it is unlikely that that the conversation had any effect on the jury deliberations. See id. at 252–53 (concluding that court employee’s conversation with juror was harmless where employee did not provide any extra-record information, attempt to influence the juror’s decision, or attempt to apply coercion to jury’s deliberations). Iverson argues that the District Court erred by making this determination off the record or without a full hearing. But a district court is only required to hold a hearing on potential juror bias when “reasonable grounds for investigation exist[,]” i.e., when a party presents “clear, strong, substantial and incontrovertible evidence, that a specific, nonspeculative impropriety has occurred” affecting the impartiality of the jury. United States v. Vitale, 459 F.3d 190, 197 (2d Cir. 2006) (internal quotation marks omitted). As discussed above, there was nothing about the contact between the NYAG attorney and the juror that suggested any prejudice or effect on the jury. Iverson does not argue that he offered evidence to the District Court showing that the juror’s conduct was improper. Thus, the only information that was available was that reported by the defendants’ attorney, which did not require a hearing. C. Iverson also argues that he should have been permitted to introduce evidence about the prior litigation experience of Surber, Trombley, and Dr. Karandy. We review evidentiary rulings for “abuse of discretion.” See Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010). “‘A district court abuses its discretion when it bases its ruling on an erroneous view of the law or on a clearly erroneous 3 assessment of the evidence, or renders a decision that cannot be located within the range of permissible decisions.’” United States v. Vayner, 769 F.3d 125, 129 (2d Cir. 2014) (quoting Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir. 2013)); see also In re Sims, 534 F.3d 117, 132 (2d Cir. 2008). Under Federal Rule of Evidence 403, the trial court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Prejudice under this rule means “‘unfair’ rather than ‘harmful.’” United States v. Jimenez, 789 F.2d 167, 171 (2d Cir. 1986). Here, the District Court excluded evidence showing that Trombley had previously been sued for excessive force, reasoning that the probative value of the uncorroborated complaints was low in relation to the prejudice those accusations would create. This was not an abuse of discretion. Although “similar act evidence” is admissible under Federal Rule of Evidence 404(b) to show motive or patterns of conduct, such evidence is subject to admission under Rule 403. Fed. R. Evid. 404(b)(2); Berkovich v. Hicks, 922 F.2d 1018, 1022–23 (2d Cir. 1991). The trial court may consider the relative strength of the evidence in establishing a pattern of conduct when considering if evidence is prejudicial under Rule 403. Berkovich, 922 F.2d at 1023. Accordingly, the District Court did not abuse its discretion by concluding that unsubstantiated allegations carried less weight that the potential prejudice they would cause to Trombley. The District Court also did not abuse its discretion by excluding evidence of malpractice lawsuits against Dr. Karandy. Iverson argues that the lawsuits would have shown a “pattern of inconsistency” and discredited the doctor’s testimony about Iverson’s injuries allegedly resulting from Trombley’s actions. But it is unclear what bad acts the lawsuits alleged against Dr. Karandy, and the evidence cannot merely be used to show that he had a propensity for making errors. See Fed. R. Evid. 404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”). Further, such evidence could also be unfairly prejudicial under Rule 403 since the alleged malpractice may not have called any portion of Dr. Karandy’s testimony into question but could have inflamed the jury against him. Therefore, the District Court did not err or abuse its discretion by excluding the prior malpractice suits against Dr. Karandy. Finally, the District Court did not prohibit Iverson from introducing evidence about Surber’s litigation history, just those of Trombley’s and Dr. Karandy’s. His attorney could have attempted to introduce this evidence at trial, but he did not do so. 4 CONCLUSION We have reviewed all of Iverson’s arguments and find them to be without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 5	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4523521/	18-3858 Lilakos v. New York City, et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 2 At a stated term of the United States Court of Appeals for the Second Circuit, 3 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 8th day of April, two thousand twenty. 5 6 Present: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 RICHARD C. WESLEY, 10 MICHAEL H. PARK, 11 Circuit Judges. 12 ______________________ 13 14 LOUIS LILAKOS, CHRISTOPHER LILAKOS, 15 16 Plaintiffs-Appellants, 17 18 NICK PRITZAKIS, TIFFANY LILAKOS, C.L., 19 a minor (son), 20 21 Plaintiffs, 22 23 v. 18-3858 24 25 NEW YORK CITY, VLADIMR PUGACH, in 26 his individual and official capacity, ARTHUR 27 LEVINE, a Police Officer assigned to the 1 Office of Special Enforcement, in his 2 individual capacity and official capacity, 3 JOSEPH GIGLIO, a Police Officer assigned to 4 the Office of Special Enforcement, in his 5 individual capacity and official capacity, 6 ERVIN SANTIAGO, a Fire Inspector assigned 7 to the Office of Special Enforcement, in his 8 individual capacity and official capacity, 9 KATHLEEN McGEE, Former Director of the 10 Office of Special Enforcement, in her 11 individual and official capacity, NEW YORK 12 CITY MAYOR’S OFFICE OF SPECIAL 13 ENFORCEMENT AKA THE OFFICE OF 14 SPECIAL ENFORCEMENT, NEW YORK 15 CITY DEPARTMENT OF BUILDINGS, 16 DEREK LEE, Commissioner of the 17 Department of Buildings, in his individual 18 capacity and official capacity, NEW YORK 19 CITY ENVIRONMENTAL CONTROL 20 BOARD (ECB). 21 22 Defendants-Appellants, 23 24 JOHN DOE 1, NYPD Officer assigned to the 25 108 precinct, in his individual and official 26 capacity, JOHN DOE 2, NYPD Officer 27 assigned to the 108 precinct, in his individual 28 and official capacity, JOHN DOE 3, NYPD 29 Officer assigned to the 108 precinct, in his 30 individual and official capacity, JOHN DOE 4, 31 NYPD Officer assigned to the 108 precinct, in 32 his official capacity, 33 34 Defendants. 35 ______________________ 36 37 For Plaintiffs-Appellants: Louis Lilakos, Christopher Lilakos, pro se, Sunnyside, 38 NY. 39 2 1 For Defendants-Appellees: Jeremy W. Shweder, Elina Druker, for James E. 2 Johnson, Corporation Counsel of the City of New 3 York, New York, NY. 4 5 Appeal from the United States District Court for the Eastern District of New York 6 (Chen, J.; Bloom, M.J.) UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment is AFFIRMED. Plaintiffs, Louis Lilakos (“Lilakos”) and his son, Christopher Lilakos (“Christopher”), proceeding pro se, appeal from three orders of the United States District Court for the Eastern District of New York (Chen, J.), each adopting a Report & Recommendation (Bloom, M.J.) on Defendants’ two Rule 12(b)(6) motions to dismiss and Rule 56 motion for summary judgment, respectively. Plaintiffs sued the City of New York and several City officials, claiming that Defendants violated their constitutional rights when New York City’s Department of Buildings, through the Mayor’s Office of Special Enforcement, issued in June 2013 five Notices of Violation (“NOV”) and an emergency Vacate Order (“VO”) pursuant to New York City Administrative Code § 28-207.4 against their home for operating an illegal hostel in a permanent residence. In August 2013, Lilakos unsuccessfully challenged the NOVs before the Environmental Control Board (“ECB”). He appealed to the Office of Administrative Trials and Hearings, which issued a decision in December 2013 dismissing one NOV but 3 sustaining the other four. He also applied to the Office of Special Enforcement multiple times in August and September 2013 for the Department of Buildings commissioner to rescind the VO. In 2014, Lilakos commenced two Article 78 proceedings in state court, one challenging the ECB’s decision with respect to the four sustained NOVs; the other challenged the validity of the VO itself. After receiving unfavorable decisions in each, Plaintiffs commenced this case in federal district court challenging the validity of the NOVs and the VO and claiming violations of equal protection and procedural and substantive due process. The district court, in a series of rulings following the reports and recommendations of the magistrate judge, dismissed all of Plaintiffs’ claims. They timely appealed. 1 We assume the parties’ familiarity with the underlying facts and procedural history, as well as the issues for review. We review de novo both the dismissal of a complaint under Rule 12(b)(6) and the grant of summary judgment under Rule 56. Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011). I. Christopher Lilakos’s Standing The district court dismissed Christopher’s parallel due process claims on the ground that he does not have a legally cognizable property interest in the house, because he is neither an owner nor a tenant of the property. It is likely that Christopher does have 1 Plaintiffs do not raise any arguments about several of their claims not noted above and have therefore abandoned any challenge to those claims. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995). 4 standing under New York law—at least to the extent he challenges an alleged wrongful eviction as opposed to deprivation of property. Although the New York State Court of Appeals has not spoken on this issue, the weight of lower state court authority counsels that a minor child has an independent possessory right to reside in the family home. See, e.g., Nauth v. Nauth, 42 Misc. 3d 672, 675 (N.Y. Civ. Ct., Bronx Cty. 2013) (collecting cases). That “right to reside” confers standing to challenge an alleged wrongful displacement. 2 That Christopher has standing, however, does not mean he was properly before the district court. As a minor, Christopher could not represent himself, and as a non- lawyer, his father could not bring an action on his behalf. Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990). An attorney never appeared to represent Christopher; the district court could have dismissed his claims for that reason. And though Christopher is no longer a minor, the matter is of no moment, as each of Christopher’s would-be claims fails. 2 Christopher also argues that he has a legally cognizable property interest in the house under New York’s intestate laws. See N.Y. Est. Powers & Trusts Law § 4-1.1(a)(3) (property of decedent with no spouse is distributed to issue by representation); N.Y. Est. Powers & Trusts Law § 1-2.16 (by representation means equal shares distributed among surviving issue in next generation). A potential future interest in possibly inheriting a share in the value of a house, however, does not give rise to a cognizable property interest permitting suit in this context. Christopher’s interest is a “contingent, future executory interest in property (an interest that might become possessory at some point down the road).” Luis v. United States, 136 S. Ct. 1083, 1093 (2016). Moreover, Lilakos sold the property in November 2014, eliminating any chance of inheritance for Christopher. 5 II. Equal Protection Plaintiffs fail to state an equal protection claim under either a selective enforcement or a “class-of-one” theory. To proceed under a selective enforcement theory, Plaintiffs must plausibly allege that any selective treatment they experienced “was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure [them].” Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) (citation omitted). Plaintiffs’ allegations of being “singled out” and “targeted” are conclusory and cannot be accepted as true at the motion to dismiss phase. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Nor do Plaintiffs’ allegations of differential treatment, standing alone, show malice. Bizzarro v. Miranda, 394 F.3d 82, 87 (2d Cir. 2005) (“To prevail, plaintiffs must prove that the disparate treatment was caused by the impermissible motivation. They cannot merely rest on a showing of disparate treatment.” (emphasis in original)). Because the complaint is devoid of any facts suggesting malice, the district court correctly dismissed Plaintiffs’ equal protection claim based on selective enforcement. To proceed under a class-of-one theory, Plaintiffs need not show malice, but they must plausibly allege that “there is no rational basis for the difference in treatment,” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), as well as “an extremely high degree of 6 similarity between themselves and the persons to whom they compare themselves,” Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006). Plaintiffs plead as comparators (1) other permanent residences that allegedly operated as illegal hostels about which the Department of Buildings received complaints in 2013; (2) other properties against which the Department of Buildings issued a VO in 2013; (3) other properties on which an individual violated a VO; and (4) Lilakos’s brother’s house two blocks away. Although Plaintiffs include dozens of allegations about the existence of other illegal hostels, Plaintiffs fail to explain how those residences are like theirs, other than alleged transient occupancy. Without specific facts showing that the comparators are “similar in relevant respects” to Lilakos’s house, Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 143 (2d Cir. 2010), they share only one thing in common— the same alleged violation of law. That is insufficient to state an equal protection claim under this exacting standard. See Hu v. City of New York, 927 F.3d 81, 100 (2d Cir. 2019). III. Validity of the Notices of Violation and the Vacate Order The district court was correct to dismiss any claims based on the validity of the NOVs and the VO. We apply New York collateral estoppel law to New York judgments, and under New York law, a party may not “relitigat[e] an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point.” Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455 (1985) (internal quotation marks and citation omitted). 7 In Lilakos’s Article 78 proceeding to review the ECB’s determinations with respect to the NOVs, the state court rejected his argument that they were issued in an arbitrary and capricious manner. Instead, it found that Lilakos used the property in a manner inconsistent with its certificate of occupancy, and “because there was substantial evidence that the property was primarily being used to house multiple transient occupants overnight, the ECB’s determination that the property did not have the requisite fire alarm system, sprinkler system, and number of means of egress was supported by substantial evidence and consistent with its prior precedent.” Lilakos v. Envtl. Control Bd., 148 A.D.3d 893, 895 (2d Dep’t 2017). In his Article 78 proceeding to review the validity of the VO, the state court found that Lilakos “failed to demonstrate that he was entitled to rescission or annulment of the vacate order on the basis that the Commissioner’s determination to issue the vacate order was illegal, an abuse of discretion, or arbitrary and capricious”—including the determination that “there was ‘imminent danger to life or public safety or safety of the occupants or to the property.’” Lilakos v. Lee, 148 A.D.3d 896, 896–97 (2d Dep’t 2017). These decisions have preclusive effect. Plaintiffs fail to explain how any of the alleged deficiencies in those proceedings prevented a full and fair opportunity to litigate the validity of the NOVs or the VO. We therefore affirm the district court’s dismissal of any claim challenging their validity on collateral estoppel grounds. 8 IV. Procedural Due Process The district court properly granted summary judgment with respect to Plaintiffs’ procedural due process claim. As a general matter, due process requires a state to provide a hearing before depriving a person of their property; but when there is an emergency, only a meaningful post-deprivation process is required. 3 WWBITV, Inc. v. Vill. of Rouses Point, 589 F.3d 46, 50 (2d Cir. 2009). The state court proceedings determined that the emergency VO was valid, and as discussed, Plaintiffs cannot relitigate that issue on appeal. As a result, Plaintiffs were not entitled to any pre-deprivation process. Plaintiffs’ procedural due process claim therefore depends on whether their post- deprivation proceedings were adequate. We have “held on numerous occasions that an Article 78 proceeding is a perfectly adequate post-deprivation remedy,” Hellenic Am. Neighborhood Action Comm., 101 F.3d at 881; we have expressed concern only where there is a lengthy deprivation, see Panzella v. Sposato, 863 F.3d 210, 218 (2d Cir. 2017). Here, any delay did not violate due process. The NOVs and VO were issued within a day of each other; over the following months, Lilakos challenged the NOVs administratively and 3 This is true whether the deprivation was a “random act” or whether it occurred “in the more structured environment of established state procedures.” Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996). The latter scenario simply demands a closer examination of the adequacy of the post-deprivation process. See id. (“When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of post-deprivation procedures will not, ipso facto, satisfy due process.”). 9 applied for rescission of the VO; and Lilakos commenced two Article 78 proceedings within a year. Indeed, even though he was required to challenge the NOVs at the ECB before commencing an Article 78 proceeding, Lilakos could have challenged the validity of the VO in court months earlier. Because NOVs are separate from a VO under the Administrative Code, challenging the NOVs before the ECB was not an administrative remedy that preceded judicial review of the VO. On September 30, 2013, Lilakos was informed that, because he had not certified that the underlying violations were corrected, the VO would not be rescinded. At that point, he could have challenged the VO under Article 78, as there were no avenues to administratively review that denial. Cf. Cunningham v. City of New York, 2011 N.Y. Slip Op. 34284[U], at *1 (Sup. Ct., N.Y. Cty. 2011). Moreover, Plaintiffs could have returned home just by certifying that the underlying violations listed in the NOVs had been corrected. See N.Y.C. Admin. Code § 28-207.4.3. According to the certification form, 4 Lilakos had the option to admit to the violations and avoid a hearing. If he did not wish to admit the violations, however, Lilakos could have posted security for the fines while the violations were pending; signed the certification form indicating that the violations had ceased; applied to rescind the VO 4 We take judicial notice of the certification form available online at https://www1.nyc.gov/assets/buildings/pdf/AEU2.pdf. See Fed. R. Evid. 201(b)(2). The bottom right-hand corner of the form indicates that this version was operative as of “05/13.” 10 and challenge any denial thereof judicially; and challenged the NOVs before the ECB and through Article 78. Plaintiffs’ decision to opt out and wait was a self-imposed delay, not a function of the Article 78 remedy. V. Substantive Due Process Finally, the district court properly granted summary judgment in favor of Defendants on the substantive due process claim. Plaintiffs argue that there is a dispute of fact as to what they were required to certify to return home—whether they had to certify only that the violations had ceased (i.e., only permanent residents remained in the house), or whether they had to certify that they had conformed their home to code (i.e., constructed a legal transient occupancy hostel); and separately, whether they had to admit to the violations to return home no matter what changes they made. This “dispute” does not create a question of material fact. Even under Plaintiffs’ understanding of the certification process, it still provided an expedited means to return home. 5 Plaintiffs chose an alternate route—to wait and challenge the NOVs before the ECB and then challenge the NOVs and VO in Article 78 proceedings. They lost in those proceedings; the fact that they were not able to assert their innocence any earlier is meaningless. 5Accordingly, Plaintiffs-Appellants related argument—that “ceasing illegal transient occupancy” is too vague of an order with which to comply—is irrelevant. 11 Nothing about the options available to Plaintiffs shocks the conscience, see Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005)—including that one way to expedite their desired result was to admit to the violations and cure them. Substantive due process does not demand that anyone who is issued a VO may remain in their home while they challenge the merits of that VO. That would defeat the purpose of an emergency order to vacate the premises. We have considered Plaintiffs’ remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 12	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4523527/	NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0627-18T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. HAKIEM K. WADUD, Defendant-Appellant. ____________________________ Submitted February 26, 2020 – Decided April 8, 2020 Before Judges Koblitz and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 17-06- 0847. Joseph E. Krakora, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent (Catlin A. Davis, Deputy Attorney General, of counsel and on the brief). PER CURIAM Following the denial of his motion to suppress evidence seized from his person during a warrantless search, defendant entered a negotiated guilty plea to one count of first-degree kidnapping, N.J.S.A. 2C:13-1(b), and one count of first-degree robbery, N.J.S.A. 2C:15-1. The kidnapping count was amended to incorporate three victims, and the robbery count was amended to incorporate four victims, all of whom were encompassed in the fourteen-count indictment returned against defendant.1 The charges stemmed from defendant robbing four victims at gunpoint during a four-hour crime spree spanning two days and two towns. Defendant accosted two of the victims in a car and demanded that they drive him to the Wawa in Neptune, where he attempted to withdraw money from the ATM account of one of the victims. Defendant accosted a third victim in his car and ordered him to drive defendant to the same Wawa. Defendant was ultimately apprehended when he returned to the Wawa, where he was subjected to an investigative detention. 1 The indictment charged defendant with three counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b); four counts of first-degree armed robbery, N.J.S.A. 2C:15-1; four counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); third-degree resisting arrest, N.J.S.A. 2C:29- 2(a)(3); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39- 7(b)(1). A-0627-18T4 2 Defendant was sentenced in accordance with the plea agreement to an aggregate term of eighteen years, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J .S.A. 2C:43-7.2, and the remaining counts of the indictment were dismissed. He now appeals from the July 31, 2018 judgment of conviction, raising the following points for our consideration: POINT I THE STOP AND DETENTION OF DEFENDANT, DONE WITHOUT REASONABLE SUSPICION, VIOLATED THE FOURTH AMENDMENT. POINT II THE DEFENDANT'S [EIGHTEEN]-YEAR SENTENCE, BASED UPON THE JUDGE'S FINDING THAT NO MITIGATING FACTORS WERE PRESENT, WAS EXCESSIVE, AND SHOULD EITHER BE REDUCED OR REMANDED TO THE TRIAL COURT FOR ADDITIONAL FINDINGS. We affirm. At the hearing on the suppression motion, Bradley Beach Police Officer Andrew Redmond was the sole witness. Redmond testified that at about 10:45 p.m. on November 13, 2016, while he was on "regular routine patrol," he received a police dispatch about "an armed robbery with [a] gun" at "the Wawa" on "Route 33 and 35 in Neptune," which was "[l]ess than a mile" away from his A-0627-18T4 3 location. The dispatch described the robber as wearing "[g]ray sweatpants, [a] black sweatshirt, and a black hat." After "checking the area for the [suspect]," with negative results, Redmond "continued routine patrol." Later, at about 2:40 a.m. the following morning, Redmond, who "was in . . . full police uniform," went to the same Wawa "to get something to eat." Upon entering the store, he noted that the "three people" working there "were talking about the robbery that [had] occurred earlier that night." When Redmond went to the cashier to pay for his food, a person walked into the store who was later identified as defendant. Upon seeing defendant, the cashier "seemed excited and advised [Redmond] that [he] was the subject that committed the robbery earlier that night." Redmond asked the cashier "if she was joking," to which she responded that she was not, and "immediately" walked over "to her manager and began . . . talk[ing]" to him. At that point, defendant approached "the cashier and the manager" at "the back of the store" and started talking to the cashier as if he was acquainted with her, explaining to her that "he was home from college." Redmond, who was standing "about [ten] feet" away from defendant at the time, observed that defendant's clothing precisely "matched the description" reported earlier in the police dispatch. As a result, Redmond "immediately radioed [his] headquarters A-0627-18T4 4 to advise them to send Neptune units." While Redmond made the audible radio transmission, defendant, who had approached the cash register to purchase a pack of cigarettes, abandoned his purchase and "walk[ed] around the store and trie[d] to exit through the entrance door," avoiding Redmond in the process. Redmond "immediately exited through the exit doors to cut off [defendant's] path." Once Redmond confronted defendant in the enclosed "glass vestibule," just beyond the exit doors, he "advised [defendant] to stop." Redmond intended "to detain [defendant] until Neptune arrived." When defendant asked why he was stopping him, Redmond responded "that Neptune needed to speak with him." However, instead of complying with Redmond's order, defendant tried "to push past [Redmond]," by "pushing [Redmond's] arms down . . . to push [Redmond] out of the way." As defendant became "very irate," Redmond was concerned that defendant "might still have a gun on him." Although Redmond had grabbed defendant's arm and was holding defendant "[u]p against the glass in the vestibule," he was unable to control defendant by himself. At that point, an off-duty sheriff's officer entered the store and assisted Redmond in handcuffing defendant. After handcuffing defendant, Redmond "immediately did a quick pat-down search" of defendant "[f]or safety" and "felt a hard object in his right front pocket of his sweatshirt which felt like A-0627-18T4 5 a gun." After seizing the object, which turned out to be "a small revolver," Redmond "passed [defendant] off to a Neptune unit" that had arrived at the scene. According to Redmond, the entire encounter with defendant lasted "[three] to [four] minutes tops." Redmond later learned that Wawa had surveillance cameras inside the store that had captured the entire encounter on video. The video footage, which was played during the hearing, was authenticated by Redmond as accurately depicting what transpired in the Wawa. Following the hearing, the judge denied defendant's motion to suppress the revolver. In an oral decision, the judge made factual findings consistent with Redmond's testimony, which was corroborated by the surveillance footage,2 applied the applicable legal principles, and concluded that Redmond had an objectively reasonable suspicion to justify an investigative detention, which led to a valid search contemporaneous with a valid arrest. The judge explained: In this case, Neptune Township Police Department dispatched the description of the suspect involved in the incident. Officer Redmond had responded to the Wawa location [in] which the alleged 2 Although the judge did not explicitly state he found Redmond's unrebutted testimony credible, there is ample evidence to support the judge's implicit findings. See Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (finding "substantial evidence to support the trial court's implicit finding[s]" where such findings "are 'supported by adequate, substantial and credible evidence.'" (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974))). A-0627-18T4 6 robbery occurred. During his time there, the Wawa employee appeared to be upset . . . . [o]nce the individual later determined to [be] defendant had entered the store. Upon entry, the individual appeared . . . to know her by saying, . . . I am home from college . . . . or words of that effect. It was at this point that Officer Redmond noted that the individual fit the exact description of what was dispatched by Neptune police, gray pants, black sweatshirt, black hat. Once Officer Redmond utilized his radio, the individual attempted to leave the store. Each individual act alone may not give rise to the level of reasonable suspicion required, however, . . . it is the combination of these facts, the strange behavior of the defendant, the notable distress of the manager, employee and notably the return to the scene and matching description that give rise to the minimal level of justification for making the stop. The initial stop and seizure of the defendant was valid. Further, the subsequent arrest leading to the search of his person was valid. At the subsequent sentencing hearing, based on defendant's "extensive prior record," which included "a juvenile history," "a significant municipal court history," and, despite his young age, "a significant adult criminal history,"3 his "underlying substance [abuse] and addiction issues," and the "psychological[]" harm inflicted "on the victims," the judge found aggravating factors three, six, and nine applied. See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will 3 At age twenty-six, defendant had three prior indictable convictions, two drug related and one weapons possession offense. A-0627-18T4 7 commit another offense"); N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring the defendant and others from violating the law"). Acknowledging the prosecutor's comments that "fortunately, no projectiles emerged from th[e] gun," despite defendant "pull[ing] the trigger" on "several occasions," the judge noted "[i]t was a blessing that [it] didn't turn out far worse that day . . . because it was serious conduct and it did threaten serious harm." See State v. Fuentes, 217 N.J. 57, 79 (2014) ("[D]emands for deterrence are strengthened in direct proportion to the gravity and harmfulness of the offense." (alteration in original) (quoting State in Interest of C.A.H. & B.A.R., 89 N.J. 326, 337 (1982))). The judge rejected defendant's argument that mitigating factors four and eleven applied. See N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial grounds tending to excuse or justify the defendant’s conduct, though failing to establish a defense"); N.J.S.A. 2C:44-1(b)(11) ("[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents"). Instead, the judge found no mitigating factors. The judge dismissed defendant's plea for a lesser sentence so that he could be "a father to [his] newborn son" or a "productive" person in the eyes of his "terminally ill" "grandmother." See State A-0627-18T4 8 v. Dalziel, 182 N.J. 494, 505 (2005) (finding mitigating factor eleven unsupported by the record because the defendant "has never lived with or supported his fiancée and child."). While the judge acknowledged that defendant "was under the influence of a tremendous amount of drugs and alcohol," the judge found that defendant's intoxication "[did] not . . . r[i]se to [the] level of a defense" nor "warrant [m]itigating [f]actor [four]" because his intoxication did not "excuse the conduct." See State v. Setzer, 268 N.J. Super. 553, 567 (App. Div. 1993) ("Even if it were established that defendant was in fact intoxicated at the time of the crime, the trial court would not be required to consider such intoxication as a mitigating factor."). The judge concluded that although "the aggravating factors outweigh[ed] the mitigating factors," and notwithstanding the fact "that any one of the[] kidnappings . . . carried . . . [a maximum exposure of thirty] years in New Jersey state prison," the plea agreement allowing a maximum of eighteen years was "appropriate" and would be followed. The judge entered a conforming judgment of conviction and this appeal followed. On appeal, defendant first argues that while "the officer could have conducted a field inquiry and asked defendant whether he had been in the store earlier that night and whether he was involved in the robbery, he simply did not A-0627-18T4 9 have the reasonable suspicion necessary to stop defendant and detain him until the Neptune police arrived." Thus, according to defendant, the judge erred in ruling otherwise. 4 We disagree. Our scope of review of a trial court's decision on a suppression motion is circumscribed. State v. Robinson, 200 N.J. 1, 15 (2009). We defer to the trial court's factual and credibility findings, "so long as those findings are supported by sufficient credible evidence in the record." Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Deference is afforded because the "findings of the trial judge . . . are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Reece, 222 N.J. 154, 166 (2015) (alteration in original) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). Thus, we disregard a trial court's factual and credibility findings "only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Boone, 232 N.J. 417, 426 (2017) (quoting Elders, 192 N.J. at 244). On the other hand, "we owe no deference to conclusions of law . . . , which we instead review de novo." Ibid. (citing State v. Watts, 223 N.J. 503, 516 (2015)). 4 Defendant only challenges the investigative detention, and does not challenge whether Redmond had "probable cause to make an arrest" "once defendant pushed [him]." A-0627-18T4 10 A police officer has a right "to conduct a brief, investigatory stop." State v. Morrison, 322 N.J. Super. 147, 151-52 (App. Div. 1999); see also Terry v. Ohio, 392 U.S. 1, 20-21 (1968). An investigative or so-called Terry stop does not require probable cause to believe a person has committed or is about to commit an offense. State v. Nishina, 175 N.J. 502, 510-11 (2003). Rather, "[a] police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer ha[s] a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry, 392 U.S. at 21). The . . . "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom. Moreover, even if the initial stop is deemed constitutional, a further inquiry must be made to determine whether the subsequent scope of the seizure was justified by the particular facts and circumstances of the case. An important factor to consider is whether the officer used the least intrusive investigative techniques reasonably available to verify or dispel his suspicion in the shortest period of time reasonably possible. A-0627-18T4 11 [State v. Davis, 104 N.J. 490, 504 (1986).] In turn, "in determining the lawfulness of an investigatory stop, a reviewing court must 'evaluate the totality of circumstances surrounding the police - citizen encounter, balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions.'" State v. Chisum, 236 N.J. 530, 546 (2019) (quoting State v. Privott, 203 N.J. 16, 25-26 (2010)). See also United States v. Cortez, 449 U.S. 411, 417 (1981). From our review of the record, we conclude the totality of the circumstances supports the judge's conclusion that a reasonable articulable suspicion existed to stop defendant at the Wawa store based on the earlier police dispatch that there had been an armed robbery there, the fact that defendant's clothing precisely matched the reported description of the robber's clothing, the cashier identifying defendant as the robber, and defendant's evasive actions after Redmond radioed for assistance. See State v. Reynolds, 124 N.J. 559, 569 (1991) (finding the police had "reasonable suspicion to stop [the defendant] on the morning of the crime" based on "defendant's proximity to the crime in both time and space and . . . his similarity to the general description of the suspect") ; State v. Williams, 317 N.J. Super. 149, 157 (App. Div. 1998) ("An ordinary A-0627-18T4 12 citizen may be regarded as trustworthy, and information imparted by him to a police officer concerning a criminal event 'would not especially entail further exploration or verification of his personal credibility or reliability before appropriate police action is taken.'" (quoting State v. Lakomy, 126 N.J. Super. 430, 435 (App. Div. 1974))); State v. Basil, 202 N.J. 570, 586 (2010) ("[W]hen a tip is made in-person, an officer can observe the informant's demeanor and determine whether the informant seems credible enough to justify immediate police action without further questioning." (alteration in original) (quoting United States v. Palos-Marquez, 591 F. 3d 1272, 1275 (9th Cir. 2010))). Indeed, the "whole picture" underscored Redmond's belief that defendant had "just engaged in . . . criminal activity." Stovall, 170 N.J. at 356, 361 (citation omitted). Moreover, the limited scope of the seizure was justified by the circumstances of the case. Thus, we are satisfied that the judge's factual findings, based on the judge's assessment of Redmond's credibility and the corroborating video footage, are substantially supported by sufficient credible evidence in the record, and the judge's legal conclusions are sound. Further, Redmond was well within his powers under Terry to conduct the pat-down search of defendant. See State v. Richards, 351 N.J. Super. 289, 299 (App. Div. 2002) (explaining that once stopped, an officer is permitted to A-0627-18T4 13 "conduct a reasonable search for weapons if he is 'justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others'" (quoting Terry, 392 U.S. at 24)). Based on the earlier dispatch reporting the commission of an armed robbery, it was objectively reasonable for Redmond to suspect defendant was armed with a firearm. Given the totality of the circumstances presented, we therefore conclude the pat-down search was lawful. See State v. Roach, 172 N.J. 19, 27 (2002). Next, defendant challenges his sentence as excessive, arguing "the judge erred in basing the [eighteen]-year sentence solely upon defendant's prior criminal record without giving serious consideration to the mitigating factors." "Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We will affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience." [Fuentes, 217 N.J. at 70 (second alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).] A-0627-18T4 14 Additionally, we will presume that "[a] sentence imposed pursuant to a plea agreement is . . . reasonable because a defendant voluntarily '[waived] . . . his right to a trial in return for the reduction or dismissal of certain charges, recommendations as to sentence and the like.'" Id. 70-71 (second alteration in original) (quoting State v. Davis, 175 N.J. Super. 130, 140 (App. Div. 1980)). Applying this deferential standard of review, we find defendant's arguments to be without merit. We discern no abuse of discretion or error in judgment in imposing a sentence consistent with the plea agreement, ample support for the aggravating factors found and rejection of the purported mitigating factors, and nothing so unreasonable about the sentence as to shock our judicial conscience. Affirmed. A-0627-18T4 15	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4523529/	NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2668-18T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. COBY T. RICHARDSON, a/k/a COLBY RICHARDSON, and TIMOTHY RICHARDSON, Defendant-Appellant. __________________________ Submitted February 12, 2020 – Decided March 8, 2020 Before Judge Gooden Brown and Mawla. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-04-1144. Joseph E. Krakora, Public Defender, attorney for appellant (John Vincent Molitor, Designated Counsel, on the brief). Theodore N. Stephens II, Acting Essex County Prosecutor (Stephen Anton Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM Defendant appeals from the December 11, 2018 Law Division order denying his first petition for post-conviction relief (PCR) without an evidentiary hearing. On appeal, defendant raises the following single contention for our consideration: THIS COURT SHOULD REVERSE THE TRIAL COURT'S DECISION TO DENY DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING. We disagree and affirm for the reasons expressed in Judge John I. Gizzo's comprehensive and well-reasoned written opinion. We incorporate herein the facts set forth in State v. Richardson, No. A- 4021-14 (App. Div. June 23, 2017) (slip op. at 2, 5, 39), certif. denied, 231 N.J. 520 (2017), wherein we affirmed defendant's 2015 convictions following a jury trial, as well as the imposition of an aggregate seventeen-year sentence, with six-and-one-half-years of parole ineligibility, for receiving stolen property, resisting arrest and weapons possession offenses.1 The convictions stemmed from a July 21, 2011 "9-1-1 call from an unidentified woman, reporting armed men, wearing gloves, in a red vehicle in the area of 600 Irvine Turner Boulevard" 1 Defendant was acquitted of eluding police and possession of hollow point bullets. A-2668-18T1 2 in Newark. Id. at 5. The report led to a police pursuit of a vehicle matching the description, and the ultimate apprehension of defendant and his brother, who "fled" from the vehicle "on foot" just prior to the vehicle striking "a parked car and a tree." Ibid. The two officers who first responded to the police dispatch, Jimmy Rios and Steven Maresca, identified defendant as the driver of the vehicle. A subsequent examination of the vehicle revealed a damaged ignition, and a search uncovered a "handgun, a rifle, a high capacity magazine, and a screwdriver." Id. at 6-7. "Police also recovered gloves, bandanas, cellphones, and a cap at the scene." Id. at 7. A bandana was linked to defendant by DNA evidence, which was challenged by a defense expert forensic scientist. During the nine-day trial, the State produced "the dispatch officer" and "the 9-1-1 operator," as well as several other police and civilian witnesses, and introduced "various documents including transcripts of the 9-1-1 call and radio dispatches." Ibid. Defendant testified at trial, essentially claiming mistaken identity. We previously recounted his testimony as follows: [Defendant] testified he worked as a driver for his brother's roadside assistance company, which responded to service calls for customers of companies such as AAA and All America. On July 21, 2011, at approximately 3 p.m., [his brother] arrived in a company van to take [defendant] to work. [Defendant] A-2668-18T1 3 was to start work at 5 p.m., when [his brother's] shift ended. Sometime after 4 p.m., the van overheated so [his brother] took it for repair at a local mechanic shop. While the two waited, they walked to a nearby neighborhood . . . because [defendant] wanted to buy marijuana. At some point, [his brother] separated from [defendant] because he desired to purchase Percocet. After his transaction was completed, [defendant] emerged from an alleyway and saw police. He became nervous, as he just purchased marijuana, so he ran. A police officer, searching on foot, saw [defendant] hiding behind a bush and arrested him. . . . Also he admitted he tossed the marijuana during the chase and lost his bandana. [Defendant] denied he was driving a red Ford Taurus or that he possessed guns. [Id. at 7-8.] His brother, who was also charged and tried jointly with defendant, gave similar testimony. In his timely PCR petition, defendant certified his "trial attorney was ineffective . . . in failing to consult with [him] regarding trial strategy." Specifically, defendant averred his attorney "fail[ed] to contact the [9-1-1] caller and interview her as to her observations." Defendant asserted "[t]he caller's telephone number was provided, and [he] requested" his attorney to "contact" her "several times . . . but he refused." According to defendant, because the caller never "provide[d] the race of the individuals she saw, and . . . never A-2668-18T1 4 mentioned dreadlocks, which would have been a distinguishing feature," if his attorney had contacted her, she "would have exculpated [him]." Defendant also asserted his attorney "refused" to "cross-examine" Rios on a "critical" discrepancy in his testimony. According to defendant, although Rios stated at trial that "the perpetrator had dreadlocks, . . . he failed to communicate such to dispatch" and "only added dreadlocks into his police report after the fact." Defendant averred "[t]his omission would have illustrated to the jury that the officer was lying about [defendant's] involvement." Defendant made other assertions to support his ineffective assistance of counsel claim (IAC) that are not pertinent to this appeal. Following oral argument, Judge Gizzo denied defendant's petition. In his December 10, 2018 written decision, the judge reviewed the factual background and procedural history of the case, applied the applicable legal principles, and concluded defendant failed to establish a prima facie case of IAC. The judge found defendant failed to show that either counsel's performance fell below the objective standard of reasonableness set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or that the outcome would have been different without the purported deficient performance as required under the second prong of the A-2668-18T1 5 Strickland/Fritz test. Additionally, in rejecting defendant's request for an evidentiary hearing, the judge concluded defendant failed to present any issues that could not be resolved by reference to the existing record. In rejecting defendant's claim that trial counsel failed to effectively cross- examine Rios, the judge stated the trial record suggests otherwise. During his cross[- ]examination of . . . Rios, trial counsel proceeded to ask the detective about the descriptions he provided to dispatch regarding the suspect's identity. The record further reveals that trial counsel questioned . . . Rios not only about the suspect's hair type but also about the suspect's weight, height, dress and race. This line of questioning directly contradicts [d]efendant's claim. The jury not only had the benefit of hearing [d]efendant's trial attorney cross-examine . . . Rios on the identification issues, but they also listened while [his brother's] trial counsel conducted his own cross- examination of . . . Rios on the identification issues. As to defendant's claim regarding the 9-1-1 caller, the judge explained: It seems apparent that trial counsel chose not to call the witness but instead chose to use the State's failure to call the 9-1-1 caller to raise reasonable doubt. Trial counsel might have chosen not to call the 9-1-1 caller as part of his trial strategy. Trial counsel integrated this theory into his cross-examinations and closing argument. Therefore, his choice not to call the 9-1-1 caller to testify is likely attributable to trial strategy. For instance, in his closing argument, trial counsel referred several times to the State's inability to call the 9-1-1 caller and continued to address her by her phone number. Trial counsel extensively questioned [the A-2668-18T1 6 police dispatcher] and the [9-1-1 operator] . . . on their inability to ask the 9-1-1 caller about her identity. Assuming that trial counsel's failure to call the 9- 1-1 witness amounted to deficient performance, [d]efendant presents no evidence tending to show that the 9-1-1 caller's testimony would have raised any reasonable doubt. Defendant merely speculates that the 9-1-1 caller, if called to testify, would have somehow provided testimony tending to change the outcome of the trial. However, there is no such evidence to provide as much as a reasonable inference into this claim. The 9-1-1 caller provided specific details about the car she saw which later matched the car occupied by [defendant's brother] and [d]efendant. It is clear from the line of questioning that trial counsel was attempting to cast doubt on the veracity of the State's witness, which, in itself, amounts to trial strategy. Therefore, trial counsel did not render ineffective assistance for likely choosing not to call the 9-1-1 caller to testify as part of his trial strategy or for choosing not to do so because the 9-1-1 caller could have actually harmed [d]efendant's case. On appeal, defendant argues that, "[a]t the very least," he was entitled to "an evidentiary hearing so [d]efendant's trial attorney can explain why he did not attempt to locate the 9-1-1 caller and did not attempt to establish the flaws in the State's witnesses' identification of [d]efendant." Merely raising a claim for PCR does not entitle a defendant to relief or an evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant evidentiary hearings only if the defendant has presented a A-2668-18T1 7 prima facie claim of IAC, material issues of disputed fact lie outside the record, and resolution of those issues necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). A PCR court deciding whether to grant an evidentiary hearing "should view the facts in the light most favorable to a defendant . . . ." State v. Preciose, 129 N.J. 451, 463 (1992). However, "[a] court shall not grant an evidentiary hearing" if "the defendant's allegations are too vague, conclusory or speculative." R. 3:22-10(e)(2). Indeed, the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, 321 N.J. Super. at 170. In turn, "we review under the abuse of discretion standard the PCR court's determination to proceed without an evidentiary hearing." State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . then an evidentiary hearing need not be granted." Ibid. (alteration in original) (quoting State v. Marshall, 148 N.J. 89, 158 (1997)). We also typically review a PCR petition with "deference to the trial court's factual findings . . . 'when supported by adequate, substantial and credible evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (alteration in A-2668-18T1 8 original) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). However, where, as here, "no evidentiary hearing has been held, we 'may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge].'" State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010) (alteration in original) (quoting Harris, 181 N.J. at 421). We also review de novo the legal conclusions of the PCR judge. Harris, 181 N.J. at 415-16 (citing Toll Bros., 173 N.J. at 549). To establish a prima facie claim of IAC, a defendant must satisfy the two- prong Strickland test, and "bears the burden of proving" both prongs of an IAC claim "by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012). Specifically, a defendant must show that (l) "counsel's performance was deficient" and he "made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment" to the United States Constitution; and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687, 694; see also Fritz, 105 N.J. at 52. A reasonable probability is defined as "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A-2668-18T1 9 Under the first Strickland prong, "a defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J. 123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). Indeed, "counsel is strongly presumed to have rendered adequate assistance," Strickland, 466 U.S. at 690, as measured by a standard of "reasonable competence." Fritz, 105 N.J. at 53. However, "'[r]easonable competence' does not require the best of attorneys," State v. Davis, 116 N.J. 341, 351 (1989), and "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Strickland, 466 U.S. at 688-89. For that reason, an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial. A-2668-18T1 10 [State v. Castagna, 187 N.J. 293, 314-15 (2006) (citations, internal quotation marks, and brackets omitted).] Thus, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. Under the second Strickland prong, defendant must prove prejudice. Fritz, 105 N.J. at 52. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691. This prong "is an exacting standard" and "'[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (quoting Castagna, 187 N.J. at 315). Applying these principles, we are satisfied defendant failed to make a prima facie showing of IAC under the Strickland/Fritz test, and we discern no abuse of discretion in the judge's denial of defendant's PCR petition without an evidentiary hearing. We agree with Judge Gizzo that defendant's contention that his attorney failed to effectively cross-examine Rios is belied by the record. As to defendant's contention that his attorney was ineffective by failing to investigate the 9-1-1 caller, an attorney's failure to investigate "is a serious A-2668-18T1 11 deficiency that can result in the reversal of a conviction." Porter, 216 N.J. at 353. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. However, "when a [defendant] claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, 321 N.J. Super. at 170. Here, as the judge explained, other than rank speculation, defendant offered no support for his claim that the 9-1-1 caller would have exonerated him. See id. at 171 (rejecting the defendant's contention that trial counsel was ineffective by failing to adequately investigate the case by interviewing witnesses because defendant "offer[ed] nothing as to what those witnesses would have said had they been interviewed."). As the judge noted, given the equally plausible likelihood that the 9-1-1 caller's testimony would have "actually harmed [d]efendant's case," his attorney's "reasonable professional judgment[] support[ed] the limitation[] on investigation." Strickland, 466 U.S. at 691. Affirmed. A-2668-18T1 12	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/4523530/	NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3829-18T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. BAO DOAN, Defendant-Appellant. ________________________ Argued February 27, 2020 – Decided April 8, 2020 Before Judges Alvarez and Suter. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 99-01-0098. Timothy Scott Farrow argued the cause for appellant (Dash Law, LLP attorneys; Timothy Scott Farrow, on the brief). Nicole Lynn Campellone argued the cause for respondent (Damon G. Tyner, Atlantic County Prosecutor, attorney; Nicole Lynn Campellone, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Bao Doan appeals the April 16, 2019 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For reasons that follow, we affirm the order in part because defendant did not establish a prima facie case of ineffective assistance of counsel. However, we reverse in part and remand the case for the PCR court to determine defendant's request to vacate his guilty plea. I. Defendant pleaded guilty on March 17, 1999 to count nine of Atlantic County indictment 98-12-2971 charging him with third-degree theft by deception, N.J.S.A. 2C:20-4. On the same day, he pleaded guilty under Atlantic County indictment 99-01-0098 to count three, charging third-degree attempted theft by deception, N.J.S.A. 2C:20-4 and count eight, charging third-degree burglary, N.J.S.A. 2C:18-2(a)(1). He was sentenced in June 1999, to a three- year term of incarceration on each count, to be served concurrently. Defendant served his sentence. He did not file a direct appeal of his plea or sentence. In October 2018, defendant filed for post-conviction relief (PCR).1 Defendant requested to vacate his guilty plea because he alleged an adequate factual basis was not presented at the plea hearing and because he did not receive 1 The PCR petition was not included in the appendix. A-3829-18T1 2 adequate advice from his attorney about the immigration consequences of his guilty plea. Defendant stated in his supporting certification, that prior to pleading guilty, the trial court did not ask him whether he needed an interpreter, whether he was a citizen or whether he was aware of "the potential immigration consequences of [his] guilty plea." He alleged he would have asked for a Vietnamese interpreter had he known to do so, because his primary language is Vietnamese. He claimed he would not have pleaded guilty if he had been advised of the "potential consequences prior to entering [his] guilty plea." His certification asked to vacate his guilty plea and to remand the case for a new trial. Defendant argued that a federal policy, which had been in effect since 2008 and precluded the Vietnamese who came to the United States before July 1995 from being deported, was being changed to allow those with criminal convictions to be deported. Defendant claimed he filed his PCR petition when he learned about this change in October 2018. The trial court found this policy change did not constitute excusable neglect because defendant pleaded guilty in 1999, before the 2008 policy was in effect. Defendant initialed and signed the plea form, which included a question advising him he may be deported based on his plea. The court found defendant A-3829-18T1 3 "was on full notice at the time of the plea on March 17, 1999, that these were offenses to which he could be subject to potential deportation . . . ." It also concluded the five-year window for defendant to file a PCR petition ended in 2004, even before the policy was instituted. The PCR court rejected defendant's argument that the factual bases for his guilty pleas were not adequate to support a knowing and voluntary waiver of his rights, because issues about the factual bases could have been raised in a direct appeal. The PCR court determined defendant failed to show a prima facie case for ineffective assistance of counsel because defendant's attorney did not "provide false or willful misleading information as to immigration consequences . . . ." Defendant's PCR petition was denied on April 16, 2019, without an evidentiary hearing. Defendant presents the following issues on appeal: POINT I: THE PCR COURT ERRED IN DENYING MR. DOAN'S MOTION TO WITHDRAW HIS GUILTY PLEA AND THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING, BECAUSE: (1) THE PLEA WAS NOT KNOWING AND VOLUNTARY, AS MR. DOAN DID NOT KNOW THAT HE COULD BE DEPORTED BASED UPON HIS PLEA; AND (2) HE DID NOT UNDERSTAND NOR PROVIDE A FULL FACTUAL BASIS FOR THE CHARGES. A. THE MOTION TO WITHDRAW THE GUILTY PLEA AND PETITION FOR POST-CONVICTION (sic) BASED ON A-3829-18T1 4 INEFFECTIVE ASSISTANCE OF COUNSEL MUST BE CONSIDERED SEPARATELY. POINT II: DEFENDANT'S PCR PETITION IS NOT TIME-BARRED AS HE HAS ESTABLISHED EXCUSABLE NEGLECT FOR FILING HIS PETION (sic) PAST THE FIVE-YEAR TIME LIMIT AND ENFORCEMNT (sic) OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE. A. MR. DOAN HAS ESTABLISHED EXUSABLE (sic) NEGLECT, BECAUSE UNTIL 2018, AS A VIETNAMSE (sic) IMMIGRANT, HE NEVER FACED IMMINENT DANGER OF DEPORTATION. B. ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE, AS IT WAS CLEAR THAT MR. DORN SHOULD HAVE HAD AN INTERPRETER DURING HIS PLEA COLLOQUY. POINT III: DEFENDANT'S GUILTY PLEAS MUST BE VACATED BECAUSE HE WAS MIS-ADVISED BOTH BY HIS COUNSEL AND THE COURT CONCERNING THE DEPORTATION CONSEQUENCES OF THAT PLEA. AT MINIMUM, DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL SHOULD NOT BE DISMISSED WITHOUT AN EVIDENTIARY HEARING. A-3829-18T1 5 II. A. Under Rule 3:22–12(a)(1)(A), a PCR petition shall not be filed more than five years after entry of a judgment of conviction unless the delay was "due to defendant's excusable neglect and . . . there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice[.]" This "time bar should be relaxed only 'under exceptional circumstances' because '[a]s time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases.'" State v. Goodwin, 173 N.J. 583, 594 (2002) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). To establish "excusable neglect," a defendant must demonstrate "more than simply . . . a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Factors to be considered include "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Afanador, 151 N.J. at 52 (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)). The "burden to justify filing a petition after the five-year period will increase with the extent of the A-3829-18T1 6 delay" unless there are "compelling, extenuating circumstances." Ibid. To establish a fundamental injustice, "there should at least be some showing that . . . [the alleged violation] played a role in the determination of guilt." State v. Laurick, 120 N.J. 1, 13 (1990). Defendant filed his PCR petition in 2018, approximately nineteen years after he was sentenced. This was well outside the five-year limit. Defendant contends his delay was excusable because he could be facing deportation given the recent change in federal policy. We agree with the trial court that this circumstance did not constitute excusable neglect. The federal program that may be ending and could result in defendant's deportation did not commence until 2008. There was nothing preventing his deportation from 1999 through 2008. The federal policy, having started and ended more than five years after defendant's judgment of conviction did not constitute excusable neglect under Rule 3:22–12(a)(1)(A) to permit a late filing in 2018. B. Defendant contends he was not aware of the immigration consequences of his plea because of the ineffective assistance of his attorney. He asserts this constituted excusable neglect for his late filing. A-3829-18T1 7 The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In the plea bargain context, "a defendant must prove 'that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial[,]'" State v. Gaitan, 209 N.J. 339, 351 (2012) (first alteration in original) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)), and that "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010). A-3829-18T1 8 We note that defendant's certification supporting his PCR petition did not allege anything about incorrect advice by his attorney. It alleged the trial court did not advise him about the deportation consequences of his plea. Because defendant did not claim his attorney's performance was deficient, defendant did not satisfy the first prong of Strickland. In 2009, our Supreme Court held a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from "inaccurate information from counsel concerning the deportation consequences of his plea." Nuñez-Valdéz, 200 N.J. at 143. In 2010, the United States Supreme Court extended counsel's duty, holding that counsel had an affirmative duty to inform a defendant entering a guilty plea regarding the relevant mandatory removal law if it is "succinct, clear, and explicit . . . ." Padilla, 559 U.S. at 368. Accordingly, in Padilla, the Supreme Court expanded the law to encompass both a duty not to provide misinformation, and a duty to affirmatively explain the potential removal consequences of a criminal guilty plea. Ibid. In 2013, the Supreme Court clarified that Padilla imposed a new obligation and announced a new rule of law. Chaidez v. United States, 568 U.S. 342, 349 (2013). Consequently, the holding in Padilla only applies prospectively, and defendants whose convictions became final prior to the holding in Padilla in 2010, cannot benefit from that A-3829-18T1 9 holding. Chaidez, 568 U.S. at 358. In State v. Gaitan, 209 N.J. 339, 371 (2012), our Supreme Court reaffirmed that an ineffective assistance of counsel claim could be premised on counsel's false or affirmatively misleading advice about the immigration consequences of a plea. Defendant's arguments concerning ineffective assistance of counsel must be assessed under the law when he pleaded guilty. See State v. Santos, 210 N.J. 129, 143 (2012). Defendant did not certify what advice he was given by his attorney that was misleading. Without this, defendant did not satisfy the first prong of Strickland. Defendant did not demonstrate that "had he been properly advised, it would have been rational for him to decline the plea offer and insist on going to trial and, in fact, that he probably would have done so[.]" State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla, 559 U.S. at 372). This was the second requirement under Strickland. In this case, defendant had a favorable plea deal. He was facing three five-year terms and a $15,000 fine on each count. Under the plea deal, defendant received one three-year term and the other counts of the indictments were dismissed. Having failed to show that defendant's attorney's performance was deficient on the immigration issue or that he was prejudiced, the trial court was A-3829-18T1 10 correct to determine that a prima facie case of ineffective assistance was not shown nor was there a basis under Rule 3:22-12(a)(1)(A) to excuse defendant's delay. C. Defendant argues that the trial court did not establish a factual basis satisfying Rule 3:9-2 when his guilty plea was taken in 1999 and asks to withdraw the guilty plea or for a remand for an evidentiary hearing. Defendant raises an issue about his ability to understand the guilty plea proceedings because his primary language is Vietnamese. Defendant did not file a direct appeal raising either of these issues. Post- conviction relief is not a substitute for direct appeal. R. 3:22–3. "[A] defendant may not employ post-conviction relief to assert a new claim that could have been raised on direct appeal . . . or to relitigate a claim already decided on the merits . . . ." Goodwin, 173 N.J. at 593. Under Rule 3:22–4(a), a petitioner may be barred from asserting any claims he could have raised at trial or on direct appeal, unless the judge concludes: (1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or A-3829-18T1 11 (2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or (3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey. This rule is intended "to promote finality in judicial proceedings[.]" State v. Echols, 199 N.J. 344, 357 (2009) (quoting State v. McQuaid, 147 N.J. 464, 483 (1997)). Both claims—that the factual basis for the guilty plea was inadequate under Rule 3:9-2 and that defendant should have had an interpreter at the plea hearing—could have been raised in a direct appeal. Having not done so, they cannot be raised in a PCR. R. 3:22-4(a). There is no reason the claims could not have been raised earlier. Defendant has not shown ineffective assistance of counsel. Defendant has not asserted any new rule of constitutional law. Therefore, we are satisfied the PCR court correctly denied defendant's petition for PCR relief. III. Defendant argues on appeal that the PCR court erred by denying his request to vacate his guilty plea. The PCR court acknowledged defendant sought to vacate the plea because he did not "understand the nature of the proceeding A-3829-18T1 12 or that . . . [there was not] an adequate factual basis for [the] plea." We agree with defendant that the PCR court did not separately analyze his request to vacate his plea. We, therefore, are constrained to reverse and remand on that basis. A request to withdraw a plea and a petition for PCR based on ineffective assistance of counsel are "distinct, and governed by different rules of court." State v. O'Donnell, 435 N.J. Super. 351, 368 (App. Div. 2014). "They must be considered separately." Ibid. A motion to withdraw a plea may be made after sentencing "if the movant shows a 'manifest injustice.'" Ibid. (quoting R. 3:21- 1). "By contrast, a petition for PCR must be filed within five years of the challenged judgment of conviction, absent excusable neglect where enforcement of the bar would result in a 'fundamental injustice.'" Id. at 368-69. (quoting R. 3:22-12(a)). "[C]onsideration of a plea withdrawal request," however, "can and should begin with proof that before accepting the plea, the tri al court followed the dictates of Rule 3:9-2." Id. at 369 (quoting State v. Slater, 198 N.J. 145, 155 (2009)). The PCR court denied this portion of defendant's request because issues about the factual basis could have been raised in a direct appeal. See R. 3:22– 4(a). However, the PCR court did not determine for purposes of Rule 3:21-1, A-3829-18T1 13 whether the factual basis provided at the plea hearing was adequate under Rule 3:9-2. As O'Donnell instructs, these are separate applications that should not be conflated. 435 N.J. Super. at 371. As such, we reverse this portion of the order and remand it to the PCR court for further analysis consistent with O'Donnell. Affirmed in part; reversed in part and remanded. A-3829-18T1 14	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/166668/	F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS November 16, 2005 TENTH CIRCUIT Clerk of Court BARRY WATSON, Petitioner-Appellant, No. 04-6213 v. (W.D. of Okla.) DAYTON J. POPPELL, Warden, (D.C. No. 02-CV-346-T) Respondent-Appellee. ORDER DENYING CERTIFICATE OF APPEALABILITY * Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. ** Petitioner-Appellant Barry Watson, a state prisoner appearing pro se, filed a petition for writ of habeas corpus in the district court for the Western District of Oklahoma pursuant to 28 U.S.C. § 2254. The district court denied Watson’s writ of habeas corpus and also denied him a certificate of appealability (“COA”). * This order 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; nevertheless, an order may be cited under the terms and conditions of 10th Cir. R. 36.3. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. Because Watson has not made a substantial showing of a denial of a constitutional right, 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss the appeal. I. Background The parties to this action are familiar with the facts of the case and we need not restate them in full. Watson was a suspect in a domestic disturbance and burglary. Following a traffic stop of Watson’s vehicle, Watson left his vehicle and, according to officers, appeared to be throwing a substance that was later identified as crack cocaine. Watson was subsequently arrested and charged with a number of crimes, including assault and battery, burglary and possession of a controlled dangerous substance. Watson was convicted in Oklahoma state court and the Oklahoma Court of Criminal Appeals affirmed his conviction. Watson then filed an application for post-conviction relief with the Oklahoma County District Court. The district court denied his petition, and the Oklahoma Court of Criminal Appeals affirmed. In his petition to the federal district court, Watson put forth six claims: (1) trial counsel was ineffective; (2) he was subject to prosecutorial misconduct; (3) appellate counsel and trial counsel had a conflict of interest; (4) appellate counsel was ineffective; (5) the prosecution used its peremptory challenges in a discriminatory manner; and (6) his sentence was improperly enhanced. The federal magistrate judge entered a comprehensive twenty-nine page report -2- recommending that Watson’s request for habeas relief be denied. The district court for the Western District of Oklahoma adopted the report in its entirety and denied Watson’s claims. The district court also denied a COA. In his brief to this court, Watson simply reiterated his claims before the district court and also filed a “motion to expand certificate of appealability,” in which he argued that ineffective assistance of counsel establishes cause for state procedural default. II. Legal Issues A COA may issue if Watson “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also United States v. Springfield , 337 F.3d 1175, 1177 (10th Cir. 2003). To make this showing, “a petitioner 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.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (internal quotation omitted). Our role is not to engage in a “full consideration of the factual or legal bases adduced in support of the claims,” but rather we merely conduct an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. Where, as was the case with several of the claims at issue here, the district court denies a habeas petition on procedural grounds without reaching the -3- underlying constitutional claim, a COA may issue if the habeas petitioner shows (1) reasonable jurists would find it debatable whether the petition states a valid claim of the denial of the constitutional right, and (2) reasonable jurists would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel , 529 U.S. 473, 484 (2000). Thus, with respect to those types of claims, Watson must show that he has been denied a constitutional right and that the district court erred in its procedural ruling. We may deny a COA on either of these two prongs. Id. at 485. With these principles in mind, we review Watson’s claims. A. Ineffective Assistance of Trial Counsel/Prosecutorial Misconduct The magistrate judge recommended Watson’s first and second claims be denied because he failed to raise these issues on direct appeal. As fully developed by the magistrate judge, these claims are procedurally defaulted. While it is true “[a] showing that a defendant received ineffective assistance of counsel will establish cause excusing a procedural default,” Ellis v. Hargett , 302 F.3d 1182, 1186 (10th Cir. 2002), to meet this standard, Watson must satisfy the familiar two-part test for ineffective assistance established in Strickland v. Washington , 466 U.S. 668, 688 (1984). Specifically, he must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s errors, the outcome of the -4- proceedings would have been different. Id. The magistrate judge’s application of Strickland is correct and we agree that Watson has not shown any reason to believe the outcome of his direct appeal would have been different if these two theories had been advanced at trial. B. Conflict of Interest/Ineffective Assistance of Appellate Counsel Watson next argues that his appellate counsel had a conflict of interest because both appellate and trial counsel were part of the Oklahoma Public Defender Office. As the magistrate judge correctly explained, under our case law, no inherent conflict exists merely because appellate and trial counsel are both employed by the Public Defender’s Office. Watson also argues that appellate counsel was ineffective due to counsel’s failure to raise ineffective assistance of trial counsel and prosecutorial misconduct on direct appeal. Again, for the reasons set forth in the magistrate judge’s opinion, since Watson fails to meet the Strickland standard as to trial counsel, his appellate counsel could not be ineffective for failing to pursue the claim on appeal. C. Improper Use of Peremptory Challenges Watson next argues that the prosecution engaged in racial discrimination in its exercise of peremptory challenges during jury selection. The magistrate judge demonstrated that Watson failed to meet the standards established in Batson v. -5- Kentucky , 476 U.S. 79 (1986). In short, Oklahoma prosecutors provided sufficient race-neutral explanations for each peremptory challenge, and the record does not support Watson’s claim that prosecutors discriminated on the basis of race. D. Sentence Enhancement Finally, Watson claims the trial court improperly increased his sentence by using prior convictions which arose from a single criminal episode. Again, as the magistrate judge explained, this claim fails. Watson conceded five prior convictions. Oklahoma sentencing law allowed for the enhancement after only two convictions. Thus, Watson cannot show any harm arising from the use of convictions that may have arisen from a single criminal episode. Accordingly, we DENY a COA and DISMISS the appeal, and we DENY Appellant’s motion to proceed in forma pauperis . Entered for the Court Timothy M. Tymkovich Circuit Judge -6-	01-03-2023	08-14-2010
https://www.courtlistener.com/api/rest/v3/opinions/3392897/	Writ of error dismissed on motion of the Attorney General.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/4523532/	NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the cas e and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4354-18T2 ROSEVILLE GROUP, LLC, Plaintiff-Respondent, v. MASON DIXON, Defendant-Appellant. _____________________________ Submitted March 18, 2020 — Decided April 8, 2020 Before Judges Koblitz and Mawla. On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-010595-19. Lessie B. Hill, attorney for appellant. Jonathan R. Mehl, attorney for respondent. PER CURIAM Defendant Mason Dixon appeals from a June 6, 2019 judgment of possession entered in favor of plaintiff Roseville Group, LLC following a trial. We reverse. Beginning in October 2009, defendant resided in unit C01 1 of an apartment building on Roseville Avenue in Newark. In January 2019, plaintiff served defendant with a notice to cease which stated: According to . . . . N.J.S.A. 2A:18-61.1 . . . you may be evicted for the following reasons: You are doing things and/or allowing others to do so in and about your apartment (including the exterior and backyard) which are disturbing the peace and quiet enjoyment of other tenants and residents in the building. This includes drinking, doing drugs and/or permitting prostitution. There is excessive noise and disturbances. Your actions are further in violation of [s]ection 26(a) of your lease which reads: "The comfort and rights of other tenants must not be interfered with. Annoying sounds and odors, and lights are not allowed. Tenant shall be responsible for the conduct of [t]enant's guests and family members." Over a month later, plaintiff served defendant with a notice to quit terminating defendant's tenancy for failure to comply with the notice to cease and requiring him to vacate the apartment by March 31, 2019. Defendant did 1 The record also reflects the apartment was also referred to as 1C and C1. A-4354-18T2 2 not vacate. Plaintiff filed a complaint for possession, and in April 2019 defendant filed a motion to dismiss the complaint. The motion attached defendant's April 30, 2019 certification, in which he certified his rent was "fully paid." At trial, the judge heard testimony from plaintiff's superintendent William Quinones, defendant, and defendant's brother Clayton Dixon 2. Quinones testified he lived on the same floor as plaintiff and part of his job was to clean and maintain the building and walk the hallways to assure unauthorized individuals did not enter, because he observed prostitution and drug use in the building's vicinity. He claimed these individuals attempted to force entry through the rear of the building with a screwdriver and some had keys, even though they did not reside in the building. Quinones stated that over a period of several months he encountered two females and a male who did not live in the building, but claimed they were heading to defendant's apartment. He often observed them arguing and fighting in the hallway, "smoking[ and] shooting" drugs, leaving behind "[d]ope bags [and] pipes" which Quinones cleaned up. Quinones also stated he received complaints about people sleeping in the hallways "usually by [apartment] 1C" 2 We utilize Clayton's first name because he shares a common surname with defendant. We intend no disrespect. A-4354-18T2 3 and observed these individuals entering defendant's apartment. He called the police to prevent these individuals from disturbing tenants, but beyond one occasion when police escorted one of the females off the property, police did not respond. Quinones asserted the females were engaging in illegal prostitution because he observed them loitering on the corners near the buildings and entering vehicles. He also observed them engaging in sex acts inside the building's laundry room. Quinones testified these individuals came to defendant's apartment looking for Clayton. According to Quinones, Clayton was not on the lease and illegally resided in defendant's one-bedroom apartment. Quinones testified he addressed the issue of the visitors with defendant "plenty of times" and "[defendant] said[] [']tell them that I'm not here['] But when I do do that I see[] them walk right back into his apartment." Following Quinones' testimony, plaintiff's counsel sought to admit defendant's lease into evidence. Defense counsel objected and argued there was no lease because the purported lease document was dated October 2009, ran only for one year, and was unsigned. The trial judge admitted the lease, noting that while it may be expired "all the other provisions of the lease still remain in full A-4354-18T2 4 force and effect. The only difference is that the tenant becomes a month to month tenant . . . ." Defendant testified he retired from the Newark Housing Authority one month prior, after a thirty-six-year career. He stated he resided in apartment C01 since October 2009, paid the rent, and no one else resided with him. He stated Clayton visits him frequently and sleeps at the apartment "once a week, twice a week." He denied any involvement in prostitution or drug use, but saw people sleeping and selling drugs in the hallway. He claimed his only visitors were his niece, nephew, and Clayton's grandson. Defendant testified he never received a complaint regarding a disturbance during his ten-year tenancy before receiving the notice to cease. Clayton testified he resided in Irvington for approximately eight years and as proof produced his driver's license showing his address. He testified he visited defendant "[s]ometimes three times, four times a week" and spent nights at defendant's residence when they returned late from work together. He observed people sleeping in the hallway but denied knowing these individuals , or any involvement with prostitution or drug use. The judge credited Quinones' testimony that defendant violated the terms of the lease because Quinones saw "these people coming to 1C [who] were also A-4354-18T2 5 seen standing on the corner, propositioning people in the cars. . . . He's seen them . . . in the hallways of the property smoke crack, shoot up. There were two ladies and one guy, they go to [defendant's] apartment." Based on Quinones' testimony, the judge concluded Clayton also lived at the property because the frequency with which Quinones saw him was similar to the frequency of visitation according to Clayton's testimony. According to the judge, in addition to "hanging out in the hallway, sleeping in the hallway, and sleeping in common areas" Quinones testified he personally has witnessed drug paraphernalia, smoke, coming from people who are in the apartment. . . . However, he has not personally observed [defendant] doing drugs. Nonetheless these persons respond to any inquiry saying that they are there to visit the people in C1 and they are hanging around the property on a regular basis. The judge concluded the notices to cease and quit were adequate. As to the expired lease, the judge found defendant was "at best a hold over tenant." She rejected his argument there was no lease and noted "that that in and of itself is a guarantee of the lack of credibility of this tenant, because he's been there for over ten years, and obviously started with a lease, so they wouldn't have let him into the building to begin with." She concluded "that while the tenant himself may not be . . . using drugs, he is responsible for the conduct under the [c]ommon A-4354-18T2 6 [l]aw of those . . . invitees [of] the premises. Whether they be his direct invitees, or his indirect invitees of others whom he allows to stay at the property." On appeal, defendant argues the trial judge lacked jurisdiction to grant a judgment of possession because the notices to cease and quit were defective for the following reasons: (1) alcohol consumption was not a valid basis to issue the notice; (2) the notices and Quinones' testimony were not specific as to the dates the conduct complained in them occurred; (3) there was no evidence to corroborate the conduct set forth in the notices and Quinones' testimony regarding the prostitution, drug usage, or excessive noise near defendant's apartment; (4) there was no signed lease between the parties and therefore the terms of the lease cited in the notices did not apply; and (5) plaintiff accepted rent after issuing the notice to quit, which created a new tenancy and constituted a waiver of its claims. Defendant also claims the judge "failed to make adequate findings . . . , did not resolve disputed facts, interfered with defendant's right to cross-examination, and made conclusions not based upon the evidence." "'[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" In re Forfeiture of Pers. Weapons & Firearms A-4354-18T2 7 Identification Card Belonging to F.M., 225 N.J. 487, 506 (2016) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). The court's findings of fact are "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citation omitted). In contrast, a trial judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citation omitted). N.J.S.A. 2A:18-61.2 states notices for removal of a tenant "shall specify in detail the cause of the termination of the tenancy." The Legislature's purpose in requiring landlords to specify in detail the cause for termination is, in part, to allow tenants an adequate opportunity to prepare a defense before trial. The Legislature has also recognized a tenant's general right to know as much as possible about any eviction proceeding brought against him or her. The Legislature, thus, requires a landlord to specify in detail the cause for termination and the procedures that must follow. [Aspep Corp. v. Giuca, 269 N.J. Super. 98, 103-04 (Law Div. 1993).] In Carteret Props. v. Variety Donuts, Inc. the Supreme Court invalidated a notice which purported to terminate a tenancy "for the reason that you have committed a breach of that covenant in your lease providing that the store A-4354-18T2 8 premises aforesaid are 'to be used and occupied only for the retail sale of food and allied products.'" 49 N.J. 116, 124 (1967). The Court held "[s]uch notice does not satisfy the mandate of the statute. It merely states a legal conclusion." Ibid. Here, the notices served on defendant met the statute's requirement for specificity. Both notices explained the type of conduct the landlord complained of and quoted the portion of the lease prohibiting the conduct. Most importantly, the record demonstrates defendant was not at a disadvantage or without an adequate opportunity to prepare a defense due to the contents of the notices. We are also satisfied Quinones' testimony was specific enough to permit the trial judge to decide whether the conduct complained of in the notices was a violation of the lease. Although the consumption of alcohol was not grounds for termination of the lease, Quinones' testimony focused on the drug activity and individuals sleeping in the hallway whom he saw entering and exiting defendant's apartment. The judge found Quinones' testimony more credible than that of defendant and his brother. This was enough to resolve the matter and did not require further corroborative evidence. We reject defendant's argument there was no lease. His testimony corroborated the lease plaintiff presented and demonstrated his tenancy A-4354-18T2 9 commenced in October 2009. The expiration of the lease a year later did not terminate it and instead converted it to a month-to-month tenancy because defendant remained and continued to pay rent. N.J.S.A. 46:8-10. The terms of the lease continued to apply. "A month-to-month tenancy is a continuing relationship that remains unabated at its original terms until terminated by one of the parties." Harry's Vill., Inc. v. Egg Harbor Twp., 89 N.J. 576, 583 (1982). As the trial judge noted, defendant's argument was illogical because it failed to explain why plaintiff had allowed him to reside in the apartment for a decade without a lease. This argument is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Notwithstanding, the record is clear that plaintiff accepted rent from defendant after issuing the notice to quit. There was no indication defendant was behind on the rent. Indeed, the judge acknowledged in her opening remarks that "it's not a non-payment . . . case." "[T]he acceptance of rents after a [n]otice to [t]erminate constitutes a waiver as a matter of law." Royal Assocs. v. Concannon, 200 N.J. Super. 84, 90 (App. Div. 1985) (citing Carteret Props., 49 N.J. at 129). This issue was raised before the trial judge in defendant's motion to dismiss. The judge misapplied the law when she did not grant the motion. A-4354-18T2 10 Defendant's remaining arguments respecting the sufficiency of the judge's findings and the conduct of the trial lack merit, and do not warrant further discussion. R. 2:11-3(e)(1)(E). Reversed. We do not retain jurisdiction. A-4354-18T2 11	01-03-2023	04-08-2020
https://www.courtlistener.com/api/rest/v3/opinions/614570/	659 F.3d 619 (2011) UNITED STATES of America, Plaintiff-Appellee, v. Jack M. LEE, Defendant-Appellant. No. 10-3117. United States Court of Appeals, Seventh Circuit. Argued April 12, 2011. Decided October 3, 2011. John Michael Pellettieri (argued), Attorney, Department of Justice, Criminal Division, Washington, DC, for Plaintiff-Appellee. Lee Smith (argued), Attorney, Hinshaw & Culbertson LLP, Peoria, IL, for Defendant-Appellant. 620 Before KANNE and EVANS[], Circuit Judges, and CLEVERT, District Judge.[*] CLEVERT, District Judge. Jack M. Lee pleaded guilty in 1997 to multiple counts of fraud, money laundering, and perjury. He was sentenced to 78 months' imprisonment, five years of supervised release, and ordered to pay $1,587,321.50 in restitution and to forfeit $337,000.[1] By the time Lee completed his supervised release, most of the restitution remained unpaid. The government sought and received a turnover order targeting payments Lee had received from three retirement savings plans provided through his employer. Lee appeals that order contending that the government is entitled to no more than 25% of the distributions. Because the notice of appeal was filed 28 days after the turnover order was entered on the criminal docket, the court will take a suggested detour to address timeliness. Federal Rule of Appellate Procedure 4(b)(1) gives criminal defendants fourteen days to appeal following entry of the judgment or order being appealed. Fed. R.App. P. 4(b)(1)(A)(i). In a civil case to which the United States is a party, "the notice of appeal may be filed by any party within 60 days after the judgment or order being appealed from is entered." Fed. R.App. P. 4(a)(1)(B). Admittedly, "drawing the line between civil and criminal matters for purposes of Rule 4(b) is difficult because many appealable orders technically `in' criminal cases look more civil than criminalfrom the return of bond money to motions under 28 U.S.C. § 2255 that parallel the civil petition for a writ of habeas corpus." United States v. Taylor, 975 F.2d 402, 403 (7th Cir.1992). This court has held that district courts may entertain civil garnishment and other collection proceedings as postjudgment remedies within an underlying criminal case. United States v. Kollintzas, 501 F.3d 796, 800-01 (7th Cir.2007) ("[N]othing precludes the government from initiating a collection proceeding under an existing criminal docket number in order to collect a fine or restitution ordered as part of the criminal sentence."). In addition, appeals from orders in criminal cases may be treated as civil matters where they are collateral to criminal punishment. United States v. Apampa, 179 F.3d 555, 556 (7th Cir.1999). For example, an order denying a motion for return of property has been deemed civil, Taylor, 975 F.2d at 403, as has an order refusing to issue a "certificate of innocence" to a former defendant. Betts v. United States, 10 F.3d 1278, 1283 (7th Cir.1993). Here, the government sought the turnover order pursuant to the Mandatory Victims Restitution Act of 1996 ("MVRA"), which permits courts to enforce restitution orders using the same practices and procedures for the enforcement of a "civil judgment" under federal or state law. 18 U.S.C. § 3613(a). The order was entered after Lee served his term of supervised release and more than ten years following entry of judgment. To that end, the order 621 requiring the turnover of funds from Lee's retirement savings plans appears to be ancillary torather than a part ofthe core criminal case. The court construes Lee's appeal as governed by Rule 4(a)(1), and, therefore, timely. The targeted funds in dispute are defined as: (1) a defined benefit plan; (2) a 401(k) plan; and (3) a "non-qualified" plan. Lee will receive an annual mandatory payment estimated to be approximately $3,000 under the defined benefit plan as long as he works for his current employer. Under the 401(k) plan, Lee will receive an in-service distribution of approximately $38,000 and an annual mandatory payment of approximately $2,000. Finally, as to the non-qualified plan, Lee is ineligible for any benefit until he is terminated, retires, or dies. At that time his estate would receive payments over 60 months. However, the exact amount of the non-qualified plan funds available for distribution is unknown and dependent upon the success of his employer. Lee and the government agree that "any lump sum distribution he may receive from the plans is subject to turnover" and that the government cannot obtain any funds until he has a right to receive the funds from the retirement savings plans. However, Lee maintains that the Consumer Credit Protection Act ("CCPA") limits garnishment to 25% of the party's "aggregate disposable earnings of any individual workweek," 15 U.S.C. § 1673(a), and plainly subjects periodic payments to the 25% limitation. The district court held that the plan benefits, which are not paid in correspondence with an individual workweek, are not subject to the CCPA garnishment limitations. Noting a distinction between wages and assets that originated as wages, the court reasoned that the CCPA may limit payments from an employer to a retirement plan, but such funds are no longer restricted once the money entered the plan and distributions are received. The MVRA requires a sentencing court to impose restitution in the full amount of the victim's losses, United States v. Newman, 144 F.3d 531, 537 (7th Cir.1998), and this court has held that a district court may consider the defendant's retirement account as a source of funds to provide restitution. United States v. Hosking, 567 F.3d 329, 335 (7th Cir.2009). Specifically, the MVRA allows the government to enforce restitution fines "against all property or rights to property of the person fined." 18 U.S.C. § 3613(a). But, enforcement is not without limits and the CCPA establishes a garnishment ceiling of 25% of a debtor's "disposable earnings" for a week, or the amount by which the debtor's disposable earnings for that week exceed 30 times the federal minimum hourly wage, whichever is less. 15 U.S.C. § 1673(a). "Disposable earnings" are defined as "that part of the earnings of any individual remaining after the deduction from those earnings any amounts required by law to be withheld." 15 U.S.C. § 1672(b). The CCPA, in turn, defines "earnings" as "compensation paid or payable for personal services, whether denominated as wages, salary, commissions, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program." 15 U.S.C. § 1672(a) (emphasis added). Notwithstanding this plain language, the district court held that the CCPA was not intended to protect retirement distributions because they are not wages. The Supreme Court in Kokoszka v. Belford, 417 U.S. 642, 648, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974), cautioned that earnings do not pertain to every asset traceable in some way to compensation; however, the issue in Kokoszka was whether an income tax 622 refund check was subject to the 25% garnishment limitation. Id. at 648-49, 94 S.Ct. 2431. Neither the statutory language nor the legislative history or purpose supported treating the tax refund as earnings even though it was traceable to earnings. Unlike the reference to "periodic payments pursuant to a pension or retirement program," § 1672 does not mention tax refunds. The district court cited United States v. DeCay, 2009 WL 36623 (E.D.La.2009), a decision that was not reported, for its holding that the plan benefits subject to garnishment are not subject to the 25% limitation of the CCPA. However, DeCay was reversed one month after the district court issued its decision. The Fifth Circuit Court of Appeals held that the CCPA statutory limitation is unambiguous in that it defines "earnings" to include "periodic payments made pursuant to a pension or retirement program." United States v. DeCay, 620 F.3d 534, 544 (5th Cir.2010). Where a pension or retirement program authorizes payments, the payments are made "pursuant to" the fund and therefore constitute "earnings." Id. Hence, the government cannot garnish more than 25% of pension distributions. The statutory language refers to periodic payments, which describe the $2,000 and $3,000 annual payments from Lee's 401(k) and defined benefit pension plan. Although the statutory definition of "earnings" cover compensation paid or payable for personal services regardless of whether they are labeled as wages, salary, bonus or otherwise, the plain language also embraces "periodic payments made pursuant to a pension or retirement program." 15 U.S.C. § 1672(a). Black's Law Dictionary defines the term "pursuant to" as "in compliance with; in accordance with; under [or] ... as authorized by ... [or] in carrying out." Black's Law Dictionary 1356 (9th ed.2009). Given the unambiguous language of the statute, periodic payments from a pension or retirement savings plan made in accordance with its terms would be made "pursuant to" the pension or retirement plan and therefore be subject to the 25% limitation of the CCPA. For these reasons, the court VACATES the district court's order granting the government's motion for turnover and REMANDS for further proceedings consistent with this decision. NOTES [] Circuit Judge Evans died on August 10, 2011, and did not participate in the decision of this case, which is being resolved by a quorum of the panel under 28 U.S.C. § 46(d). [**] The Honorable Charles N. Clevert, Jr., Chief Judge of the United States District Court for the Eastern District of Wisconsin, sitting by designation. [1] When the government could not locate the $337,000 in Lee's disclosed assets, it attempted to seize his real estate, including Lee's wife's interest in the property. This court reversed the district court's forfeiture of the home finding that Lee's wife was entitled to the property during her lifetime, but affirmed the conviction. United States v. Lee, 232 F.3d 556 (7th Cir.2000).	01-03-2023	10-03-2011
https://www.courtlistener.com/api/rest/v3/opinions/2219644/	595 N.E.2d 103 (1992) 230 Ill. App.3d 503 172 Ill.Dec. 40 James A. PIERSALL, Plaintiff-Appellant, v. SPORTSVISION OF CHICAGO, an Illinois joint venture, Edward Einhorn, Jerold Reinsdorf, National Broadcasting Company, Inc., an owned and operated subsidiary of RCA Corp., d/b/a WMAQ Radio, Defendants-Appellees. No. 1-90-1963. Appellate Court of Illinois, First District, First Division. May 26, 1992. 104 Law Offices of Joseph V. Roddy, Chicago (Joseph V. Roddy, of counsel), for plaintiff-appellant. Katten Muchin & Zavis, Chicago (Donald E. Egan, Kirk T. Hartley and Carole J. Ryczek, of counsel), for defendants-appellees. Justice CAMPBELL delivered the opinion of the court: Plaintiff, James Piersall (Piersall), appeals from an order of the circuit court of Cook County granting summary judgment in favor of defendants, Jerry Reinsdorf (Reinsdorf) and Edward Einhorn (Einhorn) as to counts I, II, and IV of his amended complaint.[1] Counts I and II alleged that Reinsdorf and Einhorn tortiously interfered with Piersall's business relationship and contract with WMAQ radio, and count IV alleged that Reinsdorf libeled Piersall by calling him a liar.[2] On appeal, plaintiff contends that: (1) he sufficiently alleged a cause of action against Reinsdorf for defamation in count IV of his amended complaint, and (2) that counts I and II are sufficient to show that Reinsdorf engaged in tortious interference of contract. Reinsdorf cross-appeals, alleging that the trial court erred in permitting the continued prosecution of this action in light of Piersall's alleged unverified answers to interrogatories. For the following reasons, we affirm the judgment of the trial court. The record discloses the following relevant facts. Piersall is a former All-Star major league baseball outfielder. In 1981, Reinsdorf and Einhorn, owners of the Chicago White Sox baseball team, hired Piersall for the 1981 and 1982 baseball seasons as a broadcast commentator on "SportsVision," a cable television program that they owned and operated. During that time, Piersall was also employed by NBC-owned radio station WMAQ as an announcer and talk show host. On April 5, 1983, following the first White Sox game of the season, Einhorn and Reinsdorf discharged Piersall as a SportsVision broadcaster. On September 19, 1983, in the course of interviews after the game in which the White Sox clinched the 1983 American League Western Division title, reporters asked Reinsdorf about Piersall and Harry Caray, another former White Sox announcer. In response to questions posed by reporters, Reinsdorf was quoted as making the following statements about Piersall and Caray: "I don't mind criticism, but they both told a lot of lies. They wanted us to lose. They thought they were bigger than the club and did not want the attraction shifting to the field." (Chicago Sun-Times, September 19, 1983); and "The public could not know the truth about them; they are both liars. They both said things on the air they knew were not true." (Chicago Tribune, September 19, 1983). On the following day, September 20, 1983, during a radio interview on the Wally Phillips Show, Reinsdorf stated: "But I also think people would not have listened to these two people if they had realized what kind of character they actually had and I just felt that I wanted to go public because I don't mind criticism but what I have never been able to understand [is] lying and they just lied." The above remarks are the subject of the alleged libel in, count IV of Piersall's amended complaint. 105 On November 2, 1983, Piersall was discharged from his WMAQ talk show host position. In counts I and II, Piersall contends that Reinsdorf conspired to interfere with his business relationship with WMAQ and coerced WMAQ's management into terminating his employment contract. Defendants presented a motion for summary judgment on counts I, II, and IV, and submitted a number of affidavits and depositions in support thereof. The trial court granted defendants' motion, concluding that there were no facts that would support a finding of actual malice on the defamation count and that there was no evidence of tortious interference. This timely appeal followed. Piersall contends that the trial court erred when it granted summary judgment as to the defamation action contained in count IV of the amended complaint. Piersall concedes that he is a public figure, and argues that he has proved that Reinsdorf's statements were made with "actual malice" as required by New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and extended to public figures in Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094. To establish actual malice, a defamation plaintiff must show that (1) the utterance was false and (2) that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true. (New York Times, 376 U.S. at 280, 84 S.Ct. at 726.) "Reckless disregard" has been defined as proceeding to publish the defamatory matter despite a high degree of awareness of probable falsity or entertaining serious doubts as to its truth. St. Amant v. Thompson (1968), 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262; Mittelman v. Witous (1989), 135 Ill.2d 220, 142 Ill.Dec. 232, 552 N.E.2d 973. The burden of proving malice is on the party claiming injury. (Vantassell-Matin v. Nelson (N.D.Ill.1990), 741 F.Supp. 698, 706.) This burden is not satisfied by the bare allegation that a defendant acted maliciously and with knowledge of the falsity of the statement; the plaintiff must allege facts from which actual malice may be inferred. Vantassell, 741 F.Supp. at 706 (citing American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill.App.3d 626, 632, 62 Ill.Dec. 325, 435 N.E.2d 1297). At the summary judgment stage, a judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. (Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202.) When a motion for summary judgment is made by a defendant in a defamation case, the plaintiff must set forth by "clear and convincing" evidence that there is a genuine issue of material fact as to whether the defendant made an alleged defamatory statement with actual malice. (Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Reed v. Northwestern Publishing Co. (1988), 124 Ill.2d 495, 512, 125 Ill.Dec. 316, 324, 530 N.E.2d 474, 482.) Summary judgment may be granted in favor of the defendant where the plaintiff has failed to raise a triable issue of fact by presenting clear and convincing evidence that the defendant made his allegedly libelous statements with actual malice. (Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.) The party opposing summary judgment cannot rely upon his complaint or answer alone to raise a genuine issue of material fact. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 380, 313 N.E.2d 457. Reinsdorf argues that the granting of summary judgment was proper because there was no genuine issue of material fact over whether he made his statements with actual malice. In his amended complaint, Piersall alleged that Reinsdorf "falsely and maliciously, with the intent to injure and destroy Piersall's good name * * * made certain false and defamatory remarks." Reinsdorf supported his motion for summary judgment with his own sworn affidavit wherein he delineated a number of statements made by Piersall that Reinsdorf knew were not true, and that Reinsdorf had in mind at the time that he made the statements that Piersall was a liar. 106 In his response to the motion for summary judgment, Piersall relied upon the allegations of his amended complaint supported by his own affidavit. Therein, Piersall admitted to making a number of the statements, knowing them to be untrue, but insisting in some instances that the statements were made in jest. For example, Reinsdorf states in his affidavit that in 1981, in the course of a television interview, Piersall said that the wives of the baseball players did not understand the game of baseball and were merely "horny broads * * who say yes very easily." Reinsdorf testified that he had met and knew the wives of various baseball players and thought that Piersall's statement was false. Piersall responds that this statement was "a quick pop goofy answer" to an interview question, and admits that the White Sox suspended him for making the remark. Reinsdorf testifies to various statements by Piersall regarding Tony LaRussa, the White Sox' manager, that he knew to be untrue. After the "horny broads" statement, Piersall made a statement to the effect that LaRussa threatened Reinsdorf that he would not bring the White Sox players onto the field if Piersall was in the broadcasting booth. Reinsdorf knew that LaRussa had not made that threat to Piersall. Piersall admits that he made the statement about LaRussa based upon information he received from a young White Sox intern, whom he did not know by name, and that he had no other indication that the players were being kept off the field. Piersall also admits that the players were not kept off the field. On September 10, 1981, Reinsdorf saw a newspaper article which quoted Piersall as saying on a television broadcast, "I have never ripped Tony LaRussa on the air." Reinsdorf stated that he heard Piersall criticize LaRussa on the air too many times to count in broadcasts prior to September 10, 1981. Piersall admits that he did criticize LaRussa during broadcasts prior to September 10, 1981. Reinsdorf further testifies that Piersall made an untrue statement regarding an altercation he had had with sportswriter Bob Gallas in 1980. On Piersall's call-in radio program on May 22, 1983, Piersall denied choking Gallas, insisting instead that he held Gallas for only three seconds. Reinsdorf relied, however, on newspaper reports and eyewitness accounts of the altercation, wherein it was described that Piersall choked Gallas and had to be pulled off of him by Art Kusnyer, a White Sox coach. On the basis of these accounts, and knowing that Kusnyer was the strongest man in the clubhouse, Reinsdorf believed that Piersall lied when he gave his own account of the Gallas incident on the radio program. Piersall did not recall the 1983 radio program, but states that this is one example of an instance where Reinsdorf failed to investigate the truth of the situation by asking him personally what had occurred instead of relying on newspaper accounts. In addition, Reinsdorf states, in February 1983, in response to a question about a recent White Sox trade, Piersall stated, "there is no one in the White Sox organization smart enough to hold a gun to anyone's head." Reinsdorf testified that he had personal knowledge that a number of people in the White Sox organization were intelligent enough to make a good trade. Piersall admitted to making the statement, stating that he did not believe the statement at the time he made it, and thought that he was "making a joke." Reinsdorf also relies on Piersall's statement that "the writers for The Sun Times were a bunch of alcoholics." Piersall admits that he made the statement and that he was told that he could not "use the White Sox network to get back at somebody." Piersall's argument that Reinsdorf's "failure to investigate" is evidence of malice is unpersuasive. In Costello v. Capital Cities Communications, Inc. (1988), 125 Ill.2d 402, 126 Ill.Dec. 919, 532 N.E.2d 790, the Illinois Supreme Court held that "failure to investigate does not itself establish actual malice if the defendants did not seriously doubt the truth of [his] assertions." 107 Costello, 125 Ill.2d at 421, 126 Ill.Dec. 919, 532 N.E.2d 790. In the present case, Piersall has presented no facts which clearly and convincingly show that Reinsdorf seriously doubted the truth of his statements. The record indicates that it is undisputed that Piersall made a number of untrue statements. Although the trial court was very generous in allowing Piersall to engage in discovery over eight years of litigation, Piersall has not submitted any evidentiary facts showing that Reinsdorf entertained serious doubts that Piersall did not tell the truth. Nothing in the record, even with the benefit of reasonable inferences, supports a finding of knowing falsity on Reinsdorf's part. Therefore, Piersall has not established a genuine issue of material fact as to whether Reinsdorf acted with actual malice. Piersall similarly fails to show that Reinsdorf's various statements are actionable per se as unprotected expressions of opinion. Piersall argues that a statement that someone is a "liar" is libel per se. We agree with the trial court that the general statement that someone is a liar, not being put in context of specific facts, is merely opinion. In libel actions, words are considered defamatory per se where they: (1) impute the commission of a criminal offense; (2) impute infection with a loathsome communicable disease; (3) impute inability to perform or want of integrity in the discharge of duties of office or employment; or (4) prejudice a party, or impute lack of ability in his trade, profession or business. Mittleman, 135 Ill.2d at 238-239, 142 Ill.Dec. 232, 552 N.E.2d 973. The distinction between fact and opinion is a matter of law. (Brown & Williamson Tobacco Corp. v. Jacobson (N.D.Ill.1986), 644 F.Supp. 1240, 1256.) A written or oral statement is to be considered in factual context, with the words and the implications therefrom given their natural and obvious meaning. To determine whether a statement is fact or opinion, a court must evaluate the totality of the circumstances and should consider whether the statement is capable of objective verification as true or false. Brown & Williamson, 644 F.Supp at 1256. In reliance on Fried v. Jacobson (1983), 99 Ill.2d 24, 75 Ill.Dec. 398, 457 N.E.2d 392, Piersall argues that the statement "Piersall is a liar" is libelous per se because the statement imputes to Piersall a want of integrity in the discharge of his business. (99 Ill.2d at 24, 75 Ill.Dec. 398, 457 N.E.2d 392.) However, in Fried, the defendants made specific charges about the plaintiff with reference to specific facts that plaintiff alleged were not true. Piersall's further reliance on Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1, is unavailing. There, a newspaper reporter wrote an article in which he implied that Milkovich, a high school wrestling coach, lied under oath at a judicial proceeding about an incident involving Milkovich and his wrestling team. The Court held that the connotation that Milkovich committed perjury is sufficiently factual to be susceptible of being proved true or false, as the alleged defamatory language is an articulation of an objectively verifiable event. (Milkovich, 110 S.Ct. at 2707.) The Court explained that summary judgment was improper because the truth or falsity of the statement could be answered by comparing the hearing testimony before the school board with the plaintiff's subsequent testimony before the trial court. Piersall relies on Milkovich for dicta wherein the Court concludes that the sentence "Jones is a liar" may imply a false assertion of fact, even if those specific facts are either incorrect or incomplete, or if the speaker's assessment of them is erroneous. (Milkovich, 110 S.Ct. at 2705-06.) However, in the present case, there are no specific facts at the root of Reinsdorf's statement, complete or incomplete, capable of being objectively verified as true or false. Similarly, in a recent case, this court found the statement "He lies a lot" to be libelous per se only because the statement was made in response to a statement made 108 by the plaintiff about facts that the defendant knew not to be true. (Pease v. International Union of Operating Engineers Local 150 (1991), 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614.) There, a newspaper reporter interviewed Dugan, a representative of defendants' union, regarding a charge made by Pease that defendants engaged in acts of vandalism. In response to a reporter's question Dugan stated: "He lies a lot." The court held statement was libel per se because it was made in a specific factual context. Piersall does not cite any authority for his contention that without a factual basis surrounding a statement, a statement that a plaintiff is a "liar" can amount to libel per se. Therefore, the trial judge properly determined that Reinsdorf's statements were opinion, and properly granted summary judgment in his favor. Next, as alleged in counts I and II of his amended complaint, Piersall contends that defendants conspired to tortiously interfere with his business relationship with WMAQ and caused his contract cancellation. Piersall argues for the first time on appeal that the alleged defamatory statements made by Reinsdorf contributed to the cancellation of his contract, and that these allegations are "tangential" to the defamation allegation. We note that issues not raised in the trial court are generally considered waived on appeal. Fawcett v. Reinertsen (1989), 131 Ill.2d 380, 386, 137 Ill.Dec. 613, 615, 546 N.E.2d 558, 560. Notwithstanding such waiver, Piersall has failed to meet the standard of proof on summary judgment that a genuine material issue of fact remains to be resolved at trial. In determining whether a moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent. (In re Estate of Whittington (1985), 107 Ill.2d 169, 90 Ill.Dec. 892, 483 N.E.2d 210.) If facts are undisputed on motion for summary judgment, inferences may be drawn from such facts to determine if defendant is entitled to judgment as a matter of law. Purdy Co. of Illinois v. Transportation Ins. Co. (1991), 209 Ill. App.3d 519, 154 Ill.Dec. 318, 568 N.E.2d 318. In their summary judgment motion, defendants attached numerous affidavits and depositions of WMAQ personnel stating that Reinsdorf had nothing to do with Piersall's termination. Piersall failed to present any evidence or affidavits to refute these facts. Thus, the trial properly granted summary judgment on the tortuous interference claims. Finally, defendants contend on cross-appeal that the trial court should have dismissed this action earlier and not wasted their valuable legal resources because Piersall failed to file verified answers to interrogatories during discovery. This cross-appeal is inappropriate. A party who has obtained by judgment all that was sought in the trial court cannot appeal that judgment. (People ex. rel Buffalo Grove v. Long Grove (1988), 173 Ill.App.3d 946, 122 Ill.Dec. 411, 526 N.E.2d 670.) It is the judgment that gives rise to an appeal and not what else may have been said by the trial court. (Buffalo Grove, 173 Ill.App.3d at 953, 122 Ill.Dec. 411, 526 N.E.2d 670 (citing Material Services Corp. v. Department of Revenue (1983), 98 Ill.2d 382, 387, 75 Ill.Dec. 219, 222, 457 N.E.2d 9, 12).) Specific findings adverse to the Appellee do not require a cross-appeal as long as the judgment was entirely in favor of the Appellee. (Buffalo Grove, 173 Ill.App.3d at 953, 122 Ill.Dec. 411, 526 N.E.2d 670.) In the present case, the trial court granted summary judgment entirely in defendants' favor. Thus, defendants' cross-appeal is dismissed. For the reasons set forth above, the judgment of the trial court is affirmed and defendants' cross-appeal is dismissed. Affirmed. BUCKLEY, P.J., and O'CONNOR, J., concur. NOTES [1] Piersall brought this action in 1984 against SportsVision of Chicago, Reinsdorf and Einhorn as its principals, and National Broadcasting Company (NBC) d/b/a WMAQ for wrongful discharge, and against Einhorn and Reinsdorf for defamation. The trial court dismissed the wrongful discharge claims against NBC/WMAQ and SportsVision, and dismissed an earlier defamation claim against Reinsdorf. Piersall does not appeal from these orders of dismissal. [2] At oral argument, plaintiff waived any relief against Einhorn on any count, having failed to argue any issues against him.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/696639/	55 F.3d 1420 ST. PAUL FIRE & MARINE INSURANCE COMPANY, a Minnesotacorporation, Plaintiff-Appellee,v.F.H.; K.W.,* Defendants-Appellants. No. 93-35746. United States Court of Appeals,Ninth Circuit. Argued and Submitted August 1, 1994.Decided May 26, 1995. Sanford M. Gibbs, Anchorage, AK, for plaintiff-appellee. Michael J. Schneider, Christopher W. Rose, Law Offices of Michael J. Schneider, Anchorage, AK, for defendants-appellants. Appeal from the United States District Court for the District of Alaska. Before: PREGERSON, CANBY and BOOCHEVER, Circuit Judges. CANBY, Circuit Judge: 1 * F.H. and her son K.W. appeal a district court order granting St. Paul Fire and Marine Insurance Company summary judgment in this declaratory judgment action. The district court held that an insurance policy St. Paul issued to Big Brothers and Big Sisters of Alaska (BB/BS) does not provide coverage to BB/BS executive director Kenneth McQuade for damages arising out of McQuade's sexual abuse of K.W. We reverse and remand for further proceedings. II 2 From 1979 until late summer or early fall of 1984, McQuade was executive director of Big Brothers/Big Sisters in Juneau. His duties included supervision of the program in which volunteer "Big Brothers" and "Big Sisters" acted, as their name implies, as advisors, role models and confidants of boys and girls who qualified as "Little Brothers" or "Little Sisters." McQuade's duties included: interviewing volunteers and children and their parents to determine whether the volunteers and children met the requirements of the program; matching Big and Little Brothers and Sisters; supervising those matches; and interpreting the general program to the community. McQuade first came into contact with K.W. because K.W.'s siblings were in the program, and he later matched himself to K.W. as K.W.'s Big Brother. Beginning before that match, and continuing until his arrest in 1986, McQuade sexually abused K.W. 3 In 1986, F.H. brought a civil action in Alaska Superior Court against BB/BS and McQuade, seeking damages for various compensable injuries sustained by F.H. and K.W. Both BB/BS and McQuade tendered defense of the action to BB/BS's insurance carrier, St. Paul. St. Paul accepted BB/BS's tender, but rejected McQuade's. In 1987, the Alaska Superior Court granted BB/BS's motion for partial summary judgment on the ground that it was not liable under the doctrine of respondeat superior for McQuade's acts of sexual abuse. Subsequently, F.H. settled her claims against BB/BS and dismissed BB/BS from the litigation. 4 F.H. later entered into a settlement agreement with McQuade. Under this agreement, McQuade entered confessed judgments of $969,721.25 and $157,650.13 in favor of K.W. and F.H., respectively, and assigned to them any rights he might have had against St. Paul as a result of his sexual abuse liability. In exchange, K.W. and F.H. agreed not to execute against McQuade on the confessed judgments.1 Following F.H. and K.W.'s settlement with McQuade, St. Paul filed this declaratory judgment action against F.H. and K.W. in the United States District Court, seeking a declaration that McQuade was not an insured under any St. Paul policy, that St. Paul did not provide coverage to McQuade for acts of sexual abuse, that St. Paul did not owe a duty of defense to McQuade, and that no rights that McQuade transferred to F.H. and K.W. were enforceable against St. Paul. F.H. and K.W. filed a counterclaim seeking a declaration that McQuade's acts of sexual abuse were covered by St. Paul's insurance policies and seeking damages from St. Paul. St. Paul then moved for summary judgment, and F.H. and K.W. filed a cross-motion for summary judgment. 5 The district court granted summary judgment in favor of St. Paul, reasoning (1) that it is against Alaska's public policy to permit a person to be insured against a claim of sexual abuse, and (2) that although the policy permitted coverage of executive employees where the claim was for a violation of law, the policy did not protect executive employees for non-accidental injuries, particularly where their intentional act causes the injury. 6 F.H. and K.W. appeal the district court's judgment. They contend that they are entitled to a declaration that St. Paul had a duty to defend and indemnify McQuade under the professional liability policy it sold to BB/BS. 7 We review de novo a district court's grant of summary judgment. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Viewing the evidence in the light most favorable to the non-moving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Botefur v. City of Eagle Point, 7 F.3d 152, 154 (9th Cir.1993). III 8 During the relevant period, St. Paul insured BB/BS under two policies, a general liability policy and a professional liability policy. It is the professional liability policy that is in issue here. That policy contained a section entitled "Who's Protected Under This Agreement." It stated, in pertinent part: 9 The named insured shall include any individual or organization named in the Coverage Summary [i.e., BB/BS]. It also includes any partner, executive officer, director, stockholder or employee working for you within the scope of their duties. 10 This policy also includes each volunteer big brother and big sister individually as additional insureds for claims arising from accidental events that were neither expected nor intended by the individual volunteer big brother or big sister and occurring as a result of their activities as volunteer big brothers and big sisters. There is no coverage for the individual big brother and big sister if the event is in violation of any Federal, State, or Local law. This specific exclusion does not apply to the other insureds named in this agreement. 11 (Emphasis added). 12 St. Paul contends that these provisions are unambiguously intended to exclude coverage of volunteer Big Brothers and Sisters for criminal acts, but to protect BB/BS and its directors and employees from any liability that might accrue to them because of the criminal acts of volunteers. These provisions may indeed have that effect, but they do not in terms limit themselves to that application. They do not say that employees are protected from liability for criminal acts of others. They say that the exclusion for criminal acts does not apply to employees of BB/BS like McQuade. And in this case, unlike the example that forms the basis of St. Paul's argument, McQuade was an employee when he met K.W., interviewed and matched him, and for most of the time that he was K.W.'s Big Brother. By its plain language, the exclusion for criminal acts simply does not apply to McQuade as an employee of BB/BS. 13 There is no question what kind of criminal acts the parties had in mind when they entered the professional liability insurance agreement. The policy was marketed as part of a special package designed for Big Brother/Big Sister organizations by St. Paul and marketed through its agent Jack L. Kirby. In his memorandum describing the policy, Kirby stated: 14 Most of you are aware of the growing number of lawsuits alleging child molesting being brought against the Big Brother/Big Sister agencies and their officers and directors.... 15 * * * * * Professional liability insurance with general liability insurance is the only certain method of insuring against child molesting claims. Regardless of how the suit is filed and what allegations are made, the combination of those two policies will ensure proper coverage. 16 The insureds in the general liability and professional liability policy are: 17 1. The agency. 18 2. The officers and directors. 19 3. The employees of the agency. 20 4. The Big Brother/Big Sister volunteer, but they are not covered for illegal acts. The other insureds do have coverage for illegal acts. 21 * * * * * 22 (Emphasis in original). 23 In interpreting the policy, we must look both to the policy's language and to Kirby's representations of the policy coverage. INA Life Ins. Co. v. Brundin, 533 P.2d 236, 242 (Alaska 1975). From the terms of the policy and the description in Kirby's marketing memorandum, an employee in McQuade's position had every right to expect that he was not excluded from coverage for criminal acts. See Serradell v. Hartford Accident & Indem. Co., 843 P.2d 639, 641 (Alaska 1992) (policy covers if a lay person in a lay interpretation would have reasonably expected it to provide coverage). The policy and the memorandum say as much. There is no exclusion, as there was in Allstate Ins. Co. v. Roelfs, 698 F. Supp. 815, 820 (D.Alaska 1987), for liability arising from intentional acts. Quite the contrary, employees are explicitly not excluded from coverage for illegal acts, and it is clear that sexual abuse was the illegal act primarily in contemplation of the parties. Even if there were doubt, the most that could be said is that the policy terms were ambiguous. In that case, they must be construed against the insurer. U.S. Fire Ins. Co. v. Colver, 600 P.2d 1, 3 (Alaska 1979); Bering Strait School Dist. v. RLI Ins. Co., 873 P.2d 1292, 1295 (Alaska 1994). IV 24 The district court's order was also based on the court's belief that Alaska's public policy would not allow McQuade to be insured for a claim of sexual molestation. In support of this proposition, the court cited Allstate Ins. Co. v. Roelfs, 698 F. Supp. at 820-21, n. 6. However, Roelfs supports only the proposition that, under Alaska law, where an insurance policy contains an explicit exclusion for bodily injury intentionally caused by an insured, intent to cause injury can be inferred as a matter of law from an act of sexual assault. Id. at 820. St. Paul's policy does not contain an exclusion for bodily injury intentionally caused by an insured, and thus Roelfs does not apply. 25 It is true, as St. Paul argues, that Alaska recognizes a general public policy against insuring a person against liability for his or her intentional acts. See Dairy Queen v. Travelers Indem. Co., 748 P.2d 1169, 1172 (Alaska 1988) (principles of public policy deny insured right to recover when he or she intentionally sets fire to property); see also Couch on Insurance 2d (Rev. ed.) Sec. 39.15 (1985). To this principle, however, there is an exception that the Alaska courts have not yet addressed. Several courts have held that, when liability insurance is designed to compensate innocent third parties for injuries caused by the intentional misconduct of insureds, it may indemnify without violating public policy. This exception is particularly applicable where it is unlikely that insurance coverage induced the insured to engage in misconduct. 26 For example, in Vigilant Ins. Co. v. Kambly, 114 Mich.App. 683, 319 N.W.2d 382 (1982), a Michigan court of appeals held that a doctor's professional liability insurance policy covered payment of damages to a patient whom the doctor had sexually abused. The court reasoned that "it is unlikely that the insured was induced to engage in the unlawful conduct by reliance upon the insurability of any claims arising therefrom or that allowing insurance coverage here would induce future similar unlawful conduct by practitioners." Id. 319 N.W.2d at 385. The prime advantage of coverage is that the innocent victim will be compensated. See id. 27 A number of courts have agreed with the reasoning of Kambly and have held that public policy permits innocent victims of insureds' intentional misconduct to be compensated by the insureds' professional liability policies. See, e.g., St. Paul Fire & Marine Ins. Co. v. Jacobson, 826 F. Supp. 155, 164-65 (E.D.Va.1993) (public policy does not forbid patients from being compensated by doctor's professional liability policy for doctor's intentional insemination of them with his own sperm), aff'd, 48 F.3d 778 (4th Cir.1995); St. Paul Fire & Marine Ins. Co. v. Shernow, 222 Conn. 823, 610 A.2d 1281, 1285-86 (1992) (public policy does not prohibit indemnity for compensatory damages flowing from dentist's intentional sexual assault of patient); St. Paul Fire & Marine Ins. Co. v. Asbury, 149 Ariz. 565, 720 P.2d 540, 542 (App.1986) (because Arizona public policy favors compensating injured persons, victims of doctor's sexual abuse can be compensated through his professional liability policy). 28 The reasoning of Kambly and its progeny is applicable in this case. St. Paul's policy was clearly designed to compensate victims of sexual abuse, and to indemnify for such liability. It is unlikely that the availability of insurance coverage induced McQuade sexually to abuse K.W. He faced disgrace and severe criminal penalties as illustrated by his conviction and substantial prison sentence. It is equally unlikely that other professionals will be induced to commit sexual abuse if we allow coverage for sexual abuse here. Public policy concerns against allowing McQuade to avoid civil liability by reason of insurance coverage are outweighed by the advantages of assuring that his victim, K.W., will be compensated for the injuries McQuade caused. While no Alaska case addresses compensation of innocent third parties in this specific situation, the Alaska Supreme Court in a different context has permitted insurance to compensate an innocent victim for an injury intentionally caused by an insured. See Atlas Assurance Co. of America v. Mistic, 822 P.2d 897, 899-900 (Alaska 1991) (when insured intentionally burned down his own house, innocent coinsured allowed to collect her half of proceeds). We conclude that the Alaska Court would similarly permit compensation of the victims here. Alaska public policy, therefore, does not prohibit K.W. and F.H. from being compensated under the St. Paul policy for injuries caused by McQuade's sexual abuse of K.W. V 29 St. Paul argues, however, that even if McQuade is not excluded from coverage because the injuries arose from his own acts of sexual abuse, he still does not qualify under the policy as an insured with regard to those acts. The coverage section of the policy provides that the named insured "includes any ... executive officer, ... or employee working for you within the scope of their duties." (Emphasis added). St. Paul argues that sexual abuse cannot possibly have been within the scope of McQuade's duties. 30 We do not view the scope of duties that narrowly, however. The phrase is not further defined in the policy, and a reasonable insured could expect it to cover him for liability arising out of the functions of his employment, even though the ultimate acts causing injury were personal. Several activities of McQuade led to the injury. He met K.W. in the course of his duties, and the relationship clearly began as a result of McQuade's exercise of his duties as executive director of BB/BS. He interviewed K.W. and was responsible for placing him in a Big Brother-Little Brother relationship. McQuade certainly had a duty within the scope of his employment to place K.W. with someone other than a pedophile. He also had a duty to screen potential Big Brothers. The fact that McQuade placed K.W. with himself was a cause of the abuse that followed. Indeed, even acting as a Big Brother easily fits within the scope of McQuade's duties. One of his explicit functions as executive director was to interpret the BB/BS program to the community. It hardly exceeds the scope of that duty for McQuade to be an example and serve as a Big Brother himself. And his duty in that Big Brother relationship is to guide and nurture K.W., not to abuse him. Thus there were several failures of McQuade, committed in the scope of his employment, that acted as causes of the abuse of K.W. 31 St. Paul argues that the third amended complaint of F.H. and K.W. is a transparent attempt to allege negligent failure of employment duties when the real damage was intentional. But this fact does not alter the analysis. There is no exclusion in the policy from coverage for intentional acts. There is an exclusion for criminal acts, but employees like McQuade are explicitly excepted from that exclusion. One reasonable gloss that an insured may put on that exception for employees is that there must be some criminal acts committed in the scope of their employment duties for which the employees are covered. Thus the fact that McQuade's failures properly to place K.W., to supervise that placement, to screen K.W.'s Big Brother, and to guide K.W. as a Little Brother, were intentional does not operate to exclude them from coverage. 32 We conclude, therefore, that McQuade committed several acts within the scope of his employment that caused the ultimate abuse of K.W. Those acts fell within the coverage specified by the policy for employees of BB/BS, and were not excluded by the clause relating to criminal acts. VI 33 Finally, St. Paul argues that F.H. and K.W. are collaterally estopped by a ruling of the Alaska Superior Court from arguing that McQuade's acts of sexual abuse occurred within the scope of his duties as executive director of BB/BS. The ruling in question is the Superior Court's partial summary judgment in favor of BB/BS, holding that BB/BS was not liable to F.H. and K.W. on a theory of respondeat superior. 34 We conclude that F.H. and K.W. are not collaterally estopped. The partial summary judgment was not a final judgment. As a partial summary judgment, it could not have been appealed by F.H. and K.W. when it was entered. It was subject to reconsideration on proper motion. Alaska Civil Rule 54(b). The partial summary judgment, of course, would have become a final and appealable order if the litigation had gone to final judgment, but settlement intervened. We cannot say that the ruling was " 'sufficiently firm to be accorded conclusive effect.' " Briggs v. State Dep't of Public Safety, 732 P.2d 1078, 1082 (Alaska 1987) (quoting Restatement (Second) of Judgments Sec. 13 (1982)). We do not view the partial summary judgment on the same plane with the exhaustive decision, after full trial, given collateral estoppel effect in Borg-Warner v. Avco Corp., 850 P.2d 628 (Alaska 1993). Borg-Warner relied on Chemetron Corp. v. Business Funds, Inc., 682 F.2d 1149, 1190-92 (5th Cir.1982), another fully-tried case in which the court gave effect to the judgment despite the fact that the ministerial act of entry had not occurred. The Superior Court's ruling in this case never approached that stage. The court could, on its own initiative, revise the order at any time before judgment.2 35 We conclude, therefore, that F.H. and K.W. are not collaterally estopped from asserting that McQuade's actions within the scope of his duties as executive director of BB/BS caused their compensable injuries. VII 36 Because BB/BS's professional liability policy may be construed by a reasonable insured to create an expectation that it provides coverage for claims arising from McQuade's sexual abuse of K.W., we conclude that it does provide such coverage. We also hold that Alaska public policy does not prohibit that coverage in the circumstances of this case. St. Paul had a duty to defend and indemnify McQuade under the circumstances of this case. We therefor reverse the district court's summary judgment in favor of St. Paul, and remand for further proceedings consistent with this opinion. 37 REVERSED AND REMANDED. * In the interest of victim privacy, the names of defendants-appellants have been abbreviated to initials throughout this opinion 1 The validity of the settlement agreement has not been raised as an issue on this appeal, and we express no opinion concerning it 2 See also Luben Industries, Inc. v. United States, 707 F.2d 1037, 1040 (9th Cir.1983) (district court did not abuse its discretion in determining that non-appealable interlocutory opinion that was subject to revision upon proper motion did not have collateral estoppel effect); Avondale Shipyards, Inc. v. Insured Lloyd's, 786 F.2d 1265, 1269-72 (5th Cir.1986) (interlocutory order granting partial summary judgment that was non-appealable and subject to revision did not have collateral estoppel effect); Aetna Casualty & Surety Co. v. Fairchild, 620 F. Supp. 1245, 1249 (D.C.Idaho 1985) (because a state court's entry of partial summary judgment is open to review and non-appealable, it does not have collateral estoppel effect)	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/3988471/	At the time the plaintiff herein applied to this court for a writ of prohibition, one of the impelling reasons for the issuance of the writ was that a judgment against the defendants as an association and the individual members thereof had been entered and a motion for a new trial then pending had been submitted, was under advisement by another of the judges of the Third Judicial District Court. While this status prevailed the seven defendants in this action filed a motion before another judge of the same court to set aside the judgment as to these seven defendants. The practice of splitting a case up and getting conflicting elements of the same problem before different judges of the same court cannot be commended. The application for a writ of prohibition with a writ of certiorari in aid thereof to prohibit the District Court from passing on motions made by the defendants after the motion for a new trial had been taken under advisement has brought before us a voluminous record. Upon argument the issue was narrowed not to a question of jurisdiction but as to what judgment might be rendered under the jurisdiction acquired by the court as shown by the record. This matter as thus stated we feel is not before us. From the returns of the process servers of the summons and the findings of the trial court it is shown that John Lloyd was served personally; that Amalgamated Meat Cutters and Butcher Workmen of North America, an unincorporated association, was served by delivering a true copy of the summons to Harry P. Harter, its secretary, that all Page 95 the members of local No. 311 of the above-named organization were served by delivering a true copy of the summons to Harry F. Harter, secretary, etc. Like returns as to all of the organizations and members thereof are in the record. After judgment a motion for a new trial on behalf of all was filed, heard, and taken under advisement. After the issuance of the writ of prohibition herein, directed to another of the judges of the court, the trial court having the motion for a new trial under advisement granted the motion for a new trial as to all the parties to the action. Defendants herein argue that the question has become moot. Whether this be so or not, the record discloses the trial court had acquired jurisdiction of the cause and for certain purposes jurisdiction of the parties. Whether the court upon the evidence may enter a judgment against all or any of the defendants is not before us, and may depend upon what the evidence shows. If the trial court had jurisdiction to grant a new trial as to all of the defendants as defendants' counsel argues, and the judgments as to all defendants having been set aside, there is no occasion for another judge of the same court to set aside the same judgment as to part of the defendants. It appears counsel are not distinguishing between the jurisdiction of the court over the parties served or who have conferred jurisdiction by a general appearance, and what judgment may be entered upon the evidence. Aside from the matter of a general appearance and who had authority to make such appearance and for whom, the record and returns upon the summons served indicated a compliance with Section 104-3-26, Revised Statutes of Utah, 1933. The section reads: "When two or more persons associated in any business either as a joint-stock company, a partnership or other association, not a corporation, transact such business under a common name, whether it comprises the names of such associates or not, they may be sued by such common name, the summons in such cases being served on one or more of the associates, or as provided in section 104-5-11 (5); and the judgment in the action shall bind the joint property of all the associates Page 96 in the same manner as if all had been named defendants and had been sued upon their joint liability." The court having jurisdiction of the subject matter, the summons served gave the court jurisdiction of the associations and the members thereof as a group sufficient to authorize the entry of judgment in the action as would bind the joint property interests of all the members in the group. The court, once having acquired jurisdiction of the groups, may proceed to enjoin or determine liabilities as may be found from the evidence. There being a plain, speedy, and adequate remedy at law, the matter of errors is for correction by appeal. The temporary writ heretofore issued is recalled and quashed, and a permanent writ denied. Costs to defendants. LARSON, J., concurs.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3393881/	The indictment herein is as follows: "IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA: The grand Jurors of the State of Florida, impaneled and sworn to inquire and true presentment make in and for the body of the County of Jackson upon their oath do present that Peter J. Savage of the County of Jackson and State of Florida, on the 29th day of December in the year of our Lord, one thousand nine hundred and thirty in the County and State aforesaid an assault did then and there make upon one Theodore Doman and one Allan Orrick and did then and there unlawfully and feloniously rob, steal and take from the persons of the said Theodore Doman and Allan Orrick certain personal property, the subject of larcency, to-wit: one over coat, one leather top coat and one jacket or vest, a more particular description of which said property being to the Grand Jurors unknown, he the said Peter J. Savage being then and there armed with a deadly weapon, to-wit, a pistol, and with intent then and there if resisted, to kill or maim the said Theodore Doman and Allan Orrick; and the Grand Jurors aforesaid upon their Page 1126 oaths aforesaid do further say and present that one Ed Pippin and one C. C. Price were then and there feloniously present aiding, counseling, hiring and procuring the said Peter J. Savage and said felony, in the manner and by the means aforesaid, to do and commit; Contrary to the Statute" Etc. Upon conviction the defendants took writ of error and urge the legal insufficiency of the indictment and of the evidence to support the verdict and judgment. "Robbery, at common law, is the felonious taking, without bona fide claim of right, of a thing of value from the person or presence of another, against his will, by force or by putting him in fear." 24 Am. Eng. Enc. Law (2d Ed.) p. 991. "Robbery, at common law, is the taking, with intent to steal, of personal property in possession of another, from his person or in his presence, by violence or by putting him in fear." 34 Cyc. p. 1796. "Robbery at common law is defined as the felonious taking of money or goods of value from the person of another or in his presence, against his will, by violence or putting him in fear." 23 R. C. L. p. 1139. The statute provides that: "Whoever assaults another and feloniously robs, steals and takes from his person or custody, money or other property which may be the subject of larceny, such robber being armed with a dangerous weapon, with the intent if resisted to kill or maim the person robbed, or, being so armed, wound or strike the person robbed, shall be punished by imprisonment for a term of years or for life imprisonment in the discretion of the court for and during a term of his natural life." Sec. 7157, C. G. L. 1927. The statute does not change the nature of the crime defined as robbery at common law and does not in substance change the requirement of the common law as to the essentials of an indictment for robbery. The indictment alleges that the "personal property" taken was the "subject of larceny," which might indicate that the property was of some value, but the indictment does not allege the owner of Page 1127 the property or that the defendants were not the owners or that the owners were unknown. An indictment for robbery should state the name of the owner of the property taken or that the owner is unknown. The approved forms at common law set forth the ownership of the property as well as the name of the person from whom it is taken. It should clearly appear by the indictment that the article taken belongs to some person other than the accused, or that the party deprived of the possession through violence was entitled to the possession, as against the defendant. If the property taken belonged to the defendants or they were entitled to the possession of it, the crime would not be robbery. Smedley v. State, 30 Tex. 24[30 Tex. 24]; 18 Enc. Pleading Practice, 1223; 34 Cyc. 1803. See also Simmons v. State, 41 Fla. 316, 25 So. 881; Mortsdoca v. State, 84 Fla. 82, 93 So. 157; 24 Am. Eng. Enc. Law, p. 1003; 23 R. C. L., p. 1154; 3 Bishop's New Crim. Procedure (2d Ed.) p. 1865; Joyce on Indictments (2d Ed.) p. 1005; 16 Enc. of Forms, p. 723-25; 9 Standard Enc. of Procedure, p. 1103. The evidence is not considered. Reversed. BUFORD, C.J., AND ELLIS AND TERRELL, J.J., concur. BROWN, J., dissents. DAVIS, J., disqualified.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3848760/	The learned judge of the court below, who sat without a jury in this case, has disposed of the questions of fact and of law with discrimination and ability. We affirm the judgment upon his opinion. Judgment affirmed. *Page 287	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/4553894/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 AM CDT - 397 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 Tyler F., appellant, v. Sara P., appellee. Geoffrey V., as next friend of J.F., a minor child, appellee and cross-appellant, v. Sara P., appellee and cross-appellee, and Tyler F., appellant and cross-appellee. ___ N.W.2d ___ Filed July 10, 2020. Nos. S-19-513, S-19-514. 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. Statutes. Statutory interpretation presents a question of law. 3. Judgments: Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. 4. Appeal and Error: Words and Phrases. Plain error exists where there is an error, plainly evident from the record, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. 5. Appeal and Error. An appellate court may, at its option, notice plain error. 6. Paternity: Acknowledgments: Rescission: Time. In Nebraska, a pater- nity acknowledgment operates as a legal finding of paternity after the rescission period has expired. 7. Paternity: Acknowledgments. Paternity may be established by a properly executed acknowledgment, and establishment of paternity by acknowledgment is the equivalent of establishment of paternity by judi- cial proceeding. 8. Parental Rights: Child Custody: Paternity: Acknowledgments: DNA Testing. A father whose paternity is established by a final, voluntary - 398 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 acknowledgment has the same right to seek custody as the child’s biological mother, even if genetic testing shows he is not the biologi- cal father. 9. Paternity: Acknowledgments: DNA Testing. DNA testing which later shows the identified individual is not the child’s biological father is insufficient to set aside a properly executed acknowledgment of paternity. 10. Paternity: Acknowledgments: Parent and Child. An acknowledgment legally establishes paternity and grants the individual named as father the legal status of a parent to the child regardless of genetic factors. 11. Paternity: Statutes. Paternity proceedings are purely statutory, and because the statutes regarding paternity proceedings modify the common law, they must be strictly construed. 12. 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. 13. 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. 14. Paternity: Parties: Acknowledgments. A previous paternity determina- tion, including a properly executed and undisturbed acknowledgment, must be set aside before a third party’s paternity may be considered. 15. Paternity. A party seeking to establish paternity must first set aside an existing determination. 16. Acknowledgments: Proof. In order to set aside an unrevoked acknowl- edgment, the moving party has the burden to show the acknowledge- ment was a result of fraud, duress, or material mistake. 17. Paternity: Acknowledgments. A party executing an acknowledgment of paternity has a duty to exercise reasonable diligence in the execution of the acknowledgment to ensure that it was grounded in fact. 18. Words and Phrases. Reasonable diligence means appropriate action where there is some reason to awaken inquiry and direct diligence in a channel in which it will be successful. Appeals from the District Court for Lancaster County: Kevin R. McManaman, Judge. Affirmed in part, and in part reversed and remanded for further proceedings. Andrea L. McChesney, of McChesney Family Law Office, for appellant. - 399 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 Joel Bacon and Tara L. Gardner, of Keating, O’Gara, Nedved & Peter, P.C., L.L.O., for appellee Geoffrey V. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Funke, J. The district court awarded joint legal and physical custody of J.F. to Sara P., Tyler F., and Geoffrey V. Tyler appealed and assigned various errors. Geoffrey then cross-appealed. We conclude that the district court did not err in finding that Sara failed to meet her burden to set aside the notarized acknowl- edgment of paternity executed by Tyler and Sara at the time of J.F.’s birth. We further conclude that the trial court committed plain error in considering Geoffrey’s paternity complaint while failing to give proper legal effect to Tyler’s acknowledgment of paternity. We therefore affirm the court’s denial of Sara’s counterclaim to set aside Tyler’s acknowledgment of paternity; reverse the district court’s award of joint legal and physical custody of J.F. to Sara, Tyler, and Geoffrey; and remand the cause for further proceedings. BACKGROUND Sometime around November 2007, Tyler and Sara were dat- ing and engaged in sexual intercourse. Sara gave birth to J.F. in August 2008. Sara continually represented to Tyler that he was the father of J.F., and Tyler signed an acknowledgment of paternity at the hospital when J.F. was born and is listed as J.F.’s father on the birth certificate. Sara also engaged in sexual intercourse with Geoffrey around November 2007. Sara contends she believed Tyler was J.F.’s father because of information she received from her physician about her due date. At one point during the pregnancy, however, she contacted Geoffrey about the pos- sibility that he might be the father and, about 8 to 9 months after J.F.’s birth, Geoffrey and Sara had discussions about genetic testing to determine paternity. Sara testified that she - 400 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 always had a “gut feeling” that J.F. might not be Tyler’s bio- logical child and that this “gut feeling” that “maybe he could be [Geoffrey’s existed] when [Sara] was pregnant, when [J.F.] was born [and] when [J.F.] started really looking like him.” It is undisputed she did not tell Tyler about Geoffrey’s pos- sible paternity. Following J.F.’s birth, Tyler and Sara shared parenting responsibilities despite ceasing their romantic relationship, even through Sara’s move to Oklahoma in 2013. At the time of Sara’s move, J.F. was in the middle of his first year of preschool and the parties agreed J.F. would continue to attend school in Nebraska and reside with Tyler. After the school year, in the summer of 2014, Sara indicated to Tyler that she wanted J.F. to stay with her and attend kindergarten in Oklahoma. Extending from the parties’ disagreement concerning J.F.’s schooling, Tyler filed a complaint to establish paternity, cus- tody, and parenting time under case No. CI 14-2745, currently under appeal as case No. S-19-513. In his complaint, Tyler sought joint legal and physical custody of J.F., as well as an order determining paternity. Tyler alleged in this complaint that he “believes he is the biological father of [J.F.] and has always held himself out as such,” that Sara “has always held [Tyler] out as [J.F.’s] biological father,” and that Tyler “is listed and acknowledged on [J.F.’s] birth certificate.” In Sara’s answer and counterclaim, she alleged that Tyler is not J.F.’s biological father and that he has no standing to request custody of J.F. As such, Sara sought, in part, that the district court dismiss Tyler’s complaint, declare Tyler not to be the biological father of J.F., and award Sara sole physical and legal custody. During the proceedings, the court ordered DNA testing that showed Tyler was not J.F.’s biological father. Following receipt of the testing results, Sara amended her answer and counter- claim, seeking, among other things, an order rescinding Tyler’s acknowledgment of paternity on the ground of mutual mistake and disestablishing paternity. - 401 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 Shortly after the DNA test excluded Tyler as the biological father, Sara reached out to Geoffrey and told him she believed he was the father. Geoffrey then filed a motion to intervene in Tyler’s case, seeking intervention as the “biological father of [J.F.]” However, the court denied Geoffrey’s motion because Geoffrey provided no basis to avoid the 4-year statute of limitations under Neb. Rev. Stat. § 43-1411 (Reissue 2016) and did not allege he was unaware of J.F.’s birth or the possibility of paternity. Thereafter, Geoffrey filed a complaint to establish pater- nity under case No. CI 15-119, currently under appeal as case No. S-19-514, seeking that physical and legal custody be placed with Sara subject to his and Tyler’s visitation rights. Geoffrey’s complaint acknowledged Tyler as J.F.’s legal father, referenc- ing Tyler’s acknowledgment of paternity, and explained that Geoffrey was not made aware he was J.F.’s biological father until October 2014, when Sara told him about the results of Tyler’s DNA test. The complaint’s caption listed “Geoffrey [V.], as next friend of [J.F.], a minor child,” as plaintiff. However, the text of the complaint and the signature line at the end of the complaint described only Geoffrey, individually, without mentioning his status as next friend of J.F. Geoffrey also noted that genetic testing established Tyler was not the biologi- cal father and alleged that Tyler’s belief he was the biological father was “based on the material mistake of fact based on the representations of Sara . . . at the time [J.F.] was conceived and born.” Geoffrey claimed, “The presumption that . . . Tyler . . . is the father of [J.F.], through his signed Acknowledgment of Paternity, has been rebutted through genetic testing and the records of the Nebraska Department of Health and Human Services should be corrected.” Tyler filed an answer to Geoffrey’s complaint. In his answer, Tyler requested the court dismiss the complaint insofar “as the matter has already been decided in Case No. CI14-2745.” The answer did not specifically raise any statute of limita- tions defenses. - 402 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 The court consolidated cases Nos. CI 14-2745 and CI 15-119, held a trial, and entered an order in January 2016. The court determined that Geoffrey had standing to act in the capacity of next friend of J.F., that Tyler is the father of J.F. by reason of the acknowledgment of paternity, and that Geoffrey is the father of J.F. by reason of biological testing. The court found Sara failed to meet her burden to establish mutual mistake and denied her motion to set aside Tyler’s acknowledgment. The court, therefore, considered the rights and interests of Tyler, Geoffrey, and Sara in making custody, parenting time, and child support determinations. The court awarded legal and physical custody of J.F. to Tyler, subject to visitation with Geoffrey and Sara, until December 31, 2016, at which time all three parties were awarded joint legal and physical custody. The court also calculated child support by considering the incomes of Tyler, Geoffrey, and Sara and ordered Geoffrey and Sara to pay child support until December 31, when all support obligations were to cease. Tyler appealed, assigning the district court erred in finding that Geoffrey had standing to bring his claim as next friend of J.F. and in deviating from the child support guidelines in set- ting child support. Geoffrey cross-appealed and assigned that the court erred in concluding he had not raised a claim in his individual capacity and, to the extent the appellate court might conclude Tyler’s paternity acknowledgment had to be set aside before determining that Geoffrey had paternity, that the court erred in evaluating the material mistake of fact question from Sara’s perspective. The Nebraska Court of Appeals reversed the district court’s order. 1 First, the Court of Appeals determined Geoffrey lacked standing to raise any claims on J.F.’s behalf, as J.F.’s next friend, because J.F. was in the custody of Sara, his biologi- cal mother, and Tyler, his legal father, and thus not without a guardian. However, the appellate court found that the trial 1 Tyler F. v. Sara P., 24 Neb. Ct. App. 370, 888 N.W.2d 537 (2016). - 403 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 court failed to address whether Geoffrey was also bringing his claims in his individual capacity. As such, the cause was remanded to the district court for determination of whether Geoffrey also brought his claims in his individual capacity and whether such individual claims are barred by the statute of limitations. On remand, the district court found that Geoffrey had brought his claims in both his individual capacity and as J.F.’s next friend due to the language and intended beneficiary of the complaint. The court then found that Geoffrey’s individual claims were not barred by the statute of limitations, because Tyler waived the defense by failing to assert it in his answer or another responsive pleading. The court found that even if Tyler had not waived the statute of limitations, it was tolled because Geoffrey alleged he was not made aware he was J.F.’s biological father until October 2014 and Tyler’s answer did not sufficiently deny this allegation. Similarly, the court deter- mined that res judicata did not bar Geoffrey’s claims due to the court’s denial of Geoffrey’s motion to intervene, because Tyler failed to raise it as an affirmative defense and because even if he had, res judicata was inapplicable to the instant case. Given the court’s finding that Geoffrey also brought his claims in his individual capacity, the court reinstated its previous order “with the caveat that the order applies to [Geoffrey] individ ually rather than as next friend of J.F.” ASSIGNMENTS OF ERROR Tyler assigns, restated, that the district court erred in (1) finding Geoffrey brought his claims in his individual capac- ity, (2) finding Tyler waived the statute of limitations defense, (3) finding the statute of limitations was tolled, (4) finding Geoffrey’s claims were not barred by the denial of his motion to intervene, (5) failing to find Geoffrey’s claims were time- barred, and (6) deviating from the child support guidelines in the custody award. On cross-appeal, Geoffrey assigns, contingent on a find- ing of plain error in the district court’s conclusion that Tyler’s - 404 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 paternity acknowledgment did not have to be set aside before the district court could determine whether Geoffrey had pater- nity, that the court erred in failing to set aside Tyler’s paternity acknowledgment. STANDARD OF REVIEW [1] In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on the 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 [2,3] Statutory interpretation presents a question of law. 3 When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclu- sion reached by the trial court. 4 ANALYSIS Acknowledgment of Paternity Before reaching the assigned errors, we first address the question of whether the district court committed plain error in determining it unnecessary to set aside Tyler’s paternity acknowledgment before considering Geoffrey’s complaint to establish paternity. [4,5] Plain error exists where there is an error, plainly evi- dent from the record, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncor- rected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. 5 An appellate court may, at its option, notice plain error. 6 2 State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 (2019). 3 Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018). 4 Id. 5 See, In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019); Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017). 6 Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018). - 405 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 When J.F. was born, Tyler and Sara signed a notarized acknowledgment of paternity in which they attested that Tyler was J.F.’s biological father. Although Sara’s amended answer and counterclaim sought to set aside this acknowledgment fol- lowing the court-ordered DNA test that showed Tyler was not J.F.’s biological father, the district court declined to do so, find- ing Sara failed to meet her burden to prove a material mistake of fact had occurred. As such, the court found the acknowledg- ment remains in effect. However, the court went on to deter- mine that it could consider Geoffrey’s simultaneous claim of paternity without setting aside Tyler’s acknowledgment. The court then found that both Tyler and Geoffrey were the fathers of J.F. and that Sara retained the position of mother under the paternity statutes. [6] In Nebraska, a paternity acknowledgment operates as a legal finding of paternity after the rescission period has expired. 7 The proper legal effect of a signed, notarized acknowledgment of paternity is a finding that the individual who signed as the father is in fact the legal father. 8 Neb. Rev. Stat. § 43-1409 (Reissue 2016) establishes this legal effect and provides: The signing of a notarized acknowledgment, whether under section 43-1408.01 or otherwise, by the alleged father shall create a rebuttable presumption of paternity as against the alleged father. The signed, notarized acknowl- edgment is subject to the right of any signatory to rescind the acknowledgment within the earlier of (1) sixty days or (2) the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order in which the signatory is a party. After the rescission period a signed, notarized acknowledgment is considered a legal finding . . . . 7 In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016); Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011). 8 Cesar C., supra note 7. - 406 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 [7] Relatedly, in describing child support obligations of the parents, Neb. Rev. Stat. § 43-1402 (Reissue 2016) refers to “[t]he father of a child whose paternity is established either by judicial proceedings or by acknowledgment as hereinafter pro- vided . . . .” We have explained that this language in § 43-1402 contemplates that paternity may be established by a properly executed acknowledgment and that establishment of paternity by acknowledgment is the equivalent of establishment of pater- nity by judicial proceeding. 9 [8] Reading §§ 43-1402 and 43-1409 together, the provi- sion in § 43-1409 that an acknowledgment is a “legal finding” means that a properly executed acknowledgment legally estab- lishes paternity in the person named in the acknowledgment as the father. 10 A father whose paternity is established by a final, voluntary acknowledgment has the same right to seek custody as the child’s biological mother, even if genetic testing shows he is not the biological father. 11 Here, it is undisputed that the acknowledgment of paternity signed by Tyler and Sara was properly executed. Additionally, there is no evidence that either party to the acknowledgment sought to rescind it within the statutory rescission period. The acknowledgment remained in full force and effect at the time of Tyler’s paternity action and legally determined Tyler’s pater- nity of J.F. As such, upon finding that the notarized acknowl- edgment of paternity had been properly signed, the court should have treated Tyler’s paternity as having been legally established and treated this action as one solely to determine issues of custody and support as between two legal parents, and not one to establish paternity. 12 [9,10] In her answer and counterclaim, Sara alleged Tyler was neither the legal nor the biological father of J.F. As a 9 See id. 10 See id. 11 In re Adoption of Jaelynn B., supra note 7. 12 See Cesar C., supra note 7. - 407 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 result, she sought DNA testing to confirm her allegations. However, the Legislature has established that a properly exe- cuted acknowledgment of paternity cannot be set aside merely by DNA testing which later shows the identified individual is not the child’s biological father. 13 While § 43-1412.01 provides that “[a]n individual may file a complaint for relief and the court may set aside a final judgment . . . or any other legal determination of paternity if a scientifically reliable genetic test . . . establishes the exclusion of the individual named as a father in the legal determination,” it further clarifies that “[a] court shall not grant relief from determination of paternity if the individual named as father . . . completed a notarized acknowledgment of paternity . . . .” We have found that this provision provides further support for the conclusion that an acknowledgment legally establishes paternity and grants the individual named as father the legal status of a parent to the child regardless of genetic factors. 14 Because Tyler’s acknowl- edgment remained in full force and effect and established his paternity of J.F. regardless of genetic factors, the trial court had no basis to order the DNA testing. That is not to say an acknowledgment cannot be challenged and set aside, but the grounds for doing so are limited. Section 43-1409 explains that a properly executed acknowledgment “may be challenged only on the basis of fraud, duress, or material mistake of fact with the burden of proof upon the challenger.” Therefore, under the statutory scheme, before Sara could challenge paternity and subject Tyler to genetic test- ing, she needed to overcome the acknowledgment establishing Tyler was J.F.’s legal father by showing fraud, duress, or mate- rial mistake. 15 Following the inappropriately ordered DNA test, Sara amended her answer and counterclaim to seek to set aside 13 See, Neb. Rev. Stat. § 43-1412.01 (Reissue 2016); Cesar C., supra note 7. 14 In re Adoption of Jaelyn B., supra note 7. 15 See, id.; Cesar C., supra note 7. - 408 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 the acknowledgment of paternity. Sara claimed both parties thereto had been under a material mistake of fact due to her being informed of an “erroneous due date by her treating phy- sician.” Sara specifically alleged that her projected due date was August 11, 2008, from which she believed Tyler was the father based upon a 9-month gestation period, but that this due date was incorrect and that labor was induced several days earlier. In its order declining to set aside the acknowledgment, the court correctly considered the issue without concern to the results of the DNA test. The court found that there was clear evidence Sara knew of the possibility Tyler was not the father during and following pregnancy and that even though Tyler was under the mistaken belief he was J.F.’s biological father, it was Sara’s burden as the challenger to show a mate- rial mistake on her part, which she did not. Because the court declined to set the acknowledgment aside, it remains in full force and effect. Geoffrey’s Determination of Paternity Geoffrey’s complaint to establish his paternity of J.F. alleges that Geoffrey did not know he was J.F.’s father until Sara informed him that DNA testing excluded Tyler as J.F.’s bio- logical father. Regardless of whether that allegation is sup- ported by the record, as noted above, the court had no basis to order this test, due to the application of the acknowledgment of paternity. 16 Further, Geoffrey’s complaint fails to move for Tyler’s acknowledgment of paternity to be set aside. Instead, Geoffrey argues, and the district court agreed, that a determination that Tyler has paternity of J.F. is of no consequence when deter- mining whether Geoffrey has paternity of J.F. However, this proposition is at odds with Nebraska’s paternity and related statutes and the Nebraska Child Support Guidelines as cur- rently constructed. 16 See id. - 409 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 [11-13] We have recognized that paternity proceedings are purely statutory and that because the statutes regarding paternity proceedings modify the common law, they must be strictly construed. 17 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. 18 Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively consid- ered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible. 19 Actions to determine paternity and parental support are gov- erned by Neb. Rev. Stat. §§ 43-1401 through 43-1418 (Reissue 2016 & Cum. Supp. 2018). Throughout these statutes, the Legislature has used language which recognizes the possibil- ity of only a singular paternity determination. For example, § 43-1402 describes “[t]he father of a child whose paternity is established,” “[t]he mother of a child,” and “each parent” in explaining support liability for a child. (Emphasis supplied.) Section 43-1403 describes possible county obligations of sup- port “[i]n case of the neglect or inability of the parents, or either of them, to support a child . . . .” (Emphasis supplied.) Section 43-1404 designates the “liability of the father or mother of a child for its support” in explaining the discharge of support obligations. (Emphasis supplied.) Section 43-1405 uses the singular “the father” language several times in describing the discharge of support liability by settlement. (Emphasis supplied.) Section 43-1407 identifies “[t]he father of a child” in its explanation of liability for birth, pregnancy, and medi- cal expenses. (Emphasis supplied.) Section 43-1410 explains, “Any judicially approved settlement or order of support made 17 State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 (2014). 18 In re Application No. OP-0003, supra note 5. 19 Id. - 410 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 by a court having jurisdiction in the premises shall be bind- ing on the legal representatives of the father or mother in the event of his or her death . . . .” (Emphasis supplied.) Section 43-1412(3), in explaining a court’s continued jurisdiction of a paternity action to order support and court costs, states: If a judgment is entered under this section declaring the alleged father to be the father of the child, the court shall retain jurisdiction of the cause and enter such order of support, including the amount, if any, of any court costs and attorney’s fees which the court in its discretion deems appropriate to be paid by the father . . . . (Emphasis supplied.) Statutes under Nebraska’s Parenting Act 20 use similar lim- iting language. Section 43-2922(12) describes the existence of only two parents and defines “[j]oint physical custody” as “mutual authority and responsibility of the parents regarding the child’s place of residence and the exertion of continuous blocks of parenting time by both parents over the child for significant periods of time.” (Emphasis supplied.) This “both parents” language is used in other parts of the Parenting Act, including the following sections: § 43-2924(2), in describing the applicability of the Parenting Act for custody determina- tions; § 43-2929(4), in explaining that both parents continue to have parental rights regardless of a custody determina- tion in a parenting plan unless the rights are terminated; and § 43-2937(4), in describing when court-ordered mediation or alternative dispute resolution is required under the Parenting Act. Relatedly, § 43-2930(1) lists permissible information a child information affidavit may include when certain cir- cumstances are present, including “criminal no-contact orders against either parent.” (Emphasis supplied.) The language of § 43-2932 considers the existence of only two parents in the requirements under subsection (1)(a)(iv) that a court develop 20 See Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016, Cum. Supp. 2018 & Supp. 2019). - 411 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 a parenting plan if “a parent . . . has interfered persistently with the other parent’s access to the child;” under subsection (1)(b)(iv) of additional permissible limitations of a parenting plan, including “[r]estraints on the parent from communica- tion with or proximity to the other parent or the child;” and under subsection (3) that the “parent found to have engaged in the behavior . . . has the burden of proving” the rights granted under the parenting plan “will not endanger the child or the other parent.” (Emphasis supplied.) We are mindful that following the U.S. Supreme Court’s decision in Obergefell v. Hodges, 21 our courts are now hear- ing cases involving two legal mothers or two legal fathers. But our current parentage statutes have not changed, and these statutes are still gender based, so the language of our opinion is necessarily gender based as well. In other words, Nebraska’s statutory scheme on parentage accommodates only two parents and primarily refers to one mother and one father. Here, the trial judge recognized three legal parents (one mother and two fathers), and that is simply not suppported by Nebraska law. The Nebraska Child Support Guidelines also use language which assumes the existence of only a singular paternity deter- mination, including the identifiers “both parents,” “either par- ent,” and “both parties.” 22 Though Nebraska’s judicial branch has revised its child support guidelines to be gender neu- tral, even the revised guidelines still accommodate just two legal parents. [14] In considering the plain language of our paternity and related statutes, the Legislature’s use of the singular “the father” indicates an intention that there can only be one pater- nity designation at a time, and the use of “both parents,” 21 Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). 22 See, e.g., Neb. Ct. R. § 4-201; Neb. Ct. R. §§ 4-203, 4-204, 4-206, and 4-215 (rev. 2020); Neb. Ct. R. § 4-214 (rev. 2016). - 412 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 “either parent,” “either party,” and “both parties” supports this reading. Accordingly, we hold that a previous paternity determination, including a properly executed and undisturbed acknowledgment, must be set aside before a third party’s pater- nity may be considered. To find that one paternity determination has no effect on subsequent claims of paternity would render our decision in Cesar C. v. Alicia L. 23 inconsequential. In Cesar C., we deter- mined that a mother’s request for DNA testing of the acknowl- edged father to determine whether he was actually the child’s biological father should have been denied by the trial court because the acknowledgment of paternity was undisturbed and properly executed. As such, there was already a determination of paternity of the child at issue and there could not be another action to determine paternity without first setting aside the acknowledgment. 24 [15] Our holding in Cesar C. applies to the instant case because just like the mother in Cesar C., Sara sought another paternity determination even though an acknowledgment remained applicable, the court failed to give adequate weight to the undisturbed acknowledgment and inappropriately ordered DNA testing for the purposes of establishing the child’s pater- nity, and the DNA test established the legal father was not the child’s biological father. Herein, Geoffrey then filed a com- plaint to establish his paternity based upon the DNA results communicated to him by Sara and did not seek to set aside the acknowledgment. If the paternity statutes allow for another party to establish simultaneous paternity without setting aside a properly executed acknowledgment of paternity, the DNA tests in Cesar C. and in this case would not be prohibited because they would provide a basis for a third party to seek such a simultaneous paternity ruling. However, in line with our opinion in Cesar C. and as analyzed above, the paternity 23 Cesar C., supra note 7. 24 Id. - 413 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 statutes require that a party seeking to establish paternity must first set aside an existing determination. Other courts have come to this same conclusion. 25 In Barr v. Bartolo, 26 the Pennsylvania Superior Court analyzed whether an undisturbed previous support order barred a subsequent determination of paternity in a third party. Under Pennsylvania law, the entry of a court order for support of a child necessarily determines the alleged father’s paternity. 27 As such, the support order judicially determined paternity in the husband and the court held that the previous determination barred relitigation of paternity without striking that first determination. 28 In Sinicropi v. Mazurek, 29 the Michigan Court of Appeals considered what effect an unrevoked acknowledgment of pater- nity would have on an action to establish paternity. The trial evidence indicated that the biological father was seeking to establish his paternity of the minor child after the legal father had previously executed an unrevoked acknowledgment of paternity. 30 In granting the biological father’s complaint to establish paternity, the trial court effectively ruled that the child had two legal fathers. 31 On appeal, the appellate court reversed and held that an order of filiation cannot be entered if a proper acknowledgment of parentage was previously executed and has not been revoked. 32 The court further held that an unre- voked acknowledgment already legally established paternity and conferred the status of natural and legal father upon the man executing the acknowledgment, which in turn entitled him 25 Barr v. Bartolo, 927 A.2d 635 (Pa. Super. 2007); Sinicropi v. Mazurek, 273 Mich. App. 149, 729 N.W.2d 256 (2006). 26 Barr, supra note 25. 27 Id. 28 Id. 29 Sinicropi, supra note 25. 30 Id. 31 Id. 32 Id. - 414 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 to seek custody or parenting time if desired and obligated him to pay support if appropriate. 33 In accordance with all of the above, the district court committed plain error in considering Geoffrey’s complaint to establish his paternity of J.F. when Tyler’s acknowledgment remained in place and established Tyler as J.F.’s father. Geoffrey’s Cross-Appeal In his cross-appeal, Geoffrey acknowledges the possibil- ity that the district court committed plain error in finding his paternity without seeking to set aside Tyler’s acknowledgment of paternity. As such, Geoffrey assigns the district court erred in failing to set aside the acknowledgment. Geoffrey claims the court incorrectly limited its consideration of whether a material mistake of fact occurred to Sara’s perspective, instead of con- sidering it from his perspective. We note that Geoffrey did not independently move the court to set aside Tyler’s acknowledgment. Instead, his complaint to establish paternity merely referenced Sara’s allegation that Tyler’s belief that he was the biological father was based on a material mistake of fact. Specifically, Geoffrey alleged: Genetic testing was completed establishing that Tyler . . . is not the father of [J.F.] [Tyler’s] belief that he was the father of [J.F.] was based on the representa- tions of Sara . . . , and . . . said reliance was based on the material mistake of fact based on the representations of Sara . . . at the time [J.F.] was conceived and born. The presumption that . . . Tyler . . . is the father of [J.F.], through his signed Acknowledgment of Paternity, has been rebutted through genetic testing and the records of the Nebraska Department of Health and Human Services should be corrected. As a result, we consider Sara’s prayer in her amended answer that the district court rescind Tyler’s acknowledgment 33 Id. - 415 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 of paternity. Specifically, in the “Affirmative Defenses” section of her amended answer, Sara alleges: [J.F.] was born at the Bryan LGH Medical Center East in August of 2008. [Sara] was initially informed of an erro- neous due date by her treating physician. The initial due date was projected to be on August 11, 2008. Based on the due date provided to [Sara], she mistakenly believed that Tyler . . . was the father of [J.F.] based on a 9 month gestation period. However, the anticipated due date was incorrect and labor was induced [several days earlier]. Accordingly, the parties hereto were under a material mis- take of fact as [to] the biological father of [J.F.] Additionally, under a section titled “Counterclaim: Custody,” Sara alleged: “The Acknowledgment of Paternity executed by [Tyler and Sara] herein was executed under a material mis- take of fact precipitated by an inaccurate due date provided to [Sara]. To the extent the Acknowledgment of Paternity is rescinded the legal determination of paternity should be set aside.” [16] As explained above, in order to set aside an unrevoked acknowledgment, the moving party has the burden to show the acknowledgment was a result of fraud, duress, or material mistake. 34 Sara, as the challenging party, had the duty to show that the acknowledgment resulted from a material mistake as she claimed. 35 In our review, we therefore evaluate the district court’s decision not to set aside the acknowledgment based upon Sara’s allegation that there was a material mistake of fact in the execution of the acknowledgment by Tyler and Sara as the executing parties, and not from Geoffrey’s perspective as a nonexecuting party. In seeking to set aside Tyler’s paternity, Sara alleged only that she was under a material mistake of fact that Tyler was the biological father because her treating physician projected her 34 § 43-1409. 35 See id. - 416 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 due date to be on August 11, 2008, when J.F. was actually born several days earlier. Based upon this projected due date, Sara calculated a 9-month gestation period and allegedly believed Tyler was the biological father. The record contradicts Sara’s allegation that she was under the mistaken belief as to J.F.’s biological father because she was told this incorrect due-date projection. If Sara received an incorrect projection of her due date, the due date was no longer at issue when J.F. was born, as Sara herself indicated when she testified Tyler should have known he was not the biological father due to J.F.’s date of birth. The record also demonstrates that Sara knew of the possibil- ity Geoffrey was the biological father during her pregnancy. Sara contacted Geoffrey about this possibility during the preg- nancy and again 8 to 9 months after J.F.’s birth. Sara testified that she always believed that Geoffrey, instead of Tyler, might be J.F.’s biological father. Geoffrey and Sara talked soon after J.F. was born about performing genetic testing to determine whether Geoffrey was the father, but neither took any fur- ther action. [17,18] It is clear that Sara knew Geoffrey could be J.F.’s biological father, even after being told the projected due date, and she communicated such possibility to Geoffrey. Due to this known possibility, Sara had a duty to exercise reason- able diligence in the execution of the acknowledgment of Tyler’s paternity to ensure that it was grounded in fact. 36 We have explained that reasonable diligence “‘means appropri- ate action where there is some reason to awaken inquiry and direct diligence in a channel in which it will be successful.’” 37 However, there is no evidence in the record that Sara exer- cised such reasonable diligence beyond her communications 36 See Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012). 37 Id. at 346, 808 N.W.2d at 881. See, also, DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994) (superseded by statute on other grounds as stated in Alisha C., supra note 36). - 417 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports TYLER F. v. SARA P. Cite as 306 Neb. 397 with Geoffrey. As such, the district court did not err in finding Sara failed to meet her burden and denying her motion to set aside Tyler’s acknowledgment. Considering all of the above, the district court’s finding that Sara, and Geoffrey in support of Sara’s motion, failed to show the alleged material mistake of fact is supported by the record. Accordingly, the district court’s denial of Sara’s motion to set aside Tyler’s acknowledgment of his paternity of J.F. is affirmed. CONCLUSION The district court did not err in finding that Sara failed to meet her burden to set aside the notarized acknowledgment of paternity executed by Tyler and Sara at the time of J.F.’s birth. Additionally, a previous paternity determination, includ- ing a properly executed and undisturbed acknowledgment of paternity, must be set aside before a third party’s paternity may be considered. As a result, the district court committed plain error considering Geoffrey’s paternity complaint while fail- ing to give proper legal effect to Tyler’s acknowledgment of paternity. Accordingly, we affirm the court’s denial of Sara’s counterclaim to set aside Tyler’s acknowledgment of paternity; reverse the district court’s award of joint legal and physical custody of J.F. to Sara, Tyler, and Geoffrey; and remand the cause for further proceedings. Affirmed in part, and in part reversed and remanded for further proceedings.	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/3848171/	This appeal is from an order refusing to take off a compulsory nonsuit. Plaintiff sued in assumpsit to recover $6,446.25, the withdrawal value of her stock in defendant building and loan association. In support of her claim, she testified that from 1915 to 1935 she had been in defendant's employ in charge of its books and records; that she owned stock in defendant association; that on April 28, 1931, she gave written notice of intention to withdraw which was duly recorded on the withdrawal list; and that defendant later paid out in excess of $44,000 to shareholders whose withdrawal notices were subsequent in time to hers. The learned court below granted a compulsory nonsuit because plaintiff had failed to produce evidence in support of the allegation in her statement of claim that cash legally applicable to the payment of her demand had come into defendant's Page 333 treasury since her withdrawal notice had become effective. That such an allegation was essential is, in view of the Acts of April 29, 1874, P. L. 73, Section 37, and April 10, 1879, P. L. 16, Section 2, in force at the time the withdrawal notice was given, too plain to warrant discussion: Brown v. VictorBuilding Assn., 302 Pa. 254, 258; Odessa Ind. Ben. A. v.Stechert B. L. A., 107 Pa. Super. 177; Max Wool v.Keller B. L. Assn. 106 Pa. Super. 492. And being essential to the pleading, it is also an essential element to be proved at the trial: Gorges v. B. and L. Assn., 120 Pa. Super. 322,325 (affirmed as to this, but reversed on another point in Gorges v. Greater Adelphi B. L. Assn.,322 Pa. 569)1. Hence, to meet the burden of proof plaintiff was required to produce evidence establishing that her name was sufficiently high on the list to prevent exhaustion by payment to prior claimants, before her claim was reached, of the $44,000 she asserted was in the treasury available for withdrawal payments. If prior claims aggregated more than the available fund, plaintiff was obviously entitled to nothing. Plaintiff concedes the correctness of this proposition, but relies upon the rule that where the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party, citing Valles v. Peoples-Pittsburgh Tr. Co.,339 Pa. 33, 36; Commonwealth v. Bates, 1 Pa. Super. 223; andUnited States v. Denver R. G. R. R., 191 U.S. 84, 92. The difficulty with plaintiff's Page 334 position is that neither was the averment in question negative in character nor was its subject matter peculiarly within defendant's knowledge. Plaintiff was required to prove that there was money in the treasury applicable to the payment of her claim, as averred in her pleadings, and this is a positive, not a negative, allegation. While proof of the non-existence of other claims ahead of hers would have assisted her in meeting the burden of proof, that was not the primary issue. A litigant cannot bring himself within the rule above quoted and thereby escape from proving an allegation essential to his case by the simple expedient of stating its negative counterpart. If plaintiff were to be permitted to establish her right to recover by a mere showing of withdrawal payments made by defendant to shareholders who gave notice of withdrawal after she did, it would result in a preference to her over all other unpaid shareholders whose notices preceded hers. Nor were the means of proving her case peculiarly within defendant's knowledge. Its books were made available to plaintiff. She had in the course of her employment, at the direction of the secretary of the association, entered her own name on the withdrawal list, and therefore knew in what position it stood. If she had been entitled to payment, it would have been no more difficult for her to show that fact than it was to show that the stockholders who were paid had given notice after she did. Plaintiff also relies, in support of her right to recover, on the insufficiency of defendant's denial of these same averments in her statement of claim as to the applicability of funds to the payment of her demand. We have carefully read the allegations of the statement and the answers thereto, and conclude that the material averments properly pleaded were sufficiently denied. The assignments of error are overruled and the order of the court below is affirmed. 1 There the Superior Court held against plaintiff on the ground that he had failed to allege and prove that defendant's treasury contained funds applicable to the payment of his claim, but permitted recovery on the theory that the action was sustainable as one brought by a shareholder who dissented to a merger of two building and loan associations. This Court reversed on the latter point, but in denying recovery, affirmed the Superior Court on the point for which the case is here cited. *Page 335	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/4553900/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 AM CDT - 314 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 State of Nebraska, appellee, v. Ahmed Said, appellant. ___ N.W.2d ___ Filed July 2, 2020. No. S-18-901. 1. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights: Appeal and Error. In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law enforcement procured it by violating the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear error. Whether those facts meet constitutional standards, however, is a question of law, which an appellate court reviews independently of the trial court’s determination. 2. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding histori- cal facts, an appellate court reviews the trial court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment pro- tection is a question of law that an appellate court reviews independently of the trial court’s determination. 3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. 4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. - 315 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 5. Trial: Rules of Evidence. A trial court exercises its discretion in deter- mining whether evidence is relevant and whether its prejudicial effect substantially outweighs its probative value. 6. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unrea- sonable or if its action is clearly against justice or conscience, reason, and evidence. 7. Trial: Evidence: Appeal and Error. A trial court’s determination of the relevancy and admissibility of evidence must be upheld in the absence of an abuse of discretion. 8. Miranda Rights: Self-Incrimination. The safeguards of Miranda ensure that the individual’s right to choose between speech and silence remains unfettered throughout the interrogation process. 9. ____: ____. If the suspect indicates that he or she wishes to remain silent or that he or she wants an attorney, the interrogation must cease. 10. Miranda Rights: Right to Counsel: Police Officers and Sheriffs: Self-Incrimination. In order to require cessation of custodial interro- gation, the subject’s invocation of the right to counsel must be unam- biguous and unequivocal. Once a person has invoked his or her right to remain silent, the police must scrupulously honor that right. 11. Constitutional Law: Trial: Convictions: Appeal and Error. Even con- stitutional error does not automatically require reversal of a conviction if that error was a trial error and not a structural defect. 12. Trial: Evidence: Appeal and Error. The admission of an improperly obtained statement is a trial error, and so its erroneous admission is subject to harmless error analysis. 13. Trial: Verdicts: Appeal and Error. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. 14. Search and Seizure: Police Officers and Sheriffs: Evidence. Evidence must be excluded as fruit of the poisonous tree if it is discovered by the exploitation of illegal police conduct. 15. Evidence: Police Officers and Sheriffs. Not all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal action of the police. The question is whether the evidence has been obtained by exploiting the primary illegality or has instead been obtained by means sufficiently distinguishable so as to be purged of the primary taint. 16. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In reviewing the strength of an affidavit submitted as a basis for finding - 316 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 probable cause to issue a search warrant, an appellate court applies a totality of the circumstances test. The question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing mag- istrate had a substantial basis for finding that the affidavit established probable cause. 17. Search Warrants: Probable Cause: Words and Phrases. Probable cause sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found. 18. Search Warrants: Affidavits: Evidence: Appeal and Error. In evalu- ating the sufficiency of an affidavit used to obtain a search warrant, an appellate court is restricted to consideration of the information and circumstances contained within the four corners of the affidavit, and evidence which emerges after the warrant is issued has no bearing on whether the warrant was validly issued. 19. Constitutional Law: Search Warrants. The Fourth Amendment to the U.S. Constitution and Neb. Const. art. I, § 7, require that a search war- rant be particular in describing the place to be searched and the persons or things to be seized. 20. Constitutional Law: Search Warrants: Police Officers and Sheriffs. To satisfy the particularity requirement of the Fourth Amendment, a warrant must be sufficiently definite to enable the searching officer to identify the property authorized to be seized. 21. Search Warrants. The purpose of the particularity requirement as it relates to warrants is to prevent general searches, and whether a warrant is insufficiently particular depends upon the facts and circumstances of each case. 22. Search Warrants: Affidavits. An inadvertent defect in a search warrant may be cured by reference to the affidavit used to obtain the warrant if the affidavit is incorporated in the warrant or referred to in the warrant and the affidavit accompanies the warrant. 23. Criminal Law: Constitutional Law: Due Process. Whether rooted directly in the Due Process Clause of the 14th Amendment or in the Compulsory Process or Confrontation Clauses of the 6th Amendment, the federal Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. 24. Evidence. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevancy requires only that the probative value be something more than nothing. 25. Evidence: Words and Phrases. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the - 317 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis. 26. DNA Testing: Evidence. Inconclusive DNA results are irrelevant because they do not help the fact finder assess whether the defendant is or is not the source of the sample. 27. Rules of Evidence. “Opening the door” is a rule of expanded relevancy which authorizes admitting evidence that would otherwise be irrelevant in order to respond to (1) admissible evidence which generates an issue or (2) inadmissible evidence admitted by the court over objection. Appeal from the District Court for Hall County: Mark J. Young, Judge. Affirmed. Robert W. Kortus, of Nebraska Commission on Public Advocacy, for appellant. Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik, and Freudenberg, JJ. Miller-Lerman, J. NATURE OF CASE Ahmed Said appeals his convictions and sentences in the district court for Hall County for second degree murder and use of a weapon to commit a felony. Said claims on appeal that the court erred when it (1) admitted statements he made as a result of allegedly unconstitutional interrogations, (2) admitted evidence from an allegedly unconstitutional search of his cell phone, (3) prohibited him from presenting evidence regarding the victim’s mental health and use of alcohol and prescription drugs, (4) denied him the right to impeach a witness’ testi- mony with cross-examination regarding specific instances of conduct and bias, and (5) allowed evidence regarding DNA testing, which Said argued was inconclusive and therefore - 318 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 irrelevant and unfairly prejudicial. We affirm Said’s convic- tions and sentences. STATEMENT OF FACTS Investigation of Death and Charges Against Said. The State charged Said with second degree murder and use of a weapon to commit a felony in connection with the death of Adulma Khamis. Around 7 a.m. on April 13, 2017, a police officer who was responding to a call for a welfare check found Khamis lying unconscious on the ground outside a residence located approximately five blocks away from Pioneer Park in Grand Island, Nebraska. Khamis was taken to a hospital, where it was determined that he was comatose and had multiple fractures to his skull and a large amount of bleeding between his skull and brain. Surgery was performed, but Khamis died several days later, on April 19. The pathologist who performed the autopsy on Khamis determined that the cause of death was “blunt trauma to the head resulting in skull fractures and sig- nificant trauma to the left side of the brain.” After learning from the emergency room doctor that Khamis had suffered serious head trauma and a fractured skull, the responding officer and other police began to investigate the matter as a criminal one. The responding officer secured the location where he had found Khamis. He also attempted to speak with Khalil Kouri, a man the officer knew from previous contacts to live in the residence outside of which Khamis had been found. Kouri was not there at the time, but police later contacted him at work. Kouri testified at trial in this case that Khamis was a friend of his and that Khamis would sometimes visit Kouri’s home. Kouri testified that on the evening of April 12, 2017, a few friends, not including Khamis, were socializing at Kouri’s residence. Kouri recalled that at some point in the evening, he heard an unknown person knocking on his door, but that - 319 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 he told the person to go away because he had to work in the morning and wanted to go to sleep. Kouri testified that when he went to work at 5 a.m. the next day, it was still dark and he did not notice anything unusual. As the investigation continued, Said became a suspect based on evidence including security camera videos that, the parties stipulated at trial, depicted a fight between Said and Khamis on the evening of April 12, 2017. The security cameras were from a business located near Pioneer Park. The State’s theory of the case at trial was that Said had caused the fatal injuries to Khamis by striking him in the head with a metal pole and that Khamis had remained conscious and mobile for some time after the injury, eventually becom- ing unconscious after attempting to be admitted to Kouri’s residence. Said asserted as part of his defense that Khamis had been the aggressor in the fight and that Said’s actions in the fight had been taken in self-defense. Said further attempted to develop Kouri as an alternate suspect in causing Khamis’ death. Evidence at Said’s trial included numerous exhibits and testimony by numerous witnesses; the discussion of evidence and proceedings hereinafter focuses on matters related to issues raised in this appeal. Motion to Suppress Said’s Statements in Interrogations and Letter. Prior to trial, Said filed a motion to suppress statements he made as a result of what he asserted were unconstitutional cus- todial interrogations. Said specified four separate interrogations in his motion, but on appeal, he focuses on two dates—April 20 and June 5, 2017. Said also sought to suppress a letter dated April 29, 2017, that he had written to his sister while he was in prison; he asserted that the letter was improperly seized as “fruit of the poisonous tree” stemming from prior interroga- tions. After an evidentiary hearing, the district court granted in part and overruled in part Said’s motion to suppress the state- ments and the letter. - 320 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 Regarding the April 20, 2017, interrogation, evidence at the hearing indicated that Said had been arrested on April 19 on a charge unrelated to the present case. Officers, including Steven Sloan, interviewed Said on April 19. Sloan returned on April 20 and asked Said to discuss a different case—the assault of Khamis. A recording of the interview indicated that at the beginning of the interview, Said appeared willing to talk to Sloan. But after Sloan read Said his Miranda rights and asked whether he was willing to speak without an attorney, Said replied, “Uh, no.” After Sloan asked again whether Said “want[ed] to talk to [him],” Said replied, “[N]o, I do not.” Sloan did not then stop the interview. Instead, Sloan continued attempting to convince Said to talk and, inter alia, explained that he wanted to talk about “something . . . different” from what they had talked about on April 19. Said then agreed to speak with Sloan, and they discussed the present case. At approximately 21 minutes into the interview, Said stated, “[N]o more talking” and “I’m just going to stop talking and just cut off because I’m trying to go back . . . .” Sloan continued the interview and confronted Said with evidence connected to the investigation regarding Khamis. In its order on the motion to suppress, the district court found that statements Said made in the April 19, 2017, inter- view were voluntary and that officers honored Said’s request when he indicated that he wished to stop talking. The court determined that because the April 20 interview involved a different case, Said’s assertion of his rights at the end of the April 19 interview did not bar the April 20 interview. The court determined that although at the beginning of the April 20 interview, Said stated he did not want to speak without an attorney, Sloan “attempted to clarify” and Said subsequently spoke voluntarily until the 21-minute mark, when he said, “[N]o more talking.” The court concluded that Said’s state- ments prior to the 21-minute mark were voluntary but that statements after that point should be suppressed. - 321 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 Sloan returned to speak with Said on June 5, 2017. Sloan read Said his Miranda rights, and Said waived them. The district court determined that Said’s statements and his waiver of rights on June 5 were voluntary. The court determined that “[g]iven the over two-week break between the April 20, 2017, interview and the June 5, 2017, contact there was a sufficient break” from any coercion related to the April 20 interview. The court overruled the motion to suppress as to the June 5 statements. The letter Said sought to suppress was written by him to his sister and was dated April 29, 2017. In the letter, Said asked his sister to get him a lawyer. He also asked her to inquire about the security camera at the business near the Pioneer Park to determine what angles and areas the camera recorded. He further named a witness who “told them [e]verything,” and he asked his sister to “[p]ress [the witness’] [a]ss.” Said contended that the letter was “fruit of the poisonous tree” because he wrote the letter based on information he had learned from the investigators in the allegedly improper inter- views of April 19 and 20, 2017. The district court rejected Said’s argument. The court reasoned that (1) the April 19 inter- view and most of the April 20 interview did not violate Said’s rights, (2) there was evidence that Said could have learned the information from sources other than the investigators, and (3) writing the letter was Said’s voluntary decision and was not a result of police misconduct. The court therefore overruled Said’s motion to suppress the letter. At trial, the court admitted the letter and various state- ments from the two interviews over Said’s renewed objections. Among the statements from the April 20, 2017, interview put into evidence were statements in which Said denied having worn an orthopedic boot on April 12, denied knowing a wit- ness, and denied drinking alcohol on April 12. Other evidence at trial contradicted these statements, and the State used Said’s statements in the interview to argue that he was lying in order to hide his involvement in Khamis’ death. In the June 5 - 322 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 interview, Said made statements to the effect that he was upset that law enforcement had intercepted the letter he wrote to his sister. Motion to Suppress Evidence Obtained From Search of Cell Phone. Also prior to trial, Said filed a motion to suppress evidence that had been obtained from a search of his cell phone. The search had been conducted pursuant to a search warrant that had been issued by the court based on Sloan’s affidavit. Said argued that (1) the affidavit did not include sufficient infor- mation to establish probable cause for the search and (2) the affidavit and the warrant based on it were overbroad and not sufficiently limited in scope to items directly related to any probable cause that might justify the search. Regarding the lack of probable cause, Said argued, inter alia, that Sloan’s affidavit omitted information that would have undermined the cred- ibility of Hussein Nuri, who had told investigators, inter alia, that Said had told Nuri that he had struck Khamis with a metal pole. Said asserted Sloan omitted information regarding Nuri’s prior conviction for false reporting, Nuri’s alcohol problems, and physical evidence that contradicted what Nuri said Said had told him. In its order overruling the motion to suppress, the district court noted that a second affidavit that resulted in a second search warrant cured the omission. The court nevertheless examined the first affidavit and warrant and determined that the omissions regarding alcohol abuse and contradictory physi- cal evidence were not material because there was no indica- tion Nuri was drunk when he made his statement to Sloan and because the physical evidence contradicted details but did not contradict the main point of Said’s reported statement to Nuri—that he had struck Khamis. The court determined Sloan should have disclosed Nuri’s record for honesty, but it concluded that even without Nuri’s statements, there was sufficient evidence to support probable cause; such evidence - 323 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 included the security camera recordings depicting the fight between Said and Khamis and Said’s letter to his sister. The court reasoned this evidence showed that the cell phone might contain information regarding the fight, such as communica- tions between Said and Khamis that might have led to the fight, as well as location information corroborating Said’s presence at the place and time of the fight; the court found that the letter furnished probable cause to believe Said might have used his cell phone prior to his incarceration in order to get information regarding the investigation related to Khamis’ assault and death. The court also rejected Said’s arguments regarding particularity. As noted above, the court overruled the motion to suppress evidence obtained from the search of the cell phone. At trial, the court admitted evidence obtained from the search of Said’s cell phone over Said’s renewed objections. Such evi- dence included the internet history, which included “Google searches” performed in the days after the fight between Said and Khamis. Terms searched included Said’s name, Khamis’ name, the name of the hospital to which Khamis was admitted, and local obituaries. The history also included searches regard- ing head injuries, comas, what happens after a person gets hit in the head with a metal pole, and whether a head injury can cause brain death. Evidence Regarding Khamis’ Mental State. At various points during the trial, Said sought to question witnesses or present evidence regarding Khamis’ mental health and prescription drugs in his possession that were used as antipsychotics or to treat depression. Said generally sought to admit the evidence to support his defense that Khamis was the aggressor and that Said acted in self-defense. The court gener- ally sustained the State’s objections based on relevance. During the testimony of the nurse who treated Khamis at the hospital, Said attempted to cross-examine her regarding - 324 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 information she may have gathered regarding a history of “chronic alcoholism,” Khamis’ “psychological history,” and his “prior history involving hospitalizations.” The court sustained the State’s objections based on relevance. During the cross-examination of a neurological surgeon who treated Khamis, Said asked whether he was aware of “some history of [Khamis] in respect to a psychiatric history.” The court sustained the State’s objection. The State thereafter asked the court, outside the jury’s pres- ence, for an order preventing Said from asking questions about Khamis’ “history of . . . alcohol abuse . . . and any kind of psy- chiatric matters.” In opposition, Said argued that there was evi- dence that when Khamis was found, he had in his possession an antidepressant (Prozac) and an antipsychotic (Olanzapine). He further noted that Khamis’ autopsy showed the presence of an antidepressant, as well as an anticonvulsant drug (Keppra). Said argued that evidence regarding Khamis’ possible use of these drugs was relevant to his claim that Khamis was the initial aggressor in the fight, as well as to issues regarding the cause of Khamis’ death. After further argument and offers of proof, the court ruled that Said could ask the doctor “what effects those specific drugs may cause, if those are somehow relevant,” but the court stated that it would “not allow questions concerning what the drugs are prescribed for and what they treat.” The court fur- ther ruled that it would not allow questions regarding Khamis’ “chronic alcohol use or alcoholism” without Said’s showing a “nexus between prior alcohol use and his condition” at relevant times. The court later clarified that by the “effects” of a drug, it meant “the impacts [the drug] would have had on the treat- ment at [the hospital] on these dates, not its overall why it’s prescribed or what it treats.” Said’s cross-examination of the neurological surgeon contin- ued thereafter. Said was allowed to ask questions regarding the effects of the drugs Prozac, Olanzapine, and Keppra. - 325 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 Prior to Said’s cross-examination of the pathologist who performed the autopsy on Khamis, the court ruled on a pending evidentiary issue. The court stated as follows: Khamis’s prior suicide attempt, mental health diagnoses or mental health applications (sic) are not relevant, and even if relevant, applying the [rule] 403 balancing test, the Court finds prejudice as defined in [rule] 403 sub- stantially outweighs the probative value and inquiry is not allowed. .... As to the medications discussed in the toxicology report, as to each medication, . . . Said’s counsel may inquire on cross-examination of whether the medication led to death, led to his death, or changed the doctor’s opinion as to the cause of death. Counsel may also inquire if he observed injuries consistent with seizures [or] a fall related to seizures. .... Counsel may not inquire as to what mental health treatments or drugs found in . . . Khamis’s system are prescribed for . . . . Counsel may, subject to other objections, inquire as to whether the witness knows if Keppra . . . leads to aggres- sive behavior. . . . .... [Regarding Prozac,] I find there’s an insufficient nexus . . . regarding aggression, while it has a number of other reported side effects, there’s simply not enough nexus on the record before the Court . . . . .... . . . I make the same findings as to [Olanzapine] and will not allow cross-examination on that. Impeachment of Nuri. At trial, Nuri testified, inter alia, that Said told him that Said “struck [Khamis] with a metal stick in the back of his - 326 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 head twice in the alley.” On cross-examination, Said asked Nuri if he had ever been convicted of “a crime of dishonesty”; Nuri replied that he had. Said began another line of question- ing, to which the State objected. Outside the jury’s presence, the parties argued to the court regarding Said’s anticipated lines of questioning. One issue was that in Nuri’s deposition, he had admit- ted that on his Facebook page he had lied by saying that he had graduated from a certain university and that he had worked for a certain bank. Said argued that this evidence was admissible pursuant to Neb. Evid. R. 608, Neb. Rev. Stat. § 27-608(2) (Reissue 2016). After the parties argued the issue, the court ruled that it would not allow Said to cross-examine Nuri “concerning false claims made by . . . Nuri on his Facebook page.” Another issue arose at trial regarding Nuri’s pending crimi- nal charges. Specifically, Nuri had entered a plea to a pending criminal charge and was awaiting sentencing. Said argued that evidence of the pending charge was relevant to show bias and a motive to fabricate testimony. The court ruled that it would be improper to cross-examine Nuri regarding the pending charge, because “there’s been no showing that [Nuri] has any specific inducement such as a promise of leniency” and “Nuri has pled to whatever the underlying facts are.” DNA Evidence and “Uninterpretable” Samples. In his defense, Said called witnesses, including Brandy Porter, a forensic scientist in the Nebraska State Patrol Crime Laboratory. Porter testified that she had performed DNA analy- sis on multiple samples that were collected in connection with this case, including samples from several stains on the clothing Khamis was wearing. She compared the samples to reference samples from Khamis, Said, and Kouri. Said questioned Porter regarding her testing of cer- tain specific stains. With regard to those specific stains, Porter testified that her analysis indicated that Khamis was - 327 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 included as a potential major contributor and that Said was excluded. Testing of certain stains indicated a second con- tributor, and Porter testified that Said was excluded as the second contributor. On cross-examination, the State questioned Porter regard- ing general matters pertaining to DNA analysis. As part of that questioning, Porter testified that an “interpretable profile is a DNA profile in which I can make conclusions regarding the identity of the individuals in that sample” and that “[i]f we can’t make scientific conclusions regarding the identity of the individuals, the profile is deemed uninterpretable.” She further testified, “Uninterpretable means that the sample is either too complex or it doesn’t have enough genetic information present for me to make an accurate scientific conclusion regarding who is present in that sample.” The State then asked whether “[i]n this particular case, [Porter had made] a determination that any of the items that [she] tested were uninterpretable.” The court allowed Porter to answer over Said’s objection, and Porter replied in the affirmative. Thereafter, the State asked Porter about her test- ing of various specific samples other than those about which Said had questioned her on direct. Porter testified over Said’s continuing objections that as to some of those specific sam- ples, results regarding contributors other than Khamis were determined to be uninterpretable, and that as to other specific samples, Khamis was included and both Said and Kouri were excluded as contributors. At the end of the State’s cross-examination of Porter, the court gave the following limiting instruction: Evidence of uninterpretable DNA results is offered only to show you what steps were taken to test the items by the analyst. DNA testing results that are uninterpretable are not to be considered by you as evidence that anyone contributed to that DNA sample — to the sample. The jury may not speculate as to who may or may not have - 328 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 contributed to any sample that was listed or tested, the result of which was considered to be uninterpretable. On redirect, Said elicited from Porter testimony that she was able to make scientific conclusions on 19 samples from which Said was excluded and that Said was not included in any samples for which she was able to make scientific conclusions. Verdict, Sentence, and Appeal. Said rested his defense after Porter’s testimony, and the State chose not to present rebuttal evidence. Thereafter, the court read its instructions and submitted the case to the jury. The jury found Said guilty of second degree murder and use of a weapon to commit a felony. The district court sentenced Said to imprisonment for 60 to 80 years for second degree murder and for a consecutive term of 25 to 30 years for use of a weapon. Said appeals his convictions and sentences. ASSIGNMENTS OF ERROR Said claims that the court erred when it (1) admitted state- ments he made in the April 20 and June 5, 2017, interrogations and in the letter to his sister; (2) admitted evidence from the search of his cell phone; (3) prohibited him from presenting evidence regarding Khamis’ mental state and his use of drugs and alcohol; (4) denied him the right of confrontation and the opportunity to impeach Nuri’s testimony with evidence of spe- cific instances of conduct and bias; and (5) allowed testimony by Porter regarding DNA testing that Said asserts was incon- clusive and therefore irrelevant and unfairly prejudicial. STANDARDS OF REVIEW [1] In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law enforce- ment procured it by violating the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court - 329 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear error. Whether those facts meet constitutional stan- dards, however, is a question of law, which an appellate court reviews independently of the trial court’s determination. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020). [2] In reviewing a trial court’s ruling on a motion to sup- press based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). Regarding historical facts, an appellate court reviews the trial court’s findings for clear error, but whether those facts trigger or vio- late Fourth Amendment protection is a question of law that an appellate court reviews independently of the trial court’s determination. Id. [3,4] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admis- sibility. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). Where the Nebraska Evidence Rules commit the evi- dentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. Id. [5-7] A trial court exercises its discretion in determin- ing whether evidence is relevant and whether its prejudicial effect substantially outweighs its probative value. State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019). An abuse of discretion 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. Id. A trial court’s determination of the relevancy and admis- sibility of evidence must be upheld in the absence of an abuse of discretion. State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016). - 330 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 The determination of whether procedures afforded an indi- vidual comport with constitutional requirements for procedural due process presents a question of law. State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017). ANALYSIS Any Error in the Admission of Statements From Two Interviews Was Harmless Error, and District Court Did Not Err When It Overruled Said’s Motion to Suppress the Letter. Said claims that the court erred when it admitted statements he made in the April 20 and June 5, 2017, interviews and in the letter to his sister. He argues that at the beginning of the April 20 interview, he invoked with clear and unequivocal language his right to remain silent, and that all statements he made thereafter, including statements made in that interview as well as statements made in the letter and in the June 5 inter- view, were inadmissible as having been obtained in violation of his Miranda rights. We determine that admission of Said’s statements in the April 20 and June 5 interviews was harmless error and that overruling the motion to suppress the letter was not error. We first consider the April 20, 2017, interview. The district court determined that Said clearly invoked his Miranda rights 21 minutes into the interview, and it therefore suppressed statements he made after that point. But the court determined his statements prior to that point were voluntary and therefore admissible. Said argues that the entire interview should have been suppressed because he clearly and unequivocally invoked his rights at the beginning of the interview. [8-10] The safeguards of Miranda ensure that the individu- al’s right to choose between speech and silence remains unfet- tered throughout the interrogation process. State v. Clifton, 296 Neb. 135, 892 N.W.2d 112 (2017). If the suspect indicates that he or she wishes to remain silent or that he or she wants - 331 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 an attorney, the interrogation must cease. Id. The right to choose between speech and silence derives from the privilege against self-incrimination. Id. In order to require cessation of custodial interrogation, the subject’s invocation of the right to counsel must be unambiguous and unequivocal. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020). Once a per- son has invoked his or her right to remain silent, the police must scrupulously honor that right. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012). In its brief, the State argues that persons who are already incarcerated when they are interviewed are not subject to the same pressures against which the Miranda protections are designed to operate and that therefore, such interviews are not considered custodial interrogations. The State cites two U.S. Supreme Court cases, Howes v. Fields, 565 U.S. 499, 132 S. Ct. 1181, 182 L. Ed. 2d 17 (2012), and Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010). The State acknowledges that unlike the present case, the cases cited involved persons who had already been convicted and sen- tenced and were serving a set term in prison. The State urges that the reasoning in the two U.S. Supreme Court cases be extended to cases involving pretrial detainees, like Said at the time of the statements at issue. Said contends that extending these cases to a pretrial defendant detained for a short period is not proper. We need not resolve this dispute, because, despite rais- ing this argument, the State concedes that on the facts of this case—including the fact that at the time of the April 20, 2017, interview, Said had been in detention for fewer than 24 hours—“viewed objectively, the coercive atmosphere and pressure from April 19th most likely still existed on April 20th and Said was in custody for purposes of Miranda on that date.” Brief for appellee at 26. The State further notes that the officer twice asked Said whether he was willing to talk with- out a lawyer and that both times, Said replied that he was not. Although it argues that asking the second time was a proper - 332 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 clarification of Said’s response to the first question, the State concedes that when the officer continued urging Said to talk, it was an interrogation that should not have been undertaken after Said clearly invoked his Miranda rights. The State con- cludes in its brief that “the district court erred when it admit- ted Said’s statements from the April 20th interview.” Brief for appellee at 28. [11-13] Having conceded that the court erred when it admit- ted Said’s statements from the April 20, 2017, interview, we turn to the State’s further argument that the erroneous admis- sion of statements from the April 20 interview was harmless error. We have said that even constitutional error does not automatically require reversal of a conviction if that error was a trial error and not a structural defect. State v. DeJong, 287 Neb. 864, 845 N.W.2d 858 (2014). The admission of an improperly obtained statement is a trial error, and so its erroneous admission is subject to harmless error analysis. Id. To conduct harmless error review, we look to the entire record and view the erroneously admitted evidence relative to the rest of the untainted, relevant evidence of guilt. Id. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but whether the actual guilty verdict rendered in the questioned trial was surely unattribut- able to the error. State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015). The State notes that in the April 20, 2017, interview, Said did not confess to the crime under investigation and that therefore, the statements in and of themselves did not incrimi- nate him. Said argues that admission of the statements was not harmless error, because although he did not admit to any wrongdoing, he made several statements that were contra- dicted by other evidence presented by the State. He argues that admission of the statements harmed him because the State used the statements to call his credibility into issue even - 333 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 though he was not a witness in the trial. In addition and in a similar vein, Said objected to portions of the prosecution’s closing arguments as having put Said’s credibility into issue when he was not a witness and had not otherwise put his char- acter at issue in the case. In lieu of declaring a mistrial, the court at Said’s request provided a curative instruction that the jury was to “determine only the credibility of the witnesses who testify” and that it was “to disregard any statements, written or spoken, concerning the credibility of persons who did not testify.” In response to Said’s arguments, the State contends that there was evidence aside from Said’s statements to police which indicated that Said had attempted to diminish his involvement in the altercation with Khamis. The State further contends that the prosecutor’s references in closing arguments to Said’s statements on April 20, 2017, were brief. The State thus asserts that error regarding the April 20 statements was harmless. We agree that the error in admitting statements from the April 20, 2017, interview was harmless error. Viewing the statements in the context of “the entire record” and “the rest of the untainted, relevant evidence of guilt,” see State v. DeJong, 287 Neb. at 884, 845 N.W.2d at 874-75, we determine the guilty verdict in this case was “surely unattributable” to the error in admitting the statements, see State v. Nolan, 292 Neb. at 140, 870 N.W.2d at 825. There was other evidence that Said attempted to diminish his involvement in this case, and to the extent the statements might have been seen as evidence of his credibility, the court made clear to the jury in the curative instruction that Said’s credibility was not at issue. We next consider the April 29, 2017, letter that Said wrote to his sister. Said argues that the “fruit of the poisonous tree” doctrine applies because the letter and its contents were the result of the April 20 interview and that because that inter- view was in violation of his rights, the letter should also be inadmissible. - 334 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 [14] The fruit of the poisonous tree doctrine generally pro- vides that evidence must be excluded as fruit of the poisonous tree if it is discovered by the exploitation of illegal police conduct. See State v. Gorup, 275 Neb. 280, 745 N.W.2d 912 (2008). The State argues that the fruit of the poisonous tree doctrine is generally applied only in the context of a search or seizure in violation of the Fourth Amendment and that to the extent that Said contends the content of the letter is at issue, it is questionable whether the doctrine even applies in the context of such a Fifth Amendment violation. However, assuming it does apply in such context, the State argues that the doctrine would not require exclusion of the letter, because the letter was not discovered through governmental exploitation of the April 20, 2017, interview. [15] For purposes of our analysis in this case, we assume the doctrine applies. Not all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal action of the police. State v. Bray, 297 Neb. 916, 902 N.W.2d 98 (2017). The question is whether the evidence has been obtained by exploiting the primary illegality or has instead been obtained by means sufficiently distinguishable so as to be purged of the primary taint. Id. Said argues that the letter was the fruit of the poisonous tree of the April 20, 2017, interview because he was prompted to write the letter based on what he learned about the police investigation in the interview. But the police did not use infor- mation they obtained in the April 20 interview to discover the letter, and therefore, the police did not exploit any informa- tion they had learned from the interview in order to discover the letter. Said’s action of writing the letter in response to the interview broke any causal connection between the State’s actions in the interview and the State’s later discovery of the letter, and such discovery was sufficiently attenuated from the April 20 interview. See State v. Bray, supra. We conclude that the discovery of the letter was not a result of police exploita- tion of the April 20 interview. The letter was not inadmissible - 335 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 under the fruit of the poisonous tree doctrine, and therefore, the court did not err when it overruled Said’s motion to sup- press the letter. We finally consider the June 5, 2017, interview. Said argues that statements he made in the June 5 interview should have been suppressed because that interview was a continu- ation of the questioning in the April 20 interview in which he had invoked his right to remain silent. He cites State v. Pettit, 227 Neb. 218, 417 N.W.2d 3 (1987), and argues that there was not a significant passage of time after the April 20 interview and that the subject of the June 5 interview was the same transaction or occurrence that was the subject of the April 20 interview. The State concedes in its brief that the Pettit factors were not met, but it argues that any error in admitting statements from the June 5, 2017, interview was harmless error. We agree. Said argues that admission of the June 5 statements was not harmless, because he made statements to the effect that he was upset that law enforcement had intercepted the letter he wrote to his sister. He asserts the State used the let- ter and Said’s sensitivity to the interception of the letter as an integral part of its closing argument. But we agree with the State’s argument that Said’s statements that he was upset the police found the letter was “inconsequential” in light of the fact that the letter itself was admissible. Brief for appellee at 33. Viewed in the context of the entire record and properly admitted evidence, we determine the verdict was surely unat- tributable to any error in admitting statements from the June 5 interview. District Court Did Not Err When It Overruled Motion to Suppress Evidence From Search of Said’s Cell Phone. Said next claims that the court erred when it admitted evi- dence from the search of his cell phone. He contends that the warrant authorizing the search and the application supporting - 336 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 the warrant lacked both probable cause and particularity. We conclude that the district court did not err when it overruled the motion to suppress evidence obtained from the search. The Fourth Amendment to the U.S. Constitution provides that warrants may not be granted “but upon probable cause, supported by Oath or affirmation, and particularly describ- ing the place to be searched, and the persons or things to be seized.” The Nebraska Constitution, under article I, § 7, similarly provides that “no warrant shall issue but upon prob- able cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” [16-18] We first consider Said’s argument that probable cause to support the search warrant was lacking. In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, an appellate court applies a totality of the circumstances test. State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019). The question is whether, under the totality of the circumstances illustrated by the affi- davit, the issuing magistrate had a substantial basis for find- ing that the affidavit established probable cause. Id. Probable cause sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found. Id. In evaluating the sufficiency of an affidavit used to obtain a search warrant, an appellate court is restricted to consideration of the information and circumstances contained within the four corners of the affidavit, and evidence which emerges after the warrant is issued has no bearing on whether the warrant was validly issued. Id. Said contends that the affidavit submitted by Sloan did not assert adequate facts to show that evidence related to the investigation would be found on Said’s cell phone. He maintains instead that the affidavit contained only generalized assertions to the effect that “‘persons who commit crimes use cell phones.’” He similarly maintains that the district court’s reasoning for finding probable cause was that generally, cell - 337 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 phone data can often lead to evidence, and asserts that such reasoning was erroneous. Contrary to Said’s characterization of the affidavit, the record shows that in addition to statements setting forth the officer’s general knowledge of how cell phones may be used by a person who is committing or has committed a crime and how evidence of the crime may be found on a cell phone, the affidavit also sets forth specific information regarding the officer’s investigation of this case and Said’s involvement in the altercation with Khamis. This information included allega- tions that Said had communicated with others, including his sister and Nuri, and that he sought information regarding the assault of Khamis and the police investigation of the assault. These actions could establish that Said was interested in learning about the police investigation of the assault, and the court could infer that if Said was looking for such informa- tion from other people, he likely also used his cell phone to search the internet for such information. In the affidavit, the officer listed the specific types of evidence he was seeking to find on the cell phone. The listing of items included various references that made clear the officer was seeking information regarding the relationship of Said and Khamis and commu- nications regarding an altercation between the two on April 12, 2017. We conclude the warrant was supported by probable cause. The affidavit, including allegations of evidence such as the video depicting the altercation between Said and Khamis, gave the officer reason to suspect Said in the investigation of the assault of Khamis. The affidavit also made clear that the officer was seeking evidence related to that investigation and that relevant evidence could be found on Said’s cell phone. The court therefore did not err when it determined the affi- davit established probable cause that evidence relevant to the investigation of the assault of Khamis could be found on Said’s cell phone. - 338 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 [19] We next consider Said’s argument that the warrant lacked particularity. In addition to the requirement of prob- able cause, the Fourth Amendment and article I, § 7, contain a particularity requirement that a warrant describe the place to be searched and the persons or things to be seized. The par- ticularity requirement for search warrants is distinct from, but closely related to, the requirement that a warrant be supported by probable cause. State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019). A purpose of the particularity requirement for a search warrant is to prevent the issuance of warrants on loose, vague, or doubtful bases of fact. Id. [20] To satisfy the particularity requirement of the Fourth Amendment, a warrant must be sufficiently definite to enable the searching officer to identify the property authorized to be seized. Id. The degree of specificity required depends on the circumstances of the case and on the type of items involved. Id. A search warrant may be sufficiently particular even though it describes the items to be seized in broad or generic terms if the description is as particular as the supporting evidence will allow, but the broader the scope of a warrant, the stronger the evidentiary showing must be to establish probable cause. Id. As relevant to the instant case, a warrant for the search of the contents of a cell phone must be sufficiently limited in scope to allow a search of only that content that is related to the prob- able cause that justifies the search. Id. [21] The purpose of the particularity requirement as it relates to warrants is to prevent general searches, and whether a warrant is insufficiently particular depends upon the facts and circumstances of each case. State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). As a general rule, the description must enable officers to ascertain and identify the items to be seized with reasonable certainty and little chance of confusion or uncertainty. Id. With regard to particularity, Said’s argument focuses spe- cifically on paragraph (i) of Sloan’s affidavit, which requests a search of internet history “relat[ed] to the purchase or - 339 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 manufacturing of re-encoded devices and/or the sale of the proceeds of the transactions.” He notes that the request was not to search for internet history evidencing the crime being investigated and as a result merely served to request a general license to search the internet history. Said also argues that the request and the warrant issued thereon are overbroad because they allowed a search of internet history without limiting the search to evidence related to the homicide investigation. Said argues this was similar to the “‘any information’” warrant that we found to be insufficiently particular in State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014). See brief for appellant at 37. [22] We conclude the warrant was sufficiently particular. The record shows that the reference to a different crime in paragraph (i) of the affidavit was clearly an inadvertent error that was carried over to this warrant from a form in a prior matter. An inadvertent defect in a search warrant may be cured by reference to the affidavit used to obtain the warrant if the affidavit is incorporated in the warrant or referred to in the warrant and the affidavit accompanies the warrant. State v. Stelly, supra. In this case, the affidavit was referred to in the warrant, and although it also contained the erroneous reference to a different crime, the inadvertent defect was only one item in a list of the types of evidence to be searched. The error is apparent in context because other items in the list, as well as the warrant and the affidavit read as a whole, make clear that the evidence being sought in the search of the cell phone was evidence related to the investigation of the assault of Khamis and not the crime that was erroneously referenced. We also find that the warrant was not overbroad. Although the warrant listed various types of data that could be searched for on the cell phone, it listed specific types of evidence, and unlike the warrant in Henderson, it did not authorize a search for “‘any information.’” See brief for appellant at 37. We distinguished Henderson in State v. Goynes, 303 Neb. 129, 144, 927 N.W.2d 346, 357 (2019), in which we found a - 340 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 warrant to be sufficiently particular because it identified that it was a warrant for the investigation of a specific homicide and because although it included an expansive list of types of data that could be searched, it “did not contain such unquali- fied language that would permit the search of the cell phone for ‘“any other information.”’” In the list of types of data that could be searched in this case, various items specified data “relating to the relationship of Khamis and [Said] and communication pertaining to the physical altercation occur- ring on [April 12, 2017].” Although this specification was not included as to each item, the warrant read as a whole was clear that the search was limited to data that would provide evidence relevant to the investigation of Said in connection with the assault of Khamis. Furthermore, as the State notes, there was no danger that the officer executing the search warrant would not know the target of the search was evidence related to the homicide inves- tigation regarding Khamis, because the same officer prepared the affidavit and conducted the search. We also note that the evidence found and used in the trial was relevant to this crime and that there is no indication any of the evidence found and used in this trial was not relevant to the probable cause that supported the warrant. We determine that the warrant in this case was supported by probable cause and was sufficiently particular. We there- fore conclude the district court did not err when it overruled Said’s motion to suppress evidence found in the search of the cell phone. District Court Did Not Abuse Its Discretion or Deprive Said of Complete Defense When It Refused Evidence Regarding Khamis’ Mental Health, Alcoholism, and Use of Prescription Drugs. Said next claims the court erred when it prohibited him from presenting evidence regarding Khamis’ mental health issues, his alcoholism, and his use of prescription drugs. He - 341 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 asserts that such evidence was critical to his defense because it was relevant to his defense that Khamis was the aggressor and that Said therefore acted in self-defense; he also argues the evidence was relevant to his alternate defense that Khamis’ death was caused by something other than a blow to the head inflicted by Said. He further argues that he was deprived of a fair trial when he was prohibited from presenting such evi- dence. We determine that the court did not abuse its discretion when it excluded the evidence based on its determinations regarding relevance and that such rulings did not deprive Said of his right to present a complete defense. Said’s arguments focus on evidence regarding (1) Khamis’ history of alcoholism; (2) Khamis’ mental health history, which included suicidal tendencies; and (3) the purposes, side effects, and adverse reactions associated with prescription drugs that were found on Khamis’ person or found in his system at the autopsy. Said argues that such evidence was relevant to his defenses that (1) Khamis was the first aggressor and Said acted in self-defense and that (2) Khamis died from a cause unrelated to the altercation between Said and Khamis. [23] In view of Said’s assignments of error, we consider the propriety of the evidentiary rulings and whether the rulings deprived Said of the right to present a complete defense. We have stated that whether rooted directly in the Due Process Clause of the 14th Amendment or in the Compulsory Process or Confrontation Clauses of the 6th Amendment, the fed- eral Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017). However, the accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under stan- dard rules of evidence. Id. [24,25] Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Neb. Evid. R. 401, - 342 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 Neb. Rev. Stat. § 27-401 (Reissue 2016). Relevancy requires only that the probative value be something more than noth- ing. State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019). But, “[e]vidence which is not relevant is not admissible.” Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016). And, “[a]lthough relevant, evidence may be excluded if its proba- tive value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016). Unfair prejudice means an undue tendency to suggest a decision based on an improper basis. State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019). We first address the court’s rulings in light of Said’s argu- ment that each type of evidence noted above was relevant to his defense of self-defense. Regarding evidence of Khamis’ alcoholism, the court ruled that the evidence was not relevant and not admissible without a showing of a nexus between his alcoholism and aggressive behavior at the time of his alterca- tion with Said. The court similarly found that Khamis’ “prior suicide attempt” and other mental health issues were not rele- vant. The court also stated that to the extent evidence regarding Khamis’ mental health history might have minimal probative value regarding his behavior at the time of the altercation, such probative value was substantially outweighed by the risk of unfair prejudice. Regarding the prescription drugs found on Khamis’ per- son—Prozac and Olanzapine—the court found that there was not a sufficient showing that either drug caused aggression. The State further notes that Olanzapine was not found to be in Khamis’ system and that therefore, there was no showing Khamis was under its effect at the time of the altercation. The drugs found in Khamis’ system in the toxicology screen- ing were an “anticonvulsant and . . . an antidepressant.” The antidepressant was presumably Prozac, and the court found - 343 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 that although there was evidence that “hostility” and “agita- tion” were shown to be side effects of Prozac, Said had not established a nexus between Prozac and aggressive behavior. The court’s ruling allowed Said to ask questions regarding the effects of the anticonvulsant drug, Keppra, and Said did elicit testimony that effects of Keppra include “aggression, agitation, depression, and irritability.” We determine that it was within the court’s discretion to rule that without a showing of a nexus between the offered evidence and Khamis’ behavior at the time of the altercation, the evidence was not relevant to whether Khamis might have been the aggressor and whether Said acted in self-defense. Regarding whether exclusion of the evidence deprived Said of a fair trial, as noted above, the right to present a complete defense does not allow a defendant “an unfettered right to offer testimony that is . . . otherwise inadmissible under standard rules of evidence.” State v. McCurry, 296 Neb. 40, 66, 891 N.W.2d 663, 681 (2017). In further support of our understand- ing that Said was not harmed by the district court’s ruling, we also note that Said was able to present relevant evidence in regard to self-defense, including asking a witness about Khamis’ alcohol use at or around the time of the altercation, and he was able to present evidence that aggression is a side effect of Keppra, which was found in Khamis’ system. Using this evidence, Said was able to argue in closing arguments that the combination of alcohol and Keppra could have caused Khamis to be aggressive in the altercation. And the jury was instructed on Said’s theory of self-defense. We next address the relevance of the evidence to Said’s defense theory that Khamis may have died from a cause unrelated to the altercation. Said did not appear to argue that Khamis’ history of alcoholism or mental health contributed to his death; instead, Said asserted that Khamis could have sus- tained injuries in a fall that was caused by the effects of the prescription drugs or the combination of the drugs and alcohol. The State notes that although there was evidence Olanzapine - 344 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 increased the risk of falls, Olanzapine—as mentioned ear- lier—was not found in Khamis’ system at the autopsy. The State also argues that neither Prozac nor Keppra was shown to cause falls. The court’s ruling focused on limiting evidence regarding the reasons the drugs might be prescribed, which would be indicative of Khamis’ mental health issues. But the court ruled that Said could “inquire on cross-examination of whether the medication led to [Khamis’] death, . . . or changed the doctor’s opinion as to the cause of death,” and whether the doctor “observed injuries consistent with seizures [or] a fall related to seizures.” We conclude that the court’s limitation of testimony regarding the purpose for which the drugs might have been prescribed was within its discretion to determine relevance and that the court did not abuse its discretion in so ruling. We also conclude that Said was not deprived of the right to present a complete defense as to the defense theory that the cause of death might have been something other than the injury inflicted by Said. The court’s rulings allowed Said to ask whether the drugs that were in Khamis’ system led to his death or whether the presence of the drugs changed the doctor’s conclusion that his death was a result of the blunt force trauma to Khamis’ head. We conclude that the court did not abuse its discretion in its rulings regarding the relevance of the offered evidence, and we further conclude that such rulings did not deprive Said of his right to present a complete defense as to either of the asserted defenses. District Court Did Not Err and Did Not Deprive Said of Right of Confrontation When It Refused Cross-Examination on Issues It Determined to Lack Probative Value. Said next claims the court erred and violated his right of confrontation when it denied him the opportunity to impeach Nuri’s testimony with evidence of specific instances of Nuri’s conduct and bias. Said argues that he should have been - 345 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 allowed to impeach Nuri through cross-examination pursuant to § 27-608(2) regarding alleged misrepresentations made by Nuri on his Facebook page and regarding a pending charge against Nuri to which he had pled but in connection with which he had not yet been sentenced. We determine that the court did not abuse its discretion and did not violate Said’s right of confrontation when it disallowed cross-examination on these topics. Said argues that cross-examination on these topics should have been allowed pursuant to § 27-608(2), which provides: Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, . . . may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness be inquired into on cross-examination of the witness . . . concerning his character for truthfulness or untruthfulness . . . . Said argues that Nuri’s testimony that Said confessed to Nuri that he had struck Khamis with a metal pole was crucial to his conviction and that therefore, it was critical to Said’s defense to impeach Nuri’s testimony. He argues that Nuri’s “misrepre- sentations . . . on his Facebook page” and his pending criminal charge were both relevant to his truthfulness and that limiting Said’s cross-examination of Nuri violated his right of confron- tation. See brief for appellant at 47. An accused’s constitutional right of confrontation is vio- lated when either (1) he or she is absolutely prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness or (2) a reasonable jury would have received a sig- nificantly different impression of the witness’ credibility had counsel been permitted to pursue his or her proposed line of cross-examination. State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). In reference to § 27-608(2), we note that Said was not attempting to present extrinsic evidence of “[s]pecific - 346 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 instances of conduct” and instead was seeking to cross- examine Nuri on these topics. Therefore, the relevant portion of § 27-608(2) is that which allows such cross-examination “in the discretion of the court, if probative of truthful- ness or untruthfulness.” The statute therefore commits to the court’s discretion determinations of whether a line of cross- examination is allowed as being probative of truthfulness or untruthfulness. Regarding Nuri’s misrepresentations on Facebook, we find it was reasonable and within the court’s discretion to determine that these instances were not proba- tive of the truthfulness or untruthfulness of Nuri’s testimony in this case. Regarding Nuri’s pending criminal case, the court reasonably determined that the charge was not relevant to bias or a motivation to fabricate testimony, because Nuri had entered a plea, he had done so without benefit of a plea agreement, and Said made no offer of proof to show that Nuri’s testimony in this case was an attempt to curry favor with the State in connection with sentencing in that case. We find no abuse of the discretion afforded to the court under § 27-608(2) in either of these rulings. We also find no violation of Said’s right to confrontation. Said was not completely prohibited from cross-examining Nuri regarding his credibility, and such cross-examination included Nuri’s admission that he had been convicted of a crime of dishonesty. We do not think that testimony regard- ing the misrepresentations on Facebook or the pending charge would have given the jury a significantly different impression of Nuri’s credibility. District Court Did Not Err When It Allowed Evidence That Results of Certain DNA Tests Were Uninterpretable. Said finally claims the court erred when on cross-examination it allowed testimony by Porter regarding uninterpretable DNA testing results that Said asserts were “inconclusive” and there- fore irrelevant and unfairly prejudicial. Brief for appellant - 347 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 at 48. We conclude that the court did not abuse its discre- tion when it allowed the cross-examination. [26] Said relies on State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015), in which we held that it was error to admit evidence of inconclusive DNA testing results. We rea- soned in Johnson that inconclusive results “are irrelevant because they do not help the fact finder assess whether the defendant is or is not the source of the sample,” and we further reasoned that “because of the significance that jurors will likely attach to DNA evidence, the value of inconclusive testing results is substantially outweighed by the danger that the evidence will mislead the jurors.” 290 Neb. at 883-84, 862 N.W.2d at 774. The State concedes that the “uninterpretable” results in this case are the functional equivalent of “inconclusive” results under Johnson. Brief for appellee at 60. But the State dis- tinguishes its introduction of the results in this case from the facts in Johnson because it did not offer the evidence in its case in chief. Instead, the State argues, it cross-examined Porter regarding uninterpretable results in order to coun- ter an impression created by Porter’s testimony presented by Said. The State argues that the otherwise inadmissible evidence regarding inconclusive DNA testing results became relevant and admissible pursuant to the specific contradic- tion doctrine. [27] The specific contradiction doctrine is said to apply when one party has introduced admissible evidence that cre- ates a misleading advantage and the opponent is then allowed to introduce previously suppressed or otherwise inadmissi- ble evidence to counter the misleading advantage. State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016). It is not enough that the opponent’s contradictory proffered evidence is merely relevant; the initial evidence must have reason- ably misled the fact finder in some way. Id. In Carpenter, we stated that specific contradiction is one aspect of the “opening the door” doctrine. “Opening the door” is a rule of expanded - 348 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 relevancy which authorizes admitting evidence that would oth- erwise be irrelevant in order to respond to (1) admissible evi- dence which generates an issue or (2) inadmissible evidence admitted by the court over objection. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). In this case, Porter testified that she subjected several blood- stains on Khamis’ clothing to DNA testing. Testing of some of the stains excluded Said as a contributor, but the testing of several other stains yielded results that Porter described as uninterpretable. Said called Porter as a witness in his defense and questioned her generally about the extent of the testing she had done, and he questioned her specifically about the stains for which testing had excluded Said as a contributor. On cross- examination, the State elicited testimony that several other stains yielded uninterpretable results, and the court allowed the testimony over Said’s objections. The holding in State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015), and the specific contradiction and “opening the door” doctrines all derive from a court’s evidentiary determina- tions of relevance and whether probative value is outweighed by unfair prejudice. As such, determinations in this regard are committed to the trial court’s discretion and we uphold such determinations in the absence of an abuse of discretion. See State v. Carpenter, supra. We find no abuse of discretion by the district court in its DNA-related rulings. The court could reasonably have deter- mined that by questioning Porter generally about the scope of her testing and then questioning her about the results of only the samples that excluded him, Said may have cre- ated a misleading impression that the testing of all samples excluded him. The State elicited Porter’s otherwise inadmis- sible testimony regarding the results that were uninterpret able, and the court reasonably could have determined that such evidence had become relevant to counter the potential misleading impression that all samples excluded Said. To the extent there was a risk of unfair prejudice from testimony - 349 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. SAID Cite as 306 Neb. 314 regarding inconclusive results as we recognized in Johnson, the court reasonably could have determined that such concern was adequately mitigated by its limiting instruction that the evidence was “offered only to show what steps were taken” and was “not to be considered . . . as evidence that anyone contributed to that DNA sample.” We conclude that in this context, the court’s admission of the testimony was not an abuse of discretion. CONCLUSION Having rejected each of Said’s assignments of error, we affirm Said’s convictions and sentences. Affirmed. Funke, J., participating on briefs.	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4553901/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 AM CDT - 372 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE ON BEHALF OF MIAH S. v. IAN K. Cite as 306 Neb. 372 State of Nebraska on behalf of Miah S., a minor child, appellee, v. Ian K., appellee, and Aaron S., appellant. ___ N.W.2d ___ Filed July 2, 2020. No. S-19-937. 1. Statutes: Appeal and Error. The meaning and interpretation of statutes 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. 2. Paternity: Statutes. Paternity proceedings are purely statutory, and because such statutes modify the common law, they must be strictly construed. 3. 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. 4. Paternity: Statutes. An action to establish paternity is statutory in nature, and the authority to bring such action must be found in the statute. 5. Paternity. Read together, Neb. Rev. Stat. §§ 43-1411 and 43-1401(1) (Reissue 2016) authorize the State to bring an action to establish the paternity of a child born out of wedlock. Appeal from the Separate Juvenile Court of Lancaster County: Reggie L. Ryder, Judge. Vacated and remanded with directions to dismiss. Dalton W. Tietjen, of Tietjen, Simon & Boyle, for appellant. Patrick Condon, Lancaster County Attorney, and Haley N. Messerschmidt for appellee State of Nebraska. - 373 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE ON BEHALF OF MIAH S. v. IAN K. Cite as 306 Neb. 372 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Stacy, J. In this case, the State filed a complaint seeking to disestab- lish the paternity of Aaron S. to a child born during his mar- riage to the child’s mother and to establish paternity in another man. The separate juvenile court of Lancaster County granted the requested relief, and Aaron appeals. Because we find the State was not statutorily authorized to bring the action, we vacate the order and remand the cause with directions to dis- miss the State’s complaint. FACTS Cameo S. and Aaron S. were married on July 15, 2018. Approximately 10 months later, Cameo gave birth to a daugh- ter. Aaron was present for the birth and was listed as the father on the child’s birth certificate. 1 Genetic testing performed a few months later showed Ian K. was the child’s biological father. Based on the test results, the State filed a complaint in the district court for Lancaster County seeking to establish Ian’s paternity. On the State’s motion, the action was transferred to the separate juve- nile court, which already had jurisdiction over the child due to an abuse/neglect adjudication 2 involving Cameo but not Aaron. 3 1 See Neb. Rev. Stat. § 71-640.01 ((Reissue 2018) (when mother married at time of conception or birth, name of husband entered on birth certificate as child’s father unless court establishes paternity in another or mother and husband execute affidavits attesting husband is not father). 2 See Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). 3 See, § 43-247(10) (juvenile court has jurisdiction over “[t]he paternity or custody determination for a child over which the juvenile court already has jurisdiction”); Neb. Rev. Stat. § 43-1411.01 (Cum. Supp. 2018) (county court or separate juvenile court may determine paternity if already has jurisdiction over child). - 374 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE ON BEHALF OF MIAH S. v. IAN K. Cite as 306 Neb. 372 State’s Paternity Action The State’s complaint alleged that during the marriage of Cameo and Aaron, a child was born, but the child’s biologi- cal father was Ian, not Aaron. The State prayed for an order “finding that [Aaron] is not the biological father of said minor child [and] that [Ian] is the biological father of said child.” It is undisputed that at the time the child was born, and at the time of trial in this matter, Cameo and Aaron were married. At trial, a caseworker from the Department of Health and Human Services (DHHS) testified the child became a ward of the State immediately after birth, and the child had never lived with Cameo or Aaron. The DHHS caseworker testified that Aaron had always expressed a desire to be the child’s father and had visited the child regularly while she was in foster care. According to the caseworker, Aaron stopped visiting for a time after he learned of the genetic test results, but he had resumed visitation with the child by the time of trial. The caseworker testified that Ian had no contact with the child and had “strenuously advocated” to be allowed to relin- quish whatever rights he may be found to have with respect to the child. The caseworker did not consider either Aaron or Ian an “ideal father,” but she testified that if Aaron remained the legal father after the hearing, DHHS would provide him serv ices to address “whatever issues” he may be found to have. Aaron testified he wanted to remain the child’s father and was willing to participate in any services DHHS could offer him. He expressly stated he was willing to take full respon- sibility for the child, including financial responsibility. Aaron testified that he no longer wished to be married to Cameo and had commenced divorce proceedings that morning. Our appel- late record does not contain any other information regarding the status of the dissolution proceeding. At the conclusion of the evidence, the State asked the court to “dis-establish” Aaron as the child’s legal father and to establish Ian as the child’s father so he could effectively relin- quish his rights. The State acknowledged that Aaron wanted to - 375 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE ON BEHALF OF MIAH S. v. IAN K. Cite as 306 Neb. 372 remain the child’s father, but it suggested without elaboration that Aaron’s goal was to “circumvent the adoption process.” Ian’s counsel asked the court to dismiss the State’s paternity action, arguing that despite the results of the genetic testing, Ian had not signed an acknowledgment of paternity and Aaron remained the child’s legal father. Aaron’s counsel agreed, argu- ing that at the time of trial, Aaron was the child’s legal father and wanted to remain so. Court’s Order The separate juvenile court entered an order which pur- ported to disestablish Aaron as the child’s father and to estab- lish Ian as the child’s biological father. As to Aaron, the court found: While he was the legal father of [the child] at her birth, the evidence clearly and convincingly shows that, when considering her age [and] her previous relationship with [Aaron] there is no significant evidence that [the child] could benefit from establishing paternity with [Aaron and] it is in the best interest of [the child] to disestablish [Aaron] as her legal father. And as to Ian, the court found “he is also not a very appealing choice to be the legal and/or biological father” of the child. But the court found the genetic test results clearly established Ian as the child’s biological father, and it granted the State the relief sought in its complaint. Aaron timely appealed, and we moved the case to our docket on our own motion. ASSIGNMENTS OF ERROR Aaron assigns, summarized, that the juvenile court erred in disestablishing his paternity and in establishing Ian as the child’s father. STANDARD OF REVIEW [1] The meaning and interpretation of statutes are questions of law for which an appellate court has an obligation to reach - 376 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE ON BEHALF OF MIAH S. v. IAN K. Cite as 306 Neb. 372 an independent conclusion irrespective of the decision made by the court below. 4 ANALYSIS Under Nebraska common law, now embodied in Neb. Rev. Stat. § 42-377 (Supp. 2019), children born to parties in a mar- riage relationship “shall be legitimate unless otherwise decreed by the court.” 5 In this case, it is undisputed that Cameo and Aaron were married when the child was born. Neither Cameo, Aaron, nor Ian sought to delegitimize the child or to challenge Aaron’s status as the child’s legal father. Instead, the State filed the operative complaint expressly seeking to “disestablish” Aaron as the child’s father and to establish Ian as the biologi- cal father. The question presented here is a narrow one: Is the State statutorily authorized to bring a paternity action seeking to delegitimize a child born during a marriage relationship in order to establish biological paternity in another man? [2,3] To answer this question, we examine the statutes that govern actions to establish and disestablish paternity. In doing so, we remember that paternity proceedings are purely statu- tory, and because such statutes modify the common law, they must be strictly construed. 6 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. 7 Civil proceedings to establish the paternity of a child are governed by Neb. Rev. Stat. §§ 43-1411 (Reissue 2016) and 43-1411.01 (Cum. Supp. 2018). Section 43-1411 sets out the circumstances under which a paternity action may be instituted 4 See State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020). 5 See, also, Neb. Rev. Stat. § 43-1406(2) (Reissue 2016) (“[a] child whose parents marry is legitimate”). 6 See State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 (2014). 7 In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020). - 377 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE ON BEHALF OF MIAH S. v. IAN K. Cite as 306 Neb. 372 and identifies who may institute such an action. Those autho- rized to bring an action to establish paternity under § 43-1411 include the mother or the alleged father of a child, the guard- ian or next friend of a child, and the State. Section 43-1411.01 dictates in which courts an action to establish paternity may be filed. Civil proceedings to disestablish paternity are governed by Neb. Rev. Stat. § 43-1412.01 (Reissue 2016), which provides in relevant part: An individual may file a complaint for relief and the court may set aside a final judgment, court order, admin- istrative order, obligation to pay child support, or any other legal determination of paternity if a scientifically reliable genetic test performed in accordance with sec- tions 43-1401 to 43-1418 establishes the exclusion of the individual named as a father in the legal determination. In Alisha C. v. Jeremy C., 8 we held that the plain language of § 43-1412.01 is not limited to setting aside legal determina- tions of paternity regarding children born out of wedlock, but is broad enough to also encompass disestablishing legal deter- minations regarding children born during a marriage. In the instant case, we requested supplemental briefing addressing whether the State is an “individual” authorized to bring a civil proceeding to disestablish a child’s paternity under § 43-1412.01. Having received and considered that briefing, it is notable that the parties agree the State is not an “individ- ual” who may file a complaint to disestablish paternity under § 43-1412.01. But the State, in its supplemental briefing, contends it did not bring an action to disestablish paternity under § 43-1412.01, but, rather, it initiated a proceeding to establish paternity under § 43-1411. The State argues it is one of several par- ties expressly authorized under that statute to institute such an action. 8 Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012). - 378 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE ON BEHALF OF MIAH S. v. IAN K. Cite as 306 Neb. 372 It is true that § 43-1411 authorizes the State to bring a civil proceeding “to establish the paternity of a child.” But the definition of “child” as used in § 43-1411 is governed by Neb. Rev. Stat. § 43-1401 (Reissue 2016), which provides in relevant part: For purposes of sections 43-1401 to 43-1418: (1) Child shall mean a child under the age of eighteen years born out of wedlock; (2) Child born out of wedlock shall mean a child whose parents were not married to each other at the time of its birth, except that a child shall not be considered as born out of wedlock if its parents were married at the time of its conception but divorced at the time of its birth. The definition of legitimacy or illegitimacy for other pur- poses shall not be affected by the provisions of [sections 43-1401 to 43-1418]. The statutory definitions of the terms “child” and “child born out of wedlock” were enacted in 1994 and have remained unchanged since that time. 9 Because the State relies exclu- sively on § 43-1411 as the statutory authority for commencing this action, we find these statutory definitions are dispositive. [4,5] An action to establish paternity is statutory in nature, and the authority to bring such action must be found in the statute. 10 Read together, §§ 43-1411 and 43-1401(1) authorize the State to bring an action to establish the paternity of a child born out of wedlock. The child in this case was not born out of wedlock; she was born during the marriage of Cameo and Aaron. Consequently, when the State filed this action, the child was the legitimate daughter of Cameo and Aaron and was not a child on whose behalf the State was authorized to initiate a civil proceeding to establish paternity under § 43-1411. To the extent our 1998 opinion in State on behalf of Hopkins v. Batt 11 9 See 1994 Neb. Laws, L.B. 1224. 10 See Bryan M. v. Anne B., 292 Neb. 725, 874 N.W.2d 824 (2016). 11 State on behalf of Hopkins v. Batt, 253 Neb. 852, 573 N.W.2d 425 (1998). - 379 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE ON BEHALF OF MIAH S. v. IAN K. Cite as 306 Neb. 372 held otherwise, we expressly overrule it as contrary to the plain language of the governing statutes. The State’s lack of statutory authority to bring this paternity action under § 43-1411 requires that we vacate the separate juvenile court’s order in all respects and remand the cause with directions to dismiss the State’s complaint. CONCLUSION Because the child at issue in this case was not born out of wedlock and was instead the legitimate child of Aaron, the State lacked statutory authority to institute an action under § 43-1411 to establish the child’s paternity. The order of the separate juvenile court is vacated, and the cause is remanded with directions to dismiss the State’s complaint. Vacated and remanded with directions to dismiss.	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4553904/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 AM CDT - 350 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports DOERR v. DOERR Cite as 306 Neb. 350 Tammy M. Doerr, appellee, v. Brian P. Doerr, appellant. ___ N.W.2d ___ Filed July 2, 2020. No. S-19-418. 1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court’s determinations regarding custody, child support, division of property, alimony, and attorney fees. 2. Evidence: Appeal and Error. In a review de novo on the record, an appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent con- clusions with respect to the matters at issue. 3. 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. 4. Divorce: Property Division. In a divorce action, the purpose of a prop- erty division is to distribute the marital assets equitably between the parties. 5. Property Division. Equitable property division is a three-step process. The first step is to classify the parties’ property as marital or nonmarital. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties. 6. ____. As a general rule, a spouse should be awarded one-third to one- half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case. 7. Divorce: Property Division. The marital estate does not include prop- erty that a spouse acquired before the marriage, or by gift or inheritance. - 351 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports DOERR v. DOERR Cite as 306 Neb. 350 8. Divorce: Property Division: Proof. The burden of proof rests with the party claiming that property is nonmarital. 9. Divorce: Property Division. Separate property becomes marital prop- erty by commingling if it is inextricably mixed with marital property or with the separate property of the other spouse. If the separate property remains segregated or is traceable into its product, commingling does not occur. 10. Courts: Evidence. A court is not bound to accept a party’s word in lieu of documentary evidence; a court is able to assess the credibility of the evidence presented to it and determine to what evidence to give weight. Appeal from the District Court for Dodge County: Geoffrey C. Hall, Judge. Affirmed. Michael J. Wilson, of Berry Law Firm, for appellant. Michael J. Tasset, of Johnson & Mock, P.C., L.L.O., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Heavican, C.J. INTRODUCTION The district court dissolved the marriage of Tammy M. Doerr and Brian P. Doerr. Brian appeals the court’s property division. We affirm. BACKGROUND Tammy and Brian met in March 2008 and were engaged later that year. The couple was married in April 2012. Both had children from previous marriages, but no children were born to the couple. Tammy filed for divorce in September 2016. A trial was held, and a decree dissolving the parties’ marriage was filed February 19, 2019. Real Property. As relevant on appeal, the district court for Dodge County found that Tammy and Brian worked together to purchase - 352 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports DOERR v. DOERR Cite as 306 Neb. 350 and remodel the couple’s home on Howard Street in Fremont, Nebraska (Howard Street home), during the marriage. The court valued the home at $350,000. The district court found that Tammy invested $40,000 and that Brian invested $50,000 as a downpayment. The court further found that the funds used to pay for the home were commingled in the time before and after the purchase of the home. The district court therefore awarded the home to Brian, but awarded half of the home’s value, or $165,000, to Tammy, less $10,000 to account for Brian’s larger share of the home’s downpayment. Bank Accounts. The couple had various bank accounts, some of which were jointly held and others which were individually held. At or near the time of separation, Tammy transferred funds from the parties’ joint money market account with Union Bank into her individual checking account with another bank. The district court found that $108,600 of the funds transferred were marital and ordered an equal division—$54,300 to each party. The par- ties’ other bank accounts were awarded to the party in whose name each respective account was held. Debts. The district court ordered that each party should pay marital debts held in their respective names, as well as debts individu- ally incurred since the filing of the divorce action. Equalization Payment. Based on the court’s determination of the various equity shares of each of the parties, the district court ordered Brian to make an equalization payment to Tammy in the amount of $110,700. ASSIGNMENTS OF ERROR Brian assigns that the district court erred in (1) awarding Tammy $165,000 in equity in the Howard Street home, (2) awarding Tammy $54,300 from the Union Bank account, - 353 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports DOERR v. DOERR Cite as 306 Neb. 350 (3) failing to award Brian $12,831.67 in funds held in a U.S. Bank account controlled by Tammy, (4) failing to order Tammy to pay one-half of $16,207.76 in debts, and (5) order- ing Brian to pay an equalization payment to Tammy in the amount of $110,700. STANDARD OF REVIEW [1] In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court’s determinations regarding custody, child support, division of property, alimony, and attor- ney fees. 1 [2] In a review de novo on the record, an appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue. 2 [3] A judicial abuse of discretion exists if the reasons or rul- ings 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 ANALYSIS On appeal, Brian’s argument centers around what he claims are the proceeds from his separate property, and he alleges that the district court erred in awarding half of those proceeds to Tammy. In summary, Brian argues that he paid the entire $262,000 purchase price of the Howard Street home from the proceeds he earned selling a home he had owned in Fontanelle, Nebraska. Brian further asserts that the remainder of the pro- ceeds were deposited into the couple’s money market account and that the balance of that account never dipped below the amount of the proceeds he deposited. 1 White v. White, 304 Neb. 945, 937 N.W.2d 838 (2020). 2 Id. 3 Id. - 354 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports DOERR v. DOERR Cite as 306 Neb. 350 Tammy later transferred $108,600 from that money market account into her individual checking account. Brian contends that those funds are traceable to the sale of his separate prop- erty, that the funds are themselves separate property, and that the district court erred in awarding Tammy half of that amount. [4-6] In a divorce action, the purpose of a property division is to distribute the marital assets equitably between the parties. 4 Equitable property division is a three-step process. 5 The first step is to classify the parties’ property as marital or nonmari- tal. 6 The second step is to value the marital assets and marital liabilities of the parties. 7 The third step is to calculate and divide the net marital estate between the parties. 8 As a general rule, a spouse should be awarded one-third to one-half of the marital estate, the polestar being fairness and reasonableness as determined by the facts of each case. 9 [7-9] The marital estate does not include property that a spouse acquired before the marriage, or by gift or inherit ance. 10 The burden of proof rests with the party claiming that property is nonmarital. 11 Setting aside nonmarital property is simple if the spouse possesses the original asset, but can be problematic if the original asset no longer exists. 12 Separate property becomes marital property by commingling if it is inextricably mixed with marital property or with the separate property of the other spouse. 13 If the separate property remains 4 Neb. Rev. Stat. § 42-365 (Reissue 2016). 5 White, supra note 1. 6 Id. 7 Id. 8 Id. 9 Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017). 10 Id. 11 Id. 12 Id. 13 Id. - 355 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports DOERR v. DOERR Cite as 306 Neb. 350 segregated or is traceable into its product, commingling does not occur. 14 Equity in Howard Street Home. In his first assignment of error, Brian argues that the district court erred in awarding Tammy roughly half of the equity in the Howard Street home, contending he proved at trial that he contributed all of the purchase price of the home. He also assigns that the district court erred in valuing the home at $350,000. We turn first to the value of the martial home as determined by the district court. The record includes numerous values for the home, but one of those values was $350,000, a value deter- mined by a real estate professional. The district court did not err in placing this value on the home. We turn next to Brian’s contention regarding Tammy’s equity in the home. Brian contends that he paid the $1,000 “earnest deposit” on the residence and paid the entire $50,000 downpayment. Brian further asserts that he sold his house in Fontanelle and that with those proceeds, he paid off the debt on the Howard Street home. Conversely, Tammy argues that she paid $40,000 of the downpayment for the Howard Street home with cash she had in her safe. The facts surrounding the Howard Street home are some- what complicated. The property was purchased by Brian in April 2012 for $262,000. At the closing, there was a balance due of $259,691.63, which credited the purchase price in vari- ous particulars, including an earnest payment of $1,000. There is nothing in the record to show how the funds at the closing of the Howard Street home were paid. Brian argues that he came up with $50,000—a combination of $10,000 cash and $40,000 from various other sources, including liquidating his son’s college savings plan and taking at least two with- drawals from his individual retirement account. Brian testified that this money was not so much a downpayment as funds that 14 Id. - 356 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports DOERR v. DOERR Cite as 306 Neb. 350 were owed because the house did not appraise out and the bank would not fund the entire purchase price. Brian offered into evidence statements showing the college savings plan and the individual retirement account transac- tions, as well as deposit slips he testified were for a combi- nation of cash and check deposits. Tammy relies on many of the same deposit slips to show that she had given Brian $40,000 to deposit in the bank. Tammy testified that she had this money prior to the marriage and even when she declared bankruptcy, but that she had not declared the money in the bankruptcy proceedings. The burden to show that the Howard Street home was paid for with proceeds from the Fontanelle home, and thus was Brian’s separate property, was on Brian. Brian offered documentation that certain deposits had been made in the time prior to the closing on the house. He also testified that the full amount of the money he deposited was his and that the money actually went to paying the downpayment on the Howard Street home. [10] Of course, a party’s testimony alone may sustain that party’s burden of proof. But a court is not bound to accept a party’s word in lieu of documentary evidence; a court is able to assess the credibility of the evidence presented to it and determine to what evidence to give weight. 15 In this case, the district court found Brian’s testimony and his accompany- ing documentary evidence not credible and therefore found that the Howard Street home was marital property. Accordingly, the district court awarded roughly half of the home’s equity to Tammy. We cannot find that this decision was an abuse of discretion. There is no merit to Brian’s first assign- ment of error. Bank Accounts. In his second and third assignments of error, Brian argues that the district court erred in its division of the parties’ bank 15 See Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019). - 357 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports DOERR v. DOERR Cite as 306 Neb. 350 accounts. Most notably, Brian argues the district court erred in awarding Tammy $54,300, which he claims were proceeds from the sale of the Fontanelle house, and thus his separate property, that were deposited into the couple’s money mar- ket account. It is not disputed that Brian had proceeds of $187,399.82 after the sale of the Fontanelle property. Brian maintains these proceeds were deposited into his checking account, less the payment of some taxes, and deposited into the couple’s money market account to be used only as a cushion for the couple’s checking account. Therefore, the proceeds are traceable and remain his separate property up to at least $117,000. There is nothing in the record to support Brian’s assertion that the money was transferred as he contends. According to the bank statement for January 4 to February 4, 2014, there was a beginning balance of $150,000.41 in the money market account. But those same records show that during the same statement period, $35,588.37 was deposited into that account. There is no indication that the account had not previously existed or that the proceeds of the sale of the Fontanelle house were $150,000.41. It is Brian’s burden to show that the funds were separate property. The district court concluded that he failed to do so, and we find no error in that conclusion. By extension, then, when Tammy emptied the money mar- ket account a few years later, she had a right to those funds. The district court did not err in awarding Tammy half of the $108,600 in her possession and in awarding the other half to Brian. In addition to the Union Bank account, Tammy had a separate checking account with U.S. Bank with a balance of approximately $12,831.67. Brian argues that he is entitled to one-half of that amount because Tammy did not prove it was her separate property. But Tammy did not argue it was her separate property. The district court awarded Tammy the accounts in her name and awarded Brian the accounts in his name. It was not error for - 358 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports DOERR v. DOERR Cite as 306 Neb. 350 the court to award the accounts in this manner, and there is no merit to Brian’s second and third assignments of error. Debts. In his fourth assignment of error, Brian assigns that the district court erred by not equally dividing marital debt com- prising a U.S. Bank credit card balance of $6,439.76 and a bill for preseparation renovations for $9,768. There was docu- mentary evidence of these debts in the record; however, the district court simply ordered each party to pay all debts in that party’s name, as well as debts individually incurred by each since the filing of the divorce action. The court reasoned that it “cannot and will not account for which party paid for the butter or which party paid for the eggs during the course of the marriage.” The amount of debt at issue here is approximately $8,000. Even assuming that the court should have ordered Tammy to pay that portion of the debt, such would not make the district court’s division of property erroneous. The court’s reasoning that it was not going to parse out every purchase supports its conclusion. There is no merit to this assignment of error. Equalization Payment. Having concluded that the district court did not err in its division of the marital estate, we likewise find no merit to Brian’s contention that the amount of the equalization payment was in error. As such, there is no merit to Brian’s final assign- ment of error. CONCLUSION The decision of the district court is affirmed. Affirmed.	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4553908/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 AM CDT - 250 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports BRUMBAUGH v. BENDORF Cite as 306 Neb. 250 Kirk E. Brumbaugh, appellant, v. Meegan Bendorf, appellee. ___ N.W.2d ___ Filed June 26, 2020. No. S-19-732. 1. Attorney Fees: Appeal and Error. A trial court’s decision awarding or denying attorney fees will be upheld absent an abuse of discretion. 2. Costs: Appeal and Error. The decision of a trial court regarding taxing of costs is reviewed for an abuse of discretion. 3. Federal Acts: Claims: Courts. A state court may use procedural rules applicable to civil actions in the state court unless otherwise directed by a federal act, but substantive issues concerning a claim under the act are determined by the provisions of the act and interpretive decisions of the federal courts construing the act. 4. Judgments: Appeal and Error. As a general proposition, an appellate court does not require a district court to explain its reasoning. 5. 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. 6. Intercepted Communications: Courts: Attorney Fees. Whether rea- sonable attorney fees should be awarded under 18 U.S.C. § 2520 (2018) or Neb. Rev. Stat. § 86-297 (Reissue 2014) is addressed to the trial court’s discretion. 7. Attorney Fees. When an attorney fee is authorized, the amount of the fee is addressed to the trial court’s discretion. 8. ____. If an attorney seeks a statutory attorney fee, that attorney should introduce at least an affidavit showing a list of the services rendered, the time spent, and the charges made. 9. ____. An award of attorney fees involves consideration of such factors as the nature of the case, the services performed and results obtained, the length of time required for preparation and presentation of the case, the customary charges of the bar, and general equities of the case. - 251 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports BRUMBAUGH v. BENDORF Cite as 306 Neb. 250 10. Statutes. Statutory language is to be given its plain and ordinary meaning. 11. Intercepted Communications: Costs. Neb. Rev. Stat. § 25-1708 (Reissue 2016) does not apply to a discretionary award of reasonable litigation expenses under either 18 U.S.C. § 2520 (2018) or Neb. Rev. Stat. § 86-297 (Reissue 2014). 12. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. Appeal from the District Court for Douglas County: Kimberly Miller Pankonin, Judge. Affirmed. Karl von Oldenburg, of BQ & Associates, P.C., L.L.O., for appellant. Karen S. Nelson, of Carlson & Burnett, L.L.P., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Cassel, J. INTRODUCTION After Kirk E. Brumbaugh obtained a jury verdict for less than the statutory minimum, he moved for attorney fees autho- rized but not mandated by statute. The district court denied the request. On appeal, we decline Brumbaugh’s invitation to abandon our longstanding procedure and to instead require that a trial court provide an explanation of its reasons regarding a fee decision. Finding no abuse of discretion, we affirm the dis- trict court’s judgment awarding no fees or costs. BACKGROUND Complaint and Judgment Brumbaugh sued Meegan Bendorf (and Bank of America, which was dismissed with prejudice after trial) under fed- eral 1 and state 2 wiretapping statutes and under Neb. Rev. 1 18 U.S.C. § 2520 (2018). 2 Neb. Rev. Stat. § 86-297 (Reissue 2014). - 252 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports BRUMBAUGH v. BENDORF Cite as 306 Neb. 250 Stat. § 20-203 (Reissue 2012). The relief requested in the complaint included damages, injunctive relief, attorney fees, and costs. The allegations of the complaint arose out of Bendorf’s interception of Brumbaugh’s Bank of America online credit card account records. The complaint alleged that during the pendency of divorce and child custody modification proceed- ings between Brumbaugh and Bendorf, Bendorf requested that Bank of America send Brumbaugh’s credit card statements and account activity to an email address that she maintained. According to Bendorf’s responsive pleading, the email account was a joint account that she created either before or during her marriage to Brumbaugh. She affirmatively alleged that Brumbaugh’s damages were caused by the actions or inactions of himself or a third party or by intervening causes over which she had no control. The matter proceeded to a jury trial. The court instructed the jury that if it found in favor of Brumbaugh, he was entitled to recover “[s]tatutory damages of whichever is the greater of $100.00 per day, for each day of violation, or $10,000.00.” The jury found that Brumbaugh met his burden of proof as to both the federal and state wiretapping claims and awarded damages of $4,800. Brumbaugh promptly filed a motion for judgment notwithstanding the verdict and a motion to alter or amend, both based on the jury’s award of damages. The court sus- tained the motions, entering judgment in favor of Brumbaugh on both wiretapping claims and awarding statutory damages of $10,000. Attorney Fees Brumbaugh subsequently filed a motion for attorney fees. He alleged that he was limiting his request for attorney fees to those related to Bendorf’s portion of the case only and that he was not requesting fees for any time spent correspond- ing with Bendorf’s counsel or in connection with inspec- tion of Bendorf’s computers. The motion requested an order - 253 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports BRUMBAUGH v. BENDORF Cite as 306 Neb. 250 “granting attorney fees and costs in this matter in the amount of $18,551.08 for Attorney [2] (including costs) and $6,250.00 for Attorney [1], for a total of $24,801.08.” During a hearing on the motion, the court received three exhibits offered by Brumbaugh. The first exhibit was Attorney 2’s affidavit, which attached “[n]ot all of [the legal time he spent on the matter], but some of it.” It contained itemized billing amounting to $16,850 and itemized costs of $1,701.08 for a total of $18,551.08. The second exhibit was an attorney fee affidavit by Attorney 1, who had commenced the action on Brumbaugh’s behalf. It accounted for 21 hours of his time at an hourly rate of $250, for a total request of $5,250. Brumbaugh also offered an affidavit prepared by Bendorf’s counsel, which showed “the time she put into it up to the point of trial.” According to the exhibit, Bendorf had incurred attor- ney fees of $20,894.80. In argument during the hearing, Brumbaugh’s attorney stated that he tried to limit his fee request to time addressing the claims against Bendorf and not Bank of America, that he was not requesting $4,500 relating to digital forensics, and that he “truly narrowed down the times.” Later, the court entered an order stating: “The Court finds that [Brumbaugh’s] Motion for Attorney Fees should be and is Denied. Case disposed of.” Brumbaugh appealed from the denial of his motion for attor- ney fees, and we moved the case to our docket. 3 As authorized by court rule, we submitted the case without oral argument. 4 ASSIGNMENTS OF ERROR Brumbaugh assigns that the district court erred in (1) failing to provide a concise and clear explanation of why it denied attorney fees and costs, (2) failing to award any attorney fees pursuant to § 2520 and § 86-297, and (3) failing to address or award costs to him as prevailing party. 3 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018). 4 See Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2017). - 254 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports BRUMBAUGH v. BENDORF Cite as 306 Neb. 250 STANDARD OF REVIEW [1] A trial court’s decision awarding or denying attorney fees will be upheld absent an abuse of discretion. 5 [2] The decision of a trial court regarding taxing of costs is reviewed for an abuse of discretion. 6 ANALYSIS Explanation of Fee Award Not Required Brumbaugh sought attorney fees authorized by both a fed- eral 7 and a state 8 statute. The district court denied the request without explanation. An initial issue is whether federal or state law controls in this state court proceeding. Brumbaugh directs our attention to federal case law call- ing for an explanation of reasons for an attorney fee award. In connection with attorney fees under 42 U.S.C. § 1988 (2012), the U.S. Supreme Court emphasized that the trial court has discretion to determine the amount of attorney fees to award and stated: It remains important, however, for the district court to provide a concise but clear explanation of its reasons for the fee award. When an adjustment is requested on the basis of either the exceptional or limited nature of the relief obtained by the plaintiff, the district court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained. 9 The Supreme Court later repeated the importance of an explanation for fee awards under § 1988: “It is essential that 5 State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 924 N.W.2d 664 (2019). See, also, Morford v. City of Omaha, 98 F.3d 398 (8th Cir. 1996). 6 Millard Gutter Co. v. American Family Ins. Co., 300 Neb. 466, 915 N.W.2d 58 (2018). 7 § 2520. 8 § 86-297. 9 Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). - 255 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports BRUMBAUGH v. BENDORF Cite as 306 Neb. 250 the judge provide a reasonably specific explanation for all aspects of a fee determination, including any award of an enhancement. Unless such an explanation is given, adequate appellate review is not feasible . . . .” 10 Specifically with respect to fees under § 2520, the Eighth Circuit has stated that the judge should provide an explanation of the reasons for a fee award. 11 State courts are bound by the U.S. Supreme Court’s inter- pretation of federal statutes. 12 While our research uncovered no U.S. Supreme Court case addressing § 2520, we recognize that federal substantive law governs the merits of the fed- eral claim. [3] But the same is not true for procedures that must be followed in state court. “‘The general rule, “bottomed deeply in belief in the importance of state control of state judicial procedure, is that federal law takes the state courts as it finds them.” . . .’” 13 In the context of disposing of a claim under a different federal act, 14 we stated that a state court may use procedural rules applicable to civil actions in the state court unless otherwise directed by the federal act, but substantive issues concerning a claim under the act are determined by the provisions of the act and interpretive decisions of the federal courts construing the act. 15 [4] Nothing in the text of § 2520(b) or § 86-297(2) requires any findings regarding attorney fees. As a general proposi- tion, this court does not require a district court to explain its 10 Perdue v. Kenny A., 559 U.S. 542, 558, 130 S. Ct. 1662, 176 L. Ed. 2d 494 (2010). 11 See Bess v. Bess, 929 F.2d 1332 (8th Cir. 1991). 12 Gillpatrick v. Sabatka-Rine, 297 Neb. 880, 902 N.W.2d 115 (2017). 13 N.M. (J.) v. Fankell, 520 U.S. 911, 919, 117 S. Ct. 1800, 138 L. Ed. 2d 108 (1997). 14 Federal Employers’ Liability Act, 45 U.S.C. §§ 51 through 60 (2012). 15 See Ballard v. Union Pacific RR. Co., 279 Neb. 638, 781 N.W.2d 47 (2010). - 256 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports BRUMBAUGH v. BENDORF Cite as 306 Neb. 250 reasoning. 16 A statute in our civil procedure code provides for specific findings in certain circumstances, but it requires them only upon a party’s request. 17 And Brumbaugh did not request specific findings. Unless a statute requires specific findings or we have mandated them as a matter of case law, such findings are not required. 18 Brumbaugh cited no Nebraska authority for the proposition that specific findings are required in awarding attorney fees. The only Nebraska case he cited in this regard was a Nebraska Court of Appeals decision affirming a trial court’s judgment that denied attorney fees without making explicit findings. 19 The federal court decisions calling for an explanation of an attorney fee award is a matter of federal procedure. This is not a situation where the difference between our general practice of not requiring specific findings and the federal case law calling for an explanation of a fee award would produce a different ultimate disposition. 20 We conclude the federal proce- dure does not apply in this state court civil action to either the federal claim or the state claim of Brumbaugh for fees under the wiretapping statutes. We decline Brumbaugh’s invitation to require trial courts to provide an explanation of an award of attorney fees. Denial of Attorney Fees [5,6] There is no dispute that attorney fees are discretion- ary under both the federal and state statutes. The federal statute states that any person “whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally 16 Strasburg v. Union Pacific RR. Co., 286 Neb. 743, 839 N.W.2d 273 (2013). 17 See Neb. Rev. Stat. § 25-1127 (Reissue 2016). 18 Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018). See, also, Strasburg v. Union Pacific RR. Co., supra note 16. 19 See Model Interiors v. 2566 Leavenworth, LLC, 19 Neb. Ct. App. 56, 809 N.W.2d 775 (2011). 20 See Johnson v. Fankell, supra note 13. - 257 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports BRUMBAUGH v. BENDORF Cite as 306 Neb. 250 used . . . may in a civil action recover . . . such relief as may be appropriate.” 21 The state statute reverses the order of the words “oral” and “electronic,” but is otherwise identi- cal to § 2520(a), particularly in both phrases using the word “may.” 22 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. 23 Both stat- utes then provide that appropriate relief for an action under the respective section includes reasonable attorney fees. 24 But neither statute mandates an award of such fees. Brumbaugh concedes that in both statutes, “the attorney [fee] award provision is permissive and not mandatory.” 25 Because we agree, we hold that whether reasonable attorney fees should be awarded under § 2520 or § 86-297 is addressed to the trial court’s discretion. [7] When an attorney fee is authorized, the amount of the fee also is addressed to the trial court’s discretion. 26 Because discretion is involved, a trial court’s decision award- ing or denying attorney fees will be upheld absent an abuse of discretion. 27 [8] We have generally said that if an attorney seeks a statu- tory attorney fee, that attorney should introduce at least an affidavit showing a list of the services rendered, the time spent, and the charges made. 28 We have cautioned that “[l]iti- gants who do not file an affidavit or present other evidence 21 § 2520(a) (emphasis supplied). 22 See § 86-297(1). 23 Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016). 24 See, § 2520(b)(3); § 86-297(2)(c). 25 Brief for appellant at 11. 26 See ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 N.W.2d 156 (2017). 27 Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 (2016). See, also, Morford v. City of Omaha, supra note 5. 28 ACI Worldwide Corp. v. Baldwin Hackett & Meeks, supra note 26. - 258 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports BRUMBAUGH v. BENDORF Cite as 306 Neb. 250 risk the loss of attorney fees, because of the difficulty of dis- cerning such information from the record alone.” 29 Here, both of Brumbaugh’s attorneys filed affidavits in support of the fee request. Brumbaugh argues that his attorneys followed “good ‘billing judgment’” by limiting his billing to only the successful claim and for “reduc[ing] the billing on the successful claim to bill- ing for actual legal process.” 30 We note that the fee affidavits of Brumbaugh’s attorneys do not show what the total fees were before deductions for the portion of the case against Bank of America. [9] An award of attorney fees involves consideration of such factors as the nature of the case, the services performed and results obtained, the length of time required for prepara- tion and presentation of the case, the customary charges of the bar, and general equities of the case. 31 There is nothing in our record to suggest that the district court did not consider these factors. We are mindful that the district court had a far greater understanding of the litigation involved here—it was involved from commencement of the case and ultimately conducted a jury trial. In contrast, our record is limited to filings in the transcript—over 400 pages worth—and a bill of exceptions containing only the hearing on attorney fees. The bill of excep- tions excludes all pretrial proceedings, the jury trial record, and all other posttrial proceedings. What we can gather from the transcript is that Brumbaugh and Bendorf were formerly married, that this action was drawn out over nearly 3 years, and that the jury believed Brumbaugh was entitled to damages of only $4,800, which award the court increased to $10,000— the statutory minimum under § 2520(c)(2) and § 86-297(3)(b). In other words, while Brumbaugh obtained a jury verdict in 29 Garza v. Garza, 288 Neb. 213, 221, 846 N.W.2d 626, 633 (2014). 30 Brief for appellant at 12. 31 ACI Worldwide Corp. v. Baldwin Hackett & Meeks, supra note 26. - 259 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports BRUMBAUGH v. BENDORF Cite as 306 Neb. 250 his favor, it was less than half of the minimum damages man- dated by both statutes (despite jury instructions laying out Brumbaugh’s right to statutory damages). On this record, we cannot say that the district court abused its discretion in award- ing no attorney fees. Costs Brumbaugh also argues that the district court abused its discretion in failing to address and award costs. The federal statute and the state statute each allow as relief the award of “other ligation costs reasonably incurred.” 32 [10,11] Brumbaugh directs our attention to a Nebraska stat- ute stating “costs shall be allowed,” 33 but the statute is not applicable here. The statute states: “Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff . . . upon a judgment in favor of the plaintiff, in actions for the recovery of money only or for the recovery of specific real or personal property.” 34 Statutory lan- guage is to be given its plain and ordinary meaning. 35 Here, § 2520 and § 86-297 “otherwise provide[]” 36 by making the costs discretionary. We hold that § 25-1708 does not apply to a discretionary award of reasonable litigation expenses under either § 2520 or § 86-297. We cannot say that the district court abused its discretion by not awarding litigation costs. Acceptance of Benefits [12] Bendorf argues that Brumbaugh may not prosecute the appeal, because he has accepted the benefit of the judgment. According to a supplemental transcript, Bendorf paid $5,000 toward the judgment through the clerk of the district court 32 See, § 2520(b)(3); § 86-297(2)(c). 33 Neb. Rev. Stat. § 25-1708 (Reissue 2016). 34 Id. (emphasis supplied). 35 Brown v. State, 305 Neb. 111, 939 N.W.2d 354 (2020). 36 § 25-1708. - 260 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports BRUMBAUGH v. BENDORF Cite as 306 Neb. 250 in June 2019 and the check was deposited into Brumbaugh’s account. Having rejected the arguments raised by Brumbaugh, it is not necessary to address whether he waived the right to appeal by accepting partial payment of the judgment. An appel- late court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 37 CONCLUSION We conclude that the district court did not abuse its discre- tion in declining to award attorney fees or costs to Brumbaugh. Accordingly, we affirm. Affirmed. 37 Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4553909/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 AM CDT - 277 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 Cesar Aboytes-Mosqueda, appellant, v. LFA Inc. and Ismael Huerta, appellees. ___ N.W.2d ___ Filed June 26, 2020. No. S-19-967. 1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify, reverse, or set aside a Workers’ Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensa- tion court do not support the order or award. 2. ____: ____. On appellate review, the factual findings made by the trial judge of the Workers’ Compensation Court have the effect of a jury ver- dict and will not be disturbed unless clearly wrong. 3. Workers’ Compensation: Judgments: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact in a work- ers’ compensation case, an appellate court considers the evidence in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the appellate court gives the successful party the benefit of every inference reasonably deducible from the evidence. 4. Workers’ Compensation. As the trier of fact, the Workers’ Compensation Court is the sole judge of the credibility of witnesses and the weight to be given their testimony. 5. Employer and Employee: Independent Contractor: Master and Servant. Ordinarily, a person’s status as an employee or an independent contractor is a question of fact; however, where the facts are not in dis- pute and where the inference is clear that there is, or is not, a master and servant relationship, the matter is a question of law. 6. Employer and Employee: Independent Contractor. There is no single test for determining whether one performs services for another as an - 278 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 employee or as an independent contractor; rather, the following factors must be considered: (1) the extent of control which, by the agreement, the employer may exercise over the details of the work; (2) whether the one employed is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist with- out supervision; (4) the skill required in the particular occupation; (5) whether the employer or the one employed supplies the instrumentali- ties, tools, and the place of work for the person doing the work; (6) the length of time for which the one employed is engaged; (7) the method of payment, whether by the time or by the job; (8) whether the work is part of the regular business of the employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business. Appeal from the Workers’ Compensation Court: Julie A. Martin, Judge. Affirmed. John E. Corrigan, of Dowd & Corrigan, L.L.C., for appellant. James D. Garriott, of Cassem, Tierney, Adams, Gotch & Douglas, for appellee LFA Inc. Antonio VandenBosch, of VandenBosch Law, L.L.C., for appellee Ismael Huerta. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. INTRODUCTION Cesar Aboytes-Mosqueda was working on a roofing job when he slipped and fell from the roof. Aboytes-Mosqueda brought a workers’ compensation claim against Ismael Huerta and LFA Inc. Aboytes-Mosqueda claims that Huerta was his employer and that Huerta and LFA conducted a scheme to avoid liability under the Nebraska Workers’ Compensation Act. Aboytes-Mosqueda claims that LFA should be considered a statutory employer pursuant to Neb. Rev. Stat. § 48-116 (Reissue 2010). The court considered the evidence presented - 279 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 and dismissed the claim, because Aboytes-Mosqueda failed to prove he was an employee of Huerta. We affirm. BACKGROUND Aboytes-Mosqueda was working a roofing job with Huerta on June 13, 2018. While working on the roof, Aboytes- Mosqueda slipped and fell, but was caught by his harness. Aboytes-Mosqueda suffered a significant injury as a result of the fall and brought a claim in the Workers’ Compensation Court against Huerta and LFA. The roofing job was a result of a contract between the home- owner and Hometown Roofing, Inc. (Hometown), who is not a party to the case. Hometown subcontracted the job to LFA. LFA then arranged with Huerta to recruit a crew to build the roof. LFA explained that the people used on a roofing crew vary on a job-by-job basis and that each person on the crew is an independent subcontractor, not an employee. The man who operates LFA, which is owned by his wife, testified at the workers’ compensation hearing that LFA fre- quently does work contracted by Hometown and generally receives payment for roofing jobs from Hometown by check. After receiving payment from Hometown, LFA’s operator pays a set amount to a roofing crew based on the square foot- age of the roof. Each roofing job was a separate agreement. LFA did not determine the hours of the roofing crew but would inspect the roof to ensure it was installed according to the contract. Huerta’s deposition was entered into evidence in lieu of live testimony due to his unavailability. Huerta testified in his deposition that he works with several different roofing compa- nies and works on approximately seven to nine houses a year with LFA. He indicated that he is not a general contractor and that he works as a member of “the crew” alongside everyone else. He also testified that Aboytes-Mosqueda worked with him on approximately two or three houses a month during 2018 and did not work with him at all in 2017. - 280 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 Huerta testified that the customary method for calculating pay was based on the number of plywood squares that cover the roof, or the rough square footage of the roof. His share of what the general contractor pays for the roofing job was always the same as the other roofers who worked with him. At the job where Aboytes-Mosqueda was injured, there were five men working on the roofing crew, including Huerta. The money received from LFA was split evenly between each person on the crew. Huerta claimed that Aboytes-Mosqueda brought his own tools and that Huerta provided the ladder to access the roof. Huerta claimed that each worker brought his own harness. Huerta also testified that each member of the crew was free to determine his own schedule for starting and stopping work. In his deposition, Huerta testified that LFA approached him after the incident and had him sign a contract agreeing to carry workers’ compensation insurance. Aboytes-Mosqueda testified at the hearing that he had worked exclusively for Huerta since 2011. Aboytes-Mosqueda testified that there was a verbal hiring agreement between Huerta and himself, but he also testified that he was paid by the job. Aboytes-Mosqueda testified that Huerta would pick him up and provided the ladder and several tools, including the nail gun and compressor. Aboytes-Mosqueda claims that Huerta provided the harnesses and directed every member of the crew to use them at all times. Aboytes-Mosqueda admitted that he brought his own tool belt, hammer, and knife. Aboytes- Mosqueda also admitted that his pay for each job was the result of a verbal agreement with Huerta specific to each job. Aboytes-Mosqueda testified that no one saw him slip, but that he told Huerta at the jobsite right after the incident. Aboytes-Mosqueda claimed that Huerta was his employer. He further argued to the compensation court that LFA subcon- tracted jobs with Huerta even though LFA knew that Huerta did not carry workers’ compensation insurance. Thus, LFA was engaged in a scheme to avoid liability pursuant to § 48-116 and should be considered a statutory employer as a result. - 281 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 Aboytes-Mosqueda asserted that Huerta’s testimony concern- ing the agreement between Huerta and LFA proved Huerta was an employer and that LFA should be found to be a statutory employer under § 48-116. The Workers’ Compensation Court first considered the tes- timony of Aboytes-Mosqueda and Huerta and found that there was not a contract for employment between Aboytes-Mosqueda and Huerta. The court then considered the evidence in light of the 10 factors relevant to whether a person is an employee or an independent contractor. Without making determinations of credibility on the issue of who supplied the safety harness, nail gun, and compressor at the jobsite, the compensation court found that Aboytes-Mosqueda had failed to carry his burden of demonstrating that he was an employee of Huerta. Thus, § 48-116 was not applicable. The court dismissed the action, and Aboytes-Mosqueda appealed. ASSIGNMENT OF ERROR Aboytes-Mosqueda asserts that the district court erred in dismissing his action given the uncontroverted evidence of a scheme to avoid employer liability under the Nebraska Workers’ Compensation Act. STANDARD OF REVIEW [1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify, reverse, or set aside a Workers’ Compensation Court decision only when (1) the compensa- tion court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. 1 [2,3] On appellate review, the factual findings made by the trial judge of the Workers’ Compensation Court have 1 Eddy v. Builders Supply Co., 304 Neb. 804, 937 N.W.2d 198 (2020). - 282 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 the effect of a jury verdict and will not be disturbed unless clearly wrong. 2 In testing the sufficiency of the evidence to support the findings of fact in a workers’ compensation case, an appellate court considers the evidence in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the appellate court gives the successful party the benefit of every inference reasonably deducible from the evidence. 3 [4] As the trier of fact, the Workers’ Compensation Court is the sole judge of the credibility of witnesses and the weight to be given their testimony. 4 ANALYSIS [5] In order for LFA to be considered an employer under § 48-116, Aboytes-Mosqueda had a burden to prove that he was an employee of Huerta as defined by the Nebraska Workers’ Compensation Act. 5 Ordinarily, a person’s status as an employee or an independent contractor is a question of fact; however, where the facts are not in dispute and where the inference is clear that there is, or is not, a master and servant relationship, the matter is a question of law. 6 We find that the factual determinations made by the trial court are not clearly wrong, and we agree with the compensation court that Aboytes-Mosqueda was not an employee of Huerta; thus, § 48-116 is not applicable to this case. Aboytes-Mosqueda’s only assignment of error is that the compensation court erroneously dismissed his claim, because the evidence showed a scheme by LFA to avoid liability. 2 Id. 3 Id. 4 Martinez v. CMR Constr. & Roofing of Texas, 302 Neb. 618, 924 N.W.2d 326 (2019). 5 See Neb. Rev. Stat. ch. 48, art. 1 (Reissue 2010, Cum. Supp. 2018, & Supp. 2019). 6 Pettit v. State, 249 Neb. 666, 544 N.W.2d 855 (1996). - 283 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 Aboytes-Mosqueda argues that because LFA had Huerta sign an agreement to obtain workers’ compensation insurance after Aboytes-Mosqueda was injured, this is proof of the type of scheme prohibited by § 48-116. Section 48-116 states: Any person, firm, or corporation creating or carry- ing into operation any scheme, artifice, or device to enable him or her, them, or it to execute work with- out being responsible to the workers for the provisions of the Nebraska Workers’ Compensation Act shall be included in the term employer, and with the immediate employer shall be jointly and severally liable to pay the compensation herein provided for and be subject to all the provisions of such act. This section, however, shall not be construed as applying to an owner who lets a contract to a contractor in good faith, or a contractor, who, in good faith, lets to a subcontractor a portion of his or her contract, if the owner or principal contractor, as the case may be, requires the contractor or subcon- tractor, respectively, to procure a policy or policies of insurance from an insurance company licensed to write such insurance in this state, which policy or policies of insurance shall guarantee payment of compensation according to the Nebraska Workers’ Compensation Act to injured workers. We have recently explained that the protections provided under § 48-116 are to ensure that companies cannot use sub- contractors to absolve them of the responsibility to ensure that employees are properly insured under the Nebraska Workers’ Compensation Act. 7 The principal contractor has the respon- sibility to ensure that the subcontractor obtains a workers’ compensation insurance policy. 8 In the event that the principal contractor fails to require a subcontractor to carry workers’ 7 See Martinez v. CMR Constr. & Roofing of Texas, supra note 4. 8 See id. See, also, Hiestand v. Ristau, 135 Neb. 881, 284 N.W. 756 (1939). - 284 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 compensation insurance and an employee of the latter sus- tains a job-related injury, the principal contractor is a statu- tory employer. 9 Although we have never made this point explicit, it is clear from our case law and the language of § 48-116 that liability under § 48-116 presupposes that the injured worker was an “employee” of the subcontractor, to whom the sub- contractor had an obligation to procure workers’ compensa- tion insurance protection. 10 We have found liability under § 48-116 only when the claimant was an employee of the subcontractor and the principal contractor failed to require the subcontractor to carry the proper insurance. 11 Thus, the applicability of § 48-116 depends on whether or not Aboytes- Mosqueda is an employee of Huerta under the Nebraska Workers’ Compensation Act. Neb. Rev. Stat. § 48-115 (Reissue 2010) provides the statu- tory definition for employee. Applicable here is § 48-115(2), which states in relevant part: “Every person in the service of an employer who is engaged in any trade, occupation, business, or profession as described in section 48-106 under any contract of hire, expressed or implied, oral or written, including aliens and also including minors.” No evidence of an express employment contract was provided. Although Aboytes-Mosqueda testified that there was a verbal employ- ment agreement, he did not disclose any details of this agree- ment, nor did he indicate when or where the agreement was made. 9 See Martinez v. CMR Constr. & Roofing of Texas, supra note 4. 10 See Bohy v. Pfister Hybrid Co., 179 Neb. 337, 138 N.W.2d 23 (1965). See, also, Gardner v. Kothe, 172 Neb. 364, 109 N.W.2d 405 (1961); Standish v. Larsen-Merryweather Co., 124 Neb. 197, 245 N.W. 606 (1932). 11 See Martinez v. CMR Constr. & Roofing of Texas, supra note 4. See, also, Duffy Brothers Constr. Co. v. Pistone Builders, Inc., 207 Neb. 360, 299 N.W.2d 170 (1980); Bohy v. Pfister Hybrid Co., supra note 10; Gardner v. Kothe, supra note 10; Hiestand v. Ristau, supra note 8; Standish v. Larsen- Merryweather Co., supra note 10. - 285 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 There was conflicting testimony about whether there was a verbal agreement to create an agency relationship, and we find that the compensation court was not clearly wrong in determin- ing there was no mutual intent between Aboytes-Mosqueda and Huerta to enter into an employment agreement. 12 Thus, we consider whether the compensation court was correct in finding Aboytes-Mosqueda was an independent contractor in light of the 10 factors set forth by this court. 13 [6] There is no single test for determining whether one performs services for another as an employee or as an inde- pendent contractor; rather, the following factors must be con- sidered: (1) the extent of control which, by the agreement, the employer may exercise over the details of the work; (2) whether the one employed is engaged in a distinct occupa- tion or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervi- sion; (4) the skill required in the particular occupation; (5) whether the employer or the one employed supplies the instru- mentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the one employed is engaged; (7) the method of payment, whether by the time or by the job; (8) whether the work is part of the regular business of the employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business. 14 Several of these factors militate against finding that Aboytes- Mosqueda was an employee. Aboytes-Mosqueda testified that when he fell from the roof, no one was present because he was working alone on that particular section of the roof. The compensation court found that Aboytes-Mosqueda was 12 See Kaiser v. Millard Lumber, 255 Neb. 943, 587 N.W.2d 875 (1999). 13 See Omaha World-Herald v. Dernier, 253 Neb. 215, 570 N.W.2d 508 (1997). 14 Id. - 286 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 working independently when the accident occurred. Moreover, it was undisputed that the inspection of the work product at the end of each job was done by LFA, not by Huerta. These facts are indicative of an independent contractor rather than an employee. Although Aboytes-Mosqueda testified that he worked exclu- sively for Huerta, the trial court found that Aboytes-Mosqueda was free to work with other roofers. Huerta worked with Aboytes-Mosqueda on two or three roofs a month during 2018 and did not work with him at all during 2017. Huerta testified that he regularly worked jobs without Aboytes-Mosqueda and that Aboytes-Mosqueda was free to decline jobs whenever Huerta called and offered work. Aboytes-Mosqueda’s ability to accept or decline work on a job-by-job basis is also indicative of an independent contractor. Both the length of time and manner of payment weigh heavily against Aboytes-Mosqueda. Aboytes-Mosqueda did not contest that he was always paid in cash by the job, and the amount was determined on a job-by-job agreement between himself and Huerta. Aboytes-Mosqueda received the same amount of money as each of the other crew members, includ- ing Huerta. Each job was usually only a couple of days, and occasionally, they would work two jobs in the same week. Based on the length of the jobs and Huerta’s testimony that they worked together approximately two or three times a month, Aboytes-Mosqueda was actively working at a jobsite with Huerta approximately 6 days a month. We have explained that the shorter and more sporadic a job is, the more akin it is to one performed by an independent contractor. 15 Both the length of the jobs and the method of payment are indicative of an independent contractor. As the compensation court noted, there was little to no evidence presented concerning several factors. There was no evidence addressing whether Aboytes-Mosqueda was a 15 See Pettit v. State, supra note 6. - 287 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 specialist, what the common practice in the locality is, or what kind of skill is required to be a roofer. We agree with the compensation court that if there were such additional facts supporting Aboytes-Mosqueda’s status as an employee, he had the burden to present them. The only factor upon the evidence presented that weighs in favor of considering Aboytes-Mosqueda an employee is the fact that roofing is a part of the regular business or trade of Huerta. However, Huerta testified that he did not hold himself out to be a business and no evidence was presented to contradict his testimony. There was conflicting testimony concerning who supplied the safety harnesses and some of the tools. There was also disagreement over whether work hours were set by Huerta or as a crew. It was uncontested that Aboytes-Mosqueda brought his own tool belt, hammer, and knife. Aboytes-Mosqueda claims that Huerta provided transportation to the jobsite, which demonstrates control over the work hours. The compensation court found that Aboytes- Mosqueda was free to work or stop working at will and that the amount of time spent on a job was the result of consensus by the crew. The compensation court did not make factual determina- tions as to who supplied the safety harnesses, nail gun, and compressor, but even if we accepted Aboytes-Mosqueda’s tes- timony that Huerta supplied these tools, such facts would not be sufficient to establish that Aboytes-Mosqueda was in fact an employee. The majority of the factors, including the extent of control Huerta exercised over Aboytes-Mosqueda, support the conclusion that Aboytes-Mosqueda was not an employee of Huerta as defined by the Nebraska Workers’ Compensation Act. The compensation court did not clearly err in making this determination. Thus, § 48-116 does not apply to this case and whatever agreements did or did not occur between Huerta and LFA following Aboytes-Mosqueda’s injury are irrelevant. The plaintiff, in the Workers’ Compensation Court, must prove that she or he has employee status to invoke the jurisdiction - 288 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ABOYTES-MOSQUEDA v. LFA INC. Cite as 306 Neb. 277 of the court. 16 The compensation court did not err in conclud- ing that Aboytes-Mosqueda failed to prove his employee sta- tus. Thus, it did not err in dismissing the action. CONCLUSION The Workers’ Compensation Court did not clearly err in its determination that Aboytes-Mosqueda was not an employee of Huerta. As a result, § 48-116 is inapplicable to the present case. The judgment of the Workers’ Compensation Court is affirmed. Affirmed. 16 Id.	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/3989296/	On the facts found the petitioner was granted a divorce for intolerable severity, and the case is here in the petitionee's exceptions. The libel charges intolerable severity and desertion. The material findings are these: The parties were married September 5, 1905, and cohabited with each other in this State until September, 1920. The petitioner has always faithfully kept the marriage covenant. They have four living children born respectfully on April 27, 1913, May 14, 1914, July 23, 1916, and May 25, 1918. On September 17, 1920, the petitionee was committed to the Vermont State Hospital at Waterbury, where he was confined continuously until October 31, 1922, when he escaped. He was insane when committed to said hospital, and remained so until the time of the hearing below. Some time previous to the date when petitionee became insane in 1920, he treated the petitioner with intolerable severity, in that he used physical violence, and profane and abusive language toward Page 320 her, which tended to cause her bodily harm. He wilfully deserted petitioner from October 31, 1922, to the time of the hearing herein (June Term, 1928). In November, 1923, he went to petitioner's home where he was met by her in "a pleasant manner," but he roughly pushed her aside, and said: "Get away from me, you damned b____." She was in poor health at the time, and as a result of his conduct collapsed in a nervous, distracted condition. After this incident, petitionee, without cause, refused and neglected to live with petitioner, or to provide for her and their children, and in fact deserted her. On December 16, 1922, the petitioner gave birth to a child which, as part of his defense, the petitionee claimed was illegitimate. It is further found that neither the desertion herein mentioned nor the petitionee's conduct in November, 1923, constitute grounds for a divorce, because petitionee was then insane, but that petitioner is entitled to a divorce because of his acts of cruelty and intolerable severity prior to 1920. The first exception is to the exclusion of evidence respecting the sexual relations of the parties during the time the petitionee was confined in the State Hospital. The petitioner testified that petitionee was the father of the child born December 16, 1922, and that such child was begotten on an occasion when she was visiting petitionee in said hospital. The petitionee admitted that petitioner visited him several times while he was in the hospital, but offered to show by his own testimony that he did not have sexual intercourse with her during the year 1922, and also that he did not have the opportunity of so doing. Both lines of inquiry were excluded, subject to his exception. That this evidence was properly excluded if the common law rule obtained cannot be doubted. Jones on Evidence (3d ed.) par. 97; Id. (2d ed.) par. 339, and cases there collected. Various reasons for this rule are given in the earlier cases. In 1777 Lord Mansfield in Goodright D. Stevens v. Moss, reported in 11 Eng. Rul. Cas. 578, declared that it was founded "in decency, morality and policy." The latter ground appears to be the more logical one; and is the one usually recognized in the recent cases. Why it should be considered more indecent for the husband to testify to non-intercourse with his wife than for him to testify to other facts concerning her infidelity, which he clearly may do, is not apparent; neither is it apparent why good morals require silence on his part respecting their sexual Page 321 relations while she is surrounding his board with the fruit of her immorality. It would seem that were he permitted to speak the truth, she might be more mindful of her chastity. But, whatever the reasons for the rule may be, it is no longer in force in this State in divorce cases. G.L. 1894 provides in effect that a libelant and libelee may testify respecting allmatters in such cases. The language of this statute is plain, and earlier legislation shows that it was used advisedly. By Act No. 77, Laws of 1876, both parties to divorce proceedings were made competent witnesses when the issue was intolerable severity or desertion. This provision was carried into the revision of 1880. See R.L. 1006. V.S. sections 1240 to 1243, inclusive, deal with the competency of husband and wife in certain cases, and the latter sections provide that both shall be competent witnesses in a proceeding by either for a divorce. In 1904, the Legislature by Act No. 60 provided: "Husband and wife shall be competent witnesses for or against each other in all cases civil and criminal, except that neither shall be allowed to testify against the other as to any statement, conversation, letter or other communication made to the other or to another person; nor shall either be allowed in any case to testify as to any matter which in the opinion of the court would lead to a violation of marital confidence," and repealed all existing statutes inconsistent therewith. Whether the provision then in force respecting the competency of husband and wife in divorce cases was affected thereby is immaterial, since it seems certain that neither they nor the Act of 1904 were broad enough to remove the common-law disability. See Chamberlain v. People, 23 N.Y. 85, 80 A.D. 255;Kennedy v. State, 117 Ark. 113, 173 S.W. 842, L.R.A. 1916B, 1052, Ann. Cas. 1917A, 1029; Liles v. State, 117 Ark. 408, 174 S.W. 1196; Estate of Mills, 137 Cal. 298, 70 P. 91, 92 A.S.R. 175; Note, 2 L.R.A.(N.S.) 619. But in 1906 the statute last quoted was amended by adding thereto the following: "But nothing in this section shall be construed so as to prevent a libelant and libelee from testifying to all matters in divorce causes." P.S. 1592. Such has been the law to the present time. This is a much broader provision than is found in the cases above cited, or any that have come to our attention. Indeed, if the Legislature intended to abrogate the common-law rule, language more apt for that purpose could not have been used. That the Legislature had authority to depart Page 322 from that rule is recognized in Commonwealth v. Rosenblatt,219 Mass. 197, 106 N.E. 852, Cuppy v. State, 24 Ind. 389, Mulligan v.Thompson, 23 Ont. Rep. 54, and is not open to doubt. With the wisdom of this change we have no concern; that was a matter for the Legislature to deal with; and it has done so in unmistakable language. As our statute now stands the offered evidence was admissible. It should be borne in mind that this statute applies only to divorce cases where the legitimacy of the offspring is merely an incidental matter, and does not affect the common-law rule in cases where legitimacy of the offspring is the primary question involved. The petitionee excepted to the finding that previous to the time when he became insane in 1920, he treated the petitioner with intolerable severity, etc., on the ground that such finding was not supported by the evidence. He also excepted to the finding that the acts of cruelty and intolerable severity prior to 1920 constituted ground for a divorce, on the grounds, in effect, that it was not supported by the evidence, and that any such acts of misconduct had been condoned. The questions raised by these two exceptions are such that they may properly be considered together. In her opening case the petitioner appears to have relied upon the desertion of petitionee subsequent to the time he escaped from the hospital, since she offered no evidence, or but little, tending to show intolerable severity. After the petitionee had introduced evidence which made it improbable that a divorce could be had for desertion because of his mental condition ever after he was committed to the hospital (desertion before was not claimed), the petitioner testified to certain misconduct on his part which might entitle her to a divorce for intolerable severity had such misconduct not been condoned. The only misconduct of petitionee which the evidence tended to show affected the health of petitioner, or was likely to, was in 1914 or 1915. She testified that she then had a miscarriage which she thought was caused by petitionee's physical violence toward their eldest son. It did not appear when any of the other acts testified to by her, only one of which showed physical violence by petitionee, took place, whether before or after her Page 323 miscarriage, and nothing appeared from which a presumption respecting the time of their occurrence can be indulged. That the parties continued marital cohabitation until petitionee became insane in 1920 is not denied. One, and very likely two, of the children first above mentioned must have been begotten subsequent to the incident in 1914 or 1915, and the petitioner testified that she was pregnant in 1920 when petitionee went to the hospital. More than this, she testified that she had voluntary sexual intercourse with petitionee several times while he was in the State Hospital, in fact every day when they were together, and that she visited him there six times and remained with him from one to four days on the different occasions. While condonation, as is said in Langdon v. Langdon, 25 Vt. 678, 60 A.D. 296, has for its very basis and consideration the promise that the former injuries shall not be repeated, but that the forgiving party shall in the future be in all respects kindly treated and restored to conjugal rights, this does not require an express promise by the offending party. Such promise may and should be inferred from uninterrupted marital cohabitation, such as appears in the instant case down to the time petitionee was taken to the hospital, to say nothing of what occurred subsequently. Condonation is ordinarily a question of fact, but when, as here, the evidence respecting it is undisputed, and comes from the lips of the party who seeks to avoid its effects, it is a question of law. As the evidence stands, the latter exception must be sustained on the ground that petitioner's misconduct, if any, had been condoned. Judgment reversed and petition dismissed. NOTE. — WATSON, C.J., sat at the hearing of this case, but by reason of his death did not take part in the decision. *Page 324	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3981558/	Appellant was convicted in justice court in Stephens County, the justice of the peace assessing and charging a fee upon the trial. Appellant appealed to the county court where he was tried on the same complaint and again convicted. He was arrested on a capias pro fine issued from the county court. Upon a habeas corpus hearing for release he was remanded, from which order this appeal is prosecuted. Exactly the same state of facts was presented in No. 12,454, Ex parte S. V. Biggs, decided February 6th, 1929, and in No. 11,621, Ex parte Carrie B. Owens, decided January 30th, 1929, in both of which cases it was held that the proceeding before the justice of the peace being void it furnished no basis for the appeal to the county court. See also Kelly v. State,10 S.W.2d 728. The judgment is reversed and the appellant ordered discharged. Reversed and discharged. *Page 39	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/2736768/	IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 30, 2014 Session FEDERAL NATIONAL MORTGAGE ASSOCIATION ET AL. v. LAKISHA SIMMONS ET AL. Appeal from the Circuit Court for Davidson County No. 13C225 Thomas W. Brothers, Judge __________________________ No. M2013-00945-COA-R3-CV - Filed September 23, 2014 ___________________________ A husband and wife signed a promissory note, which was secured by a deed of trust, to finance the purchase of a home. Following a default and foreclosure sale, the new owner filed a detainer action in an effort to evict the couple from the property. The wife filed a counterclaim and third-party complaint, which the husband subsequently joined, seeking to invalidate the sale and remain in possession of the home. Among other reasons, the trial court dismissed the counterclaim/third-party complaint on res judicata grounds because the couple had previously filed similar lawsuits that were dismissed with prejudice. The husband appeals. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed W. N EAL M CB RAYER, J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R., P.J., M.S., and A NDY D. B ENNETT, J., joined. Christopher Bernard Simmons, Nashville, Tennessee, appellant, Pro Se. Lauren Paxton Roberts and Paul Allen England, Nashville, Tennessee, for the appellees Federal National Mortgage Association and Mortgage Electronic Registration Systems, Inc. MEMORANDUM OPINION1 I. F ACTUAL AND P ROCEDURAL B ACKGROUND Lakisha and Christopher Bernard Simmons obtained a loan in the principal amount of $201,980 on June 29, 2006, from Countrywide Home Loans, Inc. (“Countrywide”) to finance the purchase of a home located in Nashville, Tennessee. The Simmonses signed a promissory note in which they agreed to make principal and interest payments each month until the loan was paid in full. The note specified that it could be transferred to a third party, which the note defined as the “Note Holder.” The Simmonses were obligated to make monthly payments to either Countrywide or the transferee/Note Holder. The Simmonses also signed a Deed of Trust (“DOT”) to secure repayment of the loan. The DOT named Mortgage Electronic Registration Systems, Inc. (“MERS”) beneficiary as the nominee for Countrywide and Countrywide’s successors and assigns. Like the note, the DOT provided that it could be transferred to a third party, which would have the same rights as MERS. Following their default, Mr. and Mrs. Simmons filed a complaint in state court in 2009 seeking to enjoin foreclosure on their residence.2 The Simmonses named as defendants Countrywide, Bank of America Home Loans, BAC Home Loans Servicing, L.P., and John Doe 1 through 10. In addition to seeking injunctive relief, Mr. and Mrs. Simmons alleged state and federal causes of action including breach of contract and violations of State and federal constitutions, the Fair Debt Collections Practices Act, and the Uniform Commercial Code. The defendants removed the case to federal court and then filed a motion to dismiss based on the Simmonses’ failure to state a claim for which relief could be granted, among other grounds. The federal district court granted the defendants’ motion to dismiss in April 2010. In doing so, the court adopted the reasoning found in the Report and Recommendation of the 1 Rule 10 of the Rules of the Court of Appeals states: This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in any unrelated case. 2 The proceedings before the United States District Court for the Middle District of Tennessee indicate Mr. and Mrs. Simmons together filed two separate actions in 2009 utilizing identical complaints and that both cases were dismissed after they were removed to federal court. Based upon the record, we limit our discussion to only one of the 2009 cases. 2 magistrate judge: As Defendants properly argue, the Amended Complaint lacks factual allegations respecting the material elements of Plaintiffs’ breach of contract claims. Plaintiffs fail to allege which provisions of the Loan Agreement were breached by Defendants, or how those provisions were breached, and Plaintiffs do not provide any facts to support their legal conclusion. Likewise, Plaintiffs’ fraud claim is stated simply as a legal conclusion, without any supporting facts. Additionally, as Defendants properly argue, Fed. R. Civ. P. 9(b) requires a party alleging fraud to state with particularity the circumstances constituting fraud . . . . Finally, Plaintiffs assert a claim for “money had and received,” but, again, Plaintiffs have provided no factual support for such a legal conclusion. This claim . . . appears to the Court essentially to be a fraud claim. For the foregoing reasons, the undersigned recommends that Defendants’ “Motion to Dismiss” . . . be GRANTED, and that this action be DISMISSED WITH PREJUDICE. In March 2011, Mrs. Simmons filed a second complaint in another attempt to avoid foreclosure and to invalidate the loan. The second complaint named Countrywide, Bank of America Corporation, BAC Home Loans Servicing, L.P., Nationwide Trustee Services, Inc., and John Doe 1 through 10 as defendants. Mrs. Simmons asserted breach of contract and sought injunctive relief, similar to the earlier complaint. As before, the defendants removed the lawsuit to federal court and filed motions to dismiss. The federal district court dismissed the second suit in March 2012. In the Report and Recommendation related to the motion to dismiss filed by Countrywide, Bank of America Corporation, and BAC Home Loans Servicing, L.P., which the court approved and adopted in its order of dismissal, the magistrate judge wrote: As Defendants argue, while it is unclear from the face of her initial pleading, it appears that Plaintiff seeks to invalidate her obligations under her mortgage . . . . Plaintiff has attached to her Amended Complaint a Promissory Note for the loan, dated June 29, 2006, in the amount of $201,980, and a Deed of Trust for the property . . . to secure the Note. As Defendants correctly argue, Plaintiff and her husband, Chris 3 Simmons, filed two lawsuits in the Chancery Court for Davidson County, Tennessee, in June 2009, attempting to invalidate the same loan at issue in the current action. Plaintiffs sued, inter alia, Countrywide Home Loans and BAC Home Loans Servicing. Those two actions, which were identical, were removed to this Court . . . . Plaintiffs appealed both dismissals to the Sixth Circuit, but both appeals were dismissed for want of prosecution . . . . Four elements must be present for the doctrine of res judicata to bar a subsequent lawsuit: (1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action . . . . All four elements are clearly present in the case at bar with regard to Defendants Countrywide Home Loans and BAC Home Loans Servicing. The court also dismissed the claims against Bank of America Corporation on res judicata grounds. Although Bank of America Corporation was not a party to the prior lawsuit, the court found Bank of America Corporation in privity with Countrywide and BAC Home Loans Servicing, L.P., for res judicata purposes. II. C URRENT L ITIGATION Despite the Simmonses’ attempts to prevent the foreclosure on their residence, their home was foreclosed upon in March 2011. BAC Home Loans Servicing, L.P., f/k/a Countrywide Home Loans Servicing, L.P., purchased the property at foreclosure, but Nationwide Trustee Service, Inc., as substitute trustee, transferred the property to Federal National Mortgage Association (“Fannie Mae”), which was identified as the assignee of the interests of BAC Home Loans Servicing, L.P. In April 2011, Fannie Mae filed a Detainer Warrant in general sessions court in an effort to evict Mr. and Mrs. Simmons from the property. Mr. and Mrs. Simmons each filed a motion to dismiss the Detainer Warrant, and Mrs. Simmons filed what she titled a Counter- Complaint in October 2012, naming both Fannie Mae and MERS as defendants.3 In her counterclaim/third-party complaint, Mrs. Simmons asserted various causes of action in a third attempt to invalidate the 2006 loan made by Countrywide and remain in her home. Specifically, Mrs. Simmons alleged Fannie Mae and MERS violated the False Claims Act and were liable for criminal impersonation and fraudulent concealment. Although the 3 MERS was actually a third-party defendant. 4 claims arose in connection with the note and DOT, the counterclaim/third-party complaint did not reference or mention the earlier litigation that was dismissed by the federal district court. Mr. Simmons joined Mrs. Simmons as a counter/third-party plaintiff in December 2012.4 Fannie Mae and MERS filed a motion to remove the case from general sessions to circuit court, which the general sessions court granted on January 14, 2013. Fannie Mae and MERS then moved to dismiss the counterclaim/third-party complaint under Tennessee Rule of Civil Procedure 12 based on several grounds, including res judicata. In support of their motion, Fannie Mae and MERS attached copies of the note, DOT, and pertinent pleadings and orders from the federal district court litigation. In their response to the motion to dismiss, Mr. and Mrs. Simmons filed a motion to strike, a motion to stay proceedings pending the outcome of an appeal of the dismissal of her March 2011 action, and an objection, which included various exhibits. The circuit court dismissed the counterclaim/third-party complaint by order entered on March 11, 2013. For grounds, the circuit court relied upon the arguments asserted in the motion to dismiss, including failure to state a claim and insufficiency of service of process on MERS. With respect to res judicata, the court stated as follows: The Court finds that counter-defendants’ motion to dismiss the counter- claim third-party complaint against them is well taken. Specifically, the Court finds that it is appropriate to dismiss this case on the basis of res judicata in light of the dismissal by the Middle District of Tennessee of the previous 2009 cases by Lakisha and Chris Simmons against Countrywide Home Loans and BAC Home Loans Servicing and the dismissal of those claims with prejudice. The circuit court also certified its order dismissing the counterclaim/third-party complaint with prejudice as final under Tennessee Rule of Civil Procedure 54.02. Mr. Simmons appeals the dismissal of the counterclaim/third-party complaint. 4 The Simmonses filed “Defendants’ Motion for Leave of the Court to Amend Motion to Dismiss and Amended Countercomplaint” on December 11, 2012. The stated purpose of the motion was “to formally add Chris Simmons to the heading of the above styled case . . . .” Mr. Simmons had not previously been a party to earlier filed counterclaims or motions to dismiss. Attached to the motion was “Defendants’ 3rd Amended Motion to Dismiss and Requirement to File an Objection and Amended Counter Complaint.” Although the record before us does not indicate whether the motion to amend was granted, we treat the “Defendants’ 3rd Amended Motion to Dismiss and Requirement to File an Objection and Amended Counter Complaint” as the pleading before us on appeal. 5 III. A NALYSIS A. Res Judicata As a preliminary matter, we first consider whether the trial court’s dismissal of Mr. Simmons’s claims should be reviewed as a grant of a motion to dismiss pursuant to Rule 12 or as a grant of summary judgment pursuant to Rule 56. Tennessee Rule of Civil Procedure 12.02 provides: If, on a motion asserting the defense numbered (6) to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Tenn. R. Civ. P. 12.02. In the trial court, Fannie Mae and MERS argued that the court could consider the pleadings and orders entered in the previous litigation without converting their motion to dismiss to a motion for summary judgment. We respectfully disagree. Res judicata is an affirmative defense that must be included in an answer. Tenn. R. Civ. P. 8.03. Our Supreme Court has indicated that res judicata may be raised in the context of a motion to dismiss for failure to state a claim upon which relief can be granted only in specific circumstances: For a Tenn. R. Civ. P. 12.02(6) motion to be used as a vehicle to assert an affirmative defense, the applicability of the defense must “clearly and unequivocally appear[ ] on the face of the complaint.” In other words, the plaintiff’s own allegations in the complaint must show that an affirmative defense exists and that this defense legally defeats the claim for relief. Jackson v. Smith, 387 S.W.3d 486, 491-92 (Tenn. 2012) (internal citations omitted). As in Jackson v. Smith, 387 S.W.3d 486 (Tenn. 2012), the counterclaim/third-party complaint makes no reference to the prior litigation. See id. at 492. Unlike Jackson, however, the Simmonses’ response to the motion to dismiss does not acknowledge the existence of the prior federal court litigation or the res judicata effect of the federal district court’s order. See id. at 492-93. The objection filed by the Simmonses to the motion to dismiss does make reference to the appeal pending before the United States Court of Appeals for the Sixth Circuit, but we find that reference insufficient to permit res judicata to be raised in the context of a motion to dismiss for failure to state a claim. 6 When a motion to dismiss is converted to a motion for summary judgment, courts must use care not to violate the non-moving party’s right to both fair notice and a reasonable opportunity to “set forth specific facts showing that there is a genuine issue for trial.” See Tenn. R. Civ. Pro. 56.06. In this case, we find that the trial court did so by considering “the pleadings as a whole.” Mr. Simmons took the opportunity in his responses to the motion to dismiss and at the hearing on the motion to dismiss to submit documentation beyond that which he included in the counterclaim/third-party complaint. Having determined that the dismissal on res judicata grounds should be reviewed as a grant of summary judgment, our review is de novo with no presumption of correctness. See City of Tullahoma v. Bedford Cnty., 938 S.W.2d 408, 412 (Tenn. 1997). Because our inquiry involves purely a question of law, our task is confined to reviewing the record to determine whether the requirements of Tennessee Rule of Civil Procedure 56 have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997). In reviewing the trial court’s decision, we must view all of the evidence in the light most favorable to the non-moving party and resolve all factual inferences in the non-moving party’s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support only one conclusion, the court’s summary judgment will be upheld because the moving party was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998). “The doctrine of res judicata[,] or claim preclusion[,] bars a second suit between the same parties or their privies on the same claim with respect to all issues which were, or could have been, litigated in the former suit.” Jackson, 387 S.W.3d at 491 (citing Creech v. Addington, 281 S.W.3d 363, 376 (Tenn. 2009); Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995) (further citations omitted)). “[Res judicata] is a ‘rule of rest,’ Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn. 1976), and it promotes finality in litigation, prevents inconsistent or contradictory judgments, conserves judicial resources, and protects litigants from the cost and vexation of multiple lawsuits.” Jackson, 387 S.W.3d at 491 (citing In re Estate of Boote, 198 S.W.3d 699, 718 (Tenn. Ct. App. 2005); Sweatt v. Tennessee Dep’t of Corr., 88 S.W.3d 567, 570 (Tenn. Ct. App. 2002)). To prevail on the grounds of res judicata, a party must establish the following: (1) that the underlying judgment was rendered by a court of competent jurisdiction, (2) that the same parties or their privies were involved in both suits, (3) that the same claim or cause of action was asserted in both suits, and (4) that the underlying judgment was final and on the merits. Jackson, 387 S.W.3d at 491 (citing Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App. 1998)). 7 The doctrine of res judicata bars a litigant from asserting in a later lawsuit all issues “which were or could have been litigated” in the earlier lawsuit. Gerber v. Holcomb, 219 S.W.3d 914, 917 (Tenn. Ct. App. 2006) (quoting Young v. Barrow, 130 S.W.3d 59, 64 (Tenn. Ct. App. 2003)). Thus, a litigant is precluded from filing lawsuit after lawsuit against the same parties, or those in privity with those parties, when the underlying facts at issue are the same but the causes of action are changed, in an effort to find a court that will rule in the litigant’s favor. Mr. Simmons challenges the trial court’s ruling that his counterclaim/third-party complaint is barred by res judicata by arguing that MERS and Fannie Mae are not the same parties or in privity with any parties from the earlier actions. Mr. Simmons also contends new evidence was available in the most recent lawsuit that was not formerly available. Neither of Mr. Simmons’s arguments convinces us that the trial court erred in dismissing the counterclaim/third-party complaint. Parties are in privity, for purposes of res judicata, if they share the same interest in the subject matter of a lawsuit. State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 180 (Tenn. Ct. App. 2000). “Privity connotes an identity of interest, that is, a mutual or successive interest to the same rights.” Id. (citations omitted). MERS is identified in the DOT as “a nominee for Lender and Lender’s successors and assigns.” Moreover, the DOT specifies that “MERS is the beneficiary under this Security Instrument.” By virtue of the DOT, MERS (1) had an interest in the Simmonses’ real property; and (2) shared the same interests as some of the defendants named in the earlier lawsuits by which the Simmonses sought to invalidate the 2006 loan and remain in their home. Therefore, MERS is in privity with the parties to the earlier lawsuits that were dismissed. Fannie Mae is in privity with BAC Home Loans Servicing, L.P., which entity the Simmonses named as a defendant in both of their earlier lawsuits, because BAC Home Loans Servicing, L.P. assigned its interests in the property formerly owned by the Simmonses to Fannie Mae in March 2011. Mr. Simmons contends he has newly discovered evidence that brings into question the validity of the initial loan. Courts generally recognize newly discovered facts as an exception to the res judicata doctrine only in limited circumstances: An action that merely alleges new facts in support of a claim that has gone to judgment in previous litigation will be subject to claim preclusion. Of course, if the new facts establish a new claim separate and distinct from the previous claim, then claim preclusion has no applicability. Also, newly occurring facts, as opposed to newly discovered facts, might be a basis for direct attack on the prior judgment. Allegations of specific new events and circumstances, even if based on the same causes of action as the prior complaint, can still form a 8 separate claim, provided that the new events as well as the language and structure of the new complaint are sufficiently distinct from the prior action. 18 James Wm. Moore et al., Moore Federal Practice § 131.21 (3d ed. 2014) (footnotes omitted). Mr. Simmons’s contention that res judicata is inapplicable due to newly discovered evidence is founded upon a “Mortgage Document Examination & Investigative Report” performed on August 9, 2010, and the alleged failure of Fannie Mae and MERS to respond to certain notices provided by Mr. Simmons. However, we see nothing in the document examination and investigative report that could not have been discovered with ordinary diligence prior to or in the course of the prior litigation. As for the alleged failure of Fannie Mae and MERS to provide responses to certain notices, we do not see how any such failure would support a direct attack on the dismissal of his prior action, and Mr. Simmons did not use the lack of responses as the basis for a separate claim in this action. B. Failure to State A Claim Although we find the doctrine of res judicata to be a complete bar to the claims raised by Mr. Simmons in the counterclaim/third-party complaint, the trial court also found that the counterclaim/third-party complaint failed to state a claim upon which relief can be granted under Rule 12.02(6). A Rule 12.02(6) motion tests “only the sufficiency of the complaint, not the strength of a plaintiff’s proof.” Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn. 1994). Consequently, the motion requires examination of the complaint alone. Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708, 710 (Tenn. Ct. App. 1990). Our supreme court has stated the following: It is well established that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” In making this judgment, the court should construe the complaint liberally in favor of the plaintiff. Fuerst v. Methodist Hosp. S., 566 S.W.2d 847, 848-49 (Tenn. 1978) (citations omitted). However, the court has no duty “to create a claim that the pleader does not spell out in his complaint.” Donaldson v. Donaldson, 557 S.W.2d 60, 62 (Tenn. 1977). Mr. Simmons alleges four causes of action. Even construing the allegations of the counterclaim/third-party complaint liberally, with the exception of the claim to quiet title, the facts alleged either do not support the causes of action or preclude relief. The first cause of 9 action alleged by Mr. Simmons is a violation of the False Claims Act. Mr. Simmons makes no allegation that the funds of the state or a political subdivision are involved, which is a necessary requisite for a private right of action. See Tenn. Code Ann. § 4-18-104(c)(1) (2011). Mr. Simmons also claims a violation of the criminal impersonation statute, Tennessee Code Annotated section 39-16-301, but fails to allege how the statute may be applicable beyond claiming that Fannie Mae is falsely claiming to be a lender. Even assuming for the sake of argument that impersonating a lender is a “false identity” that falls within the criminal impersonation statute, the statute does not by its terms create a private right of action. Mr. Simmons has also failed to state a claim of fraudulent concealment. Allegations of fraud must be stated with particularity. Tenn. R. Civ. P. 9.02. For concealment or nondisclosure to constitute fraud, the party charged with fraud must have had knowledge of an existing fact or condition and a duty to disclose the fact or condition. Hill v. John Banks Buick, Inc., 875 S.W.2d 667, 670 (Tenn. Ct. App. 1993). Although Mr. Simmons alleges that Fannie Mae and MERS failed to disclose various specific facts, there was no corresponding duty to disclose the facts referenced. Furthermore, it appears from the allegations of the counterclaim/third-party complaint that the claim is largely barred by the applicable statute of limitations. Tenn. Code Ann. § 28-3-105 (Supp. 2014); Keller v. Colgems - EMI Music, Inc., 924 S.W.2d 357, 361 (Tenn. Ct. App. 1996). We respectfully disagree with the trial court’s conclusion that Mr. Simmons failed to allege a claim to quiet title. The counterclaim/third-party complaint alleges that the DOT is “a false and/or forged document causing a fraudulent lien on Defendants’ real property” and that the Simmonses ownership interest in the property was superior to any interest claimed by Fannie Mae. Those allegations, along with the request for relief, should be sufficient to make out a claim for which relief can be granted. See Stearns Coal & Lumber Co. v. Patton, 184 S.W. 855, 857 (Tenn. 1916) (“‘A simple statement that the instrument is void, or voidable, with the proper prayer, is sufficient.’”). Although we find that Mr. Simmons did state a claim to quiet title, as noted above, we nonetheless find the claim was properly dismissed based on res judicata. The “facts” on which Mr. Simmons bases his claim to quiet title are essentially the same as those asserted in the prior federal district court action, namely that the DOT is a void or voidable lien on his real property. C. Insufficiency of Service of Process The trial court also dismissed the claims against MERS on the alternative ground of insufficiency of service of process. Mr. Simmons does not include adequacy of service of 10 process in his statement of issues.5 Consequently, the issue is waived and not properly before us. See Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001) (“Courts have consistently held that issues must be included in the Statement of Issues Presented for Review required by Tennessee Rules of Appellate Procedure 27(a)(4).”). IV. C ONCLUSION For the reasons set forth above, we affirm the trial court’s judgment dismissing the counterclaim/third-party complaint with prejudice. Costs of this appeal shall be taxed to the appellant, Christopher Bernard Simmons, for which execution shall issue, if necessary. _________________________________ W. NEAL McBRAYER, JUDGE 5 Mr. Simmons does include the following paragraph in his statement of facts: The General Sessions Court For State of Tennessee Davidson County provide no means by which to include a Summons to MERS. MERS is in receipt of the Counter- Complaint and is aware this action has taken place, as [counsel for MERS] accepted service for MERS by responding. Even had the issue been properly presented, therefore, we would nonetheless affirm the trial court’s dismissal of the third-party complaint on the grounds of insufficiency of service of process. See Tenn. R. Civ. P. 14.01 (a third-party action is initiated by “caus[ing] a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff . . . .”). 11	01-03-2023	09-25-2014
https://www.courtlistener.com/api/rest/v3/opinions/4553915/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:08 AM CDT - 91 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 State of Nebraska, appellee, v. Abdul F. Vann, appellant. ___ N.W.2d ___ Filed June 12, 2020. No. S-18-928. 1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential ele- ments of the crime beyond a reasonable doubt. 2. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State’s case in chief in a criminal prosecution and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court’s overruling the motion for dismissal or a directed verdict but may still challenge the sufficiency of the evidence. 3. Criminal Law: Evidence: Appeal and Error. When a criminal defend ant challenges the sufficiency of the evidence upon which a conviction is based, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 4. Evidence: Waiver: Appeal and Error. A party who fails to make a timely objection to evidence waives the right on appeal to assert preju- dicial error concerning the evidence received without objection. 5. Convictions: Presumptions: Right to Counsel: Waiver: Proof. Convictions obtained after Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), are entitled to a presumption of regu- larity such that records of conviction are admissible unless the defend ant can show that he or she did not have or waive counsel at the time of conviction. - 92 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 Appeal from the District Court for Sarpy County: Stefanie A. Martinez, Judge. Affirmed. Thomas P. Strigenz, Sarpy County Public Defender, and Mitchell Sell, Senior Certified Law Student, for appellant. Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee. Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Papik, J. Abdul F. Vann appeals his conviction for possession of a deadly weapon by a prohibited person. Vann argues that his conviction should be overturned because the State did not introduce evidence affirmatively showing that he had or waived counsel at the time of his prior felony conviction. We, however, find that there was sufficient evidence to sup- port Vann’s conviction and that the district court did not err in admitting into evidence certified court records showing that Vann had counsel at the time he was sentenced for his prior conviction, but was silent as to whether he had counsel at the time he entered his plea. Finding no error, we affirm. BACKGROUND This case arises out of an incident in which a law enforce- ment officer found a set of brass knuckles in Vann’s pocket during a search. This led the State to bring charges against Vann for possession of a deadly weapon by a prohibited person and carrying a concealed weapon, among other charges. To prove that Vann was a felon and therefore prohibited from possessing a deadly weapon, the State offered docu- mentary evidence that Vann was convicted of possession of cocaine in the district court for Douglas County in 1992. In particular, the State offered exhibit 7, a five-page court record authenticated by the clerk of the district court for Douglas - 93 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 County. Exhibit 7 indicated that Vann was charged in that court with possession of cocaine and that he appeared with counsel for sentencing following a guilty plea. Nothing in exhibit 7 expressly indicated that Vann was represented by counsel at the time he entered his guilty plea or that he had waived that right. When the State offered exhibit 7, Vann’s counsel stated, “I have no objection to Exhibit 7 as an authen- ticated, certified copy.” The district court received exhibit 7 into evidence. At the conclusion of the State’s case, Vann moved to dis- miss the charge of possession of a deadly weapon by a prohib- ited person. Vann argued that exhibit 7 did not show that he had or waived counsel at the time of his prior guilty plea and was thus insufficient to establish that Vann was a prohibited person under State v. Portsche, 258 Neb. 926, 606 N.W.2d 794 (2000). The district court denied Vann’s motion to dismiss. Vann went on to introduce evidence of his own. After the con- clusion of all evidence, Vann renewed his motion to dismiss on the ground that the evidence was insufficient. The district court overruled the motion. The jury convicted Vann of both possession of a deadly weapon by a prohibited person and possession of a concealed weapon. Vann was sentenced to a term of imprisonment of 1 year for possession of a deadly weapon by a prohibited person and 6 months for possession of a concealed weapon. The sen- tences were ordered to be served concurrently to each other and with a sentence for a conviction in North Dakota. After Vann timely appealed, we moved the case to our docket. See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018). ASSIGNMENTS OF ERROR Vann assigns that the district court erred by (1) overruling his motion to dismiss at the conclusion of the State’s case and (2) finding that exhibit 7 was a valid prior conviction that could be used to prove that he had previously been convicted of a felony. - 94 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 STANDARD OF REVIEW [1] When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019). ANALYSIS Vann’s assignments of error pertain only to his conviction for possession of a deadly weapon by a prohibited person. Both of his assignments of error challenge the State’s use of exhibit 7 to prove that Vann had a prior felony conviction. Vann argues that because exhibit 7 did not affirmatively show that Vann had or waived counsel at the time of his guilty plea in his prior case, his motion to dismiss should have been granted and exhibit 7 should not have been admitted into evi- dence. Though Vann’s assignments of error are similar, they are analytically distinct and we thus consider them separately in the sections below. Sufficiency of Evidence. [2] Vann’s first argument is that the district court erred by denying the motion to dismiss he filed at the conclusion of the State’s case. The record, however, shows that after the State rested and Vann’s motion was denied, Vann put on evidence of his own. Vann thereby waived the right to chal- lenge the district court’s denial of his motion to dismiss. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State’s case in chief in a criminal prosecution and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correct- ness in the trial court’s overruling the motion for dismissal or a directed verdict but may still challenge the sufficiency - 95 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 of the evidence. State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019). [3] Vann also asserts that the evidence was insufficient to support his conviction. When a criminal defendant challenges the sufficiency of the evidence upon which a conviction is based, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019). In order to review whether there was sufficient evidence to sup- port Vann’s conviction for possession of a deadly weapon by a prohibited person, we must therefore first determine the essen- tial elements of the offense. To determine the elements of a crime, we look to the text of the statute. State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019). The statutory definition of possession of a deadly weapon by a prohibited person in effect at the time of the offense is set forth in Neb. Rev. Stat. § 28-1206 (Reissue 2016). It provides, in pertinent part, that a person commits the offense if he or she “possesses a firearm, a knife, or brass or iron knuckles” and “has previously been convicted of a felony.” The statutory text thus sets forth two elements that the State was required to prove in order to convict Vann: (1) that he possessed a firearm, a knife, or brass or iron knuckles and (2) that he had a previous felony conviction. See, also, State v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999) (finding that prior felony conviction is essential element of offense of felon in possession of firearm). Vann does not and could not dispute that there was suf- ficient evidence of both of the elements listed above—there was evidence that he possessed brass knuckles and that he had a prior felony conviction. Instead, Vann argues that the evidence to convict was insufficient because it did not show that he had or waived counsel at the time of his prior convic- tion. Vann argues that our opinion in State v. Portsche, 258 - 96 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 Neb. 926, 606 N.W.2d 794 (2000), requires such evidence. As we will explain below, however, Portsche did not recog- nize any essential elements beyond those that appear in the text of § 28-1206, and thus, an argument based on Portsche is not properly framed as a challenge to the sufficiency of the evidence. In Portsche, the defendant was charged with being a felon in possession of a firearm in violation of § 28-1206. At a bench trial, the State offered records of a prior plea-based conviction, but the district court found that the conviction was not valid for purposes of § 28-1206 because the records did not reflect that the defendant had an attorney or waived his right to an attorney at the time of his plea. The district court found the defendant not guilty of the charge, and the State brought an error proceeding pursuant to Neb. Rev. Stat. § 29-2315.01 (Reissue 1995). In the error proceeding, the State argued that a prior uncounseled conviction could establish that a defendant had “previously been convicted of a felony” for purposes of § 28-1206. We rejected the State’s argument in Portsche, citing a prior felon in possession case, State v. Groves, 239 Neb. 660, 477 N.W.2d 789 (1991). In Groves, the defendant argued that the trial court erred by allowing the admission of evi- dence that he had a prior burglary conviction. The defendant argued that evidence of his prior conviction should have been excluded because the records failed to show that at the time of his prior conviction, he had or waived counsel. We noted we had previously held in the sentence enhance- ment context that in order to prove a prior conviction, the State was required to prove that, at the time of the convic- tion, the defendant had or waived counsel. We determined the State should be required to prove the same in order to prove a prior conviction for purposes of § 28-1206. Notably, the defendant in Groves did not frame his challenge as one of insufficient evidence. Instead, he argued that evidence of a prior conviction could not be admitted without proof - 97 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 that the defendant had or waived counsel at the time of the prior conviction. We understand Portsche to have adopted a rule pertain- ing to the admissibility of evidence of prior convictions in felon in possession prosecutions, as opposed to recognizing additional essential elements under § 28-1206. We reach this conclusion for several reasons. First, as we have noted, we look to statutory language to determine the essential elements of the offense, and no statutory language makes reference to the role of counsel in a prior conviction. Second, we relied upon Groves, which discussed the same rule in the context of an evidence admissibility challenge. Third, we summarized our holding in admissibility terms: “Before a prior felony conviction can be used to prove that a defendant is a felon in a felon in possession case, the State must prove either that the prior felony conviction was counseled or that counsel was waived.” State v. Portsche, 258 Neb. 926, 940, 606 N.W.2d 794, 803 (2000) (emphasis supplied). And finally, if Portsche actually made the presence or waiver of counsel at the time of a prior conviction an essential element of the offense, juries could be placed in the position of deciding the legal question of whether a defendant validly waived counsel. We recognize that in State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013), we briefly considered a sufficiency of the evidence argument based on Portsche. To the extent this aspect of Watt could be read to suggest that the State is required to prove that a defendant charged with violating § 28-1206 had or waived counsel at the time of a prior conviction as an essential element of the crime, it is disapproved. For the reasons we have explained, the only essential ele- ments the State was required to prove to convict Vann were that he possessed brass knuckles and that he was previously convicted of a felony. Because a rational trier of fact could have found both of these elements beyond a reasonable doubt, his sufficiency of the evidence challenge fails. - 98 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 Admissibility of Exhibit 7. [4] Vann’s other assignment of error is that the district court erred by finding that exhibit 7 could be used to prove that he had previously been convicted of a felony. We understand this assignment of error to challenge the admissibility of exhibit 7. At the time exhibit 7 was offered, Vann did not object. We have held that a party who fails to make a timely objection to evidence waives the right on appeal to assert prejudicial error concerning the evidence received without objection. See, e.g., State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). At oral argument, Vann argued that the lack of a contempo- raneous objection to exhibit 7 does not preclude reversal of his conviction in this case because the admission of exhibit 7 was plain error. Vann is, of course, correct that we can recognize plain error even when evidence is received without a timely objection. See, e.g., State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008). As we will explain, however, we do not believe the district court committed any error, let alone plain error, by receiving exhibit 7. In support of his argument that exhibit 7 should not have been admitted, Vann relies primarily on Portsche. He points to language in Portsche stating that where a record is silent as to whether a defendant had or waived counsel at the time of a prior conviction, courts may not presume that the defend ant had or waived counsel. This language from Portsche is consistent with a line of cases from this court. Particularly relevant to the facts of Vann’s appeal are cases within that line of precedent, which hold that, even if there is evidence a defendant had counsel at the time of sentencing for a prior conviction, evidence of that conviction should not be consid- ered in the absence of proof that the defendant also had or waived counsel at the time of conviction. See, e.g., State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002). This line of cases appears to have begun with State v. Smith, 213 Neb. 446, 329 N.W.2d 564 (1983). In Smith, this court - 99 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 held that courts could not presume that a defendant’s prior con- viction was obtained in compliance with the Sixth Amendment right to counsel. We did so in reliance on the U.S. Supreme Court’s opinion in Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967). In Burgett, the U.S. Supreme Court held that prosecutors in a Texas case could not use records of a prior Tennessee conviction when those records did not show that the defend ant had or waived counsel in the Tennessee case. The U.S. Supreme Court held that it could not presume the defendant had or waived counsel in the Tennessee proceedings. The Court stated, “To permit a conviction obtained in violation of Gideon v. Wainwright[, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963),] to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case.” Burgett, 389 U.S. at 115. After Smith, we continued to apply the principle we rec- ognized in reliance on Burgett. See, e.g., State v. Orduna, 250 Neb. 602, 550 N.W.2d 356 (1996); State v. Ristau, 245 Neb. 52, 511 N.W.2d 83 (1994); State v. Nowicki, 239 Neb. 130, 474 N.W.2d 478 (1991). We were not alone among state high courts in understanding Burgett to prohibit courts from presuming that a prior conviction was obtained in compliance with the Sixth Amendment. See, e.g., State v. Grenvik, 291 Or. 99, 628 P.2d 1195 (1981), overruled, State v. Probst, 339 Or. 612, 124 P.3d 1237 (2005); State v. Reagan, 103 Ariz. 287, 440 P.2d 907 (1968), overruled, State v. McCann, 200 Ariz. 27, 21 P.3d 845 (2001). But while the principle Vann relies upon rests on a particu- lar understanding of Burgett, a subsequent U.S. Supreme Court decision indicated that Burgett should not be read so broadly. In Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391 (1992), a federal habeas petitioner contended a Kentucky sentencing enhancement procedure that presumed the validity of prior convictions and required the defendant to show the conviction was somehow invalid was unconstitutional. The - 100 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 U.S. Supreme Court disagreed, reasoning that the habeas peti- tioner was collaterally attacking his prior convictions and that under those circumstances, a “‘presumption of regularity’” should attach to the prior convictions. Parke, 506 U.S. at 29. In the course of the opinion, the Court found no merit to an argument that Burgett would not permit a presumption that the prior convictions were constitutionally valid. It explained that at the time the prior conviction at issue in Burgett was entered, state criminal defendants’ federal constitutional right to counsel had not yet been recognized. Under those cir- cumstances, the Parke Court said, it was not reasonable to presume from a silent record that the prior conviction was validly obtained. After oral argument in this case, we asked the parties to submit supplemental briefs addressing whether, in light of Parke, the State or the defendant bears the burden of proving that a prior conviction was or was not obtained in violation of the Sixth Amendment right to counsel. Vann argued that Parke does not call the principle first expressed in Smith into question. The State argued that Parke rejected the broad read- ing of Burgett upon which Smith and its progeny relied and that a prior criminal conviction was entitled to a presumption of regularity. Having considered Parke and the parties’ arguments regard- ing it, we do not believe we were correct to say that a court can never presume that a defendant had or waived counsel at the time of a prior conviction. Although the line of cases beginning with Smith read Burgett to prohibit such a presump- tion as a constitutional matter, Parke makes clear that reading of Burgett was too broad and that Burgett does not speak to prior convictions obtained after the recognition of a federal constitutional right to counsel in state court in Gideon. Not only do we believe it is not unconstitutional for a court to extend a presumption of regularity to post-Gideon prior convictions, we believe such a presumption is consistent with the way our law generally treats final judgments in criminal - 101 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 cases. We have long held that judgments imposing sentences in a criminal case are entitled to a presumption of regular- ity and validity. See, e.g., Nicholson v. Sigler, 183 Neb. 24, 157 N.W.2d 872 (1968); Sedlacek v. Hann, 156 Neb. 340, 56 N.W.2d 138 (1952). Furthermore, as a factual matter, we think it unlikely that many modern convictions are obtained in violation of a defendant’s Sixth Amendment rights. As other courts have observed, the recognition of a constitutional right to counsel in Gideon and the further recognition of that right in state stat- utes or rules of criminal procedure, see, e.g., Neb. Rev. Stat. § 29-3903 (Cum. Supp. 2018), make it unlikely that defendants are convicted without counsel or waiving the right thereto. See, e.g., Com. v. Saunders, 435 Mass. 691, 761 N.E.2d 490 (2002); State v. McCann, 200 Ariz. 27, 21 P.3d 845 (2001); State v. Glenn, No. 34790-3-II, 2007 WL 2379655 (Wash. App. Aug. 21, 2007) (unpublished opinion listed at 140 Wash. App. 1014 (2007)). And even if a conviction is somehow obtained in violation of Gideon, a defendant can successfully challenge that conviction. Glenn, supra. We are in no way breaking new ground by concluding that Burgett does not prohibit courts from presuming that convic- tions obtained after Gideon were obtained in compliance with the Sixth Amendment. After Parke, many state and federal courts have concluded that post-Gideon convictions are enti- tled to a presumption of regularity, such that once the govern- ment establishes the existence of a prior conviction, it becomes the defendant’s burden to prove that he or she did not have counsel and did not waive the right to counsel at the time of conviction. See, e.g., U.S. v. Coppage, 772 F.3d 557 (8th Cir. 2014); U.S. v. Guerrero-Robledo, 565 F.3d 940 (5th Cir. 2009); U.S. v. Bush, 405 F.3d 909 (10th Cir. 2005); U.S. v. Cline, 362 F.3d 343 (6th Cir. 2004); U.S. v. Jones, 332 F.3d 688 (3d Cir. 2003); U.S. v. Gray, 177 F.3d 86 (1st Cir. 1999); State v. Von Ferguson, 169 P.3d 423 (Utah 2007); Nicely v. Commonwealth, 25 Va. App. 579, 490 S.E.2d 281 (1997). Included among - 102 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 the state high courts that have adopted this position are those that, like us, once understood Burgett to prohibit courts from presuming that a prior conviction was obtained in compliance with the Sixth Amendment. See, e.g., State v. Probst, 339 Or. 612, 124 P.3d 1237 (2005); State v. McCann, 200 Ariz. 27, 21 P.3d 845 (2001). [5] Persuaded that this approach is correct, we overrule our prior cases to the extent they hold that courts cannot presume that the defendant had or waived counsel at the time of a prior conviction. See, e.g., State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011); State v. King, 272 Neb. 638, 724 N.W.2d 80 (2006); State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005); State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002); State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001); State v. Portsche, 258 Neb. 926, 606 N.W.2d 794 (2000); State v. Orduna, 250 Neb. 602, 550 N.W.2d 356 (1996); State v. Ristau, 245 Neb. 52, 511 N.W.2d 83 (1994); State v. Reimers, 242 Neb. 704, 496 N.W.2d 518 (1993); State v. Nowicki, 239 Neb. 130, 474 N.W.2d 478 (1991); State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991); State v. Sherrod, 229 Neb. 128, 425 N.W.2d 616 (1988); State v. Foster, 224 Neb. 267, 398 N.W.2d 101 (1986); State v. Huffman, 222 Neb. 512, 385 N.W.2d 85 (1986); State v. Schaf, 218 Neb. 437, 355 N.W.2d 793 (1984); State v. Ellis, 216 Neb. 699, 345 N.W.2d 323 (1984); State v. Ziemba, 216 Neb. 612, 346 N.W.2d 208 (1984); State v. Smith, 213 Neb. 446, 329 N.W.2d 564 (1983). We hold that post-Gideon con- victions are entitled to a presumption of regularity such that records of conviction are admissible unless the defendant can show that he or she did not have or waive counsel at the time of conviction. To be clear, our decision leaves untouched the central holding of Portsche that the State may not rely upon a con- viction obtained in violation of the Sixth Amendment in order to establish a violation of § 28-1206. Only the lan- guage in Portsche stating that a court cannot presume that a - 103 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 prior conviction was obtained in compliance with the Sixth Amendment is disapproved. Additionally, we note that even though this is a case in which a prior conviction is an element of the offense, our deci- sion today also overrules cases in which the State attempted to rely on prior convictions to enhance a sentence. As mentioned above, we have previously treated rules governing the con- sideration of records of conviction when a prior conviction is an element of the offense as equally applicable to attempts to use a prior conviction to enhance a sentence. See, e.g., State v. Groves, 239 Neb. 660, 477 N.W.2d 789 (1991). Like other courts, we see no reason to treat the two situations differently today. See, e.g., Probst, 339 Or. at 624, 124 P.3d at 1244 (col- lecting cases in which courts “adopted the presumption of regularity for prior convictions used to enhance sentences or as elements of a crime”); State v. McCann, 200 Ariz. 27, 21 P.3d 845 (2001) (holding that presumption of regularity applies to prior convictions regardless of whether they are used to enhance sentence or to prove element of offense). Turning to the facts of the present case, the application of the foregoing principles is straightforward. Via exhibit 7, the State demonstrated the existence of a prior conviction obtained decades after the establishment of a federal constitu- tional right to counsel, and Vann did not object to its admis- sion. At that point, the conviction was entitled to a presump- tion of regularity and Vann had the burden to show that he did not have counsel at the time of the conviction and did not waive the right to counsel. Vann, however, introduced no evi- dence even suggesting as much. Accordingly, the district court did not err in receiving exhibit 7. Response to Concurring Opinion. Prior to concluding, we write in response to the concurring opinion’s assertion that, in this opinion, we have adopted “new principles of appellate law.” It appears the concurring opin- ion believes we have done so because of the circumstances - 104 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 under which we considered the State’s argument that the line of cases that began with State v. Smith, 213 Neb. 446, 329 N.W.2d 564 (1983), rested on a misunderstanding of Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), and should be overruled. As we will explain, however, the result we reach today comes about through the application of existing principles, not the establishment of new ones. First, this opinion does not change our rule that generally we do not consider issues raised for the first time on appeal. As we recently explained, “[t]his is primarily so because a trial court cannot commit error regarding an issue that was never presented to it or submitted for its disposition.” State v. Kruse, 303 Neb. 799, 811, 931 N.W.2d 148, 156 (2019). In that same opinion, we said that “where the record adequately dem- onstrates that the decision of a trial court is correct, although such correctness is based on a ground or reason different from that articulated by the trial court, an appellate court will affirm.” Id. In the present case, we are not finding that the trial court erred regarding an issue that was not presented to it. Rather, we are affirming the decision of the trial court on an alternate basis, a well-worn path in our jurisprudence. There was also no reason for the State to raise the continu- ing vitality of the Smith line of cases before the district court. Not only was exhibit 7 received into evidence, Vann did not object to its receipt. While we certainly understand that a party generally must make objections to the actions of the trial court to preserve subsequent appellate review, the admission of exhibit 7 was not even a contested issue in the trial court, let alone an issue to which the State would be expected to enter an objection. Neither do we believe our opinion establishes any new principles regarding the raising of issues for the first time at oral argument. We do not dispute that it is generally advis- able for parties to raise issues on appeal before oral argu- ment, but again, we have long recognized that appellate courts may affirm a decision of a trial court where the record - 105 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 demonstrates it is correct, even if for a different reason than that expressed by the trial court. Here, the State raised at oral argument the continuing vitality of the line of cases beginning with Smith; we gave the parties the opportunity to address the issue in supplemental briefing; and ultimately, we determined the trial court decision was correct, albeit for a reason not expressed by the trial court judge. Further, our own precedent indicates that we may con- sider this issue on appeal even though the State did not raise it in the trial court or until oral argument on appeal. In Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011), an employee in a workers’ compensation matter argued for the first time on appeal that one of our prior cases was wrongly decided. The employer asserted that the employee waived the argument because she did not present it to the workers’ compensation review panel. We rejected the employer’s position, explaining that the employee did not waive the argument because the review panel lacked the power to overturn our precedent. In this case, the State obvi- ously could not have asked the trial court to overrule any of our cases. And, under the circumstances, neither do we believe the omission of the issue from the State’s brief on appeal can be considered a waiver. The State filed its brief before we moved the case to our docket, when it was pending before the Nebraska Court of Appeals. The Court of Appeals, like the review panel in Bassinger, lacks the authority to overrule our precedent. We also disagree that this opinion makes any changes to our plain error review standard. When we review an issue for plain error, we will reverse only when an error is plainly evident from the record and certain other requirements are met. See, e.g., State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020). We applied that standard here, found no plain error, and there- fore affirmed. The concurrence does not say how it would resolve this case under plain error review, but to the extent it suggests - 106 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 that we should have found that the receipt of exhibit 7 merely did not rise to the level of plain error without reconsider- ing any precedent, that course was not open to us here. Our precedent held that it was plain error to presume that a prior conviction was obtained in compliance with a defendant’s Sixth Amendment rights. See, e.g., State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002). And to the extent the concur- rence would have us refuse to reconsider whether something we have held is plain error is actually error at all, that would, rather strangely, allow a party to insulate shaky precedent from review by declining to object at trial. We reviewed for plain error because Vann did not object to the receipt of exhibit 7. We do not understand why his failure to object would preclude us from considering whether the precedent he relied upon remains good law. CONCLUSION Because the district court did not err in receiving exhibit 7 and because there was sufficient evidence to support the chal- lenged conviction under § 28-1206, we affirm. Affirmed. Heavican, C.J., not participating. Miller-Lerman, J., concurring. Regrettably, today the majority announces a wholly unforced new chapter in Nebraska appellate jurisprudence. The major- ity opinion establishes the following precedents: • The Nebraska Supreme Court will consider new arguments made by any party for the first time at oral argument before the Nebraska Supreme Court (i.e., parties are no longer required to present or preserve a controlling issue earlier in the appellate process or in the lower courts); and • “Plain error review” is now a vehicle for the Nebraska Supreme Court for overruling precedent (i.e., the Nebraska Supreme Court’s plain error review doctrine is no longer limited to correcting errors committed by the trial court under existing law plainly evident from the record). - 107 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports STATE v. VANN Cite as 306 Neb. 91 In my view, adoption of these new principles of appellate law injects instability and diminishes confidence in Nebraska’s appellate process. Notwithstanding the foregoing, I agree that the Smith line of precedents has become at odds with the progeny of Parke. So applying the new substantive law announced today, I concur.	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/3393953/	Whiting was convicted under the second count, which charged him as an accessory before the fact — that he "did counsel, incite, procure, abet and command the said Young Farris, the said robbery and felony in the form and manner aforesaid to do and commit." The third count, charging him as a principal in the second degree, that is, with being present, aiding and abetting, etc., was evidently abandoned; at least, the verdict ignored this count. I think the evidence would probably have sustained a conviction under this third count, charging Whiting as a principal in the second degree, on the theory of constructive presence, as enunciated in Pope v. State, 84 Fla., 428, 94 So. R. 865. But I do not think it sufficient to sustain the conviction as accessory before the fact under the second count, on which the verdict was based. While Section 7110 Comp. Gen. Laws (5008 R. F. S.) makes all who "aid" in the commission of a felony, — that is, principals, in the second degree, — and accessories before the fact, punishable with the same punishment prescribed for the principal, and Sec. 7111 Comp. Gen. Laws (5009 Rev. Gen. Stats.) provides for joint indictment, these statutes do not abolish the distinctions between accessories before the fact, and principals in the first and second degrees, and do not authorize the conviction of a person as an accessory before the fact who was indicted as a principal, or vice versa. An accessory before the fact must still be indicted as such. 3 Bishop's Crim. Prac., 39, p. 1227; 1 Rawle C. L. p. 145, Sec. 22; 14 Ann. Cas., 311 note. The succeeding sections, 7111 Comp. Gen. Laws (5009 Rev. Gen. Stats.) shows this. See also Ex parte Bowen 25 Fla. 214, 220, and Bowen v. State, 25 Fla., 645; Flynn v. State, 86 Fla. 467. Page 699 The definitions and distinctions at common law are tersely stated in the Albritton v. State, 32 Fla. 358, 13 So. R. 955; "An accessory before the fact is one who, though absent at the time of the commission of a felony, doth yet procure, counsel, command and abet another to commit such felony. An accessory after the fact is one who, when knowing a felony to have been committed by another, receives, relieves, comforts or assists the felon, whether he be a principal or an accessory before the fact. Principals in the second degree are those who are present, aiding and abetting at the commission of the act." Citing Montague v. State, 17 Fla. 652. Sections 7110, 7111 and 7112 of Comp. Gen. Laws (5008-9-10 Rev. Gen. Stats.) appear under a chapter entitled "Principals and Accessories." Sec. 7110 reads as follows: 7110. (5008). ACCESSORY BEFORE THE FACT. — Whoever aids in the commission of a felony, or is accessory thereto, before the fact, by counseling, hiring, or otherwise procuring such felony to be committed, shall be punished in the same manner prescribed for the punishment of the principal felon. Section 7111, reads: 7111. (5009). INDICTMENT AND PUNISHMENT. — Whoever counsels, hires or otherwise procures a felony to be committed may be indicted and convicted as an accessory before the fact, either with the principal felon or after his conviction, or may be indicted and convicted of substantive felony, whether the principal has or has not been convicted or is or is not amenable to justice; and in the last mentioned Page 700 case may be punished in the same manner as if convicted of being an accessory before the fact. (Id. Par. 4.) My view is that Section 7110, in spite of its head line, deals with two classes, which it makes punishable the same as principals in the first degree — that is: (1) "Whoever aids in the commission of a felony, or (2) is accessory thereto, before the fact, by counseling, hiring, or otherwise procuring such felony to be committed." It could not have been intended by this statute to provide that one who aids in the commission of a felony is an accessory before the fact. Such a one is a principal in the second degree. The succeeding section repeats the same definition of an accessory before the fact as "Whoever counsels, hires, orotherwise procures a felony to be committed, may be indicted and convicted as an accessory before the fact," etc. Section 7112 Comp. Gen. Laws relates to accessories after the fact, and is not pertinent here. The evidence here is probably sufficient to show that Whiting was aiding Weaver and Farris in the commission of the robbery, in that he was nearby in his automobile to render assistance if necessary, or to warn them of the approach of officers, and thus constructively present, aiding and abetting in the commission of the offense, and hence a principal in the second degree, but there is no evidence from which it could be inferred that he counselled, or advised, or incited, or in any way procured, them to commit the crime. The evidence is as consistent with the theory that they procured him to help them commit the offense, as that he procured them to do it. The word "abet" as used in the indictment is in the sense of counselling or *Page 701 inciting the principal to commit the act; not in the sense of aiding in the actual deed when committed. I think therefore the case should be reversed, as to plaintiff in error Whiting.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3848191/	In this proceeding in equity the learned chancellor, after an exhaustive accounting and numerous hearings, found in favor of plaintiff, A. DePaolo, and when that finding was affirmed by the court en banc and final decree entered thereon, the defendant, Michael DeRomo, took this appeal. The pertinent facts, as accurately determined by the chancellor, are as follows: DeRomo, on July 22, 1937, made a contract with the Pittston-Duryea Coal Company to mine the coal in its Stevens Shaft mine in Exeter Borough, Luzerne County, Pennsylvania. Subsequently, defendant formed the DeRomo Mining Company, the capital stock of which he owned or controlled in its entirety, to do the mining. The Mining Company, with DeRomo in complete control, took possession and was operating the colliery on July 22, 1938, when plaintiff and defendant and the DeRomo Mining Company entered into a contract, supplemented by an agreement dated July 28, 1938, under which plaintiff took possession and control of the operations of the Mining Company on August 1, 1938, and undertook to mine the coal in the Stevens Shaft in accordance with the terms of the contract between the Pittston-Duryea Coal Company and DeRomo. The contract between plaintiff, defendant and the Mining Company provided, in substance, that defendant assign and transfer all of the capital stock of the Mining Company to the plaintiff, for $75,000.00. This sum Page 656 was to be paid to DeRomo by deductions by him of 15 cents from the sale price of each ton of coal mined and sold to the Pittston-Duryea Coal Company under the terms of the contract existing between it and DeRomo. It further provided that all of the capital stock issued to DePaolo was to be endorsed in blank and deposited with DeRomo as security for the faithful performance of the contract, and that when the $75,000.00 was fully paid, one-half of the total number of shares was to be surrendered to DePaolo and the remaining one-half was to become the property of DeRomo so that, after full payment, the two were to be equal owners of the DeRomo Mining Company. In the event that DePaolo breached any part of the contract DeRomo had with the Pittston-Duryea Coal Company, however, DeRomo was to become sole owner of all the stock. DePaolo also agreed to furnish all the capital necessary for the mining and to deposit $2,500.00 in the First National Bank of Kingston as collateral security for the payment of any existing bills for labor and material in the event he breached his contract. No withdrawals could be made on this account except on the joint signature of DeRomo and DePaolo. In lieu of wages or salary, the entire profits of the Mining Company were to belong to DePaolo until the $75,000.00 was paid. Pursuant to this contract, DePaolo went into control of the operations of the Mining Company and continued in possession until March 15, 1939. The operation was being performed satisfactorily by DePaolo when, on November 7, 1938, DeRomo served notice on him to quit and remove from the Stevens Shaft colliery alleging breach of contract. This notice, signed by DeRomo individually, started the controversy which culminated in this litigation. There is no evidence in the record that the Mining Company concurred in the action taken by DeRomo although it was one of the parties to the agreement of July 22, 1938. Nothing further was done pursuant to this notice to quit until March 15, 1939, when DeRomo's representatives, with his express authority, Page 657 summarily removed and evicted DePaolo from the mine. It appears that DeRomo then served written notice on DePaolo on March 24, 1939, that as of March 15, 1939, he was taking full charge, control and possession of the mine, notifying DePaolo to remove himself, and that thereafter DePaolo's employees would be prohibited from entering the property because of alleged breaches in the contract between the parties. This notice was likewise signed by the defendant individually and not by the Mining Company. The record also shows that during November of 1938 the defendant caused three warrants to issue for the arrest of DePaolo for trespassing and that they were subsequently abandoned; and that he communicated with creditors of DePaolo and the Mining Company with a view to embarrass DePaolo in his further operation of the mine. The chancellor found that "DeRomo improperly and forcibly took control and possession of the operations of the DeRomo Mining Company on March 15, 1939, and wrongfully dispossessed DePaolo." He further found that the Mining Company, while under the control of DePaolo, complied with all the engineering requirements of the contract existing between DeRomo and the Pittston-Duryea Coal Company to the complete satisfaction of the mining engineer of that Company, that the operation was conducted in a competent mining manner, that DePaolo faithfully performed his contract with DeRomo, and that his eviction was unwarranted and improper. It is undisputed that during the time DePaolo was in charge of operations the production of coal was greatly increased over the production for the first seven months of 1938. From August 1, 1938, to March 13, 1939, the last day the colliery was under the supervision of DePaolo, it produced 61,228.94 tons of coal and DeRomo deducted and received 15 cents per ton thereon, amounting to $9,194.34, to apply upon the consideration of $75,000.00 agreed to be paid by DePaolo to DeRomo as the purchase price of the stock. Page 658 This proceeding is against DeRomo individually. The DeRomo Mining Company, although a party to the original agreement between plaintiff and defendant, is not a party to this suit, and is not here to account for any claims which DePaolo may have, if any, against it. The breach here and the damage to DePaolo was caused solely by the intemperate acts of DeRomo individually. There is no evidence here that the Mining Company participated in his wanton breach. The learned chancellor concluded that "DePaolo did not breach the contracts . . . but the said contracts were breached by DeRomo in having evicted DePaolo and thereby making it impossible for him to carry out the terms of said agreements", and decreed that defendant assign to plaintiff all of his right, title and interest in the special deposit account of $2,500.00 and that he pay plaintiff $9,194.34 damages for having breached the contract. A careful review of the record will convince anyone that the facts as found by the chancellor, and approved by the court below, are fully supported by the evidence. The facts as found, being supported by the evidence, have the effect of a jury verdict and are binding upon us: Weiss v. First Nat. Bk. ofScranton, 321 Pa. 365. Indeed, contrary findings could not be upheld on this record, which is overwhelming in support of the chancellor's findings. We now turn to the matter of damages and the decree of the court below in respect thereto. There can be no doubt as to the propriety of the ruling that defendant must assign to plaintiff any interest he may have in the special deposit account of $2,500.00. This deposit was made as collateral security for the payment of any debts for labor and materials in the event of a breach of the contract by DePaolo. Since the only breach was by DeRomo individually, he can have no defense to the right of DePaolo to get back his money. Although there is some disputed testimony that on March 15, 1939, the accounts payable of the Mining Company exceeded $10,000.00, there is no testimony that the Page 659 remaining assets of the Company were not sufficient, and have not been used, to liquidate all such obligations. The plaintiff offered testimony to show that on that date the net assets of the Company, including the $2,500.00 deposit, were $17,727.60. We, therefore, conclude that it was proper to order DeRomo to assign any interest he had in the deposit account. The court below granted plaintiff a reimbursement of $9,194.34, which was the amount received by defendant under the terms of the contract he breached, being the 15 cents per ton of all the coal mined while DePaolo was in charge and not receiving either salary or wages. This money was paid and received on account of the purchase price of $75,000.00 for one-half of the capital stock of the Mining Company. The contract provided that plaintiff was to receive all the profits of that Company, which profits were to be computed after there had been first deducted from the proceeds of the coal sold the sum of 15 cents per ton, which amount was to be applied to the purchase price of the stock. This money, therefore, was money paid by plaintiff for, otherwise, it would have remained in the Mining Company as profits for his benefit had it not been paid out under the terms of the contract between him and DeRomo. It need only be said that "The amount of the plaintiff's expenditure, reasonably made in performance of the contract or, in necessary preparation therefor, is included in compensatory damages . . .": Restatement, Contracts, section 333. See alsoRogers v. Davidson, 142 Pa. 436. Further, the defendant having broken that contract cannot be heard to say that he can take all its benefits and refuse plaintiff any benefits under it. Having repudiated and breached his contract, he will not be permitted to enrich himself unjustly thereby. The plaintiff is entitled to reimbursement. We find no merit in the other assignments of error. The case was fairly tried and properly disposed of by the learned chancellor and court below, and all the assignments of error are, therefore, overruled. Decree affirmed. *Page 660	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3849677/	This case was correctly determined by the orphans' court sitting in banc, as will appear by that part of the opinion of Judge STEARNE set forth in the reporter's notes. Decree affirmed at appellants' cost.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3998518/	We dissent. The cause should be remanded with direction to enter judgment on the verdict. *Page 278	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/4553920/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:08 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/172878/	FILED United States Court of Appeals Tenth Circuit November 24, 2009 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 09-1070 v. (D.C. No. 1:08-CR-00094-WDM-1) (D. Colo.) OMAR TAPIA-PARRA, a/k/a Omar Tapia-Para, Defendant-Appellant. ORDER AND JUDGMENT * Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. Omar Tapia-Parra pled guilty to a charge of illegal re-entry into the United States after previous deportation, in violation of 8 U.S.C. §§ 1326(a) & (b)(2), and was sentenced to 36 months’ imprisonment. Although his sentence was five months below the recommended Guidelines range for his offense, Mr. Tapia-Parra now appeals that sentence. His attorney has filed a brief pursuant to Anders v. * After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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. California, 386 U.S. 738 (1967), advising us that he discerns no colorable basis for the appeal and seeking leave to withdraw. After careful review, we agree with counsel’s assessment of the appellate arguments available to his client and thus grant the motion to withdraw and dismiss the appeal. *** The Supreme Court’s decision in Anders authorizes a defendant’s lawyer to seek permission to withdraw from an appeal if, “after a conscientious examination,” the lawyer finds the appeal “wholly frivolous.” 386 U.S. at 744. Invoking Anders requires the lawyer to “submit a brief to the client and the appellate court indicating any potential appealable issues based on the record,” and the client has an opportunity to respond to his attorney’s arguments. United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at 744). In evaluating the attorney’s request, we are required to “conduct a full examination of the record to determine whether [the] defendant’s claims are wholly frivolous.” Id. If they are, we may grant counsel’s motion to withdraw and dismiss the appeal. Id. In his Anders brief, Mr. Tapia-Parra’s attorney argues that this appeal is wholly frivolous because the district court’s sentence was not an abuse of discretion. In addition, the attorney argues that the two other potential bases for appeal — that the plea was invalid or that counsel was ineffective — are equally meritless. Mr. Tapia-Parra was given the opportunity to identify, but has not -2- identified, any additional issues for appeal, and neither has our own review of the record turned up any other potentially meritorious issues. As to the three potential arguments identified by counsel, we agree that each is unavailing. Turning first to the district court’s sentencing decision, counsel correctly notes that a defendant can attack the reasonableness of his sentence in two ways. First, a defendant can argue that the sentence is procedurally unreasonable “if the district court incorrectly calculates or fails to calculate the Guidelines sentence, treats the Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, relies on clearly erroneous facts, or inadequately explains the sentence.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008). Second, a defendant can argue that the sentence is substantively unreasonable “given the totality of the circumstances in light of the 18 U.S.C. § 3553(a) factors.” Id. We review both types of challenges for an abuse of discretion. Id. Under either type of attack, Mr. Tapia-Parra cannot plausibly argue that the district court abused its discretion by imposing a 36-month prison sentence. First, the sentence was procedurally reasonable. The district court correctly calculated the recommended Guidelines range of 41-51 months, did not treat that range as mandatory, considered the § 3553(a) factors, and applied those factors in imposing a sentence five months lower than the recommended range. There is no indication from the record or any party that this analysis was deficient in any -3- way. Second, the sentence was substantively reasonable. The district court’s five-month downward departure reflected a considered balancing of the defendant’s circumstances, including his family’s desire to have him back in Mexico as soon as possible, with the government’s interest in deterring future illegal re-entry. Consequently, the court’s reasoning comported with the analysis required under 18 U.S.C. § 3553(a). Indeed, in numerous other unpublished opinions, this court has granted Anders motions in nearly identical appeals. See, e.g., United States v. Hernandez-De Jesus, 216 F. App’x 737, 739 (10th Cir. 2007) (dismissing appeal challenging 36-month sentence imposed pursuant to guilty plea for illegal re-entry, when the recommended Guidelines range was 41- 51 months). The only other two potential bases for appeal also lack merit. First, Mr. Tapia-Parra has no grounds to argue that his plea agreement was invalid. His previous deportation and illegal re-entry provide a clear factual basis for the plea. The district court properly conducted the plea hearing and informed Mr. Tapia- Parra about the consequences of his plea. And the record indicates that his acceptance of the plea was voluntary, knowing, and intelligent. See United States v. Asch, 207 F.3d 1238, 1242 (10th Cir. 2000). Second, to the extent that Mr. Tapia-Parra might seek to challenge his counsel’s performance as ineffective, he must do so through collateral proceedings rather than direct appeal. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (stating that -4- ineffective assistance claims brought on direct appeal are “presumptively dismissible, and virtually all will be dismissed”). For these reasons, we agree with Mr. Tapia-Parra’s lawyer that there is no colorable basis for appeal. Accordingly, we grant counsel’s motion to withdraw and dismiss this appeal. ENTERED FOR THE COURT Neil M. Gorsuch Circuit Judge -5-	01-03-2023	08-14-2010
https://www.courtlistener.com/api/rest/v3/opinions/1275025/	185 S.E.2d 272 (1971) 13 N.C. App. 66 Clifton Alexander DILDY v. SOUTHEASTERN FIRE INSURANCE COMPANY. No. 711SC623. Court of Appeals of North Carolina. December 15, 1971. 273 LeRoy, Wells, Shaw, Hornthal & Riley by L. P. Hornthal, Jr., Elizabeth City, for defendant appellee. Jones, Jones & Jones and L. Bennett Gram, Jr., Ahoskie, for plaintiff appellant. BRITT, Judge. We hold that the trial court erred in granting summary judgment in favor of defendant. Assuming, arguendo, that defendant was entitled to joinder, it would appear that a motion to dismiss for failure to join a necessary party would be proper, particularly if the dismissal is without prejudice or is with leave to amend or is with leave to make additional parties. See: Plemmons v. Cutshall, 230 N.C. 595, 55 S.E.2d 74 (1949); G.S. § 1A-1, Rule 12; Capital Fire Ins. Co. of California v. Langhorne, 146 F.2d 237 (8th Cir. 1945); Keene v. Hale Halsell Co., 118 F.2d 332 (5th Cir. 1941); and Charne v. Essex Chair Co. et al., D.C., 92 F. Supp. 164 (1950). However, summary judgment is not a proper remedy for failure to join a necessary party. We think the basic legal question involved in this appealthe legality of the joinder proviso of the policy quoted abovedictates that we consider more than the question of procedure presented. Since policies of insurance are prepared by the insurer, they are liberally construed in favor of the insured, and strictly construed against the insurer. White v. Mote, 270 N.C. 544, 155 S.E.2d 75 (1967). "Uninsured motorists coverage `is designed to further close the gaps inherent in motor vehicle financial responsibility and compulsory insurance legislation.' 7 Am.Jur.2d, Automobile Insurance § 135, p. 460. It `is intended, within fixed limits, to provide financial recompense to innocent persons who receive injuries, and the dependents of those who are killed, through the wrongful conduct of motorists who, because they are uninsured and not financially responsible, cannot be made to respond in damages.' Annotation: 79 A.L.R. 2d 1252, 1252-53." Buck v. Guaranty Co., 265 N.C. 285, 288, 144 S.E.2d 34, 36 (1965). In Buck, the court also said: "Well-established legal principles include the following: (1) The `primary rule of construction of statutes is to ascertain and declare the intention of the legislature, and carry such intention into effect to the fullest degree.' 50 Am.Jur., Statutes § 223. (2) `An insurance contract or policy should be liberally 274 construed to accomplish the purpose or object for which it is made.' 44 C.J.S. Insurance § 297(a)". At times pertinent to this appeal, G.S. § 20-279.21(b)(3) as stated in Sec. 1, Ch. 640 of the 1961 Session Laws provided in relevant part as follows: "No policy of bodily injury liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle, shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of G.S. 20-279.5, under provisions filed with and approved by the Commissioner of Insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom." It appears from the quoted statute that the General Assembly clearly intended that automobile liability insurance policies delivered or issued for delivery in this State and covering motor vehicles registered or principally garaged in this State will provide protection, within certain limits, to insureds who are legally entitled to recover damages for bodily injury from owners or operators of uninsured motor vehicles. It is noted that the statute does not restrict the coverage to injury or damage occurring in this State. It is settled law that statutory provisions in effect at the time of the issuance of a policy become a part thereof, and policy provisions in conflict with the statute are void. Wright v. Casualty Co., 270 N.C. 577, 155 S.E.2d 100 (1967). G.S. § 58-31 states in part that "(n)o company or order, domestic or foreign, authorized to do business in this State under this chapter, may make any condition or stipulation in its insurance contracts concerning the court or jurisdiction wherein any suit or action thereon may be brought, ...." In the case at bar, the joinder provision in the policy issued by defendant to plaintiff has the practical effect of depriving the North Carolina courts of jurisdiction and making Virginia the proper forum. Needless to say, it would be an exercise in futility for the Superior Court of Gates County to enter an order making the persons allegedly causing plaintiff's injuries parties to the action when they could not be effectively served with process. The record indicates that defendant is authorized to do business in Virginia and if plaintiff filed his action in that state, service of process could be obtained on all parties. Conceding this to be true, how would defendant's policy holders enforce their uninsured motorists coverage on accidents occurring in states in which defendant is not authorized to do business and where defendant is not amenable to legal process? Thus the question presented to this court is: Does the joinder proviso in the policy requiring in this instance joinder of uninsured motorists who are non-residents over whom the State has no personal jurisdiction negate the legislative intent in regard to closing gaps in motor vehicle financial responsibility and violate G.S. § 58-31 by conditioning jurisdiction? This is a question of first impression in North Carolina. The precedent in this jurisdiction which most nearly addresses itself to this subject is Wright v. Casualty Co., supra, in which the court declared void the provision of an uninsured motorist clause stipulating that upon failure of insurer and insured, or insured's legal representative, to agree as to the right of recovery, the matter should be settled by arbitration, for the reason that the proviso, in effect, ousts the jurisdiction of the courts and conflicts with the beneficent purposes of the uninsured motorist statute. *275 At least one other jurisdiction, however, has addressed itself directly to the question presented. In Lawrence v. Continental Insurance Company, 199 So. 2d 398 (La.App. 1967), the court held that a provision in a family automobile liability policy, issued in state of insured's residence, that insurer could require its insured making claim under uninsured motorist coverage to join uninsured motorist as party defendant was void where uninsured motorist was nonresident of state and state had no personal jurisdiction over him and accident occurred in another state. The clause was deemed void for violation of LSA-R.S. 22:629 which pertinently provides: "A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation, or agreement: ... "(2) Depriving the courts of this state of the jurisdiction of action against the insurer;... "B. Any such condition, stipulation, or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provisions of the contract." "While the result in Louisiana was predicated on the rather precise language in the state's uninsured motorist statute, (North Carolina having a similar statute in G.S. § 58-31) the same result would seem equally justifiable in a jurisdiction without a comparable statutory pronouncement. To hold otherwise would allow the insurer to defeat the policy coverage or substantially hamper its enforcement by compelling the claimant to resort to a distant and possibly inaccessible forum." A. Widiss, A Guide to Uninsured Motorist Coverage, § 7.17, p. 273 (1969). In the case at bar, the effect of the proviso under consideration is to compel plaintiff to seek a forum in another state, which would be burdensome and unjustified. If the uninsured motorists were residents of a state in which defendant was not licensed to do business or amenable to its process, defendant's policy holders could be completely deprived of their uninsured motorist's coverage. Consequently, we hold that the provision, as it relates to uninsured motorists who are non-residents of this State and not amenable to the process of its courts, is void as being repugnant to G.S. § 58-31 and negating the expressed intent of the legislature in providing motor vehicle financial responsibility for the residents of this State. The judgment appealed from is Reversed. BROCK and VAUGHN, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1974914/	124 B.R. 610 (1991) In re Jerry W. MUTO, d/b/a Island Marine d/b/a Amelia Maintenance and Betty Ann Muto, Debtors. MERCURY FINANCE COMPANY OF GEORGIA, Plaintiff, v. Jerry W. MUTO and Betty Ann Muto, Defendants. Bankruptcy No. 90-469-BKC-3P7, Adv. No. 90-108. United States Bankruptcy Court, M.D. Florida, Jacksonville Division. March 4, 1991. 611 Sidney E. Lewis, Jacksonville, Fla., for plaintiff. Granville C. Burgess, Fernandina Beach, Fla., for defendants. FINDINGS OF FACT AND CONCLUSIONS OF LAW GEORGE L. PROCTOR, Bankruptcy Judge. This proceeding is before the Court upon the complaint of Mercury Finance Company of Georgia, seeking to except from discharge a debt of $1886.74, pursuant to 11 U.S.C. § 523(a)(6). A trial was held on January 15, 1991, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT Plaintiff and defendants entered into a promissory note and security agreement with defendants offering various personalty as collateral. The security agreement was recorded in Nassau County, Florida, public records, but no financing statement for that security agreement was filed with the Secretary of State of Florida. Thus the security agreement was "not perfected" pursuant to Florida law. Defendants subsequently sold the personalty without the knowledge or consent of plaintiff. After defendants filed for bankruptcy, plaintiff brought this proceeding asserting that defendants had willfully and maliciously injured it through the unauthorized sale of the collateral. Defendants assert that the debt is dischargeable as the security agreement was never "perfected." Plaintiff contends that the security agreement is valid between the parties, even though not "perfected." Therefore the injury is still willful and malicious and excepted from discharge. The only issue before the Court is whether the security agreement, in the absence of interested third parties, is valid between the plaintiff and defendants. CONCLUSIONS OF LAW 11 U.S.C. § 523(a)(6) provides in relevant part: (a) A discharge under . . . this title does not discharge an individual debtor from any debt . . . . . (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. . . . This Court has held that the willful sale of collateral in disregard of a secured party's rights, even without intent to defraud, excepts a debt from discharge. In re Ogden, 119 B.R. 277, 279 (Bankr.M.D.Fla. 1990); In re Howard, 6 B.R. 256, 258 (Bankr.M.D.Fla.1980). The law is well settled that the sale of collateral without the consent of the lienholder constitutes willful and malicious injury giving rise to an exception to discharge under 11 U.S.C. § 523(a)(6). Id.; See, e.g., In re Linklater, 48 B.R. 916 (Bankr.D.Nev.1985); In re Clark, 50 B.R. 122 (Bankr.D.N.D.1985); Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257 (11th Cir. 1988). In light of the above, the issue to be decided by the Court is whether or not the parties had a valid agreement. The matter of liens or security interests in personal property in Florida is governed by Chapter 679 Secured Transactions, Florida Statutes. Section 679.201 provides in relevant part: 612 Except as otherwise provided by this code a security agreement is effective according to its terms between the parties, against purchasers of the collateral and against creditors. . . . Consequently, the security agreement is effective according to its terms between the parties. However, its priority may be lost to others, if any, by reason of § 679.301, Florida Statutes, which provides in relevant part: (1) [A]n unperfected security interest is subordinate to the rights of . . . (c) In the case of goods . . . a person who is not a secured party and who is a transferee in bulk or other buyer not in the ordinary course of business . . . to the extent he gives value and receives delivery of the collateral without knowledge of the security interest before it is perfected. The statutory scheme provides that, as between the parties, the security agreement is valid and enforceable. However, if unperfected, the security interest is subordinate to the rights of intervening creditors. Following the scheme of recording acts generally, Florida statutory law provides that the failure to perfect or record the lien does not affect the lien right between the parties. The lienholder's priority claim may only be lost to an intervening purchaser or creditor. The debt of defendants to plaintiff will be held non-dischargeable pursuant to 11 U.S.C. § 523(a)(6). A separate Final Judgment in favor of plaintiff will be entered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3393641/	Suit was filed in Pinellas County styled Patrick Barry in his official capacity as Bishop of the Diocese of St. Augustine, a corporation sole, Complainant, v. A. G. Willard, defendant. It was alleged in the bill of complaint that the Right Reverend Patrick Barry, Bishop of the Diocese of St. Augustine, a corporation sole, held the fee simple title to certain lands in Pinellas County, and to certain other lands in Hillsborough County, and to certain other lands in Manatee County, and to certain other lands in St. Johns County, and to certain other lands in Putnam County, and to certain other lands in Volusia County, and to certain lands in Duval Page 404 County, and to certain lands in Palm Beach County, and to certain lands in Dade County, and to certain lands in Orange County, all of such lands being particularly described in the bill of complaint. The bill further alleged that one A. G. Willard had procured a judgment in a suit at law on a certain promissory note against Right Reverend Patrick Barry, Bishop of the Diocese of St. Augustine for the sum of $12,469.00 damages and attorney's fees, together with $16.70 costs, which judgment was procured in the Circuit Court of Polk County and that a copy of the judgment had been recorded in the proper records of Putnam County and that the Sheriff of Putnam County, R. C. Howell, had attempted to levy upon certain property in Putnam County, the title to which was in Right Reverend Patrick Barry, Bishop of St. Augustine, as a corporation sole. To the bill of complaint there were attached certain exhibits. Exhibit "A" was a deed conveying property from "The Most Reverend Michael Joseph Curley, Arch Bishop of Baltimore, Maryland, and formerly Bishop of St. Augustine, Florida," party of the first part, and "the Right Reverend Patrick Barry, Bishop of St. Augustine, Florida, and his successors in office of the County of St. Johns, State of Florida," party of the second part. There is also attached copy of the declaration in the suit in which judgment was rendered. That declaration declares against "Right Reverend Patrick Barry, Bishop of the Diocese of St. Augustine" and others. There was a demurrer to the declaration and thereafter the declaration was amended so as to conform with the following order: "The motion of the plaintiff to amend his declaration instanter by amending the phrase 'Rt. Rev. Patrick Barry Page 405 as Bishop of the Diocese of St. Augustine' to read 'Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine,' wherever the same appears in his declaration being granted, it is hereupon, after argument of counsel, ORDERED AND ADJUDGED that the demurrer of the defendant, Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, to plaintiff's declaration be and the same is hereby overruled. "It is further ORDERED AND ADJUDGED that the defendants, Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, be and he is hereby allowed until the February Rule Day, 1929, to plead further as advised. "Done and ordered at Bartow, Florida, this 9th day of January, 1929." The record shows that thereafter trial was had and judgment was rendered as follows: "IT IS THEREFORE, considered, ordered and adjudged that the plaintiff, A. G. Willard, do have and recover of and from the Defendant, the Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, the sum of Twelve Thousand, Four Hundred Sixty-Nine no/100 ($12,469.00) Dollars, damages and attorneys' fee, together with the further sum of $16.70 as his costs in this behalf expended, for all of which said sums let execution issue. This October 15, A.D. 1929." This judgment is shown to have been recorded in Polk County, where it was rendered, and in Pinellas County and in the other counties where the lands described in the bill of complaint were situated. The bill sought to procure a decree of the circuit court holding the judgment to be a judgment against Patrick Barry as an individual and not a judgment against Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, as a corporation sole, and to decree that the record of such judgment in such counties Page 406 constituted no lien upon the lands belonging to or the titles to which were in Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine as a corporation sole, and to thereby remove any cloud which might appear by the record to exist against such lands in such several counties. By supplemental bill of complaint the complainant sought to enjoin Howell as Sheriff from selling certain of the property situated in Putnam County and described in the bill of complaint under execution issued pursuant to the judgment. Demurrer was filed by Willard which amongst other things averred: "Second. That it affirmatively appears from the complainant's bill that the subject matter of this suit is without the jurisdiction of this court, except as to such lands involved therein as are situated in Pinellas County, Florida." "Fifth. That said bill of complaint is not sufficient as a bill to quiet the title to lands in this State, and is so vague, indefinite and insufficient as to wholly make or state a cause for equitable relief." Demurrer was filed by Howell as Sheriff of Putnam County, on four grounds, as follows: "First: That it affirmatively appears on the face of said bill that the complainant seeks to quiet title to certain lands in Putnam County, Florida, which are wholly without the jurisdiction of this Court. "Second: That it affirmatively appears from said bill that the complainant seeks to have the process of the circuit court of Pinellas County extended beyond its territorial boundaries. "Third: That it affirmatively appears from said bill that this Court is wholly without jurisdiction as to the lands described therein which lie within Putnam County, Florida. "Fourth: That it affirmatively appears from said bill that Page 407 the circuit court of Pinellas County is wholly without jurisdiction as to this defendant, or the subject matter of said suit insofar as the same pertains to this defendant." The demurrers were overruled and a temporary restraining order was entered restraining each of the defendants from enforcing the judgment against any of the lands described in the bill of complaint. The order overruling the demurrer of Howell as Sheriff was error, as the Court had no jurisdiction to control the official acts of Howell as Sheriff of Putnam County within Putnam County. There is grave question in our minds as to whether or not the bill of complaint showed on its face that complainant was not entitled to any of the relief prayed, however, as we cannot say that the overruling of the demurrer of Willard was clearly wrong, we shall not hold adversely on that point. The question of extra territorial jurisdiction was properly determined insofar as the purpose of the suit was within the purview of Chapter 11383, Acts of 1925, Extraordinary Session, Sections 5010 and 5011 C. G. L. Section 12 of Article V of our Constitution provides: "The circuit courts and circuit judges may have such extraterritorial jurisdiction in chancery cases as may be prescribed by law." Section 2 of Chapter 11383, Acts of 1925, provides that suits brought under the purview of that statute may be instituted by bill in equity "In the circuit court of any county in which any part of the said real estate is situated to have such conveyance or other evidence of claim or title canceled and such cloud, doubt or suspicion removed from such title, etc." It is shown by the record here that the title to the lands Page 408 described in the bill of complaint was conveyed to Rt. Rev. Patrick Barry, Bishop of St. Augustine, Florida, and his successors in office by a conveyance executed by Michael Joseph Curley who describes himself in the deed as "The Most Reverend Michael Joseph Curley, Archbishop of Baltimore, Maryland, and formerly Bishop of St. Augustine, Florida." The purpose of the suit is to procure a formal adjudication as to whether or not the judgment herein referred to constitutes a judgment against Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, Florida, as a corporation sole, or is a judgment against Bishop Barry as an individual. The defendant Willard was the owner of the judgment and it was sought to be determined that the judgment created no lien against the property described in the bill of complaint, the fee simple title to which was in Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, Florida, as a corporation sole. Therefore, it appearing that the suit is by one complainant against, insofar as the rights under the judgment are concerned, one defendant and involves an alleged cloud upon the titles to lands embraced in one conveyance to the complainant that the extra-territorial jurisdiction conferred by Section 2 of Chapter 11383, supra, is applicable and that the court had jurisdiction for the purpose of determining the question presented. It is unnecessary for us to discuss the status of Rt. Rev. Patrick Barry, Bishop of St. Augustine, Florida, as a corporation sole under the law of this State because that status has been determined by this Court in the case of Reid v. Patrick Barry, 93 Fla. 849, 112 So. 846, wherein we said: "Florida having by statute adopted the common law, in so far as the same is not inconsistent with our Constitution Page 409 and statutes, the common law doctrine of the corporation sole, not having been expressly or impliedly repealed by our organic or statutory law, remains in force in this State. "At common law, a bishop was a corporation sole, and a deed to the then bishop and his successors in office was construed to convey the fee to such bishop in his corporate capacity, the use of the word 'successors' being as necessary to that end as the use of the word 'heirs' to the conveyance of an estate of inheritance to a natural person." After demurrers were overruled Willard filed answer in which, amongst other things, he averred: "For answer to the eighth, ninth and tenth paragraphs of complainant's bill, this defendant admits the institution of the suit in the Circuit Court, Tenth Judicial Circuit in and for Polk County, Florida, and the pleadings had thereon, but denies that the complainant was named therein as an individual, but alleges the truth to be that said complainant was named therein as a corporation sole and in the same capacity as such defendant is named in the instant suit as complainant. "This defendant says that said motion at law was based upon a certain promissory note of Rosedale Realty Company in favor of the complainant, said complainant being named as 'Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine,' dated August 10th, 1925, due on or before three years after date, and which said note was endorsed by the complainant as 'Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine,' and by another, namely one Frank J. Senn, as is more particularly shown by the copy of said promissory note attached to complainant's original bill as Exhibit 'B' thereof. "This defendant admits that on or about the 15th day of October, 1929, a judgment was entered in the Circuit Page 410 Court, Tenth Judicial Circuit in and for Polk County, Florida, wherein it was considered, ordered and adjudged that this defendant, A. G. Willard, should have and recover of and from the Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, the sum of Twelve Thousand Four Hundred Sixty-nine ($12,469.00) Dollars damages and attorney's fees, together with the sum of Sixteen and 70/100ths ($16.70) Dollars as costs, and which said judgment is still outstanding, unpaid and unsatisfied. "Further answering complainant's said bill, this defendant says that said promissory note, which was the basis of the suit wherein said judgment aforementioned was entered, was given to the complainant in his official capacity as a corporation sole, and not as an individual, and by reason of a transaction or transactions having to do with the sale of certain church property at Winter Haven, Florida, and is more particularly hereinafter set forth. "That on or about the 30th day of July, 1919, there was conveyed by the Saint Louis Catholic Benevolent and Educational Association, a corporation, organized and existing under the Laws of the State of Florida, to the Right Reverend Michael J. Curley, D. D., Bishop of St. Augustine, his assigns and successors in office, certain property in the City of Winter Haven, Florida, described as follows, to-wit: Lot Numbered Fourteen (14) and ten feet off the West Side of Lot Numbered Thirteen (13), Block Five (5) Tier Four (4) of the Original Survey of the Town of Winter Haven, Florida, by deed as of that date, filed November 6th, 1919, and of record in the Public Records of Polk County, Florida, in Deed Book 178, at page 58 thereof, as is more particularly shown by a certified copy of said deed attached hereto as a part of this answer and marked Defendant's Exhibit 'A.' That said property is the same Page 411 property as was involved in the transaction between Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, and Rosedale Realty Company and as a part of the consideration for the purchase of which the promissory note aforementioned was given. "That the grantee named in the deed last aforesaid, to-wit, Right Reverend Michael Curley, Bishop of the Diocese of St. Augustine, on the 1st day of June, 1922, by a deed as of that date, conveyed to the complainant, Rt. Rev. Patrick Barry, Bishop of St. Augustine, Florida, and his successors in office, all churches, rectories, lands and buildings situated in the Diocese of St. Augustine within the State of Florida, as is more particularly shown by a copy of said deed attached to complainant's bill as his Exhibit 'A' thereof, whereby and by virtue of which deed title in and to said lands described in the foregoing paragraph became vested in the complainant. "That thereafter and on the 10th day of August, 1925, the complainant, being so seized and possessed of said lands, caused the same to be conveyed by deed as of that date to Rosedale Realty Company, Inc., the complainant executing said deed as Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, which said deed was filed for record in the Public Records of Polk County, Florida, where the same appears in Deed Book 314, at page 177 thereof, all of which is more particularly shown by a certified copy of said deed attached hereto as a part hereof as this Defendant's Exhibit 'B.' "That to evidence the balance due on the purchase price of said property by Rosedale Realty Company from Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, said Rosedale Realty Company, Inc., executed and delivered to the said Rt. Rev. Patrick Barry, Bishop of the Page 412 Diocese of St. Augustine, the promissory note in question, and which note forms the basis of the judgment in question; that to secure said promissory note, Rosedale Realty Company, Inc., on the 10th day of August, 1925, executed and delivered to Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, its mortgage deed encumbering said Lot Fourteen (14) and ten feet off the West Side of Lot Thirteen (13), Block Five (5) Tier Four (4) of the Original Survey of the Town of Winter Haven, which said mortgage deed was acknowledged for record and filed for record on the 27th day of November, 1925, in Mortgage Book 159, at page 176, as is more particularly shown by a certified copy of said mortgage deed attached hereto as a part of this answer and marked this Defendant's Exhibit 'C.' "That thereafter said Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, by endorsement under his hand, caused said promissory note to be assigned to one Frank J. Senn, and on the 30th day of October, 1926, by Assignment of Mortgage, as of that date, the said Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, caused to be assigned to said Frank J. Senn a certain mortgage from Rosedale Realty Company, Inc., to the said Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, encumbering the lands aforesaid, which said assignment was filed for record in the Public Records of Polk County, Florida, in Assignment of Mortgage Book 313, at page 28 thereof, as is more particularly shown by a certified copy of said assignment attached hereto as a part hereof and marked this Defendant's Exhibit 'D'; that in the assignment the said Rt. Rev. Patrick Barry purported to be acting in his official capacity as Bishop of the Diocese of St. Augustine and so executed said assignment and attached to said Page 413 assignment his bishop seal, as is more particularly shown by said certified copy of assignment last aforementioned. "That thereafter the said Frank J. Senn, by endorsement under his hand, caused said promissory note to be assigned to this defendant, and on the 17th day of November, 1927, assigned said mortgage of Rosedale Realty Company, Inc., to the Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, to this defendant by assignment as of that date, of record in the Public Records of Polk County, Florida, in Assignment of Mortgage Book 325, at page 188, as is more particularly shown by certified copy of said assignment attached hereto as a part of this answer as this Defendant's Exhibit 'E.' "Further answering complainant's said bill, this defendant says that at the time of the transaction with Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, to Rosedale Realty Company, Inc., or shortly prior thereto, there was situated upon the lands above described a church building which was used by the congregation of the Roman Catholic Church of Winter Haven, Florida, as a place of worship; that said property was church property; and that all acts and doings of the complainant and his predecessor, Right Reverend Michael J. Curley, with reference to said property was done as a corporation sole, and that the complainant in exercising his dominion over said property as such legal entity described himself as "Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine," as is more particularly shown by the certain copies of the several instruments as mentioned, which are made parts of this answer. "Further answering complainant's said bill, this defendant would show that he relied upon said transactions and representations and the strength of the credit of the Rt. Page 414 Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, a corporation sole, in purchasing said promissory note and mortgage of and from the said Frank J. Senn as aforementioned, and that but for which said representations and endorsements of said note by the complainant and the reliance placed thereon by this defendant, this defendant would not have purchased said promissory note. This defendant says that the complainant, by reason of his acts and doings in the premises, is now estopped from asserting as against this defendant that his acts and dealings with reference to said property and said promissory note and mortgage were done in a personal capacity and not as a corporation sole." The Exhibits were attached as stated. The assignment of the mortgage from Rt. Rev. Patrick Barry, Bishop of the Diocese of St. Augustine, to Frank J. Senn was executed in the following manner. "Rt. Rev. Patrick Barry (Seal) Bishop of the Diocese of St. Augustine. (Seal) (Bishop's Seal)" The note sued on was payable to the "Right Reverend Patrick Barry, Bishop of the Diocese of St. Augustine or order" and was endorsed "Right Reverend Patrick Barry, Bishop of the Diocese of St. Augustine." In his answer Willard prayed for affirmative relief as follows: "Wherefore, this defendant, being without remedy in the premises, save in a court of equity, and for affirmative relief prays that this Court may inquire into the subject matter hereof, and that upon the final hearing hereof this Court may adjudge and decree that the judgment so held by Page 415 this defendant is against the complainant as a corporation sole, and that the several lands mentioned and described by complainant in his said bill are subject to the lien of this defendant's said judgment; and that this defendant may have such other and further relief in the premises as equity may require." Motion was interposed to strike the fifth paragraph of the defendant's answer, which was the paragraph of the answer heretofore quoted, and also to strike the prayer contained in the answer. The motion was granted and that paragraph of the answer and the prayer of the answer was stricken. Appeal was taken from this order and also from orders overruling the demurrers hereinbefore mentioned. We think that the stricken paragraph of the answer is responsive to the allegations of the bill of complaint and, if the allegations of the answer should be sustained by proof, the bill of complaint should be dismissed and the prayer of the answer should be granted. The allegations of the answer, if proven to be true, constitute a sufficient basis for an adjudication that the judgment which the complainant contends is ambiguous is a judgment against the corporate sole and not a judgment against the individual. That a suit in equity may be maintained for the purpose of such an adjudication is not questioned. For the reasons stated, the orders appealed from, except that order which overruled the demurrer of Willard, should be reversed and it is so ordered. Reversed. DAVIS, C. J. and WHITFIELD, ELLIS and TERRELL, J. J., concur. BROWN, J., absent and not participating because of illness. *Page 416 ON REHEARING	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1716080/	663 So. 2d 236 (1995) Beverly Schulte COBB, Plaintiff-Appellant, v. Dr. Hubert KLEINPETER, et al., Defendant-Appellee. No. 95-271. Court of Appeal of Louisiana, Third Circuit. October 4, 1995. Writ Denied January 12, 1996. 237 Christopher J. Roy Sr., Jay Anthony Pucheu, Alexandria, for Beverly Schulte Cobb. John E. Bergstedt, Lake Charles, for Dr. Hubert Kleinpeter et al. Before SAUNDERS and SULLIVAN, JJ., and KNIGHT,[1] J. Pro Tem. SAUNDERS, Judge. In this medical malpractice action, plaintiff appeals the trial court's judgment absolving 238 defendant of negligence and assigns as additional unrelated errors the trial court's refusal to dismiss certain jurors. We affirm. FACTS This medical malpractice case arises from the performance of a total abdominal hysterectomy and incidental appendectomy received by plaintiff at Beauregard Memorial Hospital in 1985. On February 9, 1988, following an adverse ruling of the Medical Review Panel, plaintiff filed suit against Dr. Hubert Kleinpeter and Beauregard Memorial Hospital alleging failure to properly diagnose and treat her post-surgical infection. On September 26, 1989, plaintiff filed a First Supplemental and Amending Petition alleging that Dr. Kleinpeter breached the requisite standard of care by not adequately prescribing and/or taking into account laboratory studies and temperature values and in discharging plaintiff without finding the source of her fever. Both Beauregard Memorial Hospital and Dr. Kleinpeter generally denied plaintiff's claims, and Dr. Kleinpeter further alleged comparative fault by the plaintiff in failing to follow his recommended course of treatment. Later, Beauregard Memorial Hospital filed a Motion for Summary Judgment. This motion was granted by judgment signed June 6, 1990, and has not been appealed. On January 10, 1994, plaintiff filed a Second Supplemental and Amending Petition additionally alleging that Dr. Kleinpeter failed to inform plaintiff of the increased risk of infection arising from an incidental appendectomy and failed to order lab tests that would have enabled him to diagnose her post-surgical infection before her discharge. Finally, plaintiff alleged that Dr. Kleinpeter failed to prescribe proper antibiotics to combat plaintiff's infection. Shortly before trial, on August 31, 1994, plaintiff filed another supplemental and amending petition. This one alleged damages due for a second surgery performed in 1991 and for possible future surgeries resulting from Dr. Kleinpeter's alleged malpractice of 1985. These allegations too were denied. Appeal The matter was tried to a jury. Plaintiff's appeal follows the trial court's judgment, in accordance with the jury's findings absolving defendant of liability. As plaintiff tells it, by the time trial by jury was held on October 10 and 14, 1994, the issues were basically narrowed down to whether there was an increased risk of infection in removing plaintiff's appendix, whether plaintiff was properly informed of any increased risk and whether Dr. Kleinpeter breached the applicable standard of care in failing to determine the source and type of infection during plaintiff's post-surgical hospitalization. The many errors assigned by plaintiff may be divided neatly into four categories: First, plaintiff complains that the trial court erred in refusing to dismiss for cause jurors who had a doctor/patient relationship with Dr. Kleinpeter and/or his partners, or whose family members maintained similar relationships. Second, plaintiff contends that the trial court erred in refusing to grant plaintiff's motion for directed verdict as to Dr. Kleinpeter's allegations against her with regard to comparative fault. Third, notwithstanding the jury's eventual favorable response, plaintiff complains that the trial court erred in failing to instruct the jury to affirmatively answer an interrogatory questioning whether plaintiff successfully demonstrated the requisite standard of care. Fourth, plaintiff's last three assigned errors go to the merits of the jury's findings. I. DISMISSAL OF JURORS While plaintiff has no complaints with the trial judge's actions with respect to potential jurors who still considered Dr. Kleinpeter to be her/his doctor, plaintiff's first three assignments of error allege that the trial judge erred in denying plaintiff's motion to exclude several members of the jury venire for cause due to former or ongoing relationships with Dr. Kleinpeter or with his partners, Dr. Rudd and Dr. Jones. 239 Because the trial court failed to issue a blanket exclusion for such jurors, according to plaintiff, her case was prejudiced by the court's requiring in-depth questioning of each member of the jury venire. According to plaintiff, these questions predictably elicited statements by the prospective jurors "regarding what wonderful doctors the physicians of that clinic were, all in the presence of the entire jury venire." According to plaintiff, each such member of the venire should have been automatically dismissed without further questioning. We are unable to agree with plaintiff, who cites no authority in support of her position. To the contrary, we do find convincing the authority cited by defendant. It is a well settled principle of law that the trial judge is vested with broad discretion when ruling on challenges for cause. See, Druilhet v. Comeaux, 317 So. 2d 270 (La.App. 3rd Cir.1975), writ denied, 321 So. 2d 363 (La.1975). Only when the record demonstrates a clear abuse of discretion should the appellate court intervene. The trial judge is obviously in the best position to assess the juror's demeanor, sincerity, fairness and credibility. Thus, his decision is not subject to disturbance by appellate action without a showing that there was a clear abuse of discretion. Broussard v. Missouri Pacific Railroad Company, 376 So. 2d 532 (La.App. 3rd Cir. 1979). There is no showing of abuse. Under the circumstances, there is no merit in the appellants' complaint of the jury selection. Seals v. Pittman, 499 So. 2d 114, 118 (La.App. 1 Cir.1986), writ denied, 503 So. 2d 15 (La. 1987). After listening to potential jurors firsthand and observing their demeanor, the trial judge determined that the potential jurors could be fair and impartial, and nothing in the record demonstrates a clear abuse of the trial judge's discretion. To the contrary, our review of the transcript from the voir dire demonstrates that the trial judge exercised not only discretion, but sound judgment in determining which jurors would be impartial and which could be partial.[2] We find no merit to plaintiff's first three assigned errors. II. DIRECTED VERDICT Plaintiff also contends that the trial court erred in refusing to grant her motion for directed verdict on the question of comparative fault. She maintains that she was without fault for her injuries. Apparently, the trial court denied plaintiff's motion because there was some evidence to suggest that plaintiff might have permitted some time to expire between the time she began having difficulties and the time she scheduled a medical appointment. The standard of review for directed verdicts is whether, after viewing the evidence submitted, the appellate court can conclude that reasonable persons could not reach a contrary verdict. Bergeron v. Blake Drilling & Workover Co., Inc., 599 So. 2d 827 (La.App. 1st Cir.), writ denied, 605 So. 2d 1117, 1119 (La.1992). Also, Tilley v. Mount Vernon Ins. Co., 411 So. 2d 72 (La. App. 3d Cir.1982). Graham v. Southern Pacific Transp. Co., 619 So. 2d 894, 897 (La.App. 3 Cir.), writ denied, 625 So. 2d 1044 (La.1993). Applying this standard, we cannot agree with plaintiff's contention, for even those aggrieved by the actions of others have a duty to mitigate or ameliorate damages. Soileau v. LaFosse, 558 So. 2d 294 (La.App. 3 Cir.1990).[3] Our law seeks to fully repair injuries which arise from a legal wrong. However, 240 an accident victim has a duty to exercise reasonable diligence and ordinary care to minimize his damages after the injury has been inflicted. Pisciotta v. Allstate Ins. Co., 385 So. 2d 1176 (La.1979) (amended on rehearing); Unverzagt v. Young Builders, Inc., 215 So. 2d 823, 252 La. 1091 (1968); Donovan v. New Orleans Ry. & Light Co., 61 So. 216, 132 La. 239 (1913); Reeves v. Louisiana & Arkansas Ry. Co., 304 So. 2d 370 (La.App. 1st Cir.1974); Riley v. Frantz, 253 So. 2d 237 (La.App. 4th Cir. 1971); Welch v. Ratts, 235 So. 2d 422 (La. App. 2d Cir.1970); McCormick, Damages, Sec. 33 (1935). He need not make extraordinary or impractical efforts, but he must undertake those which would be pursued by a man of ordinary prudence under the circumstances. Id. Thus, his recovery will not be limited because of a refusal to undergo medical treatment that holds little promise for successful recovery. Merrell v. State, Through Dept. of Transp., 415 So. 2d 660 (La.App. 3d Cir.1982). The expense and inconvenience of treatment are also proper considerations in determining the reasonableness of a person's refusal to submit to treatment. Andrus v. Security Ins. Co., 161 So. 2d 113 (La.App. 3d Cir. 1964), writ denied, 163 So. 2d 358, 246 La. 81 (1964). Moreover, an unreasonable refusal of medical treatment which does not aggravate his injury will not restrict a victim's recovery. Joiner v. Texas & Pac. Ry. Co., 55 So. 670, 128 La. 1050 (1911); Merrell v. State, Through Dept. of Transp., supra. The tortfeasor has the burden of showing both the unreasonableness of the victim's refusal of treatment and the consequent aggravation of the injury. Glazer v. Glazer, 278 F. Supp. 476 (D.C.La.1968); Reeves v. Travelers Ins. Co., 329 So. 2d 876 (La.App. 2d Cir.1976); Desselle v. Wilson, 200 So. 2d 693 (La.App. 3rd Cir.1967); Roy v. Robin, 173 So. 2d 222 (La.App. 3rd Cir. 1965), writ denied 175 So. 2d 110, 247 La. 877 (1965). Jacobs v. New Orleans Public Service, Inc., 432 So. 2d 843, 845-46 (La.1983). Moreover, even had the trial court erred, in this case its error would be of no consequence. This is because a plaintiff's comparative negligence is relevant only when a defendant is found to be negligent. Fontenot v. State through Dept. Of Education, 92-132 (La.App. 3 Cir. 4/6/94); 635 So. 2d 627, writ denied, 94-1131 (La. 6/24/94); 640 So. 2d 1350. Here, defendant was found to be free of fault. Accordingly, we find no merit in plaintiff's fourth assigned error. III. STANDARD OF CARE INSTRUCTION In her fifth assigned error, plaintiff complains that the trial court erred in failing to instruct the jury to affirmatively answer Jury Interrogatory No. 1, which reads as follows: SPECIAL VERDICT TO THE JURY 1. Did plaintiff establish by a preponderance of the evidence, the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians practicing within the field of Obstetrics and Gynecology? ANSWER: YES Yes or No * * * * * * We find no merit to this contention, for even though the trial court refused to so instruct the jury, the jury delivered precisely the response plaintiff sought, albeit by alternate means. An appeal is the exercise of the right of the party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. La.Code Civ.P. art. 2082. Insofar as the jury in this case responded in the affirmative to Interrogatory No. 1, plaintiff merely seeks to have this court affirm the trial court's resolution of the issue. It is well established that it is the function of appellate courts to render judgments which can be made effective and not to give opinions on moot questions. Savings Bank of Baltimore v. Venture 73, 452 So. 2d 395 (La.App. 3 Cir.1984), writ den., 458 So. 2d 487 (La.1984); Cox v. Watts, 329 So. 2d 917 (La.App. 1 Cir.1976); Brown v. Town of Lake Providence, 200 So. 2d 764 (La.App. 2 Cir.1967). 241 Roland Const. v. City of Alexandria, 591 So. 2d 808, 810 (La.App. 3 Cir.1991). In accord, Bankston v. Guzman, 537 So. 2d 1205 (La.App. 3 Cir.), writ denied, 538 So. 2d 615 (La.1989); Stevens v. House, 460 So. 2d 82 (La.App. 3 Cir.1984). Because plaintiff's fifth assigned error would merely have us uphold the trial court's findings, we dismiss this portion of plaintiff's appeal. See La. Code Civ.P. art. 2162. IV. THE MERITS Assigned Error No. 6Informed Consent: Next, plaintiff complains that she was not apprised of the risk of the procedure conducted in 1985 or of the possibility that Dr. Kleinpeter might remove her healthy appendix. In brief, she maintains that she was advised that her appendix would be removed only "if it was bad." Additionally, plaintiff maintains that she would not have consented to removal of her healthy appendix, particularly if the doctor had explained that its removal might increase the risk of infection. On the other hand, defendant maintains that he complied with the standard of care by explaining the procedure, its risks, and having plaintiff execute consent forms, all of which, according to defendant, support the jury's finding in his favor. Additionally, defendant introduced the testimony of the physician members of the medical review panel, Drs. Lee Montlezun and Peter Lafuria, to the effect that there is nothing extraordinary about the incidental removal of an appendix, particularly from a patient less than thirty years old. It is well settled that an appellate court must give great weight to the conclusions reached by the trier of fact and, if there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed unless manifestly erroneous. Anthony v. Hospital Service Dist. No. 1, 477 So. 2d 1180 (La.App. 1st Cir.1985), writ denied, 480 So. 2d 743 (La.1986); Senegal v. George Theriot's, Inc., 445 So. 2d 137 (La.App. 3rd Cir.1984), writ denied, 448 So. 2d 114 (La. 1984). Novak v. Texada, Miller, Masterson and Davis Clinic, 514 So. 2d 524, 525-26 (La.App. 3 Cir.), writ denied, 515 So. 2d 807 (La.1987). Having reviewed the record, we find no basis for reversing the jury's acceptance of defendant's recollection of the facts over those presented by plaintiff's recollection. Assigned Errors 7 and 8: Finally, plaintiff maintains that the jury erred in failing to find that Dr. Kleinpeter deviated from the accepted standard of medical care in failing to discover, isolate and properly treat the post-operative infection. Ultimately, the critical question raised by plaintiff is whether the trial court erred in not finding Dr. Kleinpeter negligent for removing plaintiff's appendix and in subsequently failing to order a blood culture, which plaintiff maintains would have permitted an earlier diagnosis of post-operative infection. It is well settled that a court of appeal may not set aside a finding of fact by a trial court or a jury in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So. 2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So. 2d 1330, 1333 (La.1978); Canter v. Koehring Co., 283 So. 2d 716, 724 (La.1973). When findings are based on determinations regarding the credibility of witnesses, the manifest errorclearly wrong standard demands great deference to the trier of fact's findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, supra at 844; Canter, supra at 724; Virgil v. American Guarantee & Liability Ins. Co., 507 So. 2d 825 (La.1987); Boulos v. Morrison, 503 So. 2d 1 (La.1987). The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. 242 Sistler v. Liberty Mutual Ins. Co., 558 So. 2d 1106 (La.1990); Economy Auto Salvage v. Allstate Ins. Co., 499 So. 2d 963 (La.App. 3d Cir.) writ denied, 501 So. 2d 199 (La.1986); Thompson v. Tuggle, 486 So. 2d 144 (La.App. 3d Cir.) writ denied, 489 So. 2d 919 (La.1986); See Graver Tank & Mfg. Co. v. Linde Air Products, Co., 336 U.S. 271, 69 S. Ct. 535, 93 L. Ed. 672 (1949); Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395 (D.C.Cir. 1988) cert. denied, 490 U.S. 1105, 109 S. Ct. 3155, 104 L. Ed. 2d 1018 (1989); W.S. Shamban & Co. v. Commerce & Industry Ins. Co., 475 F.2d 34 (9th Cir.1973); Hicks v. U.S., 368 F.2d 626 (4th Cir.1966); U.S. v. Springfield, 276 F.2d 798 (5th Cir.1960); Byron v. Gerring Industries, Inc., 328 N.W.2d 819 (N.D.1982); 9 Wright & Miller, Federal Practice and Procedure, Sec. 2586 (1971). Lirette v. State Farm Insurance Co., 563 So. 2d 850, 852-53 (La.1990). See also, Novak, 514 So. 2d 524. The premise of plaintiff's case is that a blood culture should have been ordered sooner to pinpoint the source of plaintiff's problems. Had the doctor done so, according to plaintiff, her serious ailments, including those which resulted in surgery to alleviate an intestinal blockage, would have been avoided. On the other hand, as defendant suggests, there is evidence to suggest that a blood culture would have been indicated only were a post-operative infection ruled in. Apart from Dr. Kleinpeter's testimony, evidence supporting this conclusion includes contradictory medical testimony and excerpts. While plaintiff argues strenuously that a blood culture should have been ordered as a screening test, from our perspective, the jury, faced with conflicting versions of fact and applicable medical standards, determined that Dr. Kleinpeter's treatment of plaintiff did not fall below the requisite standard of care. Of plaintiff's medical experts, Dr. Michael Gagliardi's testimony suggests that defendant had two options, to administer antibiotics or to discontinue antibiotics and order a blood culture.[4] Additionally, plaintiff's expert Dr. Robert Davis did not indicate plaintiff's condition required a blood culture; to the contrary, Dr. Davis only noted the need for prophylactic or therapeutic antibiotics. No other doctor unequivocally testified that the defendant should have performed a blood culture. Thus, after reviewing the record, we can detect no basis for upsetting the jury's findings, as we cannot say the jury was manifestly erroneous in determining that Dr. Kleinpeter did not deviate from the required standard of care. Consequently, we find no merit to plaintiff's errors assigned as to the merits. DECREE For the foregoing reasons, plaintiff's appeal is dismissed in part, and the judgment of the trial court is affirmed, at plaintiff-appellant's costs. APPEAL DISMISSED IN PART; AFFIRMED. NOTES [1] Judge William N. Knight of the Thirty-first Judicial District participated in this decision as judge pro tempore by appointment of the Louisiana Supreme Court. [2] It was only after each potential juror survived grilling by the parties and the court that the court exercised its discretion, tempered by instructions meticulously repeated after the panel was sworn in and before and after trial. [3] The doctrine of unavoidable consequences bars recovery of those damages which occurred after the initial injury and which might have been averted by reasonable conduct on the part of the plaintiff. The standard is that of a reasonable man under like circumstances. Philippe v. Browning Arms Co., 395 So. 2d 310 at 318, n. 12 (La.1981) [1980]; see also Till v. Delta School of Commerce, Inc., 487 So. 2d 180 (La.App. 3d Cir.1986). Id., 558 So.2d at 297. [4] There was no evidence to suggest for how long the antibiotics would have been discontinued in order for the blood culture to be useful.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3852905/	This is an appeal from an order of the court below opening a judgment and setting aside a sheriff's sale. Such a proceeding is governed by equitable principles and addressed to the sound discretion of the court, and unless there is manifest abuse in the exercise of that discretion its decree will not be disturbed on appeal: Snyder v. Snyder, 244 Pa. 331, 90 A. 717;Somerville v. Hill, 260 Pa. 477, 104 A. 62; Mutual Building Loan Association of Shenandoah v. Walukiewicz, 322 Pa. 240,185 A. 648; Miners National Bank of Wilkes-Barre v. Bowman, 334 Pa. 534, 6 A.2d 286. Page 574 In 1920 defendant, David Survetnick, executed a bond in the principal sum of $5,000 secured by a mortgage on premises 3910 Germantown Avenue, Philadelphia. In 1933 plaintiff, Charles E. Dearnley, assignee of that mortgage, instituted foreclosure proceedings in the Court of Common Pleas No. 3 of Philadelphia County, entered judgment, issued execution, and, in August of that year, bought in the property at sheriff's sale for $50. Thereafter, in October, he entered judgment on the bond in the Court of Common Pleas No. 4 of Philadelphia County; he revived this judgment five years later by sci. fa. proceedings in which he obtained judgment in 1939 and assessed damages in 1941 in the amount of $7,392.82, representing the original debt of $5,000, less credit for $50 obtained at the sheriff's sale, with interest in the amount of $2,442.82 from 1933 to 1941. On July 16, 1941 the Deficiency Judgments Act (P. L. 400) was passed, and, on a petition filed by plaintiff in Court No. 3, that court, in 1943, fixed the fair market value of the property at $4,500, at the same time directing that "each respondent hereafter proceeded against shall first be released by a writing filed by the plaintiff herein to the extent of the said fair market value less such deductions as are authorized by the aforesaid Act." In 1943 plaintiff again started sci. fa. proceedings to revive the judgment; the revived judgment was entered in March, 1948. On March 27, 1948, plaintiff filed in Court No. 3 the release which the court had ordered, and on that same day assessed damages on the revived judgment in Court No. 4 in the amount of $3,104.90, this sum being calculated on the basis of the previous assessment of $7,392.82 less a credit for the fair market value of the property, $4,500, plus interest of $212.08 from 1941 to 1943. Also on that same day, March 27, 1948, another sci. fa. to revive the judgment was issued and the revived judgment was entered in April, the damages being now assessed at $4,087.04, representing the previous assessment Page 575 of $3,104.90 plus interest of $982.14 from 1943 to 1948. Plaintiff then caused a vend. ex. to be issued and, at a sheriff's sale in June, a property owned by defendant at 5811 Rising Sun Avenue, Philadelphia, was sold to the attorney on the writ for the sum of $5,775, subject to an existing mortgage of $6,337.50. Thereupon defendant, on petition, obtained a rule to have the judgment opened and the sheriff's sale set aside; the use-plaintiff (Dearnley having meanwhile assigned the judgment to one Margaret Tholl) filed an answer, and, on consideration of these pleadings, the court made defendant's rule absolute by an order from which the use-plaintiff now appeals. The reason why the court set aside the sheriff's sale was that neither plaintiff nor use-plaintiff had complied with Rule 96 (2) of the Court of Common Pleas, which requires that at or after the time of the issuance of a writ of execution for the sale of any real estate, the plaintiff, or some one on his behalf, shall give at least ten days' written notice by personal service on, or by registered mail to, the defendant in the writ and the real owner or owners of the real estate to be sold, stating the place, date, and hour of the intended sale, and shall, before the date of the sale, file an affidavit in the prothonotary's office that such notice has been given. The use-plaintiff in her answer alleged that defendant had knowledge of the intended sale, apparently basing this allegation on the averment that defendant and his wife were in actual occupancy and possession of the property when it was posted with a notice of sale. The court below held that the mere posting of the notice as required by law was not sufficient; as the court said, an execution debtor might be away during the entire time the premises were posted and the posters themselves might disappear or be removed due to vandalism, weather or other causes. The purpose of the Common Pleas rule is to make sure that actual notice is received by the defendant Page 576 in the execution, and not only, therefore, must such notice be given by personal service or by registered mail, but an affidavit must be filed so as to establish of record that such notice has been given as required by the rule. It was therefore proper for the court to set aside the sale, irrespective of the amount, adequate or otherwise, for which the property was sold. As justification for seeking to have the judgment opened defendant advances three reasons. The first is that the petition to have the fair market value of the premises fixed in accordance with the Deficiency Judgments Act should have been filed in Court No. 4 in which the judgment against defendant had been entered on his bond, instead of in Court No. 3 where the mortgaged premises had been sold in the foreclosure proceedings. As to this, we are in accord with the view taken by the court below that the petition was properly filed in Court No. 3. The Deficiency Judgments Act provides (section 1) that the petition should be addressed to the court "having jurisdiction". This cannot reasonably be construed as referring to any court other than that where the sale of the property was held. A judgment might be entered against an obligor on his bond in any court of the Commonwealth or even in another State where defendant might reside, and it obviously would be impractical and undesirable to have the value of the property appraised in such other jurisdiction; it is where the property is situated, and by the court in which it was sold on foreclosure, that its value can best be determined. Defendant's second reason is based upon the provisions of the Deficiency Judgments Act (section 6) that after the determination by the court of the fair market value of the property the debtor shall be released and discharged of his liability to the extent of such value, "and thereupon petitioner may proceed by appropriate proceedings to collect the balance of the debt." From this it is urged that plaintiff had no right to institute sci. Page 577 fa. proceedings to revive the judgment in 1943 until he had filed the release of liability, which he did not do until 1948. Although the court below approved this argument, in our opinion it lacks merit because the filing of such a release as was ordered by the court is not required by the Deficiency Judgments Act. The Act merely provides that after the fair market value of the property has been determined the debtor shall be "released and discharged" of the liability to that extent, — not by any voluntary action on the part of the plaintiff or writing filed by him, but as the automatic result of the court's having fixed the amount of the fair market value and therefore of the credit to be allowed. Accordingly plaintiff was justified in proceeding as and when he did for the purpose of collecting the balance of the debt. The third reason advanced by defendant rests on firmer ground and fully justified the court's action in opening the judgment because of the wholly excessive assessment of damages. InPennsylvania Company v. Scott, 346 Pa. 13, 17, 18, 29 A.2d 328,330, it was pointed out that the Deficiency Judgments Act treats the purchase of the mortgaged premises by the execution creditor at the sheriff's sale as a payment of the debt due him to the extent of the fair market value of the property, just as if he had then received the amount of such value in cash. When Dearnley bought the mortgaged premises at sheriff's sale in August, 1933, and received a deed therefor from the sheriff, the property being, as later determined by the court, of the fair market value of $4,500, there then and there remained due to him only $500 of the principal of defendant's original obligation; the fact that the Deficiency Judgments Act was enacted subsequent to that sale is immaterial because, as stated in Pennsylvania Company v. Scott, supra (p. 18, A. p. 330), "the retroactive application of the statute to a sale previously held does not thereby impair any property right in the judgment on which the sale was had . . ., *Page 578 since the Act deals only with the valuation of a payment in property made on account of the judgment." Plaintiff cannot charge interest on the sum of $4,500 from the time of the sheriff's sale in 1933 to 1941, as is now being attempted, any more than he could charge such interest if he had been paid that same amount in cash at the time of the sale: Sophia WilkesBuilding Loan Association v. Rudloff, 348 Pa. 477, 483,35 A.2d 278, 281. The order of the court below is affirmed.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/93918/	153 U.S. 554 (1894) CHICAGO DEPOSIT VAULT COMPANY v. McNULTA. No. 345. Supreme Court of United States. Submitted April 24, 1894. Decided May 14, 1894. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. 559 Mr. George L. Paddock and Mr. Hiram T. Gilbert for appellant. Mr. Wells H. Blodgett for appellees. 560 MR. JUSTICE JACKSON, after stating the case, delivered the opinion of the court. The proof fails to show, as said in the opinion of the court below, that the lease was ever reported to or confirmed by the court. The receiver's reports which were approved by the court did not disclose the fact of the existence of the lease, or its terms and provisions, in such manner as to make the court's approval of the reports a confirmation of the lease. The question then remains whether the order appointing the receiver conferred upon him the requisite authority to 561 enter into a contract of lease, involving a large annual expenditure, and extending beyond the receivership so as to make the contract a proper charge against the trust property under the administration of the court? While there is some want of harmony in the authorities upon the question as to how far a receiver may make and enter into contracts without the previous approval or subsequent ratification of the court, which shall be binding upon the trust we are of opinion that the order appointing the receiver in this case was not broad enough in its terms to authorize him to enter into the lease in question so as to give it validity without the approval or confirmation of the court. It is undoubtedly true that a receiver, without the previous sanction of the court, manifested by special orders, may incur ordinary expenses or liability for supplies, material, or labor needed in the daily administration of railroad property committed to his care as an officer of the court; but it seems equally well settled that the courts decline to sanction the exercise of this discretion on the part of receivers in respect to large outlays, or contracts extending beyond the receivership, and intended to be binding upon the trust. The receiver being an officer of the court, and acting under the court's direction and instructions, his powers are derived from and defined by the court under which he acts. He is not such a general agent as to have any implied power, and his authority to make expenditures and incur liabilities like the one in question must be either found in the order of his appointment, or be approved by the court, before they acquire validity, and have any binding force upon the trust. In Cowdrey v. Galveston, Houston &c. Railroad, 93 U.S. 352, it was held that a receiver is not authorized, without the previous direction of the court, to incur any expenses on account of property in his hands, beyond what is absolutely essential to its preservation and use, as contemplated by his appointment. Accordingly, the expenditures of a receiver to defeat a proposed subsidy from a city, to aid in the construction of a railroad parallel with the one in his hands, were properly disallowed in the settlement of his final account, 562 although such road, if constructed, might have diminished the future earnings of the road in his charge. This same general principle is recognized in Union Trust Co. v. Illinois Midland Co., 117 U.S. 434, 479, where debts for considerable sums of money, borrowed by the receiver without previous authority from the court, were not allowed any priority out of the trust fund, although the moneys borrowed were applied to pay expenses of the receivership, such as supplies, repairs, and pay-rolls, and to replace moneys which had been so applied, for the reason that no order of the court had been obtained to borrow funds for those purposes. In Lehigh Coal and Navigation Co. v. Central Railroad, 35 N.J. Eq. 426, it was said that "the receiver may undoubtedly appropriate moneys in his hands, belonging to the trust, to such purposes connected with the trust as he may think proper, always taking the risk that the court will finally approve his action; but he has no authority to bind the trust by contract without the authority of the court. Until his contracts are approved and ratified by the court the court is at liberty to deal with them as to it shall appear just, and may either modify them or disregard them entirely... . All persons dealing with receivers do so at their peril, and are bound to take notice of their incapacity to conclude a binding contract without the sanction of the court." This states the correct rule upon the subject, especially in respect to contracts involving large outlays, and which may extend beyond the life of the receivership. The same general rule is stated in Beach on Receivers, section 257, as follows: "But a receiver is not allowed to exercise his discretion in applying the funds in his hands. These he holds strictly subject to the direction of the court, and only to be disposed of upon its order. Neither can he enter into contracts without the approval of the court. Although, as receiver, he may enter into negotiations and make such agreements as would be binding upon him as an individual, yet, in order to affect the fund in his hands his acts must be ratified by the court. This rule is so well established that it has been decided that all persons contracting with a receiver 563 are chargeable with knowledge of his inability to contract, and enter into contracts with him at their own peril, and that the court has unquestioned power to modify or even vacate his agreements." To the like effect is a statement of the rule made in section 186 of High on Receivers. What was said by Mr. Justice Bradley in Cowdrey v. Railroad Company, 1 Woods, 331, 336, and by the court in Vanderbilt v. Central Railroad, 43 N.J. Eq. 669, cited and relied on by the appellant, does not conflict with the general principle laid down in the authorities above referred to. In respect to contracts which have been completely performed by a party dealing with a receiver, and when the claim is merely for compensation, equitable relief is often granted, although there was no previous approval or subsequent ratification of the receiver's act. This is pointed out by the chancellor in Vanderbilt v. Central Railroad, ubi supra. In the case under consideration the intervening petitioner has been fully paid for the time that its premises were occupied for the benefit of the trust. The receiver not only had no authority to contract beyond that time, but by the order of his appointment his expenditure of the funds was limited and confined to designated objects and purposes. Under these circumstances the court was not bound to recognize any equitable right of the intervening petitioner to be paid for the unexpired term of a lease, which had no legal validity. The position taken on behalf of the appellant that there was a confirmation of the lease growing out of the fact that the receiver's expenditures in the way of rental for general offices were approved, cannot be sustained. If the doctrine of ratification could be invoked, it would have no application in the present case, because there was no knowledge on the part of the court prior to the filing of the intervening petition that such a lease had been entered into by its receiver; and in respect to the remaining contention of the appellant, that the court and the purchasers under the foreclosure sale were estopped from denying the lease, there is nothing in the record on which to predicate such a proposition, even conceding that the doctrine of estoppel could be applied to courts. 564 Under the order of June 20, 1889, directing the receiver to turn over the property to the purchasers at the foreclosure sale, the court undoubtedly had the authority to charge the property with such claims against the receiver as it might thereafter allow, but that reservation of power did not make it the duty of the court to allow the claim of the intervening petitioner. The lease having no legal validity without the sanction of the court, the equitable considerations in favor of the purchasers of the trust property at the foreclosure sale are stronger than those of the appellant. We are, therefore, of opinion that there was no error in the decree of the court below, and the same is accordingly Affirmed.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/90579/	105 U.S. 322 (____) EVANSVILLE BANK v. BRITTON. BRITTON v. EVANSVILLE BANK. Supreme Court of United States. The case was argued by Mr. Asa Iglehart and Mr. Thomas A. Hendricks for the bank, and by Mr. Jacob S. Buchanan and Mr. Benjamin Harrison for Britton. MR. JUSTICE MILLER delivered the opinion of the court. These are cross-appeals from a decree rendered in a suit in chancery, in which the Evansville National Bank was complainant, and Britton, as treasurer of Vanderburgh County, Indiana, was defendant. The case is in all essential points analogous to that of Hills v. Exchange Bank, supra, p. 319, just decided. The principal question of law is the same as that discussed 323 and decided in Supervisors v. Stanley, supra, p. 305. In fact, the three cases were advanced out of their order, and heard consecutively, because they involved important questions concerning taxation by State statutes of the shares of national banks; and the argument, able and exhaustive throughout, has been almost wholly directed, on the part of the banks, to establish the proposition that, where the law of the State either makes or permits a discrimination operating only against a particular class of holders of national bank shares, in the manner of assessing those shares as regards other moneyed capital in the State, all the laws for such assessments are void, and all such assessments are absolutely void, and no tax on national bank shares can be collected in the State. The brief of counsel in this case in various forms repeats the idea that the bill was brought, not so much to assert the rights of stockholders who may have been injured by the enforcement of the statute, as to obtain a judicial declaration of this court that the act is void, and the attempt to tax the shares of the bank equally so. Having, in Supervisors v. Stanley, rejected this proposition, and given our reasons for it, we shall not repeat them here. The objection made to the Indiana statute is the same as that made against the New York statute; namely, that it permits the taxpayer to deduct from the sum of his credits, money at interest, or other demands, the amount of his bona fide indebtedness, leaving the remainder as the sum to be taxed, while it denies the same right of deduction from the cash value of bank shares. A distinction is attempted to be drawn between the Indiana statute and the New York statute, because the former permitted the deduction of the taxpayer's indebtedness to be made from the valuation of his personal property, while in Indiana he can only deduct it from his credits. And undoubtedly there is such a difference in the laws of the two States. But if one of them is more directly in conflict with the act of Congress than the other, it is the Indiana statute. In its schedule the subject of taxation from which the taxpayer may deduct his bona fide indebtedness is placed under two heads, as follows: 324 "1. Credits or money at interest, either within or without the State, at par value. "2. All other demands against persons or bodies corporate, either within or without this State. "Total amount of all credits." The act of Congress does not make the tax on personal property the measure of the tax on bank shares in the State, but the tax on moneyed capital in the hands of the individual citizens. Credits, money loaned at interest, and demands against persons or corporations are more purely representative of moneyed capital than personal property, so far as they can be said to differ. Undoubtedly there may be much personal property exempt from taxation without giving bank shares a right to similar exemption, because personal property is not necessarily moneyed capital. But the rights, credits, demands, and money at interest mentioned in the Indiana statute, from which bona fide debts may be deducted, all mean moneyed capital invested in that way. It is unnecessary to repeat the argument in People v. Weaver (100 U.S. 539) on this point. We are of opinion that the taxation of bank shares by the Indiana statute, without permitting the shareholder to deduct from their assessed value the amount of his bona fide indebtedness, as in the case of other investments of moneyed capital, is a discrimination forbidden by the act of Congress. There is in the bill of complaint in this case the usual allegation, apart from the special matters we have just considered, that the assessing officers habitually and intentionally assess the shares of the national banks higher in proportion to their actual value than other property generally, and especially shares in other corporations. It is denied in the answer, and unsupported by proof. It is also alleged that the bank is taxed a considerable sum for its real estate, and that in assessing the value of the shares no deduction is made on that account. The positive testimony of the assessor shows that such deduction was made. It is alleged that the capital of the bank is almost entirely invested in the bonds and treasury notes of the United States, and the shares only represent this untaxable investment. Van 325 Allen v. The Assessors (3 Wall. 573) settles the principle that under certain limitations the shares of the national banks are taxable with exclusive reference to their value and without regard to the nature of the property held by the bank as a corporation. The very point here made was expressly overruled in that case. Acting upon these principles the Circuit Court decreed a perpetual injunction as to those shareholders who had proved in the case that at the time of the assessment they owed debts which should rightfully have been deducted. These were four in number, and the appeal of the collector, Britton, is from this injunction. The decree in that respect was right, and must be Affirmed. The bank appeals from that part of the decree which dismissed the bill as to all the other shares. This was because no evidence was given that any other shareholders except the four above referred to owed any debts which could have been deducted from the value of the shares. In the case of Hills v. Exchange Bank we authorized the court on return of the case to permit the bank to show what shareholders had such indebtedness in some appropriate form. It is not necessary to consider whether this case ought to be reversed at the instance of the bank to enable that to be done now, for it is stated by the counsel of the bank in their printed brief that the offer was made to them to have a reference to a master to take testimony on this point before final decree, and they declined to accept the privilege. That branch of the decree is, on the appeal of the bank, Affirmed. MR. CHIEF JUSTICE WAITE, MR. JUSTICE BRADLEY, and MR. JUSTICE GRAY dissented. MR. CHIEF JUSTICE WAITE, with whom concurred MR. JUSTICE GRAY. I cannot agree to so much of the judgment in this case as affirms that part of the decree below appealed from by Britton, the treasurer. "Credits" are but 326 one of a number of kinds of moneyed capital. They represent, in the classification of taxable property, the ordinary debts due to a person; and it has been common for so long a time in the States to measure their taxable value by their excess over like debts owing to the same person in the same right, that I cannot believe it was the intention of Congress in its limitation on the power of taxing national bank shares to require a deduction of debts from the value of shares, when such a deduction was only allowed to other persons from this one kind of moneyed capital. The law of Indiana expressly prohibits deductions from the value of any other property than credits. Ample provision is made for the taxation of all other moneyed capital at its value without deduction, the same as national bank shares. In Hepburn v. The School Directors (23 Wall. 480) this court said "it could not have been the intention of Congress to exempt bank shares from taxation because some moneyed capital was exempt." In that case, a tax on bank shares was sustained when, by law, mortgages, judgments, recognizances, and moneys owing on articles of agreement for the sale of lands were not taxable. I am unable to distinguish this case in principle from that. The exemption here is partial only, as it was there. MR. JUSTICE BRADLEY. I dissent from the judgment of the court in these and the two preceding cases, for the reason that, in my opinion, the State laws authorizing the capital stock of national banks to be taxed, without allowing any deduction for the debts of the stockholders, where such deduction is allowed in relation to other moneyed capital, are void in toto so far as relates to national banks. To hold the laws valid except as to those who are actually indebted, and actually claim the benefit of the deduction, and actually set it up in a suit brought by the bank for relief, is practically to render the condition of the act of Congress nugatory, and to deprive of its protection the national banks and their stockholders. The tax though laid on the stockholders is required to be paid by the bank itself, which must pay without deduction unless the shareholders give the bank notice of the amount of their debts. This is a most ingenious expedient to avoid such deductions altogether. The *327 probability that not one in ten of the shareholders will ever have notice of the assessment in time to make the claim, and the natural reluctance they would have (if they had notice) to lay the amount of their debts before a board of bank officers, will effectually secure the State from claims for deduction. And that was, no doubt, the object of the law. But this unequal operation of it, in its practical effect, might not be sufficient to render it void. It is void, in my judgment, because it makes no exception, but is general in its terms, subjecting to taxation the capital stock of national banks without the privilege of deducting debts. Denying to it operation and effect as to those who desire to claim the benefit of the deduction, and giving it effect as to all others, is to tear a portion of the law out by the roots. It is not like the case where a portion of a law, which may be separated from the rest, can be declared invalid without affecting the remainder of the law; nor like the case of a general law which the legislature has power to make, but from the operation of which some individuals may have a legal or constitutional exemption, which they can plead in their defence; but it is wrong in form, wrong in toto. The legislature had no authority or power to make the capital of national banks taxable except in the same manner as other moneyed capital of the State. The practical iniquity of the law is seen in this, that it affects the value of all the stock, whoever holds it. As the law stands, it acts as a prohibition against the purchase of the stock by those who owe debts, and they constitute a considerable portion of every community. It does not help the validity of the law for us to declare that it is pro tanto void, and, in fact, make a new law for the State. Its validity must be decided by its actual form and terms. If these cannot stand, the law is void.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/3857771/	Argued April 20, 1937. William J. Gill died on the 30th of May, 1931, leaving a will, wherein the First National Bank of Patton was named executor. It filed a first and final account on August 21, 1934, which was confirmed absolutely on the 3d of December. Attached to the account was an exhibit containing a list of the unadministered assets, totalling $12,225.45, which included 25 shares of the capital stock of the First National Bank of Patton. The account was audited by the orphans' court on December 7th and a schedule of distribution was filed the same day. This was followed by an absolute confirmation on January 18, 1935. On March 5, 1933, the First National Bank of Patton closed its doors, and thereafter Robert A. Henderson, the plaintiff herein, was appointed receiver. The Acting Comptroller of the Currency of the United States subsequently directed that each of the stockholders of the bank be assessed the par value of the stock held or owned by them, respectively, at the time of its failure, with directions to take all necessary proceedings, by suit or otherwise, to enforce the individual liability of the shareholders. On January 18, 1935, Telford C. Gill and Francis X. Young were duly appointed administrators d.b.n.c.t.a. of the estate of William J. Gill. The receiver of the First National Bank of Patton served notice on Young that a stock assessment would be levied against the Gill estate. On the same day, the bank, as executor, delivered to Gill and Young all the unadministered Page 418 assets of the estate, including the 25 shares of bank stock, and received a receipt therefor, as well as a release stating that the bank, as executor, and Henderson, as receiver, were discharged from all claims and liability, the administrators requesting therein that the orphans' court enter a decree discharging the bank as executor. On the 20th of February, actual notice of the stock assessment made by the Comptroller of the Currency was served on Gill, administrator. The orphans' court, on May 24, 1935, discharged the bank as executor, and released it and the receiver from all liability in connection with the administration of the Gill estate. The administrators refused to pay the assessment and thereupon an action of assumpsit was brought. A verdict was obtained in the court below. Thereafter, the court sitting in banc entered judgment for the defendants n.o.v. Hence this appeal. The defense set up to plaintiff's claim was that the executor, in failing within the time provided by law to file an account and dispose of the personal estate, including the bank stock, which had been appraised at $100 per share and was marketable, was guilty of a dereliction of duty. It is unnecessary to discuss or determine the question of the liability of the bank as executor, as, in our judgment, its alleged negligence as executor is not a defense to the present cause of action brought by the receiver for a stock assessment. It is a settled law that a stockholder of a national bank may not cancel his assessment, in part or in whole, by offsetting an individual claim against the bank. He must pay his full assessment to the receiver and then take his chances with other creditors of recovering all or a portion of any debt that may be due him by the bank; Scott v. Latimer, 89 F. 843, in172 U.S. 649. cert. denied. As said in Hobart v. Gould (D.C.N.J., Page 419 1881), 8 F. 57, 58: "The liability to be enforced against the shareholder is not a debt due to the bank, but is a sum of money equal to the par value of his stock, payable by him to the receiver as an officer of the government by force of the law and the assessment authorized and made by the comptroller. The effect of allowing such a setoff is to give the shareholder an advantage over other creditors. It practically pays his debt in full, and, by leaving so much less for others, diminishes his liability as a stockholder, which it was clearly the design of the law to impose." See, also Wingate v. Orchard (9th C.C.A., 1896), 75 F. 241; Roth v. Baldwin, 74 F. (2) 1003 (D.C.C.A., 1934), cert. denied 295 U.S. 737, 79 L. ed. 1684. If the appellees have a valid claim against the bank as executor, they are entitled to share in any funds in the hands of the receiver available for general claims; but it may not be set off against the assessment made by the appellant receiver. Judgment of the court below is reversed, and judgment is ordered to be entered on the verdict.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/4553925/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:08 AM CDT - 932 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 State of Nebraska, appellee, v. Tracy N. Parnell, appellant. ___ N.W.2d ___ Filed May 29, 2020. No. S-19-425. 1. Postconviction: Constitutional Law: Appeal and Error. In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 2. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed independently of the lower court’s ruling. 3. Postconviction. Postconviction relief is a very narrow category of relief. 4. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal. 5. Postconviction: Proof. In a postconviction proceeding, an evidentiary hearing is not required (1) when the motion does not contain factual allegations which, if proved, constitute an infringement of the movant’s constitutional rights; (2) when the motion alleges only conclusions of fact or law; or (3) when the records and files affirmatively show that the defendant is entitled to no relief. 6. ____: ____. In the absence of alleged facts that would render the judg- ment void or voidable, the proper course is to overrule a motion for postconviction relief without an evidentiary hearing. 7. Postconviction: Effectiveness of Counsel: Appeal and Error. A claim of ineffective assistance of appellate counsel which could not have been raised on direct appeal may be raised on postconviction review. 8. ____: ____: ____. When a person seeking postconviction relief has different counsel on appeal than at trial, the motion for postconviction - 933 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 relief is procedurally barred if the person seeking relief (1) knew of the issues assigned in the postconviction motion at the time of the direct appeal, (2) failed to assign those issues on direct appeal, and (3) did not assign as error the failure of appellate counsel on direct appeal to raise the issues assigned in the postconviction motion. 9. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and Error. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her counsel’s per formance was deficient and that this deficient performance actually prejudiced the defendant’s defense. To show prejudice under the preju- dice component of the Strickland test, the defendant must demonstrate a reasonable probability that but for his or her counsel’s deficient per- formance, the result of the proceeding would have been different. A rea- sonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome. 10. Effectiveness of Counsel: Appeal and Error. When a claim of inef- fective assistance of appellate counsel is based on the failure to raise a claim on appeal of ineffective assistance of trial counsel (a layered claim of ineffective assistance of counsel), an appellate court will look at whether trial counsel was ineffective under the two-part test for inef- fectiveness established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); if trial counsel was not ineffective, then the defendant was not prejudiced by appellate counsel’s failure to raise the issue. 11. ____: ____. Much like claims of ineffective assistance of trial counsel, a defendant claiming ineffective assistance of appellate counsel must show that but for appellate counsel’s failure to raise the claim, there is a reasonable probability that the outcome would have been different. Appeal from the District Court for Douglas County: Gary B. Randall, Judge. Affirmed. Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant. Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ. - 934 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 Funke, J. Tracy N. Parnell appeals from the denial of postconvic- tion relief without an evidentiary hearing. Parnell asserts that the trial court erred in determining that his claims of ineffec- tive assistance of appellate counsel are procedurally barred. Although we agree that one of Parnell’s claims is not procedur- ally barred, we nonetheless conclude that Parnell is not entitled to relief. We therefore affirm. BACKGROUND Convictions and Sentences In State v. Parnell, 1 this court affirmed Parnell’s jury trial convictions of first degree murder, attempted first degree mur- der, two counts of use of a deadly weapon to commit a felony, and possession of a weapon by a prohibited person. The district court for Douglas County sentenced Parnell to life imprison- ment on the murder conviction, 40 to 50 years’ imprisonment for attempted first degree murder, 40 to 50 years’ imprisonment for each count of use of a deadly weapon to commit a felony, and 3 to 20 years’ imprisonment for possession of a weapon by a prohibited person, to be served consecutively, with credit for time served. The facts which resulted in Parnell’s convictions are set forth in our opinion on direct appeal. On October 30, 2012, at around 8:14 p.m., Eriana Carr and Nakia Johnson were shot in Omaha, Nebraska. Carr was shot twice and died from her injuries. Johnson was shot 11 times and survived. Johnson told investigators that the shots came from “a blue Nissan Altima with a messed up front bumper.” Johnson stated that Parnell and three others threatened her at a party at her friend’s apartment 2 days before the shooting, because “they felt like [she] had brought someone into the house from another side,” or “[a]nother hood.” Detectives discovered that Parnell had been stopped while driving a blue Nissan Altima several months earlier. The 1 State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016). - 935 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 registered owner of the car was Jasmine Nero, the mother of Parnell’s child. When interviewed by investigators, Parnell denied any knowledge of an Altima and stated that he never drove any of Nero’s vehicles. Parnell spoke to Nero about the Altima in a call from jail. Nero testified that she understood from that call that Parnell wanted her “to get rid of” the car. Nero moved the car to a garage, where investigators later found it. The car’s front bumper was damaged, and it contained a box with Parnell’s thumbprint on it. Pretrial Discovery Prior to trial, Parnell filed a motion to exclude the State’s expert witness William Shute, a special agent with the Federal Bureau of Investigation (FBI) and a member of the FBI’s “Cellular Analysis Survey Team” who performs “historical cell site analysis” using call detail records provided by cellu- lar carriers. Shute explained that call records show the tower and the sector that a particular cell phone used. Cell towers usually have three sectors. The towers and sectors can be plotted on a map in order to locate a cell phone at a particu- lar time. Shute testified regarding the locations of Parnell’s cell phone around the time of the shooting. Parnell’s call detail records showed that his cell phone connected to tower: (1) 201 at 7:52 p.m., (2) 729 at 8:07 p.m., (3) 201 at 8:11 p.m., (4) 729 at 8:20 p.m., and (5) 201 at 8:20 p.m. Shute plotted the towers and their coverage areas on a map. He testified that the coverage areas for towers 201 and 729 overlap and that the way Parnell’s cell phone switched between towers 201 and 729 showed it was definitely located within the overlapping coverage area at the time of the shooting. The court overruled the motion to exclude, finding that Shute was qualified to testify as an expert and that his methods were reliable. Parnell’s counsel later moved to exclude Shute’s testimony or continue trial based on the discovery of undisclosed evidence. Counsel filed an affidavit stating that he attended a seminar - 936 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 with a presentation by cellular analyst Michael O’Kelly. The State had disclosed in discovery that O’Kelly had performed cell phone mapping services on the case for the Omaha Police Department (OPD). In response to a question from Parnell’s counsel, O’Kelly stated that he performed more services than disclosed in the report. In supplemental discovery, O’Kelly provided Parnell’s counsel with an affidavit detailing his inter- actions with the State, and the State disclosed a series of emails between O’Kelly, a detective of the OPD, and a deputy county attorney. In the emails, the detective asked O’Kelly if he had a formal report to present to the county attorney. O’Kelly responded that he could do so in about 10 days. He stated, “Remember, if it’s in writing it’s Discoverable[.] I would recommend the county attorney and I visiting and then letting them decide.” O’Kelly then later wrote to the deputy county attorney, “It was a pleasure visiting Friday[.] I am sending the cell maps and my cell forms, guides and CV[.] When you have a moment after reviewing these, call and I will walk you through each.” In his affidavit, O’Kelly stated that he “reviewed the . . . call detail records and concluded that [Parnell’s cell phone] appeared to travel from the west side of Omaha [where Parnell lived] to the east side, then north and south and then travel- ing back to the general area on the west side.” O’Kelly said that he “began processing and mapping the individual cell site registrations. The handset transition west to east, north/ south and east to west activities were confirmed.” He then provided the OPD detective with “multiple maps depicting handset movements consistent with cell site registrations that supported physical movement from Omaha’s west side to the east side and possible travel movements north and south on the east side.” O’Kelly also stated that he informed the detective that “it is impossible to identify a specific location stop(s), specific surface roadway travels based upon the existing cellular data.” He stated that “drawing circles and other shapes with defined - 937 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 boundaries is unreliable and at best simple guessing with an agenda. The ‘guessing’ may be based upon experience and training but will still have no foundation and/or credible sup- port that is rooted with existing electronic wireless data.” And he stated that “in order to possibly place the subject [cell phone] in the immediate area of the crime scene . . . it will be necessary to conduct an RF Signal Field Survey.” He explained that his approach to performing such a survey, or drive test, “is time consuming and labor intensive covering days if not weeks.” In his motion to exclude Shute’s testimony or continue trial, Parnell argued that the State failed to disclose O’Kelly’s opin- ions that a drive test was necessary and that the FBI’s methods were not reliable. In support of his motion, Parnell offered O’Kelly’s affidavit, but not the emails. The State responded that O’Kelly’s opinion was not exculpatory and that O’Kelly placed Parnell’s cell phone in the same area as Shute had, although O’Kelly was not as specific. The court overruled the motion, finding the evidence was not exculpatory and had been provided at an early date. The court permitted Parnell to retain O’Kelly as an expert witness and allowed 12 days to prepare his testimony. Before trial, Parnell renewed his motion to continue the trial, offering the email exchanges with O’Kelly as support. The court overruled the renewed motion. Trial At trial, Johnson testified and described the shooting, the blue Nissan Altima, and the threatening incident 2 days before the shooting. Nero testified regarding the Altima and her rela- tionship with Parnell. Nero testified that she lied to police for Parnell and was charged as an accessory to a felony. Shute testified that towers 201 and 729 form an overlap area and that Parnell was within the overlap area at the time of the shooting. O’Kelly was present throughout the trial but did not testify. The jury returned a verdict of guilty on all counts. - 938 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 Motion for New Trial Parnell timely moved for a new trial. He offered a second affidavit from O’Kelly which he contended showed proof of newly discovered evidence which could not have been discov- ered and produced at trial. O’Kelly averred that after his initial work on Parnell’s case, he “informed the government that addi- tional field testing by means of a ‘drive test’ would be required in order to move from speculation to accuracy in the cell tower connection plotting.” A drive test involves making cell phone calls while driving and then obtaining call detail records to see which towers the cell phone used. Shute did not perform such a drive test. O’Kelly began a drive test on the last day of the trial. He averred that the drive test revealed that the crime scene was between towers 201 and 729, which are 1.84 miles apart. The drive test showed that the coverage areas for towers 201 and 729 do not overlap or border each other, as Shute claimed. O’Kelly stated that Parnell had to have left the crime scene in order to connect to tower 729. However, O’Kelly also said that the data showed that Parnell’s cell phone “was in the general vicinity (1 - 2 miles of the crime scene) before, during and after the shooting.” The district court overruled the motion for new trial, finding that O’Kelly’s opinions could have been discovered and pro- duced using reasonable diligence. In addition, the court found that Parnell could have disputed Shute’s testimony by calling O’Kelly as a witness. The court noted that the State had dis- closed early in the discovery process that O’Kelly had worked on the case. Lastly, the court concluded that O’Kelly’s opinions were not material, because they would not have affected the outcome of trial. The court found that the drive test results “seem to incriminate [Parnell].” Direct Appeal On direct appeal, Parnell assigned that the district court erred in overruling his motion to exclude Shute’s testimony - 939 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 or continue trial and his motion for a new trial. Parnell also claimed that his trial counsel was ineffective because he did not call O’Kelly to testify as an expert witness at trial. We found no merit to any of Parnell’s assigned errors. We found that under Brady v. Maryland, 2 the timing of the State’s disclosure of O’Kelly’s opinions did not violate Parnell’s right to due process because the State disclosed the evidence 1 week before trial. We found that the State had no duty to disclose O’Kelly’s oral, unrecorded opinions under Neb. Rev. Stat. § 29-1912 (Reissue 2016), because his comments on the need for more data were akin to an internal, informal document and were not results or reports of examinations or scientific tests under § 29-1912(1)(e). We also found Parnell did not make it clear to the district court that O’Kelly required more than 12 days to perform a drive test. We therefore con- cluded that the district court did not abuse its discretion in overruling Parnell’s motion to exclude Shute’s testimony or continue trial. We rejected Parnell’s argument that the court erred in over- ruling his motion for a new trial, finding that, even assuming O’Kelly’s opinions constituted newly discovered evidence, there was not a reasonable probability of a substantially dif- ferent result. We found that even though O’Kelly criticized the precision of Shute’s opinions, O’Kelly’s opinions still incriminated Parnell, because O’Kelly placed Parnell’s cell phone within 1 to 2 miles of the crime scene before, dur- ing, and after the shooting. In addition, the incriminating testimony of Johnson and Nero substantially diminished the importance of the evidence regarding the location of Parnell’s cell phone. In addressing Parnell’s argument that his trial attorneys were ineffective for failing to call O’Kelly to testify, we first addressed whether Parnell was represented by the same coun- sel at trial as on appeal and concluded that he was not. We 2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). - 940 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 found that the two attorneys who represented Parnell at trial intended to withdraw in the trial court, but because there was no order memorializing their withdrawal, they were certified as appellate counsel to this court, and that they did not then file a motion to withdraw in this court. In response to our show cause order, Parnell’s trial counsel submitted affidavits stating that they had no contact with him after sentencing and did not participate in his appeal. As such, we concluded that we were able to address Parnell’s ineffectiveness claim on direct appeal. We found that had O’Kelly testified, the outcome would not have been different, because he opined that Parnell’s cell phone was near the crime scene when the shooting occurred. We determined that the record conclusively refuted Parnell’s claim that he was prejudiced by the actions of his trial counsel. Postconviction As a self-represented litigant, Parnell filed a motion for postconviction relief which asserted claims of trial court error, prosecutorial misconduct, and ineffective assistance of trial and appellate counsel. Most of the allegations in Parnell’s motion concern issues previously raised and addressed on direct appeal, especially with regard to O’Kelly’s opinions and the drive test. Of particular note in this appeal, Parnell alleged that his trial counsel and appellate counsel failed to “submit” the email exchanges with O’Kelly to show that O’Kelly’s data is more reliable than Shute’s data. Parnell further alleged that the State committed prosecutorial misconduct by “allowing the testimony of Shute at trial knowing that his testimony as an expert was not accurate.” He alleged that, contrary to Shute’s testimony that cell towers 201 and 729 form an overlap area, O’Kelly opined that the cell tower areas do not overlap and that the performance of a drive test was required in order to obtain more accurate data. The district court dismissed the motion without an evidentiary hearing, concluding that all of Parnell’s claims are procedurally barred because they were known or - 941 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 knowable at the time of his direct appeal. Parnell filed a notice of appeal. Parnell’s counsel entered his appearance and filed a brief on his behalf. ASSIGNMENTS OF ERROR Parnell assigns, restated, that the district court erred in determining that his claims for postconviction relief are pro- cedurally barred; in particular, his claim in which he alleges that appellate counsel was ineffective by failing to raise trial counsel’s failure to “introduce certain evidence and correct prosecutorial misconduct.” In the alternative, Parnell assigns that the court erred in determining that any of his claims are procedurally barred because it was unclear as to whether he was represented by the same lawyers during trial and direct appeal. STANDARD OF REVIEW [1,2] In appeals from postconviction proceedings, an appel- late court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 3 Whether a claim raised in a postconviction proceeding is pro- cedurally barred is a question of law which is reviewed inde- pendently of the lower court’s ruling. 4 ANALYSIS Parnell argues that the district court erred in determining that all of his claims are procedurally barred, because his motion raises ineffective assistance of appellate counsel claims and postconviction is his first opportunity to raise such claims. The State does not contest this point, but argues that based on the ineffective assistance of appellate counsel allegations raised in the motion, Parnell is entitled to no relief. 3 State v. Hessler, ante p. 451, 940 N.W.2d 836 (2020). 4 State v. Mata, 304 Neb. 326, 934 N.W.2d 475 (2019). - 942 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 [3,4] Under the Nebraska Postconviction Act, 5 a prisoner in custody may file a motion for relief on the ground that there was a denial or infringement of the prisoner’s consti- tutional rights that would render the judgment void or void- able. Postconviction relief is a very narrow category of relief. 6 A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal. 7 [5,6] In a postconviction proceeding, an evidentiary hearing is not required (1) when the motion does not contain factual allegations which, if proved, constitute an infringement of the movant’s constitutional rights; (2) when the motion alleges only conclusions of fact or law; or (3) when the records and files affirmatively show that the defendant is entitled to no relief. 8 In a motion for postconviction relief, the defend ant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution. 9 In the absence of alleged facts that would ren- der the judgment void or voidable, the proper course is to overrule a motion for postconviction relief without an eviden- tiary hearing. 10 Claims Procedurally Barred Parnell contends that his claims of prosecutorial miscon- duct were not procedurally barred. However, we agree with the State that this portion of Parnell’s motion asserts in a con- clusory fashion, without factual support, that he was denied ineffective assistance of appellate counsel. An evidentiary hearing is not required when a motion for postconviction 5 Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016). 6 State v. Beehn, 303 Neb. 172, 927 N.W.2d 793 (2019). 7 Mata, supra note 4. 8 State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018). 9 Id. 10 State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). - 943 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 relief alleges only conclusions of fact or law without support- ing facts. 11 Upon review of the allegations supporting Parnell’s pros- ecutorial misconduct claims, it is clear that he did not allege that his appellate counsel was ineffective for failing to raise on direct appeal that his trial counsel was ineffective for failing to raise the alleged prosecutorial misconduct with respect to Shute’s testimony. Additionally, he did not allege how inclu- sion of the issue would have changed the outcome of his direct appeal. Because Parnell’s prosecutorial misconduct claims do not include factual allegations concerning the effectiveness of appellate counsel, we do not view these claims as ineffec- tive assistance of appellate counsel claims, and as a result, the district court did not err when it determined these claims were procedurally barred. Claim Not Procedurally Barred While we agree with the district court’s observation that Parnell’s motion mainly discusses claims that either were raised or could have been raised on direct appeal, upon de novo review of Parnell’s postconviction motion, and in consid- eration of the errors assigned by Parnell in this appeal, we find that Parnell has raised one ineffective assistance of appellate counsel claim which is not procedurally barred and must be analyzed under Strickland v. Washington. 12 [7] In the instant case, Parnell was represented by differ- ent counsel on direct appeal than at trial. Ordinarily, when a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the record. 13 11 Id. 12 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 13 Parnell, supra note 1. - 944 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 Otherwise, the issue will be procedurally barred. 14 A claim of ineffective assistance of appellate counsel which could not have been raised on direct appeal may be raised on postconvic- tion review. 15 Parnell’s counsel on direct appeal argued that trial coun- sel was ineffective for failing to call O’Kelly as a witness. For reasons previously discussed herein, we rejected Parnell’s argument, because O’Kelly’s testimony tended to incriminate Parnell and had O’Kelly testified, the outcome of trial would have been the same. In his motion for postconviction relief, Parnell asserts that his appellate counsel was ineffective for failing to raise trial counsel’s failure to “submit the e-mails by [the OPD detective, the deputy county attorney,] and O’Kelly, concerning their meeting about O’Kelly’s data being more reli- able than Shute’s data.” [8] When a person seeking postconviction relief has differ- ent counsel on appeal than at trial, the motion for postconvic- tion relief is procedurally barred if the person seeking relief (1) knew of the issues assigned in the postconviction motion at the time of the direct appeal, (2) failed to assign those issues on direct appeal, and (3) did not assign as error the failure of appellate counsel on direct appeal to raise the issues assigned in the postconviction motion. 16 Here, the record reflects that at the time of his direct appeal, Parnell was aware of the fac- tual basis for his claim that trial counsel was ineffective for failing to “submit the e-mails.” While trial counsel did offer the emails in support of Parnell’s renewed motion to exclude Shute’s testimony or continue trial, the emails were not offered into evidence during trial for the jury’s consideration. Parnell’s appellate counsel did not assert this issue on direct appeal. Because Parnell alleged in his motion for postconviction relief that appellate counsel was ineffective in not doing so, the issue 14 Id. 15 State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017). 16 State v. Bishop, 263 Neb. 266, 639 N.W.2d 409 (2002). - 945 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 was presented at Parnell’s first opportunity and is not procedur- ally barred. 17 Because we conclude that Parnell has raised an ineffective assistance of appellate counsel claim that is not procedurally barred, we do not reach Parnell’s alternative assignment of error that the court erred in determining that any of his claims are procedurally barred because it was unclear as to whether he was represented by the same lawyers during trial and direct appeal. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 18 Moreover, it is clear from the discussion on this issue in our opinion on direct appeal that Parnell’s counsel on appeal was different than his counsel at trial. Appellate Counsel Not Ineffective Although we find that Parnell’s motion raises a discrete issue that is not procedurally barred, given that we concluded on direct appeal that Parnell was not prejudiced by counsel’s failure to call O’Kelly as a witness, we similarly conclude that Parnell failed to show that he was prejudiced by counsel’s failure to submit the emails by the OPD detective, the deputy county attorney, and O’Kelly into evidence at trial. [9] A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial. 19 To prevail on a claim of ineffective assistance of counsel under Strickland, the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. 20 To show preju- dice under the prejudice component of the Strickland test, the defendant must demonstrate a reasonable probability that but 17 See id. 18 State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019). 19 Vela, supra note 15. 20 Id. - 946 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 for his or her counsel’s deficient performance, the result of the proceeding would have been different. 21 A reasonable prob- ability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome. 22 [10,11] When a claim of ineffective assistance of appel- late counsel is based on the failure to raise a claim on appeal of ineffective assistance of trial counsel (a layered claim of ineffective assistance of counsel), an appellate court will look at whether trial counsel was ineffective under the Strickland test. 23 If trial counsel was not ineffective, then the defendant was not prejudiced by appellate counsel’s failure to raise the issue. 24 Much like claims of ineffective assistance of trial coun- sel, the defendant must show that but for counsel’s failure to raise the claim, there is a reasonable probability that the out- come would have been different. 25 In determining whether trial counsel’s performance was deficient, courts give counsel’s acts a strong presumption of reasonableness. 26 In analyzing Parnell’s claim, we focus on the allegations in his postconviction motion. 27 Here, on the issue of preju- dice, Parnell alleged that had his trial counsel submitted the emails into evidence, “[t]his would have proved that the State knew that there existed exculpatorial [sic] material evidence that [Parnell] was possibly in another area of town when the 21 Id. 22 Id. 23 State v. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018), disapproved on other grounds, Allen, supra note 10. 24 Id. 25 Id. 26 Id. 27 See State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved on other grounds, Allen, supra note 10 (appellate court will not consider factual allegations made for first time on appeal). - 947 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 murder was committed.” Based on the record, we find no support for Parnell’s claim that counsel’s introduction of the emails would have created a probability sufficient to under- mine confidence in the outcome at trial. This is because, as stressed by this court in its opinion on direct appeal, the testi- mony of Johnson and Nero provided powerful and compelling evidence of Parnell’s guilt, which significantly reduced the importance of the expert testimony concerning the location of Parnell’s cell phone. 28 Johnson testified that Parnell had threatened her 2 days before the shooting and that the shooter was driving a blue Nissan Altima with a damaged bumper. Nero testified that Parnell drove her Altima on the night of the shooting, and she admitted to lying to police about the Altima in order to help Parnell. When police found the Altima, the car’s front bumper was damaged and an item inside the car contained Parnell’s thumbprint. Because these witnesses directly incriminated Parnell in several respects, even if the emails were introduced into evidence and effectively used to rebut aspects of Shute’s testimony, the likelihood of acquittal is low. This conclusion is reinforced when the actual content of the emails are considered. Had the jury been presented with the emails, it would have merely learned that O’Kelly met with the prosecution to discuss his report and findings and that the prosecution ultimately had Shute testify as an expert rather than O’Kelly. While Parnell’s claim about the emails does not refer to calling O’Kelly as a witness, his motion does state that the emails concern the prosecution’s “meeting about O’Kelly’s data being more reliable than Shute’s data.” Parnell’s claim of ineffectiveness therefore includes a comparison between the findings of the two experts. In evaluating this claim, we assume for the sake of argument only that Parnell’s trial counsel would have introduced the emails through O’Kelly as a witness and that the jury would then have learned O’Kelly’s opinions. We 28 See Parnell, supra note 1. - 948 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. PARNELL Cite as 305 Neb. 932 explained on direct appeal that, although he was not as precise as Shute, O’Kelly’s testimony incriminated Parnell, because O’Kelly placed Parnell in the general vicinity of the crime scene at the time of the shooting. We must therefore conclude that trial counsel was not ineffective, because it is clear that trial counsel’s strategic decision not to call O’Kelly as a wit- ness and introduce the emails through him benefited Parnell, because O’Kelly would have incriminated Parnell. Because Parnell’s trial counsel was not ineffective, Parnell’s appellate counsel was not ineffective in failing to raise this issue, and Parnell suffered no prejudice as a result of the actions of appel- late counsel. Postconviction relief without an evidentiary hear- ing is properly denied when the files and records affirmatively show that the prisoner is entitled to no relief. 29 CONCLUSION For the foregoing reasons, although our reasoning differs from that of the district court, we affirm the order of the dis- trict court denying Parnell’s motion for postconviction relief without an evidentiary hearing. Affirmed. Freudenberg, J., not participating. 29 State v. Fox, 286 Neb. 956, 840 N.W.2d 479 (2013).	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/1079803/	IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE June 28, 2000 Session STATE OF TENNESSEE v. NATHANIEL ALLEN Appeal as of Right from the Circuit Court for Hamblen County No. 99-CR-088 James Edward Beckner, Judge No. E1999-02209-CCA-R3-CD October 19, 2000 The appellant, Nathaniel Allen, was convicted by a jury in the Hamblen County Circuit Court of one count of delivery of more than .5 grams of cocaine, a class B felony. The trial court sentenced the appellant to twelve years incarceration in the Tennessee Department of Correction, as a Range I offender, with thirty percent release eligibility and assessed a fine of $ 7,500. The appellant presents the following issues for our review: (1) whether the evidence in this case is sufficient to sustain a verdict of guilt beyond a reasonable doubt; (2) whether the testimony, under oath, of Tonya Acuff was so contradictory as to have been subject to cancellation; (3) whether the court=s decision to send items to the jury room in this case was improper to the extent that it included typed transcripts of tapes not offered as evidence; (4) whether it was improper for the court to align one of the tapes introduced into evidence by the State in this case to a particular phrase so that the jury heard that phrase immediately upon turning on the tape recorder; (5) whether sentencing in this case was excessive and whether the court properly applied statutory guidelines in delivering a sentence in this case; (6) whether if, in fact, the trial court had no alternative but to give a twelve-year sentence in this case according to the Tennessee sentencing guidelines, then are those guidelines constitutional both in terms of the United States and Tennessee constitutions. Upon review of the record and the parties= briefs, we affirm the appellant=s convictions, but modify his sentence to ten years. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed as Modified. NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES, and JAMES CURWOOD WITT, JR., JJ., joined. Greg Eichelman, Morristown, Tennessee, for the appellant, Nathaniel Allen. Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Counsel for the State, Chris Scruggs, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION I. Factual Background On December 9, 1998, Officer Tim Ward and a confidential informant, Tonya Acuff, arranged to meet the appellant at his brother=s home for the purpose of buying drugs. Acuff was wired for sound and two separate tapes of the exchange were made; one tape was controlled by Officer Todd Davidson at a remote location, and the second tape was recorded on a device located on Acuff=s person. When the appellant arrived at the residence, he and Acuff went into the bathroom where Acuff gave the appellant two hundred dollars in exchange for twelve rocks of crack cocaine. The appellant told Acuff, in reference to the cocaine that he handed her, AThat=s wet; I just made that.@ Acuff then exited the bathroom and left the premises with Officer Ward. A jury in the Hamblen County Circuit Court convicted the appellant of one count of delivery of more than .5 grams of cocaine, a class B felony. The trial court sentenced the appellant to twelve years incarceration in the Tennessee Department of Correction, as a Range I offender and assessed a fine of $ 7,500. The appellant presents the following issues for our review: (1) whether the evidence in this case is sufficient to sustain a verdict of guilt beyond a reasonable doubt; (2) whether the testimony, under oath, of Tonya Acuff was so contradictory as to have been subject to cancellation; (3) whether the court=s decision to send items to the jury room in this case was improper to the extent that it included typed transcripts of tapes not offered as evidence; (4) whether it was improper for the court to align one of the tapes introduced into evidence by the State in this case to a particular phrase so that the jury heard that phrase immediately upon turning on the tape recorder; (5) whether the sentencing in this case was excessive and whether the court properly applied statutory guidelines in delivering a sentence in this case; (6) whether if, in fact, a trial court had no alternative but to give a twelve-year sentence in this case according to the Tennessee sentencing guidelines, then are those guidelines constitutional both in terms of the United States and Tennessee constitutions.1 II. Analysis A. Cancellation The appellant argues that the testimony, under oath, of Tonya Acuff was so contradictory as to have been subject to cancellation. In Tennessee, Acontradictory statements by a witness in connection with the same fact cancel each other out.@ State v. Matthews, 888 S.W.2d 446, 449 (Tenn. Crim. App. 1993). However, the appellant=s argument on this point is less than clear because the appellant does not precisely pinpoint the testimony that he believes is contradictory. Moreover, although the appellant acknowledges that this court cannot assess witness credibility, he proceeds to argue that because of her prior drug abuse, Acuff, as a witness, was not credible and 1 Although the appellant mentions issue (6) in his brief, he does not pursue the argument. Therefore, we will not address this issue in this opinion. Tenn. R. App. P. 27(a)(7); see also State v. Dickerson, 885 S.W.2d 90, 93 (Tenn. Crim. App. 1993). -2- should not be believed. Assessing witnesses credibility and the weight to be given to their testimony is not a job for this court. State v. Pruett,788 S.W.2d 559, 561 (Tenn. 1990). The appellant appears to argue that Acuff admitted at trial that she returned to the residence after the drug bust and retrieved from a hole in the wall of the residence the two hundred dollars she purportedly paid the appellant for cocaine. The exact testimony the appellant cites is as follows: Q: And is this that when you went back to that little hole to get the two hundred dollars out? State: Objection, Your Honor. She said she didn=t know about the hole. Court: Overruled. Q: Ma=am? A: Yes, sir. The appellant claims that this testimony is inconsistent because Acuff is admitting that she put the two hundred dollars in a hole at the residence for her later retrieval instead of giving it to the appellant for drugs. However, it is not entirely clear from the transcript that Acuff is admitting anything. She could merely be acknowledging that the appellant=s counsel was proceeding with cross-examination. Appellant=s counsel failed to clarify which question Acuff was responding to. Moreover, even if this statement is inconsistent, the Arule of cancellation applies only when inconsistency in a witness= testimony is unexplained and when neither version of his testimony is corroborated by other evidence.@ State v. Matthews, 888 S.W.2d 446, 450 (Tenn. Crim. App. 1993). The line of questioning that the appellant relies upon occurred after Acuff had repeatedly denied knowing to what Ahole@ appellant=s counsel was referring. Additionally, Acuff repeatedly testified that she gave the appellant two hundred dollars for the cocaine. Moreover, on the tape, Acuff can be heard counting out two hundred dollars before handing it to the appellant for cocaine. This is sufficient corroboration to withstand cancellation. The appellant further argues that statements Acuff made in court are inconsistent with statements she made on the tapes and are therefore subject to cancellation. Specifically, the appellant claims that Acuff testified that the appellant told her that the cocaine was wet because it was freshly cooked. In contrast, the appellant points to statements on the tapes where Acuff claims to have Agot[ten] that wet,@ and where she says that the appellant Astuck it down in the wet [stuff].@ However, the statements Acuff made on the tape are not sworn testimony. State v. Edwards, No. W1999-00591-CCA-R3-CD, 2000 WL 674671, at 3, (Tenn. Crim. App. at Jackson, May 16, 2000). Prior inconsistent statements by a witness that are not sworn testimony merely raise credibility issues for the trier of fact to resolve. Id. Moreover, additional evidence corroborated Acuff=s testimony that the appellant said that the cocaine was wet because it was freshly cooked. On one of the tapes the State introduced into evidence, the appellant claimed, in reference to the cocaine, AThat=s wet; I just made that.@ Furthermore, Officer Davidson testified that, in his opinion, when someone refers to drugs as being Awet,@ that means the drugs have been freshly cooked. Therefore, the rule of cancellation does not apply. -3- B. Sufficiency of the Evidence The appellant also contends that the evidence in this case was insufficient to sustain a verdict of guilt beyond a reasonable doubt. This court accords considerable weight to a jury=s verdict of guilt in a criminal trial. Essentially, a jury conviction removes the presumption of innocence the appellant had at trial and replaces it with one of the appellant=s guilt on appeal. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Accordingly, the appellant carries the burden of demonstrating to this court why the evidence will not support the jury=s findings. Id. Furthermore, the appellant must establish that no Areasonable trier of fact@ could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). Moreover, on appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Put another way, questions concerning the credibility of witnesses and the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate courts. Pruett,788 S.W.2d at 561. To sustain the appellant=s conviction, the State had to prove that the appellant knowingly delivered over .5 grams of cocaine to Acuff. Tenn. Code Ann. ' 39-17- 417(a)(2)&(b)(1997). The State introduced testimony by Officer Davidson, Officer Ward, and Acuff that Acuff was thoroughly searched before and after this operation to prevent fraud and that no drugs were found on Acuff=s person, in her car, or in her pocketbook during the search. They asserted that Acuff entered the residence with two hundred dollars and exited with twelve rocks of crack cocaine. Furthermore, Acuff testified that, when she entered the bathroom with the appellant, she gave him two hundred dollars and he handed her approximately twelve rocks of crack cocaine that he had just made. Additionally, Officer Ward testified that no one else went into the bathroom with the appellant and Acuff. Moreover, both tapes that were introduced into evidence support Acuff=s story. Furthermore, the State introduced a lab report stating that 1.2 grams of cocaine were recovered from Acuff after the drug sale. This constitutes sufficient evidence for a reasonable trier of fact to conclude that the appellant was guilty of delivery of cocaine beyond a reasonable doubt. C. Transcripts The appellant alleges that the court=s decision to send items to the jury room was improper to the extent that it included typed transcripts of tapes not offered as evidence. Initially we note that, although the appellant claims the transcripts were never introduced as exhibits, both transcripts were in fact marked as exhibits. State v. Lawson, No. 01C01-9607-CR-00320, 1997 WL 661483, at 11, (Tenn. Crim. App. at Nashville, October 24, 1997). Moreover, the appellant himself introduced one of the tapes and one of the transcripts into evidence. Tenn. R. Crim. P. 30.1 states that Upon retiring to consider its verdict the jury shall take to the jury room all exhibits and writings which have been received in evidence, except depositions, for their examination during deliberations, unless the court, for good cause, determines that an exhibit should not be taken to the jury room. -4- Furthermore, the Advisory Commission Comments following the rule state that this rule is mandatory unless the judge determines that an exhibit should not be submitted to the jury because Athe exhibit may endanger the health and safety of the jurors, the exhibit may be subjected to improper use by the jury, or a party may be unduly prejudiced by submission of the exhibit to the jury.@ Id.; see also Lawson, 1997 WL 661483, at 11. Furthermore, the trial court admonished the jury to only consider the transcripts as aids in listening to the tapes, and any discrepancies between what the jurors heard on the tapes and what was written in the transcripts were to be solved in favor of what the jurors heard on the tapes. State v. Barnard, 899 S.W.2d 617, 623-624 (Tenn. Crim. App. 1994). Additionally, the appellant made no objection when the transcripts were first introduced at trial. See State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988)(stating defendant=s failure to object on any ground to the admission of evidence resulted in the waiver of issue of proper admissibility). This issue is without merit. D. Pre-set tape The appellant further argues that it was improper for the court to align one of the tapes introduced into evidence by the State in this case to a particular phrase so that the jury heard that phrase immediately upon turning on the tape recorder. After deliberating for two hours, the jury sent a request to the trial judge for assistance in finding a particular phrase on one of the tapes. The jurors could see the phrase on one of the transcripts but could not find it on the tape.2 Without commenting on the evidence, the judge found the phrase and sent the tape back to the jury room. The appellant claims that this was undue emphasis by the trial judge of the State=s evidence. We disagree. The trial court made no comment about the evidence and did not set the tape to a particular phrase until the jury requested. See State v. Fair, No. 02C01-9493-CR-00055, 1995 WL 686105, at 6 (Tenn. Crim. App. at Jackson, November 15, 1995). Furthermore, the jury already had the tapes in the jury room during deliberation; all the jury requested was assistance in finding a phrase on the tape. Accordingly, the court [did] not emphasize the evidence by permitting the jury to rehear what they wish to hear in carrying out their task of determining the facts in a case. If there is any emphasis being placed on the evidence, it is being placed there by the jury. State v. Jenkins, 845 S.W.2d 787, 792 (Tenn. Crim. App. 1992). Furthermore, even if the judge did commit error by pre-setting the tape for the jury, the error is harmless because the testimony of the officers, the testimony of Acuff, and the transcript also confirmed that the appellant stated that he had just made the crack cocaine. This issue is without merit. E. Sentencing 2 The jurors wanted to hear the appellant say, on the tape, AThat=s wet; I just made that.@ -5- The appellant maintains that the sentencing in this case was excessive. Appellate review of the length of a sentence is de novo. Tenn. Code Ann. ' 40-35-401(d)(1997). Furthermore, the appellant bears the burden of demonstrating the impropriety of his sentence to this court. Tenn. Code Ann. ' 40-35-401, Sentencing Commission Comments. Moreover, if the record reveals that the trial court adequately considered sentencing principles and all relevant facts and circumstances, this court will accord the trial court=s determinations a presumption of correctness. Tenn. Code Ann. ' 40-35-401(d); Ashby,823 S.W.2d at 169. This court considers the following factors in conducting its de novo review: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and information offered by the parties on enhancement and mitigating factors; (6) any statement by the defendant in his own behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. ' 40-35-102,-103,-210 (1997). See also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). Initially, we note that the trial court erroneously stated that, because the appellant had been convicted of a Class B felony, the appellant=s presumptive sentence was ten years, which is the midpoint of the eight to twelve year range for a Class B felony. In sentencing, [t]he presumptive sentence for a Class B, C, D and E felony shall be the minimum sentence in the range if there are no enhancement or mitigating factors. The presumptive sentence for a Class A felony shall be the midpoint of the range if there are no enhancement or mitigating factors. Tenn. Code Ann. ' 40-35-210(c)(1997)(emphasis added). Therefore, the starting point in the trial court=s analysis should have been eight years, the minimum sentence for a Class B felony. As a result, we will review the appellant=s sentence without a presumption of correctness. The trial court found that two enhancement factors applied to the appellant. First, the trial court found that the appellant had a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range. Tenn. Code Ann. ' 40-35- 114(1)(1997). The appellant had a history of one driving under the influence conviction and one driving on a revoked license conviction. Additionally, the appellant had previous juvenile convictions of assault and shoplifting. The trial court stated: There is not a huge history of criminal convictions, nor a history of felonies. But there is history of criminal convictions or criminal behavior. And none of those are necessary to establish the appropriate range. We agree with the trial court=s finding that this enhancement factor applies to the appellant. Moreover, the trial court found a violation of Tenn. Code Ann. ' 40-35-114(8) because the appellant had previously violated the terms of probation by driving inappropriately on a temporary license. The trial court noted, AThat=s not the most egregious enhancement factor [(8)] I=ve seen, but it is a consideration.@ Once again, we believe the trial court correctly applied this enhancement factor to the appellant=s sentences. -6- However, the appellant=s main contention is that the trial court erred by failing to find the existence of any mitigating factors. Specifically, the appellant argues that the following factors are applicable in the instant case: (1) the appellant=s criminal conduct neither caused nor threatened serious bodily injury; (2) the appellant acted under strong provocation; (3) substantial grounds exist tending to excuse or justify the appellant=s criminal conduct, though failing to establish a defense; (4) the appellant played a minor role in the commission of the offense; (11) the appellant, although guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated the criminal conduct; and, (12) the appellant acted under duress or under the domination of another person, even though the duress or the domination of another person is not sufficient to constitute a defense to the crime. Tenn. Code Ann. ' 40-35-113(1)-(4)&(11)-(12)(1997). We agree with the trial court that the ennumerated mitigating factors do not apply. The appellant argues that his conduct neither caused nor threatened serious bodily injury. Tenn. Code Ann. ' 40-35-113(1). However, the appellant further notes, correctly, that Athis court has held this factor should not be applied when the defendant is convicted of an offense involving cocaine.@ State v. Vanderford, 980 S.W.2d 390, 407 (Tenn. Crim. App. 1997). The trial court correctly refused to apply this factor. The appellant claims that this court should reconsider our refusal to apply this factor in cases involving cocaine. He maintains that, if this court stands by its position, there is no way to differentiate between a drug sale made in a public area, around children and armed with loaded weapons from a drug transaction occurring between consenting adults in the privacy of a bathroom. The appellant overlooks the fact that the drug-free school zones act enhances a felony by one classification if it occurred withing 1000 feet of a school zone, enhancement factor (9) could be applied if Athe defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense, and a private drug sale is no more legal than a drug sale committed in a public place. Tenn. Code Ann. '' 39-17-432(b)(1997), 40-35-114(9). This issue is without merit. The appellant repeatedly argues that, without the contacts of Acuff, this drug sale would never have occurred. He claims that, therefore, his role in the offense was minor and that Acuff provoked his actions, proving he had no sustained intent to violate the law. However, the appellant=s role in this offense was not minor. He made 1.2 grams of cocaine and sold it to Acuff soon thereafter. The argument that he was provoked into the drug sale has no merit. Moreover, the fact that the appellant made the crack cocaine and immediately sold it indicates that he had a -7- sustained intent to violate the law. The trial court correctly ruled that factors (2)-(4) and (11)-(12) do not apply to the appellant. Although the trial court erred in its determination that the correct starting point was the midpoint of the range, the trial court nevertheless correctly applied all of the enhancement and mitigating factors to the appellant. Because there were two enhancement factors and no mitigating factors, the appellant=s sentence should be above the eight year minimum. Accordingly, we modify the appellant=s sentence from twelve years to ten years incarceration in the Tennessee Department of Correction. III. Conclusion Based upon the foregoing, we affirm the appellant=s conviction, but modify his sentence to ten years. ___________________________________ NORMA McGEE OGLE, JUDGE -8-	01-03-2023	10-09-2013
https://www.courtlistener.com/api/rest/v3/opinions/4553893/	Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/07/2020 08:07 AM CDT - 484 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 Cheryl V. Anderson, appellee, v. A & R Ag Spraying and Trucking, Inc., and Michael Rafert, appellants. ___ N.W.2d ___ Filed July 17, 2020. No. S-19-541. 1. Equity: Stock: Valuation. A proceeding under the provisions of Neb. Rev. Stat. § 21-2,201 (Cum. Supp. 2016) to determine the fair value of a petitioning shareholder’s shares of stock is equitable in nature. 2. Equity: Appeal and Error. An appellate court reviews an equitable action de novo on the record and reaches a conclusion independent of the factual findings of the trial court; however, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the circumstance that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. 3. Statutes: Appeal and Error. Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. 4. Statutes: Legislature: Intent. 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. 5. Expert Witnesses. The determination of the weight that should be given expert testimony is uniquely the province of the fact finder. 6. Corporations: Stock: Valuation. The trial court is not required to accept any one method of stock valuation as more accurate than another accounting procedure. 7. Corporations: Valuation. A trial court’s valuation of a closely held cor- poration is reasonable if it has an acceptable basis in fact and principle. 8. Equity: Stock: Valuation. A proceeding to determine the “fair value” of corporate shares is equitable in nature. - 485 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 Appeal from the District Court for Pierce County: James G. Kube, Judge. Affirmed in part, and in part vacated. George H. Moyer, of Moyer & Moyer, for appellants. Kathleen K. Rockey, David E. Copple, and Allison Rockey Mason, of Copple, Rockey & Schlecht, P.C., L.L.O., for appellee. Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Funke, J. A purchasing shareholder appeals from the district court’s valuation of the shares of a closely held corporation. We determine that the district court erred in entering judgment against both the shareholder and the corporation, rather than the shareholder alone, and in awarding corporate property rather than solely the value of the shares to be purchased. We otherwise affirm. BACKGROUND Randy Anderson and Michael Rafert started a trucking and crop-spraying business in Plainview, Nebraska, in 1999. In 2000, articles of incorporation were filed with the Nebraska Secretary of State for A & R Ag Spraying and Trucking, Inc. (A & R). A & R is a subchapter C corporation under the Internal Revenue Code presently in good standing with the Nebraska Secretary of State. Randy and Rafert each owned 50 percent of A & R’s shares. In practice, A & R functioned more like a partnership than a corporation. No corporate bylaws were prepared or executed, no formal meetings were held, no minutes were recorded to show A & R’s general operations, and there was no agreement covering the rights of the share- holders in the event of a buyout. Randy passed away in 2015, and his interest in A & R was transferred to his wife, Cheryl V. Anderson, through probate. - 486 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 In February 2017, Cheryl and Rafert attended a corporate meeting to organize the corporation and elect officers and directors, but they could not agree on anything and the corpo- ration became deadlocked. Shortly thereafter, Cheryl petitioned the district court for Pierce County for judicial dissolution of the corporation pur- suant to Neb. Rev. Stat. § 21-2,197(a)(2) (Cum. Supp. 2016). The petition named A & R and Rafert as defendants and sought relief against both defendants individually. A & R filed an answer which requested that the petition be dismissed. Rafert, represented by the same counsel as A & R, separately filed his own answer, which alleged that he is “ready, willing and able to purchase [Cheryl’s] interest but has been unable to agree with her on a fair price,” and asked that the court determine a fair price and direct the purchase on such terms and conditions as may be just. Rafert then filed an election to purchase the corporation in lieu of dissolution, pursuant to Neb. Rev. Stat. § 21-2,201(a) (Cum. Supp. 2016), claiming that he would pur- chase Cheryl’s shares for $40,000. Pursuant to § 21-2,201(d), Rafert filed an application for a stay of the dissolution and a determination of the fair value of Cheryl’s corporate shares as of the day before the date on which the petition for dissolution was filed. At a bench trial held in the matter, the court heard oppos- ing expert testimony from two experienced certified public accountants who opined on the value of Cheryl’s shares. Each expert performed a valuation engagement in accordance with professional standards for business valuation. Both experts dis- cussed the three methods of appraisal: the asset approach, the income approach, and the market approach. Janet Labenz, who testified on behalf of Rafert, performed a valuation using the income approach, which measures a com- pany’s historical cashflow to determine a value based on pro- jected future cashflows. A report authored by Labenz indicated that the asset approach would likely be realized only if the company’s assets were sold and the liabilities retired. Lynette - 487 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 Pofahl, who testified on behalf of Cheryl, issued two reports, and she ultimately used the asset approach, which Pofahl agreed measures a company’s assets and debts to determine a value if the company were to be sold and liquidated. Both experts agreed that the market approach, which estimates a value utilizing comparable sales of similar businesses, does not apply in this case, because there are no publicly traded compa- nies sufficiently similar to A & R. Labenz has over 40 years of experience as a certified public accountant and holds the designations of being accredited in business valuation and certified in financial forensics. In per- forming her valuation, she reviewed the corporation’s income tax returns from 2013 to 2016, internal depreciation sched- ules, and a financial statement prepared by A & R’s account- ing firm on March 31, 2017. She reviewed an appraisal of A & R’s trucks, trailers, spraying equipment, vehicles, and tools, which appraisal produced a valuation of $1,275,175 as of April 7, 2017. The evidence showed that A & R uses a cash-based account- ing system. To calculate the normalized cashflow that the company generates, Labenz analyzed the income tax returns and made adjustments for depreciation of A & R’s equipment and interest payments. Based on the income tax returns, the company made approximately $1,000 in 2013, lost $3,000 in 2014, lost $30,000 in 2015, and lost $185,000 in 2016. But in 2016, for example, A & R bought $285,000 worth of equipment and was permitted to deduct that amount on its tax return. After adding depreciation amounts for each year, and money paid on interest owed to its bank and equipment dealers, Labenz found that the company generated $220,000 in 2013, $240,000 in 2014, $305,000 in 2015, and $138,000 in 2016. Labenz then used a discounted cashflow method in order to determine how much cash one would have upon purchasing the company. In her calculation, she deducted income taxes and the average cost of purchasing equipment, which she placed - 488 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 at $70,000 per year. After making these deductions, Labenz found that on average, the company generated $113,578 of after-tax income per year. Labenz then assumed a sustainable 2-percent growth rate, capitalized the income using a rate of 20 percent, and arrived at a business valuation of $677,781. This amount represents A & R’s free cashflow, or money available to pay off debt or invest. Labenz’ final step was to subtract all of the corporation’s debt. She testified that the corporation owed approximately $1,152,000 and that an interest payment of approximately $23,000 was due. Based on her testimony, after payment of the debt, she valued the company shares at negative $498,000. Labenz’ report also contained a valuation using the asset approach of $142,000, to which she added a 15-percent dis- count for lack of marketability. Pofahl has over 30 years’ experience as a certified public accountant and 20 years’ experience as a certified valuation analyst. In performing her valuation, Pofahl reviewed A & R’s tax returns from 2010 to 2017, as well as depreciation sched- ules, the inventory from Randy’s estate, and the same financial statement and equipment appraisals reviewed by Labenz. In her first report, Pofahl valued the corporation using a hybrid of the income and asset methods. Pofahl found A & R’s weighted cashflow to be $122,564 per year. Utilizing the “capitalization of benefits” method, Pofahl valued the com- pany at $753,138. This value included a note receivable from Rafert, which Pofahl stated was $128,176. Pofahl issued a revised report prior to the second day of trial, after Labenz testified, which replaced the valuation approach shown in the first report. Pofahl stated in her revised report that because A & R is an asset-heavy business, the asset method is the most appropriate way to value A & R. She determined the adjusted book value of A & R to be $573,215 and then accounted for back wages payable, interest, and the April 7, 2017, appraisal. Pofahl ultimately concluded that A & R should be valued between $720,000 and $1 million. - 489 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 In its posttrial decree, the court adopted the income approach for valuing A & R and concluded that the asset approach was not appropriate, because the corporation would not be liqui- dated. The court disagreed with Labenz’ decision to subtract 100 percent of the debt from the valuation, because “a busi- ness, as an on-going concern, is not required to pay back all of its debt on a lump sum basis.” However, the court agreed with Labenz’ decision to subtract $23,000 for an interest pay- ment. The court adjusted Labenz’ valuation to $654,865. The court rejected Pofahl’s use of the asset approach and consid- ered her findings based on the income approach discussed in her first report. The court disagreed with Pofahl’s decision to include $128,176 for the note receivable. The court referenced the fact that the amount of the note receivable was actually $98,176 due to a payment made by Rafert, but then concluded that the note receivable should not be included under the income approach, because there is no reason to assume the note will be collected in one lump sum. The court subtracted the $128,176 note receivable from Pofahl’s original valua- tion of $753,138 to arrive at a value of $624,962. The court averaged the adjusted valuations of the two experts under the income approach and determined the value of A & R to be $639,914, as of March 31, 2017, with Cheryl’s share valued at $319,957. The court established a payment plan and entered judgment against both A & R and Rafert. The court found that “in the interest of equity, and in consideration of the circumstances surrounding the history of this litigation between the parties, [Cheryl] shall also be allowed to keep the Chevrolet Avalanche and the Ford pickup truck, which she currently has in her pos- session.” The court dismissed Cheryl’s petition to dissolve the corporation and ruled that she “shall no longer have any rights or status as a shareholder of the corporation, except the right to receive the amounts awarded by the Order of the Court.” A & R and Rafert timely appealed, and we granted their peti- tion to bypass. - 490 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 ASSIGNMENTS OF ERROR A & R and Rafert assign, restated, that the district court erred in (1) rendering judgment against A & R when it did not elect to purchase any shares, (2) valuing the corporation, and (3) awarding Cheryl two corporate vehicles without authoriza- tion under § 21-2,201(e). STANDARD OF REVIEW [1,2] A proceeding under the provisions of § 21-2,201 to determine the fair value of a petitioning shareholder’s shares of stock is equitable in nature. 1 An appellate court reviews an equitable action de novo on the record and reaches a con- clusion independent of the factual findings of the trial court; however, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the circumstance that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. 2 [3] Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determina- tion made by the court below. 3 ANALYSIS No Election to Purchase by A & R [4] In their first assignment of error, A & R and Rafert con- tend that the court erred by entering judgment against A & R, because the corporation did not elect to purchase any shares from Cheryl. To resolve this issue, we must interpret provi- sions of the Nebraska Model Business Corporation Act, Neb. Rev. Stat. §§ 21-201 through 21-2,232 (Cum. Supp. 2016). In 1 See Rigel Corp. v. Cutchall, 245 Neb. 118, 511 N.W.2d 519 (1994). 2 Id. 3 Id. - 491 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 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, ordi- nary, and popular sense. 4 Cheryl initiated this matter by petitioning the district court to dissolve A & R pursuant to § 21-2,197(a)(2). Section 21-2,201(a) states in part, “In a proceeding under subdivision (a)(2) of section 21-2,197 to dissolve a corporation, the corpo- ration may elect or, if it fails to elect, one or more sharehold- ers may elect to purchase all shares owned by the petitioning shareholder at the fair value of the shares.” Section 21-2,201(b) states that an election may be filed by “the corporation or one or more shareholders,” and it further states that “[a]ll share- holders who have filed an election or notice of their intention to participate in the election to purchase thereby become par- ties to the proceeding . . . .” Section 21-2,201(c) provides the parties 60 days from the filing of the first election to reach an agreement. If no agree- ment is reached, under § 21-2,201(d), any party may file an application for stay of the dissolution proceedings and for a determination by the court of the fair value of the petitioning shareholder’s shares as of the day before the date on which the petition was filed or as of such other date as the court deems appropriate under the circumstances. Section 21-2,201(e) pro- vides that upon determining the fair value of the shares, the court shall enter an order directing the purchase upon such terms and conditions as the court deems appropriate. The record shows that Cheryl filed a petition under § 21-2,197(a)(2) and is the petitioning shareholder as described under § 21-2,201. A & R and Rafert separately filed answers to the petition. A & R’s answer requested that the petition be dismissed. Rafert’s answer requested that the court determine a fair price of Cheryl’s interest and direct purchase on such 4 State ex rel. BH Media Group v. Frakes, 305 Neb. 780, 943 N.W.2d 231 (2020). - 492 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 terms and conditions as may be just. Rafert timely filed an election to purchase pursuant to § 21-2,201(b), which was not resisted. A & R did not file an election to purchase. The record indicates that the corporation was declared deadlocked 2 months prior to Rafert’s election to purchase. Based on the language of § 21-2,201 understood in its plain, ordinary, and popular sense, we determine that A & R was not a party to the election-to-purchase proceedings. A & R remained a party in the dissolution proceedings, but the court stayed and ultimately dismissed the dissolution proceedings, due to Rafert’s application under § 21-2,201(d). Because we deter- mine that A & R was not a party to the election-to-purchase proceedings under § 21-2,201, we conclude that the court lacked statutory authority to enter judgment against A & R once it determined the value of Cheryl’s shares. An appellate court has the duty to determine whether the lower court had the power, that is, the subject matter jurisdiction, to enter the judg- ment or other final order sought to be reviewed, and to vacate an order of the lower court entered without jurisdiction. 5 We vacate the judgment entered against A & R. Fair Value In Rafert’s next assignment of error, he contends that in its valuation of A & R, the court failed to consider debt and specu- lated as to the corporation’s value. In its order, the district court found Pofahl’s asset approach valuation to be “not helpful” and “hard to understand.” Additionally, the district court agreed with Rafert’s expert, Labenz, that because A & R uses a cash-based accounting sys- tem and was considered an ongoing concern, A & R should be valued according to the income approach rather than the asset approach. The court ultimately applied its modified income valuations of the two experts and split the difference. Rafert does not contend that the court erred in using the income 5 In re Estate of Tizzard, 14 Neb. Ct. App. 326, 708 N.W.2d 277 (2005). - 493 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 approach, nor does Cheryl contend that the court erred in not using Pofahl’s asset approach. As a result, the sole issue presented is whether the district court’s valuation is unrea- sonably high when considering Labenz’ and Pofahl’s reports and supporting testimony regarding the income approach. [5-7] The determination of the weight that should be given expert testimony is uniquely the province of the fact finder. 6 The trial court is not required to accept any one method of stock valuation as more accurate than another accounting procedure. 7 A trial court’s valuation of a closely held corpo- ration is reasonable if it has an acceptable basis in fact and principle. 8 [8] Section 21-2,201(d) states that upon application of any party, the court shall “determine the fair value of the peti- tioner’s shares.” This court has previously recognized that a proceeding to determine the “fair value” of corporate shares is equitable in nature. 9 While the Nebraska Model Business Corporation Act’s election-to-purchase provisions do not explicitly define “fair value,” the act’s provisions governing appraisal rights state that “fair value” means the value of the corporation’s shares determined “[u]sing customary and cur- rent valuation concepts and techniques generally employed for similar businesses in the context of the transaction requir- ing appraisal[.]” 10 In the context of valuing a dissenting shareholder’s stock, this court has observed that the “‘real objective is to ascertain 6 Fredericks Peebles v. Assam, 300 Neb. 670, 915 N.W.2d 770 (2018). 7 Bryan v. Bryan, 222 Neb. 180, 382 N.W.2d 603 (1986). 8 Detter v. Miracle Hills Animal Hosp., 269 Neb. 164, 691 N.W.2d 107 (2005). 9 See, Stoneman v. United Neb. Bank, 254 Neb. 477, 577 N.W.2d 271 (1998); Rigel Corp., supra note 1; Becker v. Natl. American Ins. Co., 202 Neb. 545, 276 N.W.2d 202 (1979). 10 § 21-2,171(4)(ii). - 494 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 the actual worth of that which the dissenter loses because of his unwillingness to go along with the controlling stockhold- ers, that is, to indemnify him.’” 11 Such a determination is to be based on all material factors and elements that affect value, given to each the weight indicated by the circumstances. 12 As most relevant here, such factors include, among others, the nature of the business and its operations, its assets and liabilities, its earning capacity, and the future prospects of the company. 13 Moreover, the stock is valued by assuming that the corporation will continue as a going concern and is not being liquidated. 14 Rafert argues that the district court was required to consider the $1,152,000 of corporate debt in valuing A & R, but failed to do so, and that the court’s decision not to depress the value of A & R was based on speculation. The record is clear that the district court’s valuation is based on the testimony of the experts and the supporting exhibits. Both experts agreed that under the income approach, the busi- ness must be valued as an ongoing concern, and that under the asset approach, the business is valued based on its assets and liabilities as if the business were to be sold and liqui- dated. The court considered Labenz’ decision to subtract the whole $1,152,000 of debt and stated that “subtracting 100% of the debt from the valuation estimate of the business does not comport with the overall theory of the Income Approach because a business, as an on-going concern, is not required to pay back all of its debt on a lump sum basis.” The court stated, “Of course, debt will have to be serviced on an ongo- ing basis, but on a much smaller scale than the total amount owed.” The court agreed with Labenz’ decision to subtract 11 Rigel Corp., supra note 1, 245 Neb. at 127, 511 N.W.2d at 524 (quoting Warren v. Balto. Transit Co., 220 Md. 478, 154 A.2d 796 (1959)). 12 See id. 13 Id. 14 Id. - 495 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 a $23,000 interest payment that was due, and it noted that Labenz accounted for ongoing interest payments when she cal- culated A & R’s normalized cashflow. Therefore, Rafert’s claim that the court failed to consider debt is not correct. Additionally, Rafert failed to prove that a lower valuation would be more accurate. The court noted that both experts “generously included” assumptions and limiting conditions in their opinions, which made arriving at an objective valuation of the corporation difficult. Labenz contradicted her own testi- mony when she strayed from the income approach by subtract- ing all of the corporation’s debt. The court was not engaging in speculation when it rejected Labenz’ blending of the income and asset methods as unpersuasive. The evidence indicates that the trucking and spraying opera- tions of the business have continued after Randy’s death and that there have been no efforts to liquidate. The experts agreed that A & R consistently generates significant cash each year. A & R’s personal banker testified that the company pays loans on an annual basis and that payments are made when they become due. He also stated that the company’s accounts receivable are collectable, which Rafert confirmed in his testimony. The court carefully considered the opinions of both experts, identified aspects of the opinions which are inconsistent with the income approach, adjusted each opinion accordingly, and determined a value based on the average of the two opinions. Upon our de novo review, just as the trial court did, we find that there is evidence in conflict on material issues of fact concerning the appropriate considerations in valuing Cheryl’s shares in A & R. As a result, we consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another. 15 The trial court’s val uation of A & R is reasonable and has an acceptable basis in 15 Fredericks Peebles, supra note 6. - 496 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 fact and principle. The court did not err in valuing Cheryl’s shares to be purchased by Rafert. This assignment of error is without merit. Vehicles Rafert’s final assignment of error is that the court improp- erly awarded Cheryl two corporate vehicles pursuant to § 21-2,201(e). Rafert contends that the award of the vehicles constituted equitable division of corporate property rather than a determination of fair value under § 21-2,201(d). Cheryl coun- ters that the award of the vehicles was proper, because under § 21-2,201(e), the court may award expenses to the petition- ing shareholder. The court heard testimony that prior to Randy’s death, Cheryl had in her possession two vehicles which were owned by the company. After Randy’s death, Cheryl retained pos- session of the vehicles despite Rafert’s request that these vehicles be returned. The vehicles were included in the equip- ment appraisal, which both experts utilized in valuing Cheryl’s shares in A & R. In its decree, the trial court found that “in the interest of equity, and in consideration of the circum- stances surrounding the history of this litigation between the parties, [Cheryl] shall also be allowed to keep the Chevrolet Avalanche and the Ford pickup truck, which she currently has in her possession.” Under § 21-2,201(e), when a corporation or shareholder makes an election to purchase a petitioning shareholder’s shares, the court is authorized to award expenses to the peti- tioning shareholder “[i]f the court finds that the petitioning shareholder had probable grounds for relief under subdivi- sion (a)(2)(i)(B) [illegal, oppressive, or fraudulent conduct] or (D) [misapplication or waste of corporate assets] of sec- tion 21-2,197 . . . .” The foregoing provision delineates two of the four situations in which a shareholder may seek corporate dissolution. We agree with Rafert that the court could not have awarded Cheryl expenses under § 21-2,201(e), - 497 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports ANDERSON v. A & R AG SPRAYING & TRUCKING Cite as 306 Neb. 484 because the court did not make the necessary findings under § 21-2,201(e) of probable grounds for relief. Cheryl’s peti- tion asserted causes of action for an accounting and breach of fiduciary duty, but the court dismissed Cheryl’s petition and made no findings that she established probable grounds for relief concerning dissolution. We further note that Cheryl failed to prove any claim for expenses, because her statement of expenses provided to the trial court was not received into evidence and does not appear in our record. Moreover, it is clear the court awarded Cheryl vehicles owned by the corporation, not litigation expenses. A court may have subject matter jurisdiction in a matter over a certain class of case, but it may nonetheless lack the authority to address a particular question or grant the particular relief requested. 16 Under the statutory procedure established by the Legislature for election-to-purchase proceedings under § 21-2,201, dis- cussed above, a corporation does not become a party to the proceedings until it files an election to purchase. A & R did not file an election to purchase and was not a party to the election-to-purchase proceedings. Consequently, the court lacked the authority to award corporate assets to Cheryl. The award of the corporate vehicles is therefore vacated. CONCLUSION For the foregoing reasons, we vacate the judgment entered against A & R and the award of vehicles to Cheryl. We other- wise affirm the judgment entered against Rafert. Affirmed in part, and in part vacated. Heavican, C.J., not participating. 16 See Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894 N.W.2d 221 (2017).	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/1713768/	447 So. 2d 987 (1984) SHERATON BAL HARBOUR and Insurance Company of North America, Appellants, v. John PLATIS, Employee, and the Division of Workers' Compensation, Appellees. No. AT-76. District Court of Appeal of Florida, First District. March 19, 1984. H. George Kagan of Miller, Hodges & Kagan, Deerfield Beach, for appellants. Mark L. Zientz of Williams & Zientz, Coral Gables, for appellees. THOMPSON, Judge. In this appeal from a compensation order requiring the employer and carrier (E/C) to pay the claimant's wife for attendant care services, the E/C contend that the services she performs for claimant are not the type of services for which compensation may be awarded. Alternatively, E/C argue that if her services are compensable, the award of $6.50 per hour for 56 hours per week is excessive. We agree with the latter contention and modify the order. Claimant sustained minor, but irreversible, brain damage in a February 19, 1982 compensable accident. Claimant was 73 years old at the time of the accident. As a result of his accident, claimant has a short-term memory deficit, and has lost 35 percent of the right peripheral vision in his right eye. Because of his memory problem, claimant becomes disoriented in unfamiliar places and cannot remember to take necessary medications. His vision loss and inability to orient himself render him unable to drive. Although claimant is able to take walks alone outside his home, he must restrict them to the confines of his own block, or risk becoming lost. The claimant has no other serious physical handicaps and is able to feed and dress himself, and to take care of his personal hygiene needs. The claimant is an intelligent individual and has experienced extreme anger and frustration as a result of his vision and memory loss problems. He occasionally vents his anger and frustration on his wife. Claimant's wife, who had retired some two years prior to claimant's accident, testified that she alone had been providing her husband with the care he needed and that she had to watch over her husband virtually all of the time. She indicated that she tries to take the claimant with her whenever she goes out, but that she occasionally leaves him alone at home if she expects to be away from home for only a brief period. The wife does virtually all of their cooking and maintains claimant's clothes for him. However, the wife is not required to watch *988 over her husband at night, and claimant customarily arises before she does each morning and prepares his own coffee and light breakfast. Claimant's doctor, who also treats claimant's wife, testified that claimant needs constant supervision and that he would not take his medication unless someone made him do so. The doctor indicated that the difficulty and strain of dealing with the claimant continuously and without respite, except at night, was "driving her up the wall" and was exacerbating her medical problems. He further testified that it would be a tremendous help to claimant's wife to have assistance in watching over the claimant, and that she should have "someone to take care of him, at least a couple of hours a day so she could get away." Evidence of the value of nursing and attendant care services was adduced through the testimony of the operator of a home health care service. This witness testified that she charged $6.50 per hour for furnishing nursing care, which included such services as the monitoring of vital signs, attending to the patient's personal hygiene, preparing meals, and driving patients to their doctors' offices or wherever they might need to go. For furnishing the services of a "sitter," who would do little more than stay with a patient and who would not do any driving or actual nursing, $5.00 per hour was charged. In the order appealed, the deputy commissioner (deputy) directed the E/C to pay claimant's wife for her services, at the rate of $52.00 for an eight hour shift, seven days per week. The deputy's finding that the claimant was in need of home attendant care services is supported by competent substantial evidence and is affirmed. However, the record is devoid of evidence to support an award of attendant care services at the rate of $6.50 per hour, for eight hours per day, seven days per week. The record affirmatively demonstrates that claimant does not need the type of nursing care services which are valued at $6.50 per hour. Rather, the evidence shows that claimant only needs that type of attendant care services which claimant's own witness valued at $5.00 per hour. Furthermore, the evidence demonstrates beyond question that a large portion of the time the claimant's wife devotes to assisting her husband is spent shopping, cooking, and performing other ordinary household services. Such services, when performed by a family member who resides with the claimant, are considered gratuitous. Pan American World Airways, Inc. v. Weaver, 226 So. 2d 801 (Fla. 1969); State Department of Agriculture and Consumer Services v. Handy, 413 So. 2d 808 (Fla. 1st DCA), pet. for rev. den., 419 So. 2d 1198 (Fla. 1982). The record in this case will not support an award of attendant care services exceeding four hours per day. Therefore, we modify the order to require the E/C to pay claimant's wife for her services at the rate of $5.00 per hour, for four hours per day, seven days per week. The portion of the order which prospectively permits the E/C to continue to pay the claimant's wife for her services or to provide alternative services through a licensed health care provider of its choosing, is affirmed. As modified, the order is AFFIRMED. JOANOS, J., concurs. SHIVERS, J., concurs and dissents. SHIVERS, Judge, concurring and dissenting: I respectfully concur and dissent. There is competent substantial evidence supporting an award of attendant care services for eight hours per day, as found by the deputy commissioner. I would affirm the award, in toto, except that I would modify the order to require the E/C to pay claimant's wife for her services at the rate of $5.00 per hour rather than $6.50 per hour.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3978732/	Appellant, a Mexican, insists that the long, continued and uninterrupted failure to call members of the Mexican or Spanish nationalities for jury service in Hudspeth County constitutes a denial to him of equal protection under the 14th Amendment to the Federal Constitution, and that we erred in reaching a contrary conclusion. In support of his contention, appellant relies upon Norris v. State of Alabama, 294 U.S. 587, 79 L. Ed. 1074, 55 S. Ct. 579; Smith v. State of Texas, 311 U.S. 128, 85 L. Ed. 84, 61 S. Ct. 164; and Hill v. State, of Texas,316 U.S. 400, 86 L. Ed. 1559, 62 S. Ct. 1159, and authorities therein cited. In the case of Norris v. State of Alabama, supra, said court announced the rule contended by appellant as being applicable to and controlling members of the Negro race. We have discovered no case wherein that court has applied the same rule to members of different nationalities. In the absence of a holding by the Supreme Court of the United States that nationality and race bear the same relation, within the meaning of the constitutional provision mentioned, we shall continue to hold that the statute law of this State furnishes the guide for the selection of juries in this State, and that, in the absence of proof showing express discrimination by administrators of the law; a jury so selected in accordance therewith is valid. We remain convinced of the correctness of our original conclusion, and the appellant's motion for rehearing is overruled. *Page 444 The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/1974880/	409 A.2d 573 (1979) In re Petition of the TOWN OF ST. JOHNSBURY TOWN SCHOOL DISTRICT and Town of St. Johnsbury. No. 307-78. Supreme Court of Vermont. November 5, 1979. Edward R. Zuccaro and John W. Hird, II, St. Johnsbury, of counsel, of Witters, Zuccaro, Willis & Lium, Inc., St. Johnsbury, for petitioners. M. Jerome Diamond, Atty. Gen., and Edwin L. Hobson, Jr., Asst. Atty. Gen., Montpelier, for respondent. Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned. LARROW, Justice. Petitioners, recipients of school aid from the State under the so-called "Miller Formula," took an appeal to the Caledonia Superior Court from a redetermination by the Commissioner of Taxes of the equalized fair market value of the taxable property in St. Johnsbury for the year 1976. The redetermination had been requested under the statutory procedures then in effect, and the appeal to the superior court was taken under V.R.C.P. 74. In the superior court, the parties submitted the case on briefs, no evidence being presented. That court upheld the redetermination (which had upheld the original determination). In so doing, it rejected the petitioners' contention that the procedural requirements of the Administrative Procedure Act (3 V.S.A. Ch. 25) were applicable and had not been followed. In a lengthy and well-reasoned opinion, it concluded that this was not a "contested case" within the meaning of the Act, no property rights being involved, but was in the nature of an inquiry to establish fair assessment *574 ratios for a legislative purpose. Petitioners appeal this ruling, as well as the denial of a motion to strike certain materials from the record as extraneous. The second asserted error is quickly disposed of. The ruling on the motion to strike was contained in a written order, dated and filed June 26, 1978. The notice of appeal to this Court specifies only the final order, dated and filed September 28, 1978, as the order appealed from. Since the June 26 order is not specified in the notice of appeal, it is not properly here for consideration. V.R.A.P. 3(d). To properly orient consideration of the main issue, it should be noted that all of the claimed errors at the redetermination hearing were procedural in nature; many of them undoubtedly due to the failure of the petitioners to be represented by an attorney. They claim a failure to advise them of this right, a claim which sounds most tenuous when made by municipal officials. They also claim many defects in the hearing procedure itself, in delegation of the hearing to a deputy commissioner, deficient findings, and the like. Not only do all the claims of error relate to procedural matters, they also share the common characteristic of not having been raised at the redetermination hearing. This failure we regard as fatal to the instant appeal. We have consistently held that we will not, absent extraordinary circumstances, consider any matters raised for the first time on appeal. University of Vermont v. Town of Mendon, 136 Vt. 400, 402, 392 A.2d 415, 416 (1978); State v. LaGoy, 136 Vt. 39, 42, 383 A.2d 604, 606 (1978). In short, petitioners are confronted with a dilemma. At the superior court level they had either a right to appellate review or to trial de novo, depending on whether or not this was a "contested case" within the meaning of the Administrative Procedure Act. In the posture of this case, we are not called upon to decide this question, and we do not do so. If the right is one of trial de novo, it was expressly waived, upon the record, by the petitioners at the outset of the trial proceedings. On the other hand, if the right was one of appellate review, as the State claims, the procedural errors, if any, at the redetermination hearing, were not reviewable at the superior court level because they had not been previously raised. University of Vermont v. Town of Mendon, supra; State v. LaGoy, supra. In either event, the appeal must fail, without the necessity of deciding whether any of the claimed errors were in fact prejudicial. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3849272/	Plaintiff brought an action against the defendant for damages based on the allegation that plaintiff was bitten by a dog of vicious propensities which defendant kept upon her premises. The affidavit of defense filed denied that the dog which inflicted the injuries was in the charge, custody and control of the defendant or that she well knew it was an animal of vicious propensities. At the conclusion of plaintiff's testimony a nonsuit was granted. Page 194 Plaintiff testified that the dog which bit her on the elbow and ankle on June 4, 1935, while entering the back door of defendant's home, was a Chow dog about 20 inches in length and 18 inches in height. She said she knew this dog as a pup about a year previously and that the dog "ate out of her hands," and that just before it bit her it was "friendly." Another witness testified that she visited the defendant's home in the latter part of May, 1935, and at that time a Chow dog jumped at her and gave her "a little tear in the right hand." This witness testified on cross-examination that when she lived on the third floor of defendant's house a year and a half before the dog bit the plaintiff, defendant had ablack dog and that the dog which bit the witness on May, 1935, was a red dog. She also testified that the dog which bit her was "bigger" than the dog which bit the plaintiff and that "Mr. Miller" (defendant's son) "took the [latter] dog with him." In its opinion the court below said: "It is very evident from the testimony in this case that the dog which bit the plaintiff was different from that which bit Mrs. Wittman, and the dog owned by the son of the defendant was not harbored on these premises. The son did not live with his mother at the time but apparently would bring his dog on occasion to his mother's home." When Mrs. Miller was asked on cross-examination if it was not "a fact that this same dog bit Mrs. Wittman that bit Miss Fink," she replied that she "didn't know." She admitted she had only one dog. Under the evidence in this case a compulsory nonsuit was called for. In Andrews v. Smith et ux., 324 Pa. 455, 459,188 A. 146, we said: "Animals such as horses, oxen and dogs are not beasts that are ferae natura, i. e., wild beasts, but are classed as mansuetae natura, i. e., tamed and domesticated animals, and their owners are not responsible for any vicious acts of theirs unless the owners have knowledge that they are likely to break away from their normal domestic nature and become vicious." Page 195 In the instant case the burden was upon the plaintiff to prove the averments that the defendant owned and harbored the dog which bit the plaintiff and that at that time defendant well knew that it was an animal of vicious propensities and was likely to become ferocious and uncontrollable. The equivocal testimony offered in behalf of the plaintiff fell far short of meeting this required burden. Even if it were established by the fair preponderance of the evidence that the dog that bit plaintiff's witness, Mrs. Wittman, was the same dog that bit plaintiff, the episode which Mrs. Wittman described would not be sufficient to give that dog a reputation of being vicious though Mrs. Wittman did testify that she was "afraid of the dog." Mere fear of a dog does not prove that the dog that excites the fear is vicious. Whether the "little tear" referred to by the witness was the result of the dog's viciousness or playfulness the evidence does not clearly disclose. In the case of Darby et al. v. Clare Food Relish Co., 111 Pa. Super. 537, 170 A. 387, it was established that the dog which caused the injury in that case had previously bitten two other persons and that notice thereof had been expressly given to the defendant. This court held in Mann v. Weiand, 81* Pa. 243, 254, that "one instance [of an attack by a dog] may show such unmistakable evidence of a vicious propensity as to make the owner of the dog, with notice, liable for any subsequent act of a similar character. The gist of the action for the subsequent misconduct of the dog, is for keeping it after knowledge of its vicious propensity." Plaintiff proved that she was bitten by a dogevidently harbored by defendant, but she did not prove that this dog had unmistakably vicious tendencies known to defendant. Therefore, she failed to make out a case. The judgment is affirmed. *Page 196	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/4553938/	18-1715 Lin v. Barr BIA Loprest, IJ A205 440 977 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 7th day of August, two thousand twenty. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 RAYMOND J. LOHIER, JR., 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 BAOGUI LIN, 14 Petitioner, 15 16 v. 18-1715 17 NAC 18 WILLIAM P. BARR, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Yevgeny Samokhleb, New York, NY. 24 25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 26 General; Holly M. Smith, Senior 27 Litigation Counsel; Christin M. 28 Whitacre, Trial Attorney, Office 29 of Immigration Litigation, United 1 States Department of Justice, 2 Washington, DC. 3 UPON DUE CONSIDERATION of this petition for review of a 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petition for review 6 is DENIED. 7 Petitioner Baogui Lin, a native and citizen of the 8 People’s Republic of China, seeks review of a May 21, 2018 9 decision of the BIA affirming a July 25, 2017 decision of an 10 Immigration Judge (“IJ”) denying Lin’s application for 11 asylum, withholding of removal, and relief under the 12 Convention Against Torture (“CAT”). In re Baogui Lin, No. A 13 205 440 977 (B.I.A. May 21, 2018), aff’g No. A 205 440 977 14 (Immig. Ct. N.Y. City Jul. 25, 2017). We assume the parties’ 15 familiarity with the underlying facts and procedural history. 16 Under the circumstances of this case, we have reviewed 17 the IJ’s decision as modified by the BIA. See Xue Hong Yang 18 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 19 Because the BIA assumed credibility, we assume credibility as 20 to past events and as to Lin’s subjective fear of future harm. 21 See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005). 22 The applicable standards of review are well established. See 23 8 U.S.C. § 1252(b)(4)(B); Y.C. v. Holder, 741 F.3d 324, 332 2 1 (2d Cir. 2013). 2 Absent past persecution, an alien may establish 3 eligibility for asylum by demonstrating a well-founded fear 4 of future persecution. 8 C.F.R. § 1208.13(b)(2); 5 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). 6 To do so, an applicant must show either a reasonable 7 possibility that he would be singled out for persecution or 8 that the country of removal has a pattern or practice of 9 persecuting similarly situated individuals. 8 C.F.R. 10 § 1208.13(b)(2)(iii); see In re A-M-, 23 I. & N. Dec. 737, 11 741 (BIA 2005) (pattern or practice of persecution is the 12 “systemic or pervasive” persecution of a group). “[T]o 13 establish eligibility for relief based exclusively on 14 activities undertaken after his arrival in the United States, 15 an alien must make some showing that authorities in his 16 country of nationality are (1) aware of his activities or (2) 17 likely to become aware of his activities.” Hongsheng Leng 18 v. Mukasey, 528 F.3d 135, 137 (2d Cir. 2008). 19 As evidence that Chinese authorities are aware of his 20 religious activities in the United States, Lin provided his 21 own statement and testimony, the statement and testimony of 22 a friend in the United States who claimed to have been 23 visiting his parents’ home in China when police raided it, 3 1 and unsworn letters from his cousin and father in China 2 stating that the Chinese authorities knew he had sent a Bible 3 from the United States. Lin was not able to give specific, 4 detailed testimony about Chinese police arresting his cousin. 5 He testified that she had moved away from his home province, 6 that he has not spoken to her in many years, and that he does 7 not know whether she still practices Christianity. He did 8 not know how many times police had come to his parents’ home, 9 because he has never asked his parents about it. His witness, 10 who testified that she had been visiting Lin’s parents in 11 China when people came to the home looking to arrest Lin, did 12 not know who the individuals were or how long they stayed. 13 She admitted she never had contact with Lin when they both 14 lived in China, does not have his contact information here in 15 the United States, and does not know the name of Lin’s parents 16 or siblings she visited in China. The agency reasonably 17 determined that, even assuming credibility, Lin’s testimony 18 and statement, and that of his witness, did not provide 19 specific evidence that the Chinese authorities remain 20 interested in Lin and his practice of Christianity. 21 As for the unsworn letters from Lin’s cousin and father 22 in China, we defer to the agency’s decision to afford them 23 little weight. See Y.C., 741 F.3d at 334; see also Hongsheng 4 1 Leng, 528 F.3d at 143. Further, Lin did not corroborate his 2 assertion that authorities are aware of his religious 3 practice, and thus the agency did not err in finding that 4 assertion speculative. See Y.C., 741 F.3d at 334; see also 5 Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) 6 (“In the absence of solid support in the record . . . [an 7 applicant’s] fear is speculative at best.”). 8 The agency also reasonably concluded that the evidence 9 and country conditions did not support Lin’s claim that there 10 is a pattern or practice of persecuting similarly situated 11 Christians in China. Lin testified that he practices his 12 religion by attending church, spending time with other 13 followers, and reading the Bible. The State Department’s 14 2015 International Religious Freedom Report states that there 15 are approximately 45 million Christians practicing in 16 unregistered churches in China and that authorities in some 17 areas allow unregistered churches to hold services “provided 18 they remained small in scale,” although authorities in other 19 areas target and close such churches. See Rep. at 3, 14. 1 20 It further reports that China’s State Administration for 21 Religious Affairs policy provides that “family and friends 1The report is available at https://2009- 2017.state.gov/documents/organization/256309.pdf. 5 1 have the right to meet at home for worship, including prayer 2 and Bible study, without registering with the government.” 3 Id. at 6. The country conditions evidence therefore 4 indicates that the religious activities Lin intends to 5 partake in are tolerated, at least in some areas. Moreover, 6 Lin testified he does not know where the underground churches 7 are in China or what area he would go to, that his parents 8 continue to read the Bible at home and have not been harmed 9 in Fujian province, and that his cousin may still practice 10 Christianity in Sichuan Province. Also, Lin testified that 11 he was not aware of specific instances of persecution of 12 Christians returning to China. 13 Given the large number of Christians practicing in 14 unregistered churches and the fact that the restrictions on 15 their activities varied by region, the agency did not err in 16 determining that Lin failed to demonstrate the systemic or 17 pervasive persecution of similarly situated Christians. See 18 8 C.F.R. § 1208.13(b)(2)(iii); see also Santoso v. Holder, 19 580 F.3d 110, 112 & n.1 (2d Cir. 2009) (upholding denial of 20 pattern or practice claim where evidence reflected that 21 violence was not nationwide and that Catholics in many parts 22 of Indonesia were free to practice their faith); Jian Hui 23 Shao v. Mukasey, 546 F.3d 138, 149, 169–70 (2d Cir. 2008) 6 1 (finding no error in the agency’s requirement that an 2 applicant demonstrate a well-founded fear of persecution 3 specific to his or her local area of China when persecutory 4 acts vary according to locality). Accordingly, the agency 5 did not err in finding that Lin failed to satisfy his burden 6 of proving a well-founded fear of future persecution. See 8 7 C.F.R. § 1208.13(b)(2). Because the agency reasonably found 8 that Lin failed to demonstrate the well-founded fear of 9 persecution needed for asylum, he “necessarily” failed to 10 meet the higher standards for withholding of removal and CAT 11 relief. Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010). 12 For the foregoing reasons, the petition for review is 13 DENIED. All pending motions and applications are DENIED and 14 stays VACATED. 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court 7	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4553939/	Case: 18-15276 Date Filed: 08/07/2020 Page: 1 of 18 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-15276 ________________________ D.C. Docket No. 2:15-cv-00957-KOB RONALD SELLERS, As assignee of Gary Gardner & Gary Gardner Builders, Inc., Plaintiff-Appellee, versus NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant, STEVE DURHAM, d.b.a. S. Durham Contracting, Defendant. ________________________ Appeal from the United States District Court for the Northern District of Alabama ________________________ (August 7, 2020) Case: 18-15276 Date Filed: 08/07/2020 Page: 2 of 18 Before WILSON, LAGOA, and ANDERSON, Circuit Judges. LAGOA, Circuit Judge: Ronald Sellers wanted a new home, so he hired Gardner Builders, Inc., to build it for him. Shortly after Sellers moved into the new home, construction defects began to appear. Three lawsuits later—involving one state court action and two separate federal actions—this appeal asks this Court to determine the preclusive effect of a judgment entered by a federal court exercising diversity jurisdiction on a nonparty to that earlier federal action. Nationwide Mutual Fire Insurance Co. (“Nationwide”) appeals both the district court’s order denying Nationwide’s motion in limine and the final judgment entered in favor of Ronald Sellers, as assignee of Gary Gardner and Gary Gardner Builders, Inc. (“Sellers/Gardner”). In its motion in limine, Nationwide sought to bar Sellers/Gardner from presenting evidence of when damages to Ronald Sellers’s (“Sellers”) home manifested based on the doctrine of issue preclusion. Nationwide argued that the issue had already been decided in an earlier federal court declaratory judgment action in which the federal court exercised diversity jurisdiction. When determining the preclusive effect of an earlier judgment rendered by a federal court exercising diversity jurisdiction, federal common law adopts the rules of issue preclusion applied by the State in which the rendering court sits. In this case, the district court was required to apply Alabama’s rules of issue preclusion. Because 2 Case: 18-15276 Date Filed: 08/07/2020 Page: 3 of 18 the district court instead applied a federal rule of issue preclusion and that federal rule is not substantively similar to Alabama’s rule on nonparty issue preclusion, we reverse the district court’s order denying Nationwide’s motion in limine, vacate the final judgment in favor of Ronald Sellers, as assignee of Sellers/Gardner, and remand for further proceedings. I. FACTUAL AND PROCEDURAL HISTORY As noted above, this appeal involves the application of nonparty issue preclusion within the context of three proceedings—a consent judgment obtained in an action brought in an Alabama state court (the “state court case”); a federal declaratory judgment action rendered in an Alabama district court exercising diversity jurisdiction (the “declaratory judgment action”); and the instant case, brought under Alabama’s “direct action” statute, Alabama Code section 27-23-2, in an Alabama district court (the “direct action”). The relevant factual and procedural history of the three cases is as follows. On August 17, 2004, Sellers entered into a contract with Gary Gardner and Gardner Builders, Inc. 1 (collectively, “Gardner”) for the construction of a home. Gardner hired subcontractor Steve Durham d/b/a S. Durham Contracting (“Durham”) to perform footing and foundation work on the home. Sellers moved 1 Although the instant case was styled as “Gary Gardner Builders, Inc.,” there is no dispute that “Gardner Builders, Inc.” is the same entity. 3 Case: 18-15276 Date Filed: 08/07/2020 Page: 4 of 18 into the home on June 29, 2005, and soon began noticing construction defects with the home. Relevant to this appeal, Nationwide issued a contractors policy of insurance, policy no. 77 AC 843-676-3001 (the “policy”), to Durham with a policy period from December 20, 2006, to December 20, 2007. In the state court case, Sellers filed suit against Gardner and Durham in the Circuit Court of Jefferson County, Alabama, in 2008. On August 19, 2009, Gardner Builders, Inc., filed a cross complaint against Durham alleging that if it was found liable for the injuries alleged in Sellers’s complaint, then Durham was responsible for the damages.2 Sellers and Gardner subsequently entered into a settlement agreement and assignment in October 2011. In the assignment, Sellers agreed to release all claims against Gardner in exchange for $100,000 and Gardner’s assignment to Sellers of any and all claims or causes of action Gardner had, or may have, to recover against Durham. The following month, Sellers/Gardner filed an amended cross complaint against Durham. On July 15, 2011, while the state court case was pending, Nationwide filed a declaratory judgment action against Durham (its insured) and Sellers in the United States District Court for the Northern District of Alabama. Relevant here, the district court exercised diversity jurisdiction in the declaratory judgment action. Nationwide 2 Steve Durham filed a petition for bankruptcy on July 2, 2010, and was discharged from bankruptcy on October 8, 2010. 4 Case: 18-15276 Date Filed: 08/07/2020 Page: 5 of 18 sought a determination of its obligation to defend and indemnify Durham for Sellers’s claims in the state court case. Specifically, Nationwide argued that the causes of action and damages alleged by Sellers were not covered under the terms of the policy for several reasons: 1) the allegations did not constitute an “occurrence” under the policy; 2) the damages arose before the inception of the policy, which was effective December 20, 2006, to December 20, 2007; 3) multiple exclusions applied; and 4) the policy did not afford coverage for economic damages. Nationwide filed a motion for summary judgment, and Sellers filed a response to Nationwide’s motion. On August 6, 2012, the magistrate judge entered a report and recommendation in the declaratory judgment action recommending that the district court grant Nationwide’s motion for summary judgment against Sellers because, among other reasons, the damages to Sellers’s home allegedly caused by Durham’s faulty work manifested in April 2006, prior to the inception of Nationwide’s policy period. On August 27, 2012, the district court adopted the report and recommendation and entered a final judgment providing that “Nationwide . . . has no obligation to defend or indemnify either of the defendants with reference to the subject matter of this action.” After the district court entered final judgment in Nationwide’s favor in the declaratory judgment action, Sellers/Gardner and Durham entered into a consent 5 Case: 18-15276 Date Filed: 08/07/2020 Page: 6 of 18 judgment in the state court case in October 2013. The consent judgment provided that “judgment is entered in favor of Plaintiff Ronald Sellers, individually and as assignee of Gary Gardner and Gardner Builders (Plaintiff) and against Steve Durham, individually and doing business as S. Durham Contracting (Defendant) in the total amount of $250,000.” On May 12, 2015, Sellers/Gardner filed the instant direct action against Nationwide and Durham pursuant to Alabama Code section 27-23-2, Alabama’s “direct action” statute, seeking to hold Nationwide liable for the consent judgment entered in favor of Sellers/Gardner and against Durham in the state court case. Nationwide filed an answer denying that it was under any obligation to satisfy the consent judgment and asserting affirmative defenses, including a second affirmative defense of estoppel, res judicata, collateral estoppel, claim preclusion, issue preclusion, and law of the case. Before trial, Nationwide filed a motion in limine seeking to preclude Sellers/Gardner from introducing evidence that the effects of Durham’s defective work manifested sometime after April 2006. Specifically, Nationwide argued that “the issue of when Durham’s defective work caused resulting damages has already been litigated” to judgment between the “same parties” in the declaratory judgment action. Sellers/Gardner also filed a motion in limine seeking to preclude Nationwide from offering any evidence regarding the declaratory judgment action. 6 Case: 18-15276 Date Filed: 08/07/2020 Page: 7 of 18 The matter proceeded to trial on September 10, 2018. Prior to selecting a jury, the district court granted Sellers/Gardner’s motion in limine and denied without prejudice Nationwide’s motion in limine. The trial concluded the next day, and the jury rendered a verdict in Sellers/Gardner’s favor. In a special verdict form, the jury found that “Durham’s faulty workmanship caused property damage to parts of Mr. Sellers’ home, other than to the footings themselves,” and that “the property damage caused by Mr. Durham’s work manifest[ed] between December 20, 2006, and December 20, 2007.” After the verdict, the district court requested that Nationwide file a motion to reconsider its motion in limine. On September 19, 2018, Nationwide filed its motion to reconsider. Nationwide argued that the district court erred by denying its motion in limine because the issue of whether the damages to Sellers’s home manifested during the policy period was previously litigated in the declaratory judgment action and decided in Nationwide’s favor. Nationwide asserted that issue preclusion applied even though Gardner did not participate in the declaratory judgment action because the assignment between Sellers and Gardner in the state court case established “complete privity” between them in the declaratory judgment action. Sellers/Gardner filed a response to Nationwide’s motion to reconsider arguing, in part, that while issue preclusion bars an assignee from relitigating an issue that the 7 Case: 18-15276 Date Filed: 08/07/2020 Page: 8 of 18 assignor litigated in a prior case, here, Gardner was the assignor, not the assignee, and issue preclusion therefore did not apply. On November 28, 2018, the district court issued its memorandum opinion denying Nationwide’s motion in limine. In addressing Nationwide’s issue preclusion argument, the district court held that federal rules of issue preclusion applied: In issue preclusion, the court applies the preclusion law of the same legal system that determined the underlying case. See CSX Transp., Inc. v. Bhd. of Maint. of Way Emps., 327 F.3d 1309, 1316 (11th Cir. 2003). Because the underlying case here was decided in federal district court, federal preclusion law applies. The district court focused its analysis on whether the party to be precluded, i.e., Gardner, had a full and fair opportunity to litigate the issue in the declaratory judgment action and assumed, without deciding, that the same issue was raised, actually litigated, and essential to the judgment reached in the declaratory judgment action. The district court found that “privity did not exist in the proper configuration between the parties during the original declaratory judgment litigation.” That same day, the district court entered an order granting the motion to reconsider but denying the motion in limine. Subsequently, on February 6, 2019, the district court entered final judgment in favor of Sellers/Gardner and against Nationwide in the amount of $250,000. This appeal ensued. 8 Case: 18-15276 Date Filed: 08/07/2020 Page: 9 of 18 II. STANDARD OF REVIEW “Orders denying motions in limine are reviewed for abuse of discretion.” Luxottica Grp., S.p.A. v. Airport Mini Mall, LLC, 932 F.3d 1303, 1311 (11th Cir. 2019). “Under that standard, we will reverse a district court’s ruling ‘only if the court applie[d] an incorrect legal standard, follow[ed] improper procedures in making the determination, or ma[d]e[ ] findings of fact that are clearly erroneous.’” Id. (alterations in original) (quoting Kropilak v. 21st Century Ins. Co., 806 F.3d 1062, 1067 (11th Cir. 2015)). “A court applies the wrong legal standard when it analyzes evidence under the wrong test or applies a test to evidence that the test should not apply to.” Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068 (11th Cir. 2014). This Court reviews a district court’s ruling on issue preclusion, also known as collateral estoppel, 3 under a de novo standard of review. Lops v. Lops, 140 F.3d 927, 937 n.10 (11th Cir. 1998). III. ANALYSIS “Issue preclusion . . . bars ‘successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context of a different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New Hampshire v. Maine, 532 U.S. 742, 3 The terms “issue preclusion” and “collateral estoppel” have the same meaning. The use of the term “issue preclusion,” however, has become prevalent in recent caselaw as it creates less confusion regarding its application. Taylor v. Sturgell, 553 U.S. 880, 892 n.5 (2008). 9 Case: 18-15276 Date Filed: 08/07/2020 Page: 10 of 18 748 (2001)). “A person who was not a party to a suit generally has not had a ‘full and fair opportunity to litigate’ the claims and issues settled in that suit.” Id. Thus, there is a general rule against the application of issue preclusion to nonparties to the prior litigation. Id. at 892–93. Although there are various exceptions to the general rule against nonparty preclusion, see, e.g., id. at 893–95, for the purposes of our discussion, Alabama law provides for the application of issue preclusion where a nonparty was in privity with a party to the prior action, Leon C. Baker, P.C. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 821 So. 2d 158, 165–66 (Ala. 2001). On appeal, Nationwide argues that the district court erred in denying its motion in limine because Gardner’s assignment to Sellers in the state court case established privity between Sellers and Sellers/Gardner such that the general bar against nonparty issue preclusion does not apply. Specifically, Nationwide contends that the district court failed to consider the assignment within the context of Alabama’s “expansive definition of privity, which includes not only a successive interest to the same property right, but also ‘an identity of interest in the subject matter of litigation,’” when it denied Nationwide’s motion in limine. Wood v. Kesler, 323 F.3d 872, 880 n.10 (11th Cir. 2003) (quoting Leon C. Baker, P.C., 821 So. 2d at 165). In response, Sellers/Gardner argues that Alabama’s rules of privity do not apply and cites to this Court’s opinion in CSX Transportation, Inc. v. 10 Case: 18-15276 Date Filed: 08/07/2020 Page: 11 of 18 Brotherhood of Maintenance of Way Employees, 327 F.3d 1309 (11th Cir. 2003), which the district court relied on in denying the motion in limine. In Brotherhood of Maintenance of Way Employees, this Court applied federal rules of issue preclusion to a judgment entered by a federal court exercising federal question jurisdiction and stated that “[w]e now hold that federal preclusion principles apply to prior federal decisions, whether previously decided in diversity or federal question jurisdiction.” Id. at 1316. Subsequently, however, this Court decided CSX Transportation, Inc. v. General Mills, Inc., 846 F.3d 1333 (11th Cir. 2017), in which this Court stated that while “federal common law determines the preclusive effect of an earlier judgment against a party,” in applying federal common law, we must “adopt[] the state rule of collateral estoppel to determine the preclusive effect of a judgment of a federal court that exercised diversity jurisdiction.” Id. at 1335, 1337. In reconciling divergent precedent from this Court on the issue, we held “that federal common law borrows the state rule of collateral estoppel to determine the preclusive effect of a federal judgment where the court exercised diversity jurisdiction.” Id. at 1340; see also Taylor, 553 U.S. at 891 n.4 (“For judgments in diversity cases, federal law incorporates the rules of preclusion applied by the State in which the rendering court sits.”). We also specifically found that the statement in Brotherhood of Maintenance of Way Employees that “federal preclusion principles apply to prior federal decisions . . . previously decided in diversity,” 327 F.3d at 11 Case: 18-15276 Date Filed: 08/07/2020 Page: 12 of 18 1316, was dicta with no precedential effect as it was unnecessary to justify the decision reached in that case. Gen. Mills, Inc., 846 F.3d at 1338–39. An action under the Declaratory Judgment Act, “does not, of itself, confer jurisdiction upon the federal courts”; therefore, “a suit brought under the Act must state some independent source of jurisdiction, such as the existence of diversity or the presentation of a federal question.” Borden v. Katzman, 881 F.2d 1035, 1037 (11th Cir. 1989). Because the district court in the prior declaratory judgment action exercised diversity jurisdiction, the district court here was required to determine the preclusive effect of that earlier federal judgment based on the rules of issue preclusion from the State in which the rendering court sat—in this case, Alabama. Thus, the district court erred here when it failed to do so. Our determination that the district court erred in failing to apply Alabama’s rule of issue preclusion, however, does not end our analysis. We must also determine whether the district court nonetheless may have applied the correct legal standard if the rules of issue preclusion are substantively the same under Alabama law and federal law such that the holding would remain the same. Cf. SFM Holdings, Ltd. v. Banc of Am. Sec. LLC, 764 F.3d 1327, 1337 (11th Cir. 2014) (stating that the Court did not need to resolve whether federal or Florida rules of preclusion applied because “[a] comparison between Florida rules and federal rules governing claim and issue preclusion reveals that the relevant principles are largely identical”). 12 Case: 18-15276 Date Filed: 08/07/2020 Page: 13 of 18 A review of the relevant case law demonstrates that the Alabama rules of nonparty issue preclusion—specifically, the application of privity to justify nonparty issue preclusion—are not substantively the same as the federal rules of nonparty issue preclusion. Under Alabama law, “[t]he elements of [issue preclusion] are: (1) an issue identical to the one litigated in the prior suit; (2) that the issue was actually litigated in the prior suit; (3) that resolution of the issue was necessary to the prior judgment; and (4) the same parties.” Stinnett v. Kennedy, 232 So. 3d 202, 220 (Ala. 2016) (quoting Dairyland Ins. Co. v. Jackson, 566 So. 2d 723, 726 (Ala. 1990)). The “same parties” requirement, however, is not “strictly enforced if the party raising the defense of [issue preclusion], or the party against whom it is asserted, is in privity with a party to the prior action.” Dairyland Ins. Co., 566 So. 2d at 726. Therefore, although not a party to the prior suit, under Alabama law, a person in privity with a party to the previous litigation may be precluded from relitigating the same issue. See Malfatti v. Bank of Am., N.A., 99 So. 3d 1221, 1225 (Ala. 2012) (“For a prior judgment as to an issue to have a preclusive effect on a party’s later relitigation of that issue, it must be shown that the person against whom the preclusive effect is sought, or a person in privity with that person, was a party to the prior litigation in which the issue was decided and that the issue for which preclusion is sought was actually litigated in the prior action.” (quoting McDaniel v. Harleysville Mut. Ins. Co., 84 So. 3d 106, 111–12 (Ala. Civ. App. 2011))). 13 Case: 18-15276 Date Filed: 08/07/2020 Page: 14 of 18 Under Alabama law, “[t]he test for determining if two parties are in privity focuses on identity of interest” and this “reliance on the identity-of-interest test for determining the existence of privity extends at least as far back as 1853.” Dairyland Ins. Co., 566 So. 2d at 726 (citations omitted)) “The term ‘privity’ has not been uniformly defined with respect to [issue preclusion]. . . . [T]he Alabama cases seem to resolve the question on an ad hoc basis in which the circumstances determine whether a person should be bound by or entitled to the benefits of a judgment.” Hughes v. Martin, 533 So. 2d 188, 191 (Ala. 1988) (quoting Joseph Francis Danner, Issue Preclusion in Alabama, 32 Ala. L. Rev. 500, 520–21 (1981)); accord Leon C. Baker, P.C., 821 So. 2d at 165. Significantly, this Court has explained that Alabama “follows an expansive definition of privity, which includes not only a successive interest to the same property right, but also ‘an identity of interest in the subject matter of litigation.’” Wood, 323 F.3d at 880 n.10 (finding that defendant-state trooper in a § 1983 action shared an identity of interest with the State of Alabama in the plaintiff’s prior prosecution and, therefore, privity was established); accord Hunter v. City of Leeds, 941 F.3d 1265, 1274 (11th Cir. 2019) (“Alabama’s expansive definition of privity ‘includes not only a successive interest to the same property right, but also “an identity of interest in the subject matter of [the] litigation.”’” (alteration in original) (quoting Wood, 323 F.3d at 880 n.10)); see also Coyle v. Ala. Power Co., 611 So. 14 Case: 18-15276 Date Filed: 08/07/2020 Page: 15 of 18 2d 1019, 1021 (Ala. 1992) (“Where there is no identity of interest, privity does not exist.”); Franklin v. Dean, No. 2:11-CV-683-WKW, 2013 WL 1867105, at *8 (M.D. Ala. May 3, 2013) (applying Alabama law of issue preclusion to find an attorney was in privity with a client in prior litigation as the attorney and client “shared the same interest in the state-court action because each had a stake in obtaining a garnishment judgment against” plaintiff’s “bank account for payment of the money judgment”); City of Montgomery v. Vaughn, 138 So. 3d 996, 1004 (Ala. Civ. App. 2013). In contrast, under the federal common law rules of nonparty preclusion privity cannot be based solely on an identity of interest. In Taylor, the Supreme Court in clarifying nonparty preclusion articulated the following six categories of exceptions to nonparty preclusion under federal common law: (1) the nonparty agreed to be bound by the litigation of others; (2) a substantive legal relationship existed between the person to be bound and a party to the judgment; (3) the nonparty was adequately represented by someone who was a party to the suit; (4) the nonparty assumed control over the litigation in which the judgment was issued; (5) a party attempted to relitigate the issues through a proxy; and (6) a statutory scheme foreclosed successive litigation by nonlitigants. 533 U.S. at 892–895. The Supreme Court in Taylor, however, expressly rejected the virtual representation exception to the rule against nonparty preclusion. Id. at 904. 15 Case: 18-15276 Date Filed: 08/07/2020 Page: 16 of 18 Subsequently, in Griswold v. County of Hillsborough, 598 F.3d 1289, 1293 (11th Cir. 2010), this Court affirmed the district court’s finding that Griswold was in privity with two companies for which he was the president and sole shareholder such that Griswold’s claims under 42 U.S.C. §§ 1981, 1983, and 1985 were barred under the doctrine of res judicata by a previous judgment against the companies. Although the district court had found that Griswold and the companies were in privity because their interests were “so closely aligned” that the companies were Griswold’s “virtual representative” in the previous litigation, Griswold, 598 F.3d at 1292, we did not affirm on that basis. This Court explained that “[i]n this Circuit, ‘[t]he doctrine of virtual representation provide[d] in essence that “a person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative.”’” Id. (second and third alterations in original) (quoting EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1287 (11th Cir. 2004)). We noted, however, that because the Supreme Court in Taylor disapproved of the theory of virtual representation for purposes of federal common law nonparty issue preclusion, “a court may no longer find privity based solely on a similarity of interests.” Griswold, 598 F.3d at 1293. Nonetheless, this Court affirmed the district court’s finding that Griswold was in privity with the companies based on one of the established exceptions to the federal common law rule against nonparty preclusion articulated in Taylor—that privity was established 16 Case: 18-15276 Date Filed: 08/07/2020 Page: 17 of 18 because Griswold assumed control of the litigation. Id. at 1292–93. Therefore, unlike Alabama’s expansive view of privity, federal common law rules of issue preclusion do not permit a finding of privity based solely on similar or closely aligned interests, and therefore are not substantively similar to Alabama’s rule on this particular question. Given the above principles, the district court applied the incorrect legal standard in determining whether Sellers and Sellers/Gardner were in privity. Here, the district court applied federal rules of nonparty issue preclusion in determining the preclusive effect of the declaratory judgment on Sellers/Gardner’s claim under the direct-action statute. Specifically, the district court relied on Miller’s Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312 (11th Cir. 2012), a trademark case arising under federal question jurisdiction and applying federal rules of issue preclusion, and concluded that privity did not exist in the proper configuration between Sellers, as assignee, and Gardner, as assignor. Because the declaratory judgment action arose in diversity, however, the district court was required to apply Alabama’s rules of nonparty issue preclusion in determining whether privity existed between Sellers and Sellers/Gardner in the declaratory judgment action. See Gen. Mills, Inc., 846 F.3d at 1340. Accordingly, because the federal rules and Alabama’s rules of nonparty issue preclusion in this context are not substantively similar, we hold that the district court applied the incorrect legal 17 Case: 18-15276 Date Filed: 08/07/2020 Page: 18 of 18 standard and thereby abused its discretion when it denied Nationwide’s motion in limine. IV. CONCLUSION Because the district court applied the incorrect legal standard in denying Nationwide’s motion in limine, we vacate the final judgment and remand for the district court to apply Alabama’s rules of issue preclusion to determine the issue of privity in the first instance. See id.at 1340 (“Whether parties were in privity is a factual question that should be decided in the first instance by the district court.”); see also Griswold, 598 F.3d at 1292 (stating that “whether a party is in privity with another for preclusion purposes is a question of fact” (quoting Pemco Aeroplex, Inc., 383 F.3d at 1285)). We express no opinion on the ultimate merits of Nationwide’s argument as to privity. VACATED and REMANDED for further proceedings consistent with this opinion. 18	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/4553941/	NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2349-16T1 SERGEANT FIRST CLASS FRANK CHIOFALO, a member of the New Jersey State Police (Badge No. 4772), Plaintiff-Respondent/ Cross-Appellant, v. STATE OF NEW JERSEY, DIVISION OF STATE POLICE OF THE STATE OF NEW JERSEY, and DEPARTMENT OF LAW AND PUBLIC SAFETY, Defendants-Appellants/ Cross-Respondents, and ROBERT CUOMO and JOSEPH R. FUENTES, Defendants. ____________________________ Argued April 26, 2018 – Decided June 21, 2018 Remanded by Supreme Court July 16, 2019 Reargued telephonically May 18, 2020 – Decided August 7, 2020 Before Judges Rothstadt, Moynihan and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0049-13. Adam Robert Gibbons, Deputy Attorney General, argued the cause for appellant/cross-respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Adam Robert Gibbons, on the briefs). George T. Doggett argued the cause for respondent/cross-appellant. PER CURIAM In Chiofalo v. State, 238 N.J. 527 (2019) (Chiofalo II), the New Jersey Supreme Court affirmed in part, and reversed and remanded in part, our earlier determination that the jury verdict entered in this matter in favor of former New Jersey State Trooper, plaintiff Frank Chiofalo, had to be vacated, and the earlier denial of summary judgment to defendants, State of New Jersey, Division of State Police of the State of New Jersey, Department of Law and Public Safety, 1 Robert Cuomo, and Joseph R. Fuentes, had to be reversed, because plaintiff did 1 As observed by the Supreme Court, the matter improperly identified the state agency as the Division of Public Safety. Chiofalo II, 238 N.J. at 527 n.1. A-2349-16T1 2 not establish a prima facie entitlement to relief under the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. As the Court observed, the appellate court determined that Chiofalo failed to identify at the summary judgment stage any law or regulation that he believed [his supervisor,] Cuomo violated in allegedly ordering Chiofalo to destroy documents. Nor, in the court's view, did Chiofalo provide legal support for his claim that misreporting vacation time violate[d] a clear mandate of public policy. [Chiofalo II, 238 N.J.at 537.] The Supreme Court affirmed our decision as to plaintiff's fraudulent timekeeping allegations but reversed our reversal of the denial of summary judgment as to plaintiff's claim relating to his refusal to destroy documents . Id. at 531, 546. The Court remanded the matter for our "consideration of defendants' unaddressed appellate issues." Id. at 531. Those issues include the same arguments defendants raised as to the entry of summary judgment about plaintiff's failure to establish a prima facie claim under CEPA, except for the issue resolved by the Court as to defendants' conduct violating a law or rule, 2 2 As the Court stated, to establish a prima facie claim, a plaintiff must demonstrate that: A-2349-16T1 3 but are now limited to plaintiff's proofs at trial. The other unaddressed issues include whether: (1) [P]laintiff's testimony alone was insufficient to prove his economic damages; (2) the court erred in permitting plaintiff to testify as to future wage loss when he voluntarily quit his job; and (3) it was error for the trial court to instruct the jury on punitive damages because defendants' conduct was not egregious. In his cross-appeal, plaintiff argues that the trial court's award of counsel fees only accounted for the time he spent in court. [Chiofalo v. State, No. A-2349-16 (App. Div. June 21, 2018) (Chiofalo I) (slip op. at 3).] We now address those issues. (1) [H]e or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle- blowing activity and the adverse employment action. [Id. at 541 (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003)).] A-2349-16T1 4 I. A. The facts underlying plaintiff's CEPA claims and the matter's procedural history were set forth in the Court's and our earlier opinions. See Chiofalo II, 238 N.J. at 531-37; Chiofalo I, slip op. at 4-8. We need not repeat them at length here.3 Instead, we limit our recitation to those facts pertinent to our discussion of each of the previously unaddressed issues. 4 Unlike our earlier opinion that addressed the issue of summary judgment, we consider the parties' contentions now in the context of the trial court's denials of defendants' post-trial motions for a judgment notwithstanding the verdict (J.N.O.V.) under Rule 4:40-2 and for remittitur or a new trial under Rule 4:49- 1(a). As to the motion for J.N.O.V., defendants argued that plaintiff failed to prove each element of a CEPA claim. Specifically, defendants contended that plaintiff's supervisor, Cuomo, asking plaintiff to destroy documents did not 3 According to defendants, "[t]he facts elicited at trial were nearly identical to the facts supporting [d]efendants' motion for summary judgment." 4 We allowed for supplemental briefing on remand. In response, defendants made a submission on January 10, 2020, indicating that they would be relying on their previously filed appellate brief and only focusing on those arguments that this court previously did not consider. Plaintiff submitted a supplemental brief. A-2349-16T1 5 constitute a violation of CEPA, as there were various copies of the documents and the contents of the documents were public knowledge. They also argued that this was not a whistle-blowing act, plaintiff's lack of promotion was not pretextual, plaintiff's transfer to Netcong was both temporary and advantageous, his loss of designation was not retaliatory, and therefore, any actions against plaintiff were "the simple realities of working at the State Police." On the motion for a new trial or in the alternative, remittitur, among other contentions, defendants argued that it was improper for the trial court to have barred testimony relating to why plaintiff was transferred. As to remittitur, defendants argued that the jury was not provided with evidence necessary to determine the amount of damages to which plaintiff was entitled, the jury should not have been instructed about future wage loss as plaintiff did not have an expert testify, there was no evidence as to how plaintiff was constructively discharged, and punitive damages should not have been allowed as Cuomo's actions were not "egregious." They further asserted that the award of future lost earnings should be offset to reflect amounts already received and further reduced to reflect the present-day value. In response to defendant's Rule 4:40-2 motion, the trial court concluded that "[t]he elements of the CEPA claim founded by the jury neither fail [ed] as a A-2349-16T1 6 matter of law, nor [fell] contrary to the weight of the evidence." The court cited to plaintiff's reasonable belief that "Cuomo was asking to cover up documents," regardless of the number of copies that were available at the time; plaintiff's refusal to destroy the documents was "sufficient . . . to constitute a whistle[- ]blowing act"; "defendant[s'] acts of transferring plaintiff, stripping [him] of his designation of [S]ergeant [M]ajor and denying him of his promotion constituted an adverse employment action"; and that there was evidence of a causal connection between plaintiff's whistle-blowing act and the adverse actions taken against him afterwards. On the motion for a new trial or remittitur, the trial court held there was "no clear and convincing proof that the verdict constitute[d] a miscarriag e of justice as reasonable minds could have reached the same verdict." The trial court found it was "clear that the jury must have taken into consideration that [plaintiff] was getting a pension and award[ed] the $10,000 a year difference that he would have gotten if he had been promoted and sta[yed] employed." The trial court did not find that the jury's award was "tainted in any way" and the "jury used their discretion in viewing the plaintiff's claim sympathetically." The issues on appeal, "may [therefore] be simply characterized as: (1) [W]hether the evidence, together with all legitimate inferences, may sustain a A-2349-16T1 7 judgment in favor of defendant[s], R. 4:40-2(b); or (2) whether the jury verdict was 'a miscarriage of justice under the law' to warrant a new trial, R. 4:49-1(a)." Judge v. Blackfin Yacht Corp., 357 N.J. Super. 418, 423-24 (App. Div. 2003). "The standard for J.N.O.V. is the same as for involuntary dismissal at the close of evidence under [Rule] 4:37-2. The 'judicial function . . . is quite a mechanical one.'" Id. at 424 (alteration in original) (citation omitted) (quoting Dolson v. Anastasia, 55 N.J. 2, 5 (1969)). Motions brought pursuant to Rule 4:40-2 are governed by the following evidential standard: [I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied . . . . [Filgueiras v. Newark Pub. Sch., 426 N.J. Super. 449, 455-56 (App. Div. 2012) (alterations in original) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)).] In our review of the trial court's decision on such motions, we apply the same standard. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005); Filgueiras, 426 N.J. Super. at 456; Judge, 357 N.J. Super. at 424. "Neither the trial [court] nor [this] court[, as a reviewing court,] is concerned with the weight, worth, nature or extent of evidence . . . ." Polyard v. Terry, 160 N.J. Super. 497, 505-06 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979). "A [court] is not to A-2349-16T1 8 consider 'the worth, nature or extent (beyond a scintilla) of the evidence,' but only review 'its existence, viewed most favorably to the party opposing the motion.'" Lechler v. 303 Sunset Ave. Condo. Ass'n, 452 N.J. Super. 574, 582 (App. Div. 2017) (quoting Dolson, 55 N.J. at 5-6); Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 572 (2010). In our review, we are guided by the principle that the factfinder's determination is "entitled to very considerable respect" and "should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination." Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977). However, despite our hesitancy to interfere with a jury's verdict, granting a motion under Rule 4:40-2 is appropriate where at trial, plaintiff fails to establish a prima facie claim to relief. As the Court stated in Brill v. Guardian Life Ins. of Am., 142 N.J. 520, 536-37 (1995), a dismissal under . . . Rule 4:40-2 or for failure to allege or prove a prima facie case, does not unduly intrude into the province of the jury. In those instances, there simply is no issue to be decided by a jury based on the evidence. A jury resolves factual, not legal, disputes. If a case involves no material factual disputes, the court disposes of it as a matter of law by rendering judgment in favor of the moving or non-moving party on the issue of liability or damages or both. A-2349-16T1 9 In considering a Rule 4:49-1 motion for a new trial, a different standard is applied, and the "motion . . . may be granted, . . . although the state of the evidence would not justify a J.N.O.V." Judge, 357 N.J. Super. at 424 (citing Dolson, 55 N.J. at 5). "[T]he standard for authorizing a new trial [is] one that requires a determination that the jury's verdict is 'contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice or partiality.'" Crawn v. Campo, 136 N.J. 494, 512 (1994) (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)). When correcting a clear error or mistake, a trial court "may not substitute [its] judgment for that of the jury merely because [it] would have reached the opposite conclusion." Dolson, 55 N.J. at 6. Instead, a trial court must "canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict." Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). On a motion for a new trial, the trial [court] takes into account, not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, so-called "demeanor evidence", (sic) and the intangible "feel of A-2349-16T1 10 the case" which he [or she] has gained by presiding over the trial. [Ibid.] The standard of review of such a motion is whether "it clearly and convincingly appears that there was a manifest denial [sic] of justice under the law." Id. at 7 (quoting R. 4:49-1(a)). Remittitur or a new trial should also be awarded when the "damages award . . . is so grossly excessive that it shocks the judicial conscience." Cuevas v. Wentworth Grp., 226 N.J. 480, 499 (2016). It is also appropriate where a jury has not been properly instructed as to damages, and "the only issue is the quantum of damages, the claimant's right to relief is clear, and 'the verdict was not the result of compromise or otherwise tainted.'" Caldwell v. Haynes, 136 N.J. 422, 443 (1994) (quoting Pressler, Current N.J. Court Rules, cmt. 1 on R. 4:49-1 (1994)). B. With these guidelines in mind, we turn first to defendants' remaining contentions about plaintiff's failure to establish a prima facie CEPA claim. A-2349-16T1 11 Failure to Identify Statute, Rule, Regulation, or Public Policy and to Form a Reasonable Belief that Defendants' Actions Violated Any of Them At the outset, without repeating it here, we hew to the Court's discussion in Chiofalo II about the principles governing a CEPA claim. To the extent that defendants now argue, despite the Court's opinion, that the proofs at trial relating to plaintiff being instructed to destroy the document and his belief about the illegality of the instruction were insufficient to meet CEPA's requirement in this regard, we find their argument to be without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). Suffice it to say, as defendants concede on appeal, plaintiff's evidence at trial mirrored his proofs on summary judgment , which the Supreme Court found satisfied the first element of a CEPA claim. See Chiofalo II, 238 N.J. at 542-45. We reject defendants' further contention that, under the circumstances, it was unreasonable for plaintiff to believe that a violation of a law, as discussed in Chiofalo II, occurred as required under CEPA. See ibid. A-2349-16T1 12 Failure to Establish an Adverse Employment Action Defendants argue "[a]s a matter of law, neither the loss of the designation of Sergeant Major, 5 nor [p]laintiff's reassignment to Netcong were retaliatory actions under CEPA." Defendants contend the loss of designation was immaterial as "[p]laintiff lost no rank, pay, benefits or authority." They also argue that plaintiff's reassignment, as a matter of law, is not actionable. Additionally, according to defendants, plaintiff failed to show how the transfer "impacted his commute," or was otherwise inconvenient. Further, because plaintiff's detachment to Netcong was temporary, defendants argue that his claim was not actionable under CEPA. Defendants assert that the only reason plaintiff was never transferred back was because he prematurely retired. Moreover, plaintiff requested to be transferred, illustrating the lack of any retaliatory action taken. They also argue that plaintiff's claims are not actionable as plaintiff found his reassignment advantageous. 5 According to defendants, plaintiff was technically the Troop B Assistant Administrative Officer, which was filled by a member holding the rank of Sergeant First Class. This member was also designated the "Sergeant Major" or "first shirt" of the Troop, both being honorary designations that came with no added rank, pay, benefits, authority or the like and could be withdrawn at any time in the discretion of the head of the Division. When a Sergeant Major is reassigned from that position, the honorary designation does not follow. A-2349-16T1 13 According to defendants, the trial court also improperly barred them from presenting testimony about plaintiff's transfer by sustaining plaintiff's hearsay objection. They argue that the objection prevented a witness from "testify[ing] as to his motivations for reassigning [p]laintiff to Netcong," which prevented them "from arguing a fact . . . that was crucial to an element of CEPA." Under CEPA, a retaliatory action is defined as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e) (emphasis added). "[A]dverse employment action" is broadly defined in light of the remedial purposes of the statute and may include such things as "making false accusations of misconduct, giving negative performance reviews, issuing an unwarranted suspension, and requiring pretextual mental-health evaluations." Donelson v. DuPont Chambers Works, 206 N.J. 243, 257-58 (2011). A retaliatory act need not take the form of a single discrete action but can be "many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct." Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003). A-2349-16T1 14 However, "not everything that makes an employee unhappy is an actionable adverse action." Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002) (quoting Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997)), aff'd o.b., 362 N.J. Super. 245 (App. Div. 2003). "[I]n order to be actionable, an allegedly retaliatory act must be 'sufficiently severe or pervasive to have altered plaintiff's conditions of employment in an important and material manner.'" El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 176 (App. Div. 2005) (quoting Cokus, 362 N.J. Super. at 246); see also Victor v. State, 401 N.J. Super. 596, 615 (App. Div. 2008), aff'd as modified on other grounds, 203 N.J. 383 (2010). Incidents that cause a "bruised ego or injured pride," Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 46-47 (App. Div. 2005) (stating that a temporary reassignment was not actionable under CEPA because the plaintiff's reassignment did not result in a discharge, demotion, or a loss of rank, title, or compensation), or that make an employee's job "mildly unpleasant" but do not have a substantial impact on the terms and conditions of employment, Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 360 (App. Div. 2002), are insufficient to be actionable. However, "[f]ailing to promote an employee can constitute an adverse employment action." Royster v. N.J. State Police, 439 N.J. Super. 554, 575 A-2349-16T1 15 (App. Div. 2015) (citing Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 447 (App. Div. 1990)), aff'd as modified on other grounds, 227 N.J. 482 (2017). So too can other "[e]mployer actions that fall short of [discharge, suspension, demotion, or transfer] . . . be the equivalent of an adverse action. . . . A pattern of conduct by an employer that adversely affects an employee's terms and conditions of employment can qualify as retaliation under CEPA." Beasley v. Passaic County, 377 N.J. Super. 585, 609 (App. Div. 2005) (second alteration in original) (quoting Cokus, 362 N.J. Super. at 378). Here, not only was plaintiff stripped of his designation as a Sergeant Major, he was also transferred to Netcong. Although either of those acts alone may not constitute retaliation, when considered together with the evidence of plaintiff not being promoted, they supported a jury finding retaliation. The jury's verdict was supported by plaintiff's testimony and a promotional worksheet admitted into evidence that indicated plaintiff was "highly recommended," but not promoted while others who were only recommended were promoted. Further, as indicated in the verdict sheet, the jury's decision also relied on Cuomo's participation in the decision making process, and that "[n]ot being promoted . . . to [L]ieutenant" constituted "retaliation by . . . A-2349-16T1 16 Cuomo for [plaintiff] refusing to participate in the destruction of the letter of appreciation." Next, we consider defendants' claim that the trial court improperly barred testimony from a witness that would have demonstrated plaintiff desired to be transferred, rather than it being an adverse employment consequence. At trial the witness, Lieutenant Colonel Edward Cetnar, the Deputy Superintendent of Operations, was about to testify that other members of Troop B informed him that plaintiff wanted to be transferred to Netcong. The trial court upheld plaintiff's objection that such testimony was hearsay. We agree. Here, the witness was not prepared to testify to any conversation he had with plaintiff, but only what others said plaintiff reported to them. Under these circumstances, the trial properly excluded the evidence as hearsay because Cetnar was not testifying to what plaintiff stated to him, which would have been admissible under N.J.R.E. 803(b)(1) (addressing a party-opponent's statements), but rather what others told him plaintiff had stated. See Beasley, 377 N.J. Super. at 602- 04 (finding error in admitting testimony from plaintiff that someone "told him that [other people] wanted plaintiff fired"). A-2349-16T1 17 Failure to Prove a Causal Connection Between the Whistle-Blowing Activity and the Adverse Employment Action Defendants also contend that plaintiff did not "present any evidence linking his alleged whistle[-]blowing act[] to his failure to be promoted and his reassignment to Netcong." They argue that plaintiff failed to establish a prima facie claim under CEPA as he was not qualified for promotion to Administrative Lieutenant in May 2012 and that the promotion in June 2012 went to a Sergeant who was more qualified. Defendants claim that "the record contains no evidence . . . suggesting that anyone promoted [was] less qualified than [plaintiff]." According to defendants, there also was no evidence that Cuomo played a role in the promotions after he left Troop B. At the outset, we acknowledge that "the mere fact that [an] adverse employment action occurs after [the protected activity] will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two." Young v. Hobart W. Grp., 385 N.J. Super. 448, 467 (App. Div. 2005) (alterations in original) (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)). Temporal proximity, on its own, will only support an inference of causation when the facts are so "unusually suggestive of retaliatory motive." Ibid. (quoting Krouse, 126 F.3d at 503). When these facts A-2349-16T1 18 are not present, "the plaintiff must set forth other evidence to establish the causal link." Ibid. Here, plaintiff provided sufficient proof to illustrate a causal connection between his whistle-blowing act and being relieved as a Sergeant Major, his relocation, and his lack of promotion. This included his own testimony, the document relating to plaintiff being highly recommended for promotion, and the evidence that others were promoted. We conclude, therefore, that applying either the standard under Rule 4:40-2 or Rule 4:49-1, plaintiff produced sufficient evidence to establish a prima facie CEPA claim and there is no basis in that regard to disturb the jury's verdict. II. A. Sufficiency of proof of damages We turn to defendants' argument about plaintiff's proof of his damages. Prior to trial, defendants filed a motion in limine to bar plaintiff from testifying about damages, as plaintiff's retirement was voluntary, a promotion was speculative, and, as a lay witness, plaintiff could not testify as to "life expectancy, future loss, [and] reduction to present[-]day value." Defendants argued that the calculation of these damages was not "a simple . . . A-2349-16T1 19 multiplication thing." They claim that since plaintiff never worked in human resources, he was not knowledgeable enough about damages to testify on the topic. The trial court agreed that plaintiff could not testify as to present and future values because those issues required expert testimony, but he could testify to the differences in salary and pension between a Sergeant First Class and a Lieutenant. Specifically, the trial court stated, [i]f [defendant] can lay a foundation [on the difference in salary and pensions between a Lieutenant and Sergeant First Class], that's fine. But he [could not] give net present value, future values. It would require somebody with expertise in that field of knowledge. But he can certainly know the difference between one salary and another. And if it [was] a matter of a defined benefit . . . which is what pensions are . . . if the pension for a [L]ieutenant [was] $3,000 a month and he's getting $2,000 a month, [the court did not] think [defendant] need[ed] to be an expert to know that the difference [was] $1,000 a month every month from now until his life expectancy that the jury can consider. During trial, plaintiff limited his proof of damages to his own testimony. Specifically, on direct examination, he testified about the differences between the salary and pension for a Sergeant First Class and a Lieutenant. During questioning by his counsel, plaintiff testified that he "believ[ed]" he was paid as a Sergeant First Class at an annual salary of $100,000. When he was asked what A-2349-16T1 20 a rank of a Lieutenant was, defendants' attorney objected, plaintiff's counsel withdrew the question, and then the following exchange took place: [PLAINTIFF'S COUNSEL]: How long were you with the State Police? PLAINTIFF: [twenty-five] and a half years. [PLAINTIFF'S COUNSEL]: You’re a [S]ergeant [M]ajor. What . . . responsibilities did you have? PLAINTIFF: As a [S]ergeant [M]ajor? [PLAINTIFF'S COUNSEL]: Yeah. Were you familiar with salaries in the State Police? PLAINTIFF: Yes. Yes. [PLAINTIFF'S COUNSEL]: Okay. Based upon your knowledge and your familiarity with salaries in the State Police, what was a [L]ieutenant being paid at that point, at the time you retired? PLAINTIFF: I think $123,000, $124,000. [PLAINTIFF'S COUNSEL]: Okay. Now, you get a pension; is that right? PLAINTIFF: Correct. [PLAINTIFF'S COUNSEL]: And is there a difference between how much a pension is for a [S]ergeant [F]irst [C]lass? PLAINTIFF: As compared to a lieutenant? [PLAINTIFF'S COUNSEL]: Yeah. A-2349-16T1 21 PLAINTIFF: Absolutely. [PLAINTIFF'S COUNSEL]: And were you familiar with the pensions between a [S]ergeant [F]irst [C]lass and a [L]ieutenant? PLAINTIFF: Somewhat, yes. [PLAINTIFF'S COUNSEL]: All right. How much was the difference? PLAINTIFF: Probably, if you had the same amount of time in, [twenty-five] years, 700 and change a month. [PLAINTIFF'S COUNSEL]: 700? PLAINTIFF: Yes. Defendants did not present any evidence to rebut the accuracy of plaintiff's testimony. Nevertheless, during the charge conference, defendants argued that plaintiff failed to present sufficient evidence on the issue of damages in order for the jury to make a finding beyond mere speculation. Without this information, defendants requested that the trial court not instruct the jury on past and future lost earnings. The trial court denied defendants' request but stated in making the decision it was a close call. While the trial court noted the importance of providing evidence about the differences between pensions, taxes, and adjusted gross income, "the burden of proof . . . [was not] that . . . plaintiff ha[d] to prove a case to a mathematical certainty, [it] just ha[d] to be probable." The court also stated the following: A-2349-16T1 22 We [did not] have any expert testimony at all in the case so . . . plaintiff [was not] even proposing future values, net present values, compounding[], raises or anything along those lines. And since plaintiff [was not] proposing it, there[ was] nothing for the [c]ourt to do about it. This is really closely -- more closely just a matter of arithmetic. The -- you subtract the difference between the Lieutenant's salary and the Sergeant's salary and you know the difference, but it[ was] the gross difference to – which . . . the defense . . . [was] making argument on. The trial court held that whether plaintiff provided "sufficient information to make out a case . . . to a preponderance of the evidence," was for the jury to determine with the appropriate model jury charge. The trial court further decided not to charge the jury with present value, as no testimony was elicited about that topic. On July 28, 2016, the jury returned a verdict in favor of plaintiff. The jury awarded plaintiff "$5400 in back pay, $50,000 in future [lost] wages, $250,000 in [future] lost pension benefits, and $150,000 in punitive damages." Chiofalo I, slip op. at 8. 6 6 In awarding the $5400 in back pay, the jury evidently relied upon the difference in the two positions' salaries. The remaining award of compensatory damages was based upon the $700 per month difference in the two positions' pension benefits. A-2349-16T1 23 On appeal, defendants argue that plaintiff's testimony was not sufficient to prove damages. According to defendants, plaintiff failed to provide any support for the estimations he gave for the salaries of a Sergeant First Class and a Lieutenant in the form of testimony from a person with knowledge or otherwise. They argue that economic damages should be calculated by an expert, not a lay person. Defendants also assert that on plaintiff's claim for future lost earnings, plaintiff was required to provide information about his net income. According to defendants, the trial court should not have allowed plaintiff's claim for past and future wage loss to go to the jury. A plaintiff has "the burden of proving damages," Caldwell, 136 N.J. at 436, which cannot be "based on mere speculation." Mosley v. Femina Fashions, Inc., 356 N.J. Super. 118, 128 (App. Div. 2002) (quoting Caldwell, 136 N.J. at 442); see also Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335, 364-65 (App. Div. 2012) (explaining that the same principles and burden of proving damages in personal injury cases is applicable for employment cases); Donofry v. Autotote Sys., Inc., 350 N.J. Super. 276, 290 (App. Div. 2001) ("It is beyond dispute that the framework for proving a CEPA claim follows that of a [Law Against Discrimination (LAD)] claim."). A-2349-16T1 24 "Proof of damages need not be done with exactitude . . . ." Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987). "It is . . . sufficient that the plaintiff prove damages with such certainty as the nature of the case may permit, laying a foundation which will enable the trier of the facts to make a fair and reasonable estimate." Ibid.; see also Totaro, Duffy, Cannova & Co. v. Lane, Middleton & Co., 191 N.J. 1, 14 (2007); Mosley, 356 N.J. Super. at 128-29. Past lost earnings in a retaliation case can "be proven . . . by the difference between what the plaintiff would have earned if [his or] her employment continued as expected, and what [he or] she actually earned." Quinlan, 425 N.J. Super. at 364. However, a different standard is applicable for future lost wages. Ibid. "[A] claim for future lost wages must be supported by two things: (1) '[R]easonable probability' of such a loss flowing from the past harm; and (2) 'sufficient factual matter upon which the quantum of diminishment can reasonably be determined.'" Haywood v. Harris, 414 N.J. Super. 204, 214 (App. Div. 2010) (quoting Coll v. Sherry, 29 N.J. 166, 176 (1959)).7 [A] plaintiff has not met [his or] her initial burden of proving [his or] her lost income unless [he or] she presents evidence to prove what [he or] she would have earned had [he or] she not suffered the wrong committed by defendant, how long [he or] she would 7 This is often referred to as the two-pronged Coll standard. See Lesniak v. County of Bergen, 117 N.J. 12, 14 (1989). A-2349-16T1 25 have continued to receive those earnings, and a reasonable likelihood that [he or] she will not be able to earn that amount in the future, such as through alternative employment. [Quinlan, 425 N.J. Super. at 364.] While personal injury cases additionally require a plaintiff to prove his or her net income, Caldwell, 136 N.J. at 436-38; Haywood, 414 N.J. Super. at 217, that same requirement is not applied in LAD cases. See Model Jury Charge (Civil), 8.11C, "Loss of Earnings" (rev. July 2010) (explaining in a footnote to the charge that since it is unclear "whether economic damage awards . . . under the . . . [LAD] are subject to either [f]ederal and/or New Jersey State income taxation," the best course would be "not [to] require that the award be calculated on net income" (quoting Abrams v. Lightolier Inc., 50 F.3d 1204, 1221 (3d Cir. 1995))). But, a defendant is entitled to have the economic damages recovery awarded to the plaintiff "discounted to present value" in recognition of the fact that the injured party "would have had his [or her] income spread out over the remaining years of his [or her] working life." Tenore v. NU Car Carriers, Inc., 67 N.J. 466, 474 (1975); Caldwell, 136 N.J. at 440-41 (remanding for a new trial as to damages because the trial court failed to instruct the jury on, among other things, present value of future wage loss); Quinlan, 425 N.J. Super. at 352 A-2349-16T1 26 (explaining that present value is one of several factors that should be considered in a retaliation case). "Ordinarily, expert testimony would be required to establish . . . the amount of the predicted lost income." Frugis v. Bracigliano, 177 N.J. 250, 285 (2003); Cuevas, 226 N.J. at 511-12 (explaining, in an employment discrimination case, that expert testimony would be needed to receive "emotional-distress damages projected [for] the future" but not for past emotional-distress damages). While "the value of expert testimony as an aid in establishing" the two prongs of the Coll analysis cannot be denied, Lesniak, 117 N.J. at 31, there is no per se requirement for expert testimony, see Tirrell v. Navistar Int'l, Inc., 248 N.J. Super. 390, 406-407 (App. Div. 1991); Adamson v. Chiovaro, 308 N.J. Super. 70, 76-78 (App. Div. 1998) (holding an economic expert was not required in a case where the jury awarded the plaintiff damages for past and future lost earnings based on the plaintiff's testimony that her net income prior to the accident was $190,000, which decreased to $58,000 after the accident). Expert testimony is a necessity only when "the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment." Lesniak, 117 N.J. at 31 (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)). A-2349-16T1 27 Here, plaintiff testified that the basis for his knowledge of a Lieutenant's salary and pension was that he worked for the State Police for twenty-five years. Although plaintiff's answers to questions about salaries and pensions were somewhat equivocal, he satisfied the criteria for admission under N.J.R.E. 701, permitting lay opinion testimony. 8 The claim by plaintiff was not so esoteric that expert testimony was necessary, especially since all that was required to establish his loss, without considering present value, was the difference in income and pension between two positions. Any deficiencies in his testimony were to be considered as going "to the weight of the evidence." Tarr v. Ciasulli, 181 N.J. 70, 100 n.7 (2004). We conclude that as to the establishment of plaintiff's gross lost income, there was sufficient evidence for the jury to rely upon to support its verdict and the trial court correctly denied defendants' J.N.O.V. motion and motion for a new trial in this regard. 8 The evidence rule provides: When "a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it . . . is rationally based on the witness' perception; and . . . will assist in understanding the witness' testimony or determining a fact in issue." N.J.R.E. 701. A-2349-16T1 28 B. Plaintiff's testimony about future wage loss; We reach a different conclusion as to the outcome of the two motions based upon the jury's award of future lost income. At trial, the court instructed the jury about plaintiff's claim for future lost earnings as an element of damages by following Model Jury Charge (Civil), 8:11C, specifically section (2), "Future Lost Earnings," (b) "Final Charge to be Given at Conclusion of Case If There is No Expert Testimony." It stated the following: In terms of future lost earnings, plaintiff also seeks to recover income and earnings that will be lost in the future. He has a right to be compensated for any income and earnings which you find will probably be lost and proximately caused by the injuries brought about by defendant's wrongdoing. If you decide from the evidence that it is reasonably probable that plaintiff will lose income in the future . . . because he either has not been able to return to work . . . or he has not been able to keep the same job or he will be able to work for a shorter period of time only, then you should include an amount to compensate for the lost income and earnings. In deciding how much . . . your verdict should be to cover future lost income and earnings, think about . . . those reasons discussed regarding past earnings' losses, including the nature, extent and duration of injury. Consider plaintiff's age today, his general state of health before, how long your -- reasonably expect to have loss of income to continue, any pension or A-2349-16T1 29 retirement income, and how much plaintiff can earn in any available job that he will be able to do. The trial court did not charge section (2)(c) "Effects of Interest and Inflation on Future Earnings" as, consistent with the court's in limine decision, there was no evidence as to present value. The trial court did instruct the jury on life expectancy. Model Jury Charge (Civil), 8.11G, "Life Expectancy" (approved Feb. 1996). Defendants contend that the jury should not have been instructed as to future damages because plaintiff voluntarily retired from the State Police and his testimony about when he should have been promoted was speculative. Relying on Donelson and Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252 (App. Div. 1996), defendants assert that the instruction was also not warranted because plaintiff was never constructively discharged, and Cuomo's actions were not so severe that plaintiff was unable to return to work. Alternatively, defendants argue "any future wage[] awards must be offset by amounts received and must be reduced to present[-]day value." Specifically, they argue that the $50,000 needs to be offset by the pension payments plaintiff received after retiring, and as to future income, after considering inflation and other economic factors, the $250,000 award is in excess and must be reduced accordingly. A-2349-16T1 30 At the outset, we note that contrary to defendants' contentions on appeal, back and front pay can be awarded under CEPA, even in the absence of an actual or constructive discharge where plaintiff is claiming that he or she was retaliated against by not being promoted. See Grasso v. W. N.Y. Bd. of Educ., 364 N.J. Super. 109, 126-27 (App. Div. 2003) (explaining that "[f]ront pay can be awarded to 'compensate [an] employee for future lost wages'" so long as the employee can prove that he or she "would have been promoted absent the unlawful discrimination" (quoting Baker v. Nat'l State Bank, 353 N.J. Super. 145, 158 (App. Div. 2002))); but see Donelson, 206 N.J. at 257-62 (explaining, in a discharge case based on mental unfitness, that in order to recover future lost wages, the employee must also establish that he or she experienced a retaliatory action that caused the employee to suffer an injury; and the injury rendered the employee unfit for continued employment). Here, as the Supreme Court noted, plaintiff never alleged he was constructively discharged from his employment. Chiofalo II, 238 N.J. at 532 n.2. Plaintiff's retirement from the State Police does not bar him from recovery, as CEPA does not just protect those employees who were involuntarily unemployed or constructively discharged. A-2349-16T1 31 Moreover, plaintiff engaged in protected activity and defendants engaged in an adverse employment action, which led to plaintiff not being promoted, being transferred to Netcong, and being stripped of his designation as Sergeant Major. Unlike Grasso, where the employee was not awarded front pay as no evidence was provided to demonstrate she "would have been promoted absent . . . unlawful discrimination," 364 N.J. Super. at 127, there was sufficient evidence present here to establish that if plaintiff did not conduct the whistle- blowing activity, he would have been promoted to Lieutenant and would not have retired. However, we part company with the trial court with regard to its decision to not charge the jury as to present value. In Caldwell, a personal injury case, the Court vacated a jury's award and remanded for a new trial on damages or remittitur, as to pain and suffering and future lost wages because the trial court failed to charge, among other omissions, present value. 136 N.J. at 440-41. In that case, the trial court stated it failed to do so because neither party asked for the charge. Id. at 440. Here, the trial court barred, in limine, plaintiff's testimony, if any, about present value, and during the charge conference decided not to charge the jury about it, "since plaintiff [did not] propos[e] it" and there was no evidence of A-2349-16T1 32 present value. Those reasons should not have deprived defendants of their right to the charge. We are not persuaded by plaintiff's argument that because his damages were based upon the difference in pension payments between a Lieutenant and a Sergeant First Class, there was no need for the jury to consider present value. Defendants were entitled to have the jury determine the appropriate "[d]iscounting [to get] the present value or present worth in a single amount of money which otherwise would be received over a number of years at so much per year." Model Jury Charge (Civil), 8:11C. Under these circumstances we are constrained to remand the matter for a new trial as to damages. Caldwell, 136 N.J. at 443. "On remand we encourage the trial court to [re]consider a motion for remittitur under Rule 4:49-1." Ibid. III. Punitive damages Defendants last argue that punitive damages against a public entity can only be granted after a rigorous standard of liability is shown. Citing to the New Jersey Punitive Damages Act (NJPDA), N.J.S.A. 2A:15-5.12, they contend that punitive damages "should be awarded only when the plaintiff proves by clear and convincing evidence that the acts or omissions of defendants 'were actuated A-2349-16T1 33 by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed.'" Defendants assert that "[n]o reasonable jury could have found that" Cuomo's actions were "especially egregious." Defendants state that practically, "all promotion[s] and reassignment[s] . . . are conducted by 'upper management.'" Thus, defendants argue that there is no way the legislature contemplated the "actual participation by upper management" to apply to State Police, "as [that] would require punitive damages to be assessed in every CEPA case." CEPA "is a civil rights statute. Its purpose is to protect and encourage employees to report." Green, 177 N.J. at 443 (quoting Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994), superseded by statute on other grounds, N.J.S.A. 34:19-5). Despite that purpose, punitive damages are available only in "exceptional cases." Victor, 401 N.J. Super. at 618 (quoting Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 500-01 (App. Div. 1994)). There are two essential prerequisites to an award of punitive damages: (1) Proof that there was "actual participation in or willful indifference to the wrongful conduct on the part of upper management," and (2) proof that the conduct was "especially egregious." Rendine v. Pantzer, 141 N.J. 292, 314 (1995) (quoting Leimgruber v. Claridge Assocs., Ltd., 73 N.J. 450, 454 (1977)); A-2349-16T1 34 accord Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 274 (2010); Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 113 (1999). The test for egregiousness is satisfied if plaintiff has proven "an intentional wrongdoing in the sense of an 'evil-minded act' or an act accompanied by a wanton and willful disregard for the rights of [plaintiff]." Quinlan, 204 N.J. at 274 (alteration in original) (quoting Rendine, 141 N.J. at 314); Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984). Alternatively, a plaintiff can prove conduct is especially egregious if "actual malice" is proven. Quinlan, 204 N.J. at 274 (quoting Herman v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 337 (1993)); see also Berg v. Reaction Motors Div., Thiokol Chem. Corp., 37 N.J. 396, 414 (1962) ("Our cases indicate that the requirement [of willfulness or wantonness] may be satisfied upon a showing that there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences."). Factors to consider in this determination are "the likelihood that the conduct would cause serious harm, the [employer's] awareness or . . . disregard of the likelihood of such harm, the [employer's] behavior after he or she learn[s] that the conduct [could] . . . cause harm, [and] the duration of the [harmful] conduct." Quinlan, 204 N.J. at 274. A-2349-16T1 35 In general, "[b]ecause punitive damages are not intended to compensate the plaintiff for his or her injuries, they do not 'logically depend on the extent of the injury sustained by an individual plaintiff,'" but instead "'should be sufficient to serve the purpose of deterring future misconduct' by the defendant." Kluczyk v. Tropicana Prods., Inc., 368 N.J. Super. 479, 497 (App. Div. 2004) (quoting Smith v. Whitaker, 160 N.J. 221, 242 (1999)). "On the other hand, . . . 'the award must bear some reasonable relation to the injury inflicted and the cause of the injury.'" Ibid. (quoting Whitaker, 160 N.J. at 243). In Green, the Supreme Court upheld a $300,000 award of punitive damages under a CEPA claim as the plaintiff was no longer allowed to participate in certain programs at work; she "was told that she was on [her boss's] 'shit list'"; she received "substandard evaluations" only after her whistle-blowing activity took place; was not given necessary supplies; certain teacher privileges were taken away; and her students were "treated unfairly." 177 N.J. at 439-40, 448. That plaintiff eventually resigned from her position and was diagnosed with major depressive disorder, which her psychiatrist found to be causally connected to her work situation and "persistent severe headaches and other physical symptoms." Id. at 440. A-2349-16T1 36 Here, granting all reasonable inferences to plaintiff, Verdicchio, 179 N.J. at 30, we conclude that a reasonable jury could find, by clear and convincing evidence, that Cuomo's conduct was especially egregious. After plaintiff confronted Cuomo regarding the letter of commendation and told him that he would not "get rid of it," plaintiff was denied a promotion and transferred to another location. Being transferred, losing his designation, and not being promoted supported the jury's finding that defendants' conduct was egregious. It cannot be said that the jury's award of punitive damages was "contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice or partiality." Crawn, 136 N.J. at 512 (quoting Lanzet, 126 N.J. at 175). However, having affirmed plaintiff's entitlement to a punitive damage award, we are still constrained to vacate the award and remand it for a new trial or remittitur because, whereas here, "the punitive damages are intimately related to those compensatory damages, the punitive damages must also be redetermined." Picogna v. Bd. of Educ. of Cherry Hill, 143 N.J. 391, 404 (1996) ("The Court has consistently held that there is some linkage between compensatory and punitive damages."). A-2349-16T1 37 IV. Counsel fees In his cross-appeal, for the first time, plaintiff challenges the trial court's award of counsel fees. He argues that the trial court failed to take into consideration time expended by his attorney in activities that were other than time spent in court for trial. Plaintiff also argues that the trial court failed to consider the requirements for awarding fees under Rendine, 141 N.J. at. 337-38. We initially observe that plaintiff did not brief this issue in his original merits brief and only did so in his supplemental brief on remand. Moreover, plaintiff has not included in his appendix copies of any submission he made to the trial court as required by Rule 4:42-9 in support of his fee application. Under these circumstances, we will not consider plaintiff's contentions about the fee award because "[a]n issue not briefed on appeal is deemed waived," Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011), and "[w]ithout the necessary documents, we have no basis for determining" the issue raised in the cross-appeal, Soc'y Hill Condo. Ass'n. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002); R. 2:6-1 (addressing contents of appendix); R. 2:6- 2(a)(6) (requiring legal arguments to be set forth in appellate brief and identified by separate point headings); R. 2:6-2(d) (requiring respondent/cross-appellant's A-2349-16T1 38 brief to "address[] the cross appeal"). Briefing an issue for the first time in a supplemental brief after a remand is no different than doing so in a reply brief. See Drinker Biddle & Reath LLP. v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (explaining that claims not addressed in an appellant's merits brief are deemed abandoned). Even if we were to consider the cross-appeal, from the transcripts filed, it is clear that plaintiff failed to provide the trial court with a certification of services as required by Rule 4:42-9(b), or any time records to afford the trial court with an opportunity to perform its function under the parameters set forth in Rendine. As the trial court stated, "[w]ithout a time sheet [it did not] know how much time was spent." Moreover, even though the trial court was not properly informed, it still made an award of $23,748.60 based upon the generous assumption that, during trial, the attorneys were physically in court eight hours a day. V. In sum, the trial court's judgment as to liability and damages relatin g to past lost income is affirmed. We vacate the judgment as to damages for lost future income as well as the amount of punitive damages and remand those issues for a new trial or remittitur. A-2349-16T1 39 Affirmed in part; vacated and remanded in part for further proceedings consistent with our opinion. We do not retain jurisdiction. A-2349-16T1 40	01-03-2023	08-07-2020
https://www.courtlistener.com/api/rest/v3/opinions/3849280/	Argued October 3, 1927. On December 21, 1926, plaintiffs, being owners of land upon which a hotel building was partly erected, agreed in writing to convey the property to defendant for the sum of $54,000 payable $5,000 on or before December 20, 1927, $15,000 on December 20, 1928, and the remainder on December 20, 1929. As further consideration defendant also agreed in writing to begin the work of completing the building on or before January 3, 1927, and finish the same by August first of that year, and also that in event he failed to begin work on the date mentioned the first payment of $5,000 should be forthwith due and payable. Payment of the purchase-money to be secured by the execution of a bond and mortgage "the terms of said mortgage to be in accordance with the provisions" of the agreement above referred to. Pursuant to previous arrangement, a deed, bond and mortgage had been prepared and the parties met December 20, 1926, for the purpose of executing and delivering all papers, including the agreement above mentioned. At that meeting a discussion arose between the attorneys for the respective parties concerning the wording of the agreement, there being a suggestion that it might be construed as merging in the deed, bond and mortgage. To avoid this result the parties decided to date the agreement December 21st and the deed, bond and mortgage one day earlier, so that the agreement itself in fact bore date one day later than the date of the other papers. This arrangement being satisfactory to all parties, the papers were duly signed and delivered. The bond itself was drawn in the usual form, conditioned for payment of the principal sum of $54,000 in installments Page 168 as mentioned in the agreement, but contained no reference to the additional instrument executed by defendant, providing for commencement and completion of the building. It contained a clause, however, setting forth that in case of default in payment of any installment for a period of thirty days the whole debt should thereupon become due and payable. Defendant failed to begin work on the building as provided by the agreement, and, on February 9, 1927, plaintiff entered the bond of record, filing affidavits to the effect that defendant did not begin work on or before January 3, 1927, as set forth in the written agreement, which was attached to the affidavit, and had defaulted in various other respects, and that the first payment of $5,000 had, by reason of the default, become due and payable January 3, 1927, which default had continued for more than thirty days thereafter, wherefore the whole debt had become due and payable. A fi. fa. was issued on the judgment and the premises duly advertised for sale. To prevent such sale, defendant, through his son, acting as his agent, entered into another written agreement with plaintiff, dated February 18, 1927, whereby the sheriff's sale was postponed to June 15, 1927, and defendant given until that time to complete the work on the building and make final payment of the debt. Defendant carried out this agreement in part by placing mechanics on the work for a time, but later work ceased entirely and the building remained unfinished. Plaintiff again proceeded to issue a new writ and advertise the property for sale, whereupon defendant presented a petition to the court to set aside the execution and vacate the writ, claiming the agreement signed by the parties dated December 21, 1926, merged in the deed, bond and mortgage, that defendant's failure to comply with the terms of such agreement was no excuse for entering judgment on the bond, and that the supplemental agreement of February 16, 1927, for an extension of Page 169 time, was not binding on defendant because under seal and made by an agent without proper authority. Merger is a matter of intention of the parties and may be shown by their declarations, acts or conduct at the time of execution of the agreement in question or from the terms of the writing itself: Carrow v. Headley, 155 Pa. 96, 97; Moats v. Thompson, 283 Pa. 313, 321, and cases cited. While the general rule undoubtedly is that if the agreement is one for sale of lands, it will be presumed, in absence of an intent to the contrary, the contract of purchase is merged in the deed (Dobkin v. Landsberg, 273 Pa. 174, 182, 186); yet such rule does not apply where the plain intention of the parties is that a covenant in the contract should not be merged in the deed: Dobkin v. Landsberg, supra, page 186; Harbold v. Kuster, 44 Pa. 392,394. In the latter case an agreement for the reservation of crops growing on land conveyed was enforced though not mentioned in the deed, the court holding that, while the agreement to sell was merged in the deed, it was not merged as to that "which was not to be consummated by the deed, and which was of an entirely different nature and collateral to it." Likewise in the present case, the agreement to complete the building was of a different nature and collateral to the agreement to sell. If the intention of the parties in the present case, as indicated by their acts and declarations at the time of executing the agreement, is to govern, then there can be no doubt they contemplated keeping the written agreement in force. The matter was discussed among them and the very purpose of changing the date of the writing to one day later than the date of the deed and bond and mortgage was to void possibility of construing the agreement as having been merged. Furthermore the agreement contained reference to an important part of the consideration for the execution of the conveyance which was omitted entirely in the latter paper and also in the bond and mortgage. The cases cited by defendant holding that preliminary negotiations Page 170 and agreements are merged in a subsequent writing have no application in the present case inasmuch as the parties indicated by their unequivocal acts that a merger was not intended, and that the agreement should remain in force. A clearer case of an express intention that the agreement should not merge in the bond and mortgage than this case presents, would be difficult to discover. Defendant claims he is not bound by the act of his agent in making the extension agreement of February 16, 1927, because that paper itself is under seal while the authority of the agent was parol only. The agent in question was defendant's son, who had full authority, according to defendant's own testimony, to act for him. Defendant also ratified the agreement by proceeding to carry out its provisions in part, and, accordingly, must be presumed to have accepted whatever the incidental benefits were. Moreover, the extension agreement itself, though under seal, was not an instrument requiring an affix of that character to insure its validity, consequently the seal may be treated as surplusage, and the agreement sustained as one within the power of the agent acting without sealed authority: Baum v. DuBois, 43 Pa. 260; Jones v. Horner,60 Pa. 214. The extension settlement made by the agent merely prolongs the time for performance of the obligation signed by defendant and if the latter repudiates such extension, the original terms of his contract must remain in full force. Under the circumstances, defendant is in no position to question the action taken by his agent. The judgment is affirmed. Page 171	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3846821/	Plaintiffs, three individuals, filed this bill to restrain the respondent school district of Robinson Township from levying a tax on "coal mined by the open pit method commonly called the stripping method . . ." within the boundaries of the township. We were informed at the argument that such coal is not otherwise taxed locally or by the Commonwealth. Plaintiffs are lessees of coal lands producing coal by the stripping method in the township. The defendants who were elected school directors, acting on behalf of the school district of Robinson Township, by resolution, imposed the tax on coal produced between August 27, 1947 and July 1, 1948. They did so pursuant to Act No. 481, passed at the last session of the legislature and approved by the Governor June 25, 1947, P. L. 1145. At the outset, this Court is not concerned with the wisdom, need, or appropriateness of this legislation. Courts do not pass upon legislative wisdom but upon legislative power.Baldwin Township's Annexation, 305 Pa. 490, 496, 158 A. 272 (MAXEY, J.); Olsen, Secretary of Labor of Nebraska, v. Nebraskaex rel. Western Reference Bond Association, Inc., et al.,313 U.S. 236, 246 (DOUGLAS, J.). Section 1 of the Act contains the following provision: "The duly constituted authorities of cities of the second class, cities of the second class A, cities of the third class, boroughs, towns, townships of the first class, Page 48 school districts of the second class, school districts of the third class and school districts of the fourth class shall have the authority, by ordinance or resolution, for general revenue purposes, to levy, assess and collect or provide for the levying, assessment and collection of such taxes on persons, transactions, occupations, privileges, subjects and personal property within the limits of such political subdivision, as it shall determine, except that such local authorities shall not have authority by virtue of this act to levy, assess and collect or provide for the levying, assessment and collection of any tax on a privilege, transaction, subject, occupation or personal property which is now or does hereafter become subject to a state tax or license fee; nor have authority to levy, assess or collect a tax on the gross receipts from utility service of any person or company whose rates and services are fixed and regulated by the Pennsylvania Public Utility Commission; nor have authority, except on sales of admission to places of amusement or on sales or other transfers of title or possession of property, to levy, assess or collect a tax on the privilege of employing such tangible property as is now or does hereafter become subject to a state tax." The bill alleges the statute is repugnant to the constitution of Pennsylvania, alleging violations of Article I, sections 1 and 9; Article II, section 1; Article III, sections 3 and 7; Article IX, section 1, and section 1 of the Fourteenth Amendment of the Federal Constitution. These allegations may be summarized by saying that the title of the Act is inadequate and that the bill contains more than one subject; that there has been unlawful delegation of power; that taxation pursuant to the Act takes property without due process and also violates the uniformity requirement. A number of parties were permitted to intervene at the argument, among them the City of Pittsburgh, a city of the second class, and a number of coal companies Page 49 engaged in business in other municipal subdivisions of the state. The Attorney General appeared on behalf of the Commonwealth. The statute in its presently important aspects resembles the Act of August 5, 1932, P. L. 45, commonly called the Sterling Act, authorizing the City of Philadelphia, as a city of the first class, to levy taxes. The Sterling Act and municipal action pursuant to it were sustained in Blauner's Inc., et al.v. Philadelphia et al., 330 Pa. 342, 198 A. 889. The opinion in that case, written by Mr. Justice DREW, finally disposes, adversely to plaintiffs' contention, of the objections made to Act No. 481 so far as the objections would relate to authority conferred on cities of the second class, cities of the second class A, and cities of the third class. The opinion stated: "It is admitted that the Legislature has the right and power to delegate to the City Council the authority by ordinance to levy, assess and collect taxes for general revenue purposes. Such a delegation of the taxing power is expressly sanctioned by Section 1 of Article XV of the Constitution of Pennsylvania, which provides in part that 'Cities . . . may be given the right and power . . . to exercise the powers and authority of local self-government, subject, however, to such restrictions, limitations and regulations, as may be imposed by the Legislature.' This Court has ruled that the legislative taxing power may be lawfully delegated to an elective City Council. A most recent case in point is that of Wilson v. Philadelphia School District, 328 Pa. 225, in which Mr. Chief Justice KEPHART reviewed the subject elaborately." See alsoPhiladelphia v. Samuels, 338 Pa. 321, 12 A.2d 79. There remains for consideration, therefore, only the effect of the Act as to the other subdivisions of government affected by it. The issue now before us is of course limited to the power of the defendant school district and the resolution complained of. No facts are in dispute. The petition of Page 50 the plaintiffs, pursuant to which we took the original jurisdiction, avers that "no material issues of fact will be raised, but the pleadings will raise exclusively issues of law. . . ." There seems to be some misapprehension on the part of some of the intervenors as to the scope of our inquiry. Generally, the form of the prayer of their petitions was "to intervene in the above proceeding and to appear and be heard by counsel and submit a printed brief and make oral argument at the hearing of said Bill of Complaint." The orders are substantially in the form that petitioner "is permitted to intervene in the above proceeding and to appear and be heard by counsel and submit a printed brief and make oral argument. . . ." But in a brief filed on behalf of intervenors it is argued that the ordinances described in the "petitions for leave to intervene violate the uniformity clause of Article IX, section 1." The orders granting leave to intervene for the purposes specified do not go so far as to put in issue in this case the validity of ordinances passed by political subdivisions other than the school district of Robinson Township, challenged by the plaintiffs. We cannot adjudicate the merits of other ordinances in the absence of the political subdivisions that passed them. The complaint that the subject of the legislation is not clearly expressed in the title of the Act and that there are two subjects, in the prohibited sense, are so destitute of substance as not to merit discussion; it is an act authorizing political subdivisions of the state to levy and collect taxes. Compare Bennett v. Hunt, 148 Pa. 257, 260, 23 A. 1121;Mallinger v. Pittsburgh, 316 Pa. 257, 261, 175 A. 525; Hadley'sCase, 336 Pa. 100, 107, 6 A.2d 874. The title is "An Act empowering cities of the second class, cities of the second class A, cities of the third class, boroughs, towns, townships of the first class, school districts of the second class, school districts of the third class and school districts of the fourth class to levy, assess, and collect or to provide for the levying, assessment and collection of certain Page 51 additional taxes subject to maximum limitations for general revenue purposes; authorizing the establishment of bureaus and the appointment and compensation of officers and employes to assess and collect such taxes; and permitting penalties to be imposed and enforced; providing an appeal from the ordinance or resolution levying such taxes to the Court of Quarter Sessions and to the Supreme Court and Superior Court." We must reject the objections complaining of what the plaintiffs call the delegation of power to the school district. Defendant school district's power is not unlimited. Section 1 contains the following provision: "The aggregate amount of taxes annually imposed by enactment of an ordinance or resolution by any political subdivision under this section shall not exceed an amount equal to the product obtained by multiplying the total assessed valuation of real estate in such political subdivision at the time of the said enactment by the maximum millage tax thereon allowed by law." Section 32 of the Statutory Construction Act provides that the singular may include the plural: 1937, P. L. 1019. It is really not so much a delegation of power to school districts as a direct assertion of the State's power to tax enforced by the State's agents:Minsinger v. Rau, 236 Pa. 327, 84 A. 902. The statute makes school districts bodies corporate: 24 PS, section 30;Commonwealth v. Pittsburgh School District, 343 Pa. 394,23 A.2d 496. The Constitution in Article X, section 1, provides: "The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public schools, wherein all the children of this Commonwealth above the age of six years may be educated, and shall appropriate at least one million dollars each year for that purpose." In Minsinger v.Rau, supra, we dealt with the school district as "an agency of the Commonwealth." See also Duff et al. v. Perry TownshipSchool District, 281 Pa. 87, 126 A. 202. The power to delegate to the elected school board as an agency of the Commonwealth the Page 52 duty of levying taxes in order to comply with Article X, section 1, is not now open to question. It is sufficient to refer to what was said in Wilson et ux. v. Philadelphia SchoolDistrict et al., 328 Pa. 225, 195 A. 90. At p. 232 we said, "It is no doubt true in this state that the legislature has conferred upon school districts the power to levy and collect taxes for school purposes, and this has been upheld without reference to any definite restrictions placed thereon: Blair v. Boggs Twp. School Dist., 31 Pa. 274; Wharton v. School Directors, supra; Mellor v. City of Pittsburgh, 201 Pa. 397; Duff v. Perry Twp. School Dist., supra. Laws have been enacted for school districts to levy taxes for purposes other than public education: Weister v. Hade, 52 Pa. 474; Keasy v. Bricker, 60 Pa. 9; West Donegal Township v. Oldweiler, 55 Pa. 257. In none of these instances was the constitutional question of improper delegation of the taxing power raised; moreover, in all of them the directors of the school districts involved were elected by the people and it is now too late to question the power of elective school boards to levy a tax. The first case that considered the question of delegation of taxing power was that of Minsinger v. Rau, supra. Prior to this decision, it had been taken for granted that the legislature could empower the school district to levy taxes for educational purposes." See also Commonwealth of Pennsylvania, State Employes' RetirementSystem v. Dauphin County, 335 Pa. 177, 179, 6 A.2d 870. We find no support for the objection that the statute is repugnant to the requirement that all taxes shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax and shall be levied and collected under general laws. The statute undoubtedly is general, effective, as it is, throughout the state excepting in cities of the first class, an exception permitted by the classification provision of the Constitution: Article III, section 34. The school district's resolution now before us is general in its provisions Page 53 and is effective throughout the territorial limits of the school district. The mere fact, if it be a fact, that the plaintiffs are at the present time the only parties engaged in the business in question does not make the resolution less general; if a second miner started in the same business tomorrow his product would immediately be subject to the tax. It was suggested in the oral argument that if the tax in this school district were sustained and if coal produced in the same way in another taxing district in the state were not subjected to the same tax there would be a lack of uniformity repugnant to the constitutional requirement. There is nothing in the record to support that argument because the requirement is that taxes in the same taxing district shall be uniform on the same class of subjects, not that the taxing districts of the state must get together and agree upon the same tax for their respective districts. Compare Moore v. Pittsburgh SchoolDistrict, 338 Pa. 466, 13 A.2d 29, in which we said, pp. 472-3, "The Constitution does not say that taxes shall be uniform as to classes of municipal divisions of the State, but uniform territorially as the State is divided territorially into cities, counties, townships and school districts. . . . We all know as a matter of fact that taxes are not uniform in the different school districts comprising a class and never have been. They are bound to be different because of varying local conditions. Under Minsinger v. Rau, there could have been a different tax in Philadelphia from that in Pittsburgh, the one could have been the maximum impost of six mills and the other the minimum of five." See also Sugar Notch Borough, 192 Pa. 349,357, 43 A. 985; Clouser v. Reading, 270 Pa. 92,113 A. 188. For the same reason the statute cannot be held repugnant to the prohibition against local or special legislation. Under Article III, section 34, adopted in 1923, school districts have been classified. The school boards Page 54 of districts of the same class may tax at different rates without infringing the provision against local or special legislation: Moore v. Pittsburgh School District, 338 Pa. 466,13 A.2d 29. This is further illustrated by decisions under the Act of 1874, P. L. 230, as amended by the Act of May 23, 1889, P. L. 277, classifying cities. In Clouser v. Reading City,270 Pa. 92, 95, 113 A. 188, we said: "The ordinance in question treats all the grocers in Reading alike, and the fact that other grocers, in other municipal divisions of the State, may be taxed differently, or not at all, makes no difference in legislating for the class of cities to which Reading belongs. The argument that the act in question is local, because some cities of the named class may tax grocers, while others of the class may not, was met and disposed of in Jermyn v. Scranton,186 Pa. 595, wherein it was said, answering a like contention there made, 'But this difference is not radical or fundamental to the existence of the power, it relates only to the difference in the existing conditions in the different cities.' The same argument could be made against the levy of general taxation if the rates differed in the different cities as they do." See also Allentown v. Gross, 132 Pa. 319, 19 A. 269;Williamsport v. Wenner, 172 Pa. 173, 33 A. 544. It is also said that the Act is invalid because the authority to tax is "for general revenue purposes." In one brief it is contended that conferring on school districts "the power to raise money 'for general revenue purposes' imports that they shall have the right to determine for what purposes other than school purposes the revenue is to be raised." The act means nothing of the kind. School districts may tax only for school purposes within the constitutional sense and the words "for general revenue purposes" mean the general revenue purposesso permitted by law. It must be remembered that statutes are presumptively constitutional and that courts must interpret them in that sense if possible; there is no difficulty in this case. Section 52, Statutory Construction Page 55 Act 1937, P. L. 1019; Commonwealth v. Schuylkill Trust Company,327 Pa. 127, 134, 193 A. 638. We must also reject the suggestion based on Article I, sections 1 and 9, and on section 1 of the 14th Amendment, that plaintiffs' property is taken without due process. There is no doubt of the state's right to tax, and, as the cases cited show, there is no doubt of the state's right to confer on the school district, as its agent, the power to levy and collect the tax. The courts are open to the taxable to challenge the tax, as the plaintiffs are doing in this suit. The fact that the right of appeal against the resolution or ordinance before the date at which it becomes effective provided for in section 3 of the statute is limited is immaterial; due process does not require such a privilege; indeed, if there were any basis for the argument of unconstitutionality based on this provision of the statute the result would be merely to strike it out of the act pursuant to the severability provision contained in Section 8. Due process is not wanting in this case because it has long been settled in this Commonwealth that a plaintiff may go into equity to restrain attempted taxation for want of power to tax:Dougherty, Trustee, v. Philadelphia et al., 314 Pa. 298, 301,171 A. 583. In such circumstances there is no want of due process. The bill is dismissed; costs to be paid by plaintiffs.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/161823/	273 F.3d 927 (10th Cir. 2001) THELMA HARRIS, Mother and Next Friend of Ricky Alan Harris, Plaintiff-Appellant,v.VICKI ROBINSON and INDEPENDENT SCHOOL DISTRICT NO. 49 OF LEFLORE COUNTY, OKLAHOMA, Defendants-Appellees. No. 00-7136 UNITED STATES COURT OF APPEALS TENTH CIRCUIT December 7, 2001 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. 00-CV-103-P) Robert S. Blatt and Shannon L. Blatt, Fort Smith, Arkansas, and Pat Pate, Sr., Poteau, Oklahoma, for Plaintiff-Appellant. Frederick J. Hegenbart and Jerry A. Richardson of Rosenstein, Fist & Ringold, Tulsa, Oklahoma, for Defendants-Appellees. Before BRISCOE, McKAY, and HALL, Circuit Judges. McKAY, Circuit Judge. 1 Thelma Harris, mother and next friend of Ricky Alan Harris, brought this action pursuant to 42 U.S.C. 1983 alleging a violation of Ricky's civil rights. Ms. Harris appeals the United States District Court Order granting summary judgment in favor of Vicki Robinson and the Independent School District No. 49 of LeFlore County, Oklahoma ("Wister School District"). 2 We review a district court's grant of summary judgment de novo. Reynolds v. School Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1531 (10th Cir. 1995). A motion for summary judgment is granted when the record demonstrates that "there is no genuine issue of material fact . . . and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56. The issue is whether Ricky, a ten-year-old mild to moderately retarded boy, was deprived of his constitutional rights when his home room teacher, Ms. Robinson, made him clean out a toilet with his bare hands. On January 10, 2000, Ms. Robinson followed some of her students out into the hall after the bell rang ending the class period. Ms. Robinson saw Ricky and two other boys go into the boys' bathroom and start laughing. When the boys came out, she asked what was going on. One of the boys told her that the toilet was stopped up and that Ricky had said he did it. App. 72-77, 99-102. 3 Ms. Robinson took Ricky aside and asked him if he put paper in the toilet, and he said, "yes." Ms. Robinson asked if there was any reason why he had put so much paper in the toilet, and Ricky said, "no." Ms. Robinson then asked Ricky why he had done it, and he smiled and said, "I don't know." App. 65-71, 77-80. 4 Ricky testified in his deposition that when Ms. Robinson asked him if he meant to put the toilet paper in the toilet, "I think she didn't understand me because she probably thought that I said yes." App. 39. Ricky's father testified that he believes Ricky confessed to Ms. Robinson without meaning to, and that Ricky and Ms. Robinson were thinking two different things when she asked if he intentionally put paper in the toilet. App. 110. 5 Ricky testified that he had used that toilet earlier that day and that he had used a lot of paper to clean himself. He flushed the toilet, but he did not think that all the paper went down. App. 33-35. 6 Ms. Robinson did not know that Ricky had used the bathroom earlier and that he had apparently stopped up the toilet with paper he had used to clean himself. She thought he had intentionally clogged a clean toilet with paper. App. 82-84. Ms. Robinson told Ricky to go into the bathroom, get a trash can, and pull the paper out of the toilet. Ricky asked Ms. Robinson to call a janitor, but Ms. Robinson refused. Ricky was not provided with rubber gloves or a plunger. App. 39-40, 43-44. Ms. Robinson testified that she did not consider her action to be a disciplinary measure; she intended only for Ricky to clean up his own mess. App. 80-81. 7 Ricky pulled the paper out of the toilet with his bare hands. The paper had stains on it, but he did not see any feces. App. 43-44, 51. The entire incident lasted approximately five minutes. Ricky washed his hands and returned to class. Ms. Robinson asked Ricky if he had washed his hands with soap, and Ricky said that he thought so. Ms. Robinson sent Ricky back to wash his hands again with soap to make sure they were clean. App. 91-92. Ms. Robinson taught the class a lesson involving earthworms that afternoon, and Ricky appeared to enjoy handling the worms. He did not appear upset. App. 93-94, 100. 8 On the bus ride home, some boys called Ricky "plumber boy." App. 52. When Ricky got home that day, he told his mother that Ms. Robinson had made him clean out the toilet. He explained to his mother that when Ms. Robinson asked him if he intentionally plugged up the toilet with paper, he said that Ms. Robinson probably thought he said "yes" when he meant to say "no." App. 42, 49. Mrs. Harris called Carol Bentley, the school principal, who knew nothing about the incident. App. 52. Ms. Bentley met the following day with Ricky's parents and Jerry Carpenter, the Superintendent for the Wister School District. App. 52-53, 94-95, 109. At the meeting, Ms. Robinson apologized to Ricky's parents for the incident. Ricky's parents told Mr. Carpenter that Ms. Robinson should resign or be fired. Mr. Carpenter said that was not going to happen but that Ms. Robinson would be reprimanded. App. 54, 95-97, 112. 9 Ms. Robinson received a formal, written admonishment dated January 12, 2000, reprimanding her for poor judgment. She was advised that if any other incident of a similar nature occurs, it could lead to her dismissal. App. 115. 10 Ricky did not return to the Wister School District after the incident on January 10, 2000. His parents now home-school both Ricky and his older brother. App. 32, 47-48, 58-59, 107-108. 11 In school discipline cases, the substantive due process inquiry is "whether the force applied caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience." Garcia by Garcia v. Miera, 817 F.2d 650, 655 (10th Cir. 1987) (quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)). In order "to satisfy the 'shock to conscience' standard, . . . the plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking." Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995). 12 In Garcia, a nine-year-old girl was subjected to two excessive incidents of corporal punishment so severe that we characterized them as "beatings." Garcia, 817 F.2d at 652. In the first beating, a teacher held the girl upside down by her ankles while the principal used a wooden paddle to strike her. The paddle was split in two pieces and when the paddle hit her, "it clapped [and] grabbed." Id. at 653. The girl's classroom teacher observed blood soaking through her clothing after the beating, and she was left with a permanent scar on her leg from a two-inch cut. Id. In the second beating, the girl was so severely bruised that her family sought medical treatment. The examining physician stated that he had never seen such severe bruising as the result of a routine spanking. The examining nurse stated that if a child had received an injury of this type at home she would have reported the parents for child abuse. Id. 13 In Garcia, we found that the injuries were so excessive and severe that they met "the [high] threshold for recovery on the constitutional tort for excessive corporal punishment." Garcia, 817 F.2d at 658. We noted "that at some point of excessiveness or brutality, a public school child's substantive due process rights are violated by beatings administered by government paid school officials." Id. at 655. 14 A similar result was reached in Gerks v. Deathe, 832 F. Supp. 1450 (W.D. Okla. 1993), another school discipline case. In Gerks, a classroom teacher persuaded a mentally handicapped student with the mental abilities of a four-year-old and a documented fear of bathrooms to go to the bathroom before classes started. See id. at 1451. The teacher subsequently learned that the student had left three piles of excrement on the bathroom floor. The teacher tried to get the student to clean up her mess. But, when the student did not make enough progress, the teacher told the student she would have to stay in the bathroom alone until the mess was cleaned up. The teacher used a ribbon to fasten the bathroom door to prevent the student from leaving. Only after the mess was mostly cleaned up did the teacher attempt to clean the student and give her clean clothes. The school principal, aware of the teacher's actions, later showed the student a paddle "to let her know what happened when children did not obey school rules." Id. at 1452. The principal wrote up a disciplinary report about the student's behavior. The incident lasted almost three hours. 15 In Gerks, the district court found the teacher's behavior was sufficient to state a substantive due process claim. The student had a documented fear of bathrooms, particularly of being left alone in the bathroom, which was well known to the teacher. Additionally, the student, whose mental handicap affected her ability to understand the teacher's actions, may have been left alone in the bathroom for two hours. Id. at 1454. The district court concluded "that a rational jury could find that [the teacher's] actions were so demeaning and harmful to [the student] that they might have violated her substantive due process rights." Id. 16 Ricky claims that Ms. Robinson's conduct "was so excessive, demeaning, and inhumane as to be a substantive violation of his Fourteenth Amendment Due Process rights." Aplt. Br. at 13. However, Ricky's injuries do not rise to the same conscience shocking level as the plaintiffs in Garcia and Gerks. Ms. Robinson's actions were not so excessively cruel that Ricky was subjected to "appreciable pain." Additionally, Ms. Robinson's actions were not "inspired by malice or sadism." At most, Ms. Robinson exercised poor judgment and was careless in having Ricky clean out the toilet without first inspecting it herself and in failing to provide Ricky with appropriate tools or gloves. It is uncontroverted that Ms. Robinson believed that Ricky had clogged a clean toilet with paper. As the district court correctly found, "Robinson may have been negligent in not confirming her understanding of Ricky's 'confession,' but her conduct falls far short of the deliberate and malicious conscience shocking conduct described in Garcia and Gerks." Order at 10. 17 Even if Ricky had a substantive due process claim, Ms. Robinson would still be entitled to qualified immunity. In determining claims of qualified immunity, we first determine whether "the defendant's actions violated a constitutional or statutory right." Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995). Second, we determine whether the right was so clearly established that a reasonable person would have known that her conduct violated that right. Id. at 1534-35. We have stated that "[o]rdinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). There are no Supreme Court or Tenth Circuit opinions on point, nor does the clearly established weight of authority from other courts indicate that similar facts to our case establish a substantive due process violation. As discussed above, Ricky admitted confessing to Ms. Robinson, albeit mistakenly, to clogging a clean toilet with paper. Ms. Robinson reasonably believed that the paper and toilet were clean. At most, Ms. Robinson was negligent in not checking for herself before having Ricky clean the toilet. Ms. Robinson is entitled to qualified immunity because she did not violate a clearly established law of which a reasonable teacher should have known. 18 The dismissal of the case against Wister School District is affirmed. There is no evidence that Ms. Robinson's actions were consistent with an official policy or custom of the Wister School District. See Monell v. Department of Soc. Serv. of the City of New York, 436 U.S. 658, 690-91, 694 (1978) (section 1983 municipal liability is imposed when the deprivation is the result of a "government[al] policy or custom"). Furthermore, Ms. Robinson was given a formal, written admonishment concerning her actions after the principal and superintendent learned of her actions. She was also warned that additional incidents of this nature could lead to her dismissal. 19 For the foregoing reasons, the decision of the district court is AFFIRMED. NOTES: The Honorable Cynthia Holcomb Hall, Senior United States Circuit Judge for the Ninth Circuit, sitting by designation.	01-03-2023	08-14-2010
https://www.courtlistener.com/api/rest/v3/opinions/166737/	430 F.3d 1124 UNITED STATES of America, Plaintiff-Appellee,v.Alfredo MORALES-CHAIRES a/k/a Alfredo Morales-Chairez a/k/a Alfredo F. Morales a/k/a Alfredo Morales a/k/a Alfredo Frank Morales, Defendant-Appellant. No. 05-1190. United States Court of Appeals, Tenth Circuit. December 7, 2005. Submitted on the briefs:* Raymond P. Moore, Federal Public Defender, Edward R. Harris, Assistant Federal Public Defender, John T. Carlson, Research and Writing Attorney, Denver, CO, for Defendant-Appellant. William J. Leone, United States Attorney, Jerry N. Jones, Assistant United States Attorney, Denver, CO, for Plaintiff-Appellee. Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit Judges. STEPHEN H. ANDERSON, Circuit Judge. 1 Alfredo Morales-Chaires pled guilty to one count of unlawful reentry by a previously deported alien previously convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). He was sentenced to seventy-seven months' imprisonment. He appeals that sentence. For the reasons stated below, we affirm. BACKGROUND 2 Morales-Chaires was born in Mexico in 1974 and is a Mexican citizen. He first entered the United States in 1981. In 1995, he was convicted in a Colorado state court of two counts of possession of cocaine, each a felony, in violation of Colo.Rev.Stat. § 18-18-405. He was sentenced to four years' imprisonment for each count. Morales-Chaires was accordingly deported to Mexico in July 1997. 3 He illegally reentered the United States in August 1998. In September 1998, he was again convicted in a Colorado state court of one count of possession of cocaine, a felony, again in violation of Colo.Rev.Stat. § 18-18-405, and was sentenced to two years' imprisonment. Morales-Chaires was again deported to Mexico in March 2000. In April 2000, he again illegally reentered the United States. He was apprehended and deported for the third time in December 2002. 4 Morales-Chaires illegally reentered the United States yet again, in January 2003. On October 24, 2003, Morales-Chaires was convicted in a Colorado state court of one count of possession of cocaine, a felony, in violation of Colo.Rev.Stat. § 18-18-405, and was sentenced to eighteen months' imprisonment. He was incarcerated until October 21, 2004, at which time he was transferred to the custody of the United States Immigration and Customs Enforcement ("ICE"). He voluntarily admitted to the instant offense of illegally reentering the United States in January 2003, after having been previously deported. 5 On November 17, 2004, a grand jury returned an indictment against Morales-Chaires, charging him with one count of unlawful reentry by a deported alien whose removal was subsequent to the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). Morales-Chaires and the government entered into a written plea agreement, pursuant to which Morales-Chaires pled guilty and the government agreed to request a three-level decrease in Morales-Chaires' United States Sentencing Commission, Guidelines Manual ("USSG") offense level, and to recommend a sentence at the bottom of the applicable Guideline range. The plea agreement included a tentative calculation of the total adjusted Guideline offense level of 21, a criminal history category of VI, and the resultant advisory Guideline range of seventy-seven to ninety-six months' imprisonment. 6 The Presentence Report ("PSR") agreed with the plea agreement's calculations of offense level, criminal history and Guideline range. The PSR noted Morales-Chaires' extensive criminal history involving multiple prior convictions, including numerous felonies, starting when Morales-Chaires was fourteen years old and continuing through 2003. The PSR further noted that "[t]he severity of sanctions imposed for past criminal behavior has gradually increased over the years, however, it does not appear it has influenced defendant's conduct." PSR at ¶ 144, R. Vol. III. 7 Morales-Chaires filed a "Memorandum Pursuant to 18 U.S.C. § 3553(a) and Motion for Downward Departure from Advisory Guidelines" urging the court to "depart downward from the sentencing guideline range otherwise applicable" because: 8 the offense conduct represents a significantly lower risk of harm and lower level of moral culpability than the typical case of this type and the punishment otherwise prescribed by the sentencing guidelines does not reflect the seriousness of the offense conduct; and ... a departure serves critical goals of the sentencing guidelines. 9 Mem. at 2, R. Vol. I, tab 23. He argued that he had been "a productive and contributing member of society" and that his "primary source of trouble with the law has been drug-related." Id. at 6. He also argued that a downward departure would serve the goals of the sentencing guidelines because it would avoid his receiving different treatment from others similarly situated because, as an alien, he would have less access to programs in prison than non-aliens. Furthermore, he argued that the sentencing factors specified in 18 U.S.C. § 3553(a) support a sentence below the otherwise applicable Guideline range, in particular because, as discussed further below, of the disparities between sentences imposed in districts where a "fast-track" program exists for aliens accused of illegal reentry and in districts, like Colorado, where no such "fast-track" program exists. 10 At his sentencing proceeding on April 8, 2005, the district court denied Morales-Chaires' request for a downward departure under the Guidelines, and it rejected his argument that the sentencing factors contained in § 3553(a) compelled a sentence different than what the Guidelines recommended, including his argument based upon fast-track programs in other districts. The district court went through each of the statutory sentencing factors and concluded that they supported the recommended Guideline sentence. It also rejected his argument based upon the lack of a fast-track program in Colorado, finding that "for the Court to depart on this basis is in essence a violation of the doctrine of separation of powers because of interference with a prosecutor's exercise of discretion in charging and plea bargaining. That is the province of the executive branch." Tr. of Sentencing at 18, R. Vol. II. The court therefore sentenced Morales-Chaires to seventy-seven months' imprisonment, declaring that advisory Guideline sentence to be "reasoned and reasonable." Id. at 19. 11 Morales-Chaires appeals his sentence, arguing the court erred in sentencing him to a longer sentence than he would have received had he been prosecuted in a fast-track jurisdiction. DISCUSSION 12 Fast-track sentencing programs originated with federal prosecutors in states bordering Mexico, who were faced with increasing numbers of illegal reentry and other immigration cases. They accordingly designed programs whereby defendants accused of certain immigration offenses would plead guilty early in the process and waive their rights to file certain motions and to appeal, in exchange for a shorter sentence. The shorter sentence was accomplished either by charge-bargaining or by promising to recommend a downward departure at sentencing. See generally United States v. Martinez-Flores, 428 F.3d 22 (1st Cir.2005); United States v. Perez-Chavez, No. 2:05-CR-00003PGC, 2005 U.S. Dist. LEXIS 9252 (D.Utah May 16, 2005); Erin T. Middleton, Note, Fast-Track to Disparity: How Federal Sentencing Policies Along the Southwest Border Are Undermining the Sentencing Guidelines and Violating Equal Protection, 2004 Utah L.Rev. 827. 13 "In 2003, Congress endorsed the fast-track concept in a provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act ("PROTECT Act"), Pub.L. No. 108-21, 117 Stat. 650 (2003) (codified in scattered Sections of 18, 28, and 42 U.S.C.)." Martines-Flores, 428 F.3d at 25. A provision of the PROTECT Act directed the United States Sentencing Commission to "promulgate ... a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney." Pub.L. No. 108-21, § 401(m), 117 Stat. at 675. The Sentencing Commission accordingly added a new Guidelines section, effective October 27, 2003, authorizing such four-level departures. See USSG § 5K3.1, p.s. 14 In jurisdictions where fast-track programs have been authorized by the Attorney General, defendants must "agree to the factual basis [of the criminal charge] and waive the rights to file pretrial motions, to appeal, and to seek collateral relief (except for ineffective assistance of counsel)." United States v. Melendez-Torres, 420 F.3d 45, 52 (1st Cir.2005). At the time Morales-Chaires pled guilty and was sentenced, fast-track programs were in effect in a number of jurisdictions, but not in Colorado.1 Morales-Chaires argues that he could have received a sentence as low as thirty months were he to have been apprehended in one of the districts where the fast-track program is available. 15 During the time period when the Sentencing Guidelines were viewed and applied as mandatory, several circuits, including our own, held that "the existence of sentencing disparities as to illegal reentry cases among the various federal districts, where such disparities arise from varying charging and plea-bargaining policies of the individual United States Attorneys, [does not] provide an appropriate basis for a downward departure at sentencing[.]" United States v. Armenta-Castro, 227 F.3d 1255, 1257 (10th Cir.2000); see also United States v. Banuelos-Rodriguez, 215 F.3d 969, 972-78 (9th Cir. 2000) (en banc) (same); United States v. Bonnet-Grullon, 212 F.3d 692, 697-710 (2d Cir.2000) (same). In particular, we held that "the Sentencing Guidelines categorically proscribe the consideration of sentencing disparities flowing from the exercise of prosecutorial discretion in chging and plea bargaining practices." Armenta-Castro, 227 F.3d at 1258. 16 The Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), however, rendered the Guidelines advisory, not mandatory. "As a result of this change in the law governing sentencing, the pre-Booker decisions ... that rejected departures from the then-mandatory Guideline range on the ground the Guidelines precluded such departures certainly cannot be ignored, but they can no longer be considered controlling law." United States v. Medrano-Duran, 386 F.Supp.2d 943, 945 (N.D.Ill.2005); see also Martinez-Flores, 428 F.3d at 29 (noting that "[t]he question is different post-Booker"). Under Booker, when sentencing defendants, courts must refer to the list of factors contained in 18 U.S.C. § 3553(a), including (a)(6) which provides that courts must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6).2 Morales-Chaires focuses on that provision, arguing that the district court's failure to sentence him below the suggested Guideline range amounted to permitting an "unwarranted sentence disparit[y]" between himself and other illegal reentrants "with similar records who have been found guilty of similar conduct," and who are able to take advantage of a fast-track program. 17 "We retain `the same jurisdiction to review guidelines sentences as [we] had before the Supreme Court's decision in Booker.'" United States v. Serrata, 425 F.3d 886, 906 (10th Cir.2005) (quoting United States v. Sierra-Castillo, 405 F.3d 932, 936 n. 2 (10th Cir.2005)). We now review sentences imposed after Booker for reasonableness. See Booker, 125 S.Ct. at 766 (noting that the § 3553(a) factors "will guide appellate courts ... in determining whether a sentence is unreasonable"); Serrata, 425 F.3d at 911. Accordingly, we examine whether Morales-Chaires' seventy-seven month sentence was reasonable. 18 As indicated above, the district court carefully examined all the § 3553(a) factors before deciding on the sentence imposed. It considered the "nature and circumstances of the offense as committed by this defendant." Tr. of Sentencing at 12, R. Vol. II. It concluded that 19 the way in which this offense was committed is exacerbated because of a history of committing a drug offense, felony, being deported, illegal reentry, committing a drug offense, being deported, illegal reentry, committing a drug offense, being deported and illegal reentry. 20 And that is a serious violation of the law compounded by its repetition over this time and compounded by the fact that despite being imprisoned for these drug offenses and despite being deported, that has had no deterrent effect whatsoever on continued violation of the law. 21 Id. at 13. Considering the need to promote respect for the law, the court stated that an insufficiently severe sentence would undermine respect for the law, in light of the serious criminal history just outlined. With respect to deterrence, the court stated "[f]or the same reasons ..., a sentence that is too lenient in this case would not deter similar criminal repeated violation[s], but would encourage [them]." Id. at 14. The court then explained why the various reasons Morales-Chaires presented as justifying a more lenient sentence — his desire to spend time with and be the primary support for his ailing 85-year-old father, his claim to be a productive and contributing member of society, and his cultural assimilation in the United States — were not credible.3 22 The court then turned to Morales-Chaires' argument concerning the difference between sentences in fast-track jurisdictions and jurisdictions without fast-track programs, and held: 23 [F]or the Court to depart on this basis is in essence a violation of the doctrine of separation of powers because of interference with a prosecutor's exercise of discretion in charging and plea bargaining. That is the province of the executive branch. 24 So if courts were to buy into the idea that where there are fast-track programs, principally in the border states like New Mexico, for a reduction of sentence in order to achieve proportionality of a vast majority of the districts with a small minority of the districts that in essence would require prosecutors to stand this system of justice on its head and require all districts to provide reduction in sentence not taking into account a defendant's status as an aggravated felon for all illegal reentry cases regardless of the particular case or the appropriate exercise of prosecutorial discretion. 25 ... [Morales-Chaires' argument] invites judicial legislation,... and I decline to go there for good reason. Not the job of the Court to legislate under our tripartite form of constitutional government. And it undermines the will of Congress. 26 Id. at 18. The court therefore concluded that the Guideline range of seventy-seven to ninety-six months was "reasoned and reasonable" and sentenced Morales-Chaires to the low end. The court noted that "application of the statutory factors in light of the advice of the Guidelines could call, frankly, for an upward departure. Could well provide a reasoned and reasonable judgment and sentence at the high end of the Guideline range here." Id. at 19. 27 The only argument Morales-Chaires pursues on appeal is the fast-track argument. This is an issue of first impression, since Booker, in this circuit. The First Circuit has suggested in dicta that it rejects the argument Morales-Chaires makes to us. See Martinez-Flores, 428 F.3d at 30, n. 3 ("It is arguable that even post-Booker, it would never be reasonable to depart downward based on disparities between fast-track and non-fast-track jurisdictions given Congress' clear (if implied) statement in the PROTECT Act provision that such disparities are acceptable. Because we resolve the question in this case on Booker plain-error grounds, we need not reach that or any other issue of reasonableness." (citation omitted)). This issue has divided district courts. Compare United States v. Peralta-Espinoza, 383 F.Supp.2d 1107, 1108 (E.D.Wis.2005) (holding "under 18 U.S.C. § 3553(a)(6), courts may reduce sentences to remedy ... disparity" caused by fast-track programs) and United States v. Ramirez-Ramirez, 365 F.Supp.2d 728, 732 (E.D.Va.2005) ("In some cases, under Booker and 18 U.S.C. § 3553(a), it may be appropriate for the Court to exercise its discretion in order to minimize the sentencing disparities that exist in cases involving illegal re-entry.") and United States v. Galvez-Barrios, 355 F.Supp.2d 958, 963 (E.D.Wis.2005) (holding "under Booker and § 3553(a)(6), it may be appropriate in some cases for courts to exercise their discretion to minimize the sentencing disparity that fast-track programs create") with Perez-Chavez, 2005 U.S. Dist. LEXIS 9252, at 23 (holding, in light of the PROTECT Act provision, that "Congress has concluded that the advantages stemming from fast-track programs outweigh their disadvantages, and that any disparity that results from fast-track programs is not `unwarranted'"). 28 Yet another district court examined the two different types of fast-track programs — "those which, consistent with [USSG] § 5K3.1 and the Congressional directive, rely on downward departures of up to four levels, and those which rely on charge-bargaining, in other words, where the defendant is permitted to plead guilty to a reduced charge." Medrano-Duran, 386 F.Supp.2d at 946. The court further observed that "[t]he fast track districts that rely on charge-bargaining use methodologies that permit far greater sentence reductions than contemplated by Congress' directive in the PROTECT Act and the Sentencing Commission's policy statement in § 5K3.1" Id. While the court concluded that sentence disparities resulting from the application of the Sentencing Commission's policy statement in § 5K3.1 were not "unwarranted" under 18 U.S.C. § 3553(a)(6),4 it determined that sentencing disparities caused by "prosecutorial charging decisions" may be unwarranted. Medrano-Duran, 386 F.Supp.2d at 947. As the court stated, "[t]here is nothing in § 3553, Booker, or any other existing authority to support a construction of § 3553(a)(6) that allows Congress and prosecutors to determine what sentence disparities are warranted and unwarranted but prevents a court from doing so." Id. Accordingly, the court "determined that the disparity between Medrano-Duran and illegal re-entry defendants in districts with early disposition programs was an unwarranted disparity among similarly situated defendants within the meaning of § 3553(a)(6)." Id. at 948. 29 By contrast, the court in Perez-Chavez held that sentencing disparities caused by the existence of fast-track programs were not unwarranted. First, it observed that Armenta-Castro remained persuasive Tenth Circuit authority for that proposition: "Armenta-Castro's holding rested on the fact that the Guidelines implicitly rendered prosecutorial discretion an irrelevant factor for purposes of downward departures. That reasoning is, of course, much more powerful in the context of the PROTECT Act, which now explicitly considers the fast-track issue and spells out how such questions are to be handled." Perez-Chavez, 2005 U.S. Dist. LEXIS 9252, at 19-20 (footnotes omitted). Second, it concluded that Booker did not cause any meaningful change because "even after Booker the court must still `consider' the Guidelines." Id. 21. "In short, Congress has concluded that the advantages stemming from fast-track programs outweigh their disadvantages, and that any disparity that results from fast-track programs is not `unwarranted.'" Id. at 23. 30 We conclude that, in this particular case, we need not resolve whether sentencing disparities caused by the existence of fast-track programs in some jurisdictions are or are not, or may be in certain circumstances, considered unwarranted under § 3553(a)(6). Section 3553(a)(6)'s directive to sentencing courts to avoid "unwarranted sentencing disparities among defendant with similar records who have been found guilty of similar conduct" is but one of several factors for a court to consider in determining a reasonable sentence. As indicated, the court in this case carefully reviewed all the factors listed in § 3553(a), including § 3553(a)(6), and concluded that they fully supported the sentence imposed. Even one of the courts which recognized that sentencing disparities caused by fast-track programs could justify a lower sentence concluded that the other factors in § 3553(a) may preclude such a result: "I would have imposed a below-guideline sentence based in part on fast-track disparity if the other § 3553(a) factors had not weighed against such a sentence." Peralta-Espinoza, 383 F.Supp.2d at 1112; cf. Medrano-Duran, 386 F.Supp.2d at 948-49 (court reduced defendant's advisory Guideline range by three levels, in part because of unwarranted disparity caused by fast track programs but also because other factors — defendant's "youth, the fact that he had no prior illegal re — entry offenses, and the fact that he committed no other crimes following his return to this country" — suggested leniency). We therefore conclude that Morales-Chaires' seventy-seven month sentence is reasonable. CONCLUSION 31 For the foregoing reasons, Morales-Chaires' sentence is AFFIRMED. Notes: After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appealSee Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 1 Among the districts with fast-track programs are the districts of Texas, California, Arizona, New Mexico, Idaho, Nebraska, North Dakota, the Northern District of Georgia, and the Western District of Washington 2 18 U.S.C. § 3553(a) provides in pertinent part as follows: (a) Factors to be considered in imposing a sentence. — The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider — (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed — (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; ... (5) any pertinent policy statement issued by the Sentencing Commission...; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 3 With respect to Morales-Chaires' desire to care for his father, the court asked "why is it that at this point in this defendant's life he is now very concerned about his 85-year-old father?" Tr. of Sentencing at 15, R. Vol. II. Regarding Morales-Chaires' claim to have been a productive and contributing member of society, the court bluntly observed that "when one looks at his employment history and ... his criminal history, that's just simply not the reality here. He has not been a productive and contributing member of society.... [H]e has been a drain on this society, which is contrary to the policy of Congress."Id. at 16. The court then noted that while there "has been some cultural assimilation in this country, ... it has been in a criminal milieu." Id. at 17. 4 As the court stated, "[t]he Court seriously questions whether a sentencing disparity among defendants in different districts that results from application of a policy statement adopted by the Sentencing Commission, pursuant to an express Congressional directive, could appropriately be considered `unwarranted' within the meaning of § 3553(a)(6)."Medrano-Duran, 386 F.Supp.2d at 946.	01-03-2023	08-14-2010

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